THE STATE OF WESTERN AUSTRALIA -v- NARKLE [2019] WASC 404 (8 November 2019)

1. On 28 May 2019, Derrick J determined a preliminary hearing brought by the State under Division 1 of the Act. His Honour was satisfied, pursuant to s 14(1) of the Act, that there were reasonable grounds for believing that the court might find that Mr Narkle was a serious danger to the community and fixed a date for the hearing of this application. His Honour also ordered, pursuant to s 14(2)(b), that Mr Narkle be detained in custody until the conclusion of this application.
2. At the time that Derrick J made that order, Mr Narkle was a sentenced prisoner. He was serving a sentence of 10 years imprisonment for four offences of sexual penetration without consent contrary to s 325(1) of the Criminal Code 1913 (WA) (the Code) and two offences of unlawful and indecent assault contrary to s 323 of the Code. He was not made eligible for parole. That sentence, which was backdated to commence on10 June 2009, expired on 9 June 2019.
3. Prior to the expiration of that sentence, the Prisoners Review Board made an order, under pt 5A of the Sentence Administration Act 2003 (WA) (Sentence Administration Act) that Mr Narkle, upon release, be subject to a Post Sentence Supervision Order (PSSO).[1] The PSSO, which was imposed for two years from 9 June 2019, imposed supervision conditions akin to that which would apply under a parole order.
4. Before turning to the evidence, I will briefly set out the legal principles.

1. The two issues identified above arise from s 7 and s 17 of the Act. Section 17 provides:
   1. Division 2 orders

(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -

(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or

(b) order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.

(2) Subject to subsection (3), 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.

(3) A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.

(4) The onus of proof as to the matter described in subsection (3) is on the offender.

1. The phrase a 'serious danger to the community' is given content by s 7 of the Act, which provides:
   1. Serious danger to community

(1) 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.

(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied -

(a) by acceptable and cogent evidence; and

(b) to a high degree of probability.

(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -

(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and

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

(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and

(d) whether or not there is any pattern of offending behaviour on the part of the person; and

(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and

(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and

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

(h) the 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; and

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

(j) any other relevant matter.

(4) In considering whether it is satisfied as required in subsection (1), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.

1. The principles to be applied in relation to s 7 of the Act were set out Corboy J in The State of Western Australia v West:[2]

There was no issue between the parties regarding the principles relevant to the DPP's application. In summary:

(a) Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).

(b) The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).

(c) In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.

(d) It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].

(e) The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).

(f) In a passage that expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] ‑ [64]:

In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence 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.

(g) The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).

(h) The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].

(i) The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].

(j) The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke.

1. A 'serious sexual offence' under the Act (s 3) has the meaning given to that phrase in s 106A of the Evidence Act 1906 (WA) (Evidence Act). That means an offence under the Code mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty that may be imposed is 7 years, or more than 7 years. Much of Mr Narkle's previous offending falls within this definition. Some of it does not. Offences other than serious sexual offences may, nevertheless, be relevant in assessing the risk that, unless subject to an order under the Act, Mr Narkle will commit a serious sexual offence. For example, other offences may be connected to behaviour which has the real potential to lead to serious sexual offending or may be relevant to whether there is a discernible pattern of offending behaviour.[3]
2. If I find that Mr Narkle is a serious danger to the community, I must make an order under either s 17(1)(a) or s 17(1)(b).
3. The paramount consideration in determining whether to make an order under s 17(1)(a) or (b) is the need to ensure adequate protection of the community (s 17(2)).
4. In this regard, I respectfully adopt the following summary of the law in Director of Public Prosecutions (WA) v DAL [No 2] per Beech J:[4]

In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the Act applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order. (footnotes omitted and emphasis added)

1. In the context of the choice between a continuing detention order and a supervision order, an additional requirement arises by reason of s 17(3) and (4) of the Act. That requirement is that, before I can make a supervision order (as opposed to a continuing detention order), I must be satisfied on the balance of probabilities that Mr Narkle will substantially comply with the standard conditions of a supervision order. The onus of proof in that regard is on Mr Narkle.
2. The standard conditions are those that the court must impose as part of a supervision order. They are set out in s 18(1) of the Act and require that the person:

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

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

(c) notify a community corrections officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens; and

(d) be under the supervision of a community corrections officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); and

(e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

(f) not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order; and

(g) be subject to electronic monitoring under section 19A.

The interrelationship of s 7 and s 17

1. As I said in State of Western Australia v Rao,[5] it is important to recognise that the finding that a person is a 'serious danger to the community' is an assessment made as to the person's risk of committing a serious sexual offence if they are not subject to a continuing detention order or a supervision order. That is, a finding that a person is a serious danger to the community is to be made upon the assumption that the person is not subject to a continuing detention order or supervision order.
2. There is, therefore, an essential interrelationship between s 7 and s 17 of the Act. As the assessment of whether a person is a 'serious danger to the community' is made upon the assumption that there is no detention or supervision of the offender, it follows, as a matter of the purpose of the Act as a whole, that an order made under s 17 (either detention or supervision) is intended to remove or ameliorate the risk that the person will commit a serious sexual offence, so that there is no longer an 'unacceptable risk' of that occurring. In other words, the purpose of the Act as a whole is, as a consequence of the detention or supervision order, the person will no longer be 'a serious danger to the community'.

1. In support of the application, the State called four witnesses and tendered a number of exhibits.
2. The State called the following witnesses:

(a) Dr Mark Hall, consultant forensic psychiatrist;

(b) Dr Peter Wynn Owen, consultant forensic psychiatrist;

(c) Mr Kyle Jarvie, Senior Community Corrections Officer; and

1. Both Dr Hall and Dr Wynn Owen prepared reports under s 37 of the Act. Those reports were included in a four-volume book of materials for the Division 2 hearing (Exhibit 1). A further supplementary report of Dr Wynn Owen dated 22 October 2019 was also tendered (Exhibit 3).
2. Mr Narkle elected not to give evidence, but called his wife as a witness.[6]
3. Both parties tendered material in the form of recordings and transcripts of telephone calls (or extracts of such calls) between Mr Narkle and his wife. Those calls were the subject of evidence from both Dr Hall and Dr Wynn Owen and, ultimately, Mr Narkle's wife.
4. I have addressed the evidence before me in the context of the factors under s 7 of the Act, to which I now turn.

Factors under s 7(3) of the Act Mr Narkle's antecedents and criminal record - s 7(3)(g)

1. Mr Narkle was born in Bunbury, Western Australia on 21 January 1955. He is 64 years of age.
2. He first lived on an Aboriginal reserve near Narrogin, later moving to the town where he attended primary school and, for a year, high school. Mr Narkle was exposed to violence from a young age and spent periods of his childhood in the care of the Department of Community Welfare.
3. Mr Narkle's antisocial tendencies were evident from a young age. For the purposes of these reasons, I shall confine my summary of his antecedents (including his criminal history) to his adulthood.
4. Mr Narkle has spent the overwhelming majority of his adult life in prison (under sentence or on remand). As a consequence, little can be said of his employment history, given his limited opportunity for paid employment in the community.
5. Mr Narkle's criminal record includes a number of non‑sexual offences, including breaking and entering, stealing and aggravated assault.
6. Mr Narkle's sexual offending is extensive and varied. I have included in the following summary both offences that fall within the definition of serious sexual offences under the Act and other offences that, in my view, are relevant to his risk of sexual offending. A number of Mr Narkle's assault convictions, for example, occurred in the context of requests, or demands, for sex.
7. On 29 April 1980 Mr Narkle was convicted of one offence of aggravated unlawful assault contrary to s 313 and s 322 of the Code and one offence of using threatening words contrary to s 59 of the Police Act 1892 (WA). Mr Narkle committed the offences on 3 November 1979 against two separate female victims. He was 25 years old at the time. The ages of the victims are not known.
8. These offences involved Mr Narkle attempting to strangle one victim into submission and threatening to stab the other with a knife. Mr Narkle was sentenced to 6 months imprisonment for the aggravated unlawful assault offence and fined for the offence of using threatening words.[7]
9. On 8 February 1982 Mr Narkle was convicted of two offences of aggravated unlawful assault contrary to s 313 and s 322 of the Code. He committed the first of the offences on 11 December 1981 and the second on 18 December 1981, against two different women. Mr Narkle was 26 years old when he committed the offences.
10. The first of these offences involved Mr Narkle pushing his way into the victim's flat, asking for sex, and threatening her with a knife to her throat.[8] The second, again, involved Mr Narkle entering the victim's flat and, when she refused his advances punching her in the face several times and grabbing her by the throat. Mr Narkle was sentenced to a total of 9 months imprisonment for the two offences. [9]
11. On 12 October 1981 Mr Narkle committed an offence of aggravated unlawful assault a 13 year old girl. Mr Narkle pushed the girl on her back and lay on top of her. He was fined $100 for the offence. [10]
12. On 26 August 1982 Mr Narkle was convicted of one offence of abducting a girl under the age of 16, contrary to s 330 of the Code and two offences of having carnal knowledge of a girl under the age of 16, contrary to s 187 of the Code. Mr Narkle committed the offences on 16 to 18 January 1982. Mr Narkle was almost 27 years of age at the time of committing the offences. The victim was 14 years old. Mr Narkle was ultimately sentenced, after appeal, to a total sentence of 2 years imprisonment. The two offences of having carnal knowledge of a girl under 16 are serious sexual offences for the purposes of the Act. [11]
13. On 11 March 1985 Mr Narkle was convicted of two offences of rape contrary to s 325 and s 326 of the Code, one offence of deprivation of liberty contrary to s 333 of the Code and one offence of breaking and entering with intent to commit an offence contrary to s 404 of the Code. He committed the offences on 17 July 1984. He was 29 years old at the time he committed the offences. The victim was 18 years old.
14. The offences were committed 11 days after Mr Narkle had been released from custody after being acquitted of other sexual assault charges.
15. The victim of the offences committed on 17 July 1984 had met Mr Narkle on that day. He forcibly raped the victim twice. In the course of the offences, Mr Narkle made threats against her life.
16. The offences of rape are serious sexual offences for the purposes of the Act. On 19 April 1985 Mr Narkle was sentenced to a total of 6 years and 10 months imprisonment for those offences.
17. On 17 August 1989 Mr Narkle was convicted of one offence of unlawful assault occasioning bodily harm contrary to s 317 of the Code. He committed the offence on 19 April 1989 against his 20-year-old female partner. Mr Narkle was 34 years old at the time.
18. There is little detail in relation to the circumstances of this assault, although the injuries suffered by the victim attest to its severity: the assault knocked out two of the victim's teeth and fractured her jawbone.[12]
19. At the time that he committed this offence he was on parole for the offences for which he had been sentenced to 6 years and 10 months imprisonment. He was sentenced to 2 months imprisonment for the assault.
20. On 27 July 1990 Mr Narkle was convicted of two offences of aggravated sexual penetration without consent contrary to s 324E of the Code and one offence of deprivation of liberty contrary to s 333 of the Code. He committed the offences on 10 August 1989. Mr Narkle was 34 years old at the time. The female victim was 20 years old.
21. Mr Narkle had been taken into the home of the victim and her husband and children out of a sense of Christian charity. The sentencing judge described the offences as follows:[13]

The husband ... left for work early on the morning of 10 August 1989, leaving his wife and two small children and you asleep in your various bedrooms in their house. You got up and went to the victim's bedroom and threatened to kill her and her children, got into her bed, pulled her pyjama trousers down and not only told her you had a knife but held one to her throat. You penetrated her with your penis and then withdrew when you heard the sound of a car outside.

When you found that nobody was coming you returned and penetrated her with your penis a second time and on this occasion you ejaculated inside her. She received a small cut from the knife on the knuckle of her right little finger.

1. At the time of committing these offences Mr Narkle was on parole and also on bail. Mr Narkle was sentenced to a total of 10 years imprisonment for the offences, with eligibility for parole. Mr Narkle's aggravated sexual penetration without consent offences are serious sexual offences for the purposes of the Act.
2. Mr Narkle was released on parole on 5 May 1997.
3. On 13 January 2000 Mr Narkle was convicted of one offence of unlawful assault occasioning bodily harm contrary to s 317 of the Code, one offence of assault with intent to commit a (non-consensual sexual) crime contrary to s 317A of the Code and one offence of deprivation of liberty contrary to s 333 of the Code. The offences were committed on 18 January 1998 while Mr Narkle was on parole. He was just short of his 45th birthday and the victim was a 15-year-old female.
4. These offences, while not involving serious sexual offences within the meaning of the Act, displayed violent and sexual components consistent with Mr Narkle's other offences. The sentencing judge described the circumstances of those offences as follows:[14]

Both you and the complainant got into your Toyota motor vehicle. A very short time after you drove off in the vehicle you began to drive in an extremely erratic and frightening manner. You also drove aggressively and at speed which caused you to swerve and mount kerbs from time to time. At one point you went through a set of traffic lights which made the complainant panic even more. She said she was shouting and demanding that you take her home and take her back to her guardian.

At one point during the course of this ride of terror the complainant said that she could smell burning rubber from your tyres. Eventually you brought your vehicle to a halt in front of a set of gates at the Cannington Greyhound Complex which was near a Hungry Jack's premises. Once the vehicle stopped, the complainant continued to ask you on a number of occasions to take her home. You ignored her requests and got out of the vehicle.

...

Eventually you pulled the complainant out of the vehicle and indicated that in your view she was not an innocent young girl and that she had been with men before. You said that you could see it in her eyes. You then slapped the complainant with an open slap across her face causing her, she said, to fall to the ground and land on her stomach. Your blow struck her on the left side of her face...

You then proceeded to put your hand around the complainant's mouth and pull her hair in order to try and get her to stand up. During this time you were saying to her words to the effect, "you want it as much as I want it. I know you do. We're friends. I'm not going to hurt you." The complainant was still calling out for help but you refused to let her go. From your behaviour and the remarks that you were making to the complainant she understood that you wanted to have sex with her and she certainly did not want to engage in that kind of activity with you.

You continued to behave in an aggressive fashion towards the complainant and pull her hair. Eventually she stood up and you kept asking her what her problem was. She was still crying and saying she wanted to go home to her guardian. The complainant tried to get away from you but you managed to pull her back and at another point you punched her in the face causing her to land on her stomach again. ...

The complainant's recollection is that when she fell to the ground on this occasion, she struck the side of her head on the pavement area. She was feeling a little bit dizzy and disorientated but she was still persisting in her request to return home. She was now experiencing difficulty in breathing so she bit your finger causing you to get off her.

1. Mr Narkle was sentenced to a total of 7 years imprisonment. He was not made eligible for parole.
2. On 21 September 2007 Mr Narkle was convicted of one offence of unlawful and indecent assault contrary to s 323 of the Code. Mr Narkle committed the offence on 18 February 2005 when he was 50 years old. The victim was a 46-year-old woman. The offence occurred at a deli in Armadale, where Mr Narkle asked the victim if she wanted to have sex. When she declined, Mr Narkle assaulted her, squeezing her buttocks and touching her to the side of her groin area.[15] Following a successful appeal, Mr Narkle was ultimately sentenced to 6 months and 2 weeks imprisonment, suspended for a term of 4 months.
3. On 28 May 2010 Mr Narkle was convicted of the four offences of sexual penetration without consent and two offences of unlawful and indecent assault, for which he was serving a term of 10 years imprisonment until 9 June 2019. Each of Mr Narkle's four offences of sexual penetration without consent are serious sexual offences for the purposes of the Act.
4. Mr Narkle committed those offences on 24 January 2009. Mr Narkle had just turned 55 at the time of committing the offences. The victim was a 38-year-old homeless man, who Mr Narkle approached on the street in Bentley. Mr Narkle took the man back to his campervan at a caravan park. The trial judge described the offences that followed:[16]

In circumstances where the complainant's condition had deteriorated by reason of the ingestion of alcohol and pills, you demanded sex of him, threatening violence to overcome any residual resistance he offered. He did protest. ...

The complainant during the trial gave evidence of three separate bouts of sexual activity ... The first bout, following threatened violence, began with ... the stroking of the penis. That was followed by the forced introduction of your penis into the complainant's mouth and then penetration of his anus with your penis.

The second bout followed when later the complainant complained of being woken by you shaking him. On that occasion he said that he was forced to perform oral sex upon you, that you stroked his penis and penetrated his anus with your penis.

The third bout occurred again after a period of sleep or rest. It also involved forced oral sex and penetration of the complainant's anus with the penis ...

All of the acts complained of were, in accordance with my findings, without consent.

1. In addition to the above history of criminal convictions there is reference in the evidence before me to a number of occasions upon which Mr Narkle has been charged with sexual offences, but acquitted, following trial. The State did not seek to rely upon any of these matters as being relevant to its application under the Act.
2. The State did, however, rely upon a series of alleged offences by Mr Narkle against a 17 year old female complainant alleged to have been committed on 11 October 1999. I will refer to this complainant as 'DL'. The alleged offences against DL included one count of deprivation of liberty, three counts of sexual penetration without consent, one count of attempted sexual penetration without consent, three counts of sexual penetration without consent causing bodily harm and one count of indecent assault.
3. Mr Narkle was convicted following trial of these offences, and sentenced to 20 years imprisonment, to be followed by a period of indefinite imprisonment. Following a successful appeal, and order for retrial, the State filed a nolle prosequi, on the basis that the complainant was not prepared to give evidence for a fourth time (there having been a preliminary hearing and two previous trials).
4. The State submits that I should have regard to the evidence of DL, as contained in the transcripts of her evidence, as information indicating whether or not Mr Narkle has a 'propensity' to commit serious sexual offences in future (within the meaning of s 7(3)(c) of the Act).
5. I will return to that matter in the context of s 7(3)(c).
6. Confining myself to Mr Narkle's criminal record, however (one of the matters I must consider under s 7(3)(g)), it is clear from the above summary of his criminal convictions that Mr Narkle has a long criminal record of serious and violent sexual offences.

Psychiatric reports and extent to which Mr Narkle cooperated with psychiatric examinations - s 7(3)(a)

1. Psychiatric reports were prepared under s 37 of the Act by Dr Hall and Dr Wynn Owen. Both doctors gave oral evidence before me. It is evident from the reports and the evidence of both psychiatrists, in my view, that Mr Narkle cooperated with each of them when he was examined.

1. Dr Hall is a consultant forensic psychiatrist whose principal report was dated 22 August 2019.
2. In addition to consideration of the book of materials provided to him by the State, Dr Hall interviewed Mr Narkle on two occasions for a total of 7 hours and 30 minutes.
3. Dr Hall also interviewed Mr Narkle's wife.
4. Following a recitation of Mr Narkle's offending and treatment history, including commentary that Mr Narkle offered in relation to his offences, Dr Hall turned to Mr Narkle's current presentation.
5. In relation to his mental state examination, Dr Hall observed the following:[17]

Impression management by Mr Narkle was apparent. He attempted to control the direction and content of the interview through over-inclusiveness of information when providing backstories that portrayed him as both a victim of circumstance and as a now-changed man. He appeared annoyed if redirected and unable to provide backstory in the intended detail. As a result, there was a tenuous quality to the rapport and a sense of needing to tread lightly to prevent irritation and disengagement. There was also a quality of deliberate obfuscation and filling time with essentially irrelevant information.

1. Mr Narkle's impression management, and his lack of reliability, was a consistent theme from many of the witnesses who had the opportunity to interview him.
2. Dr Hall diagnosed Mr Narkle has having a Severe Personality Disorder with Mixed Cluster B (anti-social, narcissistic, borderline) traits. In this regard, Dr Hall noted that Mr Narkle exhibited a lack of empathy and remorse, abrogation of personal responsibility, recklessness, social deviance, impulsivity, recidivist offending and the failure to learn from consequence or punishment. Mr Narkle also exhibited grandiosity and a sense of entitlement.
3. In this context Dr Hall stated that Mr Narkle's self-reported insight about factors underlying his offending had a scripted quality that was superficial at best and disingenuous at worst.
4. In turning to risk assessment, Dr Hall described having used three assessment tools in the course of his examination. The first was the Static‑99R, an actuarial risk assessment scale designed to predict sexual and violent recidivism in male adult sexual offenders. He also used the structured clinical guideline known as the Risk Sexual Violence Protocol (RSVP).
5. Finally, Dr Hall used the Hare psychopathy checklist - revised (PCL‑R), a tool used to assess the extent to which a person's personality structure conforms to the clinical construct of psychopathy. The PCLR is not, as was stressed in cross-examination of both Dr Hall and Dr Wynn Owen, a tool designed to predict recidivism in relation to sexual offences. Nevertheless, the factor of psychopathy is a component of other risk assessment tools, including the RSVP.
6. As was, again, stressed in cross-examination of the psychiatric experts, the Static‑99R is a tool that describes population-wide likelihood of reoffending. It is not a tool which expresses a likelihood of a particular offender reoffending. For example, as Dr Hall described, those high risk, high needs persons with a score of 6 on the Static‑99R have been shown, as a group, to reoffend within five years at a rate of 26% and within 10 years at a rate of around 37%.
7. In addition, it is the case that the Static‑99R has not been specifically validated across Australian populations, including for indigenous Australians, or indeed, indigenous West Australians. For this reason, as Dr Hall noted, 'it is possible that the risk factors for Australian Indigenous people may differ to those on whom the instrument has already been validated'.[18]
8. Thirdly, it should be noted that the Static‑99R (and the RSVP) are based upon a significantly wider definition of 'sexual violence' than the definition of 'serious sexual offence' under the Act.[19] The assessment of risk under those tools, therefore, does not necessarily reflect the assessment of risk required under the Act.
9. There were, therefore, a variety of limitations and qualifications to the tools used by Dr Hall, which he readily recognised. Those limitations and qualifications, I accept, are such that the tools cannot, and should not, be used in isolation to assess a particular offender's risk of reoffending or their danger to the community.
10. I am satisfied that Dr Hall did not use any of the actuarial or clinical tools in such a superficial way. Rather, I accept that he, quite properly, had regard to the results of those tools in the context of all of the information before him.
11. In applying the Static-99R, Mr Narkle achieved a score of 6, taking into account his current age of 64. A score of 6 placed Mr Narkle in the well above average risk category. This is the highest risk category allocated by the Static-99R.
12. Mr Narkle's score on the PCL-R placed him in the high range, indicating he had most of the features of psychopathy. His overall profile was characterised by the selfish, callous and remorseless use of others coupled with a chronically unstable anti-social lifestyle and social deviance.
13. In applying the RSVP structured clinical guideline, Dr Hall identified Mr Narkle as possessing the following risk factors:

(a) chronicity of sexual violence, Mr Narkle having offended extensively and consistently for most of his life;

(b) diversity of sexual violence. In this respect, Dr Hall noted that while Mr Narkle's offending had been reasonably consistent, it had included strangers, acquaintances, males, females, adults and children;

(c) escalation of sexual violence. In particular, Dr Hall noted that while Mr Narkle had previously used aggressive assault on persons, his most recent offending involved incapacitation of the victim through the use of drugs;

(d) physical coercion and sexual violence. The use of physical violence and threats of death had been commonplace in Mr Narkle's offending;

(f) extreme minimisation or denial of sexual violence;

(g) attitudes that support of condone sexual violence;

(h) problems with self-awareness. In this regard, Dr Hall said that Mr Narkle 'has no real insight into his psychological functioning' and that what he 'does declare appears superscripted and superficial at best, and disingenuous at worst'[20];

(i) problems with stress or coping, given that he reacts angrily to his beliefs being challenged and to figures of authority;

(k) problems with substance use. Mr Narkle is a longstanding chronic alcoholic, albeit that he is currently in remission while in custody. In this regard, Dr Hall noted that Mr Narkle's expectation that he will be able to abstain from alcohol using willpower alone is a wholly inadequate approach;

(l) problems with intimate relationships. Mr Narkle's first marriage was marred by violence and, as I have discussed below, his current relationship is not, in Dr Hall's assessment, as stable as it was purported to be. Indeed, as is apparent from later reports prepared by Dr Hall, that relationship is characterised by instability and abuse;

(m) problems with planning. Dr Hall described Mr Narkle as having a poorly detailed and unrealistic relapse prevention plan;

(n) problems with treatment. Dr Hall identified difficulties with treatment although, as discussed below, he considered that Mr Narkle had made more treatment gains than Dr Wynn Owen considered that he had; and

1. Taking into account all of the circumstances Dr Hall concluded that Mr Narkle was at a high risk of committing a serious sexual offence if not subject to a continuing detention order or supervision order under the Act. In that regard, he stated:[21]
   1. The key factors contributing to Mr Narkle's level of risk are as follows:

> Extensive history of sexual offending

> Psychopathy with associated poor behavioural controls and rejection of authority

> Unaddressed sexual issues including probable sexual preoccupation

> Vulnerability to relapse to alcohol abuse and dependence and other substance use, and poor self‑awareness with respect to the challenges in that regard

> Unstable, untested relationship and his wife's lack of awareness of the extent of his offending and level of risk

> Potential for further offending to occur with little warning or opportunity to address circumstances that may be increasing his risk

1. In my opinion, Mr Narkle's age and cardiac condition do not carry significant weight with regard to amelioration of his risk at this stage.
2. Mr Narkle has, during his recent imprisonment, made some gains. He demonstrates a greater awareness of his alcoholism. He has acknowledged at least some aspects of some of his offending. Furthermore, his relationship has survived notwithstanding that it remains untested in the community. It should be noted that despite Mr Narkle's efforts at impression management, his ongoing denial of offending, and his undue optimism as to his ability to remain sober and offence free, such factors, in and of themselves, would not necessarily preclude his manageability in the community to the extent that the community cannot be adequately protected.
3. However, Mr Narkle's current manageability in the community is limited by the factors contributing to his level of risk as listed above. Ideally, in order for Mr Narkle's risk to be safely managed upon realise to the community, there would need to have already been:

> Full awareness and acceptance on the part of his wife as to the nature of his offending and risk

> Exploration of adjunctive treatments such as SSRI antidepressant medication and/or naltrexone

> Engagement with a forensic psychologist and the development of a therapeutic relationship

1. Dr Hall provided a supplementary report dated 7 October 2019 following an order that I made on 3 September 2019 seeking Dr Hall's opinion as to whether his reported opinions in relation to Mr Narkle's risk would be altered were he to disregard the material in relation to the complainant DL. Dr Hall stated that, while there would be some downward adjustments to certain of the risk factors, his overall risk judgment as informed by the RSVP would not be altered.
2. Dr Hall's report of 7 October 2019 also referred to the telephone calls made between Mr Narkle and his wife, recorded on the prison telephone system. I will deal with those calls in the context of my consideration of the relationship between Mr Narkle and his wife. It suffices to note that in his report of 7 October 2019, Dr Hall expressed the following opinions:[22]
   1. In my opinion, the relationship between Mr Narkle and his wife could be safely regarded as abusive and unstable. The content of the telephone calls strongly indicates that the earlier separate accounts provided to me by both Mr Narkle and [his wife] in regard to their relationship were highly sanitized and were not reflective of the true nature of the relationship.
   2. The relationship between Mr Narkle and his wife is not a protective factor with regard to his risk of reoffending. Rather, the relationship is regarded as a risk factor. Although I expressed the above view in my report dated 22 August 2019, I now give the relationship extra weight as a risk factor. I remain of the opinion that conflict within the relationship, which now appears extremely likely to ensue, would be a warning sign that Mr Narkle's risk of offending is increasing. Furthermore, I am now more so of the view than was stated in my original report that [Mr Narkle's wife] is at high risk of being a victim of violence perpetrated by Mr Narkle at some point, both sexual and non‑sexual.
3. Dr Hall returned to the relationship between Mr Narkle and his wife in his oral evidence. He said:[23]

And do you have any opinion on whether or no there's any risk to [Mr Narkle's wife] from Mr Narkle .... Assuming that they live together?---Assuming that they live together, yes. I mean, what appears to be a common theme is Mr Narkle having a sense of entitlement of needs being met in the relationship on the telephone. It's very much about what Mr Narkle needs, and there's a distinct sort of lack of concern for his wife's issues or concerns or what she may be struggling with. I would expect that that would transfer into the domestic situation as well.

Yes?---It's also clear that when they are arguing, each of them can escalate quite rapidly. So I think there's the potential there for some heated arguments, and the fuel for those arguments, perhaps, being the material before the court right now. I don't think that's going to go away anytime soon. So I think there is the potential - and, think it's unfortunately an inescapable conclusion that his wife will be at higher risk than someone not within a relationship like that.

1. In relation to his view at to Mr Narkle's treatment gains, Dr Hall gave the following evidence:[24]

Okay. All right, then. And moving on to the next paragraph, are you of the view that he has made any gains in - treatment gains, I mean?---Yes. I did consider that Mr Narkle had made some gains, despite the assessment described earlier with the RSVP and the risk factors. I think, relative to past assessments, Mr Narkle had developed a greater awareness of his alcoholism.

Yes?---Not a complete awareness, but a greater awareness. He had acknowledged at least some aspects of his offending which was a significant shift from previous years when Mr Narkle had not acknowledged any of his offending. And that's - at the time of writing this report, bearing in mind that I was not privy at that stage to the content of the telephone calls, I noted that his relationship had withstood a significant period of imprisonment which was unusual, and could not possibly bode well for the future or be remain to be seen, because it was an untested relationship in terms of cohabiting in the community.

1. In cross-examination, Dr Hall confirmed that he listened to a relatively small proportion of the nearly 1300 telephone calls provided to him (approximately 50). Dr Hall was played a further four calls[25] which contained relatively mundane conversations between Mr Narkle and his wife.
2. Dr Hall disagreed, however, with the suggestion that those calls did not show any abusive relationship between Mr Narkle and his wife. He referred, for example, to the subtle efforts by Mr Narkle to control his wife and make her justify her whereabouts or why she sounds exerted.[26] Dr Hall also referred to the absence of any apparent regard on Mr Narkle's part for the fact that his wife was feeling unwell or any effort to inquire as to her welfare. Dr Hall accepted that Mr Narkle's inability to care and express concern for his wife's welfare may be a function of his personality as opposed to being a conscious decision.
3. As I have noted, Dr Hall was cross-examined extensively as to the limitations of the Static-99, the PCL-R and the RSVP.
4. He was also cross-examined in relation to meta-analysis studies identifying factors that are correlated (or not correlated) to a risk of reoffending. In that context, Dr Hall agreed that the two most robust predictors of risk of reoffending were psychopathy and sexual deviance. While psychopathy was certainly present in Mr Narkle's case, Dr Hall did not conclude that Mr Narkle met the criteria for a traditional sexual deviance. In that regard, Dr Hall stated that while there were aspects to Mr Narkle's pattern of offending which possibly pointed to paraphilic aspects and may warrant further consideration, there was nothing he could put his finger on definitively.[27]
5. Dr Hall was taken to a number of other factors which he said, in isolation, have been shown to have little relationship with sexual recidivism including lack of empathy, denial of sexual crime and minimisation of sexual offences and poor progress in treatment. Dr Hall did clarify, however, that the studies do not have the power to identify the correlation between reoffending and the various factors when they are combined. He confirmed that the use of tools such as RSVP was intended to accumulate the various factors. Dr Hall said:[28]

And the assessment of those factors is very individualised to the person that you are assessing. And the more information you have about that person, the more useful those risk factors are going to be when making an overall judgment.

1. Dr Hall confirmed that impression management such as that displayed by Mr Narkle was not an uncommon thing to observe in offenders and that it did not necessarily preclude manageability in the community.
2. When asked as to the likely imminence of any further sexual offending, Dr Hall said that, absent any control or supervision, his concern would be that Mr Narkle may resume using alcohol, after which it was possible that offending could occur fairly imminently (which he described as within months).[29] Subject to a supervision order, Dr Hall expressed the likely imminence of a serious sexual offence to be in order of two to three years.[30]
3. Dr Hall was asked whether the fact that Mr Narkle, were he to be released, would be the subject of a PSSO under the Sentence Administration Act, affected his assessment of Mr Narkle's risk. Dr Hall said:[31]

... in an individual where there has been a history of offending whilst subject to either parole or bail or some other court sanction or court - court condition, then it - it would have little bearing on the outcome. If that person was considered high risk, then if that was in their background anyway, you wouldn't consider that to be the sufficient deterrent, to the extent that it would impact on the assessment of - of the risk, as is the case with Mr Narkle.

1. Dr Hall also agreed with the suggestion that the use of a selective serotonin re-uptake inhibitor (SSRI) may have some role in the treatment of Mr Narkle.[32] Such a medication would be intended to bring about a reduction of sexual preoccupation or libido on Mr Narkle's part.
2. Finally, Dr Hall was cross‑examined in relation to the time it would take for Mr Narkle to establish a rapport with a psychologist. He said:[33]

Would a month be sufficient to establish such a rapport if Mr Narkle were willing?---I think - yes - I think a - a trained psychologist or substance abuse counsellor would get a pretty good sense after a month where Mr Narkle was at with that and what his level of engagement with the process was.

So, it mean not that he be entirely resolved but engaged?---Yes.

So, from the perspective of how intensive an assessment would need to be in a month's time, would it need to be a complete reassessment of his entire views in relation to alcohol?---No. You would just - I - I would be happy to know that the person seeing him felt that he was honestly and earnestly participating in the process and that it - that there was some prospect of - of making some gains going forward.

1. Dr Wynn Owen is also a consultant forensic psychologist. His report, pursuant to s 37 of the Act, was dated 20 August 2019. Dr Wynn Owen interviewed Mr Narkle for approximately six hours.
2. Dr Wynn Owen described Mr Narkle's personality in the following terms:

Mr Narkle has a long history of criminality, poor control of violent and sexually violent urges and drives, disregard for the feelings of others, ability to cause pain without empathy or remorse, deceitfulness. He has demonstrated difficulty coping with stress and negative emotion and using alcohol as a coping strategy. His inability to cope in mainstream society is demonstrated by having not spent longer than one year out of prison since aged 17 years.

1. As with Dr Hall, Dr Wynn Owen used both the Static‑99R tool and the RSVP (including an assessment of his psychopathy using the PCL-R).
2. Dr Wynn Owen also identified Mr Narkle's Static-99R score as in the well above average risk range. Given that he included Mr Narkle in the high risk/high needs group of offenders, he confirmed that of the cohort of offenders with the same score as Mr Narkle 25.7% had a likelihood of further sexual offences within five years and 37.3% had a likelihood within 10 years.
3. In his application of the RSVP, Dr Wynn Owen identified the same risk factors as Dr Hall. In relation to the factors identified in the RSVP as a whole, Dr Wynn Owen said:

Overall the RSVP identifies in Mr Narkle a number of historical and dynamic risk factors known to increase the likelihood of future sexual offending.

The static factors, relating to victim selection, chronicity and severity of sexual violence, are not changeable and continue to contribute to future offending risk, they are moderated by his age and his physical capacity to commit an offence. The dynamic risk factors present include factors which are associated with an increase in risk of future sexual offending and which, if addressed effectively in treatment, can potentially contribute to reduced risk of future offending. The RSVP identifies the following:

• Problems with self-awareness
• Problems with stress or coping
• Problems with substance use
• Problems with intimate relationships and non-intimate relationships

In relation to manageability the RSVP identifies the following risks in Mr Narkle to be taken into account in management planning:

• Problems with planning
• Problems with supervision
• Problems with treatment

1. Dr Wynn Owen's overall opinion in relation to Mr Narkle included the following:

My opinion, based on Static 99R, RSVP/PCL-R, review of available historical materials and clinical interviews is that Mr Narkle currently presents a high risk of future serious sexual offending unless subject to a Detention Order or Community Supervision Order. The most significant risk factor being his personality, alcohol use being a facilitator/potentiator to offending. Mr Narkle's overall physical health (ie physical capability, mobility) is little different to when he was released prior to the index offending, therefore while it has an impact on his capacity to offend it did not prevent the offences of 2009.

I note that Mr Narkle's previous response to treatment, his apparently very limited response to the most recent intensive programmes, coupled with his ongoing stance of denial and current statements that he now understands himself and will not reoffend make significant treatment gains unlikely. As a result, the management setting and context (placement, supervision and monitoring) will be the mainstay of risk mitigation for the foreseeable future.

1. Dr Wynn Owen went on to make specific recommendations in the event that Mr Narkle was either the subject of a continuing detention order or a supervision order.
2. Dr Wynn Owen, in a supplementary report dated 12 September 2019, confirmed that he did not use the alleged offending involving DL as part of his assessment and that, accordingly, his opinion was not altered in any way by the material in relation to those alleged offences.
3. Dr Wynn Owen's final report dated 22 October 2019 dealt with his assessment of Mr Narkle's risk in light of evidence of the prison telephone calls. He noted the following in relation to volatility within the relationship:[34]

This relationship tension and volatility is current and ongoing and Mr Narkle's anger has been frequently very obvious. It indicates that the relationship will continue to be a source of stress to both parties. However, of particular concern is how Mr Narkle may behave if he is with [his wife] when such arguments occur in future. There is no indication in the calls that he can control his temper for long and his risk of violence and sexual violence while emotionally aroused will definitely be elevated such that [Mr Narkle's wife] will be at risk.

1. His conclusions in that report were as follows:

The additional material provided has enabled refinement of the PCL-R psychopathy assessment such that the presence of psychopathy is definitely confirmed and his score now higher than when assessed in August 2019. This is a significant contributor to future offending risk and being a feature of personality is unlikely to change as a result of therapeutic intervention. In fact, the calls themselves demonstrate this as, notwithstanding a range of programmatic therapeutic interventions, there appears to have been no change in Mr Narkle's interpersonal behaviour.

The obvious volatility in the relationship and Mr Narkle's frequent abuse of [his wife] also raise the possibility that [she] will become the victim of violence and or sexual violence if the couple cohabit. While functional intimate relationships are usually protective for men (ie men who are in a relationship are less likely to commit a criminal offence that those who are not) the tensions within this relationship also indicate that the relationship will be a source of considerable stress for Mr Narkle. His suspicions about [his wife's] fidelity have not been allayed by more than 10 years of reassurance that she has had no other intimate relationship since meeting him.

1. In his oral evidence, Dr Wynn Owen also recognised the limitations and qualifications to be applied to the use of the various actuarial and clinical tools. He confirmed that:[35]

The whole point of using a number of tools and clinical assessment is to give a better, more accurate outcome. I have to say that overall the prediction of violence or sexual violence in the future is still not an entirely accurate science. It - it is still - it is better to use a structured approach than an unstructured approach and this has been shown to be more accurate, but neither are going to give you an absolute prediction of the future and these assessments have to be taken in that light.

1. As with Dr Hall, I am satisfied that Dr Wynn Owen did not use any of the actuarial or clinical tools in a superficial way nor did he fail to take into account their limitations. I also accept that he properly had regard to the results of those tools in the context of all of the information before him.
2. Dr Wynn Owen gave evidence in relation to Mr Narkle's apparent response to treatment. He said:[36]

In terms of the issues, the risks, and how he would manage them and how they were expressed to me in terms of his understanding of his past offending and how that might relate to his likelihood of future offending, he presented as many people have to me before who haven't been through treatment. I was aware that he had been through treatment, so he's not in that sense untreated, but his attitudes and opinions for a man whose first interventions occurred decades ago did not impress as somebody who had responded to treatment.

1. Dr Wynn Owen reiterated this in cross-examination, noting that Mr Narkle presented to him as a person who has not been treated for the underlying causes of his behaviour.[37]
2. Dr Wynn Owen agreed with Dr Hall in relation to the potential imminence of future offending, namely that it could take some months after the commencement of alcohol use before an offence occurs.[38] Dr Wynn Owen later said that, without the disinhibiting effects of alcohol, he would estimate imminence of re-offending to be at around a year.[39]
3. Dr Wynn Owen accepted that the supervision order proposed in the report of Mr Jarvie (the community corrections officer) did address the particular risk factors relevant to Mr Narkle. He accepted that it had been designed to address a number of Mr Narkle's risks and definitely would provide some degree of risk mitigation.[40]
4. In relation to the relationship between Mr Narkle and his wife, Dr Wynn Owen stated that he had listened to more than 800 of the calls between them. He described a recurrent pattern in relation to the calls which led him to characterise the relationship as an abusive relationship with controlling behaviours. Dr Wynn Owen described the pattern as follows:[41]

The pattern that I saw was of calls that would last eight to 10 minutes occurring for a period of days, and then rapidly reducing to very short calls which indicated abuse, then periods of multiple extraordinarily short calls, the two to four to five second calls, in which Mr Narkle was following up on an abusive conversation, and then a gap of several days followed by a return to the more polite and longer calls, but that was a recurrent pattern throughout the year.

1. In cross-examination, Dr Wynn Owen stated that he felt that the risk to Mr Narkle's wife in particular was more likely that anger would blow over into violence. He could not give an idea as to the quantum of risk that Mr Narkle's wife might suffer serious sexual offending.[42]
2. In the course of cross-examination, Dr Wynn Owen was asked a number of questions in relation to the significance of any reduction in Mr Narkle's risk that would be brought about by the proposed supervision order. That evidence was, in my view, instructive and I set it out in some detail:[43]

So it will significantly reduce his risk was how you commenced that answer?---Yes.

Significantly are you talking from the level of high that you've spoken about?---Yes .

Is it the case that you are able to estimate what reduction from high that significant reduction would be?---In terms of serious sexual offending, I think it would - it would reduce it probably to a moderate level. I - I don't think it would possibly go below that in light of Mr Narkle's history and our lack of experience working with Mr Narkle at this stage.

It's fair to say, isn't it, given his history of offending, even excluding [DL] - - -?---Yes.

- - - moderate will always be your answer to that, simply given the amount of offending there has been in the past. Correct?---That's correct. Yes.

QUINLAN CJ: I realise it's a - no. I take it that in terms of the Static-99 score, other than the prospect of a reduction in the score as a result of cohabitation - - -?---Yes.

- - - that will otherwise not reduce further?---That's correct. The Static score won't change other than with age and possibly with cohabitation. However, the authors of Static, or several of them, have done some research into successful time in the community, so opportunity to offend without offending, and they have demonstrated, without any ability to say what the structures around the individuals they followed were, that there is a reduction of up to 50 per cent with each five years offence-free. So notwithstanding that the Static would be regarded as continuing to stay well above average, one would expect that after a five-year period that would have moved to a lower level, probably to the above average or average range rather than the one above average.

Right. If this is a question that doesn't make scientific sense, please tell me so. When you use the expression "moderate risk" compared to "high risk", that is, you said he's a high risk and with management it could be reduced to a moderate risk - - -?---Yes.

- - - do you use "moderate" or is there any analogue within those nominal risk levels in the Static-99 to "moderate"?---"Average" would be the analogue within that.

"Average"?---Taking into account that an out of the blue sexual offence by a male occurs in something around just under one per cent of people - - -

Yes?--- - - - that the average likelihood of recidivism of somebody who has committed one sexual offence is around 10 to 15 per cent.

1. Dr Wynn Owen was also taken to a number of particular matters in the draft supervision order and how they would be relevant to managing Mr Narkle's risk.
2. Dr Wynn Owen estimated that a period in the order of a month would be sufficient to enable an experienced therapist to establish rapport with Mr Narkle and have feedback as to whether or not the therapist thought there could be a rapport between them.[44]
3. Finally Dr Wynn Owen gave evidence in relation to the utility, if any, of the Post Sentence Supervision Order (PSSO) in managing Mr Narkle's risk. As with Dr Hall, Dr Wynn Owen considered that the PSSO would be inadequate to address Mr Narkle's risk:[45]

Yes. Okay. And in formulating your overall opinion, did you take into account the fact that this order had been made by the PRB, the Prisoner Review Board, or not?---I was aware that there was a potential for an order of a limited duration being made, and it was an order of the type that is associated with parole or bail-type supervisory conditions, but also included a GPS condition, which will be the only sort of thing to distinguish it from that. So similar - on a similar level, perhaps, to some of the conditions applied when Mr Narkle has previously been released. But not at the level of constraint that would be offered by a DSO supervision order.

Yes?---So my - my report was - and my commentary was likelihood - high likelihood of a serious sexual offence if not subject to a DSO detention order or community supervision order.

Yes. So you make that distinction. It's - you didn't take into account the PSSO then, in terms of - - -?---I would see this as a much lower level of risk management. My understanding is that the responsivity or/and assertiveness of this type of order is at a much, much lower level. There is a requirement to work through a process with local police before any intervention can be made by others. So I would not regard it as providing a necessary adequate risk management.

General observations in relation to psychiatric evidence

1. Both Dr Hall and Dr Wynn Owen gave their evidence in a clear, thoughtful and balanced way.
2. While there were some differences evident in their opinions, in relation to the assessment of Mr Narkle's level of risk of committing serious sexual offences and the reasons for those assessment, Dr Hall and Dr Wynn Owen's opinions were generally consistent. They both identified Mr Narkle as being a high risk of committing a serious sexual offence if not subject to a continuing detention order or supervision order under the Act. The factors giving rise to that risk identified by them were consistent, with a particular stress on Mr Narkle's psychopathic personality, his significant history of sexual offending, his vulnerability to relapse to alcohol abuse and the unstable (or untested) nature of the relationship between Mr Narkle and his wife.
3. In relation to these issues in particular, I found the evidence of both Dr Hall and Dr Wynn Owen persuasive and I accept it. Where I have some hesitation in accepting their evidence is in relation to the imminence of any potential reoffending (which I have addressed below at [233] to [238]).
4. Of course it is ultimately a matter for me, having regard to the expert evidence, and the other factors in s 7(3) of the Act, whether I am satisfied that there is an unacceptable risk that, if Mr Narkle were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.

Other assessments relating to Mr Narkle - s 7(3)(b)

1. The other assessments relating to Mr Narkle prepared for the purposes of this application are those of Mr Jarvie and Dr Bannister.
2. Before turning to those reports I note that the book of materials (Exhibit 1) also contains various other reports and assessments prepared in relation to Mr Narkle, including an earlier report prepared by Dr Hall dated 15 July 2010 for the purposes of Mr Narkle's sentencing for his most recent offences.[46] There were also a number of reports relating to Mr Narkle's offences in 2000 (from Dr Ananth Pullela),[47] and in relation to his sentencing in relation to the convictions for the offences against DL (that were overturned on appeal).[48]
3. I have had regard to these and other assessments, taking into account in the circumstances in which they were prepared (and, in particular, the fact that the convictions in relation to DL were set aside on appeal). Ultimately, however, these assessments add little to the clinical picture presented by Dr Hall and Dr Wynn Owen, which are the most recent and the most comprehensive. If anything, they simply serve to demonstrate the consistency, over time, of the diagnosis of Mr Narkle's antisocial personality and the assessments of his risk of reoffending (all of which have ultimately proved to have been accurate).
4. Turning to the further reports prepared for these proceedings.

1. Mr Jarvie is a Senior Community Corrections Officer with the Department of Justice.
2. Mr Jarvie prepared two reports, dated 2 September 2019[49] and 21 October 2019,[50] respectively. These reports, and Mr Jarvie's evidence, were concerned with the conditions and strategies that would be appropriate if Mr Narkle were released on a supervision order. They were not risk assessments in relation to Mr Narkle. Mr Jarvie confirmed in cross-examination that his role was not to make an assessment of Mr Narkle's level of risk, nor to assess Mr Narkle's comments from a risk perspective.[51]
3. In that regard, Mr Jarvie's report set out the variety of conditions that would be appropriate, such as residence and reporting requirements, GPS monitoring and a curfew requirement. One of the issues addressed at some length in his reports are the accommodation options should Mr Narkle be released on supervision. It is appropriate to consider those matters in the context of that issue.
4. Mr Jarvie's reports and evidence are otherwise not directly to the threshold issue in s 7(1) of the Act.

1. Dr Bannister is a forensic psychologist, currently employed by Forensic Psychological Services within the Department of Justice. Dr Bannister prepared a Proposed Dangerous Sex Offender Management Plan dated 6 August 2019,[52] in the event that Mr Narkle is made subject to an order under the Act.
2. Dr Bannister also confirmed in cross-examination that his report (i.e. the Management Plan) was not a risk assessment, but an exploration as to what treatment of Mr Narkle should focus on.[53] For this reason, Dr Bannister's report and evidence are not directly relevant to the threshold issue in s 7(1) of the Act, that is, whether there is an unacceptable risk of Mr Narkle committing a serious sexual offence in the absence of a detention or supervision order.
3. Nevertheless, Dr Bannister's assessment of Mr Narkle's treatment needs was, indirectly, relevant to that issue. Those treatment needs are intended to address Mr Narkle's level of risk (whatever that may be) and so identify aspects of Mr Narkle's presentation that relate to his risk.
4. Dr Bannister's conclusions in that regard were:[54]
   1. Overall, Mr Narkle has a number of outstanding treatment needs that require attention, which should most appropriately occur through a targeted and individualised approach. Specifically, he will likely need encouragement to build pro-social support networks in the event that he transitions to the community. He will also benefit from a focus on addressing intimacy deficits, communication style and attachment, in order to maximise his capacity for his future relationship stability. This is crucial, because a cohabiting relationship with his wife is largely untested, and may present issues as they both navigate any change in their circumstances and relationship dynamics. Additionally, Mr Narkle will require treatment relating to stress management and developing pro-social coping strategies, in addition to improving his problem solving. This should include concentrating on factors relating to alcohol and drug use. Furthermore, his treating clinician should place emphasis on addressing his negative emotionality, as it is a key factor in his risk of reoffending. Generally, Mr Narkle is potentially underestimating some of the difficulties he is likely to face moving forward, and this should be taken into account.
   2. Mr Narkle's treatment should ideally take a scenario based approach to managing his high-risk situations. He is also likely to want to maintain control over the treatment process and find vulnerability and collaboration uncomfortable. Additionally, he will also possibly struggle with being challenged in a counselling context where there will be significant accountability. Furthermore, any treatment should be responsive to Mr Narkle's previously noted psychopathic traits.

Information indicating whether or not Mr Narkle has a propensity to commit serious sexual offences in the future - s 7(3)(c)

1. This has largely been addressed in the context of the above discussion of the evidence of Dr Hall and Dr Wynn Owen.
2. That evidence, which I accept, clearly demonstrates a propensity on the part of Mr Narkle to commit serious sexual offences. As Murray AJA stated in Director of Public Prosecutions for Western Australia v GTR,[55] 'propensity' in this context has the following meaning:

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 the quality of a diagnosable mental illness or personality disorder.

1. There are clearly, in my view, deeply entrenched features of Mr Narkle's makeup that dispose him to committing serious sexual offences against other people. His persistent and vicious violent sexual offending, as the experts attest, is in my view, clearly related to his underlying psychopathic personality, in which his own gratification and sense of entitlement take priority over the safety, dignity and humanity of his victims. I so find.
2. Mr Narkle's propensity to commit serious sexual offences, in the past and in the future, is more than amply established by his criminal record of violent and sexual offences and by the assessment made by Dr Hall and Dr Wynn Owen's evidence. In that regard, it is, in my view, not necessary to have regard to the evidence of DL in relation to the alleged offences against her, in order to reach that conclusion.
3. As I ruled at a directions hearing on 3 September 2019, the transcripts of the evidence from the hearings in relation to those alleged offences fall within the scope of s 42(4)(b) and (c) of the Act, which provides:

(4) In making its decision, the court may receive in evidence -

...

(b) anything relevant contained in the official transcript of any relevant proceeding against a person; or

(c) any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against a person; ...

1. A 'relevant proceeding' in this context includes a judicial proceeding for a serious sexual offence. The proceedings in relation DL were clearly proceedings of that kind.[56]
2. In addition, the evidence adduced at those hearings (if accepted) would be 'information indicating whether or not [Mr Narkle] has a propensity to commit serious sexual offences in the future' within the meaning of s 7(3)(c) of the Act.
3. That material is therefore relevant to s 7(1) of the Act and, by reason of s 7(3)(c), information in relation to which the court must have regard. Accordingly, I have had regard to it. In the end, however, I have concluded that in the circumstances of this case, I should not afford it any significant weight.
4. That is ultimately because, in the circumstances of this case, Mr Narkle's propensity to commit serious sexual offences was clearly established by the other evidence. There is nothing in the material relating to DL that would undermine that finding (such that, in Mr Narkle's favour, it should be given weight). At most, if I were to conclude that the events of 11 October 1999 occurred in the manner described by DL in her evidence, it would simply provide additional evidence for the conclusion that I have already reached.
5. In those circumstances, as I have not had the advantage of seeing and hearing the witnesses, including DL and Mr Narkle, the preferable course is not to make positive findings in relation to those alleged offences.

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

1. There are, in my view, clear patterns in Mr Narkle's offending behaviour.
2. That pattern was, with respect, well described by Dr Hall, as follows:[57]

[A] common thread in much of Mr Narkle's offending is a process of selecting a relatively vulnerable victim, either by way of characteristics or circumstances, grooming and gaining the trust of that victim, isolating the victim, gaining ascendancy and then propositioning for sex. When Mr Narkle's demand for sex is refused, he quickly becomes aggressive, threatening, controlling and violent. His violence impresses as disproportionate to that required to facilitate commission of the sexual offending.

1. This pattern is evident in almost all of the offences in Mr Narkle's criminal record that I have summarised above. I accept it as an accurate description of the pattern of Mr Narkle's offending behaviour.
2. Two features of that pattern that, in my view, are particularly relevant to the assessment of Mr Narkle's risk of committing serious sexual offences in future are, first, the vulnerability of his victims and, secondly, the often explosive change in Mr Narkle's behaviour. In many of Mr Narkle's offences, the victim is befriended by him and isolated before the offending occurs. When it does occur Mr Narkle's behaviour becomes violent very quickly and without warning.
3. This is not to say that Mr Narkle's offending behaviour is entirely predictable in its details. Mr Narkle does not, for example, discriminate in his choice of victim based on age or gender.

Any efforts made by Mr Narkle to address the causes of his offending behaviour, including participation in rehabilitation programs - s 7(3)(e)

1. Mr Narkle has made very little effort over his life to address the causes of his offending behaviour.
2. Until very recently, Mr Narkle denied his offending completely. The extent to which, even now, he accepts his responsibility for his crimes is very much open to debate. As his interviews with Dr Hall and Dr Wynn Owen demonstrate, Mr Narkle purports to accept responsibility (in general terms) but when taken to the detail of the offences, continues to minimise and deny his behaviour.[58]
3. Having had the opportunity to listen to Mr Narkle's most recent description of his offending to his wife (referred to at [200] to [203] below), I find that any new found acceptance of responsibility for his offending is limited, piecemeal and motivated only by his desire to present himself as a 'changed man'.
4. Given Mr Narkle's persistent denial of offending in the past, the potential for Mr Narkle to have addressed the causes of his offending has been very limited.
5. There is a record of Mr Narkle having participated in the pilot Intensive Sex Offender Treatment Programme and some individual counselling in 1987 and 1988, but no useful information was available in that regard.[59]
6. There is also evidence of various assessments being made during earlier terms of imprisonment in which Mr Narkle was considered unsuitable for, or declined, treatment opportunities.[60]
7. During his most recent sentence, however, Mr Narkle completed the Pathways substance use program in 2016 (from 23 May 2016 to 28 July 2016)[61] and the Intensive Sex Offender Treatment Program in 2017 (from 8 May 2017 to 6 November 2017).[62]
8. The Pathways Program is a high intensity 100 hour program, which provides treatment to individuals who have a history of offending behaviour and substance use problems. The Program Completion Report noted that Mr Narkle attended all sessions and that his behaviour was quiet, respectful and appropriate, although he appeared to demonstrate some reservations within the group setting and had a limited ability to discuss program content within the group.
9. Mr Narkle was thought by the facilitators to gain some awareness into his problem areas and how they were linked to his alcohol and other drug use and offending behaviour. He was also said to have developed some goals related to future alcohol and other drug use which included abstaining from illicit substance use, reducing his alcohol intake and utilising support from the Aboriginal Alcohol and Drug Service. Mr Narkle was considered to have developed a greater (however, still limited) awareness into his emotional states. He was also observed to have gained very limited coping strategies and it was noted that any further interventions that continued to challenge these outstanding treatment needs would likely be beneficial for behavioural change.[63]
10. The Intensive Sex Offender Treatment Program (ISOTP) is a program that targets high-risk and high-need male sex offenders. The Program Completion Report for that program described Mr Narkle as a guarded individual initially, who became more open as the program progressed. The program facilitators however did observe that Mr Narkle demonstrated a dismissive attitude towards certain content or concepts which he believed did not relate to him.[64]
11. In the summary, the ISOTP facilitators considered that Mr Narkle had made some treatment gains, and was observed to gain a greater understanding of the factors underlying his offending. They stated that he would need ongoing support in rehearsing the skills learnt but that he had not made any gains in the area of sexual issues (which remained outstanding).[65]
12. It can, therefore, be said that, albeit very belatedly, Mr Narkle has made some efforts address the causes of his offending behaviour, including participation in rehabilitation programs, since 2016.
13. The effects of those programs is the next factor that requires consideration.

Whether participation in rehabilitation programs have had a positive effect on Mr Narkle - s 7(3)(f)

1. As noted above, the facilitators of both the Pathways Program and the ISOTP both reported that Mr Narkle had demonstrated some gains at the conclusion of those programs. Whether those gains had been sustained since that time was the subject of evidence from Dr Hall and Dr Wynn Owen.
2. As noted at [105]-[106] above, Dr Wynn Own was of the view that, whatever gains may have been made from Mr Narkle's participation in these programs, they had not been sustained. That is, Mr Narkle did not present as a person who had responded to treatment.
3. Dr Hall, in his evidence, was more philosophical. In his view, Mr Narkle could be said to have made some gains (which, for Mr Narkle, were not insignificant):[66]

Do you share in the view that Mr Narkle is, in effect, an untreated man when it comes to the issue of sexual offending?---I wouldn't say that, no.

Are you able to give his Honour, having your own opinion, and having viewed the intensive sex offender treatment program completion report, your assessment as to the gains made?---Well, I - I think probably what's worth - worth noting is that, Mr Narkle's acknowledgment of some of the offences, even though that may be minimised and some offences may be denied, his acknowledgement of some of the offences, the response he showed at the interview when talking about some of those offences, and - and the responsibility accepted for those offences, I think if taken in - in a snapshot of an individual would not appear to be someone that had made tremendous gains because, as I say, it was a - a fairly- there was some - many, many aspects of those particular offences that were also minimised and denied, and other offences that were still denied entirely. However, we're talking about Mr Narkle specifically, and if you consider his history, and even as he went in to this term of imprisonment - this most recent term of imprisonment - Mr Narkle's lifelong position had been one of staunch denial of any and all sexual offending whatsoever, and so I think for someone such as Mr Narkle to get to the point of being able to speak about some of the things that he's regretted doing, acknowledged the sexual component to those, and to express some, albeit limited, remorse when talking about those things, and appear to be affected by those things. I think that's not an insignificant gain.

1. Dr Hall agreed with the proposition that Mr Narkle's gains in recognising his past offending, had come off a very low base. In relation to alcohol abuse, Dr Hall did not consider that Mr Narkle had retained the limited gains from the Pathways program.[67]
2. On the basis of the above evidence, I am satisfied that participation in the programs in 2016 and 2017 had some limited positive effect on Mr Narkle. In particular, I accept that there has been a shift on Mr Narkle's part from complete denial of his previous offending. While recognising that gain for what it is, as I have noted above, in my view Mr Narkle is a long way from a proper acceptance or appreciation of the nature and extent of his offending and the effect that it has had on his victims.
3. In addition, while each of the experts recommended treatment and therapeutic intervention for Mr Narkle, the evidence did not suggest that significant treatment gains are likely in the future. Much of the focus in relation to therapeutic interventions appeared to be focussed on management of risk, rather than bringing about some fundamental change in Mr Narkle's personality.
4. This was brought out in cross-examination of Dr Bannister:[68]

BARONE, MS: To put it bluntly, the desired goal from one-to-one counselling with the DSO psychologist may not be treatment gains but risk management?---Yes. Simply, to put it another way, there is - sometimes the assumption is made that if you throw enough treatment at a sex offender, they get better, for want of a better word, and their risk is completely reduced. The reality is that, effectively, what treatment does is that it makes someone more manageable. So the idea is that it gives them more capacity to selfregulate, it gives them greater insight, and so they may never change their risk. Certainly, when you look at Static-99 and that implied risk, again, being from now until when they die, they may always be deemed by that tool, notwithstanding any adjustments to the score that it - are able to be made, they may always be a high risk or above average risk, but it's about the capacity that they can work on their dynamic - the dynamic risk factors to then have some capacity to ameliorate the risk from that point of view.

QUINLAN CJ: So that the - and, really, that's - am I understanding that to really be saying that the one-to-one counselling or the one-to-one engagement that's contemplated by your plan may - but you're putting a big caveat on that - may result in some, for want of a better word, internal improvement in Mr Narkle, but what you would hope that it does in any event is assist him with, sort of, the management of behaviours, even if it doesn't get to the root causes?---Yes. Exactly. And, again, to be - to put it quite bluntly, to wait for Mr Narkle to be in a position to demonstrate that he has made significant gains, treatment gains, from this point, for example, before releasing him on a community supervision order, he could well be imprisoned for the rest of his life.

The risk that, if not subject to a continuing detention order or supervision order, Mr Narkle would commit a serious sexual offence and the need to protect the community from that risk - s 7(3)(h) & (i)

1. It will be apparent from what is set out above that the evidence is to the effect that, in the absence of a continuing detention order or a supervision order, there is a significant risk that Mr Narkle would commit a serious sexual offence. I find that to be the case.

1. One particular matter that is relevant to the assessment of Mr Narkle's risk of committing a serious sexual offence in future is his physical capacity to do so.
2. Mr Narkle is clearly advancing in years and has a medical history of heart disease, including requiring replacement of the aortic valve, annuloplasty of the mitral valve and a bypass graft.[69]
3. That surgery, however, was performed on 13 June 2007, prior to Mr Narkle's most recent offending. As Dr Hall noted, Mr Narkle's state of health with regard to his cardiac condition is likely much better now than prior to his valve replacement surgery, and that his cardiac health at that time did not preclude him offending.[70] There is no other evidence to suggest that Mr Narkle would be physically prevented from committing a further offence.
4. In short, I do not consider that Mr Narkle's physical condition significantly reduces his risk of committing a serious sexual offence. In any event, it is apparent from his offences in the past that Mr Narkle is prepared to use threats, weapons and, most recently, incapacitating drugs in order to subdue his victims.
5. In relation to the suggestion, made in the course of the interviews with Dr Hall and Dr Wynn Owen, that Mr Narkle lacks the sexual function to commit a serious sexual offence, I reject that suggestion. It is a suggestion based solely on Mr Narkle's self-report, which in my view is entirely unreliable. In that regard, Mr Narkle reported to both Dr Hall and Dr Wynn Owen that he was unable to obtain an erection during the commission of his most recent offences. Given the evidence in support of those convictions (and the convictions themselves) Mr Narkle's statements in that regard are clearly untrue.

Conclusion as to whether Mr Narkle is a serious danger to the community

1. Taking into account each of the matters referred to above, I am satisfied to a high degree of probability that there is an unacceptable risk that, if Mr Narkle were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.
2. I find that, without a continuing detention order or a supervision order, there is a significant likelihood that Mr Narkle would again offend in the manner that he has in the past. That is, without being subject to a continuing detention order or a supervision order, there is a significant (indeed a high) risk that Mr Narkle would commit serious sexual offences against a vulnerable victim accompanied by violence or threats of violence.
3. I do not consider that the risk of that occurring would be substantially ameliorated by Mr Narkle being subject to the PSSO under the Sentence Administration Act. That order provides for supervision akin to the kind of supervision that would be applicable to a person on parole. Supervision of that kind has been demonstrated to be ineffective at avoiding repeated offending by Mr Narkle in the past.
4. In all of the circumstances, the nature and likelihood of Mr Narkle's risk is so unacceptable that, notwithstanding that he has been punished for the offences he has committed, it is necessary and appropriate that he be the subject of further control or detention.
5. I, therefore, find that Mr Narkle is a serious danger to the community, within the meaning of the Act.

Continuing detention order or supervision order?

1. I must now consider whether to make a continuing detention order or a supervision order.
2. In determining that question, s 17(2) of the Act requires me to apply, as the paramount consideration, the need to ensure adequate protection of the community. Matters personal to Mr Narkle must necessarily be secondary considerations.
3. In all of the circumstances, I am unable to be satisfied that the community can be adequately protected by imposing a supervision order.
4. There are, essentially, three broad reasons for this conclusion:

(a) the state of the relationship between Mr Narkle and his wife is such that the residential component of the draft supervision order is inappropriate;

(b) there would be an unacceptable risk of Mr Narkle committing a serious sexual offence even subject to a supervision order; and

(c) I am not satisfied that Mr Narkle will substantially comply with the standard conditions of a supervision order.

The relationship between Mr Narkle and his wife

1. The relationship between Mr Narkle and his wife is relevant to the appropriateness of a supervision order because, on the evidence before me, Mr Narkle's wife's home is the only suggested accommodation at which Mr Narkle could reside were he released under supervision. Mr Narkle's relationship with his wife is, therefore, directly relevant to whether the residential component of the proposed supervision order is appropriate and the impact that that relationship may have on the protection to the community provided by a supervision order.
2. Mr Narkle and his wife met, according to her evidence (which I accept in this regard) on 17 May 2009. They immediately began cohabiting and lived together until 9 June 2009, when Mr Narkle was arrested and taken into custody for his most recent offences. They had, accordingly, known each other for approximately three weeks prior to Mr Narkle's most recent imprisonment.
3. Mr Narkle and his wife, nevertheless, continued to maintain a relationship until the present time, albeit that there have been occasions upon which Mr Narkle's wife has ceased contact with him (in order to, in her words, de‑escalate the conflict between them). They were married in prison on 21 September 2011.
4. Notwithstanding their marriage in 2011, Mr Narkle and his wife have spent very little time within physical proximity of one another over the past ten years. According to the records of the Department of Justice, since 2009 Mr Narkle's wife has visited him in prison on a total of 25 occasions.[71] In her evidence before me, while her recollection suggested that she had visited a little more than 25 times, Mr Narkle's wife generally agreed that the number of visits was accurate.
5. Mr Narkle and his wife have, therefore, seen each other approximately twice to three times per year for the past 10 years. In my view, even allowing for the difficulties associated with maintaining contact with a loved one while in prison, the actual physical contact between Mr Narkle and his wife over the past decade has been remarkably little. In some years, including 2019, Mr Narkle's wife has not visited him at all.
6. It is apparent, rather, that much of the contact between Mr Narkle and his wife is by telephone.
7. At the time of her initial interviews with Dr Hall and with Mr Jarvie, Mr Narkle's wife displayed a lack of any real appreciation of Mr Narkle's criminal history. Dr Hall recorded the following:[72]

On specific enquiry as to her understanding of Mr Narkle's history, [Mr Narkle's wife] said that she relied upon and believed Mr Narkle's account. As such, she believed that some of the offences had simply been 'misunderstandings' and 'related to the way that he was choosing to live his lifestyle at that time'. She said that she had from time to time been told by others of things that Mr Narkle had been convicted of or was alleged to have done, and that not having been aware of it previously would then speak with Mr Narkle on the telephone about it. She said that it was often the subject of heated argument but that, ultimately, she accepted his assurance that she was not being told the truth by other people or the media. [Mr Narkle's wife] stated that 'he has told me with his own words that he has never forced anyone (to have sex)...unless he has misled me, but I don't think he has.' [She] said that she did not intend to attend the hearing of the Division 2 application. She said that she was not particularly worried about negative media attention other than for the fact that it would have a negative impact on the already strained relationships with her own family members. (original emphasis)

1. A similar description of Mr Narkle's wife's awareness of his offending appears in Mr Jarvie's original report.[73]
2. Both Dr Hall and Dr Wynn Owen in their original reports expressed some hesitation in relation to the risks associated with the relationship between Mr Narkle and his wife. As set out at [80]-[81] and [101]-[102] above, however, those hesitations became significant concerns in light of the prison telephone calls made available to them. As I have noted above, each of Dr Hall and Dr Wynn Owen described the relationship between Mr Narkle and his wife as being abusive and unstable.
3. Counsel for Mr Narkle submitted that I should not attach significant weight to Dr Hall and Dr Wynn Owen's characterisation of the relationship between Mr Narkle and his wife, on the basis that their expertise did not necessarily extend to their expressing a view as to the quality of a personal relationship.
4. In this regard, I accept that, to a degree, an assessment of the quality of a personal relationship such as that between Mr Narkle and his wife could well be said to fall within the field of ordinary human experience, so as not to require expert opinion. In that regard, I am probably in as good a position as Dr Hall and Dr Wynn Owen to determine whether the relationship is 'abusive'.
5. Nevertheless, I do consider that, as experts in making assessments of the risk of reoffending, it is properly within the scope of Dr Hall and Dr Wynn Owen's expertise to express opinions as to whether a particular relationship would, or would not, be a protective factor in relation to the risk posed by a particular offender.
6. In that regard, while recognising that the risks associated with the relationship (as part of the risk to the community generally) are ultimately matters for me, Dr Hall and Dr Wynn Owen's opinions in that regard are admissible. Insofar as the assessment of the telephone calls might be said to fall within ordinary common experience, that is, in my view, a matter going to the weight that I should give to the opinions of Dr Hall and Dr Wynn Owen.
7. As it is I have had the opportunity to listen to the various telephone calls between Mr Narkle and his wife that were tendered in evidence and I have formed my own independent view of them.
8. In my view, it is clear from those telephone calls that the relationship between Mr Narkle and his wife, on Mr Narkle's side, may properly be characterised as abusive and controlling.
9. Mr Narkle, in discussions with Mr Jarvie, described the telephone calls as the 'normal 'ups and downs' of a relationship'.[74] In my view, and giving full allowance for the diversity of human relationships, the telephone calls between Mr Narkle and his wife are anything but the normal 'ups and downs' of a relationship. Mr Narkle can regularly be heard in the telephone calls belittling his wife and subjecting her to verbal abuse of the most appalling kind. His abusive language towards his wife does not require repetition by me. The telephone calls speak for themselves.[75]
10. It matters not, in my view, that the most extreme verbal abuse appears in only some of the calls between Mr Narkle and his wife, or that the experts (and I) listened to a relatively small proportion of the calls between them. The characterisation of the relationship as abusive is not a mathematical exercise. Mr Narkle's hostility towards his wife sets the tone and pattern of the relationship, a pattern described by Dr Wynn Owen (see [109] above).
11. In addition to the verbal abuse directed towards Mr Narkle's wife, the telephone calls provide clear evidence of a persistent and unwavering suspicion on the part of Mr Narkle as to his wife's whereabouts and her movements. There are repeated references to 'Romeo' (Mr Narkle's name for his wife's imagined lover). Even the telephone calls that appear relatively innocuous, include queries as to Mr Narkle's wife's whereabouts and physical activities which, in the context of the calls as a whole, in my view, are characteristic of Mr Narkle's controlling personality.
12. Finally, in relation to the telephone calls themselves, there is a series of telephone calls on 15 August 2019, in which Mr Narkle purports to tell his wife the truth about his criminal history. It is apparent from those calls that Mr Narkle had clearly lied to his wife in the past in relation to the extent of his offending.[76]
13. Even the 'disclosures' in the telephone calls themselves are a far cry from a frank and truthful description of those offences. Mr Narkle repeatedly returns to dwell on offences much earlier in his life that were (for him) relatively minor,[77] while eliding reference to his serious violent offending in his 30s and 40s.
14. The aggressive, sexually motivated attack on the 15 year old girl when he was 44 years of age (see [48] above), for example, was described as 'there was a girl with the key card... chased a girl ... it wasn't really [sexual] but I got charg[78] with it'.78 This is notable, as Mr Narkle's description of the offence as involving a 'keycard' is a reference to the same false account that he gave of the offences to (and which was rejected by) a jury in 2000 and which he repeated to Dr Hall and Dr Wynn Owen.
15. The offences in which Mr Narkle sexually assaulted the young woman who provided him with emotional and material support, while armed with a knife and threatening to kill her and her children (see [44] above), was described in the most banal of ways ('I got charged with raping, I accept that, yes ... I haven't got time to discuss - I - I accept it and it[79]appened').79 Even in that description Mr Narkle describes his crimes as if they were something that happened to him, rather than to his victim ('I got charged with raping').
16. Accordingly, even as recently as 3 months ago, Mr Narkle's disclosure of his offences to his wife was piecemeal and inadequate.
17. Mr Narkle's wife was called to give evidence before me.
18. Mr Narkle's wife presented, in my view, as an intelligent and, at times, articulate witness. When describing her own physical disabilities, and their treatments, for example, her evidence was clear and appropriate.[80]
19. Her demeanour, however, particularly concerning her relationship with Mr Narkle and his crimes, was disengaged and detached, even numb. I have taken into account that giving evidence would have been a difficult and strange experience for Mr Narkle's wife. Nevertheless, in my assessment her demeanour was reflective of a more general disconnection between her perception of her relationship with Mr Narkle and of his offending and their underlying reality.
20. It was apparent from her evidence, for example, that Mr Narkle's wife has, in the last month, had further detail of Mr Narkle's offences explained to her by Mr Narkle's counsel (by reference to a chronology prepared for the purposes of these proceedings).[81] While she was able to recall, unprompted, the detail of certain of the offences when asked, she did so with a degree of detachment more appropriate to recalling a shopping list than violent sexual crimes committed by her husband.[82] Similarly, her matter-of-fact description of the nature of Mr Narkle's criminal history as 'not a healthy way to live',[83] betrayed a lack of real comprehension of the reality of that history.
21. While Mr Narkle's wife was affirmative in her answers as to whether she understood the extent of the imposition that a supervision order would have on her life, her affect was flat and her answers monosyllabic.[84] I gained the distinct impression that she was prepared to express whatever acceptance of those conditions was expected of her, without fully appreciating the effect that those conditions would have on her life.
22. The one exception to this, indeed the only occasion upon which Mr Narkle's wife displayed what might be regarded as an appropriate emotional response in her evidence, was in describing her difficulties with visiting her children (in light of her relationship with Mr Narkle).[85] This evidence provided, in my assessment, a poignant insight into the effect that living with Mr Narkle would actually have on her life and the stress that it would create.
23. In relation to whether she believed Mr Narkle posed a risk to her personally, Mr Narkle's wife said:[86]

I don't have any fear of him, and I haven't seen any violence towards me in the time that we've been together - any physical violence.

1. Similarly, when asked whether Mr Narkle might act in an angry way to her if released on supervision, his wife said 'not based on my experience of my time with Garry before he went to prison'.[87]
2. Given the very little time that they have in fact spent together, I found the evidence of Mr Narkle's wife in this regard both ill-considered and unrealistic.
3. This was evident in relation to her evidence concerning the abusive telephone calls. While Mr Narkle's wife accepted that the telephone calls were abusive, she said that she remained in a relationship with him because:[88]

I was hopeful that we could move beyond that and progress to a healthier relationship in time and with the right circumstances.

1. While this 'hope' on the part of Mr Narkle's wife, is, in many ways, admirable and a credit to her, there is, in my view, little objective basis for it. Mr Narkle's personality is what it is: self-centred and indifferent to others. It is, as the experts confirmed, unlikely to change.
2. In this regard, Mr Narkle's wife said, when asked who she thought needed to have better anger management, responded 'maybe equal'.[89] In this regard, in my view, she could not be more wrong. While it is evident, from the telephone calls, that there are occasions upon which Mr Narkle's wife remonstrates with him (and in my view displays considerable dignity in the face of abuse), the suggestion that she, in any way, bears responsibility for the abusive nature of the relationship is preposterous.
3. It should clearly be stated that the abusive nature of the relationship between Mr Narkle and his wife, is due to his behaviour and not hers. Indeed, Mr Narkle's wife's acceptance of responsibility for her 'communication style' and how they communicate with each other,[90] in my view, is reflective of her vulnerability in the relationship.
4. This vulnerability was evident, in my view, in what I found to be the most disturbing aspect of her evidence.
5. As I have noted above, one of the features of the relationship between Mr Narkle and his wife is his persistent suspicion in relation to her behaviour and whereabouts and his refusal to accept her explanations of where she has been.
6. Mr Narkle's wife was asked whether she thought this controlling behaviour would continue in the community:[91]

Going by his past behaviour, what makes you think he's going to believe you? And what makes you think then he won't become angry with you and then you have an argument?---Because most of the - 90 per cent of the time we would be together and if - obviously he would be involved in understanding why or when I'm going to see them [ie, her children]. So it would be not - he would be well aware beforehand.

1. This was not a reassuring answer.
2. Essentially, Mr Narkle's wife proposed that Mr Narkle would no longer be suspicious of her movements because he would, in effect, have a greater capacity to carry out surveillance of her whereabouts. This, in my view, confirms her vulnerability to Mr Narkle's controlling behaviour.
3. Ultimately, I conclude that Mr Narkle's wife, were he released, would be placed in a vulnerable position. She is, on her own evidence, socially isolated, with few social contacts.[92] She suffers physical disabilities, including migraines and chronic pain.[93] And her relationship with Mr Narkle is already characterised by verbal abuse and control.
4. In the end, I am left with grave concerns for the physical and emotional wellbeing of Mr Narkle's wife were she and Mr Narkle to live together, particularly in light of the additional stress that the conditions of a supervision order would place on their already strained relationship. Rather than provide any protection against Mr Narkle's risk to the community, in my view, the stresses associated with that relationship are a risk to Mr Narkle's wife and, I find, to the community generally.
5. In relation to the last matter (the stresses associated with the relationship), Dr Wynn Owen expressed the view that the relationship would be a considerable source of stress for Mr Narkle (see [102] above). I agree with that assessment. It is notable that when Mr Narkle was undergoing the ISOTP program in 2017, and his contact with his wife increased, the more frequent contact increased the 'contentious' nature of the r[94]ationship.94 By comparison, the contact between that would be necessitated by the proposed supervision order would be unprecedented.
6. Given the role that problems with stress and coping play in Mr Narkle's risk of reoffending, the risks and stresses associated with that relationship are risks to the community.
7. Accordingly, I am not satisfied that the residence proposed in the draft supervision is appropriate, even were I otherwise satisfied that a supervision order was appropriate.

Unacceptable risk of Mr Narkle committing a serious sexual offence while subject to a supervision order

1. The evidence reveals that much of the focus of the proposed supervision of Mr Narkle was on providing external constraints to his behaviour rather than an expectation that significant progress could be made in Mr Narkle developing internal constraints to his behaviour. As Dr Wynn Own said, the expectation for some change in Mr Narkle will be quite low, in that his personality is at the core of his offending.[95]
2. As I have noted at [164] to [165] above, the goal in relation to treatment and therapeutic intervention for Mr Narkle would likely be self‑management, rather than a resolution of his underlying makeup and personality. Whatever benefits may be derived from a therapeutic relationship, assuming it can be established, will only, therefore, manage Mr Narkle's risk, rather than address the root causes of that risk.
3. The issue then becomes, how well can that risk be managed, and to what degree?
4. The reality, of course, is that there is a limit to the protection that can be provided by external constraints, without any protection coming from an individual themself.
5. Even with the external constraints proposed by a supervision order, Dr Wynn Owen expressed the opinion that Mr Narkle's risk would remain at a moderate level of risk of serious sexual offending (see [111] above). I found this evidence persuasive and I accept it. While this may be a significant reduction in risk for Mr Narkle personally (given that it would be high without supervision), it is a different question whether a reduction in risk from high to moderate is adequate to provide protection for the community.
6. In that regard, Dr Wynn Owen equated the level 'moderate' with the 'average' cohort of offenders described by the Static‑99R, of which the likelihood of recidivism is around 10% to 15%. That level of risk, when viewed from the perspective of the protection of the community, is, in my view, not reasonably acceptable.
7. In this regard, there is one respect in which I am hesitant to accept the opinions expressed by the experts. That is in relation to the potential imminence of Mr Narkle offending. As set out in [89] and [107] above, both Dr Hall and Dr Wynn Owen expressed the opinion that the likely imminence of further sexual offending by Mr Narkle was in the realm of months to a year.
8. I accept, of course, that the experts were expressing an opinion as to the likely imminence of re-offending rather than making a categorical prediction as to when an offence might occur. Dr Wynn Owen, for example, recognised for example that 'in the presence of psychopathy, unpredictability is a factor and it is difficult to say whether something may or may not occur out of the blue as a result of a rapid escalation'.[96]
9. In any event, in my view, in the context of considering the risk (as opposed to likelihood) of further offending, account must be taken of the real potential for Mr Narkle to reoffend in more rapidly, and more unpredictably, than in a matter of months. Mr Narkle's past criminal history includes examples of offending within days of release and, as I have noted at [144], Mr Narkle's offending is often characterised by an explosive change in his behaviour.
10. Nor is alcohol or substance abuse an invariable part of Mr Narkle's offending, as Dr Wynn Owen noted.[97] Mr Narkle is quite capable of serious offending without the disinhibiting effects of alcohol.
11. These matters lead me to conclude that there is a real risk that Mr Narkle will offend more rapidly than that predicted by Dr Hall and Dr Wynn Owen. In my view it is appropriate to have regard to that risk in the context of the overall assessment as to whether a supervision order would provide adequate protection to the community.
12. Given the nature of the offences that Mr Narkle has a propensity to commit, I am left with a significant doubt that the conditions of the proposed supervision order would provide adequate protection to the community. In those circumstances a supervision order is not appropriate.

Substantial compliance with the standard conditions of a supervision order

1. Finally, I am not satisfied on the balance of probabilities that Mr Narkle would substantially comply with the standard conditions of a supervision order.
2. As to the meaning of the expression 'will substantially comply' in s 17, I agree, with respect, with the approach set out by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart in relation to the same expression in s 23(1B), and in particular that:[98]

(a) the words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the standard conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence; and

(b) the question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.

1. In relation to those standard conditions, the most significant matters in the present case are whether I can be satisfied, on the balance of probabilities, that:

(a) Mr Narkle will comply with any reasonable direction of the community corrections officer under whose supervision he is placed (s 18(1)(d) of the Act); and

(b) Mr Narkle will not commit a sexual offence, within the meaning of s 36A of the Evidence Act (s 18(1)(f) of the Act).

1. In relation to the first of these matters, there is little in the evidence before me to suggest that Mr Narkle will comply with the reasonable directions of a community corrections officer. His problems with supervision, and his antiauthoritarian attitudes remain a real issue in relation to the likelihood of his compliance with reasonable directions.[99]
2. Unlike purely external controls, compliance with directions is something that Mr Narkle would have to take responsibility for himself. It would be necessary for the court to be satisfied that Mr Narkle's antiauthoritarian attitudes have been sufficiently addressed for him to be able to be trusted to observe directions intended to address his risk of reoffending, whether he regards those directions as necessary or not. I am not persuaded that that is currently the case. Whether that could be adequately addressed in the context of a one-to-one a counselling relationship remains to be seen.
3. As to the second matter, it should be noted that the condition required by s 18(1)(f) of the Act provides that Mr Narkle will not commit a sexual offence, within the meaning of s 36A of the Evidence Act. That definition is broader than the definition of 'serious sexual offence' in the Act. It includes any offence against ch XXXI of the Code, including an indecent assault.
4. Mr Narkle's previous offending includes indecent assault, in circumstances that may properly be described as opportunistic (see [50] above). In my view, there is a higher likelihood of such offending occurring, even under supervision, than Mr Narkle committing a serious sexual offence within the meaning of the Act. Offences of this kind may be more likely to occur in the context of a domestic relationship and to be easie[100]o commit.100
5. Given his proven propensity to commit sexual offences generally and the moderate risk of his committing a serious sexual offence while on supervision, in my view, more would be required than Mr Narkle's own say-so to be positively satisfied that he will not commit even an offence of indecent assault during a period of supervision.
6. For these reasons, Mr Narkle has not satisfied me on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order.
7. Accordingly, even if I were otherwise satisfied that the proposed supervision order would provide adequate protection to the community (which I am not), I would be prohibited by s17(3) of the Act from making a supervision order.
8. For these reasons, I have decided that I must make an order that Mr Narkle be detained in custody for an indefinite term for control, care or treatment.

(a) I find that Mr Narkle is a serious danger to the community, within the meaning of the Act; and

(b) order that Mr Narkle be detained in custody for an indefinite term for control, care or treatment.

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

Principal Associate to the Honourable Chief Justice Quinlan

[2] The State of Western Australia v West [2013] WASC 14 [52] (Corboy J).

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

[4] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (Beech J).

[5] The State of Western Australia v Rao [2019] WASC 93 [28] - [29].

[6] On the first day of the hearing I made an order prohibiting the publication of material that would identify Mr Narkle's wife or her address. I shall refer to her as 'Mr Narkle's wife' in these reasons. I intend no disrespect in doing so.

[48] See Exhibit 1, pages 1792-1798 (Ms C Forster, psychologist), 1799-1803, 1809-1810 (Dr M Schineanu, consultant psychiatrist).

[55] Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [178].

[56] The Act, s 42(1A). The definition of relevant proceeding does not require that the proceedings result in a conviction.

[75] See by way of example, call 6777189 (7 June 2011), 847176 (20 August 2018); 847345 (20 August 2018); 1160614 (29 May 2019).

[77] See Exhibit 1, pages 2366, 2367, 2369, 2370, 2374, 2379, 2380.

[87] Ts 360 (30 October 2019). See also Ts 372-373 (30 October 2019).

[90] See Ts 332, 360 (30 October 2019).

[98] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52] (Fiannaca J).

[99] Exhibit 1, pages 2448, 2482; Ts 348, 368 (29 October 2019).