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THE STATE OF WESTERN AUSTRALIA -v- WALKER [No 2] [2024] WASC 431 (25 November 2024)

Last Updated: 25 November 2024


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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : THE STATE OF WESTERN AUSTRALIA -v- WALKER [No 2] [2024] WASC 431

CORAM : FORRESTER J

HEARD : 23 OCTOBER 2024

DELIVERED : 25 NOVEMBER 2024

FILE NO/S : SO 4 of 2024

BETWEEN : THE STATE OF WESTERN AUSTRALIA

Applicant

AND

BRIAN MARCEL WALKER

Respondent


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Criminal Law - High risk serious offender - Application for restriction order - Whether the respondent is a high risk serious offender - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make restriction order to ensure adequate protection of the community - Whether community can be adequately protected by imposition of supervision order - Whether the respondent will substantially comply with standard conditions of a supervision order


Legislation:

High Risk Serious Offenders Act 2020 (WA)
Dangerous Sexual Offenders Act 2006 (WA) (repealed)

Result:

Supervision Order made

Category: B

Representation:

Counsel:

Applicant
:
Ms T Hollaway
Respondent
:
Ms A Fedele


Solicitors:

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


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


FORRESTER J:

Introduction
  1. This is an application made by the State of Western Australia on 23 April 2024 for a restriction order to be made in respect of the respondent, Brian Marcel Walker, pursuant to the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
  2. On 24 May 2024, a preliminary hearing pursuant to s 46 of the HRSO Act was held before me.[1] I was satisfied that there were reasonable grounds to believe that the court might find the respondent to be a high risk serious offender and ordered that the application for a restriction order be heard on 23 October 2024, and that the respondent be made subject to an interim supervision order pursuant to s 58(5) of the HRSO Act.[2]
  3. On the application for a restriction order, the matters I must decide are:
(1) whether the respondent is a high risk serious offender, within the meaning of s 7 of the HRSO Act; and, if so
(2) whether to make an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order)[3] or that he be released into the community subject to conditions that the court considers appropriate (supervision order).[4]
  1. For the reasons below, I am satisfied that the respondent is a high risk serious offender, and that it is necessary that a restriction order should be made to ensure adequate protection of the community. I have determined that he should be released into the community subject to conditions (supervision order) for a period of 21 months from 28 November 2024.
The application
  1. When the application was made on 23 April 2024, the respondent was serving a term of 4½ years' imprisonment for the offence of unlawfully doing grievous bodily harm, imposed by Vernon DCJ on 22 July 2021.[5]
  2. The respondent's sentence expired on 18 July 2024.
  3. The offence of unlawfully doing grievous bodily harm robbery is a serious offence under the HRSO Act.[6] As at the date of the application, he was under a custodial sentence for that offence.
  4. Accordingly, the respondent was, at the time the application was made, 'a serious offender under custodial sentence'[7] who was not a serious offender under restriction within the meaning of s 35 of the HRSO Act.
Materials
  1. The State produced a Book of Materials comprised of two volumes, containing the criminal history of the respondent and detailed evidence relating to it, including statements of material facts and transcripts, the respondent's custodial history, program completion reports relating to the various programs undertaken by the respondent while in custody, parole and other assessment reports, and reports prepared for this hearing, namely:
(1) report of Professor Natalie Pyszora dated 7 September 2024;
(2) report of Dr Kathryn Riordan dated 16 September 2024;
(3) HRSO Treatment Options Report of Luke Carmichael dated 19 September 2024; and
(4) Community Supervision Assessment Report of Nicola Shaw dated 29 September 2024.
  1. The State called the authors of these four reports at the hearing of the application, and they were cross-examined by the respondent's counsel.
Index offence
  1. The offence which renders the respondent liable to be dealt with under the HRSO Act (the index offence) is grievous bodily harm.
  2. On 19 January 2020, the respondent and the victim were both residents of the same residential facility. The respondent was in the hallway with a large kitchen knife outside the victim's room. The victim opened the door and, on seeing the respondent with the knife, attempted to defend himself by striking out at the respondent and then attempted to retreat into his room.[8]
  3. A struggle took place, during which the victim fell to the ground on his back before rolling onto his stomach. The respondent raised the knife and brought it down on the victim's unprotected back at least twice. The victim received puncture wounds to the shoulder, lower torso near the spine, and to the head.[9]
  4. Whilst the victim was on the ground, the respondent stood over him and proceeded to kick and stomp the victim's unprotected head multiple times, causing abrasions and a blunt injury to the right side. When other residents and a security guard attempted to stop the respondent, the respondent returned and, on each occasion, again stomped on the victim's head. This conduct was the subject of a charge of assault occasioning bodily harm.[10]
  5. As a result of the offences, the victim sustained a spinal fracture, a spinal epidural haematoma and a torn cervical spine ligament.[11]
  6. The respondent explained that the victim had been mocking him prior to the offence.[12]
Statutory framework and legal principles
  1. The objects of the HRSO Act are:
(a) to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b) to provide for continuing control, care or treatment of high risk serious offenders.[13]
  1. If the court hearing a restriction order application finds that an offender is a high risk serious offender, the court must make a continuing detention order or, except as provided in s 29, a supervision order. In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[14]
  2. The term 'high risk serious offender' is defined in s 7(1) of the HRSO Act as follows:

An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

  1. A 'restriction order' means a continuing detention order or a supervision order.[15] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[16] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[17]
  2. Relevantly, an offence is a 'serious offence' if it is an offence listed in sch 1 div 1 of the HRSO Act.[18]
  3. The State has the onus of satisfying the court in accordance with s 7(1).[19]
  4. When considering whether it is satisfied that a person is a high risk serious offender, the court must have regard to the factors set out in s 7(3) of the Act.
  5. The jurisprudence established in respect of the Dangerous Sexual Offenders Act 2006 (WA) is relevant in construing and applying the HRSO Act, with necessary adaptation.[20]
  6. The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[21]
  7. The words 'high degree of probability' import more than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but are otherwise not capable of further definition.[22] The court is required to identify what it is that constitutes the risk and what makes it unacceptable, thereafter considering whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.[23]
  8. In Garlett v The State of Western Australia,[24] the court said:
Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is 'necessary' to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.
  1. The meaning of 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams[25] in the following terms:
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
  1. In The State of Western Australia v Garlett,[26] Corboy J considered that s 7(1) of the HRSO Act (in conjunction with s 48) requires the court to assess two separate matters. The first is whether a risk that an offender will commit a serious offence is unacceptable. The second is, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence. His Honour stated:
[T]he court should choose, as between a continuing detention order and a supervision order, the order that is 'least invasive or destructive' of a person's right to be at liberty while ensuring an adequate degree of protection of the community. That constraint also applies in determining the non-standard conditions (if any) of a supervision order. Moreover, as Hall J pointed out in Director of Public Prosecutions v Decke,[27] '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order'.[28]
  1. The court cannot make a supervision order in relation to an offender unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[29]
  2. The standard conditions of a supervision order are set out in s 30 of the HRSO Act and include the requirement that the offender not commit a serious offence during the period of the order.[30]
  3. In determining whether an offender 'will substantially comply with the standard conditions of the order':
The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious ... offence.[31]
Matters to be considered pursuant to s 7(3) HRSO Act Antecedents and criminal history

Family background and relationships

  1. The respondent was born in Papua New Guinea and moved to Melbourne with his mother when he was 7 years old. They moved to Perth when he was 11 years of age.[32]
  2. The respondent is the elder of two children born to his parents, who separated when he was 6 years old due to his father's violence and alcohol dependence. His father remains in Papua New Guinea and the respondent has had no contact with him for more than 10 years.[33]
  3. The respondent's mother formed a relationship with an Australian man which lasted for 20 years and produced three children who are half‑siblings to the respondent. The respondent's reported descriptions of his experiences during this time have been inconsistent, with varying accounts recorded by the psychologist Jane Sampson, the facilitators of the Violence Prevention Program, Professor Pyszora and Dr Riordan. For example, he told Professor Pyszora that his stepfather was a good man who, while not violent, did use physical punishment against the children.[34] He also said that his mother was 'bipolar' and was occasionally physically abusive towards him and would sometimes hit him with implements.[35] He told the Violence Prevention Program facilitators that there was mutual substance use by his mother and stepfather, and increased violence to family members at those times,[36] but denied to Dr Riordan that there was any such substance use or violence towards his mother.[37] Prior to his sentencing for the index offences, he informed the psychologist Ms Sampson that he had a conflicted relationship with his stepfather, and resented the boundaries and physical punishment set by him.[38]
  4. When he was 14 years old, the respondent increasingly engaged with negative peers and in substance use, and often absconded from home and slept on the streets. It was around this time that he first became involved with the criminal justice system. He has reported that during this time he was exposed to drug use and violence, which became normalised for him. At the age of 15 or 16 years old, the respondent left home and began to live with friends.[39]
  5. The respondent returned to live with his mother and sister when he was 18 years old, as a condition of his parole. However, his mother obtained a violence restraining order against him and he was required to leave. Over the years his mother has obtained further violence restraining orders against him; he claims they were as a result of verbal arguments, and denies ever having been violent towards his mother. He claims the assault upon his mother in 2006 was directed at his partner.[40]
  6. At the age of 20 years, the respondent formed a relationship with a woman who was slightly younger than him, which lasted a decade, but was marred by family violence, mutual substance use and separations due to incarceration. The relationship ended as a result of the violence, which he attributes to drugs and jealousy, after producing two daughters, who are now in their late teens. The respondent has not seen his eldest daughter since she was 13 years old, but he hopes she will stay with him during the school holidays. The younger daughter visits him on weekends.[41]
  7. After that relationship ended, the respondent formed a relationship with another woman, four years his junior, with whom he had a third daughter. The relationship ended after two years when the respondent was imprisoned. He has no contact with that child, but her mother is supportive of contact.[42]
  8. On his release, the respondent formed other relationships but they ended after a year either shortly before or when he was remanded for the index offences.[43]
  9. The respondent reported that he has many friends, both prosocial and antisocial, but is trying to avoid the latter. He denies involvement in any gangs or clubs as an adult, although he was the member of a culturally based street gang during adolescence.[44] To Dr Riordan, he expressed no desire to initiate or maintain friends in his present regional location, as he does not perceive himself to be like people in that community, and did not think he would be living there long‑term. He preferred to enjoy the 'alone time' at this stage, relying on contact with his mother and sister and telephone contact with children and friends in Perth.[45]

Education and employment

  1. The respondent regarded primary school as a positive experience, and he reported that he was of average academic capability, with no identified learning difficulties. He went to high school, but was expelled in year 10 for poor behaviour, including engaging in physical altercations, being oppositional, truanting, and poor academic performance.[46] He told Professor Pyszora and Dr Riordan that there were a lot of international students at his school and they formed gangs to protect themselves from the racism directed at them. The fights often escalated and involved weapons, though he denied carrying weapons himself.[47] Notwithstanding this, he has competent literacy and numeracy skills.[48]
  2. The respondent studied a mechanics apprenticeship at TAFE for about 18 months, but failed to complete it due to substance use and destabilisation after becoming a father.[49]
  3. The respondent was first employed as a car detailer at the age of 23 years, and continued intermittently in that employment until he was 28 years old. In between periods of imprisonment, he received Centrelink benefits and at the time of the index offending he was living in accommodation provided by a release support agency.[50]

Substance abuse

  1. The respondent smoked cannabis daily from when he was 12 years old until his late twenties, but ceased regular use when he became increasingly paranoid. He has also engaged in binge drinking of alcohol since the age of 12, and, prior to the index offences, continued to do so when in the community.[51]
  2. The respondent was introduced to amphetamines when he was 15 years old, and he used it intravenously on a daily basis. He has tried other drugs such as MDMA and LSD intermittently.[52]
  3. The respondent reported adverse effects of prolonged methylamphetamine use, including increased paranoia, and 'looping out' at times. He also had a few discrete episodes of drug induced psychosis but these spontaneously resolved after the intoxicating effects of the drugs metabolised, and the respondent denied requiring treatment for these or suffering any long term effects.[53]
  4. According to the pre-sentence report, the respondent said he had drunk heavily prior to the index offending and had used methylamphetamine three days before it.[54] However, to Professor Pyszora and Dr Riordan he claimed to have been abstinent from methylamphetamine for eight years, and denied using it during his last period in the community.[55]

Medical and psychiatric history

  1. The respondent has a number of medical conditions, although he is not presently on any medication. He reports having had multiple head injuries from attacks with weapons, but no loss of consciousness.[56]
  2. Prior to his sentencing for the index offences, psychometric testing indicated the respondent had significant symptoms of depression and anxiety. He was prescribed anti‑depressant medication, which assisted, but did not resolve, his symptoms. He reported a long-standing low mood but tended to self‑medicate rather than seek professional assistance.[57]
  3. Reflecting on this assessment when interviewed by Dr Riordan, the respondent challenged Ms Sampson's opinion regarding him suffering from a mood disorder, and explained he was grieving the death of a close friend (which he had not told Ms Sampson) and his presentation was as a result of a short term state of grief. He expressed strong views about being stigmatised by mental health labels.[58]
  4. To Professor Pyszora, the respondent denied any significant previous mental health issues. He denies ever having been psychotic. He does not believe he needs medication and denies having had low mood, anxiety and poor motivation, despite previously self‑reporting those symptoms.[59]

Criminal history

  1. The index offence is the only serious offence, as that term is defined in the HRSO Act, of which the respondent has been convicted. However, starting from when he was 15 years old, the respondent has amassed an extensive criminal history in Western Australia[60] and in the Northern Territory[61] which includes numerous convictions for:
(a) assault occasioning bodily harm, unlawful wounding and common assault, with and without circumstances of aggravation;
(b) weapons offences;
(c) drug possession/use;
(d) burglary and aggravated burglary;
(e) gaining a benefit by fraud, possession of stolen or unlawfully obtained property, stealing and attempted stealing;
(f) criminal damage;
(g) breaches of various court orders including bail and protective bail conditions, suspended imprisonment orders, community‑based orders, family violence restraining orders; and
(h) traffic offences.
  1. In August 1997, when he was 15 years old, the respondent had an argument with another male, and picked up a 'boulder' and threw it at him, hitting him in the face and causing severe swelling.[62] This resulted in him being sent to Rangeview Detention Centre. While there, he was the victim of abuse from the youth detention officers.[63]
  2. As an adult, the respondent was convicted of the 2005 common assault of his de facto partner by knocking her to the ground, striking her in the face, and putting his hands around her neck. Less than a year later, when he was arguing with his girlfriend about their child, his mother intervened. He then assaulted his mother by hitting her in the head, pulling her hair and kneeing her in the back. At the time, he was subject to a violence restraining order which prohibited him from attending the premises where the offending occurred.[64]
  3. In November 2006, he argued with the same partner about a previous partner of hers and then punched her in the right arm continually. Later that day, he again became angry at his partner. He grabbed her hair and yanked it, punching her in the face and arm while yelling abuse at her. The next morning, the respondent and his partner continued arguing, and the respondent punched the victim. She turned away to avoid the blows, and the respondent bit her arm, leaving deep bite marks. Later, at a train station, he punched the victim to the nose and head. He told her to meet him later, threatening that if she did not, he would stab her.[65]
  4. The respondent was convicted in 2007 of assaulting the same woman, from whom he had recently separated, by throwing a house brick at her. He then followed her, grabbed her in a headlock, and bit her ear, completely severing a part of it, measuring 3 cm by 1 cm.[66]
  5. In 2010, the respondent was convicted of assaulting the same partner, with whom he then had two children. They were in a shopping centre, and he grabbed and punched her in the face two or three times, before grabbing her around the throat with both hands and applying pressure, impeding her breathing. She ran away and sought help, injuring herself as she did so.[67] Two months later, the respondent assaulted her again, by punching her in the face and pushing her head into a wall about four times.[68]
  6. One of the respondent's convictions for assault occasioning bodily harm in 2012 arose from his December 2011 assault upon his 11‑week pregnant partner, whom he had accused of infidelity. He punched her in the back of the head about five times and tried to prevent her calling out by covering her mouth. She ran for help and he hit her in the head with a large stick and then, when she fell to the ground, he hit her around the back and torso area about four times with the stick. She suffered bruising and swelling to her right cheek, multiple bruises to her back and right shoulder and bruises to her arms, breast and neck. The respondent explained that he could not really recall the incident, as he had been drunk.[69]
  7. Also in 2012, the respondent was convicted of assault occasioning bodily harm for being one of a group of men who attacked two men in Rockingham in May 2010, with theft the apparent motive.[70]
  8. In 2015, the respondent was drinking at the victim's house. When his behaviour prompted the victim to ask him to leave, he head butted her, punched her twice and threatened to have her raped.[71]
  9. The respondent has also been convicted of carrying a number of items, either as offensive instruments or weapons, such as a hammer, scissors, a box cutter, and a 30 cm knife.[72]

Conduct while in custody

  1. During his most recent sentence, the respondent has been found to have assaulted another prisoner in February 2020,[73] to have used a drug not lawfully issued to him, namely buprenorphine, in November 2020,[74] to have disobeyed the rules of the prison by receiving a tattoo while in prison in June 2022,[75] and to have disobeyed an order to move blocks.[76]
  2. Other than the positive test in November 2020, samples taken from the respondent for substance use testing have returned negative results.[77]
  3. The respondent has been reported to be a compliant prisoner who adhered to rules and routines, interacted appropriately with peers and staff, and maintained his personal and cell hygiene to the expected standard. He was employed and generally demonstrated work ethic and motivation.[78]

Previous response to supervision

  1. Apart from the interim supervision order, the respondent has previously been supervised on four community dispositions. He was regarded as having demonstrated poor compliance overall. In 2004, a Community Based Order was cancelled due to his failure to comply with the requirements of the order. In 2008, he failed to report in accordance with the requirements of his parole order, and re‑offended, resulting in cancellation of the order. In 2010, he breached a Community Based Order, and was regarded as unsuitable for conditional bail due to unaddressed alcohol and substance use issues.[79]
  2. The respondent has been subject to an interim supervision order since 19 June 2024.[80] The respondent's Senior Community Corrections Officer (SCCO) told Dr Riordan that the respondent had responded well to the order to date, reporting as directed, returning clean urinalysis results, and engaging adequately with local police, as well as being proactive in obtaining identification documents.[81]
Reports prepared under s 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section.

Psychiatric report of Professor Natalie Pyszora dated 7 September 2024

  1. Professor Pyszora is a Consultant Forensic Psychiatrist. She interviewed the respondent over a period of more than five hours and had access to volume 1 of the Book of Materials as well as information provided by Nicola Shaw, the respondent's SCCO. Professor Pyszora reported that the respondent was cooperative and openly participated in the interviews.[82] Rapport was slowly established. He presented with an apparently candid account of his life including his offending. He did not exhibit any symptoms suggestive of a major mood or psychotic disorder and appeared of at least average intelligence.[83]
  2. The respondent characterised his relationship with the mother of his two eldest daughters as being affected by drugs and jealousy. He acknowledged he was violent towards her, but said she was also violent towards him. He denied acting coercively, but admitted smashing objects during violent episodes and threatening to kill her. He admitted throwing a brick at her on one occasion. He said he was always angry when violent. He denied deliberately using asphyxia in particular, saying it just happened when he was angry. He would always feel remorseful straight away. He denied any violence against his children.[84]
  3. The respondent denied being violent towards the partners he had had in the time leading up to the index offending.[85]
  4. The respondent explained the index offending as being motivated by competition over drug dealing, and said he had made up the explanation for the offending which he gave to police at the time. He expressed remorse for his conduct and its victim impact.[86]
  5. The respondent could not recall participating in previous treatment programs prior to the sentence for the index offending. He admitted that he had not been interested in changing his behaviour and there was no point in doing programs because he never had accommodation to support release on parole.[87] He claimed to have changed his attitude following spending 21 days in the detention unit at Casuarina prison after being suspected of selling drugs and being involved in a large brawl,[88] and he subsequently participated in two significant programs addressing substance misuse and violent offending.[89]
  6. The respondent believed that he benefitted from the Violence Prevention Program. He denied a lack of motivation. He reported that he would not be involved in violence again even if he returned to substance use, as long as he did not return to the drug dealing world. He cited the lack of violence in his last two relationships as evidence of his lack of risk.[90]
  7. The respondent told Professor Pyszora that he had now coped without drugs for eight years as he has a 'strong mindset'. He claimed to have been offered drugs since his release on the interim supervision order but refused.[91] Professor Pyszora considered this to be 'encouraging', although noted it was in the context of the support and supervision of the interim supervision order.[92]
  8. The respondent believes that the support he is receiving on the interim supervision order is helpful, and is open to any intervention which is recommended. He attends his local gym, walks and does chores, as well as playing the guitar and painting.[93]
  9. Using the self-administered screen for symptoms of anxiety, depression and stress over the previous week, the respondent did not identify any current symptoms.[94]
  10. Professor Pyszora opined that the respondent's adverse childhood experiences, including witnessing his father's alcohol fuelled family violence, the physical discipline of his mother and corporal punishment at school will have rendered the respondent vulnerable to developing various impairments as an adult, including relationship problems, emotional distress, high stress and inability to control anger. Accordingly, in childhood, violence was normalised as a way to respond to interpersonal conflict and retribution for wrongdoing. The respondent's antisocial associations and his choice to lead a largely criminal lifestyle from his mid‑teens continued and he has persistent antisocial attitudes which condone violence.[95]
  11. Professor Pyszora was of the view that anger, jealousy, poor conflict resolution skills, poor communication skills and substance use are key factors in the respondent's long history of family violence.[96]
  12. As to the respondent's substance use issues, Professor Pyszora considered that they are clearly substantial, and remain a criminogenic treatment need. His refusal to participate in the Pathways Program in 2013 means that the respondent's response to treatment has only recently been tested. While he made some treatment gains from the programs in which he participated during his most recent sentence, he continues to have treatment needs in the areas of antisocial behaviour, antisocial attitudes and associates, antisocial personality disorder, substance use issues, employment and family/marital problems. He has limited insight into the challenges involved in changing the lifestyle he has led since the age of 15, but does understand that he will need significant support and intervention. He also has limited insight into his risk factors for re‑engaging in intimate partner violence and has not participated in any treatment in this area during his time in custody.[97]
  13. Professor Pyszora regards the interim supervision order as providing significant protective factors, and providing opportunities for him to be more open about vulnerabilities and stresses and to seek help, as well as to allow him to access further treatment and consolidate treatment gains.[98] In her view, it would be 'incredibly challenging' for the respondent to maintain a prosocial lifestyle without the supports and supervision of a supervision order.[99]
  14. Professor Pyszora considers that the respondent fulfils criteria for a diagnosis of antisocial personality disorder and substance use disorder in sustained remission in a controlled environment, the latter being severe in relation to methylamphetamine and alcohol.[100]

Assessment tools

  1. Professor Pyszora acknowledged that the risk assessment tools do not enable a perfect prediction for re‑offending on the part of the respondent, but they do provide assistance in coming to an opinion as to the likely risk of re‑offending.[101]
Hare Psychopathy Checklist – Revised (PCL-R)
  1. Professor Pyszora used the PCL-R, a standardised rating scale which allows the reliable identification of traits of psychopathy. It is not designed to be a risk assessment instrument, but has been reliably associated with general, violent and sexual recidivism and is considered to be an important consideration in assessing risk. The respondent scored in the low range for psychopathy, with the majority of his positive scoring being in the area consistent with the diagnosis of antisocial personality disorder.[102]
Historical Clinical and Risk Management 20, Version 3 (HCR-20 V3)
  1. This risk assessment tool provides a structured professional judgment approach to violence risk assessment, in which assessors use all available information to categorise individuals as low, moderate or high risk. The method provides empirically based frameworks to inform risk assessment processes, including identifying opportunities for interventions or managing risk. It focuses on the prevention and management of future violence, rather than an exact probability of likely future violence.[103]
  2. The HCR-20 V3 is the most commonly used and valued set of clinical guidelines for violence risk assessment and management in community, correctional and forensic mental health settings in the world. It is the most widely used and best validated violence risk assessment instrument. It focuses on static and dynamic factors, and factors which relate to the management of risk.[104]
  3. The respondent's historical risk factors are a history of problems with previous violence, other antisocial behaviour, relationships, employment, substance use, personality, traumatic experiences, violent attitudes and treatment or supervision response. He has some partially present clinical risk factors, namely problems with insight, violent ideation or intent, and treatment or supervision response.[105]
  4. As to risk management factors, Professor Pyszora identified future problems with professional services and plans (largely due to the limitations of his regional location), and potential issues with employment and financial instability, stress and coping and the need for future treatment and supervision to deal with his outstanding criminogenic needs.[106]
Spousal Assault Risk Assessment Guide – Version 3 (SARA-V3)
  1. The SARA-V3 is also a structured professional judgment risk assessment tool and includes guidance for risk formulation, risk scenario planning and risk management planning, as well as facts to aid in victim safety planning. The previous version has been shown to have moderate to good predictive validity and can be used in any culture.[107]
  2. The SARA-V3 is comprised of three domains, including risk factors relating to the nature of intimate partner violence, perpetrator risk factors and victim vulnerability factors.[108]
  3. In the nature domain, the following factors were present: intimidation, threats, physical harm, sexual harm (in that his violence relates to jealousy), severe intimate partner violence, chronic intimate partner violence and intimate partner violence supervision violations.[109]
  4. As to the perpetrator risk factors, there is overlap with the HCR‑20 V3, with present factors being intimate relationships, non-intimate relationships, employment/finances, trauma/victimisation, general antisocial conduct, personality disorder, substance use, violent/suicidal ideation and distorted thinking about intimate partner violence.[110]
  5. The victim vulnerability factors describe the vulnerabilities which can interfere with a victim's ability, opportunity or motivation to engage in self‑protective behaviour. In the case of the respondent, he has not been in a relationship with the victims of his intimate partner violence since 2011, and is presently single, so there is no present potential victim to consider in this assessment of risk.[111]

Risk scenarios

  1. Professor Pyszora posited two main scenarios for future violence on the part of the respondent. The first is that the respondent is most likely to engage in serious violence by using weapons as well as punches or kicks. The violence may be excessive and cause significant and permanent injury. It is most likely to occur in the context of a return to drug dealing to protect reputation and defend against threats from other criminal elements. The respondent may be under the influence of substances, but not necessarily. He may be alone, or in company. The respondent presents a chronic risk. While violence is not imminent under the current order, relapse into substance use, re‑engagement with antisocial peers and financial and housing instability may result in re‑engagement in criminal lifestyle, at which point his offending may quickly escalate.[112]
  2. The second scenario involves intimate partner violence. In this scenario, the likely harms may not meet the criteria of a 'serious' offence, but there is the potential for them to meet that definition. The respondent is most likely to engage in intimate partner violence in the context of a significant relationship which has become conflictual. He is most likely to be intoxicated. His risk is chronic, in view of his numerous risk factors, but violence is not imminent given the fact that the respondent is presently single and says he intends to remain so in the near future. Early warning signs would be substance use and/or concerns about his partner's fidelity.[113]

Risk Assessment

  1. Professor Pyszora is of the opinion that, if the respondent were not subject to a restriction order, he would present a high risk of committing a serious offence, as that term is defined in the HRSO Act.[114] He has an established pattern of violent offending behaviour, although only one is a serious offence. He has significant outstanding criminogenic treatment needs, and limited insight into the challenges which are involved in changing his criminal lifestyle.[115]

Recommendations

  1. Professor Pyszora was of the view that, if the respondent was placed on a supervision order, he would be likely to comply with it.[116] She recommended that monitoring strategies be implemented to ensure early detection of warning signs and escalating risk, including supervision, random alcohol and drug testing, disclosure of intimate and non-intimate relationships and surveillance of devices. Treatment is required, although the regional limitations are acknowledged.[117]
  2. In terms of employment, if the respondent were able to obtain it, Professor Pyszora noted that the respondent would eventually have to be exposed to potential risk situations, in order to manage them. With appropriate support and supervision, the respondent should be able to do so.[118]
  3. Professor Pyszora recommended that, if the respondent were to be made subject to a restriction order, it be made for a duration of two to three years.[119]

Psychological Report of Dr Kathryn Riordan dated 16 September 2024

  1. Dr Riordan is a Consultant Forensic and Clinical Psychologist. Preparation of her report involved more than five hours interviewing the respondent, speaking with his SCCO, reviewing volume 1 of the Book of Materials, and interviewing the respondent's mother.[120]
  2. Dr Riordan described the respondent as presenting as alert and oriented, able to maintain good concentration and intention, with euthymic mood, and having a broadly congruent affect. He impressed as guarded, with some evidence of impression management, albeit unsophisticated. He demonstrated an ability to regulate his emotional state, even when discussing difficult topics.[121]
  3. Dr Riordan noted the inconsistent histories provided by the respondent regarding the relationship between his mother and stepfather, and the influences on him during that time and said he described a 'complicated attachment relationship' with his mother. While the respondent considered they had a good relationship now, he considered it to be acrimonious during his childhood and adolescence.[122] He has reconnected with his stepfather (who is no longer in a relationship with the respondent's mother) after about 15 years without contact; his stepfather has the care of one of the respondent's older daughters.[123] The respondent has mixed relationships with his siblings.[124]
  4. In interview, the respondent's mother acknowledged that she used corporal punishment on the respondent, explaining that it was common in Papua New Guinea, and she had to learn how to parent differently after coming to Australia. She also described feeling overwhelmed by her parenting responsibilities without the familial support of extended family.[125] Ms Walker reported feeling apprehensive about the respondent living with her due to his past behaviour towards her and his siblings.[126]
  5. The respondent's history of substance use and his longer intimate relationships as stated to Dr Riordan were consistent with those provided to Professor Pyszora.
  6. The respondent claimed to Dr Riordan that he was not intoxicated at the time of the index offence, but that it was related to drug dealing and in response to a perceived threat by the victim and others towards the respondent. He expressed regret for the offence.[127]
  7. The respondent explained the assault on the prisoner in custody on the basis that the victim had, while in the community, sent the respondent's intimate partner sexual images of himself while the respondent was in custody. The respondent was concerned the victim may hurt his partner, and took the opportunity to harm him when they were housed together.[128]
  8. The respondent reported that the significant overlap between the Violence Prevention Program and the Pathways Program affected his motivation during the latter. He thought that the most valuable skill he learned was consequential thinking and to think before acting. He maintained he was no longer impulsive. He expressed insight into his early childhood experiences and awareness of his triggers for anger and aggression. He described his relapse prevention plan as being based on distraction and avoidance based strategies. When asked about managing potential high risk situations if he were to move to Perth, he said he was cautious about his associations and was focussed on getting fit and living a normal life.[129]
  9. Dr Riordan acknowledged that risk assessment instruments used by her have not been normed specifically on first nations populations, and have been criticised for cultural bias and their predictive validity in relation to first nations and culturally diverse offenders. While attempts have been made to reduce cultural bias, it is accepted that such bias can remain, and Dr Riordan noted this as a limitation to her assessment.[130]
  10. A screening tool was administered to assess the respondent's experience of signs and symptoms associated with depression, anxiety and stress, and the respondent's scores fell within the normal range.[131]
  11. Dr Riordan questioned the respondent using the Social and Emotional Well‑Being framework, finding that the respondent experienced the greatest amount of stress with respect to his connection to family and kinship. The respondent has expressed a desire to establish a positive relationship with his daughters, to whatever extent they are comfortable. Otherwise, he felt strong in his body, mind and emotions. He preferred to identify as Australian, and did not identify strongly with his Papua New Guinean culture.[132]
  12. Dr Riordan observed that the respondent:
presents with a pattern of using both instrumental and reactive violence across intimate, family, peer and other relationships to meet his needs, express or discharge his emotional states, assert his dominance and retain his reputation within the crime subculture. His pattern of violence is underpinned by a range of distal static factors related to cumulative disadvantage from the respondent's multiple adverse early childhood experiences that have spanned the full spectrum of harm across all critical periods of development.[133]
  1. In Dr Riordan's view, the respondent's early growth and development occurred within community and social contexts that normalised, condoned and encourages the use of violence to meet needs, express emotional states, resolve conflict, have fun and assert power and dominance. The respondent appears to have developed a reliance on substances as a form of self‑soothing, to assist him to manage stress, assert his dominance as a man and regulate his emotional states.[134]
  2. In the context of the respondent's experience, he views the world as unsafe and unpredictable but desires nurturing and care. He therefore actively seeks reassurance and relational security from his intimate relationships yet becomes overwhelmed by them. He has also been taught to assert himself through dominance in his relationship with other men, and he has learned to assert physical power and dominance indiscriminately across all interpersonal relationships, often amplified by drug and alcohol effects.[135]
  3. While the use of alcohol and drugs increases the respondent's reactivity and impulsivity on occasions, he does not require the disinhibiting effects of intoxication to perpetrate acts of violence.[136]
  4. Dr Riordan credited the respondent for completing treatment programs in custody, and complying with the interim supervision order. She noted he has been aided by the geographical isolation of his present accommodation as well as the support provided.[137]

Hare Psychopathy Checklist – Revised (PCL-R)

  1. Dr Riordan also used the PCL‑R to assess the respondent for psychopathy, and found that his overall score fell in the moderate range, but did not meet the clinical cut off score for psychopathy. However, his results were consistent with Dr Riordan's opinion that the respondent meets the diagnostic criteria for Antisocial Personality Disorder.[138]

Million Clinical Multiaxial Inventory-IV (MCMI-IV)

  1. The respondent also completed the Million Clinical Multiaxial Inventory‑IV, a 195 item self‑report assessment of personality and psychopathology in adults. The respondent's response style indicated a strong inclination towards answering the items in a socially desirable manner, indicating an attempt at impression management, which undermined the validity and reliability of the instrument and requiring caution in interpreting results.[139]
  2. The respondent's personality profile indicated elevations in Unspecified Personality Disorder (Turbulent) with Compulsive Personality Type, Histrionic and Antisocial Personality Style. Dr Riordan noted that, given the respondent's response style, the results may be compromised and may be an underestimate of his true functioning. However, the scores did not reach the threshold to be considered a disorder. While the results indicate the respondent can adequately function, he is likely to experience marked periods of emotional, cognitive or behavioural dysfunction.[140]

Violence Risk Scale (VRS)

  1. The VRS is a fourth-generation actuarial risk assessment tool designed to assess the risk for violence for forensic clients, particularly those who have been detained and are being considered for release into the community.[141] It has been validated for use with custodial, community and psychiatric populations, and across cultural groups, although concerns remain that risk is overestimated for first nations and Aboriginal populations and that risk prediction is therefore marginally less accurate. While some research has suggested Aboriginality did not result in significantly different ratings for items linked to violent reoffending as measured by the scale, the scale has not been normed on a Western Australian, Australian Aboriginal, or Papua New Guinean population.[142]
  2. The scale has been developed upon the assumption that to provide a comprehensive assessment of an individual's violence risk, the tool must be sensitive to fluctuations in violence risk over time and in response to participation in effective treatment. Accordingly, the VRS is comprised of both static and dynamic variables, which are each given a rating, reflecting the extent to which the factor is present and problematic for the individual. The scores are then combined to give an overall score which represents the individual's current violence risk profile.[143]
  3. The respondent's static variables score was 15 out of a possible 18, based on his age at first violent conviction, his extensive youth criminal history, his history of violence throughout his lifespan, his poor compliance with court and community orders and unstable upbringing during which he was exposed to multiple adverse childhood experiences.[144]
  4. As to the dynamic variables, the respondent has engaged in a consistent pattern of violent behaviour during his life, with the use of violence having been normalised for him from a young age. He has used violence and interpersonal aggression over time and across situations, contexts and relationships and appears limited in his ability to remain in the community without resort to violence.[145] He has used a variety of weapons and has admitted regularly carrying them, and there is strong evidence that the presence of a weapon has increased the severity of his violence.[146]
  5. The respondent appears to have held pro-criminal attitudes, values and beliefs in his past, although he has moderated his behaviour over time in the custodial environment. He continues to present with a strong sense of male entitlement, and he seeks to justify his past behaviour as proportionate and warranted while feeling a strong sense of injustice at his adverse childhood experiences and these proceedings.[147] He has limited insight into his use of violence.[148]
  6. The respondent appears to present with cognitive distortions,[149] as well as poor emotional management skills which have at times been exacerbated by his use of alcohol and other substances, and his use of violence in intimate and family relationships appears to have been underpinned by an inability to manage emotions such as jealousy, uncertainty, debasement and rejection.[150] His proclivity towards impulsivity has previously been identified as a treatment need and, while his early performance on the interim supervision order appears to indicate a reduction in its relevance, further reduction in the community context is required.[151]
  7. While his family members are almost all prosocial, the respondent has little contact with the majority of them, and his peer group is comprised almost exclusively of antisocial peers.[152] He has limited prosocial community support, which is further limited by his geographical location.[153]
  8. The respondent does not have a demonstrated strong work ethic in the community, but has taken positive steps towards employment and work during his present sentence.[154]
  9. The respondent's overall score for dynamic variables was 43 out of a possible 60. When combined with his static score, the respondent's total score places him within the above average risk category. People in this category have a persistent offending profile, with many criminogenic needs, some chronic longstanding and severe. They require intensive monitoring, intervention and supervision, with sustained risk reduction requiring several years of effective treatment.[155]
  10. Offenders in the normative sample with the same category of risk as the respondent are calculated to have a violent recidivism rate of approximately 30% over a three year period[156] and a five year predicted rate of approximately 47%.[157]
  11. The respondent's treatment needs were identified as criminal attitudes, criminal peers, emotional control, weapon use, lack of insight into his use of violence, substance use, instability of relationships, cognitive distortions and the presence of a clear violence cycle.[158] He has taken limited steps to address those areas, although he has more recently engaged in targeted treatment programs.[159]

Spousal Assault Risk Assessment Guide - Version 3 (SARA-V3)

  1. The SARA-V3 is a set of structured professional judgment guidelines for the assessment and management of risk for intimate partner violence. It considers a number of items, divided into three domains, namely Nature of Intimate Partner Violence, Perpetrator Risk Factors, and Victim Vulnerability.[160]
  2. In the domain of Nature of Intimate Partner Violence, the factors of intimidation, threats, physical harm, severe intimate partner violence, chronic intimate partner violence, escalating intimate partner violence and intimate partner related supervision violations were assessed has having been present in the past, but not recently present in the last 12 months.[161]
  3. As to Perpetrator Risk Factors, the respondent was assessed as having had serious problems with or conflict in intimate relationships, establishing or maintaining positive, prosocial and non‑intimate relationships, economic self-sufficiency stemming from difficulties in establishing or maintaining stable employment, trauma, general antisocial conduct, personality disorder, substance use violent or suicidal ideation and distorted thinking about intimate partner violence. Some factors were not considered to be recently present, but were relevant to future management.[162]
  4. Given the respondent is not presently in an intimate relationship, the victim vulnerability factors could not be properly considered.[163]

Risk Assessment

  1. Dr Riordan was of the view that the respondent posed a risk in four different most likely scenarios:
(a) the respondent would behave in a threatening, intimidating and violent manner towards an individual known to him who he perceives to have slighted him or his family, behaved inappropriately towards him or insulted or challenged him. Intoxication may increase the impulsivity of the response, and the presence of a weapon may facilitate its use, although it is more likely he would use his fists;[164]
(b) the respondent would assault his intimate partner, precipitated by feelings of jealousy, mistrust and paranoia about the behaviour of his partner. Again, intoxication would be relevant, but not necessary, and the level of violence used would be escalated by the presence of a weapon. The presence of others is unlikely to deter the respondent;[165]
(c) the respondent would engage in an act of violence directed towards an associate involved in the drugs/crime subculture, likely preceded by threats and acts of intimidation. The presence and use of a weapon are highly likely in this scenario;[166]
(d) the respondent would engage in acts of violence against his mother or other family members, likely precipitated by feelings of injustice, unfair treatment or the like. Again, intoxicants would be relevant but not necessary. The presence of a weapon would escalate the level of violence used, and the presence of others is unlikely to deter the respondent.[167]
  1. In each case, the victim would likely suffer significant psychological and physical harm, with the presence and use of a weapon during the commission of an offence significantly increasing the level of violence and resulting in serious and/or life-threatening violence.[168]
  2. While the respondent does not presently reside with criminal associates or an intimate partner, the risk of scenarios (a) and (b) are less imminent, but would increase if his living arrangements were to alter.[169]
  3. In Dr Riordan's opinion, if the respondent were not subject to a restriction order, he would present an above average risk of committing a serious offence within the meaning of the HRSO Act.[170] Effective management of that risk requires a multidisciplinary approach which ensures adequate monitoring, treatment, supervision and safety planning. The respondent has expressed a willingness to comply with any order imposed[171] and Dr Riordan indicated that his behaviour on the order so far suggests that he will do so.[172]

Recommendations

  1. Dr Riordan is of the view that conditions which enable the monitoring of the respondent's living arrangements, substance use and intimate relationships is required. The respondent would benefit from ongoing intervention through the Forensic Psychological Intervention team or similar, as well as criminogenic treatment targeting his identified dynamic risk factors. He should continue with his individual substance use counselling, and be supported to gain employment and/or training for employment, as well as prosocial recreational activities.[173]
  2. In order for the respondent to establish, consolidate and maintain the skills required, Dr Riordan recommended he be placed on a supervision order for a total of at least two years, inclusive of the time already spent on the interim supervision order.[174]
Any other medical, psychiatric, psychological or other assessment relating to the offender

Treatment Options Report - Luke Carmichael, HRSO Planning Manager dated 19 September 2024

  1. Mr Carmichael's report was prepared to provide an overview of the respondent's intervention history and identify treatment options delivered and available through the Department of Justice.
  2. Mr Carmichael considered the reports of Professor Pyszora and Dr Riordan. It was determined that, if possible, engagement with the Forensic Psychological Intervention Team (FPIT) would be the preferred intervention method. However, if that were not available a local, non‑departmental drug and alcohol of family and domestic violence service provider would be a suitable alternative.[175]
  3. Regrettably, no departmental group based criminogenic treatment programs are available in the region where the respondent is based. Further, while there are no FPIT clinicians in that area, participation by telehealth might be possible, although there are logistical and access barriers to overcome.[176]

Community Supervision Assessment Report of Nicola Shaw dated 29 September 2024

  1. Nicola Shaw is the SCCO presently responsible for the respondent, and has managed the respondent in the community since his release on the interim supervision order. The respondent resides about 45 minutes' drive each way from the relevant Community Corrections Centre. As the respondent does not possess a driver's licence and public transport is limited, staff have been visiting the respondent at least once, and sometime twice a week to facilitate his testing requirements and to engage in the necessary supervision and management. According to Ms Shaw, the transport of the respondent has proven to be 'significantly difficult at times' due to resourcing issues.[177]
  2. On his release, the respondent was supported to purchase a mobile telephone to enable monitoring and supervision of him, and he was also assisted with activating bank accounts and to access Centrelink.[178]
  3. According to Ms Shaw, the respondent has demonstrated satisfactory compliance with his reporting requirements to date, and has presented well. His supervision sessions have largely focussed on goal setting, including getting his driver's licence and obtaining employment, family dynamics and relationships. The respondent wishes to develop relationships with his children, which is reported to have been a significant motivating factor in compliance with the conditions of the interim supervision order. He has also recently commenced the Centrecare's Men Choosing Respect Program.[179]
  4. The respondent has not yet been able to access any intervention via the FPIT. He has been attending substance misuse counselling, and Ms Shaw has been advised that the respondent's engagement is positive to date. Family violence programs are difficult for the respondent to access given his place of residence and the lack of transport options.[180]
  5. The respondent reports every Monday to the local police station. Ms Shaw reports that the local police have taken a proactive approach to community policing, and have been highly supportive of the respondent's transition into the community, assisting him with identification and registration at the local 24 hour gym, which is considered to be a prosocial activity for the respondent. They have also assisted him to explore potential employment opportunities.[181]
  6. The respondent has apparently recognised the efforts of both Adult Community Corrections and the local police officers and is grateful for their support.[182] He has indicated he has found the supervision under the interim supervision order useful, and has shown significant insight into the correlation between his offending, substance misuse and pro‑criminal associations.[183] At this stage, there have been no concerns regarding the respondent's accommodation arrangements, or his behaviour at home, where he resides with his mother and his sister. The respondent is awaiting confirmation of his inclusion on the waitlist for community housing in Perth, and at this stage intends to remain at his current residence pending alternative accommodation becoming available.[184]

Previous Reports

Psychological Report of Ms Jane Sampson dated 7 June 2021

  1. In her report prepared for the sentencing of the respondent for the index offences, Ms Sampson reported that the respondent was polite and cooperative, but his mood was flat and indicative of chronic depression. He did not develop rapport with Ms Sampson, but participated in the testing process without complaint or assistance.[185]
  2. The Basic Personality Inventory was administered to the respondent. Caution was used in interpretation of the respondent's scores due to the lack of norms available for people of his cultural background. He had extremely high scores on more than 80% of the scales, which presented challenges in validating the results.[186]
  3. The Depression, Anxiety and Stress Scale was administered to screen for current mental health symptoms. Accounting for the lack of norms for people from Papua New Guinea, the respondent's scores suggested extremely severe symptoms of anxiety, severe symptoms of depression and moderate symptoms of stress. Ms Sampson left open the possibility that the respondent had overemphasised his symptoms in the testing.[187]
  4. Ms Sampson considered the drivers of the respondent's offending to be intoxication with substances and resultant disinhibition, paranoid and threat‑sensitive thinking styles, substance use as a negative coping strategy, lifestyle instability, aggressive responses to perceived threat, a lack of prosocial purpose in his life, resentment towards others at his accommodation, a lack of prosocial support, impulsivity, poor judgement and poor consequential thinking.[188]
  5. Ms Sampson was of the opinion that there was a high likelihood of the respondent offending in the future in a similar way, unless he addresses his substance use and establishes greater stability and purpose in his life.[189]

Pre-sentence Report dated 17 June 2021

  1. The author of the pre-sentence report noted that the respondent expressed regret for his offending, but noted that it appeared to be more for himself and the consequences he was facing, and that the respondent engaged in victim‑blaming and had limited understanding of the likely victim impact of his conduct.[190]
Propensity to commit serious offences in the future and whether or not there is any pattern of offending behaviour
  1. I am required to consider whether the respondent has a propensity, being an inclination or tendency,[191] to commit serious offences in the future. In this context, 'serious offences' are likely to be serious assaults causing significant personal injury to the victim, who could be a family member, intimate partner, criminal associate, or even a stranger with whom the respondent finds himself in conflict due to a perceived slight of some kind.
  2. As the experts have observed, the respondent's offending is part of a cycle in which the respondent's relationships and lifestyle become unstable and conflictual, he engages in substance abuse and with antisocial peers, and then a criminal lifestyle to support himself, and he then commits acts of violence, either against a person whom he perceives as a threat in the context of his criminal lifestyle, or against an intimate partner or family member.
  3. The respondent has only committed one 'serious offence' in the past, being the index offence. However, he has also committed numerous violent offences, including with weapons, against victims of various levels of vulnerability. The potential for serious injury arising from those offences was high, and the absence of serious injury could properly be seen as the result of chance, rather than design. Further, and in any event, the index offence constituted an escalation in the use of violence by the respondent which, in my view, demonstrates a propensity on his part to commit serious offences in the future.
Any efforts by the respondent to address the cause or causes of the offending behaviour, including whether the respondent has participated in any rehabilitation program, and whether the participation in any rehabilitation program has had a positive effect on the offender

Programs

  1. The respondent was first deemed suitable for substance use intervention when he was 14, but only attended one session before disengaging. In 2008, he failed to complete a family violence program which was a condition of his parole. He has at times been unable to complete programs due to the short duration of his term of imprisonment, but has also refused to participate at times.[192] He is presently in the early stages of engagement in a community based substance use program facilitated by Centrecare.[193]

Violence Prevention Program

  1. The respondent undertook the Violence Prevention Program between December 2022 and July 2023. The program is aimed at assisting participants to gain an awareness of their offending, recognise factors which contributed to their offending, challenge their thinking and develop a viable and manageable relapse prevention plan.[194]
  2. It was suggested that the respondent's exposure to domestic violence during his formative years normalised violence for him as a means of conflict resolution and problem-solving, as well as potentially placing expectations on himself to intervene in situations he perceived as unjust, while justifying violence which he deemed 'righteous'. Likewise, exposure to his parents' substance use may have normalised the use of substances. It is likely that his negative peer associations from age 15 further normalised offending, violence and substance use.[195]
  3. The program facilitators considered that the respondent's entrenched beliefs pertaining to the normalisation of violence and offending would likely support his continued association with criminal peers and maintain his risk of engaging in offending in the future. Further, if his distortions relating to the perception of threat and necessity of engaging in violence for protection were not challenged, his habitual possession of weapons would continue and increase his risk of engaging in violence.[196]
  4. The respondent presented with minimal protective factors.[197]
  5. The respondent was reported to be an engaged participant who would often lead group discussions and voluntarily contribute. He demonstrated a conceptual understanding of all content within the program. While he appeared motivated, he was often late and failed to change his behaviour when challenged. He was open to discussing his offending, although minimised it and its victim impact. However, he was able to challenge his minimisations. He sometimes displayed inappropriate behaviour but attributed it to feeling uncomfortable.[198]
  6. Risk factors for the respondent were assessed to be violent lifestyle, violence cycle, insight into violence, weapon use, release to high risk situation, substance use, criminal peers, criminal attitudes, cognitive distortions, work ethic, emotional control, impulsivity, mental health, interpersonal aggression, stability of relationships, violence in incarceration, compliance with supervision and community support.[199]
  7. On commencement, the respondent was assessed to be in the contemplative stage of change for violent lifestyle, violence cycle and insight into violence. The facilitators noted a shift in behaviour was evidenced by a significant reduction in prison charges in recent years, indicating a reduced reliance on violence for conflict resolution and reputation.[200] While the respondent appears to have gained some awareness and insight into his violence cycle, limited skills were demonstrated which may mitigate his risk.[201]
  8. The respondent was assessed as being in pre‑contemplation regarding weapon use and contemplation for release to high‑risk situation. While the respondent developed increased insight into weapon use and possession during the program, he explored minimal mitigative strategies to his risk in this area nor future management plans for times when he perceives threat. Similarly, his plans for release were limited, particularly in relation to employment.[202]
  9. It was noted that during his sentence for the index offences, the respondent had reported abstinence from substances apart from one lapse in 2021, indicating sustained behaviour change. He expressed plans for relapse prevention in the community, and he was considered to have shifted to the early stages of preparation regarding substance use. Risk will remain in the area of criminal peers if the respondent cannot develop and maintain prosocial peer relationships and boundary setting strategies.[203]
  10. In the course of the program, the respondent made gains relating to criminal attitudes and cognitive distortions but remained in contemplation regarding his work ethic, demonstrating some insight but few formal plans.[204]
  11. The respondent made minimal gains in the area of impulsivity, showing maintained deficits in impulse management. He also presented with minimal insight into the correlation between his mental health and his offending. He did, however, make some progress in relation to emotional control, shifting to early stages of preparation.[205]
  12. As to the factors of interpersonal aggression and stability of relationships, the respondent demonstrated some ability to refrain from interpersonal aggression, and strategies to prevent engaging in an aggressive manner, but continued to display deficits in awareness at times.[206] Further, he was assessed as having demonstrated behavioural change in relation to violence during incarceration, although he made fewer gains in relation to compliance with supervision.[207]
  13. The respondent continues to require treatment in the area of community support. While he developed some insight and conceptual understanding, he had minimal strategies to actually seek support or build a prosocial network in the community.[208]
  14. Overall, the respondent was assessed as an engaged participant who was open to addressing his offending history, although he still displayed a level of entitlement by his sustained late attendance. He demonstrated a sound understanding of all content and attempted to apply concepts to his own experiences and situations. He was assessed to be predominantly in contemplation, with some early preparation regarding his risk factors, but there were concerns as to his capacity to mitigate risk, and a supportive release was recommended.[209]

Pathways Program

  1. The respondent completed the 50 session Pathways Program in January 2024. The program is aimed at assisting participants to understand the stages of change in relation to drug use and offending behaviour, develop a relapse and recidivism prevention plan and acquire skills to maintain a drug and crime-free lifestyle.[210]
  2. The respondent described early exposure to familial alcohol abuse which normalised alcohol consumption as a pleasure pursuit, which predisposed him to develop beliefs supportive of alcohol as a mood enhancer and later a maladaptive coping strategy. His exposure in his mid-teens to criminal activities and illicit substance use appeared to have normalised engagement in substance use, which he again employed as a coping strategy to manage adverse emotional experiences and boredom.[211]
  3. The respondent's treatment needs which required inclusion in the program were substance use, lack of emotional management, impulsivity, family and marital, poor problem solving, negative peer influence, pro‑criminal attitude, antisocial patterns, education and employment.[212]
  4. The respondent was initially late on several occasions, but attitude shifts were observed after feedback was given. He was a reserved participant, but did demonstrate a growth in confidence and appeared to apply the concepts discussed to himself, helping to increase his insight.[213]
  5. During the program, the respondent demonstrated some awareness into his substance use and emotional regulation deficits. He reported motivation to abstain from substance use and recognised the importance of a structured release in achieving this. However, there was limited evidence of his ability to implement strategies to improve his distress tolerance and emotional vulnerability, and of his ability to seek help when experiencing adversity and during times of poor coping and overall presented as in the contemplation stage regarding his substance use.[214]
  6. The respondent continued to display interpersonal deficits pertaining to family and intimate relationships and poor problem solving. While he developed some insights, he experienced difficulty in recognising problematic communication and appeared to overestimate his abilities in managing distress and conflict and had limited strategies to deal with this. It was suggested he would benefit from ongoing skill development in these areas.[215]
  7. While the respondent recognised the need to maintain distance from antisocial peers, he did not identify realistic approaches to achieving this, particularly in the context of familial associations.[216] Further, while he demonstrated motivation to increase his engagement in prosocial activity and employment, his level of planning to ascertain these appeared vague.[217]
  8. The risk management plan developed by the respondent during the program had a strong focus on external supports, rather than internal coping strategies, and some of those were unlikely to be suitably supportive. The facilitators recommended counselling to address his emotional regulation and increase his insight into his emotional experiences, substance abuse counselling and a supported release with accountability.[218]

Effect on the respondent

  1. The respondent's participation in these programs is a positive first step towards treatment for his many and chronic outstanding criminogenic needs. It is apparent that he has made treatment gains and, according to Ms Shaw, has good insight into the connections between his substance use and offending behaviour. However, it is also clear that the respondent is pre-contemplative in respect of other aspects of his treatment needs, and requires particular intervention in relation to intimate partner violence, emotional management, his cognitive distortions, criminal attitudes, criminal peers and his violence cycle.
The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence and the need to protect members of the community from that risk
  1. Professor Pyszora made the assessment that, if the respondent were not subject to a restriction order, the risk that respondent would commit a serious offence was high. In Dr Riordan's opinion, the risk was above average.
  2. I accept those opinions. At this stage in his transition to the community, the respondent requires stability, supervision, monitoring, support and treatment. Without those external supports, in the short to medium term the respondent is unlikely to be able to adequately deal with adverse events or setbacks which might arise, and the risk of returning to his violence cycle is high.
  3. It is undoubtedly important to protect members of the community from that risk, given its potential consequences.
Is the respondent a high risk serious offender? Is there an unacceptable risk that the respondent will commit a serious offence?
  1. The principal question in this matter is whether there is an 'unacceptable risk' of the respondent committing a serious offence.[219] In determining this question, I am required to have regard to the likelihood of the respondent committing a serious offence, the nature of the serious offence likely to be committed, the potential consequences of such offending, and the consequences on the respondent of making a finding that the risk is unacceptable.
  2. As I have outlined, the nature of the offence likely to be committed and the extent of the potential harm which would result from a serious offence of the kind which the respondent would likely commit are both significant. The respondent's poor emotional regulation, and the likely involvement of substance use and the use of a weapon enhance the risk to the community, particularly intimate partners who are likely to be especially vulnerable.
  3. Having regard to the matters set out in s 7(3) of the HRSO Act, and particularly the opinions of Professor Pyszora and Dr Riordan, I am satisfied that, at this early stage of the respondent's transition into the community, the risk of him committing a serious offence is unacceptable.
Is it necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence?
  1. In my view, the evidence adduced in this matter is acceptable and cogent, and compels the conclusion that it is necessary to make a restriction order to ensure adequate community protection against the risk I have outlined. There is no other reasonable way of ensuring that community protection at this time.
  2. I am satisfied of that necessity to a high degree of probability.
Continuing detention order or supervision order?
  1. In Director of Public Prosecutions (WA) v DAL [No 2], Beech J (as he then was) observed:
In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the Act applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.[220]
  1. The experts have both expressed the opinion that the risk posed by the respondent can be properly managed in the community. The applicant concedes that to be so.
  2. I accept that to be the case. The respondent's performance on the interim supervision order to date demonstrates that his risk can be adequately managed by the conditions of the supervision order which are proposed. Further, I am satisfied that the conditions are sufficient to enable authorities to have due warning of any factors which are likely to increase his risk so that the community can be adequately protected.
  3. While the resource implications are plainly considerable for the relevant regional Adult Community Corrections office, it is a matter for the Department of Justice to ensure appropriate resourcing for the management of high risk serious offenders. I am not satisfied that the respondent cannot be properly managed in the regional location where accommodation and family support is available to him.
  4. If the respondent is not supervised closely, and if he is not provided with the level of intensive support which is provided under a restriction order, the prospects of the respondent committing a serious offence are high. The adequate protection of the community requires that he be carefully monitored and supervised to reduce that risk, and also provided with intensive support to enable him to develop the skills, community networks and attitudes which will reduce his risk further in the future.
Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions?
  1. The respondent did not give or adduce evidence at the hearing. However, there is evidence on the applicant's case which enables me to determine this issue, and the applicant concedes the respondent's burden has been met.
  2. The respondent has successfully complied with the stringent conditions of the interim supervision order imposed on him in July of this year. While the significant efforts of the staff of the local Adult Community Corrections Centre, and the local police, are to be commended, the respondent has done all that has been asked of him, and has properly engaged with those authorities.
  3. I have also considered the fact that, during his most recent custodial sentence, the respondent's antisocial and violent behaviour had moderated by comparison to earlier periods in custody, and that he had, for the first time, engaged in rehabilitation programs and made positive treatment gains, suggesting a willingness and desire for ongoing change on his part, even if his motivation for change is in its early stages.
  4. Both Professor Pyszora and Dr Riordan expressed the opinion that the respondent was likely to comply with a supervision order. Further, I accept that the respondent is motivated to continue to comply with his order by the prospect of developing relationships with his children.
  5. On the basis of these factors, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions.
Conditions and duration of order
  1. Having regard to the matters which have been put before me, I am of the view that the order should be for a period of 21 months. The conditions with which the respondent will be required to comply are set out in the schedule to these reasons.
  2. It is necessary to ensure that the number and ambit of the conditions imposed are kept to the minimum necessary to manage the respondent's risk and protect the community. The higher the number of conditions, the more difficult it is for an offender to remember them and comply with them. They should also be expressed in plain language which, again, will ensure that they are able to be properly understood.
Conclusion
  1. I am satisfied, to a high degree of probability, by cogent and acceptable evidence, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. Accordingly, I am satisfied that the respondent is a high risk serious offender within the meaning of the HRSO Act.
  2. I am satisfied that a supervision order is sufficient to adequately protect the community against the risk identified, and that a detention order is not necessary to do so.
  3. I am also satisfied that the respondent has established, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
  4. In my view, the appropriate term of the order is 21 months and the appropriate conditions are as set out in the schedule to these reasons.

SCHEDULE


IN THE SUPREME COURT OF WESTERN AUSTRALIA

SO 4 of 2024


IN THE MATTER of the High Risk Serious Offenders Act 2020

THE STATE OF WESTERN AUSTRALIA Applicant



-and-


BRIAN MARCEL WALKER Respondent

SUPERVISION ORDER MADE BY THE HON JUSTICE FORRESTER
ON 25 NOVEMBER 2024



Pursuant to section 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 section 7(1) of the HRSO Act, makes a supervision order in relation to the Respondent, for a period of 21 months from 28 November 2024, on the following conditions:

You, BRIAN MARCEL WALKER, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

  1. Report to a Community Corrections Officer (CCO) at the Kalgoorlie Adult Community Corrections Centre, 337 Hannan Street, Kalgoorlie, Western Australia, 6430, within 48 hours of being issued this order and advise the officer of your current name and address.

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

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

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

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

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

  1. Be subject to electronic monitoring under section 31.


ADDITIONAL CONDITIONS

Residence

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, your CCO at times and at places as directed by your CCO.

  1. Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.


Attendance at programs or treatment

  1. Consult, engage, attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO.

  1. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice.


Reporting to WA Police

  1. Report to the Officer-in-Charge of the Kambalda Police Station,15 Irish Mulga Drive, Kambalda West, Western Australia 6442, or their delegate at a nominated Police station within 48 hours of commencement of this order, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in-Charge of the Kambalda Police or his/her delegate.

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

  1. Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the HRSO Act.


Disclosure/Exchange of Information

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

  1. Allow a CCO, WA Police, or other person or agencies approved by your CCO, to interview any associates or potential associates, and, where appropriate, to disclose to them confidential information including your offence history.


Restrictions on contact with Victims

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

  1. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must look away from such victims at all times.

  1. Report to the CCO and WA Police any direct or indirect contact with the victim of your serious offending within 48 hours of such contact occurring.


Criminal conduct

  1. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which includes either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments.

  1. Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997 (WA).

  1. Not possess, consume or use any prohibited drugs, plants, other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, and/or any prescription medication, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the provider.


Curfew

  1. Be subject to a curfew, pursuant to section 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 this 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 Police Officer or their agent monitoring your compliance with the curfew.


Prevention of high-risk situations

Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article.

  1. Report at your next contact with your CCO, the formation of any ongoing social association (more than 2 contacts by any means), friendship, or domestic, romantic, sexual or otherwise intimate relationship by you with any person.

  1. When and as directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (more than 2 contact by any means), or domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

  1. Advise your CCO 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. Enable device locking or password access of your computer, telecommunication and/or electronic devices and not allow access or provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 29, or any online accounts, to any person other than a CCO or Police Officer without approval in advance from a CCO.

  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.

  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 your CCO or WA Police.

  1. Not to possess, or consume, or purchase, or use alcohol without prior approval of your CCO.

  1. Attend for, and submit to, urinalysis or other testing for alcohol, prohibited drugs and/or prescription medications you may be using, as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.

  1. Provide a valid sample pursuant to condition 34.

  1. Not to remain in the presence of any person who you know, or ought to know, is affected by any prohibited drug or intoxicated by alcohol, unless the identity of such person or social situation is approved in advance by a CCO or their delegate.

  1. Not remain in any place where you know, or ought to know, that 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, or exit that person from your residence.

  1. Not go or remain at any licensed premises, except theatres, cafes, restaurants, or sporting clubs, unless permitted or required to do so for the following reasons:

  1. for the purpose of averting or minimising a serious risk of death or injury to yourself or another person

  1. for a purpose, and for a duration, approved in advance by your CCO;

  1. on the order of a CCO or Police Officer.

  1. You must not assault, threaten, insult or use abusive language to a member of the departmental staff or agent providing a service on behalf of the Department of Justice.

THE HON JUSTICE FORRESTER




I have received a copy of this Order. I have had it explained to me and understand the effect of this Order and what may happen if I contravene it.



Signed by the Respondent
BRIAN MARCEL WALKER

In the presence of:

Name and address:



Date:

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

SI
Associate to the Honourable Justice Forrester

25 NOVEMBER 2024

[1] The State of Western Australia v Walker [2024] WASC 222.
[2] Book of Materials for the Restriction Order Hearing Volume 1 filed 29 July 2024, 145 (Book of Materials, Vol 1).
[3] HRSO Act s 26.
[4] HRSO Act s 27.
[5] Book of Materials, Vol 1, 186 - 196; The respondent was eligible for parole, but parole was refused: Book of Materials, Vol 1, 30 - 31.
[6] HRSO Act s 5 and sch 1 item 14.
[7] HRSO Act s 3, s 5.
[8] Book of Materials, Vol 1, 172.
[9] Book of Materials, Vol 1, 173.
[10] Book of Materials, Vol 1, 173.
[11] Book of Materials, Vol 1, 173 - 174.
[12] Book of Materials, Vol 1, 174.
[13] HRSO Act s 8.
[14] HRSO s 48.

[15] HRSO Act s 3.
[16] HRSO Act s 3, s 26(1).
[17] HRSO Act s 3, s 27(1).
[18] HRSO Act s 5.
[19] HRSO Act s 7(2).
[20] The State of Western Australia v ZSJ [2020] WASC 330 [31].
[21] Garlett v The State of Western Australia [2022] HCA 30 [55] - [56].
[22] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28] - [34].
[23] GTR [34].
[24] Garlett v The State of Western Australia [2022] HCA 30 [73].
[25] Director of Public Prosecutions v Williams [2007] WASCA 206 [63].
[26] The State of Western Australia v Garlett  [2021] WASC 387. 
[27] The Director of Public Prosecutions v Decke [2009] WASC 312 [14].
[28] The State of Western Australia v Garlett  [2021] WASC 387  [143].
[29] HRSO Act s 29.
[30] HRSO Act s 30(2)(f).
[31] The State of Western Australia v Hart [2019] WASC 4 [52].
[32] Book of Materials, Vol 1, 176 [2].
[33] Book of Materials, Vol 1, 176 [2].
[34] Book of Materials for the Restriction Order Hearing Volume 2 filed 1 October 2024, 315 [54] (Book of Materials, Vol 2).
[35] Book of Materials, Vol 2, 315 [55].
[36] Book of Materials, Vol 1, 270.
[37] Book of Materials, Vol 2, 357 [15].
[38] Book of Materials, Vol 1, 176 - 177 [2] ‑ [3].
[39] Book of Materials, Vol 1, 176 [3]; Book of Materials, Vol 2, 360 [23].
[40] Book of Materials, Vol 2, 318 [75] ‑ [76].
[41] Book of Materials, Vol 2, 318 [77], [82] ‑ [83].
[42] Book of Materials, Vol 2, 318 [77].
[43] Book of Materials, Vol 1, 177 [6]; Book of Materials, Vol 2, 321 [90] ‑ [91].
[44] Book of Materials, Vol 2, 319 [78] ‑ [79], 360 - 361 [26].
[45] Book of Materials, Vol 2, 360 - 361 [26].
[46] Book of Materials, Vol 1, 177 [4].
[47] Book of Materials, Vol 2, 316 [59] ‑ [61], 359 [22].
[48] Book of Materials, Vol 1, 177 [4].
[49] Book of Materials, Vol 1, 177 [4].
[50] Book of Materials, Vol 1, 177 [5].
[51] Book of Materials, Vol 1, 178 [8].
[52] Book of Materials, Vol 1, 178 [8].
[53] Book of Materials, Vol 2, 361 - 362 [29] ‑ [30].
[54] Book of Materials, Vol 1, 178 [8].
[55] Book of Materials, Vol 2, 317 [67], 362 [30].
[56] Book of Materials, Vol 2, 321 - 322 [92] ‑ [103].
[57] Book of Materials, Vol 1, 178 [9].
[58] Book of Materials, Vol 2, 364 - 365 [39].
[59] Book of Materials, Vol 2, 322 - 323 [104] ‑ [107].
[60] Book of Materials, Vol 1, 1 - 18.
[61] Book of Materials, Vol 1, 19 - 22.
[62] Book of Materials, Vol 1, 197 - 199.
[63] Book of Materials, Vol 2, 316 [62].
[64] Book of Materials, Vol 1, 203 - 205.
[65] Book of Materials, Vol 1, 207 - 213.
[66] Book of Materials, Vol 1, 205 - 218.
[67] Book of Materials, Vol 1, 221 - 223.
[68] Book of Materials, Vol 1, 225 - 227.
[69] Book of Materials, Vol 1, 233 - 235.
[70] Book of Materials, Vol 1, 229 - 232.
[71] Book of Materials, Vol 1, 238 - 240.
[72] Book of Materials, Vol 1, 241 - 244, 258 - 260.
[73] Book of Materials, Vol 1, 43.
[74] Book of Materials, Vol 1, 49.
[75] Book of Materials, Vol 1, 53, 60.
[76] Book of Materials, Vol 1, 59, 61.
[77] Book of Materials, Vol 1, 144.
[78] Book of Materials, Vol 1, 80.
[79] Book of Materials, Vol 1, 183.
[80] Book of Materials, Vol 1, 145.
[81] Book of Materials, Vol 2, 379 - 380 [104].
[82] Book of Materials, Vol 2, 307.
[83] Book of Materials, Vol 2, 334 [172] ‑ [173].
[84] Book of Materials, Vol 2, 319 - 320 [83] ‑ [85].
[85] Book of Materials, Vol 2, 320 - 321 [90] ‑ [91].
[86] Book of Materials, Vol 2, 332 [161] ‑ [162].
[87] Book of Materials, Vol 2, 333 [166] ‑ [167].
[88] Book of Materials, Vol 2, 333 [168].
[89] ts 57.
[90] Book of Materials, Vol 2, 333 [169].
[91] Book of Materials, Vol 2, 333 [170].
[92] ts 58.
[93] Book of Materials, Vol 2, 334 [171].
[94] Book of Materials, Vol 2, 334 [174].
[95] Book of Materials, Vol 2, 334 - 335 [175] ‑ [176].
[96] Book of Materials, Vol 2, 335 [178].
[97] Book of Materials, Vol 2, 335 - 336 [179] ‑ [182].
[98] Book of Materials, Vol 2, 336 [183].
[99] ts 58 - 59.
[100] Book of Materials, Vol 2, 336 - 337 [184] ‑ [189].
[101] ts 65, 76.
[102] Book of Materials, Vol 2, 337 - 338 [191] ‑ [193].
[103] Book of Materials, Vol 2, 338 - 339 [194] ‑ [196].
[104] Book of Materials, Vol 2, 338 - 339 [196] ‑ [197].
[105] Book of Materials, Vol 2, 339 - 342 [198] ‑ [214].
[106] Book of Materials, Vol 2, 342 ‑ 344 [215] ‑ [226].
[107] Book of Materials, Vol 2, 344 [227].
[108] Book of Materials, Vol 2, 344 [228].
[109] Book of Materials, Vol 2, 344 - 345 [229] ‑ [236].
[110] Book of Materials, Vol 2, 345 - 346 [237] ‑ [247].
[111] Book of Materials, Vol 2, 346 - 347 [248] ‑ [249].
[112] Book of Materials, Vol 2, 347 - 348 [252] ‑ [256].
[113] Book of Materials, Vol 2, 348 [257] ‑ [260].
[114] HRSO Act s 5.
[115] Book of Materials, Vol 2, 348 [261] ‑ [262].
[116] ts 58.
[117] Book of Materials, Vol 2, 349 [263] ‑ [268].
[118] ts 63 - 64.
[119] Book of Materials, Vol 2, 349 [269].
[120] Book of Materials, Vol 2, 355 [9].
[121] Book of Materials, Vol 2, 356 [11] ‑ [12].
[122] Book of Materials, Vol 2, 358 [17].
[123] Book of Materials, Vol 2, 358 - 359 [19].
[124] Book of Materials, Vol 2, 359 [20].
[125] Book of Materials, Vol 2, 358 [17].
[126] Book of Materials, Vol 2, 358 [18].
[127] Book of Materials, Vol 2, 369 [55].
[128] Book of Materials, Vol 2, 369 [57].
[129] Book of Materials, Vol 2, 377 - 378 [97] ‑ [99].
[130] Book of Materials, Vol 2, 354 - 355 [7].
[131] Book of Materials, Vol 2, 365 [42].
[132] Book of Materials, Vol 2, 366 [44].
[133] Book of Materials, Vol 2, 380 [105].
[134] Book of Materials, Vol 2, 380 - 381 [105].
[135] Book of Materials, Vol 2, 380 - 381 [106].
[136] Book of Materials, Vol 2, 381 [108].
[137] Book of Materials, Vol 2, 381 - 382 [109].
[138] Book of Materials, Vol 2, 382 - 383 [110] ‑ [115].
[139] Book of Materials, Vol 2, 365 - 366 [43].
[140] Book of Materials, Vol 2, 383 [116].
[141] Book of Materials, Vol 2, 384 [118].
[142] Book of Materials, Vol 2, 384 - 385 [121].
[143] Book of Materials, Vol 2, 384 [118] ‑ [119].
[144] Book of Materials, Vol 2, 385 - 386 [122] ‑ [129].
[145] Book of Materials, Vol 2, 386 - 387 [131], 388 [138].
[146] Book of Materials, Vol 2, 389 [141].
[147] Book of Materials, Vol 2, 387 [133].
[148] Book of Materials, Vol 2, 389 - 390 [142].
[149] Book of Materials, Vol 2, 392 [150].
[150] Book of Materials, Vol 2, 389 [139].
[151] Book of Materials, Vol 2, 391 [149].
[152] Book of Materials, Vol 2, 388 [136] ‑ [137].
[153] Book of Materials, Vol 2, 390 - 391 [146].
[154] Book of Materials, Vol 2, 387 - 388 [134] ‑ [135].
[155] Book of Materials, Vol 2, 392 - 393 [154] ‑ [156].
[156] with a 95% confidence interval between 25.4% and 36.4%.
[157] with a 95% confidence interval between 41.5 and 53.4%; Book of Materials, Vol 2, 393 [157].
[158] Book of Materials, Vol 2, 393 [158].
[159] Book of Materials, Vol 2, 393 - 394 [159] ‑ [160].
[160] Book of Materials, Vol 2, 394 [161] ‑ [162].
[161] Book of Materials, Vol 2, 395 - 396 [163] ‑ [170].
[162] Book of Materials, Vol 2, 396 - 398 [171] ‑ [180].
[163] Book of Materials, Vol 2, 398 [181].
[164] Book of Materials, Vol 2, 398 - 399 [183].
[165] Book of Materials, Vol 2, 399 [184].
[166] Book of Materials, Vol 2, 399 [185].
[167] Book of Materials, Vol 2, 399 [186].
[168] Book of Materials, Vol 2, 399 [187].
[169] Book of Materials, Vol 2, 399 [188].
[170] Book of Materials, Vol 2, 401 [195].
[171] Book of Materials, Vol 2, 401 [196].
[172] ts 85.
[173] Book of Materials, Vol 2, 401 - 402 [197] ‑ [204]
[174] Book of Materials, Vol 2, 403 [205].
[175] Book of Materials, Vol 2, 303 ‑ 304.
[176] Book of Materials, Vol 2, 304.
[177] Book of Materials, Vol 2, 412 - 413.
[178] Book of Materials, Vol 2, 413.
[179] Book of Materials, Vol 2, 414.
[180] Book of Materials, Vol 2, 414 - 415.
[181] Book of Materials, Vol 2, 417.
[182] Book of Materials, Vol 2, 417.
[183] Book of Materials, Vol 2, 418.
[184] Book of Materials, Vol 2, 418 - 419.
[185] Book of Materials, Vol 1, 176 [1].
[186] Book of Materials, Vol 1, 178 [10].
[187] Book of Materials, Vol 1, 179 [10].
[188] Book of Materials, Vol 1, 179 - 180 [12].
[189] Book of Materials, Vol 1, 180 [14].
[190] Book of Materials, Vol 1, 182 ‑ 183.
[191] The State of Western Australia v Bellamy [2013] WASC 467 [70]; see also The State of Western Australia v McCabe [2016] WASC 226 [25] ‑ [26].
[192] Book of Materials, Vol 2, 374 - 375 [89].
[193] Book of Materials, Vol 2, 414.
[194] Book of Materials, Vol 1, 269.
[195] Book of Materials, Vol 1, 270.
[196] Book of Materials, Vol 1, 271.
[197] Book of Materials, Vol 1, 271.
[198] Book of Materials, Vol 1, 271 - 272.
[199] Book of Materials, Vol 1, 272.
[200] Book of Materials, Vol 1, 272.
[201] Book of Materials, Vol 1, 273.
[202] Book of Materials, Vol 1, 273.
[203] Book of Materials, Vol 1, 273 - 274.
[204] Book of Materials, Vol 1, 274.
[205] Book of Materials, Vol 1, 275.
[206] Book of Materials, Vol 1, 275 - 276.
[207] Book of Materials, Vol 1, 276.
[208] Book of Materials, Vol 1, 276.
[209] Book of Materials, Vol 1, 278 ‑ 279.
[210] Book of Materials, Vol 1, 281.
[211] Book of Materials, Vol 1, 282.
[212] Book of Materials, Vol 1, 284.
[213] Book of Materials, Vol 1, 283.
[214] Book of Materials, Vol 1, 284.
[215] Book of Materials, Vol 1, 285.
[216] Book of Materials, Vol 1, 285 ‑ 286.
[217] Book of Materials, Vol 1, 286.
[218] Book of Materials, Vol 1, 287 - 288.
[219] HRSO Act s 7(1).
[220] The Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (citations omitted).

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