DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- YATES [NO 5] [2018] WASC 160 (28 May 2018)

1. The contraventions alleged by the DPP were also the subject of criminal charges brought against Mr Yates alleging the commission of an offence contrary to s 40A of the Act by reason of his contravention of the requirements of the supervision order. Mr Yates pleaded guilty to those offences, and has admitted the material facts said to constitute those offences, which are as follows.
2. On 2 November 2017, police located Mr Yates in a park near the corner of Wellington and Pier Streets, Perth. He was in the company of others, including a male and three females of approximately his age. There were containers of alcoholic beverages near the group, and members of the group were observed by police to be drinking from them. Police ascertained that Mr Yates was subject to a supervision order and directed him to submit to a preliminary breath test. That test returned a positive result to alcohol. He was conveyed to Perth police station at 3.45 pm and provided a sample of breath for analysis which returned a positive blood alcohol content result of 0.135%.
3. Mr Yates' consumption of alcohol constituted a breach of condition 41 of the supervision order.
4. On 3 November 2017, following Mr Yates' apprehension at the park, the community corrections officer responsible for the supervision of Mr Yates issued him with a Written Lawful Instruction, in terms which directed Mr Yates that:

You are not permitted to attend the park at 324 Wellington Street, PERTH WA 6000.

A map depicting the area which Mr Yates was not to attend was incorporated within the instruction given to Mr Yates by the community corrections officer.

1. At 8.59 pm on 4 November 2017, the Central Monitoring Station operator monitoring information provided by the GPS monitor that Mr Yates was wearing received an alert indicating that Mr Yates was again at the park near the corner of Wellington and Pier Streets, Perth.
2. Police attended the park at around 9.45 pm on 4 November 2017 and arrested Mr Yates. By attending the area the subject of the Written Lawful Instruction issued on 3 November 2017, Mr Yates was in breach of condition 4 of the supervision order.
3. Police attending the park in Wellington Street on the evening of 4 November 2017 noticed that Mr Yates was in company with other people, including several males and a female of approximately his age. Once again police noticed containers of alcoholic beverages near the group, and members of the group were observed to be drinking from them. CCTV footage of the scene showed that Mr Yates was consuming alcohol, in the form of beer. Police directed Mr Yates to submit to a preliminary breath test which returned a positive blood alcohol content result of 0.199%. Mr Yates' consumption of alcohol was another breach of condition 41 of the supervision order.
4. Mr Yates had also been given a written instruction to remain in his residence between 7 pm and 7 am unless otherwise directed by a community corrections officer. As there was no direction permitting Mr Yates to leave his residence on the evening of 4 November 2017, his presence at the park in Wellington Street on that evening constituted a breach of conditions 4 and 33 of the supervision order.

The sentences imposed for the offences committed contrary to s 40A of the Act

1. Mr Yates was arrested following his contravention of the supervision order on 2 November 2017. He was released on 3 November 2017, but was again arrested on the evening of 4 November 2017, following his further contravention of the order. Mr Yates remained in custody until released pursuant to the supervision order on 7 May 2018. By that time, he had served more than six months in prison by reason of the contraventions to which I have referred. On 4 May 2018 I sentenced Mr Yates for the offences which he had committed pursuant to s 40A of the Act. In respect of the contravention committed on 2 November 2017 I sentenced Mr Yates to a term of imprisonment of 2 months. In respect of each of the contraventions committed by Mr Yates on 4 November 2017, I imposed terms of imprisonment of 4 months and 1 day to be served concurrently with each other but to be cumulative upon the penalty imposed in respect of the offence committed on 2 November 2017. The net result of those sentences was to produce a total effective sentence of 6 months and 1 day. As the sentences were backdated to commence on 2 November 2017, Mr Yates had completed the service of those sentences by reason of the time he had already spent in custody following his arrest last November.
2. I made a number of observations relating to the offences at the time I passed sentence. Although each of the contraventions is serious, given the past connection between Mr Yates' use of alcohol or other substances and his commission of serious sexual offences, I regard the offences committed on 4 November 2017 as more serious than those committed on 2 November 2017 for a number of reasons.
3. The first reason is that Mr Yates had been arrested on 2 November 2017 and expressly directed on 3 November 2017 that he was not to return to the park. Notwithstanding that express direction, Mr Yates returned to the park the following day. The second reason is that, despite having been arrested for consuming alcohol on 2 November 2017, he again consumed alcohol and became seriously intoxicated. The third reason is that not only was Mr Yates in breach of the express direction which he had been given the previous day, he was also in breach of the curfew requirement which had been imposed upon him. Finally, it is of considerable concern that on both occasions Mr Yates was drinking alcohol in the presence of females. The reasons for that concern derive from the circumstances of the offences previously committed by Mr Yates, and which are set out in the reasons I have previously delivered.

1. As I have noted, the facts relating to Mr Yates' contraventions of the supervision order were established by his admission. In addition to the facts established by this means, evidence was led at hearings on 9 February and 4 May 2018 relating to the extent of the risk which Mr Yates posed to the community. In the following portion of my reasons I will identify the salient features of that evidence.

1. Dr Peter Wynn Owen is a forensic psychiatrist. He interviewed Mr Yates while he was in custody in December 2017. He also reviewed a substantial body of materials provided to him, including psychiatric reports prepared by Dr Adam Brett to which I referred in my reasons relating to the proceedings conducted in 2016 and 2017, and Dr Wynn Owen's own earlier report to which I referred in my reasons relating to the proceedings conducted in 2015.
2. In his latest report, Dr Wynn Owen set out the circumstances of the contraventions and the information given to him by Mr Yates in relation to those matters.
3. In this report, Dr Wynn Owen expressed the view that Mr Yates suffers from the clinical disorders of alcohol abuse and intoxication, and solvent/inhalant abuse and intoxication, and from antisocial personality disorder.
4. Dr Wynn Owen also considered that Mr Yates lacks selfawareness and places himself in high risk situations - namely, meeting and spending time with homeless and transient people who are likely to exhibit antisocial behaviours, including being intoxicated in the company of females who are drinking alcohol. Dr Wynn Owen considered that these behaviours may have been prompted by loneliness and by the lack of companionship while under the restraints of the supervision order.
5. Dr Wynn Owen also reported that Mr Yates disclosed that he had had a number of consensual sexual partners during his release under the supervision order. I digress to observe that it is of some concern that Mr Yates does not appear to have disclosed these relationships to the community corrections officer to whom he was reporting, although that nondisclosure does not constitute a breach of the supervision order.
6. Dr Wynn Owen also stated that Mr Yates reported developing a friendship with a fellow resident in the block of units where he lived, and noted the positive impact of that relationship. Similarly, Dr Wynn Owen considered that the relationship which Mr Yates had formed with the manager of an indigenous art shop in the city of Perth was positive, and noted that Mr Yates had sold at least one of his paintings to that art dealer.
7. However, Mr Yates described to Dr Wynn Owen an ongoing sense of loneliness, particularly arising from the lack of contact with his own people. Although he mixes with Aboriginal people in metropolitan Perth who are not Noongars, he would feel more comfortable with people from his own country (the Warakurna area).
8. Dr Wynn Owen noted that previous assessments of the imminence of reoffending by Mr Yates had been based upon his commission of serious sexual offences within a few days of release from custody. In that context Dr Wynn Owen noted that Mr Yates has been released from custody on two occasions, each for several months, without committing any serious sexual offences, necessitating a revision of the estimates of the imminence of likely reoffending.
9. In his report, Dr Wynn Owen expressed the view that Mr Yates presented a high risk of serious sexual offending if released unsupervised - although, of course, there is no prospect that Mr Yates would be released unsupervised. Dr Wynn Owen noted that the level of risk associated with Mr Yates' release increases when he is intoxicated with alcohol or other substances, and that management of this would significantly reduce the risk of him committing a serious sexual offence in the future.
10. Dr Wynn Owen did not consider that ongoing counselling in a custodial environment would assist in reducing risk. If supervised release to the community were recommended, Dr Wynn Owen expressed the view that it should include the following features:
    • ongoing individual counselling to address risk, including awareness of risk situations, assistance with avoiding alcohol and other drugs, and day-to-day problem solving;
    • abstinence from alcohol and other drugs;
    • GPS monitoring, including exclusion from licensed premises, places selling alcohol and known public drinking areas; and
    • consideration to be given again to the utilisation of an indigenous mentor to assist in connecting Mr Yates with the community and to model pro-social behaviours.
11. Before giving oral evidence, Dr Wynn Owen observed a video recording of Mr Yates in the Wellington Street park on the evening of 4 November 2017, which was tendered in evidence. The recording shows Mr Yates drinking and obviously affected by alcohol. It also shows Mr Yates directing his attention to an Aboriginal woman who was part of the group, and who was also drinking.
12. In the course of his oral evidence, Dr Wynn Owen reiterated his observations with respect to Mr Yates' apparent failure to appreciate that drinking in company with itinerant people placed him in a high risk situation. He also noted that on each of the two occasions of contravention, Mr Yates was very intoxicated, which demonstrated an inability to resist the consumption of alcohol.[5] He was also concerned that in the video recording Mr Yates appeared to be focussing his attention upon the woman present.[6] In the course of his oral evidence, Dr Wynn Owen observed that Mr Yates had stated that he felt very lonely, and that he missed his country and the people of his country. Mr Yates told Dr Wynn Owen that he mitigated those feelings to some extent by regular telephone contact with members of his family.[7] In the course of his oral evidence, Dr Wynn Owen noted that although Mr Yates had breached the conditions of his supervision order on a number of occasions, and had consumed significant amounts of alcohol, he had not committed another serious sexual offence during either of the periods of his release into the community under supervision.[8] Dr Wynn Owen also noted that the arrangements relating to the supervision of Mr Yates had resulted in the detection of the contraventions of the supervision order, with the consequence that he was arrested and returned to custody.[9] In that context, Dr Wynn Owen observed:[10]

I think it is a positive, though, that we're seeing that Mr Yates has not reoffended. I mean, it is quite dramatic for somebody to come out of prison to go through the traumatic process of re-establishing accommodation and finding oneself in a difficult situation and it's often those stressors in the first days and weeks that lead to excessive alcohol consumption and/or drug use and then reoffending. Mr Yates has been dealing with loneliness and isolation. He has acknowledged those stressors. He has been dealing with detachment from country and from culture and notwithstanding that it took some months before he seems to have established a pattern of regularly drinking and he hasn't offended so I think as his Honour referred to earlier this is a difficult situation where finding strategies which will mitigate that ongoing risk would probably be the best solution but in the metropolitan area he is artificially removed from his people and his culture ...

... and I think it's that contact - stay in contact that would be the most valuable for him.

1. In his oral testimony Dr Wynn Owen reiterated the observation in his written report to the effect that he did not consider that Mr Yates would derive any benefit from further incarceration - other than the management of the risk which he presents to the community.[11]
2. Dr Wynn Owen considered that if Mr Yates were released into the community under supervision, drug and alcohol counselling from the Wungening Aboriginal Corporation would be of positive benefit. In that context he observed:[12]

... I think any engagement of this sort is going to add value ...

... and it's an opportunity to not just look at the specifics of alcohol use and avoiding alcohol use but to look at the context, social context, and from somebody who has a similar cultural understanding to Mr Yates who is fully aware of Mr Yates' offending it will provide some balance to his thinking. If that were to occur on a regular basis once or twice a week, yes, I take the point that it's not a significant chunk of time and structure but I think it potentially would add significant value.

1. In the context of Mr Yates' daily activities, Dr Wynn Owen observed:[13]

... Mr Yates has no structure and wanders, somewhat aimlessly, he is at most risk and he is then most likely also to put himself in high risk situations such as drinking. He doesn't need to be necessarily in a one to one therapeutic relationship with somebody but if he were in company, but not company that he has sought out that perhaps includes some ne'erdo-wells, it would be of value for him. Now, I'm sure there are men's groups around. I'm sure there are Aboriginal meeting places. It's those sort of things. Now, I would hope that Mr Yates would be proactive in engaging with those himself as well but I think rather than highly structured, targeted specific activities something more non-specific, whether it's men's group, or sporting or other would very much add value. It would provide social interaction and hopefully pro-social modelling and it would reduce that loneliness and isolation. Now, I don't know how realistic it is for those sort of things to be available but with those sort of things in place I believe that the risk of entering a high risk situation would go down and overall his risk of serious sexual offending would be reduced.

1. Dr Wynn Owen confirmed that if Mr Yates were released into the community under supervision, his counselling relationship with Mr Summerton should continue. He noted that Mr Summerton reported that he was very positive about the nature and level of his engagement with Mr Yates.[14] Dr Wynn Owen also considered that an Aboriginal mentor - ideally somebody from Mr Yates' country - would be a positive influence if Mr Yates was released into the community under supervision.[15] In relation to Mr Yates' participation in art, Dr Wynn Owen observed:[16]

The other thing I haven't mentioned here but I think is actually a positive for him [is that] he talked very positively about art. I'm aware that Ms Yun has followed up with the shopkeeper where Mr Yates had been talking and he was also reasonably positive. He can't offer anything therapeutic but they do offer a space where painting can occur. I thought that this was a very good positive reinforcer for him. He would be seen as somebody who had something to contribute culturally and artistically and creatively and I think that adds value for him and gives him a sense of self-worth that perhaps a lot of his other circumstances don't give him.

1. In crossexamination, it was put to Dr Wynn Owen that it was his opinion that, despite Mr Yates' contraventions of the supervision order, he was still capable of being managed within the community. He responded:[17]

I believe it's possible with a number of additional things put in place that I think you, yourself, mentioned that they provided a degree of supervision but not necessarily more structure. That, I think, is very important because we often use historical behaviour as the best indicator of future behaviour. That we now recognise that there has been a change in imminence and that that has been demonstrated on two occasions so, yes, it is highly likely that he will breach conditions. It is less imminent that he will seriously sexually reoffend. It may be slightly less likely should an appropriate structure be put in place so, yes, I acknowledge that you are quite correct in your assertion.

1. Dr Wynn Owen also agreed with the proposition that if the supervision order were continued, the authorities responsible for the supervision of Mr Yates 'are now far more informed as to identifying the triggers for his risky behaviour'.[18]
2. In crossexamination, Dr Wynn Owen also agreed with the proposition that Mr Yates would be assisted if a member or members of his family came to Perth, or if he were able to engage with Aboriginal people from his country who are now living in Perth.[19]
3. Dr Wynn Owen accepted that Mr Yates' capacity to engage in consensual sexual activity was also a positive factor.[20]
4. Counsel for Mr Yates endeavoured to sum up Dr Wynn Owen's evidence by putting to him that if accommodation were found for Mr Yates, and structured activities were planned for Mr Yates with a real focus on engagement with friends and activities in the community, combined with the structure of the supervision order as already exists, the risk which Mr Yates posed could be adequately managed within the community. Dr Wynn Owen accepted that proposition and added that if, notwithstanding those various matters, Mr Yates found himself in a high risk situation, past experience suggested that he would again be detected and arrested.[21]
5. Before re-examination, I also attempted to summarise what I took to be the thrust of the evidence given by Dr Wynn Owen. I put to him that if Mr Yates were provided with counselling from the Wungening Aboriginal Corporation, the opportunity for regular participation in an art programme, and a structured day involving beneficial social interaction - perhaps facilitated by a culturally appropriate mentor - the risk of repetition of the behaviour depicted on the video recording taken in the park in Wellington Street would be significantly mitigated. Dr Wynn Owen replied:[22]

Yes. So I think that would actually reduce his risk of breach as well as in the longer term reducing his risk of reoffending.

1. Dr Wynn Owen also agreed with my proposition that if Mr Yates were to form an appropriate relationship with an intimate partner, that would probably reduce the risk of him reoffending.[23]

1. Mr Steve Jobson is a psychologist providing forensic psychological services to the Department of Corrective Services under contract. Mr Jobson interviewed Mr Yates while he was in custody. He consulted with Mr Summerton, a senior psychologist who has been providing counselling services to Mr Yates over a number of years, and with Ms Aletheia Yun, the community corrections officer responsible for Mr Yates. He also reviewed various documents and reports relating to Mr Yates. A report prepared by Mr Jobson drawing upon these various sources was tendered in evidence by consent.
2. In that report, Mr Jobson noted that Mr Summerton advised that since Mr Yates' release from prison in August 2016, he attended 12 sessions of counselling in the community prior to his arrest, followed by 16 counselling sessions in prison. A further seven counselling sessions occurred after Mr Yates' release in August 2017, and another two counselling sessions occurred while Mr Yates was incarcerated between October 2017 and January 2018.
3. Mr Jobson expressed the view that through this counselling process, Mr Yates had developed some understanding of his risk situations. However, I digress to observe that given his contraventions of the supervision order, that understanding is clearly not fully developed.
4. Mr Jobson also noted that Mr Yates had been referred to the Holyoake Drug and Alcohol Through-care Service, and had engaged with that service on a number of occasions while in the community.
5. Mr Jobson noted that Mr Yates reported a number of examples where he claimed he had used refusal skills when offered alcohol and drugs, both in prison and in the community. He also reported that Mr Yates was clear in his assertions that he would not engage in sex with a woman who was drunk or who said 'no'.
6. Mr Jobson expressed the view that Mr Yates' use of alcohol and other substances appeared to be a means of coping with external sources of stress. In that context, Mr Jobson expressed the view that Mr Yates appeared to have difficulty developing an awareness of stress and of the need to reach out for help, and that this remained an area of some concern.
7. In relation to the contraventions of the supervision order, Mr Yates advised Mr Jobson that he frequently became lonely and had noone to talk to at home, so he would go into the city where he had the opportunity to meet other Aboriginal people. Those people had encouraged him to have a drink. He appeared to be unable to resist the temptation to socialise with those of a similar cultural background, including women.
8. Mr Yates acknowledged to Mr Jobson that he had engaged in sexual contact with a couple of women who he had met in the city, but also provided an example of refusing another woman who wished to have sex with him. It was not clear to Mr Jobson whether those sexual contacts occurred in the context of alcohol consumption.
9. Mr Jobson also noted with concern that Mr Yates had apparently had contact with some men who he had met while in prison.
10. Mr Yates advised Mr Jobson that he would continue painting if released, and would again approach the art gallery to which he had previously sold a painting.
11. Mr Yates spoke negatively of an experience with a mentor during a previous period of release, although he indicated his willingness to engage with another mentor.
12. Mr Jobson observed that because Mr Yates had lived most of his life in outback Australia, he was finding it difficult to adjust to life in metropolitan Perth, and was experiencing feelings of loneliness and cultural isolation. In Mr Jobson's view, those factors were significant contributors to the contraventions which occurred. Mr Jobson also identified Mr Yates' lack of a clearly defined and healthy sense of purpose or direction in life as a barrier to his successful transition into the community.
13. Mr Jobson expressed the view that Mr Yates' risk of reoffending would not significantly reduce while he remained in custody, and that the primary focus of reducing the risk of further offending by Mr Yates ought to be upon the management of the circumstances of his life in the community. In that respect, Mr Jobson identified the importance of mechanisms for the alleviation of Mr Yates' feelings of loneliness and isolation, and to enable him to develop a healthy pro-social sense of purpose and direction.

1. Ms Aletheia Yun is the community corrections officer with responsibility for Mr Yates. Her evidence took the form of a written report augmented by oral evidence.
2. Ms Yun reported that since Mr Yates' release on 29 August 2017, he reported as directed for all required appointments, and demonstrated an improved capacity to seek assistance to manage his finances and his time.
3. Ms Yun noted in her report that Mr Yates had confirmed that he had had consensual sexual intercourse with three women on three different occasions. He had met the women in the city. He further advised Ms Yun that, on one occasion, he had approached a woman asking her to have sex with him, but she had refused and Mr Yates had not pursued the matter any further. Ms Yun had advised Mr Yates that if he were to be released again, a higher standard of disclosure would be expected from him.
4. In her report, Ms Yun noted the observations which had been made by Dr Wynn Owen and Mr Jobson with respect to the need to address Mr Yates' feelings of loneliness and isolation and to provide him with a more structured day and a greater sense of purpose. She referred in her report to the steps she had taken in order to address these objectives. However, the fundamental difficulty, at the time of her report, was that there was then no housing available for Mr Yates. Ms Yun's report catalogues the various steps she had taken in order to secure accommodation for Mr Yates, without success.
5. In terms of community support following release, Ms Yun noted in her report Mr Yates' referral to the Holyoake Drug and Alcohol Through-care Service and to the Wungening Aboriginal Corporation.
6. Ms Yun also noted in her report that Mr Yates consistently returned negative urinalysis results for illicit substances, in contrast to his apparent consumption of alcohol in breach of the conditions of the supervision order.
7. In the course of her oral evidence, Ms Yun indicated that the six residences available for people under supervision orders were all occupied, although it would be possible to prioritise Mr Yates, so that accommodation might be made available to him if and when a vacancy arose.[24] However, she observed that it might be a matter of months before there was a vacancy.[25]
8. Ms Yun also indicated that attempts had been made to secure an appropriate mentor for Mr Yates and, although those attempts had not been successful to date, she was proposing to continue her efforts in that regard.[26]
9. Ms Yun advised the court that she had been informed that Wungening would be in a position to provide a counsellor from the same area as Mr Yates to provide face to face counselling for Mr Yates.[27]
10. In crossexamination, Ms Yun confirmed that Mr Yates' failure to notify her of his sexual relationships was not a contravention of the supervision order.[28]
11. Ms Yun also confirmed that if Mr Yates were released under supervision, she would be able to assist him to plan his week so as to incorporate activities and engagement with others.[29]

1. After receiving the evidence which I have summarised above, I expressed the tentative view that the evidence supported the proposition that Mr Yates should be returned to supervision within the community, but with additional support and assistance to address the needs which had been identified in the evidence. I invited counsel for the DPP to put submissions to the contrary. After receiving those submissions, I indicated that I remained of the view I had expressed. However, the obvious difficulty was that there was no accommodation available to give effect to that view. In the hope that this difficulty might be overcome, I adjourned the DPP's application for further hearing three months from that date, indicating to the parties that if, during that period, accommodation became available for Mr Yates, the hearing could be reconvened at short notice on an urgent basis.

1. The hearing resumed on 4 May 2018. At that hearing I also dealt with the criminal charges which had been brought against Mr Yates in respect of the contraventions of the supervision order in 2017, and to outstanding charges relating to contraventions of the first supervision order in 2016. As I have already noted, the penalties which I imposed in respect of those offences essentially amounted to a term of imprisonment equivalent to that served by Mr Yates since his arrest on 2 November 2017 and his rearrest on 4 November 2017.
2. Another report from Ms Yun, dealing with events which had occurred and inquiries which she had made since the previous hearing, was tendered in evidence in the application for revocation of the supervision order. The report was augmented by oral evidence from Ms Yun.
3. Ms Yun reported that she had maintained regular contact with Mr Yates during his incarceration. During their meetings, Mr Yates indicated his intention to find a partner upon release and accepted his need to disclose to his supervising officer any romantic or sexual relationships with women.
4. Ms Yun also noted that Mr Yates had continued to engage in counselling sessions with Mr Summerton.
5. In her report, Ms Yun outlined the management and supervision which would occur if Mr Yates were again released under supervision.
6. Significantly, Ms Yun reported that accommodation had become available to Mr Yates, being the same accommodation in which he previously resided during his most recent period in the community. Although this accommodation is in the vicinity of areas known to be used for anti-social behaviour, and is within walking distance of licensed premises and liquor outlets, this is the only accommodation currently available to Mr Yates. I also note that it would be difficult to identify available accommodation within the metropolitan area of Perth which did not have these characteristics.
7. In her report, Ms Yun notes that Mr Yates will be encouraged to engage with Uniting Care West, which will provide him with assistance in developing daily living skills and supporting his transition from custody back into the community. Uniting Care West will provide face to face contact with Mr Yates' case manager on average twice per week during the initial stages of his release. A financial counselling service would also be made available to Mr Yates if necessary. Further, Uniting Care West has offered a mentoring service to Mr Yates, involving ten sessions of two hours duration with an allocated mentor. The focus of those sessions would be to support Mr Yates in culturally appropriate activities. The mentor allocated to Mr Yates visited Mr Yates in prison in order to initiate the relationship.
8. Ms Yun indicated that although Mr Yates would be ineligible for the provision of services from Holyoake, he had been referred to Wungening, which would provide an opportunity for him to improve his level of connection with a community of individuals with similar cultural backgrounds. Mr Yates had made contact with the Wungening counsellor on three occasions since the previous hearing and, if released, would be offered weekly substance use counselling sessions.
9. Ms Yun reported that contact had also been made with the Rivervale Men's Group. That group runs culturally relevant programmes for indigenous men once a week for two hours each session. However, because of the possibility that children might be present, further inquiries needed to be made with respect to the suitability of this programme for Mr Yates.
10. Ms Yun also reported that contact had been made with Mr Yates' brother, Mr Clinton Yates. There was some prospect that Mr Clinton Yates might relocate to Perth, although his plans appeared somewhat uncertain.
11. Ms Yun noted in her report that, following his release, Mr Yates will be occupied with a significant number of appointments, including supervision, psychological counselling, reporting to his corrections supervisor, mentoring sessions, support from Uniting Care West, substance use counselling, possible men's group attendance and random urinalysis. In that context, it was thought desirable that he remain available to participate in these activities and not undertake employment. However, he would be encouraged to maintain contact with his nominated job network provider in order that options for employment and training might be explored in the future.
12. In the course of her oral evidence, Ms Yun indicated that if Mr Clinton Yates were to move to Perth, consideration would need to be given to the appropriate management of his relationship with Mr Nigel Yates, given Mr Clinton Yates' record of antisocial behaviour in the past.[30] However, Mr Clinton Yates still had no definite plans to move to Perth.
13. Ms Yun also indicated that the mentor to be provided for Mr Yates would be encouraged to renew Mr Yates' interest and engagement in artwork.[31]

1. The Act has been amended since Mr Yates committed the contraventions of the supervision order, and since the DPP applied for revocation of that order. However, the parties are agreed that I should apply the law in force at the time of the contraventions and the commencement of these proceedings in the disposition of this application. Given the consensus of the parties, it is unnecessary to undertake any legal analysis of the propositions involved.
2. Being satisfied that Mr Yates has contravened the supervision order in the respects which I have set out above, there are essentially three alternatives open to me under the legislation in force at the relevant time, namely to:[32]
   • (a) make an order amending the conditions of the supervision order, or extending the period of the order, or both; or
   • (b) make a continuing detention order; or
   • (c) make no order.
3. I can only make a continuing detention order if I am satisfied that there is an unacceptable risk that if such an order was not made, Mr Yates would commit a serious sexual offence.[33] In deciding which of the orders I should make, the paramount consideration which I must take into account is the need to ensure adequate protection of the community.[34] Accordingly, if I am satisfied that there is an unacceptable risk that Mr Yates would commit a serious sexual offence unless a continuing detention order is made, I must make such an order. The first question which I must address is whether there is such a risk.
4. There is no conflict in the evidence which has been received in relation to the DPP's application. That evidence is inherently plausible, and there is no reason why the evidence should not be accepted in its entirety. That evidence supports the following conclusions.
5. Mr Yates has committed contraventions of the supervision order on two occasions - namely, on 2 November and 4 November 2017. The contraventions committed on 4 November 2017 were more serious, for the reasons I have given. I accept that the contraventions came about because of the difficulties which Mr Yates is experiencing in adjusting to life in metropolitan Perth and, in particular, to the loneliness and cultural isolation which he was experiencing at the time. Mr Yates responded to the stress which he experienced as a result of those matters by seeking the company of other Aboriginal people in the city, and was unable to resist the temptation of social engagement with those people involving the consumption of alcohol.
6. However, and significantly, the measures that have been put in place to monitor Mr Yates' conduct worked on each occasion. His contraventions were identified and he was apprehended and taken into custody.
7. I share the view expressed by Dr Wynn Owen to the effect that it is significant that there is no suggestion that Mr Yates may have committed a serious sexual offence during either of the two periods in which he has been released into the community. That fact is significant considering the very short periods between Mr Yates' release from the custodial sentences imposed upon him as a result of his prior convictions, and his reoffending. The prospect of Mr Yates reoffending imminently after release appears to have diminished significantly.
8. The course of events on the two occasions upon which Mr Yates has been released under supervision suggest that there remains a significant risk that he will contravene the terms of the supervision order. That is not surprising given the extremely onerous nature of the conditions which have been imposed under that order, and the inevitable difficulties which Mr Yates will face in adjusting to life in metropolitan Perth after having spent a lot of his adult life in custody and, when not in custody, living in the remote country of his birth or the regional centre of Kalgoorlie. However, and significantly, the evidence does not suggest that the risk of Mr Yates committing another serious sexual offence is any greater than at the time I made the first supervision order in 2016. To the contrary, as I have noted, the evidence suggests that the risk of imminent reoffending by Mr Yates is now diminished.
9. The evidence also establishes that the course of events during Mr Yates' most recent release into the community has provided valuable information to those responsible for the supervision of Mr Yates. In particular, the problems arising from Mr Yates' feelings of loneliness and cultural isolation have been identified, together with the need to provide Mr Yates with structured daily activities and a sense of purpose. As a result of the diligent efforts of Ms Yun, arrangements have been put in place to enable those matters to be addressed upon Mr Yates' release. I am satisfied that those arrangements will reduce though not, of course, entirely eliminate the risk of Mr Yates again contravening the terms of the supervision order. However, under the law as it stood at the time of Mr Yates' contraventions and at the time of the commencement of these proceedings, the matter upon which I must focus is the risk of Mr Yates committing a serious sexual offence if he is not made subject to a detention order. For the reasons I have given, I am not satisfied that the level of that risk is unacceptable. Rather, I am satisfied that the level of that risk can be reduced to an acceptable level if Mr Yates is again released under supervision and the arrangements which I have set out above are implemented.
10. It is also of some significance that each of Dr Wynn Owen and Mr Jobson have expressed the view that Mr Yates would gain no benefit from a further period in custody, in the sense that the risk of his reoffending upon release might be reduced.
11. There was no evidence nor any submission to the effect that it would be desirable to amend the term or the conditions of the supervision order. Accordingly, for the reasons I have given, although I am satisfied that Mr Yates contravened the supervision order in the respects I have identified, I am also satisfied that the appropriate course is to make no order as a result of those contraventions. I made orders to that effect on 7 May 2018, with the result that Mr Yates was again released under supervision.

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

RESEARCH ASSOCIATE TO THE HONOURABLE CHIEF JUSTICE MARTIN

[1] Director of Public Prosecutions (WA) v Yates [2014] WASC 136.

[2] Director of Public Prosecutions (WA) v Yates [No 2] [2015] WASC 201.

[3] Director of Public Prosecutions (WA) v Yates [No 3] [2016] WASC 213.

[4] Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250.