THE STATE OF WESTERN AUSTRALIA -v- ATKINS [No 2] [2022] WASC 45 | Case summary

Supreme Court of WA|2022-02-15|Before: Strk J

1 On 25 November 2020, the State of Western Australia applied for a restriction order under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) in relation to Mr Atkins, who is presently incarcerated. The State contends that it is necessary to make a restriction order under the HRSO Act to ensure adequate protection of the community against an unacceptable risk that Mr Atkins will commit a serious offence on his release.

2 Mr Atkins has a history of violent offending, particularly against intimate partners. His offending has included four serious offences within the meaning of the HSRO Act. Mr Atkins' current sentence end date is 7 December 2022, with parole eligibility. To date, Mr Atkins has been denied parole.

4 The State's application was substantively heard on 31 January 2021. For these reasons, I have determined that it is necessary to make a restriction order in relation to Mr Atkins to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence upon his release. I have also determined that the risk of Mr Atkins reoffending may be adequately managed in the community with the imposition of a supervision order.

5 A 'high risk serious offender' is a person in relation to whom the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order so as to ensure adequate protection of the community against the unacceptable risk that the person will commit a serious offence.[1]

6 A 'serious offence' is an offence that is specified in sch 1 div 1 of the HRSO Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[2] Relevantly, a 'serious offence' within the meaning of the HRSO Act includes aggravated armed robbery, aggravated robbery and depravation of liberty.[3]

7 The objects of the HRSO Act as outlined in s 8 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.

8 The court must determine whether Mr Atkins is a high risk serious offender. To do so, the court is to determine if there is an unacceptable risk that Mr Atkins will commit a serious offence if not subject to a restriction order under the HRSO Act.

9 The term 'restriction order' under the HRSO Act means a continuing detention order or a supervision order.[4]

10 The State bears the onus of satisfying the court that Mr Atkins is a high risk serious offender, and the court must be satisfied of the same by acceptable and cogent evidence, and to a high degree of probabiliy.[5] The court, in considering whether it is satisfied of the matters in s 7(1), must have regard to the following matters listed in s 7(3) of the HRSO Act:

(a) any report prepared under s 74 for the hearing of the application, and the extent to which Mr Atkins cooperated in the examination required by that section;

(b) any other medical, psychiatric, psychological, or other assessment relating to Mr Atkins;

(c) information indicating whether or not Mr Atkins has a propensity to commit serious offences in the future;

(d) whether or not there is any pattern of offending behaviour by Mr Atkins;

(e) any efforts by Mr Atkins to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation programme;

(f) whether or not Mr Atkins' participation in any rehabilitation programme has had a positive effect on him;

(g) Mr Atkins' antecedents and criminal record;

(h) the risk that, if Mr Atkins were not subject to a restriction order, he would commit a serious offence;

(i) the need to protect members of the community from that risk; and

(j) any other relevant matter.

11 The matters set out in pars (h) and (i) above are conclusions or findings based on s 7(3)(a) ‑ (g) and (j) of the HRSO Act.

12 In addition, the court must disregard the possibility that Mr Atkins might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[6]

13 If the court is satisfied that there is a risk that Mr Atkins would commit a serious offence, the court must then consider whether the risk would be unacceptable in the absence of a restriction order.

14 In The State of Western Australia v ZSJ [2020] WASC 330 [5], Fiannaca J remarked that the HRSO Act operates largely as the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) did, and whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether he is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.

15 In The State of Western Australia v ACJ [2021] WASC 219 [27] - [30], Fiannaca J referred to the established meaning of 'unacceptable risk', and then set out how the court should in accordance with authority approach the statutory task of determining whether the risk a respondent would commit a serious offence would be unacceptable in the absence of a restriction order:

[27] In Director of Public Prosecutions (WA) v Williams, Wheeler JA elucidated what, in her Honour's view, was meant by 'unacceptable risk' under the DSO Act. Her Honour's elucidation of the meaning of that phrase, which was subsequently applied in cases under the DSO Act, also applies to the concept of 'unacceptable risk' under the HRSO Act. Her Honour said:

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. (emphasis added)

[28] The meaning of 'unacceptable risk' under the DSO Act was considered further in Director of Public Prosecutions (WA) v GTR, where Steytler P and Buss JA said that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). Again, those principles apply equally to the concept of 'unacceptable risk' as it relates to a 'serious offence' under the HRSO Act.

[29] The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition. This does not necessarily mean that the risk must be at some high percentage of probability. A risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.

[30] Section 48 of the HRSO Act, which corresponds to s 17 of the DSO Act, provides:

(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -

(a) make a continuing detention order in relation to the offender; or

(b) except as provided in section 29, make a supervision order in relation to the offender.

(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community. (footnotes omitted)

16 I adopt and apply these principles in determining the State's application.

17 If the court is satisfied to the requisite standard that there is an unacceptable risk the offender would commit a serious offence if not subject to a restriction order, the court must then consider whether a detention order or a supervision order should be made.[7]

18 I note that the powers conferred by the HRSO Act, like the now‑repealed DSO 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.[8] This requires the court to choose the order that is the least invasive or destructive of Mr Atkins' right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[9]

19 The HRSO Act, like the DSO Act, does not require that there be no risk of reoffending; rather, the issue is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[10]

20 In The State of Western Australia v ACJ, Fiannaca J pointed out that this principle also applies to the exercise of the court's power to make a continuing detention order or a supervision order under the HRSO Act:

[32] The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2). As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order. (footnotes omitted)

21 Consequently, when considering whether to make either a continuing detention order or a supervision order, the court is to be guided by the principle of risk minimisation, that is, of minimising the risk of reoffending by committing a serious offence to a level that ensures adequate protection of the community, as opposed to elimination of any risk of committing a serious offence by Mr Atkins.

22 The court should not make a supervision order unless satisfied on the balance of probabilities that Mr Atkins will comply with the standard conditions set out in s 30 of the HRSO Act.[11] Mr Atkins has the onus of proving that he will substantially comply.[12] In respect of this issue, in The State of Western Australia v ACJ, Fiannaca J made the following observations:

[36] ... In essence, I 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.

[37] As I identified in Hart, some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions); (b) his capacity to comply with the conditions; (c) what measures there are in place to ensure he would substantially comply; and (d) the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act. In particular, where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk. The same may be said of engagement in supervision with the Community Corrections Officer (CCO) allocated to the respondent.

[38] Even where the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a CDO if it is not satisfied (which includes if it is simply left in doubt) that conditional release under a supervision order will ensure an adequate degree of protection to the community. (footnotes omitted)

23 At the hearing of this application, I received into evidence a book of materials in three volumes. The first and second were dated 20 July 2021, and the third was dated 8 September 2021.[13]

24 The first volume contains a copy of Mr Atkins' criminal record; a chronology of offending prepared by the Office of the Director of Public Prosecutions for Western Australia; various Department of Justice prison records; and documents which concern Mr Atkins' offending history for offences defined as 'serious offences' under the HRSO Act.

25 The second volume contains documents which concern Mr Atkins' offending history for offences not defined as 'serious offences' under the HRSO Act, but that the State contends are relevant proceedings for the purpose of the State's application, together with various post‑sentence reports and related documents.

26 The third volume also contains post-sentence reports and documents; together with a copy of the reports prepared for the purpose of this hearing.

27 At the hearing of the State's application, four witnesses gave oral evidence and their reports were received into evidence, being incorporated within the third volume of the book of materials. They were as follows:

(a) Dr Kathryn Riordan, author of the proposed HRSO management plan dated 6 September 2021;

(b) Ms Julie Hasson, author of the psychological report dated 5 August 2021;

(c) Dr Natalie Pyszora, author of the psychiatric report dated 27 August 2021; and

(d) Ms Emma Cashmore, author of the community supervision assessment report dated 7 September 2021.

28 Also received into evidence was an updated community supervision assessment prepared by Ms Cashmore dated 10 January 2022;[14] and an affidavit of Martyn James Clancy-Lowe sworn 14 January 2022.[15] Mr Clancy‑Lowe's affidavit concerns a proposed residential address for Mr Atkins.

29 At the hearing of the application, I also received into evidence the affidavit of Ms Kaminni Kumar, counsel for Mr Atkins, affirmed on 24 January 2022, with annexures marked KK-1 to KK-15.[16] The documents annexed to Ms Kumar's affidavit included various materials sourced online by Mr Atkins as to potential counselling and support services; correspondence from the Prisoners Review Board denying Mr Atkins parole as at 3 December 2020; letters of support from Mr Atkins' mother and sister; and a letter from Mr Michael Grove, Mr Atkins' treating psychologist since 7 July 2020. Mr Atkins did not give evidence.

30 I now turn to the matters relevant to determining whether or not Mr Atkins is a high risk serious offender pursuant to s 7 of the HRSO Act. I will do so by considering the evidence in the context of the factors under s 7 of the HRSO Act, commencing with Mr Atkins' antecedents and criminal history.

31 In deciding whether a person is a high risk serious offender, the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.[17]

32 The criminal record and antecedents are relevant in and of themselves, but are also relevant to whether the person has a propensity to commit serious offences in the future. The criminal record and antecedents are also relevant as to whether there is any pattern of offending behaviour.[18]

33 Mr Atkins is a 38-year-old man. He had a dysfunctional and chaotic childhood after his parents separated when he was about three years old. Mr Atkins' mother re‑partnered when he was four, and Mr Atkins resided with his mother and step-father until he was approximately 12 years of age. (His mother is no longer in that relationship.) Mr Atkins then lived with a number of different people in different locations with little to no parental supervision, including with an older brother, his father and a friend of his father, who Mr Atkins describes as his 'foster mother'. He was physically and sexually abused in some of these placements and felt rejection and a significant level of abandonment by his mother.

34 Mr Atkins left school when he was about 14 years old. He completed further education while in detention facilities, including year 11 while in custody. Since then, he has completed a number of occupational certificates.

35 Mr Atkins has limited history of continuous or stable employment. He has sporadically held short-term employment in construction, furniture removal, as night staff in a service station and in various bakeries and similar businesses. He was last employed in about 2017 or 2018.[19]

36 Mr Atkins has had a number of serious relationships. He has a history of violent offending as against his intimate partners. Mr Atkins has children, but he does not have a relationship them.[20]

37 Mr Atkins has a long history of substance abuse, reporting use from early childhood. Over time, his substance abuse has accompanied anti‑social and criminal behaviour. Substance abuse appears to be a contributing factor in many of his violent offences, especially those committed in his intimate relationships. While he has a history of polysubstance abuse, amphetamine, cannabis and alcohol appear to be his drugs of choice.

38 Mr Atkins was previously associated with an outlaw motorcycle gang. It appears that Mr Atkins tried to leave that gang in about 2017 and he reports that he has no present association with the same.

39 Mr Atkins has spent approximately 20 years of his life incarcerated for various criminal offences, some of which involved acts of violence.[21] He has been sentenced to a term of imprisonment almost 50 times, ranging from one month to over five years.[22] His criminal record reveals a cycle of offending behaviour and incarceration.

40 In the State's written submissions for hearing, counsel for the State summarised the facts in respect of the offences committed by Mr Atkins which are 'serious offences' within the meaning of the HRSO Act.[23] At the hearing of the application, counsel for Mr Atkins confirmed that Mr Atkins took no issue with the State's characterisation of the offences as 'serious offences', nor with the accuracy of the facts summarised in the State's written submissions.[24] It is convenient to largely reproduce the State's summary below.

41 On 20 August 2011, Mr Atkins perpetrated a sustained physical assault against his de-facto partner of eight months (being the woman he described as his former 'foster‑mother'), after having consumed alcohol throughout the day. Following an initial assault against the complainant, Mr Atkins proceeded to lock all the doors to the property before forcing the complainant to hand over her mobile telephone and car keys. Over the next six hours he prevented the complainant from leaving the address and subjected to her to further violence, threats, insults and controlling behaviour including forcing the complainant to cook a meal for him which he then threw in the bin before forcing her to eat the food from the garbage, pouring wine over her head, repeatedly punching and kicking her head and body, holding her by the neck and restricting her breathing by choking her. The complainant was also forced to hand over her bank cards and kicked repeatedly until she disclosed her personal identification number. Later, the complainant was forced to electronically transfer $2,000 into Mr Atkins' bank account.[25]

42 Whilst on bail, Mr Atkins and a different female partner were residing at a holiday park in Esperance with their two children. On 19 December 2011, Mr Atkins had been out fishing all day before returning to the camp site heavily intoxicated. Later that evening he punched the complainant to the face before grabbing her around the neck and throwing her to the ground. He proceeded to punch the complainant in the face, back of the head and body whilst holding her down by the throat. The complainant made multiple requests to be let go and attempted to get away; however, Mr Atkins continued to punch and restrain her. He then ordered the complainant to go to bed and he picked up a Lakefield .22 calibre rifle and a magazine for the rifle, loaded nine .22 calibre rounds into the magazine and inserted this into the rifle. Mr Atkins then held the rifle in his lap and pointed the barrel at the chest of the complainant and stated 'I'm gonna get you'.[26]

43 On 26 February 2013, Mr Atkins appeared in the Perth District Court in relation to the abovementioned offending, at which time he was sentenced to imprisonment for a total effective term of five years imprisonment for two counts of deprivation of liberty, aggravated robbery and other non-serious offences. The offences of depravation of liberty and aggravated robbery are serious offences under the HRSO Act.

44 The index offences[27] occurred on 6 August 2017, when Mr Atkins and two male co-offenders, armed with a wooden baseball bat and what appeared to be a machine gun, entered the complainant's residence without consent. The complainant's partner and 11-year-old son were present in the home when Mr Atkins and his co‑offenders entered a shed located on the property and confronted the complainant with the weapons. Demands were made in relation to money and drugs, and the complainant was instructed to sell drugs for them. Mr Atkins proceeded to poke the complainant with the baseball bat before demanding to be taken to the money and as the complainant approached the safe, Mr Atkins hit him across the back of the head with the bat, causing him to fall to the ground and temporarily lose consciousness.

45 As the complainant left the shed, Mr Atkins gained possession of the machine gun and further demands were made in relation to money and drugs, resulting in the complainant handing over $300 in cash and a small quantity of methylamphetamines. Mr Atkins then demanded the closed-circuit television recorder and the complainant complied with this request.[28]

46 On 3 April 2019, Mr Atkins was sentenced to imprisonment for a total effective term of 5 years and 4 months with parole eligibility, backdated to commence on 8 August 2017 in relation to the following charges:

(a) aggravated armed robbery (5 years and 4 months' imprisonment);

(b) aggravated burglary with intent in dwelling (3 years' imprisonment, concurrent); and

(c) stealing a motor vehicle (12 months' imprisonment, concurrent).

47 The offence of aggravated armed robbery is a serious offence under the HRSO Act.[29]

Criminal history - other offending of a violent or serious nature

48 Mr Atkins has a lengthy criminal history, many offences of which are not 'serious offences' as defined in s 5 of the HRSO Act. However, given the circumstances in which they were committed, the information relating to the violent offences committed by Mr Atkins is relevant to this application. That is, the proceedings in relation to the offences are 'relevant proceedings' pursuant to s 84(1)(b) of the HRSO Act.

49 In the State's written submissions for hearing, the State summarised the facts in respect of other offences of a violent or serious nature committed by Mr Atkins which the State contends are 'relevant' for the purposes of s 84(5) of the HRSO Act.[30] At the hearing of the application, counsel for Mr Atkins confirmed that Mr Atkins took no issue with the State's characterisation of these other offences as 'relevant' for the purposes of s 84(5) of the HRSO Act, nor as to the accuracy of the summary of facts provided.[31] The summary is reproduced below.

50 From late 2000 to mid-2001 Mr Atkins was convicted of various offences including burglary, stealing a motor vehicle, damage, receiving, escaping legal custody, and possession of prohibited drug.

51 In 2000, Mr Atkins assaulted a complainant with a crowbar hitting him on the hand, forearm, elbow and head. The complainant required stitches to his hand and suffered a displaced fracture of a finger. Mr Atkins (together with co-offenders, including his brother) had previously stolen from the complainant.[32]

52 In 2003, Mr Atkins was convicted of two counts of aggravated burglary. He was placed on an intensive supervision order which he subsequently breached.[33]

53 On 3 January 2006, Mr Atkins was served with a violence restraining order protecting his mother. He had been living with his mother with her consent while he made arrangements to live separately in Karratha. On 12 April 2006 he telephoned his mother and then smashed the house telephone. As his mother feared for the safety of her daughter who was alone in the house, she telephoned the police.[34]

54 Mr Atkins was then involved in multiple offences of receiving, stealing, drug possession, and gaining benefit by fraud until he was remanded in custody on 15 November 2006 pending preparation of a pre‑sentence report. These offences were committed whilst he was subject to an intensive supervision order imposed on 18 July 2006. He was also subject to a suspended term of imprisonment imposed on 17 July 2006.

55 Between February and May 2008, Mr Atkins committed numerous offences (predominantly stealing, drug, and driving offences).

56 Mr Atkins has previously been subject to six separate periods of community supervision, five of which were cancelled by reason of non‑compliance and/or reoffending. Ms Cashmore's community supervision assessment report contained the following table:[35]

57 Ms Hasson described in her report instances where Mr Atkins failed to respond to supervision, respond to bail and breached violence restraining orders.[36]

58 Ms Cashmore recorded in her community supervision assessment report that Mr Atkins has a history of prison incidents, in addition to having incurred five formal charges. His last reported incident was in July 2021.[37]

59 As to use of illicit substances, Mr Atkins last tested positive for cannabis in Hakea prison in 2019.[38]

60 During his present term of imprisonment, Mr Atkins has engaged in counselling sessions with Mr Grove. Mr Atkins began individual counselling services with Mr Grove in July 2020, which have been funded by Mr Atkins' mother. Mr Atkins' participation in rehabilitation programs and treatment while in prison is discussed in some detail below.

61 Mr Atkins describes himself as fit and healthy, despite being the victim of a serious physical assault in 2015 during which he sustained multiple facial fractures and required reconstructive surgery.[39]

62 With respect to Mr Atkins' mental health, there are records which indicate past diagnoses of drug induced psychosis, drug abuse, depression and anxiety. Mr Atkins has been persistently prescribed anti-depressant medication.[40] His mental health is stable with minimal symptoms of anxiety and stress,[41] and is discussed in more detail below in the context of the results of his psychiatric examinations and other assessments.

Propensity to commit serious offences in the future - s 7(3)(c)

63 The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178], Murray AJA stated that:

[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.

64 The State characterise Mr Atkins' offending history as being extensive and sustained. The State points to the fact that Mr Atkins' first offence occurred when he was 17 years old and the only significant gaps in his offending history were when he was in custody.[42] The State also points to Mr Atkins having been convicted of four 'serious offences' as defined in the HRSO Act between 2011 and 2017, as well as a number of violent offences which do not constitute 'serious offences' within the meaning of the HRSO Act. The State submits that this offending history is relevant to the determination of whether Mr Atkins has a propensity to commit 'serious offences' in the future.

65 The State submits that Mr Atkins' criminal record reflects a propensity to act violently, often whilst armed with a weapon. The State refers to Mr Atkins having threatened victims with a weapon, including a machine gun, baseball bat and crowbar, and on one occasion pointed a gun at his intimate partner whilst threatening to kill her.[43] Further, the State contends that Mr Atkins' propensity for violent offending includes a propensity to commit offences in circumstances where serious injury may result to victims.[44]

66 The State submits that Mr Atkins presents a chronic risk of intimate partner violence in particular, as his violence has occurred across three different relationships and spans a number of years.[45] It says that it can be concluded that Mr Atkins has an inclination or tendency, or disposition to commit serious offences generally, and in the circumstances, he satisfies Murray AJA's definition of 'propensity'.[46]

67 Having regard to Mr Atkins' history of offending, particularly the nature and frequency in which he has committed 'serious offences', I do not consider Mr Atkins to have a propensity to commit 'serious offences' as defined in the HRSO Act. However, I find that Mr Atkins' history of offending is one which discloses Mr Atkins' propensity to commit offences against persons involving violence.

68 I also note that drug or alcohol use has been involved in almost all of Mr Atkins' previous offending. Unless his abuse of alcohol and illicit drugs can be managed, I am satisfied that the propensity to commit offences against persons involving violence is likely to be expressed in future offending.

Whether or not there is any pattern of offending behaviour - s 7(3)(d)

69 I accept the State's submission that Mr Atkins has engaged in a pattern of intimate partner violence, including committing serious offences as well as non-serious offences against de-facto partners.[47] I also accept that Mr Atkins has engaged in a serious, violent drug-related armed robbery in company with the use of weapons, and other non-serious offences that have been drug related and/or violent. A review of Mr Atkins' offending history makes good the same.

Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - ss 7(3)(e) and 7(3)(f)

70 I must consider if Mr Atkins has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs, and whether or not such participation has had a positive effect.

71 Mr Atkins has engaged in treatment intervention during his current term of imprisonment by participating in individual counselling with Mr Grove,[48] and also numerous other treatment intervention programs during periods of incarceration.[49] Mr Atkins' full history of treatment interventions and programs is outlined by Ms Hasson.

72 Despite Mr Atkins having meaningfully engaged in numerous programs whilst in custody and having consistently presented as a motivated participant who demonstrated treatment gains, Mr Atkins has consistently reoffended upon release.

73 Ms Hasson noted in her report that Mr Atkins appears to have retained a reasonable amount of the content of the substance abuse and violent offender treatment programs he completed previously, but he acknowledged to her that he has had difficulty implementing a relapse plan. These difficulties were made worse by his involvement in outlaw motorcycle gang culture.[50] As to Mr Atkins' history of having problems with treatment or supervision, Ms Hasson makes the following observation:[51]

... He has in the past failed to abide by conditions imposed on him. Mr Atkins offending behaviour has escalated over time. Despite participating in programs, he has continued to offend. Mr Atkins has a history of breach related offending; he has escaped legal custody and at times has engaged in aggressive behaviour whilst in custody.

74 Ms Hasson acknowledges that while Mr Atkins has made many treatment gains and acquired new skills and insights, these have yet to be tested in the community over an extended period of time. However, she does note that he is showing potential that he can make and sustain change, and he appears to be willing to utilise all professional supports available.[52]

75 I accept that Mr Atkins has made efforts to address his offending behaviour by his meaningful engagement in numerous rehabilitation programs. I also accept that he has voluntarily engaged in counselling sessions with Mr Grove. Mr Grove reports that throughout 'counselling sessions, Mr Atkins remained honest and transparent accepting full responsibility for his current period of incarceration'.[53]

76 I have considered whether Mr Atkins' participation in any rehabilitation programme has had a positive effect. In this regard, Mr Grove recorded as follows:

Mr Atkins stated he has been practising the skills he is learning in counselling and reported that in the last eighteen months he has not been written up for any acts of aggression towards fellow prisoners or guards, even though he has been assaulted on one occasion by another prisoner during this. ...

77 Mr Atkins' participation in ongoing counselling is a positive step and I accept that there has been recent improvement in his behaviour. The evidence suggests that Mr Atkins holds a genuine desire to change. However, whether his participation in counselling has had a lasting positive effect cannot be discerned while Mr Atkins remains subject to the structure and controls of the prison environment.

Expert reports and extent to which Mr Atkins cooperated with examinations - s 7(3)(a) Dr Pyszora's report

78 Dr Pyszora is a medical practitioner registered with the Medical Board of Western Australia as a specialist (forensic psychiatrist). Her statement of qualifications is set out at appendix A to her report.[54] She is qualified to give the opinions expressed in her report and in the course of her evidence.

79 Dr Pyszora prepared her report at the request of the court. As to the extent to which Mr Atkins cooperated with her psychiatric examination, Dr Pyszora recorded that he engaged well during two lengthy face to face interviews without a break and a subsequent shorter videoconference interview. She observed Mr Atkins to be calm, polite and appropriate during the interviews.[55]

80 It is clear that Dr Pyszora had before her and had regard to the facts in respect of the offences committed by Mr Atkins which are 'serious offences' within the meaning of the HRSO Act, and the facts in respect of other offences of a violent or serious nature committed by Mr Atkins which the State contends are 'relevant' for the purposes of s 84(5) of the HRSO Act. She summarises the same in her report.[56]

81 Dr Pyszora observed that Mr Atkins fulfils criteria for a diagnosis of personality disorder as he has displayed an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of his culture. She said that this has manifested in disturbance of cognition, affectivity, impulsivity, and interpersonal functioning and has led to significant impairment in his social and occupational functioning since adolescence.[57]

82 Dr Pyszora also opined that Mr Atkins has significant borderline traits and some anti‑social traits to his personality. In terms of borderline traits, Dr Pyszora said that Mr Atkins has a clear pattern of unstable and intense interpersonal relationships, affective instability, vulnerability to intense anger, and frantic efforts to avoid abandonment by others. In terms of anti‑social traits, she noted that he has repeatedly failed to comply with social norms (evidenced by his offending), and exhibited impulsivity, irresponsibility, and aggressiveness.[58]

83 Dr Pyszora observed that Mr Atkins fulfils the criteria for a stimulant (amphetamine) use disorder, which has been in remission for some years. She noted that he has had periods of recurrent use resulting in failure to fulfil work and other obligations; continued use despite recurrent and persistent problems due to use (including offending); use in situations which have been physically hazardous; and continued use despite knowledge of the adverse effects. While there is no evidence that he has used amphetamines for some years, Dr Pyszora noted that Mr Atkins is currently in a controlled environment in prison with restricted access to drugs.[59]

84 Dr Pyszora also observed that although Mr Atkins has never been a heavy user of alcohol and would not fulfil criteria for an alcohol use disorder, it is notable that alcohol intoxication was significant in both episodes of serious domestic violence in 2011.[60]

85 Dr Pyszora stated that Mr Atkins would have fulfilled criteria for a diagnosis of post traumatic stress disorder (PTSD) following the assault in October 2015. She observed that he is adequately treated for PTSD with appropriate psychotropic mediation and is managed within a safe environment within the prison.[61]

86 As to the formulation of Mr Atkins' offending, Dr Pyszora observed that Mr Atkins has had a strong desire to belong to groups since adolescence and has a pervasive fear of abandonment. Unfortunately, this has led to his generalist and violent offending because of attachment to anti‑social peers and more recently to an outlaw motorcycle gang. She recorded in her report that Mr Atkins is easily influenced by others and has quickly relapsed into substance use when associating with other drug users.[62]

87 Further, Dr Pyszora recorded that Mr Atkins' history of trauma, abuse and abandonment has easily triggered episodes of violence towards others if he was consciously or subconsciously reminded of his own childhood experiences. She said that Mr Atkins has had poor coping strategies and since his adolescence he has resolved episodes of stress and interpersonal conflict either by avoidance (for example, by running away) or by violence. Dr Pyszora expressed the opinion that Mr Atkins' poor communication and conflict resolution skills, combined with his insecure and preoccupied attachment style, substance use, and dysfunctional relationships with intimate partners have all contributed to his intimate partner violence.[63]

88 Dr Pyszora opined upon the risk of Mr Atkins reoffending. She set out in detail in her report the assessments Mr Atkins completed and the results she considered when forming her opinion as to that risk. Dr Pyszora noted that assessments were completed to assess the risk of general violence and the risk of intimate partner (spousal) violence in recognition that, although some risk factors are common in most types of violence, specific types of violence such as spousal assault have some specific and unique risk factors.

89 Dr Pyszora recorded in her report that Mr Atkins scored well below the threshold for psychopathy utilising the PCL‑R assessment tool.[64]

90 Dr Pyszora identified the following as historical risk factors present for Mr Atkins: a history of problems with previous violence; other anti‑social behaviour; relationships; substance abuse; personality disorder; traumatic experiences; and treatment or supervision response. She further noted that the historical risk factor of having a history of problems with violent attitudes was only partially present for Mr Atkins; problems with employment was not a risk factor present for Mr Atkins; and Mr Atkins' history of problems with mental health disorders had not previously been directly relevant to his violent offending.[65]

91 As to clinical risk factors, Dr Pyszora recorded that the risk factor of recent problems with treatment or supervision response is currently absent. She recorded that she confirmed with Mr Atkins' current counsellor (Mr Grove) that Mr Atkins has benefited from treatment, and it is notable that Mr Atkins sought out treatment prior to any notification that he may be subject to the State's application for a restriction order under the HRSO Act. She observed that Mr Atkins appeared genuine in his motivation to change.[66]

92 Dr Pyszora also considered various risk management factors, including that he may be targeted by an outlaw motorcycle gang, and future problems with stress and coping.[67]

93 However, in the context of personal support, Dr Pyszora recorded that at the time of interview, Mr Atkins had identified the potential imposing of a restriction order as a 'supportive arrangement' which he felt would help him succeed back in the community.[68]

94 As to the risk to any future intimate partner or spouse, Dr Pyszora identified various risk factors, including factors that relate to Mr Atkins' problems with social, interpersonal and psychological adjustment.

95 Having regard to the nature of the intimate partner violence perpetrated by Mr Atkins historically, Dr Pyszora expressed the opinion that Mr Atkins presents a chronic risk of intimate partner violence as his violence has occurred across three different relationships, spanning a number of years.[69] She further opined that Mr Atkins' previous history of failing to abide by community supervision orders was a general risk factor for further intimate partner violence as individuals with such history are more likely to violate any future protective order.[70]

96 As to specific victim vulnerability factors, Dr Pyszora stated that such factors will need to be assessed in the event that Mr Atkins engages in a further intimate relationship. Should Mr Atkins be subject to a restriction order, it is Dr Pyszora's opinion that victim vulnerability factors would need to be thoroughly assessed and managed.[71]

97 Taking into consideration her clinical assessment and the application of the tools identified in her report, Dr Pyszora expressed her opinion as to risk as follows:[72]

274. In my opinion Mr Atkins would present a high risk of committing a serious offence of general violence if his risk factors were not managed.

275. In my opinion Mr Atkins would also present a high risk of committing a serious act of intimate partner violence if his risk factors were not managed.

98 Dr Pyszora identified and discussed in her report various scenarios for potential future violence. She stated that management plans for prevention of future violence need to be based on monitoring, treatment, supervision and victim safety planning. She made a number of recommendations for the management of the risks posed by Mr Atkins.[73]

99 Dr Pyszora did not opine in her report as to the appropriate duration of such management plans. However, in the course of her evidence, Dr Pyszora expressed her opinion that the order should be for five years.[74]

100 Ms Hasson is a forensic psychologist registered with the Psychology Board of Australia. Her statement of qualifications is set out in her report.[75] She is qualified to give the opinions expressed in her report and in the course of her evidence.

101 Ms Hasson prepared her report at the request of the court. As to Mr Atkins' cooperation, she recorded that he chose to participate in the assessment with consent and that he was polite and cooperative throughout all of the interviews allowing a solid level of rapport to be established.[76]

102 Ms Hasson recorded in her report Mr Atkins' personal history, which includes his chaotic childhood and adolescence; occurrences of physical and sexual abuse as a child and as an adolescent; minimal parental supervision; interrupted education and truancy; early engagement in criminal and/or anti-social behaviour, including use of illicit substances; and interrupted employment history.[77]

103 Ms Hasson also recorded Mr Atkins' relationship history, which includes examples of Mr Atkins having engaged in significant intimate partner violence with different partners from early adulthood.[78] As to substance abuse and medical history, Ms Hasson's report of Mr Atkins' history is largely consistent with that recorded by Dr Pyszora.

104 Ms Hasson's report also recorded the facts in respect of the offences committed by Mr Atkins which are 'serious offences' within the meaning of the HRSO Act, and the facts in respect of other offences of a violent or serious nature committed by Mr Atkins which the State contends are 'relevant' for the purposes of s 84(5) of the HRSO Act. She also recorded instances where Mr Atkins has failed to respond to supervision, respond to bail and breached violence restraining orders.[79]

105 Ms Hasson stated that Mr Atkins' offending behaviour and inability to desist from offending despite court imposed sanctions supports the opinion that Mr Atkins presents with anti-social personality disorder.[80]

106 Ms Hasson recorded Mr Atkins' explanation for his offending history, which is similar to Dr Pyszora's opinion as to Mr Atkins' formulation of offending, summarised at [86] to [87] above.

107 Ms Hasson described the treatment interventions Mr Atkins has engaged in during his current term of imprisonment, which includes his engagement with Mr Grove, and treatment interventions during previous sentences.[81] Ms Hasson's evidence was that she considered Mr Atkins to have a good theoretical understanding of treatment intervention content and materials. However, he had not yet been able to make any behavioural change or significant emotional change.[82]

108 Ms Hasson undertook an assessment of the risk of Mr Atkins violently offending upon release. She explained in her report that she undertook an evidenced based risk assessment incorporating Structured Professional Judgment (SPJ) and actuarial measures in combination with a forensic psychological assessment and formulation. The instruments used in this assessment include Historical‑Clinical‑Risk Management 20 version 3 (2013) (HCR-20 v3), Spousal Assault Risk Assessment Guide (SARA), and the PCL-R.[83]

109 Ms Hasson recorded that Mr Atkins' PCL-R total score was below the threshold for psychopathy in Australia.[84] Further, Mr Atkins' SARA score (a tool which is designed to screen for risk factors of spousal or family-related assault) placed him in the high-risk category for re‑offending against a future intimate partner or family member. In this regard, Ms Hasson made the following observation as to risk items:[85]

Risk items relevant to Mr Atkins include: a history of past physical assault, past use of weapons, frequency and severity of assault behaviour, past violation of non-contact orders, conditional release and community supervision, relationship problems, employment problems, substance abuse/dependence, victim of and/or witness to family violence as a child or adolescent, and personality disorder with anger, impulsivity or behavioural instability

110 In undertaking the HCR-20 v3 assessment, various risk factors were also identified.

111 As to Mr Atkins' risk of reoffending, Ms Hasson's opinion is that he presents as a high risk of serious offending if not subject to a restriction order. She stated as follows:[86]

Mr Atkins' risk of reoffending is chronic. He has not been able to reside in the community previously without engaging in offending behaviour. Association with criminal peers and family members and the presence of antisocial and antiauthority attitudes also increase the imminence of risk of future violence as does interacting with peers with substance abuse issues.

112 She further opined that he presents as a high risk of serious offending if not subject to a restriction order. She stated as follows:[87]

[Mr Atkins] requires time in the community to develop experience and practice new skills. Until he becomes proficient it is likely that his ability to manage these risks will be inconsistent and lapses will occur. Behavioural change requires ongoing therapeutic input and above all time.

113 Ms Hasson recommended that any supervision order be at least five years in duration.[88] She explained her reasoning as follows:[89]

What's your rationale there?---Yes. So I have said five years. Often (indistinct) in data looks at a five year interval time offence free in the community. So if Mr Atkins can be offence free and live in the community for five years then he has got a really good chance of not returning to old ways and old patterns and reoffending down the track. So it's not a, sort of, short term measure. We don't want - to see not reoffend for a year or for two years. We - you want, sort of, desistence from offending. Some of that can happen naturally as an individual ages but Mr Atkins is still a very young man, so a five year period of time with the support and the conditions and for him to actually affect behavioural change and to develop emotionally and - and to manage, that's going to require a good period of time. So that's why I set the five year term.

Psychological and other assessments - s 7(3)(b) Dr Riordan's report - proposed HRSO management plan

114 Dr Riordan is a senior clinical and forensic psychologist employed by Forensic Psychological Services, within the Department of Justice, who holds a combined PhD and professional doctorate in clinical and forensic psychology.[90] Dr Riordan prepared a report intended to assist with the identification of relevant supervision, management and intervention strategies should Mr Atkins be made subject to a restriction order.[91] She is qualified to give the opinions expressed in her report and in the course of her evidence. Dr Riordan met with Mr Atkins multiples times and described his attitude as 'very forthcoming' and 'open'.[92]

115 Dr Riordan included in her report information she considered relevant to Mr Atkins' intervention and management needs, including his developmental history; relationship history; health, mental health and substance use history; his affiliation with an outlaw motorcycle gang; offending behaviour; offence specific treatment and intervention history; and prison conduct reports.

116 Dr Riordan used the Violence Risk Scale (VRS) as a risk assessment tool.[93] The VRS contains both static and dynamic risk factors.

117 Dr Riordan recorded that Mr Atkins presents with a high number of static (that is, unchangeable) risk factors, including his young age at first conviction for a violent offence, large number of juvenile convictions, use of violence across the lifespan and the instability of the family system within which Mr Atkins early growth and development occurred.[94]

118 Dr Riordan noted that these factors will remain present and stable over time irrespective of what treatment programs Mr Atkins engages in or the assessed treatment gains that he does or does not make. That is, Mr Atkins is not able to ameliorate the mathematical weight that the presence that these historical factors has on his assessed risk level as measured by an empirically derived risk assessment tool.[95]

119 However, Dr Riordan stated that in contrast, dynamic risk factors are amenable to change over time, and therefore should form the target of criminogenic treatment interventions on the basis that these provide more a contemporaneous indication of the presence of proximal contextual, situational and personal risk factors that may promote violent risk.[96]

120 In Dr Riordan's opinion, the dynamic risk factors, and therefore areas of treatment need, of most relevance to Mr Atkins include substance use; violent lifestyle and criminal peers; stability of relationships and interpersonal aggression; emotional control; weapon use; criminal personality and criminal attitudes; violence cycle and insight into violence; community support and released to high-risk situations; and compliance with supervision.[97]

121 Dr Riordan also noted that additional areas of relevance for Mr Atkins include his offence supportive beliefs; mental illness (specifically PTSD); and attitudes that condone the use of instrumental and reactive aggression. She stated that Mr Atkins has a history of involvement and impulsive behaviour that may also require monitoring, particularly if he relapsed into substance abuse.[98]

122 As to intervention and risk management options if Mr Atkins was to be made subject to a supervision order, in summary, Dr Riordan's recommendations included the following.[99]

123 First, that Mr Atkins be referred to Forensic Psychological Services for individual intervention to address his identified criminogenic treatment needs.

124 In this regard, Dr Riordan said that it is unlikely that Mr Atkins would gain any additional benefit from repeating group-based intervention. She noted that Mr Atkins has been consistently reported as having engaged well in prison-based treatment programs over time, demonstrating treatment gains in the prison-based setting, but is yet to enact strategies learnt and treatment gains made to the community‑based setting with any success.[100]

125 Further, Dr Riordan said that in the context of Mr Atkins' involvement in two intimate relationships with Department of Justice staff, which appears to relate to his tendency to engender help seeking in others by occupying the role of victim, he is considered to be proficient at grooming behaviour.[101] She said that this responsivity factor needs to be monitored and factored into any treatment planning. In this respect, an experienced psychologist is recommended.

126 Secondly, that risk management strategies to monitor and mitigate risk of harm be developed in consultation with WA Police. In this regard, Dr Riordan noted that there is risk to Mr Atkins, his family and those involved in his supervision, treatment and re‑integration support by reason of Mr Atkins' previous involvement with an outlaw motorcycle gang, which must be a primary management consideration.[102]

128 Fourthly, monitoring of potential intimate relationships.

129 Fifthly, close monitoring of Mr Atkins' peer relationships.

The risk that a serious offence will be committed if a continuing detention or supervision order is not made - s 7(3)(h)

130 The psychiatric and psychological evidence supports the finding that there is a high risk of Mr Atkins committing further serious offences if a restriction order is not made.

131 While Mr Atkins has undertaken a number of treatment programs and continues with individual counselling, there is the risk that a serious offence may be committed if a continuing detention or supervision order is not made.

The need to protect members of the community from that risk - s 7(3)(i)

132 I am satisfied on the evidence that there is a need to protect the community from the risk that Mr Atkins will commit a serious offence.

Any other relevant matter - s 7(3)(j) Ms Cashmore's reports - community supervision assessment

133 Ms Cashmore is a Senior Community Corrections Officer within the Community Offender Monitoring Unit of the Department of Justice. She produced a community supervision assessment dated 7 September 2021,[103] which was updated by a further report dated 10 January 2022.[104]

134 The first part of Ms Cashmore's report set out the factual background to the report, which includes a summary of Mr Atkins' serious offending history; the intervention programs he has completed to date; his prison behaviour; and his previous responses to supervision.

135 Ms Cashmore's report then described a proposed community supervision plan, which includes accommodation options and community supports; potential future employment; and contemplates Mr Atkins being restrained from having any contact with complainants of his serious offending.

136 Ms Cashmore described the treatment needs and behaviours of Mr Atkins that would require management should he be released from custody on a supervision order as identified in the reports of Dr Pyszora and Ms Hasson, together with the strategies suggested by these witnesses to manage Mr Atkins' offending behaviours.

137 If the court was to make a supervision order, Ms Cashmore proposed in her report 38 supervision order conditions, which reflect the recommendations of Dr Pyszora and Ms Hasson and are supported by them. They include conditions which will among other things, facilitate treatment; facilitate monitoring of movements and associations; restrain contact with complainants; allow for the review of electronic devices; restrict alcohol and substance use; allow for the imposition of a curfew; and prevent high‑risk situations.[105]

138 Ms Cashmore's second report provided updated information as to, among other things, accommodation options for Mr Atkins, and Mr Atkins' ongoing engagement with Mr Grove.[106] Ms Cashmore recorded that on 6 January 2022, Mr Atkins confirmed that he does not currently have any proposed employment and will initially be in receipt of Centrelink payments. Further, he had not incurred any negative behaviour notes or charges following adjournment of his hearing on 11 October 2021.

Disposition Is Mr Atkins a high risk serious offender?

139 I now turned to consider whether Mr Atkins is a high risk serious offender. Counsel for Mr Atkins did not make submissions opposing such a finding.[107] The evidence satisfies me to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community from an unacceptable risk that Mr Atkins will commit a serious offence. In particular, having regard to Mr Atkins' significant offending history, his outstanding treatment needs and the opinions of Dr Pyszora and Ms Hasson in regards to the high risk of Mr Atkins reoffending, the likelihood of Mr Atkins reoffending is such that the community could not adequately be protected unless a restriction order is imposed. To this end, the cogent and reliable evidence of Dr Pyszora and Ms Hasson weigh heavily in the balance.

140 Having decided that Mr Atkins is a high risk serious offender, I must make either a continuing detention order or a supervision order in relation to Mr Atkins.[108] I proceed on the basis that I must choose the order that is the least invasive to Mr Atkins' liberty while ensuring an adequate degree of protection of the community.

141 In considering whether a supervision order will adequately protect the community, it is necessary that I take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, Mr Atkins' rehabilitation, care and treatment, and to ensure adequate protection of complainants of offences committed by Mr Atkins.[109] I must also be satisfied on the balance of probabilities that Mr Atkins will substantially comply with the standard conditions of the order as required under s 29 of the HRSO Act. The onus is on Mr Atkins to satisfy the court that he will so comply.[110]

142 Counsel for Mr Atkins made submissions opposing the making of a continuing detention order.[111] The State acknowledged that in the event that the court is satisfied that Mr Atkins is a high risk serious offender, it is a matter for the court as to what order to subsequently make.[112] However, it was the State's submission that in all of the circumstances, subject to the court being satisfied that Mr Atkins will substantially comply with the standard conditions, a supervision order is appropriate.[113]

143 Mr Atkins has on several occasions failed to respond to supervision, and I have weighed the same in the balance. If released from custody, Mr Atkins would be subject to standard conditions, which include reporting obligations and electronic monitoring. He is very motivated to be released. Ms Hasson suggests that Mr Atkins has made a decision to modify some of his behaviours, and his engagement of Mr Grove has assisted him.[114] He has been incident free since July 2021.

144 Dr Pyszora commented that it was notable that Mr Atkins arranged to engage in therapy with Mr Grove before the State commenced this proceeding for a restriction order under the HRSO Act.[115] Further, Mr Atkins' attitude to the potential of a supervision order (describing such an order as being a 'supportive intervention'[116]) is again positive.

145 Weighing these matters in the balance, I am satisfied on the balance of probabilities that Mr Atkins will substantially comply with the standard conditions of the order.

146 I am satisfied that the risk of Mr Atkins reoffending may be adequately managed in the community with the imposition of a supervision order with conditions in terms set out at sch A to these reasons. A supervision order may contain any other terms that the court thinks appropriate to ensure adequate protection of the community; for the rehabilitation, care or treatment of the offender subject to the order; or to ensure adequate protection of victims of serious offences committed by the offender subject to the order.[117] The conditions set out at sch A are in the same terms as Ms Cashmore proposed in her report, which reflect the recommendations of Dr Pyszora and Ms Hasson and are supported by them. I refer to a number of the conditions below.

147 I am satisfied that suitable accommodation has been identified and is available. It may change only with the advance approval of a Community Corrections Officer.

148 The rehabilitation, care or treatment of Mr Atkins will be facilitated by a condition which provides for his engagement with services designed to address his offending behaviour.

149 Given his history of offending against intimate partners, monitoring of potential intimate relationships was recommended by Dr Riordan.[118] To mitigate risk, a condition will be imposed that Mr Atkins report at his next contact with his Community Corrections Officer the formation of any social association, domestic, romantic, sexual or otherwise intimate relationship by him with any person.

150 Mr Atkins will be subject to additional conditions intended to prevent high risk situations. Drug or alcohol use has been involved in almost all of Mr Atkins' previous offending and has been identified as a major risk factor for him for future violence.[119] It is Ms Hasson's opinion that regular urinalysis will assist with Mr Atkins maintaining abstinence from illicit substances. She observed that discouragement or a condition to abstain from alcohol use would also mitigate risk, as would specific conditions concerning the possession of weapons.[120]

151 Conditions will be imposed that are directed to the prohibition of alcohol and drug use and monitoring Mr Atkins' compliance. While it would appear appropriate for the testing regime to be a combination of scheduled and ad hoc testing, the regime is most appropriately determined by Mr Atkins' Community Corrections Officer and/or police from time to time. This allows for testing frequency to be adjusted as appropriate to Mr Atkins' needs and presentation. Mr Atkins will be prohibited from possessing firearms and other prescribed weapons.

152 Mr Atkins' problems with non-intimate relationships have been relevant to his risk of general violence as he has associated with anti-social peers and was senior member of an outlaw motorcycle gang.[121] This risk is intended to be mitigated by the imposition of conditions which prevent him from associating with anti-social peers, and by monitoring his location and telecommunication devices to ensure the same. I accept Ms Hasson's opinion that monitoring of Mr Atkins' connections and associations is essential to manage his risk of reoffending and also to obtain an accurate understanding of his psychosocial adjustment.[122]

153 At the hearing, counsel for Mr Atkins made submissions opposing the imposition of conditions that allowed for the imposition of a curfew or access to Mr Atkins' telecommunication devices. In summary, it was submitted that such conditions would potentially be counterproductive as they would deprive Mr Atkins of autonomy and sense of agency.[123]

154 During cross-examination on this issue, the experts supported the inclusion of curfew and review powers, the use of which might be adjusted over time to suit Mr Atkins' treatment needs and the risk posed to the community.[124] The expert evidence in regard to the inclusion of such considerations weighed heavily in favour of the same.

155 Evidence as to the necessary length of the order was given by Ms Hasson, who recommended that any supervision order be at least five years in duration.[125] As to Mr Atkins' ongoing treatment needs, Ms Hasson opined that he 'needs a therapeutic period of time, not any further education'.[126] Dr Pyszora agreed with Ms Hasson's opinion, and expressed her reasoning as follows:[127]

I believe the order should be for five years. I was in court hearing Ms Hasson's evidence, obviously, and I agree with her evidence that Mr Atkins will need a sufficient period to adopt new behaviours and really imbed changes that he will need to learn through psychological therapy and with this new life. Mr Atkins has previously managed to be offence free in the community for a reasonable period of time. I believe that he was in the community for nearly a year before his August 2011 offence. And as far as I can tell he didn't gain more convictions in that time. So he is able to sustain a reasonable period of time without deteriorating into serious violence. So he needs a substantial period to imbed those changes, really create those new behaviour changes. But as we heard from Ms Hasson, in terms of research and what we know about those who are successful for a number of years in the community, those five years at risk, his risk will have reduced substantially.

156 Although the court is not bound to accept these opinions, I am satisfied that five years is a suitable period. The supervision period needs to be long enough to meet Mr Atkins' treatment needs. While all of the conditions, including those which facilitate the imposition of a curfew and monitoring of electronic devices, are invasive to Mr Atkins' liberty, given the risk he presents to the community, they are appropriate and necessary. The use of the curfew restriction may also be modified during the term of the order.

157 For these reasons, I have determined that it is necessary to make a restriction order in relation to Mr Atkins to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence. Further, I have determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of five years. The conditions of the supervision order that will be made are set out in sch A to these reasons.

158 I will hear the parties as to the appropriate form of order, noting that Mr Atkins' sentence end date is 7 December 2022, with parole eligibility.

STANDARD CONDITIONS REQUIRED BY THE HIGH RISK SERIOUS OFFENDERS 2020 (WA)

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

2 Report to and receive visits from, a Community Corrections Officer as directed by the court.

3 Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens.

4 Be under the supervision of a Community Corrections Officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32).

5 Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.

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

7 Be subject to electronic monitoring under section 31.

8 Take up residence at [address suppressed] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.

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

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

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

12 Report to WA Police at times and at locations as directed by a CCO or WA Police.

13 If requested, permit Police Officers to enter and search your residence and/or vehicle 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.

14 Remain at your residence and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020 (WA).

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

16 Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates (including any private counselling you undertake) and, where appropriate, to disclose to them and discuss confidential information including your offence history.

THE STATE OF WESTERN AUSTRALIA -v- ATKINS [No 2] [2022] WASC 45 (15 February 2022)

At a glance

Court

Decision date

Before

Source

Judgment (315 paragraphs)

Legislation Cited (5)

Cases Cited (2)