THE STATE OF WESTERN AUSTRALIA -v- CARR [No 2] [2022] WASC 480 (13 January 2026)

The application and its history The application

1. This is an application by the State of Western Australia, under s 35 of the HRSO Act, for a restriction order in relation to the respondent, who, at the time of the application, was a serious offender under custodial sentence. The HRSO Act provides for two forms of restriction order. The first is a continuing detention order (CDO), being an order that the respondent be detained in custody indefinitely.[1] The second is a supervision order, being an order that the respondent be subject to conditions when not in custody.[2] The application need not (and does not) specify which form of restriction order is sought,[3] although, at the hearing, the State submitted that the court should make a CDO.
2. Before the court can make a restriction order, it must be satisfied that the respondent is a high risk serious offender.[4] This requires the court to be satisfied that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence, as defined in the HRSO Act.[5]
3. The application has been made against the following background.

1. The respondent has a history of violent and sexual offending in Western Australia and New South Wales, including a conviction for murder. The history of the respondent's relevant offending was summarised by Hall J in his decision on the preliminary hearing of this application.[6] That summary is respectfully adopted below.
2. On 6 March 1987, the respondent committed offences in Western Australia of breaking and entering a dwelling with intent, deprivation of liberty and aggravated sexual assault. He was not apprehended at that time and, shortly afterwards, moved to New South Wales.
3. On 4 May 1987, the respondent committed offences in New South Wales of malicious wounding and assault. Those offences arose from attacks with a knife upon the respondent's brother-in-law. On 29 May 1987, the respondent was sentenced to 6 months' imprisonment for those offences. On 21 September 1987, shortly after his release from prison, the respondent again attacked his brother-in-law, this time killing him. He was convicted of murder and sentenced to life imprisonment. Subsequently, the Supreme Court of New South Wales set a minimum term and an additional term in respect of that sentence, the effect of which was that the respondent was released on 31 March 2007.[7]
4. On 16 January 2008, he committed an offence in New South Wales of aggravated breaking and entering and committing an indictable offence. That offence involved attending a house where his ex-partner was present and attacking another occupant while the respondent was in company with a co-offender. On 19 December 2008, he was sentenced to a term of imprisonment of 5 years, 1 month and 5 days. He completed that sentence on 20 February 2013.
5. In the meantime, a cold case review had established that the respondent was the person responsible for the 1987 offences in Western Australia. On his release in New South Wales in 2013, he was immediately taken into custody again and extradited to Western Australia. He stood trial in the District Court, was convicted on all counts and, on 21 January 2015, was sentenced to a total effective sentence of 8 years' imprisonment, backdated to 20 February 2013. Although he was made eligible for parole, the respondent was not granted parole and his sentence was due to end on 7 February 2021.
6. Under the HRSO Act, a person is a 'serious offender under custodial sentence' if the person is 'under a custodial sentence for a serious offence'.[8] 'Serious offence' is defined.[9] The offences of deprivation of liberty and aggravated sexual assault, for which the respondent was sentenced on 21 January 2015, come within the definition of 'serious offence'.[10] Therefore, from 20 February 2013 until the conclusion of his sentence, the respondent was under a custodial sentence for a serious offence, and was to be regarded as a 'serious offender under custodial sentence' for the purposes of the HRSO Act.[11]

1. The application under s 35 of the HRSO Act was brought by the State on 23 December 2020. The effect of s 35(1) and (3) of the HRSO Act is that the State may apply to the Supreme Court for a restriction order in relation to a serious offender under custodial sentence, if the serious offender is not under restriction (that is, he is not subject to a restriction order or an interim supervision order)[12] and there is a possibility that the offender might be released from custody within the period of one year after the application is made. That was the case at the time the application was made, as the respondent's sentence was due to end on 7 February 2021.
2. In accordance with s 43 of the HRSO Act, a day was then fixed for the matter to come before the court for a preliminary hearing under s 46.[13]

1. In my opinion, it is appropriate to set out the subsequent procedural history to explain what became a significant delay in the determination of the application.
2. On 3 February 2021, at the preliminary hearing, Hall J found that there were reasonable grounds for believing that the court might find the respondent to be a high risk serious offender, in accordance with s 7 of the HRSO Act.[14] Consequently, in accordance with s 46(2) of the HRSO Act, his Honour fixed a day for the hearing of the restriction order application as 'a date not before 25 July [2021]' and made consequential orders, including orders that the respondent be examined by a psychiatrist and a psychologist for the purpose of preparing reports for the restriction order hearing. His Honour also made an interim detention order pursuant to s 46(2)(c)(i) of the HRSO Act. The interim detention order remained in effect until the final determination of the application.
3. At a directions hearing on 5 March 2021, Quinlan CJ varied the first order made by Hall J, by ordering that the hearing of the restriction order application take place on 24 and 25 June 2021, and making further orders in respect of expert reports and any report authored by the Department of Justice.
4. Accordingly, the application came on for hearing before McGrath J on 24 June 2021. At the commencement of that hearing, counsel for the respondent applied to adjourn the hearing. The application proceeded on the assumption that the court would find that the respondent is a high risk serious offender, and that the issue for the court would be which restriction order should be made.[15] That assumption corresponded with McGrath J's preliminary view of the matter.[16]
5. The application to adjourn was made because there was no accommodation available to the respondent in the community at that time, and that circumstance would foreclose the option of making a supervision order (being the order for which the respondent would argue), because the respondent could not be released from custody on a supervision order in the absence of suitable accommodation.[17] The court would be obliged to make a CDO, and a review of the continuing detention would not occur until after a period of 12 months.[18] Counsel for the respondent submitted that, in those circumstances, the respondent may miss the opportunity to obtain accommodation if a property became available during that period of 12 months. While the respondent appreciated that he would remain in custody in the interim, he was prepared to defer the hearing in the hope that a property would become available in the near future, providing him with a stronger argument for the making of a supervision order.[19]
6. The State opposed the application to adjourn, noting that the respondent's best prospect of obtaining accommodation would be under the supported accommodation programme provided by Uniting WA, and the information available at that time was that the respondent was twelfth in line for suitable accommodation under that programme, in which only six properties were available.[20]
7. McGrath J granted the adjournment, noting that:[21]

(1) his Honour accepted that, in order for the respondent to be released on a supervision order, it would be necessary in part, at least, for his Honour to be satisfied that there was suitable accommodation that would assist in properly managing the risk that the respondent posed to the community;

(2) the State had submitted that every effort was being made by officers of the Department of Justice, using non-government organisations, to identify appropriate accommodation, and that accommodation may be available towards the end of the year;

(3) it was extremely likely the respondent would be found to come within the HRSO Act as a high risk serious offender;

(4) if the application proceeded on that day, the respondent would be incarcerated for a further year;

(5) notwithstanding the risk that a CDO might be made by another judge at the adjourned hearing, counsel for the respondent had received instructions to seek the adjournment, having carefully considered the State's submissions in respect of the likely availability of accommodation; and

(6) his Honour was unable to find prejudice to the State.

1. His Honour adjourned the matter to a mention hearing on 6 September 2021 for the court to receive submissions in respect of any further updates regarding the issue of accommodation.
2. At subsequent directions hearings on 7 September 2021 and 2 November 2021, the court was informed that the respondent had progressed on the accommodation waitlist.
3. Consequently, the restriction order application was listed for hearing, which proceeded before me on 12 April 2022.
4. Although by the time I determined the application on 2 September 2022, more than one year had elapsed since the orders made by McGrath J, the outcome, namely the release of the respondent on a supervision order, was possible because accommodation became available to him for that purpose during the period that the matter was adjourned at his request.

Statutory framework and legal principles[22]

1. The application is to be dealt with under s 48 of the HRSO Act, which reads:

(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) 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.

(2) The State has the onus of satisfying the court as required by subsection (1).

1. 'Serious offence' is defined in s 5 of the HRSO Act. Relevantly, for present purposes, by s 5(1), an offence is a 'serious offence' if it is specified in sch 1 div 1 of the HRSO Act. By s 5(2), an offence is also a 'serious offence' if it was an offence under a written law that has been repealed, and the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under s 5(1). Finally, for present purposes, an offence against the law of any place outside Western Australia is a 'serious offence' if the offender's acts or omissions that constituted the offence under that law would have constituted a serious offence under s 5(1) or (2) if they had occurred in Western Australia. While the HRSO Act is concerned with the risk that the offender will commit a serious offence prospectively, a relevant consideration is whether the offender has committed such an offence in the past. It is not in dispute that the offences of deprivation of liberty and aggravated sexual assault committed by the respondent in Western Australia in 1987, and the offence of murder committed by the respondent in New South Wales that same year, are serious offences, as defined in the HRSO Act.
2. In The State of Western Australia v ZSJ[23] (ZSJ), I discussed the legal principles and considerations relevant to the determination of an application under s 48 of the HRSO Act, having regard to the relationship the provisions of the HRSO Act bear to the provisions of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), which the HRSO Act replaced.
3. I expressed the view in ZSJ that, given the statutory framework of the DSO Act and the HRSO Act, the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes,[24] and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non-sexual offences.[25] The same approach was taken subsequently by other judges.[26]
4. However, a modification to that approach was adopted by Corboy J in The State of Western Australia v Garlett[27] (Garlett) in his Honour's analysis of the matters about which the court must be satisfied under s 7(1) of the HRSO Act before a person can be found to be a high risk serious offender.
5. Section 7(1) of the DSO Act had read:

Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.

1. Section 17(1) of the DSO Act provided, in effect, that if the court found a person to be a serious danger to the community, it must make a CDO or a supervision order.
2. In ZSJ, I said in respect of s 7 of the HRSO Act (footnote omitted):[28]

In my opinion, although the formulation of that provision differs from s 7 of the DSO Act, when one has regard to the language, context and overall structure of the relevant provisions in each statute, the matters about which the court must be satisfied are essentially the same. In particular, when dealing with the risk posed by a sexual offender, s 7 of the HRSO Act does not contain any criterion necessary to find a respondent to be a high risk serious offender that was absent in the DSO Act for the purposes of determining whether a respondent was a serious danger to the community. Again, that construction is confirmed by the second reading speech in respect of the relevant bill, in which the Attorney General said, when referring to the term 'high-risk offender', that the bill was 'not intended to change the test under the [DSO Act] for whether the court makes a continuing detention order or a supervision order.'

1. I was of the view that the differences in language between the two statutes could be reconciled as follows:[29]

A finding that it is necessary to make a restriction order to ensure adequate protection of the community against 'an unacceptable risk that the offender will commit a serious offence' necessarily entails a finding that, if the offender were not subject to a restriction order, there would be an unacceptable risk he would commit a serious offence, which was the formulation in s 7 of the DSO Act. Similarly, while the latter provision did not speak of a need for the court to be satisfied that a continuing detention order or a supervision order was necessary, the findings required under s 7 of the DSO Act, when read with s 17 of the DSO Act, necessarily entailed a finding that a continuing detention order or a supervision order was necessary to adequately protect the community against an unacceptable risk that the person would commit a serious sexual offence.

1. I suggested that the element of necessity for the making of a restriction order was included in the meaning previously given to the concept of 'unacceptable risk' in Director of Public Prosecutions (WA) v Williams[30] (Williams), where Wheeler JA had said that:[31]

... 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)

1. It seems to me that, in essence, the wording of s 7(1) of the HRSO Act reflects the jurisprudence in respect of the concept of 'unacceptable risk' elucidated by Wheeler JA in Williams. I also note that, although s 7(1) of the DSO Act did not refer to the need to 'ensure the adequate protection of the community', that section had to be read in the context of the objects of the DSO Act set out in s 4, the first of which was 'to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community and of victims' (emphasis added).
2. Nevertheless, s 7 of the HRSO Act must be construed having regard to its text, context, and purpose.[32]
3. In Garlett, Corboy J noted that there is 'arguably a material difference' between s 7(1) of the DSO Act, read with s 17, and s 7(1) of the HRSO Act, read with s 48, in that:[33]

It is arguable that the words [in s 7(1) of the HRSO Act] 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable.

1. In other words, under s 7(1) of the HRSO Act, the court is first required to determine whether there is an unacceptable risk that the offender will commit a serious offence in the future, and, if such a risk is found, it must then determine whether it is necessary to make a restriction order to ensure adequate protection of the community against that unacceptable risk. Further, Corboy J noted that the formulation of s 7(1) requires the court to have regard to the need to ensure adequate protection of the community at the stage of determining whether the offender is a high risk serious offender, as well as at the later stage (if it is reached) of determining which restriction order should be made under s 48, where the need to ensure adequate protection of the community is the paramount consideration.[34] In the DSO Act, while the need to ensure adequate protection of the community was referred to as the paramount consideration in deciding between a CDO and a supervision order under s 17, it was not referred to in in the criteria for determining if a person was a 'serious danger to the community' in s 7(1).
2. The construction of s 7(1) of the HRSO Act adopted by Corboy J in Garlett, which requires the court to make two evaluative judgments, as described above, has been endorsed in subsequent decisions under the HRSO Act.[35]
3. Under that construction, the court could find that it is not necessary to make a restriction order to ensure adequate protection of the community, despite the court finding that there is an unacceptable risk that the offender would commit a serious offence in the future. That differs from the operation of s 7 of the DSO Act, in which the context for determining whether there was an unacceptable risk that the offender would commit a serious sexual offence was an assumption that the offender was not subject to a CDO or supervision order. Once an unacceptable risk was found, and the court was therefore satisfied the offender was a serious danger to the community (in the language applicable under the DSO Act), the court was obliged, by s 17 of the DSO Act, to make either a CDO or a supervision order.
4. On the two-step evaluative process adopted in respect of s 7 of the HRSO Act, unless the court also finds that a restriction order is necessary to ensure adequate protection of the community, a finding of unacceptable risk of serious offending will not lead to a finding that the respondent is a high risk serious offender. In what context, then, is a court to determine whether a risk of future offending is unacceptable, prior to considering the necessity of a restriction order?
5. In D'Rozario, Quinlan CJ observed that it would be a rare situation in which the court would find that it was not necessary to make a restriction order to provide adequate protection of the community, despite finding that there was an unacceptable risk of future serious offending.[36] I respectfully agree. His Honour then gave an example of a potential rare situation, being one in which 'other external restraints on an offender (such as a post-sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').'[37]
6. In my opinion, the Chief Justice's example illuminates the context in which each of the evaluative determinations is to be made under s 7(1) of the HRSO Act. It could not have been intended by the legislature that an offender who poses an unacceptable risk of committing a serious offence would be released into the community in circumstances in which there are no measures protecting the community against the risk, such that the risk might be realised. The jurisprudence in respect of the term 'unacceptable risk' under the DSO Act, to which I will return, contemplated that restrictive measures would be necessary if, without them, the risk of an offender committing a serious offence was unacceptable.
7. Although the two-step evaluative process has been adopted in cases since Corboy J's decision in Garlett, there have been other cases since that decision in which the approach I had taken in ZSJ has been maintained, essentially regarding s 7(1) of the HRSO Act as operating in the same way as s 7 of the DSO Act, when read with s 17 of the DSO Act, as interpreted in cases such as Williams.[38] However, in light of the analysis I have undertaken above, I respectfully accept that the interpretation expounded by Corboy J in Garlett is arguable, as his Honour put it, and I will adopt that approach for the purposes of these proceedings.
8. In my opinion, adopting the two-step evaluative approach to s 7(1) of the HRSO Act, the first step requires the court to determine whether, in the absence of any measures that would provide protection of the community against the risk that a respondent would commit a serious offence in the future, that risk is unacceptable. That evaluation requires the balancing of various considerations, which I will discuss below. The second step requires the court to determine whether a restriction order is necessary to provide adequate protection of the community against the unacceptable risk that has been found to exist. That requires consideration of whether there are measures, other than a restriction order, that would provide adequate protection of the community against the unacceptable risk. If there are, the risk could no longer sensibly be regarded as 'unacceptable'.
9. Having regard to the above analysis, I am still inclined to the view that the concepts and criteria with which the court is concerned in determining an application under s 48 of the HRSO Act are substantially the same as under s 17 of the DSO Act, and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act. Nevertheless, I will approach the application by determining first whether there is an unacceptable risk that the respondent would commit a serious offence if he were not subject to any measures in the community that would mitigate that risk. If I am satisfied such a risk exists, I will then consider whether a restriction order is necessary to ensure adequate protection of the community against that risk. If the adequate protection of the community can be ensured by other means, then I cannot be satisfied that a restriction order is necessary, and, therefore, I cannot be satisfied the respondent is a high risk serious offender.
10. In Director of Public Prosecutions (WA) v GTR[39] (GTR), Steytler P and Buss JA elucidated the manner in which a court should approach the determination of whether a risk was unacceptable for the purposes of the DSO Act, which required the court to determine whether the risk that a respondent would commit a serious offence would be unacceptable in the absence of a restriction order. Their Honours' analysis was consistent with the views expressed by Wheeler JA in Williams.[40] Notwithstanding the differences between s 7(1) of the DSO Act and s 7(1) of the HRSO Act, I remain of the view I expressed in ACJ that the principles elucidated in Williams and GTR remain relevant to determining, under the HRSO Act, whether there is an 'unacceptable risk' that an offender will commit a serious offence.[41]
11. Accordingly, as Steytler P and Buss JA explained in GTR, 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).[42]
12. Having regard to the structure of s 7(1) of the HRSO Act, before the court can find the respondent to be a high risk serious offender, it must be satisfied to a high degree of probability, by acceptable and cogent evidence, of both matters to be determined in the two-step evaluative process, namely:

(1) that there is an unacceptable risk that the offender will commit a serious offence; and

(2) that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against that risk.

1. The State bears the onus of satisfying the court that it is necessary to make a restriction order.[43]
2. 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; it is otherwise incapable of further definition.[44] The test does not mean necessarily that the risk or the necessity for making a restriction order must be at some high percentage of probability. As was previously noted in respect of 'unacceptable risk' under the DSO Act, a risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that is alleged to constitute 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.[45] The same approach must be taken in respect of the necessity for making a restriction order to ensure adequate protection of the community.
3. In considering whether it is satisfied that the offender is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3) of the HRSO Act. Those matters are:

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

(b) any other medical, psychiatric, psychological or other assessment relating to the respondent;

(c) information to indicate whether or not the respondent has a propensity to commit serious offences in the future;

(d) whether or not there is any pattern of offending behaviour by the respondent;

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

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

(g) the respondent's antecedents and criminal record;

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

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

(j) any other relevant matter.

1. There is overlap between some of the matters specified, which I will discuss below.
2. Where, as in the respondent's case, the offender has committed offences other than serious offences, those other offences may be relevant as part of the offenders antecedents and criminal record, as well as shedding light on the offender's risk of committing a serious offence, because the other offences may be connected to behaviour which has the real potential to lead to serious offending.[46]
3. The court must disregard the possibility that the offender may be temporarily prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[47]
4. If the court finds that the respondent is a high risk serious offender, it must make a restriction order. The issue then is whether a supervision order or a CDO is the appropriate outcome. In deciding between those two options, the paramount consideration is the need to ensure the adequate protection of the community.[48]
5. 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).[49] 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.[50]
6. However, the proviso in s 48(1)(b), referring to s 29, means that the court cannot make a supervision order, and therefore must make a CDO, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the standard conditions of a supervision order.[51] The respondent has the onus of proving that he will substantially comply.[52]
7. The standard conditions referred to in s 29 are those specified in s 30(2) of the HRSO Act, which in the DSO Act were specified in relevantly identical terms in s 18(1).[53] A supervision order must contain conditions that the person who is subject to the order will:

(a) report to a community corrections officer (CCO) at the place, and within the time, stated in the order and advise the officer of the offender's current name and address;

(b) report to, and receive visits from, a CCO as directed by the court;

(c) notify a CCO of every change of the offender's name, place of residence or place of employment at least two days before the change happens;

(d) be under the supervision of a CCO and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 [of the HRSO Act]);[54]

(e) not leave, or stay out of, the State of Western Australia without the permission of a CCO;

(f) not commit a serious offence during the period of the order;[55] and

(g) be subject to electronic monitoring under s 31[of the HRSO Act].

1. Therefore, the effect of s 29(1) and (2) of the HRSO Act (as was the case with s 17(3) and (4) of the DSO Act) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.
2. The words 'will substantially comply with' in s 29(2) are identical to those that appeared in provisions of the DSO Act and bear the same meaning. In effect, that phrase means that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general objects of a supervision order and of the legislation.[56]
3. Obviously, substantial compliance with the condition that the respondent will not commit a serious offence during the period of the order should be sufficient to ensure adequate protection of the community. However, the probability that a respondent will substantially comply with that condition will almost invariably depend on the likelihood of the respondent complying with other conditions of a supervision order, additional to the standard conditions. Section 30(5) of the HRSO Act provides that a supervision order may include such other conditions as the court considers appropriate to ensure adequate protection of the community, for rehabilitation, care or treatment of the offender and to ensure the adequate protection of victims.
4. Ultimately, even apart from the respondent's onus of satisfying the court that he will substantially comply with the standard conditions of a supervision order, if the court is not satisfied (which includes if it is left in doubt) that conditional release of the respondent under a supervision order will ensure an adequate degree of protection of the community, it must make a CDO.[57]
5. Proceedings under the HRSO Act are taken to be criminal proceedings for all purposes. This does not require that anything be proved to a higher standard than is required by s 7(1) of the HRSO Act.[58]

1. Having regard to the analysis of the statutory framework and legal principles above, the first issue to be determined in these proceedings is whether the respondent is a high risk serious offender, in other words:

(1) Is there an unacceptable risk that he would commit a serious offence in the future, in the absence of any measures that would provide protection of the community against that risk?

(2) Is a restriction order necessary to provide adequate protection of the community against that unacceptable risk?

1. If both of those questions are answered in the affirmative, the next issue is whether the appropriate order to ensure adequate protection of the community is a CDO or release into the community on a supervision order.
2. The applicant's case was that the court can be satisfied to the requisite standard that the respondent is a high risk serious offender, and that, having regard to all the circumstances, a CDO should be imposed upon the respondent.
3. The respondent's case, in essence, was that the court could not be satisfied that a restriction order was necessary to provide adequate protection of the community against an unacceptable risk that the offender will commit a serious offence, as there was at least one other measure that would provide adequate protection of the community, namely a post-sentence supervision order (PSSO), and that, notwithstanding the fact that the respondent had not previously participated in rehabilitation programs in Western Australia, the measures that he had taken by the time of the hearing, namely taking medication and engaging in psychological counselling, would, in combination with the PSSO, provide adequate protection of the community. However, perhaps more realistically, the respondent submitted, in the alternative, that, if I was to find that there was an unacceptable risk, and that the measures referred to by the respondent were not sufficient to provide adequate protection of the community, then the appropriate restriction order, having regard to the expert evidence in these proceedings, should be a supervision order.
4. I turn next to the evidence in the proceedings, upon which the issues must be determined.

1. In an application for a restriction order, the court must hear any admissible evidence called by the State and, if he elects to give or call evidence, any admissible evidence given by or on behalf of the respondent.[59] The rules of evidence apply but are modified to permit the court to receive in evidence any one or more of the following:[60]

(a) any document relevant to the antecedents or criminal record of the offender;

(b) anything relevant contained in the official transcript of any relevant proceedings against the offender;

(c) any relevant material that was tendered to the court or that informed the court in relevant proceedings against the offender; and

(d) any relevant material of the kind mentioned in s 7(3) of the HRSO Act relating to the offender (as set out at [54] above).

1. The evidence adduced by the applicant in these proceedings consisted of a Book of Materials (BOM) prepared for the restriction order application, comprising three volumes,[61] which was tendered by the applicant without objection, and oral evidence given by:

(1) Dr Peter Wynn Owen, Consultant Forensic Psychiatrist, who was one of the experts who prepared a report in respect of the respondent's risk of committing a serious offence;

(2) Ms Julie Hasson, Consultant Forensic Psychologist, who was the other expert who prepared a report in respect of that risk;

(3) Dr Kathryn Riordan, Senior Forensic and Clinical Psychologist with the Forensic Psychological Assessment Team within the Department of Justice, who prepared a proposed High Risk Serious Offender Management Plan in respect of the respondent; and

(4) Ms Emma Cashmore, Senior Community Corrections Officer (SCCO) with the Community Offender Monitoring Unit (COMU) in the Department of Justice, who prepared a Community Supervision Assessment report in respect of the respondent.

1. Volume 1 of the BOM contained materials provided by the Department of Justice, including a copy of the respondent's criminal record, a chronology of the respondent's offending prepared by the applicant, prison records, substance use test results, medical records and medical reports. It also contained transcript and other materials from the proceedings in respect of the respondent's previous convictions for serious offences. Those materials included pre-sentence reports and a psychological report of Ms Cinzia Zuin, Psychologist, dated 11 January 2015, prepared for the court for the respondent's sentencing in 2015 (Ms Zuin's report). Volume 1 also included a Treatment Assessment Report prepared when the respondent was imprisoned in respect of the sexual offences in 2015, a Parole Review Report prepared in November 2018 in respect of that sentence, and a Risk Assessment Report dated 22 December 2020 prepared by Ms Maria Krabbe, Senior Clinical Psychologist with the Adult Community Psychological Services in the Department of Justice, in anticipation of the respondent's imminent release from his sentence (Ms Krabbe's report).
2. Volume 2 of the BOM contained the reports of the witnesses who gave oral evidence.
3. Volume 3 of the BOM contained updated reports from Ms Cashmore (dated 17 March 2022) and Dr Riordan (dated 23 March 2022), and further updated materials including the respondent's criminal record, prison records, substance use test results and medical records. It also included a proposed post-sentence supervision order in respect of the respondent.
4. The updated report from Dr Riordan was requested by COMU to provide information about the psychological intervention in which the respondent had engaged while subject to the interim detention order between 3 February 2021 and this restriction order hearing on 12 April 2022.
5. The respondent did not give or adduce evidence at the hearing.

Consideration of the matters under s 7(3) of the HRSO Act

1. As I noted earlier, the matters listed in s 7(3) of the HRSO Act, to which the court must have regard, overlap. The matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed by the information and findings in respect of all the other matters listed in s 7(3). Consideration of the questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning the respondent's efforts at rehabilitation and the effect of his participation in rehabilitation programmes.
2. Given the interrelated nature of a number of the matters listed in s 7(3), I have not considered it necessary or convenient to deal with each of the matters under separate headings. In dealing with the evidence and issues in these proceedings, I have had regard to all of the issues and the various forms of reports and information referred to in s 7(3). That will become apparent in the balance of these reasons.
3. It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of serious reoffending.

1. The following summary of the respondent's antecedents and history is collated from various materials in the BOM, including pre-sentence, psychological and psychiatric reports prepared for proceedings in respect of the respondent's previous serious offences, reports from programmes in which the respondent has engaged, and the reports prepared for these proceedings, in particular the reports of Dr Riordan, Ms Hasson, Dr Wynn Owen, and Ms Cashmore.
2. Dr Riordan noted that the respondent has been an 'inconsistent and potentially unreliable historian with respect to recounting his personal history'.[62] I am satisfied that Dr Riordan's assessment is supported by the materials in evidence. The inconsistency and unreliability can make it difficult to draw reliable conclusions about the factors in the respondent's personal history that have contributed to his offending. Nevertheless, as Dr Riordan also noted, there are some consistent facts and themes that emerge 'across reports', which appear to be relevant to discerning those criminogenic factors. I will return to Dr Riordan's summary below.

1. At the time of the restriction order hearing, the respondent was 54 years old.
2. He was born in Fitzroy, Victoria on 11 June 1967,[63] and spent his early childhood in that state. He has one older brother and two younger half-siblings, the youngest being 19 years his junior.[64]
3. The respondent's parents separated when he was an infant. He told Ms Hasson that he did not have contact with his father until he was a teenager.[65] He said that the contact was a 'one off' and he never saw his father again.[66] I note that he told the author of a pre-sentence report in 2008 that he had had no contact with his father after the latter left the family residence.[67] I do not consider that inconsistency to be material.
4. The respondent has said that he knows little about his father, who died many years ago, except that he spent a long time in prison.[68] During his childhood, his mother never spoke of his father.[69] He has said that while he had contact with his paternal grandparents during his childhood, they did not speak of his father either.[70] He believes that this was likely due to shame and embarrassment they felt about his father's behaviour.[71]
5. The respondent's mother formed new relationships several times, and his younger half-sister and half-brother are from two such relationships.[72] He has consistently said that he witnessed alcohol abuse and domestic violence towards his mother in some of her relationships, and that sometimes he intervened with violence against those partners to protect her.[73] It is not clear how old he was when those incidents occurred. As I will outline below, the respondent was living away from his mother, regularly and for significant periods of time, from a young age. I also note that when he was interviewed by the author of the pre-sentence report in 2008, the respondent did not mention intervening in that way, although he did refer to witnessing domestic violence and alcohol abuse within the home environment.[74] The author of that report noted that the respondent did not 'highlight' any issues within his own relationships with his mother's partners.[75]
6. Nevertheless, it is apparent that violent behaviour was normalised during the respondent's childhood. For instance, he has said that he was exposed to a lot of violence on the streets, where he spent a lot of time as a child.[76] He told Dr Wynn Owen that, after he was taken into State care at the age of 9 (to which I will return below), he ran away from placements on multiple occasions and spent a lot of time living on the streets, where he 'learned how to be violent, seeing it daily'.[77] He said that, as a young child, he witnessed extreme violence including violence resulting in death.[78] In speaking with Dr Riordan, he attributed his exposure to violence to the fact that he grew up in 'a volatile community in the wharf district in Melbourne'.[79] He gave a similar account to Ms Krabbe in December of 2020, saying he recalled, from the age of 8, 'seeing people beaten up covered in blood by the wharf, and getting used to being exposed to such scenes'.[80] He also told Ms Hasson that he was exposed to frequent episodes of violence directed towards sex workers, as his mother owned a brothel.[81]
7. It would not be surprising, therefore, that the respondent sought to intervene with violence to protect his mother during incidents of domestic violence, even if otherwise he had no issues with her partners.
8. However, the respondent has also been consistent in saying that he was never the victim of physical or sexual abuse within the home environment.[82]
9. The respondent's mother was a self-employed brothel owner, but, according to the respondent, she never worked at her own establishments.[83] The respondent has described his mother in positive terms, commending her efforts as a single mother,[84] saying she did the best she could.[85] He told Ms Hasson that, despite his mother's occupation and intimate relationships, he was raised in a stable home and was well cared for.[86] However, he also noted that his relationship with his mother was 'complex'.[87]
10. That assessment appears to be consistent with the respondent's account to Ms Zuin in 2015. He told Ms Zuin that, because he was 'naughty a lot', he was punished more than his siblings, which led to him feeling unloved by his mother, but he always loved her, nevertheless.[88] Similarly, when he was assessed by Ms Krabbe in 2020, the respondent emphasised that his mother had little time for him as a child because of her occupation, despite otherwise speaking of his mother in positive terms.[89]
11. In any event, it is apparent from most of the reports in the BOM, and indeed from the history I have already outlined, that the respondent's most recent descriptions of stability and care in his childhood home environment indicate a distorted view of that part of his life. For instance, at the same time as making the comments to Ms Hasson about a stable home and being 'well cared for', the respondent also said that his mother's occupation exposed him to 'frequent episodes of violence in and around the premises directed toward the sex workers and each other'.[90] Further, the respondent described himself as a 'naughty and rebellious child who was often in trouble', and that his mother's attempts to curb his behaviour were ineffectual, as he 'did what he wanted without care or regard for what his mother thought'.[91] Significantly, as Ms Hasson pointed out, despite his claim of a stable and loving home, the respondent was often sent to live with his maternal grandparents in Canberra because of his poor behaviour, and information from the Australian Federal Police shows that in 1977, when he was aged nine, he was found by the Children's Court in the ACT to be a neglected child due to incompetent guardianship and was committed to the care of the relevant Minister to be dealt with as a ward.[92]
12. There is an inconsistency also in the way the respondent has characterised the occasions he was sent to live with his maternal grandmother. In most instances, he has said he was sent away because of his poor behaviour. However, he told the author of a pre-sentence report in New South Wales in October 2008 that he 'recalled a relatively positive relationship with his maternal grandmother, stating that throughout his childhood he would reside with her for months at a time seeking respite from his home life',[93] which suggests it was for his benefit, having regard to the harsh and violent environment to which he was exposed at home. Although the respondent has referred mainly to being sent to his maternal grandmother's place in Canberra, he has also said he spent time with his paternal grandparents[94] (although he did not specify when), and he told Ms Krabbe in 2020 that he was also regularly placed in the care of his aunt (as well as with his grandparents).[95] In short, as Ms Krabbe noted, the respondent reported a transient life as a child,[96] which is not consistent with the notion of a stable home.
13. Although the circumstances in which the respondent was found to be a 'neglected child' are not explained in the materials, I surmise it was during a period that he had been sent to live with his maternal grandmother in Canberra. I note that, in her report, Ms Krabbe stated that court documents from Victoria, dating back to 1977, 'documented [the respondent] was a ward of the state for several years as a result of charges against his caregiver around Neglected Child/Incompetent Guardianship', although the court documents did not reveal the identity of the person charged.[97] The police records in the BOM indicate that the order was made by the Children's Court in the ACT, as I noted earlier, not in Victoria. However, while it is not clear what records Ms Krabbe was citing, her summary provides some context for the order.
14. In any event, the respondent's account to Dr Wynn Owen[98] suggests that he was placed in foster homes and that he ran away from such placements many times, living on the streets much of the time. The respondent also spent time in training and justice facilities for boys. When interviewed by Ms Hasson, he recalled being sent to two facilities. He said he was sent to the Baltara Reception Centre, a training and remand centre for boys in Victoria, when he was about nine or 10 years old.[99] That would appear to relate to the order that he be dealt with as a ward. He also recalled that, during his later teenage years, he was sent to Mt Penang Juvenile Justice Centre.[100] I note that his criminal record,[101] to which I will return, shows that he was first convicted of criminal offending in November 1983, when he was 16 years of age, and was 'committed to an institution in the State of New South Wales'.[102] The respondent told Ms Hasson that he remembers witnessing violence between staff and other boys in those institutions.[103] He also said that he was occasionally the target of such violence.[104] While he also reported being aware of sexual abuse in those institutions, he adamantly denied being the victim of sexual abuse, and he described himself as behaving in an 'extremely violent manner' to instil fear in others and ensure his own safety.[105] The respondent indicated that this was a strategy he had adopted for most of his life.[106]
15. Dr Riordan provided a helpful summary of the respondent's account of his personal history, noting his unreliability as a historian and identifying the consistent themes (footnotes omitted):[107]

Of relevance, the material reviewed for the purpose of this assessment indicates that Mr Carr is an inconsistent and potentially unreliable historian with respect to recounting his personal history. For example, he has previously reported to have been both a witness to and victim of significant violence perpetrated by his father, however also stated that his father had been absent from the family unit from the time that he was six months of age; that he is one of ten children, that he was provided with a (sic) stable housing and was well cared for, yet also reported to have been sent to reside variably with numerous family members, including his aunt and grandmother. What is consistent across reports is that Mr Carr's early growth and development occurred within a fragmented family system who were reported to have resided in a volatile community setting in the wharf district in Melbourne. In this community, Mr Carr reported to have been exposed to regular acts of violence and conflict from a young age. Mr Carr perceives himself to have been a difficult and rebellious child, who was unruly, violent and headstrong; behaviour that he stated neither his mother nor school was able to curb or control ... Whilst during this assessment he denied experiencing any form of abuse or neglect within the family system, early court documents indicate that in 1977 he was considered to be a 'neglected child' and was dealt with as a ward of the state.

1. The respondent's mother died many years ago,[108] perhaps as long as 14 years ago.[109] According to the respondent, they had been estranged since he was convicted of murder.[110] The respondent told Ms Hasson he severed ties with his mother, as he 'could not cope with her disappointment in him'.[111] Ms Hasson noted that, during such discussions, it was evident the respondent was actively trying to contain and repress his emotions.[112] He became fidgety and his eyes began to well with tears.[113] Ms Hasson suggested that it appeared any disapproval from his mother remained emotionally painful for the respondent.[114]
2. The respondent has been estranged from his siblings for a long time.[115] However, he had previously felt most connected to his older brother and had asked to reside with him in Kalgoorlie in his late adolescence/early adulthood.[116] He told Dr Riordan that he was drawn closer to his older brother because the latter had visited the respondent on at least one occasion while he was incarcerated (although it is not clear during which period of incarceration this occurred), whereas his other siblings had not.[117] Dr Riordan put the respondent's estrangement from his family in the context of his personality, as perceived by him:[118]

Taken as a whole, Mr Carr described himself as self-reliant, that he derives little enjoyment out of social relationships, is not someone who requires constant contact or support from family and is comfortable in his own company.

1. However, as will appear below, despite the lengthy estrangement from his family, the respondent told Dr Wynn Owen that he hoped to find and re-engage with family members if he is able to return to New South Wales after he is released.[119]

1. The respondent has consistently described a negative schooling experience. He told Ms Hasson that he truanted regularly and was frequently involved in fights.[120] He reported being bullied and teased, and acknowledged adopting a violent persona to shield himself.[121]
2. The respondent told Ms Hasson that he was 'busy earning money' when he was not at school.[122] He claimed that, apart from collecting and exchanging bottles for money, he also ran errands for gangs, 'criminal enterprises', and 'local identities', and extorted money from sex workers and their clients at his mother's brothels for not telling his mother he had been at the brothels.[123]
3. The respondent did not complete his education, and experienced difficulties with literacy.[124] However, he has said that he worked to improve his skills and is no longer illiterate.[125]
4. The respondent has spent most of his adult life in prison and has limited employment history in the community.[126] He worked as a welder and core sampler for two years while living in Kalgoorlie.[127] He also worked at some stage as a supermarket trolley collector and as a casual cleaner.[128]
5. During the periods that he has been in custody since 1987, he has engaged in various forms of work and acquired some skills. In proceedings in the Supreme Court of New South Wales in April 1999, to set a minimum term and additional term in respect of the murder offence (for which he was initially sentenced in July 1988), James J noted that the materials provided in relation to the respondent's circumstances in prison until that point in time showed that he had attained skills in reading, and had completed a ceramics-building programme, an oral communication programme and a basic food skills TAFE programme.[129] His Honour also noted that the respondent had shown himself, whilst in gaol, 'to be a multi-faceted gaol tradesman, working in many skilled jobs and in positions of trust, including, on occasions, as a head cook and as a plumber'.[130] In his recent period of incarceration, he obtained skills in refitting and repurposing school classrooms.[131] He told Ms Hasson that this could be a line of employment he could pursue if he is released.[132] He has also considered attending TAFE to formalise and improve his welding skills.[133] However, the respondent has not completed a trade or obtained any formal qualifications during his very lengthy periods of imprisonment.[134]

1. The respondent's account of his sexual development, as it emerges from the materials in the BOM, was succinctly outlined by Dr Riordan in her report (footnote omitted):[135]

Mr Carr has previously described his sexual development as unremarkable and he reiterated this again for the purpose of this assessment. When questioned as to how his early exposure to sex and sexual behaviour through his mother being involved in the sex industry as an owner of several brothels may have influenced his views and understanding of sex, Mr Carr stated that such exposure tended to normalise both sex and the sex industry. He denied suffering any adverse social or emotional outcomes due to his mother's involvement in the sex industry and further denied that early exposure to the sex industry increased his interest in sex or sexual behaviour as a consequence. He reported a preference for short term relationships and casual sexual encounters during late adolescence and early adulthood, which he perceived to be typical of his similar aged peers. He denied sexual preoccupation at any time during his life course, including using sex and/or pornography as a coping mechanism, he further denied excessive masturbation or any deviant sexual interest. He expressed sexual interest in adult women.

1. Ms Hasson noted that the respondent told her that he had engaged in various casual sexual liaisons during his time in Kalgoorlie, but he had told Ms Zuin in 2015 that he had been with few sexual partners.[136]

1. The respondent has been inconsistent in what he has said about his significant relationships.
2. The respondent told Ms Hasson that he has been involved in two serious intimate relationships.[137] He said the first relationship was with a girl in high school, which began when he was 13 years old and lasted for several years until he moved to Kalgoorlie.[138] He said there were three children from that relationship, but noted that he has had no contact with those children and has not been involved in any capacity as a parent.[139] The respondent did not mention that relationship to Dr Riordan or Dr Wynn Owen, or in earlier reporting to Ms Zuin[140] and Ms Krabbe,[141] although Dr Riordan noted that prison medical records refer to the respondent having adult children.[142]
3. The respondent told Ms Hasson that his second serious relationship was with a woman named [C] in 1987, following his release from prison at that time.[143] He said that this was a good relationship, but it broke down after a few months, following interference from a third party.[144] In her report, Ms Hasson noted that '[o]ffences were committed in the context of his relationship breakdown and [the respondent] was extradited following the completion of his sentence'.[145] In context, this was a reference to the respondent's sexual offences in 1987, for which he was subsequently extradited. Although it was not clarified during Ms Hasson's oral evidence, I surmise that the quoted sentence reflects Ms Hasson's own observation, rather than any admission by the respondent, as he denied any recollection of the sexual offences when interviewed by Ms Hasson, and he considered it unlikely he had committed the offences.[146]
4. The respondent told Dr Wynn Owen that his first significant intimate relationship was when he was aged about 18 or 19 years and living in Kalgoorlie.[147] He said that this relationship lasted over a year and ended by mutual agreement.[148] The timing of the relationship, although not the duration, appears to accord with the respondent's description to Ms Hasson of his second serious relationship, as he was 18 in 1987. If it is the same relationship, there is the further inconsistency about the way the relationship ended.
5. The respondent told Dr Wynn Owen that his only other significant relationship was with a woman he met after being released from prison in 2007.[149] He said that he lived with that woman for most of the time he spent in the community between 2007 and 2008.[150] He said that relationship ended because his partner believed he was being unfaithful but, when she realised he had not been unfaithful, they got back together.[151] He said the relationship lasted another two years while he was in prison.[152]
6. The respondent told Dr Riordan that he had been involved in 'at least two relationships of importance for him' but said that neither was maintained for a significantly long duration.[153] Dr Riordan also noted that, despite the respondent being adamant during her interview with him that he had not been unfaithful to his intimate partners, that is inconsistent with 'other material', referring to the respondent's interview with police in February 2013, when he said that the fact he had been having a sexual relationship with another woman was probably what had caused the 'rocky road' with his then girlfriend in 1986/1987, as his girlfriend may have had suspicions.[154]
7. The respondent told Ms Hasson that he had never behaved in a violent manner toward a woman.[155] As Ms Hasson pointed out, that is inconsistent with his convictions for the sexual offences. It also ignores his involvement in the 2008 offending, in which his female co-offender assaulted his ex-partner, a woman. As will appear below, the respondent's denial of violence towards his ex-partner at that time is, in effect, a denial that he physically assaulted her. The respondent was not charged with any offence in respect of the violence against his ex-partner, but the context, including his own use of violence against the male occupant of the house, suggests he was prepared to condone his co-offender's violence against his ex-partner.
8. The respondent has said that he is not interested in forming a relationship when he is released from prison.[156] He has described himself as a loner who is self-reliant, self-sufficient and happy in his own company.[157] As I noted earlier, he told Dr Riordan that he gets little enjoyment from social relationships.[158]

1. The respondent has a history of alcohol and illicit substance abuse. He has been inconsistent in his accounts about both matters. As will appear below, substance abuse has been identified as a significant factor in the assessment of the respondent's risk of committing a serious offence. It is appropriate, therefore, to outline the differences in his accounts about substance use, as well as the common threads.

1. The respondent has been relatively consistent in his accounts about his alcohol use, telling various authors of reports that he started drinking alcohol around the age of 16 years or in his late teens, and that he drank heavily when he was living and working in Kalgoorlie. He told Ms Zuin in 2015 that he did so until the age of 19 or 20 years.[159] He told Ms Hasson that the heavy drinking occurred between the ages of 19 and 20 years.[160] In his report, Dr Wynn Owen outlined the respondent's account to him as follows:[161]

Mr Carr reported that he first drank alcohol at around age 16, from which time he drank regularly and increasingly until leaving Kalgoorlie in March/April 1987 at age 19. He recalls that he would drink heavily and fight, often drinking to the extent that he could not remember all of the time when he was intoxicated. Of note his drinking at age 18 to 20 was confined to weekends or long weekends and he would not drink on the days he was working.

1. As will appear below, the respondent gave a similar account to Dr Riordan, describing going on three-day 'benders', involving alcohol and drugs, on the days he was not working.[162] He also told Dr Riordan that this would result in loss of memory, although he has been inconsistent about that issue.[163]
2. When interviewed by Ms Zuin in 2015, the respondent claimed to have stopped drinking alcohol when he left Kalgoorlie and went to NSW, the implication being that he had not consumed alcohol after that.[164] Similarly, he told Ms Hasson in May 2021 that alcohol misuse had not been a problem for him since his time in Kalgoorlie.[165] He said that consuming alcohol 'got him into trouble', and he had decided to stop drinking, as he saw the negative effects of alcohol during his childhood.[166] The respondent also told Dr Wynn Owen that he stopped using alcohol and cannabis when he left Kalgoorlie in early 1987.[167] However, Dr Wynn Owen noted that the NSW Police statement of facts in relation to the murder offence recorded that, after the offence, the respondent and the victim's girlfriend went to a beach and drank wine.[168] It is not clear from the materials in the BOM, however, whether that incident reflected a broader pattern of continuing alcohol use or was an aberration.
3. What is clear is that the respondent has been inconsistent in his account about illicit drug use and about the effects of alcohol and drugs on him.

1. The respondent told Ms Zuin that he had been a heavy user of amphetamines from the age of 17 years to the age of 19 years.[169] He claimed not to have had any issues with substance misuse in almost 30 years.[170]
2. When interviewed by Ms Krabbe in 2020, for the risk assessment prior to the end of his sentence, the respondent adamantly denied any history of illicit substance use aside from occasional cannabis use when he was younger.[171] This account was inconsistent with all other accounts he has given concerning illicit drug use, including the account he gave to Ms Zuin in 2015, wherein he admitted the use of amphetamines.
3. The respondent told both Dr Wynn Owen and Ms Hasson that he used cannabis recreationally for a brief time around the age of 15 years.[172] He told Dr Wynn Owen that he did not smoke a lot of the drug or for long, saying that he ceased after about a year, although he claimed that he continued to grow the drug.[173] He told Ms Hasson that he also occasionally smoked cannabis during the period of 10 months that he was in the community (between periods in custody) in 2007 and 2008.[174] However, as Dr Wynn Owen noted in his report, both of those accounts are inconsistent with what the respondent told the author of the pre-sentence report in 2008. On that occasion, the respondent said that, in the 10 months before going into custody that year (i.e. the period between his release from the sentence for the murder offence and his arrest for the subsequent violent offences), he smoked cannabis on average every other day, totalling a quarter of an ounce per week.[175] However, the respondent also said that he did not consider his drug use to be an unresolved issue for him, even though he had applied to enter a residential rehabilitation programme prior to his release in 2007.[176] The author of the report noted that the respondent could not guarantee that he would not return to regular use of cannabis, despite periods of abstention.
4. Contrary to his denial of any history of illicit drug use, when interviewed by Ms Krabbe, the applicant has admitted to the authors of other reports that he had a history of amphetamine use. I have already referred to his admission to Ms Zuin. The respondent also told Ms Hasson that he was a heavy user of amphetamines between the ages of 17 and 19 years.[177] He said that he stopped using amphetamines not long after he left Kalgoorlie.[178] He gave a similar account to Dr Wynn Owen, who also noted that the respondent said he 'would just fight' when using 'speed'.[179]
5. Dr Wynn Owen further noted that the respondent denied using illegal opiates, and yet he had been enrolled in a methadone programme (generally used to treat opioid dependence[180]) when he was in prison in New South Wales in 2007. The respondent claimed that he was prescribed methadone as a painkiller, the implication being that it was not for an opioid dependence.[181] He also told Dr Wynn Owen that he had participated in a programme addressing substance use while he was in prison in New South Wales.[182] Although that could not be confirmed from the available materials from the New South Wales Corrections Department, Dr Wynn Owen acknowledged those materials may not be complete.[183] I note that in the proceedings in the New South Wales Supreme Court in April 1999 to set a minimum term and additional term for the murder offence, James J referred to the applicant having completed the 'alcohol and other drugs peer education programme'.[184]
6. The respondent has denied being under the influence of alcohol or drugs during the 2008 offences.[185] However, his accounts as to whether he was affected by alcohol or drugs at the time of the sexual offences in 1987 (which he claims not to recall) have been inconsistent.
7. Dr Riordan, who interviewed the respondent in April and May of 2021, summed up the respondent's accounts about substance use up to that point in time, including his inconsistencies, as follows (footnotes omitted):[186]

Mr Carr's self-reports regarding his history of substance use have varied over time and across assessments. For the purpose of this assessment, he reported to have engaged in patterns of high intensity, high frequency poly substance use, comprising predominantly of alcohol and amphetamines. Mr Carr's criminal history indicates a charge for cultivating cannabis, however he expressed that this was not his substance of choice. This is inconsistent with earlier reports however, that documented Mr Carr to have consumed cannabis, up to daily for a large portion of his life. Mr Carr noted that his pattern of alcohol and other drug use varied dependent upon his access to substances and capacity to fund his use. As an example, he stated that while residing in Kalgoorlie, his employment roster required him to work for four days and allowed him three days off. Mr Carr recalled that he would engage in drug and alcohol use for the three days that he was not working, using amphetamines and alcohol all day, every day ('knock off and go on a 3 day bender'). He recalled engaging in substance use by himself, stating that he did not require the company of peers or work colleagues to encourage or condone his use. This pattern of substance use is consistent with what he reported to police during interview for the sexual assault charges, disclosing to police that he was using 'putting probably an eight ball and a bit away a day'. During interview, he stated that it was not uncommon for his substance use to result in complete memory loss for various periods of time. This assertion however, is in contrast to previous reports, where Mr Carr said that despite his heavy alcohol consumption in Kalgoorlie he had complete memory recall for that period of his life.

Within the prison setting, Mr Carr disclosed to have (sic) used illicit substances during earlier terms of imprisonment in New South Wales, however claimed to have abstained from illicit substance use during his current term of imprisonment. He has also previously reported to have (sic) been involved in selling substances both in the community and prison setting. He has been a recipient of the Methadone program while in custody in New South Wales, indicating a potential reliance on opioid based substances. However[,] inspection of previous reports indicates that Mr Carr had justified his request for Methadone as providing him access to stronger pain medication rather than for the treatment of opioid dependency. Mr Carr does not appear to have been a recipient of opioid replacement therapy during his current term of incarceration. Inspection of the substance use test results for his current term of imprisonment accords with Mr Carr's assertions regarding abstinence from substance use, with all tests results returning a negative result for alcohol and other drugs over time. It is noteworthy that the substance use history offered by Mr Carr for the purpose of this assessment differs markedly from that outlined in the Psychological Risk Assessment Report completed only four months ago. In particular, Mr Carr's stance on the role and function that substances use and intoxication played in the sexual assault offence are in stark contrast to each other. That is, in Ms Krabbe's report, she outlines that Mr Carr was adamant that he was not intoxicated at the time of the sexual offence, whereas in the current assessment, Mr Carr depicted himself as heavily intoxicated from the use of both alcohol and amphetamines.

1. The respondent's admission to Dr Riordan that he had used illicit substances during earlier periods of imprisonment in New South Wales is inconsistent with what he said to Ms Zuin in 2015, when he admitted selling drugs, but denied using them, while in prison.[187] As it is unlikely the respondent would make an admission against interest if it were not true, I accept he was telling Dr Riordan the truth. However, the inconsistencies in his accounts add to the concerns raised earlier in respect of his reliability as a historian. Those concerns are most significant when dealing with matters that may constitute criminogenic factors.
2. That said, the respondent's denial of illicit substance use during his most recent period of incarceration is supported by the evidence of urinalysis testing, which shows that he has consistently returned negative results for drug and alcohol tests in prison since arriving in Western Australia in 2013.[188]

1. Dr Wynn Owen considered there was nothing of note or direct relevance to risk in the respondent's medical history. The respondent described himself to Ms Hasson as 'fit and healthy'.[189] He said that, apart from asthma and chronic insomnia, he does not have a history of significant health issues,[190] although he told Dr Riordan that he also experiences chronic back pain.[191]

1. The respondent's mental health history is encapsulated in his statement to Ms Krabbe that he has a 'longstanding history of mood instability and anger episodes'.[192] He told Ms Krabbe that, from as early as eight years old, he would feel like he would 'lose control of himself' and not be able to regulate his emotions.[193] He described his anger as 'explosive' and his behaviour as 'impulsive'.[194] He said that this behaviour continued into adolescence and led to him having trouble with the law.[195]
2. The respondent was diagnosed with bipolar affective disorder in 2008.[196] The validity of that diagnosis has been questioned by Dr Wynn Owen, but it appears that the medication that has been prescribed to him based on that diagnosis has been beneficial for the respondent. Dr Riordan noted that, at the time the respondent was assessed for these proceedings, his psychopharmacological regime consisted of a mood stabiliser (sodium valproate), anti-psychotic medication (quetiapine), anti-depressant medication (amitriptyline) and pain medication (tramadol).[197] The respondent had been on that medication since 2008. He had been compliant with the treatment regime and his mental health was stable.[198] That was confirmed by the respondent's treating psychiatrist in the prison, Dr Bilyk, who had reviewed the respondent for the previous five years.[199]
3. The respondent told Ms Hasson that he credited the medication with assisting him to maintain a more even temperament, stating that he now thinks about what he is doing and makes different choices about his behaviour.[200] Similarly, he told Dr Riordan that the medication assisted him significantly in managing his emotional state and violent behaviour.[201] Acknowledging that the treatment regime had been highly effective, he said he would continue to take the same medication when he is back in the community.[202]
4. According to Dr Riordan, the prison medical records indicated that the respondent had accessed mental health care through the State Forensic Mental Health Services, Prison Inreach Service, which suggests he has been proactive in dealing with his mental health issues. However, Dr Riordan also noted that 'the medical records demonstrate variable engagement with mental health services, with an established pattern of not attending mental health reviews and medical reviews as scheduled'.[203] When questioned about that, the respondent expressed the view that regular medical and mental health reviews were of little value if his medical and mental state remained stable. He said he would attend medical and mental health appointments should his physical and mental health deteriorate.[204] As I will discuss later, this attitude is concerning, when considering the prospect of the respondent being released into the community, in that proper monitoring of his mental health will require compliance with scheduled appointments as well as with his medical regime. That is in a context in which his violent offending is considered to be causally related to his mental health issues. Dr Bilyk was of that opinion when speaking with Dr Riordan.[205] Therefore, while Dr Bilyk was also of the view that the respondent would not currently meet the threshold for follow-up with a mental health service in the community,[206] she believed that a referral to the Community Forensic Mental Health Service may be warranted.[207]
5. Dr Wynn Owen noted that the diagnosis of bipolar affective disorder was made in New South Wales, and that no materials were provided in relation to the respondent's presentation at that time.[208] He also noted that 'throughout the time that the respondent was in WA the medical record [did not] indicate that [he had] had any manic or depressive episodes that would be required to make that diagnosis'.[209] He said that, during his assessment of the respondent, he asked him about his experience of 'those types of episodes', and what the respondent described was 'something rather different'.[210] In Dr Wynn Owen's opinion, the respondent's symptoms of episodic uncontrollable anger and ongoing irritability do not indicate the presence of a bipolar disorder.[211] In his opinion, the respondent does not meet the criteria for a diagnosis of bipolar disorder, as his history does not contain distinct periods of depression and mania.[212] However, Dr Wynn Owen believed that the medication regime remained appropriate to deal with the symptoms described by the respondent, which are consistent with a different disorder.[213]
6. As I will discuss further when dealing with Dr Wynn Owen's assessment of the respondent's risk, in his opinion, the respondent meets the relevant diagnostic criteria for schizoid personality disorder with antisocial traits, and for intermittent explosive disorder.[214]

1. The respondent's history of offending was summarised in the Chronology of Offending prepared by the applicant,[215] and can be discerned from the respondent's criminal record and other materials in the BOM in respect of his previous serious offending.

1. The respondent has a significant juvenile criminal record. It is appropriate to have regard to his juvenile offending for at least two reasons. First, as will appear in the psychiatric and psychological assessments, that history is relevant to the development of the respondent's attitudes and personality from a young age, and those are important factors in assessing his risk of future violent offending. Secondly, there was no significant gap between the respondent's juvenile offending and his offending as an adult. His offending may properly be regarded as having occurred on a continuum. His most serious adult offending occurred when he was a young adult, after having engaged in criminal behaviour as a juvenile.
2. In November 1983, when he was about 16 years old, the respondent was convicted in the Canberra Children's Court of offences of breaking and entering and stealing, assault, and escaping lawful custody. He was committed to an institution in New South Wales.[216]
3. In June 1984, the respondent was convicted in the Canberra Children's Court of unlawfully using a motor vehicle.[217] In November 1984, he was convicted in the same court of offences of malicious wounding, unlawful use of a motor vehicle (8 counts), assaulting a police officer, malicious damage, and breaking and entering and stealing (5 counts). He was committed to an institution in New South Wales for two months.[218]
4. In July 1985, the respondent was convicted in the Midland Children's Court of offences committed by him in Western Australia (the dates of the offences are not recorded), namely unauthorised use of a motor vehicle, driving without a motor driver's licence and speeding. He was fined and disqualified from holding or obtaining a motor driver's licence for three months.[219] In October 1985, the respondent was again convicted of unauthorised use of a motor vehicle, driving without a motor driver's licence and making a false report to police (again, the dates of the offences are not recorded). On that occasion, he was sentenced in the Brookton Children's Court to imprisonment for 3 months for unauthorised use of a motor vehicle and fined for the other offences. He was again disqualified from holding or obtaining a motor driver's licence for three months.[220]

1. In June 1986, the respondent was convicted in the Perth Court of Petty Sessions of offences of cultivating cannabis, speeding, driving without a motor vehicle licence and supplying a false name. He was fined and disqualified from holding or obtaining a motor driver's licence for three months.

1. On 6 March 1987, the respondent committed the offences in Kalgoorlie, Western Australia which included the first of his serious offences, being two counts of aggravated sexual assault. At the same time, he committed offences of breaking and entering a dwelling with intent, and deprivation of liberty. As I noted earlier, he was not apprehended for those offences until 2013, after a cold case review established that he was responsible for the offences. I will deal with the circumstances of that offending in detail below.
2. After the offending in Kalgoorlie, the respondent returned to New South Wales.

1. On 4 May 1987, he committed the offences of malicious wounding and assault. The victim was the respondent's brother-in-law. The two of them were drinking and began to argue. The respondent produced a carving knife and cut the victim with it, causing lacerations to his chin and hand. The lacerations were described in the police report as 'minor'.[221] After the assault, the respondent left the property and could not be found in the area when police searched for him soon after. Later in the day, the respondent returned to the address with another carving knife and cut the victim's fingers, while menacing him.[222] Police were called to the scene and arrested the respondent. He was convicted in the Newcastle Local Court on 29 May 1987 and was sentenced to 6 months' imprisonment, backdated to 5 May 1987.[223] The court recommended psychiatric assessment and treatment of the respondent, if required.[224]

1. On 21 September 1987, having been released after serving four months of the sentence imposed for the malicious wounding, the respondent murdered the victim of the malicious wounding, his brother-in-law. I will deal with that offending in detail below. The respondent was convicted of the offence of murder after a trial before a jury in the New South Wales Supreme Court. He was sentenced by Mathews J on 29 July 1988. Her Honour imposed the mandatory term prescribed by the law at that time, namely penal servitude for life, which was ordered by her Honour to date from 1 October 1987.[225]
2. On 23 April 1999, the New South Wales Supreme Court heard an application by the applicant under s 13A of the Sentencing Act 1989 (NSW) for determination of a minimum term and an additional term, as the law allowed at that time in respect of terms of life imprisonment.[226] The application was not opposed by the Crown.[227] At the conclusion of the hearing, James J set a minimum term of 13 years and 6 months penal servitude, which was to date from 1 October 1987 and was to expire on 31 March 2001, and an additional term which was to date from 1 April 2001 and expire on 31 March 2007.[228] His Honour took into account the fact that the respondent was still a young man (at the age of 31) and that he had undertaken rehabilitation programmes and gained skills while in custody.[229]
3. The respondent was released from custody at the expiration of his sentence on 31 March 2007.

1. While in custody, serving the sentence for murder, the respondent had committed offences of assault (on or about 6 June 1990), malicious damage (on or about 27 March 1995), possession of a prohibited drug (19 June 2005) and destroying or damaging property (2 counts, 15 January 2007). For each of those offences he received short terms of imprisonment.[230]
2. Although there is no official information in the BOM in respect of the assault offence in June 1990, it would appear to correlate with an offence described by the respondent to Ms Hasson when interviewed for these proceedings. Ms Hasson reported:[231]

He discussed a serious assault on a prison officer as having been motivated by a need to 'establish a pecking order in prison'. His reasoning was that the officer had 'spoken down' to him and 'belittled' him in front of other prisoners and that such behaviour was 'not going to fly' with him and as a result he 'bashed and stomped on' the prison officer to 'show I was not afraid to attack anyone' and to send a message that 'if I attack him, I'll attack you'. Mr Carr indicated that he never had a problem in prison with other prisoners from that day on. He further commented that there were repercussions for him in the short-term such as being placed in segregation and punishment for two years and that he was targeted by officers for a while however that eventually also settled. It was a calculated cost/consequence he was prepared to pay.

1. After being released from custody on 31 March 2007, the respondent committed a further violent offence in New South Wales, which was associated with offences of aggravated breaking and entering and destroying or damaging property. Those offences were committed on 16 January 2008. They were committed in the context that, having been in a relationship with a woman, Ms F,[232] the respondent had commenced a relationship with his co-offender, Jennifer Corkin.[233] The home upon which the breaking and entering offence was committed was occupied by Ms Corkin's mother, Ms D, and her housemate, Mr B. Ms D and Ms F were friends. The respondent had met Ms Corkin when he and Ms F had attended a party at Ms D's home. When Ms F discovered that the respondent was in a relationship with Ms Corkin, she decided to leave the respondent and moved her belongings to Ms D's home on 16 January 2008. She sent a text to Ms Corkin, asking her to tell the respondent that she had only taken her belongings and she could not 'live like this'.[234] However, she had inadvertently taken the respondent's bank keycard in her purse.
2. Subsequently that day, Ms Corkin called Ms D, wanting to know where the respondent's keycard was. Ms F could hear the respondent shouting about the whereabouts of his keycard. Ms Corkin made a threat to Ms D that she and the respondent were coming to get them.[235] Mr B, who was home at that stage, became aware that Ms F and Ms D were frightened, and locked the doors. The respondent and Ms Corkin went to the house and, after banging on the door, kicked it open. Mr B shouted at them to leave the house. The respondent ran at Mr B and punched him hard in the left eye. He then dragged Mr B outside onto the verandah where he punched him several times to the face. Mr B retaliated, punching the respondent. The respondent then produced a kitchen knife, which he placed near Mr B's throat. Mr B was forced out of the front gate. He ran from the scene and hid. As a result of the assault by the respondent, Mr B suffered bodily harm in the form of bruises and cuts, being cuts above and below his left eye, a cut to his right ear and a cut to his foot, some or all of which had resulted in bleeding. He required stitches to all of the cuts.
3. After Mr B had left, the respondent returned inside the house and demanded his card from Ms F, in abusive terms. Ms F gave the card to Ms Corkin. In the meantime, Ms Corkin was abusing her mother. The respondent took her by the arm and they left. Moments later they stormed back inside and the respondent again demanded his keycard. Ms F said she had given it to Ms Corkin. Ms Corkin then grabbed Ms F by the hair and smashed her head into the kitchen wall several times, before punching her in the face several times. Ms Corkin then assaulted Ms D in a similar way. At one stage, the respondent held the kitchen knife to Ms D's throat while threatening her.
4. The respondent and Ms Corkin then left the house. Before doing so, Ms Corkin threw a chair at her mother and smashed a vase and a glass table. The respondent and Ms Corkin were located by police later that day. They were seen to be arguing. When police sought to arrest them, the respondent resisted.
5. On 19 December 2008, in the District Court of New South Wales, the respondent was convicted on his pleas of guilty of one count of aggravated breaking and entering a dwelling house and assaulting Mr B thereby occasioning him bodily harm, and one count of resisting a police officer. He was sentenced to 5 years, 1 month and 5 days' imprisonment for the aggravated breaking and entering and causing bodily harm, and 6 month's imprisonment for the offence of resisting a police officer.
6. The respondent was released from those sentences on 20 February 2013, and was immediately taken into custody and extradited to Western Australia for the historical sexual assault offence.
7. Ms Hasson, in her report, set out the account given by the applicant to her in respect of the 2008 offences as follows:[236]

Regarding the offences committed in 2008 Mr Carr stated that he was not under the influence of any alcohol or drugs. He acknowledged that his co-offender was and that the victims had been drinking. As noted previously Mr Carr denied being in a sexual relationship with his co-offender insisting they were friends and that his relationship with his former girlfriend had broken down due to trust and jealousy issues with doubt fuelled by third party interference.

Mr Carr acknowledged the assault on the male housemate indicating that this man had also behaved aggressively stating that 'he came at me and I defended myself'. Mr Carr also implied that he had shown some restraint in the assault on this man indicating that it 'could've been worse' alluding to previous comments about ensuring that any victim does not have the capacity to seek revenge on him at a later date by the nature and severity of injury inflicted. Mr Carr maintained that he did 'not lay a finger on the females' and that he did not enter the house. He further commented that he had not gone to the house with the intention of hurting anyone, he only wanted his key card back.

1. Irrespective of the background to the offending and the respondent's intention in going to the house (noting that Ms Corkin had threatened Ms D during the earlier telephone call), the respondent's account to Ms Hasson is inconsistent in important respects with the factual basis on which he was sentenced, according to the materials in the BOM, to which I referred. That is particularly so in respect of his claim that he was acting in self-defence and his denial of entering the house. The latter denial is inconsistent with his plea of guilty to the offence of aggravated breaking and entering and committing an offence in the premises. The respondent did not give evidence in the present proceedings, and it is not possible to assess what weight can be given to his account other than by reference to the fact that he pleaded guilty and that the facts on which the prosecution relied are inconsistent with his account. In those circumstances, the conviction for the offence of breaking and entering and the facts on which the prosecution relied are sufficient proof of those facts when considering the respondent's propensity for violence and his risk of violent reoffending.
2. However, the respondent's statements to Ms Hasson about showing restraint are concerning, in that they tend to suggest an attitude condoning significant violence of a kind and severity that would incapacitate a person from seeking revenge.

Offences that constitute serious offences under the Act

6 March 1987 - Aggravated burglary, deprivation of liberty and two counts of aggravated sexual assault

1. The facts of the respondent's offending on 6 March 1987 were outlined in the applicant's chronology of the respondent's offending and the police statement of material facts in respect of the offending, and can also be discerned from the victim's evidence at trial[237] and the sentencing judge's remarks.[238]
2. At the time of this offending, the respondent was 19 years old.
3. At approximately 1.00 am on 6 March 1987, he broke into a residential unit in Kalgoorlie, with the intention of committing an offence in that place. He lived a few doors down the road in a rental property.[239] The unit he broke into was the home of the victim and her partner. At the time of the offence, the victim, who was 16 years old, was home alone, asleep in her bed. Her partner was working a night shift.
4. The respondent entered through a window, made his way to the victim's bedroom, where she was sleeping, and got into bed with her. The victim woke and realised someone was on her bed, but initially thought it was her partner who had come home early. However, when the respondent started to kiss her, she realised he was not her partner and tried to get up. She was then confused, wondering who it was. She said in evidence that the offender smelled quite strongly of alcohol.[240] The respondent punched her to the face, knocking her off the bed. He then punched her several more times to her face and body and dragged her back onto the bed. She said in evidence that she was screaming and telling the offender to stop.[241] At that stage she managed to fight the respondent off and was able to escape out onto the driveway. The respondent chased her, telling her to shut up, calling her abusive names, and threatening to kill her.[242] He tackled her and knocked her to the ground, face first onto the gravel.[243] He continued to punch her body and face several times, and struck her head on the ground.[244]
5. The respondent then forced the victim to return to the property, initially dragging her by the throat along the gravel, causing her gravel rash.[245] She said in evidence that when she agreed to cooperate, because of the pain, the offender still dragged her inside.[246] He forced her onto her bed with the intention of sexually penetrating her, and overcame her physical resistance to the sexual acts by further brutal violence, including choking her to the point that she almost lost consciousness and striking her on the head and neck with a heavy blunt instrument, which the sentencing judge was satisfied was probably an iron.[247] The respondent sexually penetrated the victim by forcing his penis into her mouth and by penetrating her vagina with his penis. Each act was charged as an aggravated sexual penetration without consent (also referred to as aggravated sexual assault), the circumstances of aggravation being that the respondent did bodily harm to the victim, and that he was armed with an offensive instrument, namely an iron. He was found guilty of both circumstances of aggravation.
6. The victim gave evidence that the offender used profane and derogatory language to describe her during the attack and threatened to kill her.[248] She said she believed she lost consciousness a couple of times and that she tried to fight him off by scratching at his face, but he would not stop.[249]
7. The respondent ceased his offending when he became aware of the flashing lights of a police vehicle, which indicated the police were on the street. The police had been called by concerned neighbours. The respondent left the unit and was able to escape because of his familiarity with the area. As I noted above, soon after, he left Western Australia and travelled to New South Wales where he committed subsequent offences of violence.
8. The victim gave evidence that, as a result of the attack, the t-shirt she was wearing was covered in blood.[250] She had very bad bruising on her face and her neck was very swollen and bruised from the choking. She also had gravel embedded in her hands and legs. She said she was beaten and bruised everywhere.[251] She spent three days in Kalgoorlie Regional Hospital following the incident and subsequently required a number of visits to her GP.[252]
9. The victim submitted a victim impact statement for the sentencing hearing, describing the physical, psychological and financial impact of the offending upon her and the referred impact upon her family.[253] Apart from the immediate physical impacts to which I have referred, the victim had scarring that caused ongoing discomfort and cosmetic issues. She had suffered major depression and post-traumatic stress disorder, and her self-confidence and esteem continued to be affected, compromising her social activities and independence within society.[254]
10. The respondent was interviewed about the offending, as a suspect, at Port Macquarie Police Station on 21 February 2013, after a cold case review identified DNA linking him to the offending. During the interview, he indicated that he was aware the police had DNA evidence and said, '... so I can't say it wasn't me, because I don't know. I can't remember.'[255] Later he said, 'I can't say that what happened didn't happen.'[256]
11. As I outlined earlier, the respondent was convicted after trial of aggravated burglary, deprivation of liberty and two counts of aggravated sexual assault. On 21 January 2015, he was sentenced to a total effective sentence of eight years' imprisonment for the offences. In imposing that sentence, the sentencing judge took into account the fact that the respondent had a troubled life from a young age, and his 'thwarted needs' had a significant impact in shaping his personality, lifestyle choices and behaviour.[257] His Honour also took into account the time the respondent had spent in custody since the offences had occurred, albeit for other offending, noting that the respondent had become institutionalized to a certain extent.[258] His Honour had regard to the totality principle of sentencing as a factor that would reduce the total effective sentence, but was of the view that the reduction might be less than it otherwise would have been because the respondent had not sought to rehabilitate himself while in prison, he had demonstrated pro-violence beliefs, by virtue of assaults he had committed in prison, and he was assessed by the psychologist who had assessed him for the sentencing proceedings (Ms Zuin) as being of a moderate to high risk of reoffending.[259] His Honour noted that there remained a need for personal deterrence and protection of the community.[260]
12. The respondent appealed against the convictions and the sentence. His appeals were dismissed by the Court of Appeal on 16 May 2016. In dealing with the sentence appeal, Mazza JA, with whom McLure P and Corboy J agreed, said:[261]

There appears to be no acceptance of responsibility on the part of the appellant, nor is there any remorse for his actions. Personal and general deterrence are important sentencing considerations in this case.

The only real mitigating factor is the appellant's youth at the time of the offending. However, the mitigating effect of this factor is diminished by his continued and serious offending after he committed these offences, and the risk he poses to the safety of the community in the future.

1. As I outlined above, the victim of the murder offence ('the deceased') was the respondent's brother-in-law, against whom he had committed the malicious wounding offence in May 1987. The respondent was found guilty by the jury after a trial in which he had, in an unsworn statement, asserted that he was not present at the time of the killing. I note that, since that time, the respondent has admitted the offence. I will deal with his explanation for the offence below. The materials in the BOM, from which the circumstances of the offence can be discerned, consist of the police report of the incident[262] and the trial judge's remarks at the time of sentencing the respondent.[263] No issue was taken by the respondent, in these proceedings, with the facts and comments contained in those materials.
2. The facts stated in the police report, upon which I rely, are to the following effect. On the evening of 21 September 1987, the respondent went to the deceased's flat, where the deceased was in the bathroom with a woman named Julie McMillan, who appears to have been his partner. The bathroom was down a hallway from the flat and was described as being 'detached' from the flat. The deceased heard a commotion in the hallway. He dressed and went to investigate. In the hallway he was confronted by the respondent, who punched him to the floor. The respondent then grabbed Ms McMillan from the bathroom and took her to the entrance of the flat, where the deceased was still prostrate on the floor. The respondent grabbed the deceased by the collar and dragged him inside the flat. The respondent hit Ms McMillan and pushed her into the bedroom. He then punched and kicked the deceased, rendering him unconscious. While the deceased was unconscious, the respondent cut his throat with a fishing knife, which belonged to the deceased. The laceration severed the deceased's carotid artery and windpipe and caused his death. The respondent's assault on the deceased was described as 'extremely violent', as the victim suffered multiple fractures to his cheekbones, nose, mandible, sternum, collarbone and ribs.[264]
3. After killing the deceased, the respondent took two bottles of wine from the flat and left with Ms McMillan, locking the exterior door to the premises as he left. The respondent and Ms McMillan went to a beach where they drank some of the wine.
4. The respondent was initially interviewed by police for several hours on 30 September 1987, at which time he was adamant that he was innocent.[265] He was released at that stage due to a lack of evidence. Ms McMillan was also interviewed by police that day as a suspect, and she gave them the account from which the facts in the police report were derived.[266] She was charged as an accessory after the fact to murder. The respondent was interviewed again on 1 October 1987, at which time he 'readily admitted murdering [the] deceased and substantially agreed with the account given by [Ms] McMillan'.[267] In his witness statement, the investigating officer, Detective Senior Constable McBride, said that, while the respondent was being conveyed to the police station on 1 October 1987, he was told that Ms McMillan was making a statement and that she had implicated the respondent in killing the deceased. Detective McBride stated that the respondent responded with, 'I was going to kill that fuckin bitch, I'm sorry I didn't.'[268] When asked what he meant, the respondent said that if Ms McMillan had not said anything, no one would have found out.[269]
5. In sentencing the respondent, Mathews J made the following remarks, which shed further light on the facts and the nature of the offence:[270]

It was a brutal, savage and unprovoked attack upon this man. He took some steps, it seems, in the earlier stages of the confrontation with you to defend himself, but the injury which was finally inflicted which led to the death of this man, namely the cutting of his throat, was done at a time when he was either unconscious or approaching unconsciousness. As such it was a vindictive and savage attack, and there are no circumstances at all which can in any way diminish your culpability for this offence.

Indeed, the evidence adduced in the Crown case showed it to be even more serious, because of what had previously occurred between you and this man. For the evidence showed that some six months earlier you had stabbed the same victim, albeit not particularly seriously. As a result you were charged with malicious wounding, for which you were convicted and sentenced to six months imprisonment. It appears from your record that that was your first time in an adult gaol.

You clearly bore a grudge against [the deceased] for causing that incarceration, and it was this grudge which led you to seek him out on the night of 21 September, and which ultimately led to his brutal and unprovoked death. It was a completely unnecessary tragedy and one for which you bear the entire responsibility, with no mitigating features whatsoever.

Respondent's statements in respect of the sexual offences committed in 1987

1. The respondent has been inconsistent in his attitude to the sexual offences he committed in 1987. He has consistently said he has no recollection of the offending, but the level of his acceptance of responsibility for the offending, and therefore the need to address the risk that he may offend again in the same way, has varied. As will appear below, his inconsistent statements also tend to confirm his unreliability as a historian.

Interview at Port Macquarie Police Station 21 February 2013

1. When interviewed at the Port Macquarie Police Station on 21 February 2013, the respondent said that he did not remember anything about the incident in Kalgoorlie. He said he was drinking hard and using drugs, and that he had 'bugger all' memories of Kalgoorlie.[271] However, as I outlined above, upon understanding that the police had DNA evidence linking him to the offence, he effectively conceded that he could not exclude he was the offender.[272] He said he was not looking to 'shelf it to anyone else', and that, if it was him, he would 'wear the blue'.[273] He said he wanted to 'get this stuff dealt with ... whatever the consequences'.[274]

1. At the trial, in October 2014, the respondent did not give evidence, but through cross-examination of the complainant, he sought to suggest that the offender could have been one of her neighbours,[275] which was inconsistent with being prepared to accept the consequences or 'wearing the blue'.

Psychological report of Ms Zuin, 11 January 2015

1. When interviewed by Ms Zuin in 2015 for the sentencing proceedings, the respondent maintained a staunch denial of the offending, claiming that, despite being a heavy drinker when he was living in Kalgoorlie, he did not have any 'blank spots' and he 'remember[ed] everything'.[276]
2. In her report, Ms Zuin noted that, due to the respondent's denial, the psychological underpinnings of his offending could not be determined.

1. When interviewed by the author of the pre-sentence report for the same sentencing proceedings, the respondent denied committing the offences and expressed no remorse or victim empathy.[277]
2. However, I note that, in her report, Ms Zuin had said:[278]

Somewhat incongruent with his general demeanour of emotional detachment and of lacking remorse and empathy for other offences/victims in his past, Mr Carr claimed he felt 'crushed' to see the victim give evidence in court.

Risk Assessment Report of Ms Krabbe, 22 December 2020

1. In her Risk Assessment Report of 22 December 2020, Ms Krabbe reported that the respondent maintained a 'denial stance' in respect of the incident involving the sexual offences, but said that 'a slight shift was noted' in his attitude.[279] The respondent acknowledged that he had been in Kalgoorlie at the relevant time and had been 'out of control' mentally.[280] He said he had limited recollection of that time, but he recalled 'being incapable of controlling himself'.[281] He said that sexual offending was not his usual violent pattern, but acknowledged that 'it was always a possibility he did it'.[282]
2. In speaking with Ms Krabbe, the respondent said that he was not using drugs at the time of the incident in Kalgoorlie, and, although he said he was 'intermittently consuming alcohol', he denied that alcohol would have contributed to his lack of memory, or that it could have been a disinhibiting factor for him.[283] I note that his denial of drug use was inconsistent with what he told the police in February 2013 and what he told Dr Riordan, Ms Hasson and Dr Wynn Owen in the interviews for these proceedings (see below). Moreover, his failure to accept that alcohol and drugs could have been disinhibiting factors for him demonstrates a lack of insight by the respondent, at that time, into a potential criminogenic factor.

1. When interviewed by Dr Riordan on 14 April 2021 and 5 May 2021,[284] for the purposes of these proceedings, the respondent again said he had no recollection of the events that comprised the sexual offending, or of any of the events that may have preceded or followed the sexual offences. He said that there were days or weeks of his life that he could not account for due to a pattern of high frequency, high intensity substance use at the time.[285]
2. Dr Riordan noted that:[286]

Despite his reported lack of memory, Mr Carr maintained his stance of accepting the DNA evidence as conclusive proof that he did perpetrate the offence and therefore accepted responsibility for the offending. (Italics added)

1. It is obvious from the history I have outlined that this was not the respondent's stance at the trial or when he was sentenced. Further, as I also noted above, even at the time of the risk assessment by Ms Krabbe in 2020, the respondent was somewhat lukewarm in acknowledging the possibility that he had committed the offences. On its face, what he said to Dr Riordan suggests a change in his attitude, even if it was reverting to his stance at the time that he was interviewed by police about the incident in 2013, as I outlined above. However, as will appear below, when interviewed by Ms Hasson and Dr Wynn Owen around the same time as his interviews with Dr Riordan, the respondent's attitude again suggested a return to a stance of denial.
2. Dr Riordan also said that the respondent expressed shame and regret for the impact of his offending on the victim of the sexual offences and expressed fear of the type of behaviour he may be capable of when intoxicated.[287] Again, this is inconsistent with his denial to Ms Krabbe that alcohol would affect his memory or could be a disinhibiting factor in his behaviour. Whether or not it demonstrates a gain of insight needs to be considered in the context of the whole of the evidence from the experts in respect of the assessment of his risk.

1. When interviewed by Ms Hasson on 5 May 2021[288] (which, coincidentally, was the date on which Dr Riordan saw the respondent for her second interview with him), the respondent 'indicated that he had no recall of the sexual offences due to his consumption of alcohol and amphetamines during the time he lived in Kalgoorlie'.[289] As Ms Hasson noted, he stated, equivocally, that he could 'neither confirm nor deny he had committed the offence because he could not remember'.[290] However, he went on to make statements that were, in effect, a denial of offending. Ms Hasson reported:[291]

When asked if he thought it was likely that he might have done something, he indicated that he thought it unlikely he would rape a woman. Mr Carr indicated he did not know how his DNA was found on the victim's clothing, and that DNA from 3 other people was also present, and that the sexual assault might have been perpetrated by one of those individuals. Mr Carr does not consider he has treatment needs in this domain, maintaining the view that he has never harmed a woman. Mr Carr stated that it was purely a coincidence that he chose to leave WA a few days after the sexual assault.

1. When interviewed by Dr Wynn Owen in June 2021, the respondent again said that he had no recollection of sexually offending in March 1987. He told Dr Wynn Owen that he would work four days a week, then drink alcohol and use drugs, including amphetamines, over the long weekend break.[292] He recalled very heavy alcohol use around that time, 'such that he would occasionally not fully recall events', although he also said that he always remembered something of what had happened.[293] Dr Wynn Owen reported that, on further exploring the sexual offending, the respondent said, 'I can't discuss something I didn't do',[294] which, as I noted earlier, indicates a return to denying he committed the offences.
2. At the hearing, Dr Wynn Owen agreed that the respondent had been more categorical in his denial when interviewed by him than he had been with some other interviewers.[295] When asked what he made of the inconsistencies in the various accounts the respondent had given, Dr Wynn Owen said that it was an interesting question, and offered the following analysis:[296]

I believe this is a man who is trying to come to terms as why he's been in prison for so long in relation to one offence which he absolutely acknowledges and one which he doesn't. And he is trying to understand that because that's there on his criminal record, that he has to accept that there's a possibility. But when you push him and confront him with it, he basically makes that clear statement that he has no recollection of it. No recollection at all.

1. When I sought further clarification, in light of the very significant differences in the respondent's accounts, including as to whether he had blackouts, and whether drugs and alcohol were disinhibitors, Dr Wynn Owen said that it is necessary to take into account that the sexual offending was 35 years ago, so there are changes in memory, particularly as the respondent was still an adolescent at the time, at the age of 18 or 19.[297] He said:[298]

But I believe that it's just about a man who through his maturity is trying to reconcile and understand his own behaviours rather than a particularly malicious representation to avoid consequence or to change outcome. It may be that saying that he wasn't using drugs was a feature of impression management, but I didn't find that impression management was a particular feature of my interviews with Mr Carr.

Respondent's statements in respect of the murder offence committed on 21 September 1987

1. In relation to the murder offence, despite his stance at the trial, the respondent has admitted the offence in subsequent interviews and has accepted responsibility. However, his accounts of the offending have not been consistent or reliable, having regard to the facts presented to the court at his trial, and his attitude to the offence has also varied over time.

1. As I outlined above, although the respondent's record of interview with the New South Wales police on 1 October 1987 is not in the BOM, the police report indicates that he substantially agreed with the account given by Ms McMillan.

Psychological report of Ms Zuin, 11 January 2015

1. In her report of 11 January 2015, Ms Zuin said that the respondent's attitude towards violence was somewhat concerning. She said that he expressed no regret or remorse either for murdering his brother-in-law, or for assaulting various individuals in his lifetime.[299]
2. Ms Zuin noted that the respondent impressed as having enjoyed notoriety associated with having murdered someone.[300] She noted that an overall marked lack of remorse and empathy for violent offending was evident.[301]
3. I note that the respondent was 47 years old at the time of that interview, so his attitudes could not be put down to youth or immaturity.

1. In her report, Dr Riordan noted that, contrary to his previous stance:[302]

Mr Carr expressed remorse for the death of the victim, stating that, while he acknowledged that he was a 'violent person' at the time, ... he continues to experience difficulty coming to terms with the fact he is capable of such an extreme act of violence.

1. Dr Riordan said that the respondent referred to experiencing post trauma symptoms.[303]
2. I note finally, in this context, that, in describing the respondent's general presentation during her interview with him, she said:[304]

He was observed to become distressed and teary when discussing his offending behaviour; an expression of emotion that he apologised for and reported to have been attempting to stifle.

1. Later in her report, Dr Riordan said that it was while discussing the murder offence that the respondent became visibly distressed.[305] This tends to suggest that, at that point in time, the sentiments he expressed about the murder offence were a genuine reflection of his state of mind. If that were so, it would suggest a positive development in his insight that may bear upon the manageability of his risk. However, as has been characteristic of the respondent's various accounts, he did not remain consistent in that presentation.

1. In her report, Ms Hasson said that the respondent provided a clear account of the circumstances prior to and during the commission of the murder offence.[306] She said that the respondent clarified that the deceased was not his brother-in-law, but was a male acquaintance, and that the deceased's girlfriend was also an acquaintance.[307] I note that the nature of the respondent's relationship with the deceased does not affect the seriousness of the offending or the way in which it affects the assessment of his risk of future violent offending. In these reasons I have adopted the description of the relationship contained in the materials relating to the respondent's sentencing in 1988.
2. The respondent told Ms Hasson that he and the deceased did not get along and did not like one another.[308] He described the deceased as a 'nasty drunk' and said that the earlier assault on him was the result of his negative views about the deceased and a disagreement.[309] He recalled that the time he spent in prison for the malicious wounding offence against the deceased was exceedingly difficult, as a 19-year-old, and he described the prison as a degrading and extremely violent place.[310] He said that he was very angry and vengeful upon release.[311]
3. Ms Hasson noted the following description by the respondent of his violent and vengeful ideation, both prior to and after the murder, and not related solely to the murder:[312]

[F]or years prior to the murder and for some considerable time afterwards he had experienced violent ideation with themes of retribution, retaliation and vengeance and that such thoughts were 'extremely violent' and at times homicidal in nature. Mr Carr described occasions in the past when he has 'waited to retaliate' and that when he had done so it was in a 'calculating' manner. Mr Carr further noted that he knows such thinking is wrong but back then he did not care and that when the opportunity arose and he did finally act on such thoughts he lashed out with extreme violence because 'I don't want them to come back at me later'.

1. Ms Hasson noted that it was that type of thinking that was a significant contributor to the respondent killing the deceased.[313] However, while the respondent admitted that he had ruminated about revenge, he claimed in his account to Ms Hasson that, when he confronted the deceased, the latter was armed with the knife that the respondent ultimately used to kill him.[314] Although the facts in the police report indicate that the knife belonged to the deceased, there is no indication in the materials that the deceased was armed. However, I do not consider the discrepancy to have any significance. The fact is that the respondent was intent on exacting revenge, and, as Ms Hasson pointed out, the respondent chose to use the knife to cut the deceased's throat after he had rendered him unconscious.[315] The deceased posed no immediate threat to the respondent at that stage. The respondent said he did so to ensure the deceased posed no further threat to him,[316] which, in the context of what he had said earlier, was clearly a reference to the deceased coming after him in the future.
2. The respondent told Ms Hasson that he had never had a sexual relationship with the female who was at the premises, and he did not know why she fled the scene with him.[317]
3. Ms Hasson referred to the issue of remorse and victim empathy in respect of the murder offence in the context of the respondent's account of his treatment history, during which the respondent commented on the cost his actions have had on him over time, including 'becoming estranged from his family, the loss of his relationship with his children, the loss of a life of freedom, never realising what he could have become, and leaving prison as a middle-aged man with limited prospects'.[318] Ms Hasson went on to report:[319]

Mr Carr also commented that he thought about the murder every day and that it would never leave him. Despite these comments and some indication of heightened emotion - looking away, fidgeting and eyes welling and becoming a little teary - and perhaps some remorse, it was difficult to determine if Mr Carr experiences any empathy or whether his regret and emotion is self-directed.

1. In oral evidence, Ms Hasson reiterated that reservation about whether the respondent's display of emotion was about the deceased or whether it was about his own personal circumstances, but noted that the environment in which the interview took place, in the official visits section of the prison, which is not private, contributed to the difficulty.[320] She said that 'that little display of emotion' could be 'quite promising' and something for a treating psychologist to 'work with down the track'.[321]

1. When interviewed by Dr Wynn Owen in June 2021, the respondent again admitted that he resented the fact that the deceased had reported the malicious wounding incident to the police.[322] He also said that he resented that it had been reported to police that he had used a knife during that incident, claiming that he had pushed the deceased a couple of times and that 'there was no knife'.[323] The respondent told Dr Wynn Owen that he ruminated on those grievances while he was in prison. However, he claimed that, although he was angry and wished to confront the deceased, he did not have any specific plan to injure or kill him.[324] He told Dr Wynn Owen that, when he was released from prison, he went back to the same place, and the deceased was still there. Dr Wynn Owen noted that the respondent was suggesting that it was inevitable they would meet.[325] Contrary to his account to Ms Hasson, the respondent claimed that the deceased's girlfriend was not there, maintaining that position even when confronted with the information in the BOM, including his admissions to the police.[326] In that context, he claimed not to have said anything to the police when being conveyed in the police vehicle to the police station.[327]
2. The respondent acknowledged that he assaulted the deceased to the point that he was incapacitated and unmoving on the floor, and that he then chose to kill him by cutting his throat.[328] He told Dr Wynn Owen that he experienced the sensation of being apart from his body and watching himself commit the offence.[329] He said this was something he had experienced at other times when committing violent acts.[330]
3. The respondent told Dr Wynn Owen that he did not believe he was intoxicated at the time of the murder, and that, if he had been drinking, it did not affect his decision making at the time.[331]
4. Dr Wynn Owen noted that the respondent expressed no remorse or victim empathy in relation to the murder.
5. Remorse and victim empathy are factors that would ordinarily be expected to enhance an offender's prospects of rehabilitation, as they would be expected to deter a person from reoffending in a similar way. In light of the comments made by Ms Hasson and Dr Wynn Owen, suggesting either a lack of remorse or victim empathy by the respondent, or uncertainty about it, it seems to me that while the respondent's presentation to Dr Riordan concerning remorse and victim empathy may have been genuine at that time, his attitude is prone to fluctuation, and the question of remorse is complicated by an element of 'self-directed' regret, as Ms Hasson described it. Nevertheless, there appears to be a kernel of remorse and empathy that can be further explored in treatment, as suggested by Ms Hasson.

1. The assessment of whether there is an unacceptable risk that the respondent would commit a serious offence requires consideration of whether or not the respondent has a propensity to commit serious offences and whether or not there is a pattern of offending behaviour by the respondent.[332] They are not the only considerations, and, as will appear below, when dealing with the expert evidence, a risk of serious offending may be identified even where the evidence does not point to a particular propensity or pattern of offending. Nevertheless, there is an obvious connection between a propensity to commit serious offences and the assessment of risk.
2. In GTR, in the context of the DSO Act, which was concerned with serious sexual offences, Murray AJA identified the relationship between a pattern of offending and a propensity to commit serious sexual offences, and the meaning to be attributed to the word 'propensity' in that context, in terms that, in my view, remain applicable to the HRSO Act in relation to serious offences more broadly. His Honour said:[333]

As to the question of a demonstrated propensity to commit serious sexual offences in the future, I think it is clear that if there is some discernible pattern in the offending behaviour, the relevance will be that it may tend to support the conclusion that the offender is a serious danger to the community, because he has a propensity to commit serious sexual offences which has not been negated by treatment and so may continue to affect the offender's behaviour in the future. In my view 'propensity' in this context means what it ordinarily means in the context of the criminal law. It means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.

1. Even before one considers the expert evidence in respect of the respondent's risk of committing a serious offence, the respondent's history supports the conclusion that he has a propensity to commit serious violent offences. Although it is difficult to draw any conclusion about a propensity to commit sexual offences, because he offended in that way only on one occasion, that offending involved a significant degree of violence that carried a risk of serious injury to the victim. Similarly, while the murder offence is the only offence of non-sexual violence on his criminal record that is a serious offence under the HRSO Act, the offences of malicious wounding in 1987 and aggravated breaking and entering and committing an assault occasioning bodily harm in 2008 involved violence of a degree that had the potential to cause greater injury than was actually caused. On each occasion the respondent was armed with a knife.
2. The fact that the respondent has spent a significant period of time in custody since his last violent offence does not detract from that conclusion. The most significant period he spent in prison was serving the sentence for the murder offence. After he was released, having served that sentence, he committed another violent offence. Although that offence of aggravated breaking and entering and committing an assault occasioning bodily harm did not equate to a serious offence under the HRSO Act, the level of violence and the fact that the respondent held a knife at the victim's throat are matters indicating that the respondent's propensity for serious violence had not abated. As Ms Hasson observed in her report:[334]

There is a significant association between weapon use and violence. The presence or use of a weapon increases the possibility of serious injury or harm to another during the commission of an offence and is a relevant factor when considering the risk of harm Mr Carr may cause to other people.

1. Dr Wynn Owen agreed that, notwithstanding the lengthy period in prison, it was clear from the 2008 offending that the respondent's pattern of violent offending had not changed, and he was 'still quite prepared to use violence to achieve his ends and was unable to manage the circumstances'.[335] Therefore, although the 2008 offences did not come within the meaning of 'serious offence', they are significant in the assessment of the respondent's risk that he will commit a serious offence.[336] More particularly on the question of whether the lengthy term of imprisonment might have affected the respondent's propensity to commit a serious violent offence, Dr Wynn Owen said:[337]

Most of the research suggests that over two to three years in prison one's risk of reoffending on release reduces, but after that time it's either static or increases. So, long-term imprisonment is associated with either no change or an increase in ... risk of future offending.

1. As I noted earlier, in her report for the sentencing proceedings in 2015, Ms Zuin remarked that the respondent's attitude towards violence was somewhat concerning. He had impressed as being boastful about being violent since he was a young child and to having enjoyed the notoriety associated with having murdered someone.[338] Ms Zuin reported that it was evident during her assessment that the respondent continued to hold pro-violence beliefs and that 'he would use violence against someone if he perceived he had been slighted in some way', despite claiming to have become less aggressive since 2008.[339]
2. In the context of considering propensity and pattern of offending, it is also relevant to consider the respondent's admissions to Ms Hasson about his past vengeful and violent ideation, which included an attitude that he should use sufficient violence to incapacitate a victim from being able to retaliate in the future.[340] In oral evidence, Ms Hasson said she agreed with Ms Zuin's assessment, outlined above. She referred to what the respondent had said to her about his use of violence in prison to establish himself so nobody else would challenge him, and about the 'overuse of violence' to prevent retaliation.[341] Ms Hasson observed that this was part of the respondent's character, and sometimes it may not be possible to 'budge the attitudes or beliefs' someone may have about such matters.[342] She said:[343]

And so what then has to happen is you have to work with those to find a way around this to make sure he doesn't reoffend, because chances are those attitudes or beliefs are quite entrenched and are going to be really hard to challenge and change. So you might not challenge and change them. You're just going to have to work around and risk manage them and why that's not in his best interest any more to behave in that way or to act in that way if he continues to hold those thoughts.

1. Ms Hasson noted that some of the respondent's violent offences were instrumental (a means to an end), and others were 'expressive' or emotionally driven offences, and therefore linked more closely to anger.[344] She said that violent ideation is a common feature of both types of the respondent's violent behaviour.[345] Further, the respondent's description of his past violent offending indicated a lack of ability to control his behaviour. Ms Hasson reported:[346]

Mr Carr indicated that when he behaves in an extremely violent manner it is as though he is dissociating from himself as though he is outside of himself watching what he is doing. Once he becomes extremely angry, he has considerable difficulty tempering such emotions and previously alcohol and drug use have impeded this ability further.

1. Having regard to the respondent's history and his explanations for his violent offending, to which I have referred, I am satisfied that the respondent has a propensity to commit serious violent offences, and that he has exhibited a pattern of offending that has involved vengeful thinking, the use of weapons, including knives, and severe violence, often associated with explosive anger. These are identifiable characteristics of his personality and behaviour in the past. As I noted earlier, and will discuss further below, Dr Wynn Owen has diagnosed the respondent with intermittent explosive disorder, which further supports the conclusion that the respondent has a propensity for serious violent offending.[347]
2. Consistent with Murray AJA's analysis in GTR, there remains the question whether the respondent's propensity to commit serious violent offences may continue to affect his behaviour in the future, because it has not been negated by treatment or by some other development in his makeup. That question is informed by the evidence of steps taken by the respondent to address the causes of his offending behaviour, including any rehabilitation programmes he has undertaken, and the assessments of his risk made by the expert witnesses.

Rehabilitation programmes and efforts by the respondent to address the causes of his offending

1. As appears from the reports and oral evidence of Dr Riordan, Ms Hasson and Dr Wynn Owen, the respondent has made limited efforts to address the causes of his offending, in particular by engaging in rehabilitative programmes.
2. I referred earlier to the respondent's participation in an alcohol and drugs programme when he was serving his sentence for the murder offence in New South Wales.[348]
3. The respondent also informed Dr Riordan and Ms Hasson that he participated in a 12 month intensive violent offender programme (referred to by Dr Riordan as the Violence Offenders Therapeutic Program (VOTP)) while he was incarcerated in New South Wales.[349] He told Ms Hasson it was when he was at Long Bay Prison in the mid‑1990s, which correlates with his sentence for the murder offence. As both Dr Riordan and Ms Hasson pointed out, there is no information available to confirm the respondent's participation in any programmes or courses during previous terms of imprisonment in New South Wales. However, having regard to the respondent's description of the skills imparted in the VOTP, there is no reason to doubt his participation in that programme.
4. Ms Hasson thought it worth noting that the fact the respondent committed a serious violent offence nine months after his release from prison for the murder offence would suggest that any treatment he had completed was insufficient, and that significant outstanding criminogenic treatment needs remain.[350]
5. In his interview with Dr Riordan, the respondent said the VOTP was similar to a therapeutic community, describing it as a twelve-month 'lock down' programme, in which participants were required to reside in the same living unit while attending the programme.[351] He said that at the time of engaging in the VOTP, he would not have considered himself to be ready to learn or apply the strategies taught in the programme, but he felt the programme became more effective as he engaged in the process of 'self­reflection and maturation' throughout his term of imprisonment.[352] In a similar vein, he told Ms Hasson that while he was participating in the VOTP he thought it was a waste of time, but that, 'as he has matured, he now recognises some value in the [programme] content such as accepting personal responsibility for [one's] actions and considering the consequences of his behaviour and thinking about others'.[353] It was in that context that he spoke about the costs of his actions on him, to which I referred earlier. He told Dr Riordan that he was able to recall and use the skills from the programme.[354] Dr Riordan referred to examples given by the respondent:[355]

[He] said that he has adopted the view that he can only control his own behaviour and not that of others; that he has been able to reduce his thought rumination by reminding himself to not 'stress about things I can't control'; he described using avoidance based strategies to manage conflict, such as walking away and returning to cell when he perceives conflict to be escalating between himself and other prisoners and that he has become increasingly aware of his own internal emotional states as cues to direct his behaviours in interpersonal relationships.

1. It would appear, therefore, that, while the VOTP was not effective to prevent the respondent from committing the violent offence in 2008, after his release from prison, the respondent has retained some of the information from the programme, and has sought to utilise that information to modify his behaviour in recent times.
2. However, the respondent has refused to participate in violent offender and sex offender treatment programmes during his most recent period of imprisonment.
3. Following the respondent's conviction of the offences for which he was sentenced in 2015, a treatment assessment report completed at Hakea Prison recommended that he participate in an intensive violent offender treatment program and a sex offender deniers programme. At the time of that assessment, he was considered to be unsuitable to participate in the Intensive Sex Offender Treatment Program (ISOTP) because, at that time, he categorically denied responsibility for the sexual offences of which he was convicted.[356] However, it was recommended that he participate in the 'denier's program' to address 'deficits in intimacy and attachment, empathy, sexuality, risk factors and coping'.[357] The respondent refused to participate in the programme.
4. As Ms Hasson noted (footnote omitted):[358]

At the time of the assessment in 2015 Mr Carr had appeals pending, however he refused to participate in programs regardless of the outcome of his appeals as he had indicated that he did not want to engage in any treatment programs. To date he has maintained that stance and he has not completed any programs to address his offending behaviour during his current term of imprisonment.

1. The respondent indicated to Ms Hasson that he does not wish to participate in group-based programmes because of his negative views of other prisoners.[359] He said he was prepared to engage in individual counselling. That was also the position he had indicated during the risk assessment undertaken by Ms Krabbe in 2020.[360] The respondent had initially said to Ms Krabbe that he did not see any point in treatment because his offending had occurred 30 years ago.[361] However, he subsequently indicated he would be open to individual counselling, as he found it helpful to discuss his mental health with the psychiatrist he was seeing every couple of months, and he valued the input he received from those sessions.[362] That said, Ms Krabbe noted that the respondent 'accepted his main reason for engaging in any type of [programme] would be motivated by him obtaining release'.[363]
2. The respondent's explanations to Dr Riordan for refusing to take part in rehabilitation programmes during his recent incarceration were somewhat different from what he said to Ms Hasson. He told Dr Riordan that he felt his capacity to engage fully in any sex offender treatment programme was 'compromised due to his complete absence of memory for the offence'.[364] Dr Riordan reported that, in relation to the Violent Offenders Treatment Program:[365]

Mr Carr expressed the view that he understood his violent behaviour was wrong, that he had previously spoken about the murder offence during a program in New South Wales and that he did not like talking about his offences. He expressed the view that while others may perceive him to require treatment, he thought the (sic) he was 'alright'.

1. However, the respondent acknowledged to Dr Riordan that, by adopting a stance of declining treatment with the expectation that he would be released irrespective of any assessed outstanding treatment needs, he may have 'inadvertently undermined his prospects of release'.[366] Dr Riordan noted that, with that in mind, the respondent said 'he should have just completed the courses', and that he would engage in treatment if he was mandated to do so.[367]
2. However, as he did with Ms Hasson, the respondent expressed an aversion to group therapy, suggesting to Dr Riordan that the prison environment was not the safest context for the 'trauma based work' that would likely be involved in treatment.[368] He expressed a willingness to engage in individual intervention in the community.[369]
3. The reference to 'trauma based work' appears to reflect views expressed by Ms Krabbe in her assessment in 2020. She interpreted the respondent's 'avoidance and evasion behaviours, as well as his denial of past offending' as defence mechanisms, and noted that, for the respondent to engage in intervention (group or individual), he would be required to confront and discuss difficult and unpleasant experiences which, for him, would likely be significantly overwhelming.[370]
4. Dr Riordan recommended individual therapeutic intervention for the respondent to address his criminogenic needs, explaining that, given that he places little value on interpersonal relationships and the opinions of those around him, it is likely that the group based therapeutic process would be ineffectual in challenging his beliefs and attitudes.[371] Dr Riordan identified suggested techniques for that intervention, as follows:[372]

Mr Carr's anti-social personality structure and the associated minimal value he places on interpersonal relationships are responsivity factors that will need to be factored into any treatment plan developed. That is, relational based insight techniques and processes are likely to be ineffective in working with Mr Carr, instead techniques should be adopted that focus on the joint development of treatment goals and associated tangible tasks that can be applied across settings.

1. Dr Riordan also recommended that the respondent's mental health should continue to be monitored and treated by the prison based mental health team and the State Forensic Mental Health Services, Prison Inreach Service.[373]
2. After the assessments by Dr Riordan, Ms Hasson and Dr Wynn Owen, the respondent was referred to Forensic Psychological Intervention Services in the Department of Justice on 3 November 2021 for the provision of individual counselling, as recommended by Dr Riordan.[374] He subsequently commenced counselling with Mr David Summerton, Senior Counselling Psychologist, and by the time of the hearing had engaged in six counselling sessions.[375] As I will discuss below, those sessions had focussed on the development of a therapeutic relationship, and Mr Summerton had not yet commenced work on the respondent's treatment needs.
3. All of the experts in these proceedings were of the opinion that the respondent has considerable outstanding treatment needs. The respondent's remarks to Dr Riordan suggest an over-confident estimation of his insight into his offending and his capacity to avoid violent reoffending. While, during the assessment interviews, he expressed openness to individual counselling, his motivation appeared to be linked to his desire for release, rather than a genuine acceptance that he has criminogenic factors he must address if his risk of serious violent offending is to be adequately managed in the community in the future. It remains to be seen whether that attitude has changed with the commencement of therapeutic counselling.
4. The fact that the respondent has not engaged in violent offending in recent times in prison does not necessarily indicate that his propensity for violence has abated, given the constraints of the prison environment and the fact that he has previously committed a violent offence after a lengthy period of imprisonment. I am not satisfied that his propensity for violence has been negated by the limited treatment he has had in the past. That is particularly so as the respondent has been diagnosed with disorders that contribute to his risk of violent offending, as I will discuss below.
5. It is apt to note that Dr Riordan identified numerous dynamic risk factors on the Violent Risk Scale assessment tool (VRS) that are areas of treatment need for the respondent. The VRS is 'designed to integrate risk, need and treatment change factors relevant to violent offenders'.[376] In the respondent's case, the risk factors requiring treatment are substance use, violent lifestyle, stability of relationships, emotional control, weapon use, mental illness and criminal personality, violence cycle and insight into violence, community support and being released to high risk situations, and compliance with supervision.[377] In respect of all of the areas of treatment, the respondent was assessed by Dr Riordan to be in either the pre-contemplative or contemplative stage of change. In relation to compliance with supervision, Dr Riordan expressed reservations about the respondent's capacity to comply within the community, despite having a sound record of compliance with prison‑based rules and behavioural expectations, and his expressed willingness to comply with all conditions that might be imposed if he were released on a supervision order.[378]
6. Applying the STABLE-2007 tool for assessing risk and treatment needs in respect of sexual offending, Dr Riordan identified four areas of treatment, which overlapped to some extent with the areas of treatment identified using the VRS. Dr Riordan explained the STABLE-2007 as follows (footnote omitted):[379]

The STABLE-2007 was developed using offenders who received community based orders, and those who had been released from custody on completion of a prison term following conviction for sexual offences. The STABLE-2007 measures dynamic sex offender risk factors that can change over time in order to assist stakeholders to formulate a case management plan or to identify treatment and supervision needs for individual offenders. The limited amount of time that Mr Carr has spent in the community setting during his adulthood reduces the validity and reliability of this assessment.

1. Dr Riordan identified capacity for relationship stability, social influences, impulsivity and poor problem solving as areas of treatment need.[380]
2. As I have said, the respondent had commenced individual counselling by the time of the hearing. Dr Riordan consulted with Mr Summerton about the progress that had been made. She also interviewed the respondent again, on this occasion by telephone, to ascertain his assessment of the counselling.[381]
3. It was apparent that Mr Summerton had the benefit of the expert reports that had been prepared for these proceedings prior to the commencement of counselling. He told Dr Riordan that the goal for intervention at that stage was 'predominantly on the development of a therapeutic relationship with [the respondent]' prior to the hearing in these proceedings, with the view of offering the respondent ongoing support and intervention should he be released on a supervision order.[382] With this goal in mind, the first five sessions had been 'largely aimed at rapport building, developing a shared understanding of intervention goals, including those outlined in the expert reports prepared for the [present proceedings] and preparatory work should [the respondent] be released into the community'.[383]
4. Mr Summerton acknowledged, in his discussion with Dr Riordan, that he had not yet commenced work on any of the identified criminogenic needs, as outlined in the expert reports.[384]
5. Dr Wynn Owen had also spoken with Mr Summerton prior to the hearing, and had interviewed the respondent again about a week before the hearing, in part to talk with him about his engagement with counselling.[385] Dr Wynn Owen gave the following account of Mr Summerton's reasons for not having commenced to deal with criminogenic treatment:[386]

[He] wished to establish a rapport ... and ensure that there was good therapeutic engagement and a degree of trust with Mr Carr. It ... was an awareness of Mr Carr's personality and that ... establishing trust in that type of situation would take some time. ... Mr Summerton wanted to be able, were Mr Carr released, to have a good understanding of how Mr Carr was reacting and responding in a variety of situations and ... to be able to assess ... his emotional statement without necessarily have (sic) the words being given to him by Mr Carr. ... So it was the preliminary that you would normally perhaps do in one or two sessions, he's taken a little longer.

1. Mr Summerton told Dr Riordan that the respondent presented as 'an independent and self-reliant man, who was not an "obvious candidate" for psychological intervention', as he was not naturally inclined towards seeking help, or introspection.[387] Mr Summerton also observed that the respondent did not view himself as having significant issues, and did not consider that he was likely to experience any significant difficulties coping with his release into the community.[388] Nonetheless, the respondent was agreeable to continuing with counselling, and Mr Summerton intended to continue establishing the 'therapeutic alliance' to enable him to deal with possible issues concerning the respondent's reintegration into the community.[389] Mr Summerton envisaged being able to commence work on some of the identified criminogenic treatment needs once the respondent was released into the community, where the insights and skills developed during counselling could be 'generalised, applied, and monitored'.[390]
2. Dr Riordan noted that, when she spoke with the respondent on this occasion, he engaged well and offered information in an open and spontaneous manner.[391] The respondent indicated that, despite experiencing feelings of frustration at the length of time he had been detained on the interim detention order, he was coping well.[392] He told Dr Riordan that he had found the counselling sessions to be 'of benefit to air his frustrations', describing Mr Summerton as a 'good sounding board'.[393] This was a description the respondent also used in reporting about the counselling sessions to Dr Wynn Owen.[394] He told Dr Wynn Owen he found the sessions 'to be okay'.[395]
3. The respondent told Dr Riordan that he felt comfortable speaking with Mr Summerton and thought that engaging in ongoing counselling in the community would likely be of some benefit to him, regarding it as a form of support that would be as important as the practical support he would receive from services such as Uniting WA, even though he did not envisage that he would have difficulty reintegrating into the community.[396] When asked what areas of treatment need 'would be beneficial for him to address', the respondent said he would not know until he was in the community.[397] Dr Riordan noted:[398]

He expressed some knowledge of the recommendations made by the experts in their reports and noted that while he could not think of any recommendation that he particularly objected to, that he also did not necessarily agree with all of them. He clarified that he accepted the recommendations in the expert reports as the opinions of the professionals and knew that he would likely be required to follow or address these recommendations and as such, expressed a willingness to do so.

1. Dr Wynn Owen said that the respondent was 'very clear that he would be happy to continue working with Mr Summerton should that be required of him', and he was aware that the counselling would attempt to address his criminogenic needs.[399] Dr Wynn Owen considered the quality of the respondent's engagement in counselling with Mr Summerton to have been positive at that point in time.[400] However, Dr Wynn Owen noted:[401]

We don't know yet how Mr Carr will work with Mr Summerton on the specifics of trying to look at violent offending, sexual offending, substance use, ... that are those areas of outstanding need, as well as the underlying issues around emotional recognition, emotional management, self-management, behavioural change.

1. The respondent's need for treatment, and the significance of the counselling he had received from Mr Summerton up to the time of the hearing, will be discussed further in the context of the risk assessments undertaken by Dr Wynn Owen and Ms Hasson. However, it is apt to note at this point that I was satisfied on the basis of their evidence and the evidence of Dr Riordan that the respondent still has significant outstanding treatment needs he needs to address in counselling. While I am not convinced that he fully appreciates the importance of addressing those criminogenic needs, I accept that he has a willingness to do so with Mr Summerton.

1. In her report of 17 March 2022, Ms Cashmore informed the court that a property had become available for the respondent through the HRSO Supported Accommodation Program. A Desktop Spatial Analysis undertaken by WA Police in respect of the property identified some areas of concern within a two-kilometre radius of the property, but such concerns are common for most properties available under the programme, and Ms Cashmore confirmed in oral evidence that WA Police had not identified any specific concerns relevant to the respondent's circumstances that would render the property unsuitable as a residence for the respondent if he were to be released on a supervision order.[402]
2. Ms Cashmore noted that the tenancy agreement in respect of the property contains conditions to ensure appropriate behaviour by the tenant, including prohibitions in respect of drug and alcohol use.[403]
3. Ms Cashmore also noted that the victim of the respondent's offending in Kalgoorlie in 1987 is now resident in another state.

1. Ms Cashmore reported that, between 23 February 2013 and 8 February 2021, the respondent incurred four prison charges, three of which related to substance misuse and/or the hiding of medication.[404] The last of the charges, on 12 September 2015, involved 'an act of misconduct subversive of the order and good government of the prison by fighting'.[405] He was penalised by way of a loss of gratuities.
2. I note that, in her report of 11 January 2015, Ms Zuin observed that, since his remand in Hakea Prison, the respondent had been involved in three incidents of misconduct, one of which was an assault, although it was not clear whether the assault was against a prison officer, a staff member or another prisoner.[406] Ms Zuin reported that the respondent made comments suggesting he had engaged in similar conduct in New South Wales, and that he was violent in prison, including to prison officers, because he needed to establish respect.[407] The respondent made similar comments to Dr Wynn Owen in the assessment for these proceedings, saying that he had been in fights while establishing his position in prison, and that, once it was understood that he was not to be taken lightly, there was no further need for violence.[408]
3. In her report of 22 December 2020, commenting on the fact that no adverse incidents had been recorded for the respondent in the WA prison database since 2017, Ms Krabbe said that the respondent told her he had made an effort over the last few years to behave himself within the prison setting, that he felt calmer, and that he had become 'too old to engage in the prison politics'.[409]
4. In her report of 20 May 2021, Ms Cashmore said that perusal of prison records indicated that the respondent was '... generally polite and respectful' and appeared to interact well with the other prisoners. It was reported that he followed unit rules and instructions without issue, and was not considered to be a management concern.[410] Further, it appeared the respondent had maintained a 'fairly stable' employment history during his then current term of imprisonment, and was employed as a leading hand at the time of reporting.[411] Custodial staff reported that he completed his tasks to a high standard with minimal supervision.[412]
5. In her report of 17 March 2022, Ms Cashmore said that the respondent had not incurred any prison charges or been involved in any adverse incidents, and had not been the subject of any negative behavioural notes following his previous hearing on 24 June 2021.[413] When asked in evidence whether the respondent had expressed any frustrations, concerns or issues to Ms Cashmore about the fact that his hearing had been delayed, Ms Cashmore said:[414]

Very respectfully, he has expressed a degree of frustration. However, he's also acknowledged that it is a complicated process and it does take time. In my experience, Mr Carr is probably an individual that has coped with the delay in process a lot better compared to some of the other individuals that I'm involved with.

1. I note that, while the respondent's behaviour in prison is undoubtedly relevant to the question of whether he might be expected to be compliant with supervision, if released on a supervision order, Dr Wynn Owen noted the limitations of any assumption that prison behaviour will be paralleled in the community, noting that '[it has] not necessarily been proven that prison behaviour is a good indicator of future behaviour outside a prison'.[415]

1. On 3 February 2023, the Prisoners Review Board made a Post-Sentence Supervision Order (PSSO) under pt 5A of the Sentence Administration Act 2003 (WA).[416] The order was to have effect from 7 February 2021, being the date on which his sentence was due to end, until 6 February 2023, a period of two years. The respondent was not released on the PSSO as, in the meantime, he became subject to the interim detention order made by Hall J on 3 February 2021. On the assumption that the PSSO would have effect if, at the conclusion of the restriction order proceedings, the respondent was found not to be a high risk serious offender,[417] I note that, by the time of the hearing of the application on 12 April 2022, if released, the respondent would have had only 10 months under supervision pursuant to the PSSO.
2. The PSSO followed a report by an Acting Senior CCO that identified concerns arising from the respondent's failure to engage in rehabilitation programmes, his failure to provide a release plan and the fact that he did not have any accommodation or community supports available to him.[418] That report concluded that GPS monitoring and a curfew were not considered to be appropriate risk management strategies at that time because the victim of the respondent's offending (for which he was serving the term of imprisonment) had relocated.[419]
3. The PSSO contains three standard obligations, including reporting to a particular location, notifying a CCO of any change of address and complying with s 76 of the Sentence Administration Act 2003.[420] The PSSO also imposes 10 additional requirements, including attending for random urinalysis testing for all illicit substances.[421]
4. The PSSO was considered by the expert witnesses in their assessment of the respondent's risk if he were not subject to a restriction order, and will be discussed below in my assessment of whether there is an unacceptable risk that the respondent would commit a serious offence and, if so, whether a restriction order is necessary to ensure adequate protection of the community.

Psychiatric and psychological evidence in respect of risk

1. Psychiatric and psychological risk assessment reports were prepared under s 74 of the HRSO Act by Dr Peter Wynn Owen and Ms Julie Hasson, respectively. It is evident from the reports, in my view, that the respondent cooperated with each of them when he was examined.

1. Dr Wynn Owen is a consultant forensic psychiatrist with significant experience in the assessment of risk of violent and sexual offending. Dr Wynn Owen's report of 14 June 2021 was received in evidence as part of the BOM.
2. Dr Wynn Owen conducted two interviews with the respondent, the first in May 2021, and the second just over a week prior to the hearing of 12 April 2022, both times in prison.[422] The second interview was 'just to refresh - find out how things had gone over the last 12 months or 10 months for him, to talk to him about his engagement with Mr Summerton, and to review his consideration around his plans for release'.[423]
3. As part of his assessment, Dr Wynn Owen explored with the respondent his personal background and his history of offending. I have set out earlier in these reasons relevant aspects of what the respondent told Dr Wynn Owen in respect of those matters. In making his assessment, Dr Wynn Owen also considered the materials in the BOM and had a discussion with Ms Cashmore.

1. Dr Wynn Owen was of the opinion that the respondent meets the DSM‑V[424] diagnostic criteria for Schizoid Personality Disorder with prominent antisocial traits, and that he presents with some features of the clinical syndrome Intermittent Explosive Disorder (IED).[425] Schizoid personality is defined as a pervasive pattern of detachment from social relationships and a restricted range of emotional expression in interpersonal settings.[426] Dr Wynn Owen explained further that in the respondent's case it manifested in 'his detachment from others, his lack of requirement for the contact and warmth of others, [and] the ability to be extremely self-reliant'.[427] IED, which is also regarded in DSM-V as a personality disorder, is characterised by aggressive episodes that include violence that appear out of proportion to the situation,[428] or, as Dr Wynn Owen described them in evidence, 'episodes of explosive anger, which is quite out of proportion with the situation one [is] in, in which one tends to lose control'.[429] Although the causes of IED are unknown, 'there is some evidence of a heritable biological predisposition[,] and childhood exposure to trauma and violence is a significant factor'.[430] In addition to aggressive episodes, there can be 'a high degree of ongoing irritability, some describing "chronic anger"'.[431] The condition is likely to be moderated by antipsychotic and mood stabilising medications.[432] For that reason, Dr Wynn Owen was of the opinion that it would be appropriate for the respondent to continue receiving the medication he has been prescribed for bipolar disorder, even though Dr Wynn Owen was of the view that the respondent does not meet the diagnostic criteria for that disorder.[433]

1. In assessing the respondent's risk of sexual and violent offending, Dr Wynn Owen used three risk assessment instruments, namely the Static-99R, the Violence Risk Appraisal Guide (revised 2013) (VRAG‑R) and the Historical, Clinical and Risk Management 20, Version 3 instrument (HCR-20 V3).
2. The Static-99R is an actuarial tool that is intended to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offenders.[434] The VRAG-R is an actuarial risk tool designed to assess the likelihood of violent or sexual reoffending among male offenders.[435] The HCR-20 is a Structured Professional Judgment risk assessment, monitoring and management tool which considers the presence of a range of historical (static) and dynamic risk factors for future interpersonal violence.[436]

1. The respondent's Static-99R score was in the 'above average risk' range for sexual reoffending.[437] In the Static-99R 'High Risk High Needs' sample of offenders (being the category Dr Wynn Owen considered to be applicable to the respondent), those released with the same score as the respondent had an 'average 5 year sexual recidivism rate of 21.2% with a range of between 18% and 24.8%.[438] This is a 'group risk estimate of recidivism likelihood'.[439] Dr Wynn Owen noted that, to place that estimate in a 'population context', the likelihood of an adult male with no history of sexual offending committing a sexual offence is less than 1%, and in 'routine samples' of sexual offenders, the average five-year sexual recidivism rate is between 5% and 15%.[440] At the hearing, Dr Wynn Owen said that the five-year risk assessed for the respondent of 'around 20%' was about double the 'likelihood across all types of sexual offenders being released', which was a five-year risk of 10% to 12%.[441]

1. The VRAG-R has a component for sexual offending, but the score obtained by Dr Wynn Owen was only in respect of violent offending, not sexual offending, and was for all violent offences, not specific to serious offences as defined in the HRSO Act.[442] The respondent's score on the VRAG-R was in the 'high risk' category. Offenders with the same score as the respondent on release had a 76% likelihood of committing a new violent offence within five years and an 87% likelihood within 12 years.[443] However, Dr Wynn Owen noted that '[this] likelihood estimate is a group estimate and as such it is not directly applicable to [the respondent] in that it is not possible to identify accurately which offender will not reoffend or will definitely reoffend within the group'.[444] However, 'the higher the likelihood, the more likely that individual ... is going to [reoffend]'.[445] I note that the respondent's history of recidivism in committing violent offences indicates that he has in fact been an offender who has reoffended within a period of five years on release from prison, on two occasions.

1. In respect of the assessment using the HCR-20 V3, the historical and dynamic risk factors identified by Dr Wynn Owen as present for the respondent at the time of conducting the assessment, included:[446]

(1) history of problems with violence;

(2) history of problems with other antisocial behaviour;

(3) problems with relationships;

(4) history of problems with substance use;

(5) problems with personality disorder;

(6) problems with traumatic experiences;

(7) history of problems with violent attitudes;

(8) problems with treatment or supervision response;

(9) recent problems with insight;

(10) recent problems with treatment or supervision response;

(11) future problems with personal support; and

(12) future problems with treatment or supervision response.

1. Dr Wynn Owen noted that substance use, personality disorder, violent attitudes and the early onset of antisocial behaviour, in particular, were highly relevant to the respondent's future risk of violent offending.[447]
2. The identification of 'problems with substance use' as a risk factor was based on the respondent's reported history of alcohol and illicit substance use around the time of his sexual offending, and the fact that it was 'highly likely' that such use was related to that offending.[448] However, Dr Wynn Owen said that 'it does not appear that alcohol and substance use is a prerequisite for offending', and it was not the case that the respondent's other violent offending had occurred only when he was intoxicated.[449] Nevertheless, the risk factor is significant because alcohol and stimulants, such as amphetamine, tend to increase impulsivity, exacerbate deficits in problem solving, and increase aggression and violent thinking.[450]
3. The risk factor of 'problems with relationships' was significant because the respondent's violent offending had occurred 'within the context of intimate relationships and the complexities of relationships'.[451]
4. In respect of the risk factor of 'problems with personality disorder', Dr Wynn Owen referred to his diagnosis of Schizoid Personality Disorder with prominent antisocial traits and IED. He also noted that he had applied the Hare Psychopathy Checklist - Revised (PCL-R), and had found that, while the respondent was in the moderate range and exhibited some features of psychopathy, he did not meet the threshold criteria for psychopathy, which, if present, would elevate the likelihood of future offending by someone who has previously offended.[452]
5. In respect of 'problems with traumatic experiences', Dr Wynn Owen explained that traumatic experiences of the type experienced by the respondent in his childhood 'actually shape one's personality and the way that one navigates future life', and tend to increase the likelihood of that person committing violent and sexually violent offences in the future.[453]
6. The risk factor of 'problems with violent attitudes' was evident from the respondent's instrumental use of violence to manage conflict and interpersonal relationships, and to achieve other ends,[454] as discussed earlier in these reasons.
7. The risk factor of 'problems with treatment and supervision response' was evident from the fact that the respondent had gone on to offend after some treatment in custody before his release in 2007, and the fact that he had been unwilling to engage in treatment whilst in prison in Western Australia, 'preferring to complete the course of his sentence rather than to commit', and signing a number of waivers in respect of treatment programmes offered to him in relation to violent offending and sexual offending.[455] Dr Wynn Owen noted that the factor of 'problems with supervision response' is related to the factor of unmet treatment needs, in that, if a person has not started to address their treatment needs, they may resent being under supervision and not appreciate the need for supervision, which makes the person less likely to be fully compliant with supervision.[456]
8. However, while 'problems with treatment and supervision response' remained a relevant risk factor in the respondent's profile, he had commenced to engage with Mr Summerton in individual counselling, which was a positive development.[457] In considering this factor, a further positive may be found in the fact that the respondent had been compliant with his medication, as I noted earlier. The medication appears to have had a moderating effect on his temperament. The respondent indicated that he has insight into the benefits of the medication,[458] and that he felt different and able to self-manage better while on the medication.[459] He told Dr Wynn Owen that he is supportive of the medication continuing.[460]
9. In cross-examination, Dr Wynn Owen disagreed that the relevant dynamic factors identified in the HCR-20 V3 assessment were related to the fact that the respondent had been incarcerated for a significant period of time.[461] He noted that the respondent's 'dynamic factors around his (at times) poor behavioural controls and emotional self-management are not really related to being in prison'.[462] While he agreed that the issue concerning personal support (referred to as 'external supports') was affected by the fact the respondent had spent some 34 years incarcerated, he noted that the respondent 'made a choice not to maintain contact with his family, for example, and has never formed long-term friendships because that's not part of his personality'.[463] However, Dr Wynn Owen acknowledged that the respondent had indicated he planned to get family back into his life in the long term.[464]
10. Dr Wynn Owen was of the view that, if the respondent were in the community subject to a supervision order, and the team managing the respondent's risk was able to use some form of dynamic risk assessment tool, such as the HCR-20 V3, then it would be worthwhile for the dynamic risks to be reassessed, say on a three-monthly basis, to monitor any change, which may inform ongoing management, so that, by the time the supervision order comes to an end, there is a clear demonstrable change, such that the person's risk has reduced to a level where they are 'more reliably able to self-manage'.[465]
11. Given that the respondent's inconsistencies in his accounts over time suggest he is an unreliable historian, I asked Dr Wynn Owen whether that might affect his reliability on a supervision order. Dr Wynn Owen said:[466]

Absolutely. If across the board there was clear unreliability - the interesting thing is there are items of considerable consistency and then there are items of variance over time then I would be very concerned. But the supervision will rely on external constraint anyway should it occur. It will rely on cross-checks to verify veracity. I think as much as anything it is Mr Carr's personality that may stand as a barrier to supervision rather than his specific reliability on the facts of what he is doing at any particular time. He may not wish to reveal distress or emotion or coping problems in the context of a supervision session or with a psychologist. I think that would be more the problem in that area of engagement and I think the barrier will be personality factors.

1. When he was asked in cross-examination whether there would be an expectation that the respondent would have increasing protective factors once he was released into the community, Dr Wynn Owen said:[467]

Yes. Well, you would hope that the work he was doing with Mr Summerton would increase his ability to self-manage and to understand himself and the factors and antecedents. And I'm sure ... that there are probably some factors around trauma from his early life, for example, that are also potentially antecedents and may well be troubling. But, yes, as well as the behavioural self-management, you would expect that a number of other of his risks would be managed. He would start hopefully to try and form some social networks. He would have demonstrated reliable self-reporting through his regular contacts with his Community Corrections officer and SOMS [i.e. the WA Police Sex Offender Management Squad]. So, you would expect to see a change in a number of those factors. You would expect that he was able to resist substance abuse notwithstanding that he was in the community. You would be able to see that he's demonstrating he's not associating with antisocial peers, for example. So, there are a whole range of things that would then be seen to be - this risk has reduced, this protective factor is now present, yes.

1. Dr Wynn Owen's response was instructive in highlighting the extent to which the efficacy of a supervision order would depend on developments in the respondent's attitudes, skills and internal resources, which would be reflected in behavioural changes. Such developments would require meaningful engagement with counselling and reliable self-reporting. Although Dr Wynn Owen had noted earlier that supervision would rely on external constraints,[468] the adequate protection of the community could not depend solely on the external constraints provided for in the supervision order.
2. The objects of the HRSO Act are stated in s 8 to be:

(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. Relying solely on the external constraints of a supervision order to provide adequate protection of the community would address only the 'control' purpose of a restriction order. It is evident from the objects of the HRSO Act and the provisions of s 30(5), which invest the court with discretion to impose any conditions it thinks appropriate in addition to the standard conditions, including 'for the rehabilitation, care or treatment of the offender subject to the order',[469] that one of the measures intended to ensure adequate protection of the community is engagement by the offender in counselling for the purposes of rehabilitation and treatment in respect of criminogenic factors.

1. Dr Wynn Owen's overall conclusion was that the respondent presents a high risk of committing a future serious offence if he is not subject to any sort of post-sentence supervision, monitoring or constraint.[470] This is 'because of the seriousness of his past offending, his personality, the avoidance of treatment and the outstanding treatment needs'.[471] He concluded that a serious violent offence is the most likely future serious offence. This is based on his assessment that the respondent is highly likely to engage in violent behaviour in the future, and there will always be the possibility of such offending escalating to serious violence. I will refer to further details of Dr Wynn Owen's explanation below.
2. Dr Wynn Owen explained that the antecedents and drivers of the respondent's risk of sexual offending are not currently understood, due to his ongoing stance of categorical denial and the fact that he has only one instance of sexual offending. Therefore, awareness of and management of this risk must assume a high risk when planning supervision and monitoring in the community.[472] Again, I will refer to further details of what Dr Wynn Owen said about this below.
3. When asked whether the fact that the respondent committed the serious offences some 35 years ago makes a difference to the risk assessment, Dr Wynn Owen said:[473]

It doesn't. Other than age making a difference to the likelihood of offending, it doesn't make any difference to actuarial tools. And one can look at the way that behaviour is modified in prison and make assumptions about that being then paralleled if one is in the community, but it's not necessarily been proven that prison behaviour is a good indicator of future behaviour outside a prison. Most of the research suggests that over two to three years in prison one's risk of reoffending on release reduces, but after that time it's either static or increases. So long-term imprisonment is associated with either no change or an increase in - in risk of future offending.

1. In relation to the relevance of age, Dr Wynn Owen subsequently elaborated that over time, as one gets older, the likelihood of future offending actually reduces. He said that, even with people who have 'quite extreme personalities and ... attitudes that support and condone violence', those will be moderated and their application of those attitudes to their interactions with others starts to change over time.[474] There are also factors such as physical infirmity and chronic illness that will reduce the ability to offend.[475] However, it was not suggested that any of those matters will be relevant to the respondent's risk in the foreseeable future, or that his age has had any significant moderating effect at this stage. While Dr Wynn Owen spoke of moderation of the respondent's behaviour and attitudes during the time he has been imprisoned in Western Australia,[476] his conclusion remained that the respondent presents a high risk of committing a serious offence.
2. In terms of the likely scenario for future serious violent offending by the respondent, it is reasonable to expect that it would be similar to past offending, as I discussed in the context of dealing with the respondent's propensity to commit violent offences. That was essentially Dr Wynn Owen's opinion. He said the respondent's offending would be in the context of some form of interpersonal interaction, involving a grievance or an issue related to a relationship, and the respondent would seek to deal with the issue by the use of violence. The nature of the violence would be an assault, possibly with a weapon. Dr Wynn Owen said that the concern would be that, if the respondent lost control, as he has acknowledged he has done in the past, the outcome of the respondent's violence could be very serious, including potentially fatal.[477] Further, as Dr Wynn Owen went on to say, apart from the potential for significant physical harm, the victim of the respondent's violence would potentially suffer lifelong psychological trauma.[478]
3. In relation to sexual offending, Dr Wynn Owen noted that there is a difficulty in formulating a risk scenario, because little is known of the circumstances leading up to the prior sexual offence, given the respondent says he does not recall it.[479] Dr Wynn Owen said that normally one would look at a number of past offences to discern a pattern in relation to victim selection or the context of the offences, such as stresses and other interpersonal interactions, which would then be considered in the light of at least two offences. He noted that there is no such history on which to base a future scenario for the respondent in this case.[480] Indeed, he agreed that the respondent has not shown a propensity for sexual offending.[481] However, Dr Wynn Owen suggested that what is known from the circumstances of the sexual offence is that 'substance use may well have been the trigger to an inability to control an initial sexual urge', but that the significant violence associated with that offence, when the victim managed to escape but was dragged back into the building by the respondent was very much in keeping with the pattern of violent offending behaviour the respondent has shown over time. So, he considered that the likelihood is that, 'with or without substance use, ... in the context of some violent interaction with a female there may well be a serious sexual offence as a component of that'.[482]
4. As to the imminence of the respondent committing a serious offence, Dr Wynn Owen said he thought the most likely type of serious offending in the future will be violent offending and that the imminence of such offending would be related to the degree of coping and stress management that the respondent displays in the future, 'and then also in relation to any sort of explosive response to a difficult situation in which he has already chosen to respond violently, and that could be months'.[483] However, he considered that if the respondent returned to substance abuse, the resulting disinhibition and increased impulsivity may well accelerate that.[484]
5. Dr Wynn Owen noted that there had been a moderation of the respondent's behaviour in prison over the last few years, in terms of not being involved in any significant issues and not using substances, both of which had been significant issues when he was imprisoned in the eastern states and had been factors early on in his imprisonment in Western Australia. In cross-examination, Dr Wynn Owen said that there 'seemed to be a distinct difference between ... the way [the respondent] behaved and functioned in prison in the eastern states and the way he [had] behaved and functioned in WA prisons', which, in Dr Wynn Owen's view, suggested that the respondent had chosen to change his behaviour, 'thereby demonstrating that he can'.[485] He was also of the view that another factor in moderating the respondent's behaviour was the medication he had been taking, which according to the respondent had significantly improved his ability to manage his irritability and 'step away from certain situations'.[486] However, Dr Wynn Owen noted that while such moderation in behaviour may indicate that there has been a moderation overall in the likelihood of the respondent committing violence, 'it [does not] tell us that ... the violence is not likely'.[487]
6. Dr Wynn Owen was of the view that the respondent has outstanding treatment needs in relation to criminogenic factors. He believed they could be addressed to some extent by psychotherapeutic intervention, which would mitigate risk.[488] The intervention should involve 'some insight orientated work with a forensic psychologist, to understand the offending cycle, to understand the reasons why the offences occur, and to look at developing skills around managing those issues', as well as understanding high risk situations and avoiding those situations.[489] Dr Wynn Owen agreed that Mr Summerton is the type of psychologist he had in mind.[490] He was of the view that therapy could take a couple of years.[491]
7. In answer to questions from me seeking clarification about future treatment, Dr Wynn Owen said that self-management will be a crucial component of addressing criminogenic factors. He said that the respondent will need assistance in navigating interpersonal relationships, whether intimate or non-intimate, and understanding why it will be useful to have some degree of social network within which 'he can test some of his thinking outside of the professional setting'.[492] Dr Wynn Owen did not think the respondent was ready yet to engage within a network in that way, and that will be part of what is required.[493] Therapy would also address strategies for the respondent to avoid drugs. In relation to sexual offending, Dr Wynn Owen thought a first step might be to take an approach taken in programmes for offenders who deny the sexual offending (a 'deniers' approach), which would focus on strategies to avoid the risk in future of being accused of committing a sexual offence.[494]
8. Dr Wynn Owen was of the view that a PSSO would reduce the respondent's risk of committing a serious offence, but the nature of a restriction order under the HRSO Act, and the requirements of such an order (in context, meaning a supervision order), 'it is more likely to have a much greater effect on managing risk'.[495] He said that, although the initial period after release into the community is the highest period of risk, in that most reoffending occurs in the first one to two years:[496]

There are a number of issues around a PSSO which mean that it is more difficult to engage with the local police to respond and to change, to intervene and change situations as they occur, than with an HRSO order, which has a dedicated team of police and requires as part of its standard conditions, a range of standard supervision and monitoring, which is not necessarily required within a PSSO.

The fact that Mr Carr has not been out of prison for a very long time, he needs to be able to demonstrate behavioural self-management, and engagement with that supervision. And that early part of the supervision order will require to be quite restrictive, so that he is able to show that, before those restrictions are then eased. I don't believe that would occur appropriately and fully managed risk on a PSSO.

1. Dr Wynn Owen was of the opinion that the respondent's risk of committing a serious offence could be managed on a supervision order.[497] He suggested that the order should be between two and three years, and no more than three years, because he believed that the respondent would be able to demonstrate within two years that he is able to self-manage, 'or ... it will be quite clear that he is not'.[498]
2. As I noted earlier in these reasons, if the respondent had been released subject to the PSSO at the time of the hearing of 12 April 2022, or soon after, he would have been subject to the PSSO for only about 10 months, the order having come into effect on 7 February 2021 and being for a period of two years. Self-evidently, that would not be sufficient time for the respondent to undergo the necessary counselling considered necessary by Dr Wynn Owen, and would not be sufficient tome for the respondent to have demonstrated within a period of two years whether or not he could self-manage his risk.
3. On the question of treatment, I queried with Dr Wynn Owen why the respondent's criminogenic needs should not be addressed in custody before his release, so that an assessment could be made whether he had assimilated information and developed appropriate strategies to avoid the risk of committing a further violent offence. Dr Wynn Owen said:[499]

Look, partly based on the moderation of the behaviour that we've seen in prison in somebody who has a very long pattern of violent offending and instrumental violence suggests that there is a chance that that is an overall moderation of behaviour that demonstrates a degree of self-management. So, I believe that there is a self-awareness point from which he starts that makes him more amenable to therapies, but he's also been able to demonstrate some behavioural change within the prison setting. I don't believe that he would necessarily benefit that much from group interaction, so group sexual offending or violent offending programs, because I don't think his personality type is such that he would benefit from it, who might find the whole experience very uncomfortable, in fact aversive. So that is the only alternative to one to one that would be offered to him in prison. And I'm concerned that extended imprisonment is likely to increase resentment and increase the likelihood of future risks rather than reduce it. His engagement to date with Mr Summerton has been positive, which is a good sign and I do believe that there is enough in the supervision order that's being recommended that will either pick that he can't manage it very quickly or will manage his risk.

1. In this context, Dr Wynn Owen also referred to the ability of the supervision order to mitigate risk through its external constraints. I discussed at [292] to [294] above why, in my view, the adequate protection of the community could not depend solely on the external constraints provided for in the supervision order.
2. In cross-examination, Dr Wynn Owen agreed that the fact the respondent has been assessed as presenting a high risk of committing a serious offence in the future, does not mean that he is not manageable in the community, because that depends on the specific elements of that risk and what mitigation strategies are in place to manage that risk, either the general risk or the risk factors specific to the violent or sexual offending.[500] Dr Wynn Owen noted that the sexual offending is a 'slight grey area', because there is 'limited understanding of exactly what occurred', but he said he 'would like to see it in the context of an extension of a violent offence', noting that we have a much better understanding of the respondent's violent offending.[501] He considered that the high risk situations that can be managed in respect of the respondent's violent offending are 'built into the supervision order' (being the supervision order proposed by the applicant in the event the court were to consider such an order appropriate).[502]
3. Dr Wynn Owen agreed in cross-examination that there is not a specific correlation between the respondent being assessed as presenting a high risk of committing a serious offence and him being at imminent risk of offending. Dr Wynn Owen said:[503]

That again depends on the pattern of behaviour, and it depends also whether we're considering imminence of committing a future violent or sexual offence or whether we're considering imminence of any serious offence, and there are obviously different levels of that. So, the tools that I've used tend to contemplate the likelihood of a violent offence being high, but are not able to say specifically that a serious offence will be high. And, similarly, while Mr Carr is assessed as a higher risk, probably at least double the risk of an average offender, of committing a future sexual offence, that doesn't necessarily mean it's a serious sexual offence as defined by the Act.

1. I subsequently sought further clarification from Dr Wynn Owen on the issue of imminence of serious offending. He said that the assessment of imminence is made in the context of 'a group likelihood' based on 'meta-analysis of large amounts of data', rather than specifically predicting the imminence of the respondent offending.[504] He said:[505]

So, the likelihood is that if somebody's going to reoffend, it's going to happen in the first two years, probably even a higher likelihood in the first year and then even a higher likelihood in the first weeks to months. That's a group likelihood. And then we have little to give us information about a pattern for Mr Carr. So, what we have with Mr Carr, is that he is released after a long period of imprisonment for very serious offending, 10 and a half months later, a new offence occurs, but prior to that, there are no - there's no offending, prior to that 10 and a half months. And we have some context around that offending, which is the relationship context, substance use context. So, I think that tells us that there are certain factors that may well play into the imminence that relate to substance use and difficulty navigating interpersonal relationships that could lead to the violence. So, because we've only got the one period, I still think that acknowledging the group likelihood is very important. So, there's a degree of tension between the two, but we can't say it's going to take up to a year for that first offence, purely because it's on one occasion taken that long, because it was after a very severe censure.

1. In re-examination, Dr Wynn Owen said that he supported the conditions in the proposed supervision order, and that a number of those conditions that were not in the PSSO, such as GPS monitoring and a curfew, were important for monitoring the respondent and assisting him with reintegration.[506] In relation to GPS monitoring, Dr Wynn Owen said:[507]

I think the GPS monitoring for Mr Carr is very much about understanding particularly that early risk. It's about verification and cross-verification of Mr Carr's own statements about where he is and what he's doing. It's about recognising that what is planned is actually occurring because we don't know enough about Mr Carr from any previous patterns to be able to say safely that we can be confident that self-report is adequate. After a time when self-report is demonstrably confirmed, then changes can be made to GPS monitoring as well

1. Ms Hasson is a registered forensic psychologist with over 25 years' experience. Her areas of expertise are in the assessment and treatment of violent and sexual offenders, particularly those with severe personality disorder, intellectual disability or other special needs, and those from culturally diverse backgrounds. Ms Hasson's report of 12 May 2021 was also received into evidence as part of the BOM.
2. Ms Hasson conducted two interviews with the respondent totalling approximately five hours, both on 5 May 2021.
3. As part of her assessment of the respondent, Ms Hasson explored with the respondent his personal background and his history of offending. As with Dr Wynn Owen's evidence, I have set out earlier in these reasons relevant aspects of what the respondent told Ms Hasson in respect of those matters. In making her assessment Ms Hasson also considered the materials in the BOM and had discussions with Ms Cashmore and Dr Riordan.[508]

1. Ms Hasson used the STATIC-99R and HCR-20 V3 assessment tools and the PCL-R. In addition, she used the Risk for Sexual Violence Protocol (RSVP) assessment tool.[509]
2. The RSVP is a set of structured professional guidelines that measure the risk posed by an individual in terms of the nature, imminence, severity and frequency of sexual violence the person might commit.[510] It relies on both historical (static) factors and dynamic factors, which may change over time.
3. I referred to the PCL-R above, in dealing with Dr Wynn Owen's evidence. Ms Hasson explained that the PCL-R uses a semi-structured interview, information on file and collateral information to measure inferred personality traits and behaviours related to a widely understood, traditional conception of psychopathy.[511]

1. Ms Hasson reported that the respondent's Static-99R score placed him in the 'above average risk' category for being charged or convicted of another sexual offence.[512] Based on his score, she assessed that the respondent presents a high risk of sexual reoffending.[513]

1. In applying the RSVP, Ms Hasson identified the presence of two static risk factors in the respondent's profile, being physical and psychological coercion in sexual violence. She noted the presence of the following dynamic risk factors:[514]

(1) Extreme minimisation or denial of sexual violence: Ms Hasson explained that this criterion is satisfied by the respondent's vacillation between outright denial and minimisation by saying he cannot recall the offending and that it could possibly be true.[515]

(2) Problems with self-awareness: Ms Hasson explained that, while the respondent has acknowledged that he has a history of violent behaviour that has been preceded by anger and rumination, he has also suggested that some of the violence just happens. Further, his claim that it is all now 'fixed', because he is on medication, reveals a 'really simple' understanding of his violent behaviour that suggests the behaviour is not necessarily controlled by him, but that he is controlled by an external agent.[516]

(3) Problems with stress or coping: Ms Hasson noted that during the short periods the respondent had been in the community, he had lapsed into substance abuse to cope and manage, or to distract himself.[517]

(4) Problems resulting from child abuse: Ms Hasson explained that this factor is concerned with issues that are broader than child sexual abuse, and include areas of neglect, abandonment, disrupted parental attachment, and generally exposure to traumatic experiences.[518]

(5) Problems with substance use (which was noted as being present historically, but appearing to be in remission).

(6) Violent ideation: Ms Hasson noted there had been a history of violent thoughts, although there was no indication of current violent views.[519]

(7) Problems with intimate and non-intimate relationships: Ms Hasson noted that, in relation to intimate relationships, the history provided by the respondent was somewhat unreliable and contradicted what had been described in previous reports, so it was difficult to determine the stability, intimacy and success of his previous relationships.[520] In relation to non-intimate relationships, the respondent regarded himself as a loner and did not identify any enduring friendships.[521]

(8) Problems with employment: Ms Hasson noted that while the respondent was regarded as a good worker in prison, there remained the question of the extent to which his skills would be transferable to employment in the community.[522]

(9) Non-sexual criminal activity.

(10) Problems with planning (which is related to manageability): Ms Hasson said that, as at the time of the interview, the respondent had made no plans for release at all, being of the belief that 'he would get out and make everything happen upon release'.[523]

(11) Problems with treatment: Ms Hasson that this finding was based on a couple of things. First was the fact that the respondent had completed a programme 'in the east' and appeared to have derived little benefit from it, because he went on to reoffend. Secondly, he had consciously decided not to participate in any group programmes, and 'to sit out and do his full time'.[524] Although the respondent had been engaging in individual counselling with Mr Summerton, Ms Hasson said she still believed there were likely to be some problems with treatment, 'just simply based on his personality style, whether he perceives that he's going to get anything out of it, whether he perceives there's anything he can work on.'[525] Ms Hasson noted that the respondent's engagement in individual counselling so far had involved building rapport, but:[526]

When you actually get into addressing the criminogenic needs, when your views are challenged, when your attitudes are challenged, when your beliefs are challenged, when you're looking at making changes, I think there's potentially there's the likelihood of some therapy interfering behaviours where Mr Carr is likely to shut down or not acknowledge any problems. That can be managed within ... a good, strong therapeutic relationship.

(12) Problems with supervision: Ms Hasson regarded this factor as being possibly present. While the respondent had been very compliant in the prison system, where 'rules are fairly consistent', in the community he will have to wait for approval at times for things he wants to do, and it may not be forthcoming. This is a particular challenge for individuals who are more inclined to be antisocial.[527]

1. Although Ms Hasson had identified in her report the presence of major mental illness as a factor that was present, she did not take issue in evidence with Dr Wynn Owen's view that the respondent did not meet the criteria for that factor.[528]
2. In combining the RSVP results with the Static-99R result, Ms Hasson was of the opinion, overall, that the respondent presents a high risk of sexual reoffending in the absence of intervention, supervision, support and monitoring.[529] Ms Hasson said that the fact the respondent had been convicted in respect of only one episode of sexual offending in 1987 did not affect that assessment, because there are many components that affect the assessment, and the Static-99R 'loads so heavily on continued involvement with the justice system', and factors such as age, relationships and history of prior violence, which not only contribute to other violent offending, but are also linked to sexual offending.[530] The fact that there was one instance of sexual offending does not lessen the risk.[531]
3. In relation to the PCL-R result, Ms Hasson concluded that the respondent presents with several psychopathic personality traits, including callousness, lack of empathy, poor emotional and behavioural controls, aggressiveness, a reckless disregard for the safety of others, failure to conform to social norms with respect to lawful behaviours, an unwillingness to accept personal responsibility for his own actions, and a failure to plan ahead.[532]
4. The respondent's unwillingness to accept personal responsibility for his actions is of particular concern in light of his refusal to participate in rehabilitative programmes.
5. The RSVP requires the clinician to identify and describe the most likely scenarios of future sexual violence by the person being assessed, and then recommend strategies for managing the risk of sexual violence by the person, considering the factors relevant to his risk and the scenarios that have been identified.[533] The risk must be characterised in terms of the nature, imminence, severity, and frequency of the sexual violence the person might commit.[534] Ms Hasson noted that it is difficult to plan for scenarios with the respondent, as he has never acknowledged responsibility for his sexual offending, so none of the antecedents 'either internal or external' to the offending have been identified.[535] Nevertheless, on the limited information available, Ms Hasson identified three risk scenarios.[536]
6. The first scenario is likely to resemble closely the offence of which the respondent was convicted, in which he would enter a woman's home uninvited and force her to have sex with him. The victim is likely to be a stranger. In that scenario, the respondent may use significant physical violence to gain the victim's compliance. He may also make threats to kill, and it is likely he would assault the victim with a weapon. The offence is likely to cease if he is disturbed by a third party.[537]
7. The second scenario would involve an escalation of offending, with the possibility of a sexual assault against a previous partner or female friend known to the respondent. Threats or actual violence may occur, resulting in psychological and/or physical harm.[538] The third scenario would involve an escalation and a change, in that the respondent may persist in the sexual offending, and the level of violence is likely to be significant, resulting in serious injury and/or death.[539] Ms Hasson thought it possible that all three scenarios would be likely in the future if the respondent does not manage his risk, as they closely parallel previous offending.[540]
8. Ms Hasson noted that there have been 'numerous studies across a range of areas that highlight the impact of sexual abuse on survivor's mental health, social, sexual, and interpersonal functioning as well as physical health'.[541] These consequences are well known to the criminal courts. They underpin the need for protection of the community when an offender is assessed to pose a real risk of sexual reoffending in the future.
9. Ms Hasson was of the opinion that the respondent's imminence of sexual offending will depend on the presence or absence of acute dynamic risk factors, which were largely unknown at the time of the assessment, although Ms Hasson considered that emotional dysregulation, socio-affective factors, the presence of antisocial personality traits, and substance abuse were the most likely stressors present at the time of the respondent's sexual offending.[542] She considered that, if the respondent was to reoffend, the frequency and duration of such offending would depend on how soon after the offending the victim reports the offending and how soon the respondent is then apprehended.[543] Ms Hasson noted this is difficult to gauge because the respondent left Kalgoorlie soon after the sexual offending, and, as a result of subsequent violent offences, had spent all but 10 months in prison since then.

1. Under the HCR-20 V3, Ms Hasson identified that the respondent had problems historically with violence; other antisocial behaviour; relationships; employment; substance use (historically); major mental disorder; personality disorder; traumatic experiences; violent attitudes; and treatment or supervision response.[544]
2. Ms Hasson also identified two dynamic clinical factors involving recent problems, being problems with insight and problems with treatment or response to supervision.[545]
3. Ms Hasson further identified the presence of future problems on the risk management scale with professional services and plans (which she considered was possibly present); living situation (which includes housing, employment, affiliations and exposure to weapons and substances); personal support; treatment or response to supervision; and stress or coping.[546]
4. As with the RSVP, the HCR-20 V3 requires the clinician to formulate risk scenarios for future violent offending. The three scenarios formulated by Ms Hasson largely reflect the respondent's past violent offending.
5. Accordingly, the most likely future offence will involve the respondent physically assaulting an individual, who is likely known to him, if he feels slighted, insulted or talked down to in any way. The assault, which may be in a public place or in private in the presence of others, will occur to teach the individual a lesson or to make a point. It may involve the use of a weapon, and the victim is likely to suffer injuries.[547]
6. In the second scenario, the respondent is likely to behave in an aggressive and violent manner toward another individual if he is feeling vulnerable or threatened. The respondent may be in possession of a weapon, possibly a knife or other sharp object, and there is the real possibility that he would use the weapon to stab or otherwise harm the victim. The respondent may be in the company of a co-offender, and the level of violence and aggression will be significant and likely to cause harm to the victim or victims. The aggression is likely to be instrumental.[548]
7. In the third scenario, the respondent may seek revenge against someone who has upset him some days or weeks earlier. He will likely ruminate on the event, fantasising and thinking about ways to exact revenge before acting upon such thoughts when the opportunity arises. It is likely the respondent will use a weapon, and the offence is more likely to be an act of 'expressive violence' driven by difficulties with emotional and behavioural regulation.[549]
8. The use of a weapon in any of the scenarios will mean there is a chance the situation may escalate, with the possibility of life-threatening violence.[550]
9. Ms Hasson noted that the historical nature of the respondent's offending means it is difficult to state with any certainty how imminent the respondent's offending might be, but she considered his risk of reoffending to be chronic. She said:[551]

The presence of antisocial and antiauthority attitudes, feelings of discontent, irritability and violent ideation increase the imminence of risk of future violence.

1. Given her assessment that the respondent presents a high risk of violent reoffending, Ms Hasson considered that it is likely the respondent would engage in offending behaviour described in the scenarios.[552] As Ms Hasson noted, all of the scenarios would be likely to result in significant psychological or physical harm to the victims. Indeed, the respondent's history indicates that the respondent is capable of violence resulting in the death of the victim. The potential outcomes for victims highlight again the need for protection of the community against the risk of the respondent committing a future violent offence.

1. Ms Hasson was of the opinion, having regard to the results of applying the risk assessment instruments, the respondent's history and her interview with him, that he poses a high risk of committing a serious sexual offence and a serious violent offence if not subject to any form of supervision. She explained that, while the dynamic factors did not really support the conclusion that the respondent's risk is current, that did not override the conclusion from his history that he is at high risk of reoffending, but the dynamic factors go to 'the manageability of that risk, the potential imminence of that risk and how that risk can be mitigated or moderated'.[553] Accordingly, she was of the view that the respondent's risk could be managed pursuant to the conditions of a supervision order. Although the risk stays high, the supervision and monitoring means that the risk can be managed.[554]
2. Ms Hasson noted that, while the respondent had developed some techniques in custody, such as mindfulness practices, to cope with stress, that was in a very contained environment, where routines and stresses are fairly predictable. His skills are untested in the community. While he knows how to handle and manage the stresses in custody, we have no knowledge or understanding of how he will cope in the 'real world'.[555] Ms Hasson was of the view that there '[was not] enough through interview or information contained in the [BOM] to suggest that we could be confident he could manage his risk alone without any sort of support'.[556] The respondent seemed to have a confidence that he would be fine and that there would not be any challenge, but that was not realistic, given a lot has changed in the community during the very long period he has been in custody.[557] Ms Hasson noted the respondent has numerous outstanding treatment needs that he had not yet started to address in counselling with Mr Summerton.[558]
3. Ms Hasson had given consideration to the adequacy of a PSSO to manage the respondent's risk. She noted that a supervision order has many more supports and much more structure in place, and that a PSSO is not as stringent in its 'restrictions around behaviour', and it does not offer the same level of support, supervision and monitoring.[559] Therefore, while she had been of the view that the imposition of a PSSO would be 'better than nothing', she had concluded that the conditions of a PSSO would not be adequate to manage the respondent in the community, and, in any event, there was insufficient time left under the PSSO that had been made, in that the respondent's risk was likely to persist for a considerable period of time beyond the end of the PSSO.[560] Ms Hasson was of the view that a period of five years would be appropriate for a supervision order, based on recidivism data and recidivism rates, which give estimates of recidivism at five years and 10 years.[561]
4. Ms Hasson considered the draft conditions of the proposed supervision order to be appropriate. She was of the view that GPS monitoring would be a useful tool initially 'for a good period of time ... to see where he's going, who he's seeing, what he's doing, just to get a sense of where he's out and about and then checking in with him because he's ... not known to [Western Australia] for supervision', just to double-check also what he's saying ...'[562] Ms Hasson also considered that a curfew would be appropriate in the initial stages, for the same reasons given by Dr Wynn Owen.[563]
5. As for the duration of a supervision order, having heard Dr Wynn Owen's evidence, Ms Hasson remained of the view that five years would be appropriate. She said that, while two to three years may be enough time for the respondent to change, he had spent a lot of time in prison, and a lot of time before that not engaged in pro-social activity, and, having regard to his personality structure and how he functions, it is going to take some time for him to change.[564]
6. A I did with Dr Wynn Owen, I asked Ms Hasson if the inconsistencies in the respondent's accounts of his sexual offending, his use of drugs and his use of alcohol, which suggest that he is an unreliable historian, could affect the efficacy of supervision and therapy if the respondent were subject to a supervision order. Ms Hasson's hypothesis for the respondent's denial of the sexual offending was that it stemmed from being imprisoned in harsh prison environments where sexual offending is 'at the bottom of the pile'.[565] Ms Hasson also considered that, given the respondent's violent persona, his inconsistencies could be the result of 'psychological distancing' from the sexual offending, as that type of offending does not sit comfortably with him.[566] In any event, notwithstanding the indications that the respondent has been an unreliable historian, Ms Hasson remained of the view that his risk, as at the time of the hearing, could be managed in the community if the respondent is subject to a supervision order.

Summary of the psychiatric and psychological evidence

1. In summary, in terms of the issues I must determine, both Dr Wynn Owen and Ms Hasson considered that the respondent's risk of future sexual and violent offending is such that it could not be adequately managed in the community in the absence of a restriction order; in other words, in the absence of conditions that would place upon him significant constraints and obligations to continue with counselling, undergo mental health treatment and take the medication he has been prescribed as part of that treatment. However, both were of the view that the respondent's risk could be adequately managed if he were subject to such conditions.
2. Both Dr Wynn Owen and Ms Hasson recommended that the respondent undertake weekly psychological counselling sessions to address his outstanding treatment needs.[567] Dr Wynn Owen thought that, if the respondent remained in detention, it would be unlikely that the frequency of those sessions would remain the same until some months prior to the next potential release, although he noted that was a matter best addressed by Dr Riordan. After speaking with Mr Summerton, Dr Riordan's understanding was that psychological counselling sessions could be increased weekly if the respondent was released into the community.[568] Dr Riordan noted that, prior to the respondent being released, Mr Summerton might only be able to provide fortnightly sessions, depending on his workload.[569]

1. As will appear below, the applicant submitted that, if the court were to find the respondent to be a high risk serious offender, then the only appropriate order to ensure adequate protection of the community at this stage is a CDO. However, in accordance with the usual practice, the applicant filed a draft supervision order with proposed conditions in the event that the court were to find that a supervision order could provide adequate protection of the community. The proposed conditions were essentially as contained in Annexure A to these reasons, which was the supervision order ultimately made.
2. It can be seen that, in addition to the standard conditions, which are articulated at the start of the order, there are 40 other conditions. Some of the additional conditions elaborate upon the standard conditions, but the majority impose obligations and restrictions (including prohibitions) in respect of the respondent's movements and activities in the community which are intended to address the respondent's risk factors.
3. The obligations include requirements that ensure the respondent will continue to receive treatment, both through counselling and the taking of medication. They would also ensure that he will be subject to monitoring for alcohol and drug use and in respect of his interactions with other members of the community.
4. The prohibitions and restrictions relate to offending, alcohol and drug use and interactions with other people who are using or may be affected by alcohol or drugs. The curfew stems in part from the fact that the serious offences, which are described above, happened in the very early hours of the morning and in the evening. While the respondent's offending has not always occurred at night, a curfew would provide an added layer of protection of the community, until such time as the authorities consider it is no longer necessary, against the risk of the respondent committing a violent offence, including a sexual offence, when potential victims may be more vulnerable and the offending more difficult to detect or prevent, especially given the explosive nature of the respondent's violence in the past. It would provide an added layer of monitoring in circumstances in which the respondent will be in the community for the first time after a very long period of incarceration and is likely to be subject to stresses that put him at risk of decompensating and being involved in confrontations, despite his medication and the strategies he has developed to reduce that risk. The formulation of the condition allows for relaxation of the curfew and, in time, the authority to dispense with the requirement if it is assessed by the risk management team that it is no longer required to provide adequate protection of the community.
5. Restrictions related to the respondent's interactions with other people (including restrictions and obligations related to his use of electronic devices) reflect the fact that much of his past violent offending has arisen in the context of conflicts within relationships, so that it is important for those supervising and treating the respondent to be able to monitor the development of personal relationships by him within the community. It is a measure which, in part, would allow for mitigation of the risk of confrontation with others.
6. The conditions were considered to be appropriate and necessary by Dr Wynn Owen and Ms Hasson.
7. During the course of her evidence, I raised with Ms Hasson the need for a number of the conditions. One such condition is the requirement that the respondent is not to remain in the presence of any person whom he knows or ought to know is affected by alcohol, unless the identity of such person is approved in advance by a CCO. An obvious reason for such a condition is to remove the prospect that the respondent may be tempted to indulge in the consumption of alcohol. However, Ms Hasson was of the view that the condition was directed, at least in part, at ensuring that the respondent removed himself from a scenario that might be conducive to confrontation because of the intoxicated state of the other person, 'where certain situations get out of hand and things go awry'.[570] Having regard to the respondent's prior offending, Ms Hasson considered that it was probably best that he avoids such a scenario, as that would then keep him safe as well.[571]
8. In respect of the conditions that would prevent the respondent from going into other people's homes, or having other people come into his home, without prior approval from a CCO, Ms Hasson considered that it was obvious that the first of those conditions reflected the fact that the respondent's violent offences had been committed in other people's homes.[572] Ms Hasson acknowledged that, if the respondent met a prosocial person and wanted to socialise, the condition would '[take] out some of the spontaneity because he would then need to seek permission', but in respect of that condition, as well as the condition restricting his ability to invite someone into his home, she said that she looked at such conditions from the perspective of how they would protect the offender from allegations of wrongdoing, where he might deny the wrongdoing.[573]
9. Ms Cashmore also addressed those conditions concerning entering other people's homes and inviting them into his home. She said that there was some flexibility in the way in which the conditions would be enforced or implemented by the supervising CCO in consultation with the risk management team.[574] She said:[575]

But I would also like to know if Mr Carr, for instance, forms a prosocial friendship or an intimate relationship, and the CCO has had some contact with that individual, he could be given standing approval to enter that person's residence and have them enter his. And so ... the condition doesn't mean that every single occasion that he would like to enter that individual's property, he would need to have prior approval from the CCO.

1. I accept the views expressed by Ms Hasson and Ms Cashmore about those matters, and I am satisfied that the conditions are appropriate, even though they are in sweeping terms. They allow for some amelioration over a period of time of what might otherwise be thought to be somewhat oppressive conditions. Standing approval may be given in respect of particular places or persons as it becomes apparent to the CCO that the respondent can be relied upon to manage his own behaviour, and not put himself in positions of risk. It will be apparent from Annexure A that there are other conditions that fall into that category.

1. Mr Meertens, for the applicant, submitted that, based on the respondent's history of offending and the expert evidence in respect of his risk, the court can be satisfied that there is an unacceptable risk that the respondent would commit a serious offence of violence, and that it is necessary to make a restriction order in respect of the respondent to ensure the adequate protection of the community against that unacceptable risk. That is, the court can be satisfied that the respondent is a high risk serious offender.
2. Mr Meertens pointed to the respondent's diagnosis of Schizoid Personality Disorder, which has features of IED, the respondent's numerous unmet treatment needs, the recent assessment of his risk of serious reoffending as being high, the potential psychological and physical harm which could result to victims (including life-threatening violence) and the consideration of the s 7(3) factors to show that the risk is unacceptable.[576] Mr Meertens submitted that, having regard to the expert evidence, the length of time the respondent has been in custody means that he is not well prepared for release into the community.[577]
3. Mr Meertens submitted that the obligations imposed on the respondent by the PSSO would not substantially ameliorate or reduce the risk of the respondent committing a serious offence, as the conditions within the PSSO are not as stringent as the conditions of a supervision order (should a supervision order be imposed).[578]
4. The applicant's submission was that a CDO should be made in respect of the respondent because, despite the opinions expressed by Dr Wynn Owen and Ms Hasson, the respondent still has significant treatment needs and, at the time of the hearing, he had only engaged in a few counselling sessions and had not started to address the criminogenic needs.[579] On behalf of the applicant, Mr Meerten's initially also relied on the diagnosis that had been made by Dr Wynn Owen of IED, and the difficult of assessing the imminence of violent offending by the respondent. However, Mr Meertens accepted that the evidence was to the effect that the disorder appeared to be managed by the medication the respondent was taking.[580] Nevertheless, Mr Meertens submitted that, as someone who has been institutionalised in the prison system, the respondent is likely to experience significant stressors in the community, and his coping skills are untested.[581] Further, the respondent's self-confidence and expressed intention to be self-reliant were misplaced and give cause for concern in respect of whether his risk can be managed pursuant to the conditions of a supervision order.[582] Mr Meertens submitted that the court could not be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order.[583]
5. However, if a supervision order were to be made, Mr Meertens submitted, on the basis of all the evidence, that the conditions contained in the proposed supervision order would be the minimum conditions necessary to ensure adequate protection of the community.

1. Ms Sojan, for the respondent, submitted that the risk factors that had been identified in the evidence did not necessarily amount to an unacceptable risk that the respondent would commit a serious offence, in particular having regard to the availability of a PSSO to monitor and manage the respondent's risk in the near term.[584] While Ms Sojan accepted that, given the potential catastrophic risks to a victim, the existence of a significant risk of serious violent offending, as described by the expert witnesses, could never be acceptable, she noted that it had been difficult for the expert witnesses to assess the respondent's 'imminent risk and future risk', given that he has been 'institutionalised'.[585] Further, Ms Sojan submitted, Dr Wynn Owen's evidence had been to the effect that the greatest risk exists in the immediate future after release, for a period of weeks or months.[586]
2. However, in the event that the court was satisfied that a restriction order was necessary, Ms Sojan submitted that the evidence of the expert witnesses supported the conclusion that the respondent's risk could be adequately managed in the community if he were subject to a supervision order.[587] Ms Sojan submitted that, based on the evidence, the court could be satisfied that the respondent has demonstrated a preparedness to engage in individual counselling, which was identified by the expert witnesses as an important factor in managing his risk of committing a serious violent offence.[588] Ms Sojan noted that the evidence was that such counselling could be provided effectively in the community by Mr Summerton.[589] Further, Ms Sojan submitted that the changes in the respondent's behaviour in prison, as identified by Dr Wynn Owen, were the result of the respondent's own motivation and had occurred before he commenced counselling.[590]
3. Ms Sojan submitted that the issue of the respondent being able to reintegrate into the community would always exist, given the amount of time he has spent in custody, and further detention pursuant to a CDO was unlikely to put the respondent in a better position I that regard.[591] Ms Sojan noted Dr Wynn Owen's evidence that continued incarceration could increase the respondent's risk of reoffending in the future.[592]
4. As to the unreliability of the respondent's accounts over time, Ms Sojan submitted that the tenor of the evidence of the expert witnesses was that they did not consider it necessarily to be an impediment to treatment in individual counselling or supervision, unless it was an ongoing problem.[593] Further, the authorities would be able to cross-check the respondent's information with information from other sources to determine if what he was saying was truthful and accurate.
5. In respect of the issue of substantial compliance with the standard conditions of a supervision order, Ms Sojan submitted that the evidence supported a conclusion that the respondent has been compliant with what has been asked of him in prison since 2015, which, although not the same as being on a supervision order, can provide the court with some confidence that the respondent would comply with the conditions of a supervision order.[594] Further, relying on Dr Wynn Owen's evidence, Ms Sojan submitted that the respondent's ability and willingness to comply would be able to be ascertained with a relatively short time after his release.[595] The respondent had indicated a willingness to comply and did not consider he would have any difficulty with the proposed conditions.[596] In short, Ms Sojan submitted that the court could be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order.
6. As to the length of a supervision order, Ms Sojan noted two matters of significance. First, that Dr Wynn Owen considered that the need for GPS monitoring would be most pressing in the early stages after the respondent is released into the community, yet the respondent would be subject to such monitoring for the duration of the order. Ms Sojan acknowledged, however, that the HRSO Act allows for a Community Supervision Officer to suspend the electronic monitoring of an offender subject to a supervision order while satisfied that it is not practicable to subject the offender to electronic monitoring, or while satisfied that it is not necessary for the offender to be subject to electronic monitoring.[597]
7. The second matter noted by Ms Sojan concerning the length of the supervision order is that the respondent has indicated a desire to reconnect with family and to return to New South Wales. Ms Sojan submitted this would be in the respondent's interest and in the interests of the community, so that the supervision order should be no longer than the minimum considered necessary to enable him to receive adequate treatment and to enable the respondent's risk to be adequately monitored to a point where it could be determined that the respondent would be able to manage his risk by his own devices in the future, without the need for conditions.[598] It was submitted that the shorter period suggested by Dr Wynn Owen would be sufficient to enable the respondent to complete the required treatment, as indicated by Dr Wynn Owen.[599]

Conclusions - There is an unacceptable risk that the respondent would commit a serious offence

1. I am satisfied that the evidence of the expert witnesses is cogent and acceptable. I am also satisfied that the evidence in respect of the respondent's history, including his past offending, is cogent and acceptable. It was not challenged in these proceedings, and the respondent is bound by the convictions and the factual bases on which he was sentenced.
2. Having considered all of the evidence to which I have referred that bears upon the factors in s 7(3) of the HRSO Act, I am satisfied to a high degree of probability that the respondent currently presents an unacceptable risk to the community that he would commit a serious offence, being a serious violent or sexual offence, if he were to be released into the community without any measures in place to mitigate his risk. I am satisfied that he could not be relied upon to adequately mitigate the risk using his own resources. The risk is unacceptable, having regard to the degree of violence the respondent has used previously both in his sexual and non-sexual violent offending, and the impact it would have on any potential victim and the safety of the community.
3. The need for the protection of the community from further violent offending by the respondent was referred to by each of the sentencing judges in 1988 and 2015, and by the Court of Appeal in 2016, as I discussed earlier in these reasons. It is obvious that, while the respondent continues to pose a risk of committing a serious violent offence, including a sexual offence, the potential for harm to a victim could be catastrophic. Even apart from a potentially fatal consequence, it is evident that the respondent's past offending had significant adverse physical and psychological consequences for his victims. If the risk scenarios identified by Dr Wynn Owen and Ms Hasson were to be realised, the respondent's future offending would be of a kind that could again put a victim's life at risk and cause significant enduring physical and psychological harm.
4. The conclusion that the respondent poses an unacceptable risk of committing a serious violent offence is supported by the findings that I have made in the course of these reasons, in particular in relation to the following matters.
5. The first matter is that the respondent's past offending and his expressed attitudes to the use of violence reveal a propensity for severe violence and a pattern of offending that has included:

(a) vengeful thinking;

(b) at times, to some extent, a degree of planning;

(c) on other occasions, an explosive form of anger and spontaneous or unplanned offending; and

(d) on each occasion, the use of a weapon, which, in most cases, was a knife, although, in the case of the sexual offending, he used an iron that was at hand.

1. At all times, his offending has involved a significant degree of violence. While it is not possible to draw a conclusion from the evidence that the respondent has a propensity to commit sexual offences, his sexual offending had at least some of the hallmarks of his other violent offending to which I have referred, including the use of a weapon, the explosive nature of the violence and the severity of the violence.
2. The next matter that informs the question of whether the respondent poses an unacceptable risk of committing a serious violent offence is that Dr Wynn Owen has diagnosed him with IED and a schizoid personality, as well as an antisocial personality disorder. The IED can manifest in irritability and result in explosions of anger that are out of proportion with the circumstances, as is revealed in his pattern of offending. The respondent has admitted experiencing episodes of explosive anger. He admitted to Ms Hasson that he has been unable to control such anger from time to time, which has resulted in the violence he has inflicted.
3. The next matter is that, during his most recent period of incarceration, the respondent has not participated in rehabilitation programmes that might have addressed the criminogenic factors that have contributed to his offending. He has specifically refused to participate in the 'deniers' program' for sexual offenders, and he has taken limited steps in the past to engage in rehabilitation programmes to address his broader violent offending The sessions in which he had engaged with Mr Summerton until the time of the hearing had been limited in scope, essentially focussed on developing rapport and identifying the matters that would need to be addressed once these proceedings were concluded, whether the respondent remained in custody or was released on a supervision order. The sessions had not reached a point where it could be said that they had contributed in any significant way to reducing the respondent's risk of committing a serious sexual offence or a serious violent offence.
4. The respondent has been assessed as having significant outstanding treatment needs in a variety of areas to which I referred in detail above. Importantly they include substance use, emotional regulation and stability in relationships. On balance, I am satisfied that, although he has been abstinent in the prison environment, the respondent has a history of significant substance use, including alcohol and amphetamines. While it is not possible to draw any firm conclusions about the extent to which his substance use contributed to any particular offence, the evidence of the expert witnesses supports the conclusion that, if he were to return to using alcohol and drugs, in particular amphetamines, then his risk of becoming violent would be increased, as would the degree of violence, because of the disinhibiting effect of alcohol and the aggressiveness that can result from amphetamine use, especially methylamphetamine. It is important, therefore, that the respondent address his substance use in treatment if he is to avoid a relapse. While he continues to have unmet treatment needs, as identified above, the risk of the respondent committing a serious violent offence remains high.
5. Further, the evidence establishes that there is a risk that the respondent's antisocial personality may affect his ability to comply with any orders that may be made, including the conditions of a supervision order. Having regard to the evidence of Dr Wynn Owen and Ms Hasson, I am satisfied that the risk of non-compliance because of the respondent's personality disorder would be more of a problem if he were subject only to a PSSO, because of the absence of the additional guardrails provided by the conditions of a supervision order that would allow for a more timely response if it became apparent that the respondent's risk was escalating as a result of non-compliance. I will return below to the question of whether I am satisfied the respondent would substantially comply with a supervision order.
6. A matter that is related to the findings in respect of the respondent's personality is the respondent's apparent lack of remorse or victim empathy in respect of his violent offending, including the sexual offending. Ordinarily, the presence of genuine remorse and victim empathy would be expected to enhance an offender's prospects of rehabilitation, as they would be expected to deter the offender from reoffending in a similar way. However, in light of evidence given by Ms Hasson and Dr Wynn Owen in these proceedings, which suggested either that the respondent has demonstrated a lack of remorse or victim empathy, or that there is uncertainty about his remorse or victim empathy, it seems to me that, while the respondent gave some indications of remorse and victim empathy when interviewed by Dr Riordan, as I described above, and while those indications may have been genuine at that time, his attitude has been prone to fluctuation and the question of remorse is complicated, in any event, by an element of self-directed regret, as suggested by Ms Hasson. Nevertheless, as Ms Hasson said, having noted that the respondent had shown a degree of emotion when talking about the murder offence, there appears to be a kernel of remorse and empathy that can be furthered explored in treatment. While the appearance of that kernel is a positive factor, it requires substantial further work before it could be regarded as a protective factor against the respondent's risk of committing a serious violent offence being realised in the community.
7. All of the matters I have outlined above were considerations in the opinions given by both Dr Wynn Owen and Ms Hasson that the respondent presents a high risk of future violent and sexual reoffending. They arrived at their conclusions by the application of actuarial instruments, assessment instruments that consider dynamic factors and management and treatment needs, a consideration of all the materials in the BOM and their own clinical assessments, having interviewed the respondent. The actuarial instruments have limited value in informing the specific risk posed by the respondent, but are nevertheless relevant in combination with the other assessment tools and the experts' clinical judgment. I accept the opinions of Dr Wynn Owen and Ms Hasson as to the level of the respondent's risk, for the reasons they gave. To the extent that I had any reservations about those opinions, I have given reasons for those reservations in the course of these reasons. Ultimately, they did not detract from my acceptance of their assessments. The inexorable conclusion from those assessments and my consideration of the whole of the evidence, as analysed above, is that the respondent presents an unacceptable risk to the community that he would commit a serious offence, being a serious violent or sexual offence, in the absence of measures to mitigate that risk and provide adequate protection of the community.
8. The question then is whether a restriction order is necessary to ensure adequate protection of the community against that unacceptable risk.

Conclusion - A restriction order is necessary to ensure adequate protection of the community against the unacceptable risk

1. Having considered all of the evidence to which I have referred, 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 against the unacceptable risk that the respondent would commit a serious offence, which I have found to exist. I have reached that conclusion for the following reasons.
2. Having regard to the expert evidence of Dr Wynn Owen and Ms Hasson, I am satisfied that significant constraints and monitoring of the respondent's behaviour will be necessary within the community to adequately mitigate the risk that the respondent will commit a serious violent offence. Those constraints must operate in conjunction with intensive psychological treatment over an extended period of time.
3. Although Dr Wynn Owen considered that the duration of a supervision order should be no more than three years, I am satisfied, after consideration of the evidence of both Dr Wynn Owen and Ms Hasson, that the timeframe for supervision to adequately protect the community should be at least three years. That is in part a consequence of the fact that the respondent has spent most of his life in prison, and the process of reintegration is likely to be lengthy, with a need to monitor his ability to cope with stresses within the community.
4. Further, the respondent's propensity for violence is an entrenched aspect of his antisocial personality disorder, exacerbated by his IED. While the respondent has utilised some mindfulness-type techniques within the prison environment in recent times to assist him to control his emotional reactions to difficult situations, they are yet to be tested within the community. Similarly, while the respondent has been compliant with medication, which appears to have had a beneficial effect on his emotional regulation, it will be necessary to monitor his compliance with the medication and with mental health treatment within the community over a prolonged period.
5. It will be necessary for these measures to become entrenched aspects of the respondent's life to mitigate the entrenched risk of violence he would otherwise pose to the community.
6. The conditions of the PSSO deal with several significant aspects of the constraints and obligations to which the respondent would be subject under a supervision order, including prohibitions on drug and alcohol use and obligations in respect of participation in programmes and counselling, and in respect of mental health treatment. However, even if the respondent had been released on the PSSO on the commencement date, the length of the order, being a period of two years, would not have been sufficient to ensure that the risk to the community had been adequately reduced. While that period might be considered to be within the scope of Dr Wynn Owen's opinion that a period of two to three years would be an adequate period of supervision, that opinion was expressed on the basis that such a period of supervision would enable the authorities to determine whether the respondent's risk had abated sufficiently for him to self-manage any residual risk. The context of Dr Wynn Owen's opinion was that, under a supervision order, there would be scope for the State to apply at a time approaching the end of the order for a further supervision order if the expert assessment at that stage was that the level of the respondent's risk was such that supervision was required for a further period of time. That opportunity would not be available under a PSSO.
7. Of course, the period of two years under the PSSO would have fallen well short of the period of five years supervision that Ms Hasson considered necessary.
8. In any event, as I noted earlier, at the time of giving my decision, there would only have been five months left on the PSSO that was made by the Prisoners Review Board. That was clearly an inadequate period of supervision to ensure future adequate protection of the community against the risk of the respondent committing a serious offence, having regard to the expert evidence in these proceedings. The realisation of that risk may have emerged well beyond the period of five months.
9. In any event, I was satisfied, based on the evidence of Dr Wynn Owen and Ms Hasson, that, if the respondent was to be released into the community, the additional conditions contained in the proposed supervision order in these proceedings were necessary to ensure adequate protection of the community. In particular, I considered that the additional level of monitoring and supervision enabled by the use of GPS monitoring and a curfew, particularly in the early stages of the respondent's release into the community, would be important to manage his behaviours and minimise the risk that he may find himself in circumstances of confrontation. The GPS monitoring would also provide a means of checking the reliability of the respondent's reporting to his CCO and psychologist, given his history of inconsistent accounts in relation to a number of aspects of his life.
10. Finally, a PSSO would not allow for a review of the respondent's circumstances in the future with the possibility of the authorities applying for a further order. Nor would it provide for an alternative measure of protection of the community in the form of a CDO if the respondent were to be non-compliant with the order.
11. In short, in the absence of a restriction order, there would be no adequate measure to sufficiently mitigate the unacceptable risk that the respondent would commit a serious offence. I am satisfied, therefore, that it is necessary to make a restriction order to ensure adequate protection of the community against that unacceptable risk.
12. It follows that I am satisfied the respondent is a high risk serious offender.

1. Having reached the conclusion that a restriction order is necessary to ensure adequate protection of the community, I must next consider whether the appropriate order to make is a CDO or a supervision order.
2. The court must choose the order that is the least invasive of the respondent's liberty, while ensuring an adequate degree of protection of the community.
3. In considering whether a supervision order will adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of the respondent and his care and treatment, and to ensure adequate protection of victims of offences committed by the respondent.[600]
4. I cannot make a supervision order unless I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the order, having regard to the principles I discussed in Hart. The onus is on the respondent to satisfy the court that he will substantially comply. He did not give evidence, but he was not required to give evidence. The court can be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions if the evidence that has been presented satisfies the court that he is likely to substantially comply. Some doubt has been raised about that in these proceedings.
5. Dr Riordan commented:[601]

Mr Carr has had limited exposure to community based supervision requirements as an adult, having served full terms of imprisonment on previous occasions. He does have a sound record of compliance with prison based rules and behavioural expectations and has expressed a willingness to comply with all conditions imposed under the HRSOA Restriction Order should one be imposed. However his strong anti-social personality traits, tendency to be self-reliant and expressed views of avoiding the involvement of those in positions of authority to assist suggest that Mr Carr is likely to be a reluctant participant with any order. His inconsistent presentation of information over time indicates a willingness to deceive for personal gain and he is unlikely to be proactive in help seeking should he require this, particularly over time as his resentment for the order requirements increases

1. As I noted in discussing Ms Hasson's evidence, at one point she expressed reservations of a similar nature about the respondent's capacity for compliance. However, ultimately she arrived at the same opinion as that expressed by Dr Wynn Owen, namely that the respondent's risk could be managed adequately within the community if he were to be subject to the conditions in the proposed supervision order.
2. It is apt to note, in light of my detailed discussion above in respect of the evidence concerning the respondent being an unreliable historian, that, contrary to the view expressed by Dr Riordan, I do not consider that such unreliability necessarily indicates a willingness to deceive for personal gain. That might be one explanation, and on occasions that may have been his motivation for the account he gave. Ms Hasson and Dr Wynn Owen spoke of other factors that may have contributed to that unreliability in the past which suggest that the inconsistencies in his accounts were not the result of deception. Nevertheless, as Ms Hasson and Dr Wynn Owen indicated, the inconsistencies are still of concern, because of the need for those involved in supervising and monitoring the respondent in the community to have accurate information from him about his circumstances. That is one of the reasons why it is important to have measures such as GPS monitoring and the ability to cross-check his information with the psychologist, the CCO and WA Police, who will provide information about the respondent from time to time. Those measures will enable the authorities to determine whether the respondent is conveying reliable information about what he is doing and his thought processes, the latter being as important as the respondent's actions in adapting measures to mitigate his risk.
3. Having considered all of those matters, while I regard the description 'unreliable historian' to be appropriate, I do not consider that the respondent's inconsistencies in his historical accounts mean that the respondent would not substantially comply with the standard conditions of a supervision order.
4. In relation to the respondent's behaviour in prison in Western Australia since 2013, it can be summarised by saying that, while he was charged with some prison offences in the early stages, including an offence of engaging in misconduct subversive of the order and good government of the prison by fighting in 2015, in recent times, there have been no further charges and he has generally been regarded as being polite and respectful and has been considered by custodial staff to interact well with other prisoners. That has not always been the respondent's own assessment of his relationship with other prisoners, but it seems that there have not been any conflicts of note in recent times. It was reported that he followed unit rules and instructions without issue and was not considered to be a management concern.
5. As I outlined at [302] above, Dr Wynn Owen was of the view that there had been a distinct change in the respondent's behaviour while serving his term of imprisonment in Western Australia, which suggested the respondent had chosen to change his behaviour, even if prison behaviour is not necessarily a reliable predictor of behaviour in the community. The respondent's compliance with his medication regimen was considered to be important to the respondent's ability to manage his irritability and avoid confrontation.
6. Further, at the time of the hearing, the respondent had engaged in counselling and had expressed a willingness to continue with that intervention, recognising the benefits to him.
7. The respondent's attitude towards the delay in these proceedings when he spoke with Ms Cashmore before the hearing on 12 April 2022, also suggested a degree of maturity that should improve his prospects of compliance with a supervision order.
8. In my opinion, notwithstanding:

(a) the respondent's outstanding treatment needs;

(b) the reservations in respect of the impact that his antisocial personality disorder might have upon his ability to comply with the conditions of a supervision order; and

(c) the fact, as was recognised by Ms Hasson, that it would have been desirable for some of the criminogenic treatment to occur before the respondent's release into the community,

his circumstances at the time of the hearing warranted the conclusion that he should be given the opportunity to further his progress in the community under supervision.

1. As discussed in my outline of Dr Wynn Owen's evidence, he noted the potential risk of regression in the respondent's attitudes if he were to remain in custody. Further, he also referred to the possibility of such regression in the event that the supervision order were to be for a very lengthy period. In my view, at this stage, it would be speculative to draw any conclusions about regression. I would prefer to approach the matter on the basis that there are positive signs of progress, and those positive signs favour the making of a supervision order.
2. The respondent will need long term regular psychological counselling to address his significant outstanding treatment needs, in particular in respect of criminogenic factors. I am not convinced that he fully appreciates the importance of addressing those criminogenic factors, but I accept that he has a willingness to do so with Mr Summerton.
3. I am satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order, and that the conditions of the proposed supervision order, as a whole will ensure the adequate protection of the community.
4. Further, for the reasons I have outlined above, I am satisfied that the conditions of the proposed order, as formulated by the Community Offender Monitoring Unit of the Department of Justice, and supported by Dr Wynn Owen and Ms Hasson, are both necessary and sufficient to provide adequate protection of the community. While the conditions place a significant burden on the respondent in terms of his obligations and the constraints on his activities, they are no more than are necessary, having regard to:

(a) the level of his risk and the significant harm that would be caused to the community if he were to commit another serious violent offence; and

(b) the fact that his ability to cope in the community without significant guardrails and support is untested; and

(c) the fact that he has significant unmet treatment needs and there are significant steps he has still to take to demonstrate he can self-manage his risk in the community, particularly by remaining abstinent from alcohol and drug use and avoiding antisocial peers.

1. As I discussed above, in dealing with the proposed conditions of the supervision order, there is scope for relaxation of the conditions over time, including in respect of GPS monitoring and the curfew. The respondent will need to demonstrate that he can be relied upon and that they are no longer necessary in order to manage and supervise and monitor his behaviour in the community. In my assessment, that will depend, to a large extent, on the ability of his CCO, his psychologist, and WA Police to be satisfied that the respondent is honest with them, and is reliable in the information that he conveys to them.
2. As I outlined above, by the time of the hearing before me, suitable accommodation had been found through the HRSO Supported Accommodation Program. The availability of supported accommodation, with its own restrictions in respect of problematic behaviour is another factor supporting the making of a supervision order.
3. Finally, it is appropriate to note that the monitoring allowed by the proposed conditions, together with the counselling that will be provided by Mr Summerton and the supervision that will be provided by the respondent's CCO, should enable early detection of warning signs, of an escalation in his risk of committing a serious offence. Those warning signs might be in respect of the respondent's behaviour (including drug or alcohol use) or his attitudes. That would enable those responsible for monitoring, supervising and treating the respondent to intervene by taking appropriate measures to mitigate the risk while the respondent remains in the community, where the escalation of risk can be managed in that way. If the warning signs consist of contraventions of any of the conditions, that may result in the respondent being charged with a breach offence under s 80 of the HRSO Act, which carries a maximum penalty of 3 years' imprisonment. In the case of a significant contravention that indicates the supervision may no longer be effective in adequately protecting the community, the risk management team can commence contravention proceedings in this court, with the potential consequence that the respondent will be made subject to a CDO. The respondent will be made aware of these possibilities, and it is to be expected that such awareness will act as a deterrent to contravention, and, by corollary, an incentive to compliance.
4. In summary, I am satisfied that the respondent will substantially comply with the standard conditions of a supervision order and that it is appropriate to make a supervision order, essentially in the terms proposed, which I am satisfied will provide adequate protection of the community. While I considered each of the proposed conditions to be appropriate, I made some changes to the wording, essentially for the purposes of clarity. The changes did not change the effect of the conditions.

1. I turn finally to the question of the duration of the supervision order.
2. As I said above, Dr Wynn Owen considered that a period of two to three years would be appropriate. In his view, approaching the end of that period, if it became apparent that a further period of supervision was necessary to ensure adequate protection of the community, a further application could be made. Ms Hasson considered that, having regard to historical factors and the imminence of offending within the relevant cohort in the Static-99R instrument, a period of five years was appropriate, and necessary, to enable the benefits of psychological counselling to take effect with the goal of reducing the respondent's risk of sexual reoffending and violent reoffending to an acceptable level without restrictions.
3. Under s 36 of the HRSO Act, the State may apply for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. There is provision, therefore, for the State to apply for a further supervision order if, approaching the end of the supervision order I make, there is evidence that the respondent's risk is still at a level where there is a need for a further period of restriction to provide adequate protection of the community.
4. I have taken into account that the respondent's last offences were committed after a significant period of imprisonment, which indicates that the risk may resurface, even after a lengthy period of time. However, the respondent was not subject to a supervision order during that time and did not have the benefit of long-term individual treatment.
5. In my view, given that:

(a) the respondent has now been in custody for a significantly longer period of time;

(b) he is now significantly older;

(c) he has already spent a significant period on interim detention since 3 February 2021, which has provided a significant opportunity to observe the respondent's behaviour and attitudes since these proceedings were commenced; and

(d) he appears to have matured to some extent in his attitude and his behaviour in the prison environment,

a period of three years of supervision should provide sufficient time to identify whether the respondent would be able to manage his risk without further restrictions into the future.

1. Consequently, I have come to the conclusion that, at this stage, the appropriate duration of the period for which the respondent should be subject to the supervision order is three years, and the respondent's circumstances can be reviewed by the authorities in the final year of that period to determine whether a further order is necessary.

1. Section 27(3) of the HRSO Act provides that the date from which a supervision order has effect must not be earlier than 21 days after the date the order is made, unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
2. In the absence of any evidence at the time of my decision that it would be practically feasible to implement the order earlier, I ordered that the supervision order was to come into effect on 27 September 2022, being a date that was not earlier than 21 days after the date the order was made, and was determined after hearing from counsel.

1. I was also satisfied that it was appropriate to make a suppression order in relation to the address (including the suburb) to which the respondent would be released to reside, subject to the supervision order. There have been occasions in the past when the address to which a high risk serious offender has been released was publicly known, and persons who felt aggrieved by the offender's release from custody had attended the address and caused harassment and damage. The integrity and efficacy of a supervision order depend on the peaceful occupation of the nominated residence by the person released on the order. The statutory scheme exists to protect the community, not for the purpose of punishment. Compromising the suitability of accommodation, in particular supported accommodation is calculated to undermine the statutory scheme.
2. Accordingly, I made an order that there is to be no publication of the address, including the suburb, to which the respondent was to be released to reside.

(1) The interim detention order made by Hall J on 3 February 2021 is to be rescinded from 27 September 2022.

(2) From 27 September 2022, the respondent is to be subject to the conditions stated in the supervision order (being Annexure A to these reasons).

(3) The Supervision Order is to have effect for a period of three years beginning 27 September 2023.

(4) There is to be no publication of the address, including the suburb, to which the respondent will be released to reside. This order does not apply to any communication by any representative of a party to these proceedings for the purpose of conducting the case or providing advice in respect of the case or by any person who is responsible for supervising the respondent if the communication is necessary for that purpose.

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Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020, 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 (HRSO Act), the Court makes a supervision order in relation to the Respondent (this Order), for a period of 3 years from 27 September 2022 on the following conditions:

1. Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre within 48 hours of your release from custody subject to this Order, and advise the CCO of your current name and address.

1. Report to and receive visits from a CCO as directed by the court under this Order;

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

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

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

1. Not commit a serious offence as defined in section 5 of the HRSO Act during the period of this Order.

1. Be subject to electronic monitoring under section 31 of the HRSO Act.

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

1. Report to a CCO at the address approved for your release within normal business hours on the day of your release from custody under this Order.

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

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

1. Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO for the purpose of treatment related to your offending or support to reintegrate into the community.

1. Comply with the requirements of all programmes designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO.

1. Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, Perth WA 6000, or other police stating station if regional, within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of SOMS or his/her delegate.

1. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.

1. 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 this Order.

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

1. When requested, provide WA Police with the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.

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

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

1. Have no contact, directly or indirectly, with the victim of your offending for which you were sentenced on 21 January 2015, unless such contact is conducted in accordance with an agreement made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.

1. Immediately withdraw physically from any situation or immediate location in which contact is made with the victim of your offending (including being in the immediate presence of the victim), without engaging in conversation with the victim, whether by word or gesture, and must avert your gaze from the victim at all times, unless contact with the victim is permitted pursuant to condition 21.

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

1. Not commit an offence under s 202, s 203, s 204 or s 557K of the Criminal Code 1913 (WA).

1. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

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

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

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

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

1. Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by a supervising CCO for the purpose of dealing with physical or mental health issues.

1. Comply with any medication regime in accordance with a medical practitioner's directions, or as directed by a CCO in consultation with a medical practitioner or medical practitioners, and comply with all testing to monitor your compliance with that treatment as directed by a CCO.

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

1. Engage with mental health services and obey the instructions of the treating psychiatrist with regard to treatment and medication.

1. Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by a CCO.

1. Not possess, consume, purchase, or use alcohol.

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

1. Provide a valid sample pursuant to condition 36.

1. Not go to, or remain at, any licensed premises unless you are permitted or required to do so for any one or more of the following reasons:
   1. To avert or minimise a serious risk of death or injury to yourself or another person;
   2. For a purpose, and for a duration, approved in advance by a CCO;
   3. To comply with an order of a CCO or a Police Officer.

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

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

1. Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place.

1. Not enter any residential address unless authorised in advance by a CCO.

1. Not permit any individual to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO.

1. Upon your next contact with your CCO after the formation of any such relationship, report the formation by you of any friendship, or a domestic, romantic, sexual or otherwise intimate relationship with any person.

1. As directed by a CCO, make full disclosure regarding your past offending and this Order to anyone with whom you commence a friendship, or a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

1. Advise a CCO of every computer telecommunication device in your possession and, upon request, permit a CCO or WA Police to access your telecommunication devices at any location nominated by a CCO or WA Police for the purpose of ascertaining your activities and associations.

1. Not delete or otherwise remove and/or disguise or cause or allow to be removed and/or disguised by another person any data on your telecommunication devices, including but not limited to calls, Short Message Service (SMS) or logs capable of identifying your activities and associations, unless approved by a CCO.

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

[6] State Director of Public Prosecutions v Carr [2021] WASC 26 (Carr) [4] - [6].

[7] I have referred to the victim as the respondent's brother-in-law. The materials reveal that the respondent has previously said that the victim was not his brother-in-law, but I have proceeded on the basis that the description is appropriate because it was the description used at the relevant time.

[8] HRSO Act s 3, definition of 'serious offender under custodial sentence'.

[10] HRSO Act s 3, 5(1), s 5(2) and s 5(4), and sch 1 div 1.

[17] See The State of Western Australia v Corbett [No 5] [2017] WASC 115 [78], [81] - [82]; The State of Western Australia v Narrier [No 6] [2020] WASC 349 (Narrier [No 6]) [196] - [197].

[22] This section reflects the construction of the relevant statutory framework and legal principles upon which I relied at the time of giving this decision. Since giving my decision in this case, and prior to publication of these reasons, I have published reasons in other cases that have regard to later authorities which have endorsed, either expressly or implicitly, the two-step process discussed below.

[23] The State of Western Australia v ZSJ [2020] WASC 330 [30] - [63]. See also The State of Western Australia v ACJ [2021] WASC 219 (ACJ) [19] - [41].

[25] ZSJ [31]. See also ACJ [27] - [30].

[26] Narrier [No 6] [4], [29] ‑ [30]; The State of Western Australia v MBW [No 7] [2020] WASC 404 (MBW [No 7]) [29] ‑ [30]; The State of Western Australia v Ward [No 2] [2020] WASC 480 (Ward [No 2]) [6]; and The State of Western Australia v Pindan [No 5] [2021] WASC 72 (Pindan [No 5]) [25].

[27] The State of Western Australia v Garlett [2021] WASC 387.

[28] ZSJ [42], referring to Western Australia, Parliamentary Debates, Legislative Assembly, 26 June 2019, (Hansard) 4675b-4677a (Mr J.R. Quigley, Attorney General) at 4675.

[30] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297.

[32] The analysis which follows, in particular in respect of the approach to be taken in respect of s 7 of the HRSO Act in light of the decision of Corboy J in Garlett, was the basis on which I decided this case on 2 September 2022. Since then, I have reached the view that the approach discussed by Corboy J in Garlett was implicitly endorsed in the subsequent decision of the High Court in Garlett v The State of Western Australia [2022] HCA 30; 96 ALJR 888; 404 ALR 182; 298 A Crim R 510 (delivered 7 September 2022).

[35] See, for instance, The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 (Quinlan CJ) (D'Rozario); The State of Western Australia v Nelson [2021] WASC 460 (McGrath J) [15]; The State of Western Australia v Narrier [No 2] [2022] WASC 49 (Hill J); The State of Western Australia v MAM [2022] WASC 100 (Strk J); The State of Western Australia v AB [No 3] [2022] WASC 126 (Strk J); The State of Western Australia v Dragon [No 2] [2022] WASC 189 (Strk J).

[38]The State of Western Australia v Sandwell [2022] WASC 206 (Smith J); The State of Western Australia v Lewis [No 3] [2022] WASC 148 (Archer J).

[39] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307.

[40] Williams [63] - [65] (Wheeler JA); GTR [28] (Steytler P and Buss JA).

[41] ACJ [27] - [30]. That approach was adopted by Strk J in Dragon at [20], where her Honour noted that the factors identified by Wheeler JA in Williams, and Buss JA in Italiano v The State of Western Australia [2009] WASCA 116 (which were also identified in GTR), and the balancing exercise to which their Honours referred, would be most relevant to the determination of whether it was necessary to make a restriction order to adequately protect the community.

[44] GTR [28] (Steytler P & Buss JA).

[45] GTR [34] (Steytler P & Buss JA).

[46] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].

[49] The State of Western Australia v Latimer [2006] WASC 235 [49].

[50] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].

[53] HRSO Act s 3 (definitions) and s 30(2).

[54] DSO Act s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the HRSO Act.

[55] DSO Act s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 [(WA)] section 36A', which included offences that were not within the meaning of 'serious sexual offence' in the DSO Act. Some of the offences referred to in s 36A of the Evidence Act are not included in the definition of 'serious offence' in the HRSO Act.

[56] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52]; The State of Western Australia v CF [2021] WASC 20; The State of Western Australia v PAS [No 3] [2021] WASC 117 [17]; The State of Western Australia v Corbett [No 8] [2021] WASC 171 [48].

[57] Williams [86] (Wheeler JA, Le Miere AJA agreeing).

[63] As Dr Riordan points out in her reports (BOM 353, 482), the respondent's date of birth is recorded inconsistently, in terms of the year of birth, in the various materials in the BOM. For instance, his New South Wales criminal record shows his date of birth as 11 June 1967, his Western Australian criminal record shows it as 11 June 1966, and the Western Australian Department of Justice database shows it as 11 June 1968 (see Dr Riordan's report at BOM 353). It is not clear whether the inconsistency is a result of information provided by the respondent, or if there is another explanation. The date was consistently reported by Dr Wynn Owen, Ms Hasson and Dr Riordan as 11 June 1967. There was no dispute in these proceedings that that is the correct date of birth. Moreover, it was not in dispute that the various materials in the BOM (including the criminal records) relate to the respondent, notwithstanding the inconsistency in the recording of the date of birth.

[85] BOM 401 - 402 [11.1] (Dr Wynn Owen's report).

[90] BOM 370 [3]. He said similar things to Ms Zuin: BOM 256.

[91] BOM 370 [5]. See also Ms Zuin's report: BOM 256.

[92] BOM 370 [6], referring to BOM 15, Australian Federal Police Information for the Court.

[109] In her report of January 2015, Ms Zuin said, in respect of the respondent's mother, 'She apparently died 7 years ago', but she noted that the respondent had not seen her since his conviction (for the murder offence), so it appears the respondent was relying on information he had been provided by others.

[110] BOM 370 [7]. See also BOM 256 - 257.

[180] See [128] below.

[181] BOM 401. See also [128] below, as to what the respondent said to Dr Riordan on this issue.

[196] BOM 340 [17], 372 [17], 399 [9].

[198] BOM 340 [19], 356 - 357 [12], 373 [17].

[214] ts 68 - 70; BOM 407 - 408 [19].

[232] I have anonymised the names of the victims of these offences to protect their privacy.

[233] The details are set out in detail in a document headed Facts on Sentence relating to the offending by both the respondent and his co-offender: BOM 318 - 322.

[257] BOM 275. This conclusion was drawn from Ms Zuin's report: BOM 260.

[340] See [206] above.

[347] See [137] above and the outline of Dr Wynn Owen's evidence below.

[348] See [126] above.

[359] BOM 378 [44], 379 [47], 385 - 386 [86], 393 [131].

[375] In her update report of 23 March 2022, Dr Riordan referred to five sessions, and in oral evidence said she believed there had been one more: ts 169; BOM 483 [6].

[417] By virtue of s 74J(3) of the Sentence Administration Act, if an offender who is the subject of a PSSO, becomes a serious offender under restriction under the HRSO Act, during the PSSO period, the PSSO applicable to the supervised offender is cancelled by operation of that subsection. However, the definition in s 3 of the HRSO Act of 'serious offender under restriction' does not include a person who is subject to an interim detention order.

[424] Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, DSM-V, 2013; BOM 407.

[458] ts 100. See also [134] above.

[468] ts 81. See [290] above. See also ts 93.

[476] See [302] below.

[544] BOM 388 - 389 [101] - [110].

[545] BOM 389 - 390 [111] - [115].

[546] BOM 390 - 391 [116] - [120].

[548] BOM 391 [122]. As noted at [223] above, Ms Hasson was of the view that some of the respondent's violent offences were instrumental (a means to an end), and others were 'expressive' or emotionally driven offences, and therefore linked more closely to anger.

[576] Applicant's revised outline of submissions dated 7 April 2022, 28 [186].