THE STATE OF WESTERN AUSTRALIA -v- MATIAY [No 3] [2024] WASC 245 (15 July 2024)

(1) is likely to contravene the supervision order;

(2) the supervision order should be amended but otherwise continued.

1. Accordingly, the respondent will be released on the supervision order made on 15 November 2023 as amended.

1. On 15 November 2023 the respondent was declared a high risk serious offender, pursuant to the Act. McGrath J imposed a supervision order (SO) upon the respondent for a period of 5 years.[1]
2. The SO contained 37 conditions including a condition that the respondent:[2]
   1. Not...commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.

1. On 14 December 2023, the respondent was arrested by police on a charge of doing an obscene act in a public place or in the sight of any person who was in a public place, contrary to s 202(1)(a) of the Criminal Code (WA). That offence attracts a maximum penalty of 3 years' imprisonment, and is punishable summarily by imprisonment for 12 months and a fine of $12,000.
2. The offence occurred at the unit complex at which the respondent resided under the SO. On 14 December 2023 at around 2.15 pm, two women, one of whom was a carer for the other (the latter resided at the unit complex), were walking down an external staircase. The respondent was standing outside his unit.
3. Both complainants observed the respondent rubbing his genital area and heard him groaning. As the complainants walked past the respondent and down the stairwell, they observed him expose his erect penis and place it between the metal bars of the safety rails.
4. Police attended the address later that day, and the respondent was arrested.
5. The State commenced contravention proceedings on 20 December 2023, seeking an order pursuant to s 55(2) of the Act, that the SO be rescinded and a continuing detention order imposed, or alternatively that the SO be amended in such terms as the Court thinks fit.
6. The respondent was detained pursuant to an interim detention order, and a report was ordered to be produced by Dr Peter Wynn Owen in relation to the respondent.
7. The respondent later pleaded guilty to the offence and on 13 June 2024 was sentenced to a term of imprisonment of 6 months and 1 day, backdated to 14 December 2023.

1. The State tendered a Book of Materials comprised of two volumes.[3] The first contained the respondent's criminal history, documents from the Department of Justice relating to the respondent, medical records relating to the respondent, and historical assessment reports including psychological and psychiatric reports produced for the purposes of the restriction order hearing before McGrath J on 8 November 2023. The second volume contained updated reports for the purposes of the contravention hearing.
2. The State also adduced a Desktop Spatial Analysis in respect of the property at which the respondent is proposed to be housed, should he be released on the SO, with or without amendment.[4]

(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. The jurisprudence established in respect of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) is relevant in construing and applying the Act, with necessary adaptation.[6]
2. The powers conferred by the Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[7]
3. If a respondent is brought before the Supreme Court under a warrant under s 51(3) of the Act, the State may make an application for an order under s 55 of the Act.[8]
4. On such an application, if the court is satisfied on the balance of probabilities that the offender is likely to contravene a condition of a supervision order, the court must:[9]

(a) rescind the supervision order and make a continuing detention order; or

(b) subject to s 29, make an order amending the conditions and/or extending the period for which the offender is subject to the supervision order.

1. It is to be assumed that the respondent remains a high risk serious offender; the court is not required to make that determination again.[10]
2. In deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community.[11]
3. A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[12] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the Act.[13]
4. The court cannot release an offender on a supervision order unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[14]
5. The standard conditions of a supervision order are set out in s 30 of the Act and include the requirement that the offender not commit a serious offence during the period of the order.[15]
6. In Director of Public Prosecutions for Western Australia v Hart,[16] Fiannaca J observed that, in determining whether an offender 'will substantially comply with the standard conditions of the order':

[t]he court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious ... offence.

1. Even if the court is satisfied that the offender will substantially comply with the standard conditions of a supervision order, the court must not release the offender unless satisfied that a supervision order will ensure an adequate degree of protection to the community.[17]

Assessment of evidence Evidence at the restriction order hearing before McGrath J

1. The antecedents of the respondent, including his criminal history, are set out in the decision of McGrath J in The State of Western Australia v Matiay [No 2].[18] For the purposes of this decision, it is sufficient to say that the respondent, who is now 29 years old, has a history of violent offending dating back to the age of 14 years, with some of his later offending having a sexual element. He incurred numerous adverse incident reports and prison charges while incarcerated for the index offence, including for prison assaults.
2. I adopt, without repeating, McGrath J's summary of the evidence of Dr Wynn Owen and Ms Hasson, both contained in their reports prepared for the purposes of the restriction order hearing, and as given at the hearing itself.[19]
3. The respondent has been diagnosed with substance abuse disorder (methylamphetamine), anti-social personality disorder[20] and also has a likely diagnosis of post-traumatic stress disorder (PTSD).[21]
4. Dr Wynn Owen expressed the opinion that the respondent's PTSD requires treatment, principally cognitive behaviour therapy, which is not available in a custodial setting in WA.[22] Dr Wynn Owen was of the view that the respondent also has a range of other treatment needs, which should be addressed through a combination of programs and individual counselling.[23]
5. The respondent has been assessed by Dr Wynn Owen as having a well-established pattern of violent behaviour and a recent established pattern of sexual offending, which appears to be escalating. In his evidence, Dr Wynn Owen expressed the opinion that the respondent presented a high risk of committing a future serious violent offence and/or a serious sexual offence if not subject to a restriction order under the Act.[24]
6. In Ms Hasson's opinion, the most significant factors contributing to the respondent's offending include antisocial personality disorder, his history of instability, substance abuse issues, and the presence of antisocial peers, as well as difficulties with emotional and behavioural regulation, especially the expression and/or inhibition of angry or aggressive impulses and the presence of weapons. Lifestyle factors such as a lack of employment, limited prosocial supports and limited meaningful engagement in community based hobbies or leisure pursuits, and dependence on crime to support himself have also contributed to the respondent's risk of re-offending.[25]
7. Ms Hasson expressed the opinion that the respondent presented as a high risk of serious violent offending if not subject to a restriction order. She considered him to be a high risk of committing a future sexual offence, but did not make a similar assessment as to that being a serious sexual offence.[26]
8. The respondent accepts limited responsibility for his offending, and, in Ms Hasson's view, does not seem to comprehend its seriousness or the risk he poses to others.[27] The respondent has outstanding treatment needs, but appears to lack insight into those needs.[28] He does not have a relapse prevention plan, and has not developed or identified risk management strategies.[29]

1. Dr Wynn Owen has provided an addendum psychiatric report dated 27 May 2024. In that report, he recounted that the respondent explained his offence on the basis that he had had a long day and was tired. When the complainants walked past him, he said hello and they ignored him and were staring at him 'weird' so he felt a bit annoyed. He exposed himself 'in a groaning sort of way' which he considered to be 'like giving them the bird'. He denied sexual arousal or motivation. He expressed apparently sincere remorse, both for the complainants and the likely outcome for himself.[30]
2. Dr Wynn Owen reconsidered the previously identified risk factors under the actuarial and structured professional judgment tools, and noted the continued minimisation by the respondent of the sexual violence inherent in his conduct, and his problems with self-awareness and stress or coping.[31]
3. Dr Wynn Owen maintained his opinion that the respondent presents a high risk of committing a serious offence in the future, and a very high risk of committing a future sexual or violent offence (although not a 'serious' offence as defined by the Act). In short, his level of risk is unchanged since McGrath J made the SO.[32]
4. However, Dr Wynn Owen was also of the view that, provided the respondent can refrain from substance use, if he is motivated and is given adequate supports during his transition from custody to the SO, the respondent is capable of reducing his risk of committing such an offence.[33]
5. Dr Wynn Owen reported that the previous release was stressful and emotionally uncomfortable for the respondent, which led to significant fluctuations in mood over the short time he was in the community. The mood he was in at the time the women walked past him made him more likely to act impulsively and without thought for the consequences.[34]
6. Having spoken to the respondent since he was made subject to the interim detention order, Dr Wynn Owen formed the view that the respondent has a good understanding of the seriousness with which any future contravention of the SO will be treated, and of the increased risk of him contravening the SO if he engages in substance use.[35] Dr Wynn Owen considered the respondent has the potential to make meaningful treatment gains, and appreciably reduce his risk of committing a serious offence, if he maintains the motivation to address his criminogenic needs and engage in counselling.[36]
7. In Dr Wynn Owen's view, the respondent will need a greater degree of social support than he had when he was last released on the SO, if he is to make a successful transition to the SO.[37] However, he also considered that the respondent might be better prepared for the reality of the onerous conditions of the SO and what it entails at the time of any future release.[38]
8. Dr Wynn Owen did suggest that the term of the SO would be less overwhelming for the respondent if it were reduced to three years from five,[39] but that is not an option open to the court under s 55(2),[40] as counsel for the respondent conceded.[41]

1. No treatment progress report is available, as the respondent was only at liberty on the SO for long enough to attend one somewhat truncated counselling session with the treating psychologist, Mr Summerton.[42]
2. It is expected that, now that the respondent's criminal charge has been dealt with, Mr Summerton will re-engage with the respondent, in order to ascertain the suitability of providing ongoing individual intervention.[43]

1. Ms Shae Hazzard, Team Leader with the Community Offender Monitoring Unit (COMU), has provided a report dated 31 May 2024 in relation to the respondent.
2. Ms Hazzard reported that, on the date of the contravention offence, the respondent had attended an appointment with the Community Forensic Mental Health Service. Dr Griffiths of that service reported that the respondent presented as 'sad, isolated, and...vague regarding his goals', and was apparently reluctant to cooperate during the appointment. However, he did express motivation not to re-offend, and agreed to commence antidepressant medication.[44]
3. The respondent also attended a supervision session on the day of the contravention offence. In that session, he was observed to minimally engage. He did report self-management of a high risk situation, in which he met an antisocial peer from his past and engaged only minimally before walking off as he didn't want to relapse.[45]
4. There have been no incidents reported in relation to the respondent since he has been detained on the interim detention order.[46] Random drug testing has been negative and the respondent denies any illicit substance use during his interim detention order.[47]
5. The respondent's Uniting WA case worker reported that the respondent was engaging with the service in the community and was 'calm and collected' during his various reintegration appointments. The case worker has reported that the respondent continues to engage in a positive and future focussed manner while in custody.[48]
6. In interview, the respondent referred to the number of appointments he had in the initial days of his release and the different people he had met, and described a feeling of being 'blank' due to stress.[49] He expressed a commitment to engage with recommended supports and treatments if he is released again on the SO, although acknowledged he may need a more 'spaced out' approach to appointments and obligations initially.[50] Ms Hazzard indicated that COMU would be able to take that into account at the time of any future release.[51]
7. Ms Hazzard reported that the respondent's plans for any future release appear to lack detail and any attainable plan.[52] He has no employment plans at present.[53]
8. Uniting WA told Ms Hazzard that it is expected that the respondent will be provided with reintegration support if released, for up to two years, with practical support, informal guidance with decision making processes, and life skills training. He will also be referred to long term community supports, and linked into appropriate recreational activities. Subject to availability, the extent of the support is approximately 10‑20 hours per week for the first two weeks, and will reduce gradually over time.[54]

1. The respondent has been allocated housing under the HRSO Supported Accommodation Program. He will not be offered a private rental through that program and will only be offered a six-week tenancy in one of the Department of Communities properties used for the program.[55] However, as long as the respondent complies with the conditions of his tenancy, his tenancy with the HRSO Supported Accommodation Program will be renewed on a six-weekly basis until the respondent can be supported into private accommodation.[56]
2. Outside the HRSO Supported Accommodation Program, there is little prospect of the respondent obtaining housing through the Department of Communities; the respondent has been on a waitlist since December 2019, in a zone where individuals who have been on the waitlist since 2009 are presently being housed.[57]

1. Counsel for the respondent did not submit that the court should not find that the respondent was likely to contravene the SO, but submitted that, even so, the respondent should be released on the SO, with one minor amendment proposed by the State.
2. The State submitted that the court should find that the respondent was likely to contravene the SO, but conceded that the court could be satisfied that the respondent would substantially comply with the standard conditions of the SO and that the community could be adequately protected from the risk that the respondent would commit a serious offence by again releasing him on the SO with one minor amendment.

Should the Supervision Order be rescinded, affirmed, amended or extended?

1. I am satisfied that the respondent is likely to contravene a condition of the SO.
2. While the State did not allege an actual contravention of condition 17, it is my view that the circumstances of the offence committed by the respondent would be capable of constituting a contravention of that condition. The respondent intended the gesture in an aggressive manner, and the two women who were the target of the respondent's conduct were entitled to see his conduct as a threat of violence.
3. It is important to note that this kind of offending does not constitute a 'serious offence' within the meaning of the Act. However, that does not mean that the risk that the respondent is likely to commit such an offence in the future should not be strictly managed.
4. Given Dr Wynn Owen's view as to the respondent's risk of committing such an offence in the future, and the issues the respondent had with the SO on his previous release, I am satisfied that it is likely that the respondent will contravene a condition of the SO.
5. Having so found, the options available to the court pursuant to s 55(2) of the Act are to rescind the SO and make a continuing detention order in relation to the respondent, or to amend the SO or to amend the SO and extend the term of the SO. In determining which order to make, the paramount consideration is the need to protect the community.[58]
6. During the most recent period he has been in custody, being 7 months, the respondent has not had any adverse incidents recorded against him. That is a significant change in the respondent's previous custodial history, and indicates an increased ability on the part of the respondent to control his impulsivity, and motivation to engage with his SO.
7. The time that the respondent has served in custody since his arrest has also, it seems, provided a strong reinforcement to him of the seriousness of the consequences which are likely to flow from any future breach of the conditions of the SO, regardless of the nature of the breach.
8. The fact that some necessary treatment options are not available in custody means that, as long as the respondent remains in custody, steps which could be taken to reduce his risk, potentially substantially, are not being taken. The longer term protection of the community is better served by the respondent being able to access those non-custodial treatment options. Clearly, the community must also be protected in the short and medium term, but I take this matter into account in determining the appropriate order to make in the case of the respondent.
9. As I have indicated, I am also satisfied that the respondent now has a greater awareness of what release on the SO entails, and a better preparedness for the intensity of the obligations he will face on release. In addition, those with the responsibility for monitoring, supervising and treating the respondent have a greater awareness of the issues confronting the respondent and will be able to adapt the manner in which they deal with him in the initial weeks of the SO, which is to be hoped will assist the respondent's transition into the community without sacrificing community protection.
10. Having considered all of the evidence, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the SO.
11. I propose to amend the SO, as proposed by the State. Condition 17 will be amended to require that the respondent:

[n]ot commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either a sexual offence or obscene act, violence, threats of violence, or the possession of weapons or offensive instruments.

1. A further condition will also be added, requiring that the respondent:

[n]ot assault, threaten, insult or behave in an intimidating manner to a member of the Departmental staff or any agent providing a service on behalf of the Department of Justice.

1. The respondent's address will also be amended.
2. In light of the evidence of Dr Wynn Owen, I do not consider it would be appropriate to extend the term of the SO.
3. I am satisfied that the SO as amended will ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
4. The Department initially requested that any order that the respondent be released on the SO take effect 28 days after the making of the order, in order to put in place appropriate supports and plans for the respondent's release. However, as was later accepted by the applicant, there is no power under the Act to delay the respondent's release, as the SO is not being made, but merely amended.[59]

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

[1] The State of Western Australia v Matiay [No 2] [2023] WASC 436.

[2] The State of Western Australia v Matiay [No 2] [2023] WASC 436 (Annexure One).

[6] The State of Western Australia v ZSJ [2020] WASC 330 [31].

[7] Garlett v The State of Western Australia [2022] HCA 30 [55] - [56].

[10] The State of Western Australia v CA [No 3] [2023] WASC 144 [28].

[16] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52(6)].

[17] The State of Western Australia v ACJ [2021] WASC 219 [38].

[18] The State of Western Australia v Matiay [No 2] [2023] WASC 436 [39] - [63].

[19] The State of Western Australia v Matiay [No 2] [2023] WASC 436 [74] - [104].

[20] Exhibit 1, Book of Materials, Vol 1, Report of Dr Wynn Owen [62] - [64], Report of Ms Hasson [21].

[21] Exhibit 1, Book of Materials, Vol 1, Addendum report of Dr Wynn Owen [35] - [36].

[23] Exhibit 1, Book of Materials, Vol 1, Report of Dr Wynn Owen [172(i)].

[24] The State of Western Australia v Matiay [No 2] [2023] WASC 436 [87].

[25] Exhibit 1, Book of Materials, Vol 1, Report of Ms Hasson [159] - [160].

[26] Exhibit 1, Book of Materials, Vol 1, Report of Ms Hasson [158].

[27] Exhibit 1, Book of Materials, Vol 1, Report of Ms Hasson [157].

[28] Exhibit 1, Book of Materials, Vol 1, Report of Ms Hasson [78], [80], [93], [94], [124], [131], [156], [159].

[29] Exhibit 1, Book of Materials, Vol 1, Report of Ms Hasson [159].

[30] Exhibit 1, Book of Materials, Vol 2, Report of Dr Wynn Owen [7].

[31] Exhibit Book of Materials, Vol 2, Report of Dr Wynn Owen [31].

[32] Exhibit 1, Book of Materials, Vol 2, Report of Dr Wynn Owen [38].

[34] Exhibit 1, Book of Materials, Vol 2, Report of Dr Wynn Owen [23].

[37] Exhibit 1, Book of Materials, Vol 2, Report of Dr Wynn Owen [24].

[42] Exhibit 1, Book of Materials, Vol 2, 168 - 169.

[43] Exhibit 1, Book of Materials, Vol 2, 156.

[44] Exhibit 1, Book of Materials, Vol 2, 169.

[45] Exhibit 1, Book of Materials, Vol 2, 169.

[46] Exhibit 1, Book of Materials, Vol 1, 55 - 56, Vol 2, 170.

[47] Exhibit 1, Book of Materials, Vol 2, Report of Dr Wynn Owen [12], 170.

[48] Exhibit 1, Book of Materials, Vol 2, 170.

[49] Exhibit 1, Book of Materials, Vol 2, 171.

[50] Exhibit 1, Book of Materials, Vol 2, 171.

[52] Exhibit 1, Book of Materials, Vol 2, 171.

[53] Exhibit 1, Book of Materials, Vol 2, 174.

[54] Exhibit 1, Book of Materials, Vol 2, 173.

[55] Exhibit 1, Book of Materials, Vol 2, 172.

[57] Exhibit 1, Book of Materials, Vol 2, 173.

[59] Section 27 of the Act only applies to the release of an offender after a supervision order is made.