THE STATE OF WESTERN AUSTRALIA -v- BLURTON [No 4] [2025] WASC 139 (23 April 2025)

(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.

1. Section 5 defines the term 'serious offence' as it is used in s 8. It does so predominantly by reference to offences specified in sch 1 div 1, and to offences specified in sch 1 div 2 that are committed in the circumstances indicated in div 2.
2. Section 48 sets out the court's power to make a restriction order. It 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.

1. Pursuant to s 48, if the court finds the offender is a high risk serious offender the court must make a continuing detention order or a supervision order. The ability to make a supervision order is subject to s 29, which provides that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions of the order.
2. Section 7(1) defines the phrase 'high risk serious offender' as follows:

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

1. The phrase 'high degree of probability' connotes a standard that is more than the civil standard of balance of probabilities, but less than the criminal standard of beyond reasonable doubt.[7] The State has the onus of satisfying the court to this standard that Mr Blurton is a high risk serious offender.[8]
2. In considering whether I am satisfied that Mr Blurton is a high risk serious offender, I must have regard to the matters that are set out at s 7(3). Section 7(3)(j) is a 'catch all' provision, which in effect provides that I must have regard to any other relevant matter in addition to those set out at s 3(a) - (i).
3. Section 7(4) sets out what I must disregard in making the relevant assessment. Specifically, I must disregard the possibility that Mr Blurton might temporarily be prevented from committing a serious offence by imprisonment or remand in custody, or the imposition of bail conditions.
4. The HRSO Act was considered by the High Court in Garlett v Western Australia,[9] which concerned a constitutional challenge to the Act insofar as its provisions apply to a person who has been convicted of the offence of robbery (s 392 of the Criminal Code (WA)).[10] Kiefel CJ, Keane and Steward JJ in a joint judgment, and Edelman and Gleeson JJ in separate judgments, held that the challenge failed. Gageler and Gordon JJ dissented in separate judgments.
5. The joint judgment of Kiefel CJ, Keane and Steward JJ, and the separate judgment of Edelman J, specifically addressed in detail the application of s 7 and s 48.
6. Kiefel CJ, Keane and Steward JJ observed that: [11]

... the evaluative task required of the Court under ss 7 and 48 of the HRSO Act is difficult. But its difficulty should not be exaggerated.

1. In respect of the concepts of 'unacceptable risk' and 'necessary to make a restriction order' contained within s 7, their Honours said:[12]

Whether or not a risk that an offender will commit a "serious offence" is "unacceptable" is a question which requires the Court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is "necessary" to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community. The Court is required to perform this evaluative exercise and come to its own determination as to whether to make a restriction order; it does not automatically follow from the inclusion of an offence in Sch 1 that a restriction order must be made.

(footnote omitted)

The inclusion of an offence ... in Sch 1 to the HRSO Act reflects a legislative judgment as to the kinds of offences which may be such as to cause harm of a kind from which the community needs protection different from that provided by the criminal law.

(emphasis added)

... it is always for the Court to determine whether there is an "unacceptable risk" that the offender will commit such an offence, having regard to the evidence as to the nature of the offending and the circumstances of the offender. Importantly, the evaluative exercise contemplated by s 7 of the HRSO Act is not an exercise involving the notional ordering in the abstract of the relative culpability of categories of offences. Rather, s 7 contemplates a practical evaluation concerned with the circumstances of the particular offending and the particular offender. While the requirement of an evaluation under s 7 depends upon the offender having been convicted of a "serious offence", ss 7 and 48 do not envisage the possibility that a restriction order might be made to prevent the commission of a serious offence, whether of the same kind or of another kind, unless the risk of further offending involves a real threat of harm to the community.

(footnote omitted)

1. Their Honours endorsed the approach of Derrick J in The State of Western Australia v Patrick [No 5] that the 'scheme of the [HRSO] Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community'.[15]
2. Their Honours also observed that the point made by Derrick J is similar to the point made in the following passage from the joint judgment in Minister for Home Affairs v Benbrika:[16]

It is difficult to envisage any circumstances in which a continuing detention order would be made to prevent the risk of the commission of a serious ... offence where that offence is of a kind that could not be seen to pose a real threat of harm to the community.

...

Correctly understood, a continuing detention order could not properly be made by a Court ... in a case where the only risk of offending identified by the authorities did not carry a threat of harm to members of the community that was sufficiently serious in the assessment of the Court as to make the risk of the commission of the offence "unacceptable" to that Court.

1. Edelman J interpreted the relevant provisions of the HRSO Act as encompassing five stages.
2. The first stage is that the State must identify the serious offence(s) which the offender is at risk of committing. His Honour explained that:[17]

Since the Court must assess the risk that the offender will commit "a serious offence", the application must specify the serious offence within Sch 1 to the HRSO Act which the State alleges there is an unacceptable risk that the offender will commit.

(footnote omitted)

1. The second stage is to assess the level of the risk (that is, the probability of the commission of the specified serious offence).[18] In relation to the concept of 'unacceptable', his Honour said that:[19]

The open-textured criterion of "unacceptable", similar to criteria such as "oppressive", "unreasonable", or "unjust", is so closely associated with notions of the "adequate" protection of the community and the "necessity" of the restriction order that it is best addressed at the third stage. The second stage can therefore be limited to an assessment of the level of risk that the offender will commit the specified serious offence.

(footnote omitted)

1. In respect of expert evidence directed to the assessment of risk, Edelman J said:[20]

Great caution is required in the treatment of this evidence because risk prediction for serious violence, including sexual violence, has been said to be "plagued by high false‑positive rates". Members of this Court have repeatedly emphasised the notorious difficulties in expert evidence in this area, including by reference to comments in literature that "[p]redictions of dangerousness have been shown to have only a one‑third to 50% success rate". Caution should be exercised in evaluating any expert evidence based on generalised psychological tools for assessment of recidivism. A fundamental premise of our criminal law is that individuals, with their vast variety of backgrounds and circumstances, should be treated based upon their own circumstances.

The expert evidence can be taken into account cautiously, but the level of the risk is ultimately a question for the judge, based upon all the evidence and all the factors in s 7(3).

(footnotes omitted)

1. In respect of the third stage, his Honour said:[21]

The requirements that the risk be "unacceptable" and that the restriction order be "necessary" to ensure "adequate" protection of the community direct attention to whether the identified risk to the community can be tolerated. That assessment must be made in light of the whole of the burden which would be placed upon the liberty of the offender by the making of a restriction order, including any standard supervision order conditions.

Section 7 thus requires balancing, on the one hand, the level of the risk identified at the second stage (that is, the probability of the commission of the specified serious offence) together with the magnitude of the harm associated with that risk with, on the other hand, the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed.

(footnotes omitted)

1. The fourth stage identified by his Honour was directed to the type of restriction order which should be made if the court finds the offender is a high risk serious offender. The fifth stage was directed to the review processes provided for by the HRSO Act where the offender is placed on a continuing detention order.[22]
2. Overall, I do not discern any material difference between the balancing exercise which Edelman J speaks of in the passage set out at [28] above and the approach explained in the joint judgment as I have set out at [19] - [21] above.
3. As these passages demonstrate, it is not sufficient that there is a risk that the offender will commit a serious offence. Rather, the risk to which s 7(1) and s 48 is directed is 'the risk of further offending [that] involves a real threat of harm to the community'.[23]
4. In respect of the type of order that should be made if the court is satisfied the offender is a high risk serious offender, the joint judgment in Garlett quoted with approval the following additional observations of Fiannaca J in The State of Western Australia v ACJ:[24]

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)

1. In The State of Western Australia v Williams [No 2] [2024] WASC 215 (Williams), I made the following observations regarding the application of the HRSO Act, having regard to the passages in Garlett set out above:[25]

Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the possible harm. The assessment of the nature and extent of the possible harm directs attention to the possible serious offences that might be committed and the harm they may cause. It also directs attention to the likelihood that the offender might commit such offences (that is, the likelihood the risk might eventuate). The extent to which deterrent factors have operated to reduce risk in the past feeds into the assessment of current and future risk, as does the offender's historical and current response to rehabilitation. These are all factors that inform the assessment of whether the risk is 'unacceptable'. They are by no means exhaustive. I am reluctant to attempt to provide greater definition, bearing in mind the caution expressed by the High Court in M v M against 'striving for a greater degree of definition than the subject is capable of yielding'.

If the risk is found to be 'unacceptable', the nature and extent of that unacceptable risk then informs the assessment of whether a restriction order is necessary to ensure adequate protection of the community. And, as Kiefel CJ, Keane and Steward JJ explained, the assessment of whether the order is necessary requires recognition that an offender's entitlement to be at liberty is not lightly to be denied.

(footnote omitted)

1. I adopt and apply these observations in this matter.

1. The nature, conditions and period of a supervision order are addressed by s 27 and s 30.
2. Section 27(1) provides that a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate. Section 27(2) provides that a supervision order has effect from a date, and for a period, stated in the order. The structure of s 27 provides a clear distinction between the conditions of a supervision order (s 27(1)), and the period of a supervision order (s 27(2)). That is, the period of the order is not a condition of it.
3. Section 30(2) sets out the standard conditions of a supervision order. Broadly speaking, the conditions in s 30(2)(a) to s 30(2)(e) and s 30(2)(g) impose reporting and notification obligations on the offender and subject the offender to intensive supervision. The standard condition provided by s 30(2)(f) is that the offender not commit a serious offence during the period of the order.
4. Section 30(3) provides the court with a discretion to impose a condition that requires the offender not to make any public comments relating to a victim of a serious offence committed by the offender. Section 30(4) regulates the exercise of that discretion.
5. Section 30(5) provides that a supervision order may contain any other terms that the court thinks appropriate: (a) to ensure adequate protection of the community; or (b) for the rehabilitation, care or treatment of the offender; or (c) to ensure adequate protection of victims of serious offences committed by the offender.
6. As I have explained, the court's ability to make a supervision order is conditional upon the court being satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order.[26]
7. The joint judgment in Garlett cited with approval the following observations of Fiannaca J in ACJ pertaining to whether an offender will substantially comply with the standard conditions imposed by s 30:[27]

The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro-social support available to him.

1. Thus, the assessment of whether the offender will substantially comply with the standard conditions takes account of the protective and supportive measures provided by the terms of the order.
2. It seems to be accepted in this court that the phrase 'will substantially comply with the standard conditions' means that the relevant offender will comply in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the offender committing a serious offence.[28] I will adopt that approach here.
3. In respect of the additional conditions that a court might impose over and above the standard conditions of a supervision order, Edelman J in Garlett observed:[29]

The requirement of appropriateness [in s 27(1)] imposes a duty on the Court to make only the additional supervision conditions required to ensure "adequate" protection of the community, while imposing the minimum intrusion on an offender's liberty.

(footnotes omitted)

1. In my view, this observation applies equally to the period of a supervision order. The period should reflect the minimum intrusion on an offender's liberty necessary to ensure adequate protection of the community.

1. Section 64(2) of the HRSO Act requires the State to make an application for the review of a detention order so as to ensure that reviews are carried out as soon as practicable after the end of the first year from when the detention order took effect, and thereafter, after the end of two years from the most recent review.
2. Section 68 of the HRSO Act provides:

(1) On a review under section 66 of an offender's detention -

(a) if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or

(b) if the court finds that the offender remains a high risk serious offender it must -

(i) affirm the continuing detention order; or

(ii) subject to section 29, rescind the continuing detention order and make a supervision order.

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

1. The terms of s 68(1)(b) and s 68(2) are substantially the same as s 48. The observations I have made earlier in this judgment regarding the application of s 48 apply with equal force to the application of s 68.[30]
2. The regular reviews put in place by s 64 and s 68 implicitly recognise that it is a significant matter to deprive a person of their liberty for something they might do in the future, as opposed to something they have done in the past.[31] The review process is directed to considering what protective measures under the HRSO Act are required having regard to the current circumstances. Those circumstances may be such that a continuing detention order does not remain a necessary protective measure under the HRSO Act. In this respect, it must be remembered that one of the objects of the HRSO Act is to provide for the care or treatment of an offender, the successful implementation of which will likely reduce an offender's risk to the community.
3. Justice Hall (as his Honour then was) observed in the Director of Public Prosecutions (WA) v Unwin [No 3] in respect of the then Dangerous Sexual Offenders Act 2006 (WA):[32]

The annual review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Annual reviews are not, therefore, merely a welfare check; they are an exercise of judicial power to confirm, vary or rescind a detention order. Continuing detention should not be ordered unless that is justified by the circumstances existing at the time of the review.

1. These observations apply with equal force to reviews conducted under the HRSO Act.

1. The State called Dr Petch, Dr Barbas and Ms Goode as witnesses.
2. Dr Petch is a consultant forensic psychiatrist, Dr Barbas is a senior clinical and forensic psychologist and Ms Goode is a Team Leader with the Community Offender Monitoring Unit (COMU).
3. Dr Petch and Dr Barbas prepared reports that were contained in Volume 2 of the Book of Materials. I directed that these reports form part of their evidence in chief. The State led oral evidence from each of them at the hearing, directed to the substantive matters raised by their reports and also addressing matters which had arisen since the reports were prepared.
4. Ms Goode had endorsed two community supervision assessment reports, which respectively appeared in Volume 2 and Volume 3 of the Book of Materials. I directed that these reports form part of her evidence in chief. The State led oral evidence from Ms Goode at the hearing, which was directed to the substantive matters raised in the community assessment reports and also addressing matters which had arisen since the reports were prepared.
5. Mr Blurton was present at the hearing via videolink from custody. He did not give or adduce any evidence.

1. It is useful at this point to summarise the key findings which Derrick J made in deciding to impose the continuing detention order. While I am not bound by those findings, they helpfully inform the task that is before me.
2. At the hearing before his Honour, Mr Blurton conceded, as he does now, that the available evidence was sufficient to establish that he was a high risk serious offender.[33]
3. In terms of Mr Blurton's risk of committing serious offences if not subject to a restriction order, Derrick J found that:[34]

On the basis of Dr Petch's evidence and Dr Bannister's evidence, and having regard to the offences that the respondent has in the past committed and my above stated finding in relation to his propensity to commit offences, I am satisfied of the following matters:

1. The respondent is at high (well above average) risk of committing further offences of violence that are serious offences as defined in the Act if he is not subject to a continuing detention order or a supervision order;
2. The serious offences that the respondent is at high risk of committing if he is not subject to a continuing detention order or a supervision order include grievous bodily harm contrary to s 297 of the Code, robbery (involving the use of actual violence) contrary to s 392 of the Code, armed robbery (involving the use of actual violence) contrary to s 392 of the Code, assault with intent to steal (involving the use of actual violence) contrary to s 393 of the Code and armed assault with intent to steal (involving the use of actual violence) contrary to s 393 of the Code; and
3. The actual violence that the respondent is at high risk of inflicting while committing an offence contrary to s 392 or s 393 of the Code includes violence capable of causing to the victim grievous bodily harm or other significant physical injury.
4. His Honour was not satisfied on the balance of probabilities that if Mr Blurton was released on a supervision order, that he would substantially comply with the standard conditions of the order specified in s 30(2)(d) and s 30(2)(f) of the HRSO Act.[35]
5. In coming to this finding, a significant factor that his Honour took into account was that Mr Blurton did not have suitable accommodation available in the community.[36]
6. Further, at the time of the hearing before his Honour, Mr Blurton had an NDIS support plan available to him if he was released into the community. His Honour noted that such a plan was not put in place to reduce Mr Blurton's risk of committing further offences, but rather was put in place to support Mr Blurton to live in the community with his intellectual disability. That being said, his Honour recognised that an incidental benefit of the plan was that it could potentially reduce Mr Blurton's risk of relapsing into alcohol and/or illicit drug use and consequently reduce the risk of him committing further serious offences.[37]
7. Dr Petch gave evidence at the hearing before his Honour. Dr Petch was of the opinion that the level of daily support to be provided to Mr Blurton under the NDIS plan was not sufficient to appropriately manage his risk of relapsing into alcohol and/or drug use and reoffending. His Honour considered that Dr Petch's opinion was deserving of some weight.[38]
8. Mr Blurton's circumstances have now significantly changed. His NDIS plan has significantly improved and includes accommodation and regular care and support. The State and COMU do not raise any concerns regarding the accommodation proposed under the NDIS plan for Mr Blurton.

1. Mr Blurton is now 47 years of age.
2. As is too often the case with offenders who come before the court on applications under the HRSO Act, Mr Blurton's personal history as a young child is tragic. His background is a stark reminder of the devastating consequences that can follow when a child is exposed to homelessness, abuse and drug use from a very early age. It is also a stark reminder of how important it is that sufficient resources are allocated to ensure young children from deprived and abusive backgrounds are provided with care, support and protection. Doing so affords to those children the basic human needs and compassion which are the core of a properly functioning society. It also protects the community by reducing the prospect that such children will commit offences later in life that cause significant harm to others.
3. I take the following matters in respect of Mr Blurton's personal history from Dr Petch's report contained in Volume 2 of the Book of Materials.
4. Mr Blurton is the third of 11 children to his mother.
5. Mr Blurton's parents separated when he was a child, at some point between when he was four and eight years of age. After his parents separated, he had a transient life, moving between relatives, but predominantly lived with his grandparents on his mother's side. His grandparents died suddenly when he was around nine or 10 years of age, after which he lived with a cousin and other relatives and then foster carers. He also spent time living on the streets. His accommodation was unstable, and he started offending to support himself.
6. Mr Blurton was reported to have many cognitive and learning challenges at school. On his own account, he was very difficult at school and was kicked out of several schools. He last attended school in year six when he was aged about 11. He has since learnt to read and write, but finds mathematics very difficult.
7. Mr Blurton started inhaling substances, mainly glue and petrol, from the young age of nine and continued doing so until he was about 15 years of age. He did so to "drown his sorrows".
8. Mr Blurton started drinking alcohol from about 11 years of age, and thereafter, started to use cannabis, methamphetamines and heroin. For a long period of time he preferred drinking alcohol, however this changed over time to a preference for methamphetamines and then heroin. He has used heroin and other drugs daily. Alcohol and drug use are a significant problem for him.
9. Mr Blurton suffered head injuries as a child. At the age of nine, he was hit by a car whilst riding his bicycle and spent several days in Princess Margaret Hospital. When he was 12, he was admitted again to Princess Margaret Hospital, sustaining a left temporal depress skull fracture after he was hit by a metal bar.
10. Mr Blurton began to offend at an early age. By 10 years of age, he had committed numerous property offences, bail offences, assaults and drug offences. This pattern has escalated ever since. I describe in more detail below the nature of his offending overall.
11. Dr Petch summarised Mr Blurton's childhood as being characterised by the absence of secure, nurturing and stable relationships, family violence, parental substance misuse, lack of stability, sexual, physical and emotional abuse, self-reliance, violent offending and antisocial behaviours modelled on family norms, severe head injuries and cognitive impacts, lack of formal education, poly-substance misuse and some self-harm behaviours.[39]
12. Mr Blurton is currently in a physically healthy state.
13. Mr Blurton has never worked in formal employment and does not have any trades or qualifications.
14. Mr Blurton has three children from different mothers. The children are now all adults.
15. Mr Blurton underwent a cognitive assessment in 2020 for the purposes of a then upcoming sentencing hearing. He was placed in the extremely low range of overall intellectual capacity where 99.9% of others perform higher. He scored in the same range for verbal comprehension and perceptual reasoning.
16. The State Administrative Tribunal made an order on 20 November 2024 appointing a limited administrator and guardian to Mr Blurton. The grounds for the making of those orders included that Mr Blurton was incapable of looking after his own health and safety, and in need of oversight, care or control in the interests of his own health and safety.[40]

1. Mr Blurton has committed five serious offences within the meaning of that phrase under the HRSO Act. They are:
   1. Two offences of aggravated armed robbery, committed on 8 January 2005 and 10 January 2005 respectively. Both are offences pursuant to s 393 of the Code. The first offence was committed as part of circumstances that constituted a separate offence of aggravated burglary, which is not a serious offence under the HRSO Act. For these three offences, Mr Blurton received a total effective sentence of 8 years.[41]
   2. One offence of grievous bodily harm, which is an offence pursuant to s 297 of the Code. This offence was committed on 23 December 2015. Mr Blurton was sentenced to a term of imprisonment of 2 years and 6 months for this offence.[42]
   3. One offence of aggravated robbery, being an offence pursuant to s 392 of the Code, and one offence of aggravated assault with intent to rob, being an offence pursuant to s 393 of the Code. These offences were both committed on 15 September 2019. Mr Blurton was sentenced on 2 July 2020 to a total effective sentence of 3 years and 2 months, which was the sentence he was serving when the State brought the application for a restriction order determined by Derrick J.[43]
2. As to the significant physical harm caused by these offences, the armed robbery offence committed on 10 January 2015 involved Mr Blurton striking a man with a brick to the back of his head while the man was withdrawing money from an ATM. The man was rendered unconscious and suffered a fractured skull and bleeding to the brain.[44] The offence of grievous bodily harm committed on 23 December 2015 involved Mr Blurton stabbing his brother-in-law with a steak knife to the left side of his body, resulting in a lacerated spleen and a punctured lung.[45] Of course, the serious offences will also have likely caused mental trauma to the victims of the offences.
3. Justice Derrick summarised Mr Blurton's offending as follows, which I adopt:[46]

[Mr Blurton] has a long record of offending dating back to his childhood. Much of his juvenile offending and all his adult offending has occurred in the context of entrenched problematic substance use. He has spent a large portion of his life in detention and prison.

[Mr Blurton] commenced committing offences when he was around 8 or 9 years old. He continued to offend throughout his childhood years. He was, as a child, convicted of among other things, numerous burglary, stealing, assault and breach of bail offences.

...

In addition to the five serious offences [Mr Blurton] has as an adult been convicted of a significant number of other offences including burglaries on dwellings (on occasions aggravated), aggravated unlawful assault, unlawful assault occasioning bodily harm, stealing, stealing motor vehicles, criminal damage, breaching bail, breaching an intensive supervision order by non-compliance and breaching a suspended imprisonment order.

[Mr Blurton] has been released on parole on seven occasions. He has only successfully completed two of his parole orders (25 October 1999 - 21 December 1999; 24 November 2001 - 25 March 2002). He has breached the remainder of his parole orders by non-compliance and/or reoffending. The last time he was released in the community on parole was during the period 12 November 2004 - 14 September 2005. He breached this order through continued use of illicit substances.

1. Before turning to the specific matters which I must consider under s 7 of the HRSO Act, it is useful at this point to explain the NDIS plan that is currently in place for Mr Blurton.
2. The key feature of the plan is Supported Independent Living. This includes eight hours per night of sleepover supports shared by Mr Blurton with two other participants, 12 hours per day of other supports also shared by Mr Blurton with two others, and four hours per day of other supports which may include support in the community.[47] In addition, the plan provides for assistance with social, economic and community participation and relatively modest amounts to assist with consumables and transport.[48]
3. The plan also provides for support directed to the following topics: behaviour support to help develop behavioural management strategies to reduce behaviours of concern, improved daily living skills, increased social and community participation, and coordination and psychosocial recovery coaches to assist in Mr Blurton's connection and engagement with service providers.[49]
4. Dr Petch in his oral evidence said he cannot see the NDIS plan being much better than it is and he thinks that with the degree of support around Mr Blurton, he will substantially comply with the standard conditions if released on a supervision order.[50]

1. I now turn to the matters to which I must have regard under s 7(3) of the HRSO Act.

Section 7(3)(a) - any report prepared under s 74 for the hearing of the application

1. Dr Petch's report dated 15 October 2024 was prepared pursuant to s 4 of the HRSO Act. Dr Petch interviewed Mr Blurton for the purposes of the report.
2. Dr Petch set out in detail Mr Blurton's account of the positive life he was living in prison and his pride in being regarded as the "House Uncle" who provides support to others.
3. Dr Petch said that his view of Mr Blurton had not changed significantly since he gave evidence on 24 October 2023, nor have the risks that he poses.[51]
4. Dr Petch diagnosed Mr Blurton with a substance misuse disorder, an emotionally unstable personality disorder and an antisocial personality disorder.
5. Dr Petch was also of the opinion that there is evidence that from childhood Mr Blurton has suffered from an intellectual disability. Dr Petch said that much of the criteria for moderate intellectual disability applies to Mr Blurton. Dr Petch said that there is not an area of Mr Blurton's life which has not been significantly impacted by this and its consequences have been most profound for him.[52]
6. In respect of the substance use disorder, Dr Petch was of the following opinion:[53]

In my view, his substance misuse disorder is very severe and enduring, although it is currently in remission by virtue of being in a controlled environment (prison) where these substances are not as readily available as in the community. He has reverted to use quickly whenever he has been released into the community. This was evident most recently when he acquired some drugs (cannabis and methamphetamines) during his brother's funeral during the course of 2023, even though he was still in custody and was escorted by officers.

1. In respect of Mr Blurton's emotionally unstable personality disorder, Dr Petch said Mr Blurton may have exhibited a sufficient number of symptoms of such a disorder to reach the threshold for a diagnosis to be made. He described these as including lengthy periods of low mood with mood instability, reactivity of mood, intense anger that he has found difficult to control (particularly when stressed or under the influence of intoxicating substances), stress-related paranoid defensive reactions, unstable relationship formation, marked impulsivity as evidenced by his offending and substance misuse particularly when young, recurrent self-mutilating behaviour and episodes of self-harm. Dr Petch said that some of these characteristics have reduced in severity over the past few years and are less prominent, but strong traits of the disorder appear to remain.[54]
2. In respect of Mr Blurton's antisocial personality disorder, Dr Petch based this diagnosis upon Mr Blurton's offending and that Mr Burton has demonstrated 'impulsive behaviour, a significant degree of aggression, assaults and fighting others, and a pattern of irresponsibility'.[55]
3. Dr Petch undertook an assessment of Mr Blurton's risk of future offending utilising a psychopathy checklist and a risk assessment tool.
4. Mr Blurton does not meet the criteria for a diagnosis for psychopathy. However, Dr Petch is of the opinion that this does not necessarily mean his risk of reoffending is low.[56]
5. The risk assessment tool used assesses the risk of violence. Dr Petch found there were a number of identified risk factors that were highly relevant for Mr Blurton. These included violence, other antisocial behaviour, substance misuse, major mental disorder, personality disorder, treatment or supervision response and Mr Blurton's previous stress in living in the community which may lead to substance misuse.[57] However, the assessment was conducted before the most recent NDIS plan for Mr Blurton was put in place. Accordingly, aspects of the assessment relating to Mr Blurton's potential living situation if released into the community, and the professional and other support available, do not take account of the updated plan.
6. Dr Petch said that Mr Blurton's intellectual disability is the most serious barrier preventing his progress.[58] A consistent theme in Dr Petch's report and in his oral evidence was that the courses and programs in which Mr Blurton has participated are too complicated for him to understand and retain.
7. Needless to say, it is important that the courses made available to Mr Blurton are structured to accommodate his intellectual capacity. Otherwise, Mr Blurton will not make rehabilitative gains, and the courses are likely to frustrate him and cause unwanted stress.
8. Dr Petch was also of the opinion that:[59]

The effect of [Mr Blurton's] intellectual disability is further compounded by his substance use disorders and personality disorders, each of which on their own are significant factors that increase his risk of future offending, but which when combined increase those risks exponentially.

1. Dr Petch postulated in his report what he considered to be an ideal scenario for Mr Blurton. Dr Petch said that:[60]

This highly desirable outcome will require much coordinated and prolonged effort. It can be seen that for this to be achieved many things would need to be in place. Agencies will have to work effectively together, and funding will need to be in place. There will need to be a broad range of therapists all working with him. He will need to feel supported, safe and engaged. All this should be possible . It is starting to come together. Some further funding from NDIS for [Supported Independent Living] would be ideal, but it has not hitherto been achieved. In my view this is the only scenario that would possibly adequately protect the community.

1. Dr Petch said in the conclusion to his report that:[61]

The court must have regard to the propensity of Mr Blurton to commit serious offences in the future (these may or may not be violent). The propensity of Mr Blurton to commit serious offending is still underpinned by his intellectual disability (permanent), his substance misuse disorders (currently in remission in a contained environment), and his personality disorders. He has a well-established tendency to steal for gain, either to eat or to obtain cash or to steal as a means of obtaining cash to fund his habit. In the course of these endeavours, he has on occasions resorted to violence, some of which has become serious. The propensity is largely driven by intoxication, and if that can be managed his overall risk is likely to be moderated.

The risk of him relapsing into substance misuse remains dependent on several factors. These include the level of support he has, how he structures his days, the stability of his mood, how he copes with difficult and new situations, the status of his relationship, the stability of his accommodation, the proximity of substance misusing peers and relations. If these all remain optimal, the risks of relapsing into substance misuse is reduced. If they are unstable, the risks of substance misuse will escalate.

1. Dr Petch was of the opinion that as matters stood at the time of his report, Mr Blurton posed a high risk of committing future serious violence, and this risk was likely to increase in certain situations, particularly if Mr Blurton were inadequately supervised, supported or treated. Further, Dr Petch was of the opinion that even if the supports that he recommended were in place on an ongoing basis, the risk to the community from Mr Blurton will remain significant. He states that this is because Mr Blurton lacks the capacity to moderate his behaviour and his substance misuse in the community, even if a full package of support were provided.[62]
2. As I have already explained, since Dr Petch prepared his report, there have been significant improvements to the NDIS package.
3. Dr Petch's oral evidence was principally directed to the impact of the updated NDIS plan.
4. Dr Petch considered that if Mr Blurton was released on a supervision order under the current arrangements, that there remained a present and significant risk of him committing a serious offence, and that some risk would likely continue indefinitely.[63] However, he considered that the level of support proposed would help him adhere to conditions, partly because it would include monitoring, making it less likely that he is left to his own devices and exposed to risk.[64]
5. Dr Petch described Mr Blurton as significantly institutionalised and used to having a high level of wraparound support. Dr Petch explained that without that level of support, his coping mechanisms were likely to deteriorate, and his stress levels and consequent drive to use substances are likely to increase should that occur.[65]
6. Dr Petch considered that the package of care proposed was a very significant step forward in containing the risk, and that the current housing proposal involving a three to one carer ratio was quite close to what Mr Blurton needs, and possibly the State's best opportunity to rehabilitate him.[66]
7. He considered that Mr Blurton may not need such intense support in the future but would certainly need it while he transitions into the community, as he is likely to find that transition, and many day-to-day situations quite challenging.[67] He considered that support in identifying stressful situations in advance would assist Mr Blurton.[68] He considered that with the support proposed, Mr Blurton was likely to substantially comply with the standard conditions.[69]
8. Dr Petch considered that a housemate using substances was a risk to Mr Blurton, and that it would be beneficial if COMU had some say in who the housemates were.[70] He considered that if the accommodation provider liaised with COMU regarding potential housemates to assist with risk management, this would address that concern.[71]
9. He explained that the drive for Mr Blurton to use drugs was still present and significant, and he had relapsed quickly in the past when offered drugs. He explained that it is difficult for Mr Blurton to retain in the forefront of his mind the totality of his circumstances and the possible consequences for breach.[72] Dr Petch explained that Mr Blurton displays a fairly limited understanding of the nexus between using alcohol and drugs and consequences, but he may have some insight.[73] This necessitates additional support, as orders and conditions are not sufficient to stop Mr Blurton using should the opportunity arise.[74]
10. Dr Petch supported the inclusion of conditions in a supervision order requiring Mr Blurton to abstain from alcohol, avoid licensed premises, and undergo urinalysis for alcohol and drugs.[75] He considered that conditions requiring Mr Blurton to report associations with drug users or drinkers should only apply if he knows about that person's substance use.[76]
11. Dr Petch explained that in his view, some conditions, such as psychiatrist or psychologist referrals, treatment from Next Step, and a prevention program, should be left to the discretion of a CCO, or Mr Blurton, rather than implemented as requirements.[77] Similarly, he considered that disclosure of Mr Blurton's history, or his supervision order, to housemates was best left to the CCO's discretion. [78]
12. Dr Petch considered that if a supervision order were made, its duration should be more than two years and up to five years. He considered Mr Blurton's conditions, including psychiatric conditions, and intellectual functioning to be static.[79] He considered that visual memory aids would assist Mr Blurton in both understanding and remembering the conditions.[80]
13. Dr Petch accepted that transience and a lack of stability were among the precursors to Mr Blurton's offending, which were now being addressed. Also, Dr Petch agreed that to his knowledge, none of his recommendations for addressing Mr Blurton's unmet treatment needs had been implemented during Mr Blurton's continuing detention order.

Section 7(3)(b) - medical, psychiatric, psychological or other assessments relating to Mr Blurton

1. Dr Barbas prepared a report in respect of Mr Blurton which is dated 8 October 2024.
2. Dr Barbas referred to a comprehensive behaviour support plan dated 30 September 2024 prepared by Ms Bhargava (a behaviour support worker), which highlighted Mr Blurton's risks of harm including physical aggression, wandering, and verbal aggression. By reference to that plan, Dr Barbas stated that:[81]

His Comprehensive Behaviour Support Plan recommended proactive strategies including using visual memory aids, assistance by a support worker, creating consistent schedules and routines that include activities of daily living, engaging in culturally sensitive activities in the community, providing supportive interactions, engaging Mr Blurton in formulating his future goals, and guided assistance with the development of emotion regulation.

1. Dr Barbas spoke of Mr Blurton's positive account of his time in prison and again of his role as the "House Uncle". She said that Mr Blurton reported that he engaged in soccer and basketball, umpired games, ate well, and liked to read papers and books.[82]
2. Dr Barbas noted that Ms Bhargava had expressed the view that Mr Blurton demonstrates good insight into triggers and warning signs of his offending. Further, Ms Bhargava reported that Mr Blurton had benefited greatly from progression to the self-care environment within the prison and appeared to have been developing important independent living skills such as cooking and cleaning.[83]
3. Dr Barbas also noted that Mr Blurton had completed three Alternatives to Violence Project programmes. She said that in her interview with him, he stated he is "an elder now" and that all the younger boys come to him for support and the program has been beneficial in guiding his support of others.[84]
4. Mr Blurton expressed to Dr Barbas that his aggression has gotten him nowhere and that he has changed his ways. He also explained that his prior offending behaviour occurred in the context of survival and acquiring basic physical needs like food, though he acknowledged that his behaviour was wrong. Mr Blurton expressed to Dr Barbas that he felt being placed on an HRSO order was an injustice. He also described to her how he uses positive behaviours such as cooking, cleaning, playing soccer/football, umpiring and keeping busy with socialising as forms of coping with stress.[85]
5. Dr Barbas noted that Mr Blurton expressed awareness of strategies he could implement in the community to protect against a return to offending behaviour. These included budgeting to ensure he has sufficient funds to cover his basic needs in the community, rationing his food to ensure it lasts him through each week, and seeking support from friends and family members to assist when needed.[86]
6. In terms of treatment programs, Dr Barbas expressed the opinion that it is highly likely Mr Blurton lacks the cognitive capacity to comprehend, attend to, and recall program content. She also said it is possible that he feels significant shame, anxiety, and distress as a result. She however pointed out that Mr Blurton appears to have profited greatly from the social interaction afforded to him by the programs. She therefore concluded that he appears to have made program gains on an interpersonal/experiential level.[87]
7. Dr Barbas considered that Mr Blurton has a limited understanding of the risk factors, warning signs, high risk situations, and risk management strategies associated with his offending behaviour. However, Dr Barbas was also of the opinion that Mr Blurton demonstrated a sound understanding of what would be required of him in the event that he has progressed to a supervision order and that he appears to have planned accordingly to the best of his ability.[88]
8. In conclusion, Dr Barbas considered that if Mr Blurton remains in prison, it is unlikely Mr Blurton would benefit by engaging in additional group programs. She also thought it was unlikely that individual psychological intervention would assist with his rehabilitation. Rather, Dr Barbas considered that if Mr Blurton remains in prison, he 'should be encouraged to engage in vocational, volunteer and peer support adjacent activities that would provide him with social, experiential and capacity building benefits as these are deemed more meaningful for reducing his risk of re-offending'.[89]
9. Further, if Mr Blurton were placed on a supervision order, Dr Barbas was of the opinion that:[90]

... he will benefit from release plans that focus heavily on provision of extensive supports, structure, monitoring and supervision within the community to reduce his likelihood of recidivism. Specifically, Mr Blurton is likely to require ongoing through-care and community organisational input/supervision/support to assist in reducing his risk of re-offending.

1. Dr Barbas' oral evidence was principally directed to the impact of the updated NDIS plan.
2. Dr Barbas gave evidence that she thought it was unlikely that, if Mr Blurton were released on a supervision order with the current proposed supports, he would have 'the capacity to change, in terms of his capacity to comprehend, attend and recall program content'.[91] However, she said she thought Mr Blurton's current NDIS package, with the Supported Independent Living and the proposed accommodation, adequately addressed the concerns she raised in her report about him being released on a supervision order.[92]
3. Dr Barbas agreed that the changes to the NDIS package with the supported accommodation represented a significant change from the time at which she wrote her report, and the package now addressed her recommendations.[93]
4. Dr Barbas agreed that Mr Blurton had expressed awareness of his difficulties regulating his anger and that his anger and aggressive behaviour underly his incarceration now and have done so in the past. She said he had basic goals such as buying a TV and a bed. He expressed plans to improve his relationships with his family, particularly with his daughter, and said he was hoping to gain employment in the area of peer support, similar to what he is currently doing in custody.[94]
5. Dr Barbas said Mr Blurton had expressed an intention to remain abstinent from drugs and avoid antisocial peers.[95] Dr Barbas said Mr Blurton has some rudimentary insight into his risk factors, primarily substance use and antisocial peers, and motivation to live the remainder of his life offence-free.[96]
6. She said that at the time of writing her report, her understanding of Mr Blurton's prison behaviour was consistent with him wanting to 'do the right thing'.[97]
7. Based on Mr Blurton's engagement in, she believed, nine programs previously, Dr Barbas was of the opinion that he had 'demonstrated limited new learning and therefore his outstanding criminogenic treatment needs have remained the same for some time now'.[98] She acknowledged that Mr Blurton's behavioural support worker was of the opinion that he can demonstrate new learning, but Dr Barbas said she did not know that she 'could comment on his ability to do so, based on the large volume of evidence that indicates he may have some difficulty'.[99]
8. She said Mr Blurton would require significant repetition and perhaps visual supports to gain a sound understanding of what is required of him by the supervision order.[100]

Community supervision assessment (CSA) report dated 28 October 2024 (the first COMU report)

1. The first COMU report was endorsed by Ms Bennetts, a senior community corrections officer, Ms Goode, a team leader, and Ms Turner, the acting director of COMU.[101]
2. The first COMU report addressed matters pertaining to Mr Blurton's behaviour in custody, the NDIS funding available to him, and the appointment of a limited administrator and guardian to Mr Blurton.
3. In respect of Mr Blurton's behaviour in custody, the first COMU report stated that Mr Blurton engages positively with prison officers and he keeps his area maintained to an acceptable standard. The report described how Mr Blurton was housed in semi-self-care accommodation known as November Block where he had been since 20 March 2024. The nature of that arrangement is such that it encouraged him to implement practices of independence. Further, Mr Blurton was at that time employed in the prison as a cultural support officer.
4. Unfortunately, following a urinalysis test on 9 October 2024, Mr Blurton returned a positive result to Buprenorphine. As a result, he was moved from November Block and is now housed in a regular unit in the prison.[102]
5. The first COMU report also referred to the comprehensive behaviour support plan completed by Ms Bhargava. The first COMU report stated that it was Ms Bhargava's opinion that Mr Blurton would need daily assistance to help him participate in the community in socially acceptable ways. [103]
6. The first COMU report set out a number of proposed supervision order conditions. I appreciate the thought and consideration that has gone into the preparation of those conditions. However, as I have previously stated, it is important that such conditions are expressed in as straightforward a way as possible, to ensure that the relevant offender can readily understand and recall the obligations imposed on them. A person with Mr Blurton's reduced cognitive capacity and limited education is likely to have particular difficulty understanding such conditions. And, their complexity may well frustrate him. Since the first COMU report, a revised set of conditions has been put forward which uses plain language where possible and is, in my respectful view, preferable.

Updated community supervision assessment (updated COMU report) dated 14 March 2025

1. The updated COMU report was co-endorsed by Ms Bennetts, Ms Goode and Ms Lloyd, who is an acting director of COMU.[104]
2. The updated COMU report addressed the new NDIS package, including the accommodation options. The proposed accommodation for Mr Blurton has been assessed as viable for electronic monitoring. Mr Blurton will be the first person to occupy it.[105]
3. The updated COMU report noted that Mr Blurton remained employed as a House Uncle in the prison.[106]
4. The updated COMU report also requested that if Mr Blurton were to be released, that there be 28 working days between the court's decision and Mr Blurton's date of release. This is to enable, amongst other matters, the conversion of core documents into infographic format. As I understand it, that process involves converting documents such as the supervision order into pictorial format, to assist Mr Blurton to comprehend those conditions. That is a sensible suggestion.
5. In oral evidence, Ms Goode explained how the care under the NDIS plan would be provided. In terms of how closely Mr Blurton will be supported, Ms Goode explained that the carer would be present in the residential setting 24 hours per day, but not specifically with Mr Blurton. That carer 'could be on a sleep shift' and Mr Blurton could 'be within any distance'.[107] She said that Mr Blurton is not bound to stay home, but he has the opportunity to seek help from the carer when he is home.[108]
6. Ms Goode said that if Mr Blurton were to be placed on a supervision order, the multidisciplinary consultation between NDIS and COMU would continue in a similar fashion to how it has under the continuing detention order. Initially this would mean meeting on a weekly basis 'to confirm practical issues and ongoing roles and responsibilities'.[109]
7. Ms Goode said that if Mr Blurton were placed on a supervision order, he could refer himself or be referred by COMU to engage with Next Step.[110] As I understand it, the 'Next Step' service is a drug and alcohol treatment service.
8. Ms Goode was of the opinion that without a condition allowing COMU or police to inspect Mr Blurton's mobile phone or communication device, there would be no way for COMU to check the veracity of what Mr Blurton told COMU.[111] With respect to Ms Goode, I think that does somewhat overstate the position. The veracity of what Mr Blurton tells COMU will be capable of being verified by reference to the GPS monitoring and by speaking to the carers at the home. However, that being said, I agree with Ms Goode that there is benefit in COMU being able to access any electronic communication device that Mr Blurton has. This will assist COMU to verify who he has been associating with, and check whether or not such persons are having a negative influence on him, including by way of introducing him back into a social circle where drugs are used.
9. Ms Goode reported Mr Blurton was 'extremely open' to exploring engagement with Next Step because he wants to reduce his risk of returning to substance. She said, 'his last use of illicit substances, methylamphetamine, was not something he wants to repeat ever again because of the effect on his mind and his body'.[112]

Section 7(3)(c) - information indicating whether Mr Blurton has a propensity to commit serious offences in the future

1. Justice Derrick found that Mr Blurton had a propensity, while under the influence of alcohol and/or illicit drugs, to commit violent offences involving the infliction of grievous bodily harm, and also robbery offences that involve the infliction of significant violence against vulnerable individuals to facilitate the theft of their property, such violence including injuries that amounted to grievous bodily harm. His Honour noted that the definition of 'grievous bodily harm' in the Code is that of bodily injury of such a nature as to endanger life, or be likely to endanger life, or to cause, or be likely to cause, a permanent injury to health.[113] This assessment considers the nature of the bodily injury itself, without the intervention of medical treatment.
2. There is a difference between propensity as it usually applies in a criminal prosecution, and propensity as it applies under the HRSO Act. Propensity in a criminal prosecution is directed to whether a person had a particular propensity at the time of the alleged offending. Thus, the assessment of whether the person had the propensity is viewed in the context of an act that is alleged to have occurred. Under the HRSO Act, the 'propensity' is directed to something which is yet to happen. It seems to me that this task has to be approached by assessing whether a person has a current propensity, and then endeavouring to predict the extent to which that propensity may change over time. It is not necessary in this case to say anything more on that topic.
3. I am satisfied that Mr Blurton has a propensity to commit serious offences in the future as outlined by Derrick J. However, I consider the extent of that propensity would be reduced if Mr Blurton were to be released into the community under the proposed NDIS plan. In this respect, a feature of Mr Blurton's prior offending is a tendency to steal for the purposes of his day-to-day living. The NDIS plan now provides Mr Blurton with a level of stability in the community that he has never previously had, and thus reduces the prospect that he will commit offences out of a need to 'scrape by' in his day-to-day life. Another feature of Mr Blurton's offending, and his drug use, was his despair as to his future prospects. The NDIS plan provides a positive framework for Mr Blurton and makes it less likely he will descend into despair.

Section 7(3)(d) - whether there is any pattern of offending behaviour

1. Justice Derrick observed the following pattern in respect of much of Mr Blurton's offending:[114]

The pattern is that [Mr Blurton] while under the influence of alcohol and/or illicit drugs commits significant acts of impulsive violence against vulnerable individuals, often to facilitate the theft of their property.

1. I agree with and adopt that characterisation of Mr Blurton's offending.

Section 7(3)(e) and (f) - efforts at rehabilitation and effect thereof

1. Mr Blurton has participated in and completed a number of programs while in prison, namely the Skills Training for Aggression Control in 1997 and 1999, the Substance Use Resource Unit Program in 1999, the Managing Anger and Substance Use Program in 2003, the Cognitive Skills Program in 2004, the Think First Program in 2015 and the Violent Offender Treatment Program in 2019.[115]
2. Mr Blurton has had minimal gains from these programs. However, to a large extent, this has been due to the programs not being suitable for someone with his cognitive restrictions.[116]
3. Mr Blurton was referred to the Forensic Psychological Intervention Team (FPIT). On 20 February 2024 that referral was declined on the basis that Mr Blurton was considered unlikely to make further treatment gains. However, it was suggested that FPIT could provide a consultative role with the NDIS support team as required.[117]

Section 7(3)(g) - Mr Blurton's antecedents and criminal record

1. I have already addressed Mr Blurton's personal circumstances and his criminal record earlier in these reasons.

Section 7(3)(h) & (i) - the risk that, if Mr Blurton were not subject to a restriction order, he would commit a serious offence, and the need to protect members of the community from that risk

1. The inquiry here is directed to the risk that Mr Blurton would commit a serious offence if he were not subject to a continuing detention order or a supervision order. Thus, the impact of a supervision order on an offender is not taken into account in assessing the question of risk. That being said, the assessment does not ignore any other protective measures that will be in place if a person is released into the community. Thus, in a case such as this, the assessment takes account of the substantial NDIS plan.
2. The NDIS plan puts in place a significant number of protective barriers in respect of Mr Blurton. As I have set out, Dr Petch considered that the package of care proposed was a very significant step forward in containing Mr Blurton's risk.
3. It may well be the case that over time, Mr Blurton reaches a stage where the NDIS plan by itself is adequate to sufficiently reduce the risk. However, that is not the case now.
4. Mr Blurton has a long history of committing criminal offences. Since his very early years, Mr Blurton has not had a sustained period of living positively in the community. I suspect, in part, that is because the programs he has undertaken do not sufficiently accommodate his cognitive difficulties and limited education.
5. I note that Derrick J considered that Mr Blurton was at a well above average risk of committing further offences of violence that are serious offences as defined in the HRSO Act if he was not subject to a restriction order.[118] Having regard to the NDIS plan, I am not satisfied that the risk remains a well above average risk. However, I do consider Mr Blurton presents with an above average risk of committing further such offences.
6. I agree with his Honour's characterisation of such offences as including grievous bodily harm (s 297 of the Code), robbery and armed robbery involving the use of actual violence (s 392 of the Code), assault and armed assault with intent to steal involving the use of actual violence (s 393 of the Code). The relevant violence includes violence that is capable of causing grievous bodily harm, or other significant physical injury to the victim.[119]
7. There is an obvious need to protect the community from the risks that I have just identified. As Derrick J observed, the 'type of serious offences that [Mr Blurton] is at risk of committing are obviously of such a nature as to likely cause significant physical, and also psychological, harm to victims'.[120]

1. The availability of the NDIS plan is an important matter to take into account, as is the fact that it cannot be assumed the NDIS plan will remain in place for a significant period of time. However, I am satisfied it will remain in place for a sufficient period of time to afford Mr Blurton a substantial opportunity to integrate into the community in a positive way.
2. The availability of accommodation is also an important matter. I do not regard the assessment of accommodation as necessarily being a binary assessment of whether it is suitable or not suitable. Rather, as I said in The State of Western Australia v Paraha:[121]

... accommodation is predominantly relevant to risk assessment. The overall nature of the available accommodation may reduce the risk of reoffending, it may increase the risk of reoffending, or it may be neutral. Accommodation also has features that may not necessarily point in the same direction regarding risk, for example location, type, other occupants, cost and available support services.

The potential impact that the proposed accommodation has on risk is taken into account in the overall assessment of whether a person is a high risk serious offender within the meaning of s 7, and if so, the type of restriction order which ought be made.

1. Here, at present, the proposed accommodation is overwhelmingly a positive factor in terms of reducing Mr Blurton's risk of reoffending. The only potential negative is the possibility that people may come to live at the home who are active drug users, or are likely to bring drug users to the home. However, the accommodation is provided under the NDIS arrangements and as I understand it, the accommodation provider will consult with COMU regarding the characteristics of the other people who might live at the home.
2. Subsequent to the hearing, I was provided with what is called a 'spatial desktop analysis'. It sets out matters pertaining to the demographic within 1 kilometre of the proposed address. As is often the case, the information provided in the analysis is of such generality that it is of little assistance. The State quite rightly did not seek to make any submissions in respect of the analysis.

Assessment of whether Mr Blurton is a high risk serious offender

1. I am satisfied that the evidence overall is acceptable and cogent evidence upon which I can make the requisite assessment. The evidence sufficiently and cogently addresses the mandatory topics set out in s 7(3).
2. The starting point in the requisite analysis is to assess the type of serious offences Mr Blurton is at risk of committing. I have identified those offences at [165] - [166] above. The feature of that offending of most concern is that it causes grievous bodily harm, or other significant physical injury, to the victim. Of course, the consequences of any such future offences are not limited to the physical harm that might be caused. Significant psychological harm might also be caused.
3. Accordingly, the nature and extent of the harm that might eventuate if Mr Blurton offends in the way I have described is significant.
4. Further, there is at least an above average risk that Mr Blurton will commit serious offences where significant physical and/or psychological harm is caused. In that respect, Mr Blurton has not been deterred by the many terms of imprisonment to which he has been sentenced, nor has he achieved any substantial rehabilitative gains as an adult. As Dr Petch observed, his risk of committing a serious offence remains present and significant, and some risk will likely remain indefinitely.[122]
5. Ultimately, the combined effect of the above-average likelihood that Mr Blurton will commit a serious offence of the type I have described, and the significant nature and extent of the harm that might eventuate from the commission of such offences, is such that I am satisfied there is presently an unacceptable risk that Mr Blurton will commit a serious offence. I am satisfied of this to a high degree of probability.
6. I must now consider whether it is necessary to make a restriction order to ensure the adequate protection of the community against that unacceptable risk. The nature of the unacceptable risk informs the assessment of "necessity". In making the requisite assessment, I recognise Mr Blurton's entitlement to be at liberty, an entitlement not lightly to be denied.
7. Mr Blurton has not been able to achieve substantial rehabilitation and has not been deterred by the many terms of imprisonment to which he has been sentenced. Having regard to these matters, and the nature of the unacceptable risk, I am satisfied to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community.
8. For these reasons, I am satisfied to a high degree of probability that Mr Blurton remains a high risk serious offender under the HRSO Act.

1. I now need to decide whether I should affirm the continuing detention order, or rescind the continuing detention order and place Mr Blurton on a supervision order.
2. There is not a presumption in favour of making a continuing detention order. That being said, s 68(2) of the HRSO Act provides that the paramount consideration in the choice of order is the need to ensure adequate protection of the community. Consistently with s 48, I am satisfied that the word 'adequate' in s 68(2) refers to the minimum intrusion on an offender's liberty that is necessary to provide the requisite protection.
3. Further, a precondition to the making of a supervision order is that I am satisfied on the balance of probabilities that Mr Blurton will substantially comply with its standard conditions. Mr Blurton bears the onus of proving he will.
4. The standard conditions of any supervision order subject offenders, among other matters, to electronic monitoring and any curfew imposed by a community corrections officer.
5. Broadly speaking, the additional conditions of the proposed supervision order:

(a) regulate where Mr Blurton will live;

(b) require Mr Blurton to attend appointments and programs in relation to his wellbeing;

(c) require Mr Blurton to comply with program requirements, and take medication, where reasonably directed to do so by a community corrections officer;

(d) allow any person providing treatment to Mr Blurton to inform the Department of Justice about that treatment and their opinion relating to his risk of re-offending;

(e) permit police officers to search Mr Blurton, his home and vehicle;

(f) permit police officers and community corrections officers to search any electronic device that Mr Blurton has for the purposes of determining who he has been communicating with;

(g) impose a curfew;

(h) preclude him from having contact with the victims of his violent offending;

(i) preclude him from possessing any prohibited drugs; and

(j) are aimed at preventing Mr Blurton from being in situations that significantly increase his risk of reoffending.

1. There is also the NDIS plan. While that plan was not put in place for the purpose of reducing Mr Blurton's risk of committing further offences, it will likely have that effect. The NDIS plan provides Mr Blurton with stability, constant guidance and positive support in his day-to-day life. This addresses the instability, and the prevalence of negative influences, which have been features of Mr Blurton's offending behaviour and his drug use. The NDIS plan provides Mr Blurton, in all likelihood for the first time in his life, with a significant opportunity to live in the community without committing offences. It provides Mr Blurton with the hope for a positive future, which I assess in his case is a powerful motivating factor, especially when contrasted with the despair that has been an enduring feature of his life in the community so far.
2. I am satisfied that the proposed supervision order, in conjunction with the NDIS plan, ensures the adequate protection of the community and does so in a manner that involves the minimum intrusion on Mr Blurton's liberty. The monitoring put in place by the proposed supervision order, combined with the stability and support provided by the NDIS plan, are important factors in support of this view.
3. I am also satisfied that Mr Blurton will substantially comply with the standard conditions of a supervision order. The protective features put in place by a supervision order, the support it entails, and the stability and support provided by the NDIS plan, are important factors in support of this view.

1. The period of the supervision order should reflect the minimum intrusion necessary to ensure adequate protection of the community.
2. It may be the case that Mr Blurton will need to be the subject of a supervision order for a considerable period of time. However, that does not mean that the conditions imposed now will always remain apposite.
3. Dr Petch in his oral evidence was of the view that the conditions of a supervision order will need to be reviewed over time. This enables adjustment of the conditions to reflect Mr Blurton's progress under the supervision order, and also to take account of any behavioural difficulties that have arisen. Thus, a supervision order put in place now may no longer be suitable in the future. Also, the conditions may need to be adjusted in the future to address any changes to the NDIS plan.
4. Dr Petch suggested the period of a supervision order should be between 2 and 5 years.
5. As I explained in Williams, the HRSO Act does not provide for regular reviews of supervision orders and does not provide a mechanism by which the period of a supervision order can be shortened.[123]
6. The only means by which Mr Blurton can seek a 'review' of the conditions of a supervision order is by making an application to amend under s 49. However, the mechanisms for obtaining reports as provided for by pt 7 of the HRSO Act do not apply to an application to amend. Section 49 also permits the CEO of the department administering the HRSO Act (with the Attorney General's consent) to make an application to amend the conditions, but the CEO is not obliged to do so. Section 49 does not permit the State to make an application to amend. Given these matters, there can be no certainty that an application to amend so as to facilitate a 'review' of the conditions will be brought.[124]
7. On the other hand, the State has the ability under the HRSO Act to apply for a further supervision order to commence at the expiry of the supervision order that I impose. Thus, if the court considers that a further supervision order should be made, there will be no gap between the expiry of the old order and the start of the new one. Further, the State's ability to apply for a new order is not conditional upon Mr Blurton committing any further serious offence.[125]
8. Having regard to these matters, I assess the appropriate period of the supervision order is 3 years and 6 months.
9. The supervision order will commence on 4 June 2025, being 28 working days from the delivery of these reasons.

1. I am satisfied to the requisite standard of the following matters:
   1. Mr Blurton remains a high risk serious offender.
   2. The proposed supervision order provides for the adequate protection of the community in all of the circumstances.
   3. Mr Blurton will substantially comply with the standard conditions of a supervision order.
   4. The proposed supervision order should commence on 4 June 2025.
2. I therefore will rescind the continuing detention order with effect from 4 June 2025 and impose a supervision order immediately upon that rescission in terms that will be attached to the published version of these reasons.

IN THE MATTER of the High Risk Serious Offenders Act 2020

_________________________________________________________________________

SUPERVISION ORDER MADE BY THE HONOURABLE JUSTICE LEMONIS

_________________________________________________________________________

Pursuant to section 68(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 3 years and 6 months years from 4 June 2025, not being a date earlier than 21 days from the date this Order is made, on the following conditions:

1. Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre: 30 Moore Street, East Perth Western Australia (WA) 6004 within 48 hours of the Order being issued and tell the officer your current name and address;
2. Report to, and receive visits from, a CCO at times and places as reasonably directed by that CCO;
3. Notify a CCO of every change of your name, home address, or place of employment at least 2 business days before the change happens;
4. Be under the supervision of a CCO and follow any reasonable direction given to you by the CCO (including direction for the purposes of section 31 or 32 of the High Risk Serious Offender Act 2020 (WA) (HRSO Act));
5. Not leave the State of Western Australia without the permission of a CCO;
6. Not commit a serious offence during the period of the Order;
7. Be subject to electronic monitoring under section 31 of the HRSO Act.

1. Reside at [redacted] and spend each night there. You can stay at a different address only if the address has been approved in advance by a CCO assigned to you;

1. On the day of release, report to a CCO at the prison or at a place directed by a CCO and allow for fitting of electronic monitoring equipment and completion of intake;
2. Not start, change or increase any paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO;

1. Attend and engage in all appointments as directed and receive visits from any medical practitioner, psychiatrist, social worker, psychologist, mentor, counsellor, support service or support person as reasonably directed by a CCO;
2. Follow the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as reasonably directed by a CCO;
3. Take any medication as directed by a medical practitioner and comply with all testing to monitor your compliance with that treatment as reasonably directed by a CCO;
4. Allow any medical practitioner, psychologist, psychiatrist or counsellor to tell the Department of Justice about your medical treatment and their opinions relating to your level of risk of re-offending and compliance with treatment;
5. Follow any reasonable conditions and requirements of any National Disability Insurance Scheme (NDIS) provider that is providing you with any services and/or accommodation;

1. Report to the Officer-in-Charge (OIC) of the Serious Offender Enforcement Squad (SOES) at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and report to and receive visits from Police as directed by the OIC of the SOES or another officer;
2. If asked to, allow Police Officers to enter and search your home and/or vehicle, and search you and allow them to seize (take) any items they believe to breach the conditions of this Order. The Police Officer is to tell you they are using this power before acting pursuant to it;
3. Stay at your home and/or vehicle while Police Officers are searching your home and/or vehicle under condition 17 of this Order;

1. Agree to the exchange of information about you between people and agencies involved in carrying out this Order, including any medical practitioner, psychologist, psychiatrist or counsellor;
2. Agree to any disclosure of information deemed necessary by a CCO, in full or part, with any current or proposed person that might live in your house, following consultation with the relevant NDIS agency;

1. Unless you have the prior approval of your CCO or the Victim-Offender Mediation Unit of the Department of Justice, have no contact with the victims of your violent offending. Contact in this condition means speaking to the victim in person or by phone, making any gestures towards the victim, messaging the victim using electronic devices, or asking someone else to speak to or send a message to the victim;
2. Report any direct or indirect contact with the victims of your violent offending to the CCO and WA Police within 48 hours of such contact happening;

1. Comply with a curfew, requiring you to stay at (and not leave) your approved address as directed by a CCO;
2. When subject to a curfew under this Order, during the time when you must be at your approved residence:
   1. go to the front door or front yard if a CCO or Police Officer asks to see you; or
   2. speak on the telephone to any CCO or Police Officer if they call to check you are at home;
3. When subject to a curfew under this Order, you must tell all adults at your home address who may answer the telephone or door that you are on a curfew and ask them to tell you about any attempts by police or a CCO to contact you;

1. Not to possess or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including cannabis. This does not apply to a drug that a doctor has prescribed for you, as long as you don't use more than the doctor has told you to use;
2. Not to commit any criminal offence that can be dealt with by a sentence of imprisonment;

1. Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, or replica and not to apply for or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, or replica;
2. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a WA Police Officer, including going with them to an appropriate location for a sample to be taken;
3. Provide a valid sample pursuant to condition 29;
4. Not to go to any licensed premises, except for the following reasons:

a) Avoiding a serious risk of death or injury to yourself or another person;
>
> b) For a reason and duration approved in advance by a CCO;
>
> c) If a CCO or WA Police Officer tells you to do so;

5. Not to purchase, possess or use alcohol;
6. Not to be with any person who you know is under the influence of a prohibited drug or alcohol, unless the identity of such person is approved in advance by a CCO;
7. Not to associate with Daniel Edward Taylor (co-accused);
8. Tell your CCO about any new social association or relationship with anyone you know uses prohibited drugs or alcohol, when you report to your CCO next;
9. Allow WA Police or CCO to look at any telecommunication device that you use and give them any passcode so they can access that device to look at your communication with other people;
10. Not assault, threaten or insult any person working for, or providing services for, the Department of Justice or your NDIS provider/s;

I authorise Police Officers from the Western Australian Police Force to access any cloud-based platforms or services associated with the devices I use and examine the internet accounts at any time for the purposes of monitoring my behaviour (absence any investigation for any offence). I understand and acknowledge WA Police Force will use passwords or tokens located within my devices to access any cloud-based platforms and services. By authorising this, I understand and acknowledge a Police Officer from the WA Police Force may change the password(s) to these accounts so I will no longer have access.

_______________________________

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

Signed by the Respondent _________________________________

In the presence of: _________________________________

Name and address: _________________________________

_________________________________

Date: _________________________________

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

[1] The State of Western Australia v Blurton [No 3] [2023] WASC 419.

[7] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28].

[9] Garlett v Western Australia [2022] HCA 30 (Garlett).

[15] Garlett [85]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56].

[16] Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166, 184 - 185 [46] - [47]. Garlett [86].

[23] The State of Western Australia v Williams [No 2] [2024] WASC 215 [30].

[24] Garlett [106]; The State of Western Australia v ACJ [2021] WASC 219 [32].

[29] Garlett [230]; see HRSO Act, s 30(5), which also requires that conditions are 'appropriate'.

[31] See also Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] - [19].

[33] Blurton [No 3] [2023] WASC 419 [319].

[39] Book of Materials, volume 2, page 440.

[40] State Administrative Tribunal orders made 20 November 2024.

[46] Blurton [No 3] [48], [49], [51], [52].

[47] Book of Materials, volume 3, pages 481 - 482, page 494.

[48] Book of Materials, volume 3, page 494.

[49] Book of Materials, volume 3, pages 495 - 497.

[51] Book of Materials, volume 2, page 426.

[52] Book of Materials, volume 2, pages 426 - 428.

[53] Book of Materials, volume 2, page 429.

[54] Book of Materials, volume 2, page 430.

[55] Book of Materials, volume 2, page 431.

[56] Book of Materials, volume 2, page 435.

[57] Book of Materials, volume 2, page 436 - 439.

[58] Book of Materials, volume 2, page 441.

[59] Book of Materials, volume 2, page 441.

[60] Book of Materials, volume 2, page 443.

[61] Book of Materials, volume 2, page 444.

[62] Book of Materials, volume 2, page 444.

[66] Hearing 20 March 2025, ts 133, ts 135.

[67] Hearing 20 March 2025, ts 133 - 134.

[68] Hearing 20 March 2025, ts 151 - ts 152.

[77] Hearing 20 March 2025, ts 135 - ts 136, ts 138.

[79] Hearing 20 March 2025, ts 137 - ts 138.

[81] Book of Materials, volume 2, page 354, par 22.

[82] Book of Materials, volume 2, page 355, par 23.

[83] Book of Materials, volume 2, page 356, par 28.

[84] Book of Materials, volume 2, page 357, par 33.

[85] Book of materials, volume 2, pages 357 - 358, par 37 - 39.

[86] Book of Materials, volume 2, page 358, par 43.

[87] Book of Materials, volume 2, pages 359 - 360, par 48.

[88] Book of Materials, volume 2, page 360, pars 49 - 50.

[89] Book of Materials, volume 2, page 360, par 52.

[90] Book of Materials, volume 2, page 361, par 53.

[96] Hearing, 20 March 2025, ts 164 - ts 165.

[101] Book of Materials, volume 2, pages 449 - 466.

[102] Book of Materials, volume 2, page 457.

[103] Book of Materials, volume 2, page 342.

[104] Book of Materials, volume 3, pages 509 - 515.

[105] Book of Materials, volume 3, pages 512 - 513.

[106] Book of Materials, volume 3, page 514.

[115] Book of Materials, volume 2, pages 351 - 353.

[116] Book of Materials, volume 2, page 352, pars 9 and 11.

[117] Book of Materials, volume 2, page 353.

[119] Blurton [No 3] [298(2) and (3)].

[121] The State of Western Australia v Paraha [2025] WASC 20 [57] - [58].

[122] Hearing, 20 March 2025, ts 133, ts 150.