THE STATE OF WESTERN AUSTRALIA -v- NARRIER [2021] WASC 250 (22 July 2021)

(1) the respondent be detained in custody pursuant to s 46(2)(c)(i) of the Act; or alternatively

(2) with effect from the date of such order, the respondent be released subject to the conditions in s 30(2) of the Act and such other conditions as the court considers appropriate pursuant to s 58(5) of the Act.

1. The application is supported by an affidavit affirmed by Ms Meagan Hemsley, a lawyer employed by the State Solicitor's Office, on 23 June 2021. The annexures to Ms Hemsley's affidavit are comprised of materials relating to the offences of which the respondent has over the years been convicted (including his criminal record) as well as various reports that have been prepared in relation to him.
2. I have today heard the applicant's application for the orders pursuant to s 46(2) of the Act. Accordingly, the hearing that has taken place before me is a preliminary hearing conducted pursuant to s 46(1) of the Act.
3. The applicant contends that in the event that I find that orders should be made under s 46(2)(a), s 46(2)(b) and s 46(2)(d), the respondent should be detained in custody until the conclusion of the hearing and judgment on the application for the restriction order.
4. The respondent does not oppose the application for the orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Nonetheless, it is, of course, still necessary for me to examine the evidence and to satisfy myself that the orders sought should be made.
5. The respondent opposes the application for an order that he be detained in custody until the conclusion of the hearing and judgment on the application for the restriction order. He also opposes, or at least does not concede, the alternative application for an interim supervision order pursuant to s 58(5) of the Act. His position is that it is not necessary for the court to make an interim supervision order given the conditions of the Post-Sentence Supervision Order (PSSO) which has been made by the Prisoners Review Board (PRB) in respect of him pursuant to the relevant provisions of the Sentence Administration Act 2003 (WA).

Relevant statutory provisions and applicable legal principles

1. Section 43(1) of the Act provides that after a restriction order application is made the court must fix a day for the matter to come before the court for a preliminary hearing. A 'preliminary hearing' is defined to mean 'a preliminary hearing referred to in section 46'.[3]
2. Section 46(1) of the Act is in the following terms:

The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, in accordance with section 7, find that the offender is a high risk serious offender.

1. Section 7(1) of the Act which contains the definition of the term 'high risk serious offender', provides as follows:

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

1. Accordingly, the main purpose of a preliminary hearing is to enable the court to decide if it is satisfied that there are reasonable grounds for believing that the court might be satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.[4] In deciding if it is satisfied that there are reasonable grounds for the requisite belief, the court must have regard to the matters specified in s 7(3) of the Act.[5]
2. Section 46(2) of the Act provides that if the court is satisfied on the preliminary hearing that there are reasonable grounds for believing that the court might, in accordance with s 7, find that the offender is a high risk serious offender, the court:
   1. must order that the offender undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with s 74 of the Act to be used on the hearing of the restriction order application;[6] and
   2. may, on the application of the State or the offender, order that a person named by the court prepare a report in accordance with s 75 of the Act to be used on the hearing of the restriction order application on questions or topics set out in the order;[7] and
   3. may:

(1) if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order; and

(2) if the offender is not in custody, order that the offender be detained in custody for the period stated in the order;[8] and

1. must, except as provided in s 46(3) (which is not relevant in the present case) fix a day for the hearing of the restriction order application.[9]

1. In The State of Western Australia v Nelson[10] Quinlan CJ made the following statements in relation to the requirements of s 46(1) which I respectfully adopt (citations omitted):

While the definition of 'high risk serious offender' sets a relatively high bar for the imposition of a restriction order (in the sense of requiring proof to a high degree of probability), s 46(1) of the Act sets a low threshold for the purposes of a preliminary hearing. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

1. Against the background of the relevant statutory provisions and applicable legal principles I turn now to the information before me which bears upon my determination of the question posed by s 46(1).

1. The index offences were the subject of an indictment dated 3 January 2018. As I have already stated, one of the index offences was an offence of armed robbery. The offence of armed robbery is a 'serious offence' for the purposes of the Act.[11]
2. The facts of the index offences were as follows.

1. At about 8.40 am on 22 July 2017 the respondent was at the unit at which his mother and stepfather were living. The unit was situated in Finchley Crescent in Balga. The respondent was also living in the unit at the time.
2. The respondent became enraged because he could not obtain a cigarette. In his anger the respondent picked up some house bricks and a fascia from the front yard. He threw the bricks and fascia onto the roof of the unit causing damage to the roof tiles.

1. Soon after the commission of the criminal damage offence the subject of count 1 a contractor came to the unit with a work order to do repairs to the front door lock. The respondent answered the door and told the contractor that no work needed to be done and to 'fuck off'. The respondent then armed himself with a house brick and a claw hammer and approached the contractor. He raised the house brick above his head in a threatening manner but did not say anything.

1. At this point the respondent grabbed a nearby pram and rammed it into the contractor's vehicle. In doing so the respondent caused dents to the front left passenger door of the contractor's vehicle.

1. At the same time a Swan Taxi was being driven along Finchley Crescent. While armed with the house brick and the claw hammer the respondent approached the Taxi. The respondent then threw the house brick at the Taxi causing the front bumper of the vehicle to separate from the front passenger side fender.

1. The respondent walked down Finchley Crescent. At the same time a neighbour, Ms Pierina Hamilton, who was 71 years old and lived a short distance away, reversed her car out of her driveway and onto the verge outside the house that was next door to her house. The respondent approached Ms Hamilton holding the claw hammer. The respondent raised the hammer and, in a threatening manner, demanded that Ms Hamilton get out of her car and give him her keys. Ms Hamilton was scared and confused. The respondent reached inside the car for the keys and pulled some of them away from the ignition key, leaving the ignition key in the ignition. The respondent threw the other keys on the ground.

1. Ms Hamilton's son, Mr David Hamilton, who lived with his mother, had moved his car to allow his mother to reverse out of the driveway. While the respondent was confronting his mother, Mr Hamilton was parking his car in the carport of his address. When he heard the commotion that the respondent was making and saw what was happening he walked over to his mother's vehicle and asked if she was alright. The respondent approached Mr Hamilton while still carrying the claw hammer and demanded Mr Hamilton's car keys. Mr Hamilton backed down his driveway. The respondent followed Mr Hamilton raising the claw hammer as if to swing it. Mr Hamilton crouched down, cowering on the ground outside the front door with his arm up for protection. Fearing that he would be struck Mr Hamilton handed the respondent his car keys. The respondent then ran to Mr Hamilton's car, sat in the driver's seat and started the car. However, the respondent was unable to drive away in the car because by this time he had been hemmed in by police who had been called to the scene
2. The theft of Mr Hamilton's car that formed the basis of the armed robbery offence was constituted by the respondent taking control of the car.

1. As the police pulled into the driveway the respondent was reversing Mr Hamilton's car out of the driveway. The respondent stopped the car when he saw the police car but then accelerated in reverse into the front of the police car causing damage. After colliding with the police car the respondent continued to accelerate spinning the wheels in an attempt to push the police car out of the driveway and out of the way so that he could drive away. When the respondent did not succeed he drove forward and into the shed doors at the back of the carport of the Hamiltons' house. The police then moved forward blocking the respondent's vehicle between them and the shed doors.

1. The police got out of their car and called to the respondent to get out of the car that he was in. The respondent did so, still holding the claw hammer. The respondent then held the claw hammer above his head as he approached the police. The respondent was called upon several times to drop the hammer but he would not do so. Fearing for their safety, one officer drew his firearm and another drew a Taser. The Taser was deployed and struck the respondent causing him to become incapacitated. The respondent was then arrested and handcuffed.

1. The respondent is a few days short of his 33rd birthday. He is single. He has a young teenage son with whom he has no contact.
2. The respondent was predominantly raised by his maternal grandparents.
3. The respondent left school at the age of 15. He had a history of behavioural difficulties at school.
4. The respondent has no substantive employment history.
5. The respondent has an entrenched history of abusing alcohol and using illicit substances, predominantly cannabis and methylamphetamine. Indeed, at the time of being sentenced for the index offences the respondent admitted that he had resumed using methylamphetamine and cannabis immediately after he had last been released from prison on 15 May 2017.

1. The respondent has a lengthy criminal record. He was convicted of his first offence at the age of 14. He has over the years been convicted of many offences similar in nature to the index offences. His record reveals that he has a propensity to engage in aggressive and violent behaviour, which on occasions involves the use of a weapon of some sort, to obtain money or property or when he feels disrespected. The imposition on him of terms of imprisonment have not deterred him from offending.
2. In June 2014 the respondent was convicted of one offence of stealing, one offence of attempted aggravated armed robbery and one offence of aggravated armed robbery. He was sentenced to a total of 3 years and 4 months imprisonment for the offences. He served the full term and was released on 15 May 2017. Accordingly, the respondent committed the index offences only 10 weeks after he had completed serving a lengthy term of imprisonment.

The respondent's participation in prison-based programs

1. The respondent's history of involvement in prison-based programs is as follows.
2. In November 2010 the respondent completed a Think First Program. The Program Completion Report prepared in relation to the respondent's participation in the program indicates that by the end of the program the program facilitator had assessed the respondent as having made gains in the areas of problem recognition (the respondent having accepted he had a problem with alcohol and drugs), problem solving and self-management.
3. On 21 February 2011 the respondent commenced the Violent Offender Treatment Program. The program was comprised of 62 sessions scheduled to run over a period of 21 weeks. The aim of the program was to assist participants to gain a sound understanding of their offending behaviour, to recognise the factors that contributed to their offending and to develop a viable and manageable relapse prevention plan specific to their offending patterns and behaviours.
4. On or around 9 March 2011 the respondent removed himself from the Violent Offender Treatment Program. The respondent stated that he could not attend every day and could not sustain attendance for the duration of the program. It was explained to the respondent that his withdrawal from the program may affect his security rating and any future decision regarding his release on parole. The respondent stated that he did not care about parole or about 'minimum'.
5. On 10 March 2015 the respondent commenced another Think First Program. The program was comprised of 30 sessions. The respondent was required to attend the program in order to address his externalisation of blame, lack of offence awareness and lack of victim empathy.
6. On 19 March 2015 the respondent was removed from the Think First Program after attending only seven of the sessions. The respondent was removed from the program due to non-attendance at sessions and his statements that he would not be able to attend future sessions. The respondent told the program's facilitators that his non-attendance at sessions was due to him being preoccupied and distracted by his then current court proceedings. The respondent also told the program facilitators that although his removal from the program was a setback for him he wished to complete the program later in the year.
7. On 5 February 2019 the respondent commenced the Pathways Program. The Pathways Program was a 100-hour structured program which provided treatment to individuals who had a history of offending behaviour and substance use problems. The program was an intensive, cognitive behavioural, skills-based program and attended to both personal circumstances (events that lead to criminal conduct and substance use) and intrapersonal processes (thoughts, emotions, beliefs and attitudes that lead to criminal conduct and substance use).
8. The respondent completed nine hours of the Pathways Program before stating that he no longer wished to attend. Due to his limited program attendance the respondent did not make any significant gains towards his treatment needs.

1. In June 2014 the respondent was assessed by a psychologist. The psychologist assessed the respondent so that she could prepare a report for use by the court in the sentencing of the respondent for the previously referred to offences of stealing, attempted aggravated armed robbery and aggravated armed robbery for which he was ultimately sentenced to 3 years and 4 months imprisonment. The psychologist's report is dated 2 June 2014.
2. The psychologist's report reveals that she made use of the Violence Risk Scale (VRS) in order to assess the respondent's risk of committing further violent offences. The psychologist assessed the respondent as being at a high risk of reoffending in a violent manner.
3. The psychologist reported that the respondent impressed as accepting of his lifestyle which she considered was likely normalised amongst his family and peers. She expressed the view that the respondent was most likely to commit similar offences in the future to gain money or possessions and that such offending would be fuelled by criminal associates and substance abuse. She concluded her report in the following terms:

[The respondent] has broad ranging treatment needs and his intervention should match his assessed high risk of violent reoffending. However at assessment he impressed as largely unaware of the problems he faces. His upbringing has seemingly promoted a tendency to act without thinking and to feel a sense of entitlement with regard to having his perceived needs met. Therefore the initial treatment target would be to widen his thinking and assist him in developing some insight into his behaviour and that could be achieved by inclusion in a program designed to promote cognitive skills. Once he has achieved that he could be included in an appropriate intensity program to address his substance use and pro-criminal thinking....A group based treatment approach may be most beneficial because it provides direct and indirect (vicarious) learning experiences as well as challenging of thinking processes from other group members as well as from facilitators.

1. In late 2017, early 2018 a pre-sentence report (PSR) dated 4 January 2018 was prepared in relation to the respondent for use by the court in the sentencing of the respondent for the index offences. The Senior Community Corrections Officer (CCO) who prepared the PSR assessed the respondent as presenting with limited insight into his offending behaviour and was of the view that the respondent's willingness and ability to make significant lifestyle changes in an attempt to reduce his risk of reoffending was 'highly questionable'. The CCO noted the absence of adequate protective factors in the respondent's case as well as the respondent's poor prison-based behaviour, poor compliance with prior community supervision, entrenched and untreated behaviour such as substance abuse, interpersonal aggression and impaired cognitive skills. The CCO stated that the respondent, despite being given two prior opportunities to address his offending in the community setting by way of supervision orders, had not been able to demonstrate his ability to comply for the duration of these orders and that the orders had not served to curb his offending. The CCO assessed the respondent as not being a suitable candidate for community supervision given his lack of accountability, lack of victim empathy, lack of strategies to address his consistent offending pattern, lack of employment skills and lack of prosocial supports in the community.
2. In October 2018 the respondent was, while in custody, subjected to a 'treatment assessment' by the Department of Justice. In the Treatment Assessment Report that was prepared to record the results of the assessment the writer of the report stated that based on his VRS score the respondent presented at a high risk of violent reoffending. The writer identified the static factors that contributed to the respondent's risk of reoffending to be his age at the time of being convicted of his first violent offence, his number of juvenile convictions, his history of violent behaviour and the instability of his family relationships and childhood. The writer identified the most relevant dynamic factors contributing to the respondent's risk of reoffending to be his substance use and emotional control issues 'as well as the instability of his relationships and the presence of criminal peers and attitudes'. The writer noted that the respondent also presented with 'concerns about the presence of a violence cycle and some degree of cognitive distortions'. The writer assessed the respondent as appearing to be at the 'pre contemplation stage of change in regard to areas such as his criminal peer associations, substance use and violence cycle as he has limited awareness of the need to address these areas and is yet to demonstrate sustained efforts to change his behaviour in the community'. The writer concluded her report by recommending that the respondent engage in a Violent Offender Treatment Program and a Pathways Program in an attempt to assist him to address his substance use issues.
3. It was presumably due to the recommendation made in the Treatment Assessment Report that the respondent, in February 2019, commenced but ultimately failed to complete the Pathways Program.
4. On 30 April 2019 the respondent refused to transfer from Albany Prison to Casuarina Prison so as to enable him to participate in the Violent Offender Intensive Treatment Program.
5. On 17 June 2019 the respondent's application for release on parole was refused. The PRB's grounds for refusing the application were that the respondent was at high risk of reoffending, had not identified suitable accommodation, had failed to provide a release plan that included sufficient protective strategies and had unmet treatment needs. In relation to the respondent's unmet treatment needs the PRB noted that the respondent had withdrawn from the Pathways Program and had refused to be transferred so as to undertake the Violent Offender Intensive Treatment Program.
6. On 3 April 2020 the respondent made a further application for release on parole. The PRB refused the application. The PRB's reasons for refusing the application were the same as its reasons for refusing the respondent's previous application.

Decision Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?

1. The respondent is a 32-year-old man who throughout his life has committed a large number of offences, a significant number of which have involved violence or threats of violence. On a number of occasions the violence or threats of violence have involved the use of a weapon of some sort. The respondent committed his most recent string of offences, which included the 'serious offence' of armed robbery, within 10 weeks of having been released from a term of imprisonment for offences of stealing, attempted aggravated armed robbery and aggravated armed robbery.
2. The respondent has to date demonstrated little insight into the seriousness of his offending and little concern for its impact on others.
3. The respondent's past performance while under supervision in the community has been poor.
4. The respondent has a number of significant treatment needs, not the least of which is his ongoing use of alcohol and illicit drugs, his use of these substances being a principal cause of his offending behaviour. However, the respondent has not demonstrated any significant commitment to addressing his outstanding treatment needs. He still requires further rehabilitative treatment.
5. The most recent assessment of the respondent's risk of committing further offences of violence which was conducted in October 2018 is that he is at a high risk of reoffending in such a manner. This assessment is consistent with the earlier assessment of the psychologist in June 2014.
6. In these circumstances, and having regard to the matters specified in s 7(3) of the Act, I am satisfied in accordance with s 46(1) of the Act. More specifically, I am satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender; that is, might find that it is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the respondent in order to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence such as robbery and/or assault with intent to rob. I will therefore, as sought by the applicant, make orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act.

Should a detention order or an interim supervision order be made?

1. The question that remains is whether I should make an order pursuant to 46(2)(c)(i) of the Act that the respondent be detained in custody until the determination of the restriction order application, or an order pursuant to s 58(5) of the Act that the respondent be placed on an interim supervision order until the determination of the restriction order application.[12] Of course, it should not be overlooked in this context that it is open to me, given the non‑prescriptive wording of both s 46(2)(c)(i) and s 58(5), to make neither a detention order nor an interim supervision order pending the determination of the restriction order application. If neither a detention order nor an interim supervision order is made, the result will be that the respondent will be released on the PSSO which will come into effect on the day of his release and remain in force for 12 months. The conditions of the PSSO as follows:
   1. To report to Geraldton Adult Community Corrections (ACC) within 72 hours of release;
   2. To notify a CCO of any change of address or place of employment within two clear working days after the change;
   3. To comply with the lawful directions of a CCO;
   4. To have no direct or indirect contact with victims of the index offences;
   5. To attend random urinalysis for all illicit substances as directed by a CCO and to provide a valid sample;
   6. Not to use or be in possession of any illicit drug including cannabis;
   7. To attend programs and counselling as directed; and
   8. To advise a CCO of any change of residential address and not to change that address without prior approval of the CCO.
2. The applicant has provided a draft version of the interim supervision order (the draft interim supervision order) that it contends should be made in relation to the respondent in the event that I reject its primary submission that the respondent should be detained in custody pending the determination of the restriction order application. The draft interim supervision order provides for the respondent's release from 21 July 2021 and contains a total of 29 conditions. Many of the draft interim supervision order conditions cover substantially the same ground as the PSSO conditions. However, the draft interim supervision order does contain some significant conditions which do not form part of the PSSO, most particularly the following:
   1. The standard conditions under s 30(2) of the Act that the respondent comply with any direction of a CCO to subject himself to electronic monitoring and a curfew as provided for by s 31 and s 32 of the Act respectively (which must be included in any interim supervision order by reason of s 58(6) of the Act);
   2. A condition that the respondent reside at a specified address (the proposed address);
   3. Conditions preventing the respondent from consuming alcohol without the prior approval of a CCO and requiring the respondent to submit to testing for alcohol; and
   4. Conditions preventing the respondent from being in the presence of persons who are using alcohol or illicit drugs, and from being in licensed premises or in any place in which illicit drugs are being used.
3. By reason of s 58(2), before I can make an interim supervision order under s 58(5) the following requirements must be met:
   1. There must be proceedings on a restriction order application made pursuant to s 35(1) that are pending;[13]
   2. The offender to whom the pending proceedings relate must not be in custody;[14] and
   3. I must be satisfied that it is desirable to make an order under the section in order to ensure adequate protection of the community.[15]
4. In the respondent's case proceedings on a restriction order application made under s 35(1) are pending. Therefore, the first requirement is met.
5. As to the second requirement, the respondent, as I have previously indicated, is currently in custody serving the sentence for the index offences and is due to be released on 21 July 2021. Therefore, on the face of it, the second requirement for the making of an interim supervision order under s 58(5) is not met. However, in The State of Western Australia v CA[16] Fiannaca J interpreted s 27A(2) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), which was the equivalent provision to s 58(2)(b), to include the situation in which the offender will not be in custody on a specified future date before the application for the Division 2 order (this being the equivalent of an application for a restriction order under the Act) is finally determined.
6. For reasons of judicial comity I should adopt Fiannaca J's interpretation of s 27A(2) of the DSO Act and apply it to s 58(2)(b) of the Act unless I am convinced that the interpretation is wrong. Although I consider that there is a real question as to whether s 58(2)(b) can be interpreted so as to apply to a situation such as the present where the offender is in custody as a sentenced prisoner at the time of the determination of the application for the orders pursuant to s 46(2) of the Act, I am not, having read the relevant paragraphs of Fiannaca J's decision, convinced that his Honour's interpretation of s 27A(2) of the DSO Act is wrong. In these circumstances I will adopt and apply his Honour's interpretation of s 27A(2) of the DSO Act to s 58(2)(b).[17] Accordingly, given that the respondent is due to be released on 21 July 2021, which will be before the restriction order application is finally determined, I find that the second requirement specified in s 58(2)(b) is met in the respondent's case.
7. It follows from my findings that the first two requirements specified in s 58(2) are met that it is open to me to make an interim supervision order under s 58(5) provided that I am satisfied that it is desirable to do so to ensure adequate protection of the community.
8. It is at this point that I come back to the conditions of the PSSO. Obviously, if I am satisfied that the adequate protection of the community will be ensured by the respondent being released on the PSSO, there will be no proper basis for me to conclude that it is desirable to make an interim supervision order to ensure adequate protection of the community.
9. I am not satisfied that the adequate protection of the community will be ensured by the respondent being released on the PSSO. I am not so satisfied because the PSSO does not contain a number of conditions that are included in the draft interim supervision order and which are, in my opinion, crucial to the management of the respondent's risk of committing further offences. The conditions I am referring to in this context are the residential condition, the curfew condition and the conditions prohibiting the respondent from consuming alcohol. I am satisfied that it is desirable that the respondent be subject to these more stringent conditions, as compared to the conditions of the PSSO, to ensure adequate protection of the community.
10. As to the condition providing for the electronic monitoring of the respondent, the respondent's offending history does not reveal that his location at any given time is relevant to the risk of him committing offences. There is nothing to suggest that there are particular areas or zones that give rise to a risk of the respondent offending from which he needs to be excluded. Rather, his offending is generally impulsive and associated with substance use. Nonetheless the availability of electronic monitoring will assist in ensuring the respondent's compliance with the curfew condition if he is released on an interim supervision order. In any event, the existence of the relevant condition, which must be included in any interim supervision order by reason of s 58(6) of the Act, does not mean that the respondent must be subjected to electronic monitoring. Rather, the existence of the condition means only that the respondent can be required to subject himself to electronic monitoring at the direction of a CCO. I would not expect that such a direction would be made unless there was some justifiable reason for doing so relevant to the respondent's risk of committing further offences.
11. Having decided that the adequate protection of the community will not be ensured by the respondent being released on the PSSO, the question that remains is whether this objective will in fact be achieved by releasing the respondent on an interim supervision order in the terms of the draft interim supervision order, or whether it is necessary to make a detention order pending the determination of the restriction order application.
12. In determining if I should, in the exercise of my discretion, make an interim supervision order rather than a detention order pending the determination of the restriction order application, the factors to be taken into account include the following:[18]
    1. The likelihood of the applicant ultimately satisfying the court that the respondent is a high risk serious offender, to the extent that this can be assessed;
    2. The extent to which the court can be satisfied not only that the respondent will adhere to the conditions of an interim supervision order but also that adherence to the conditions of an interim supervision order will ensure the adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community; and
    3. The undesirability of depriving the respondent of his liberty prior to the restriction order application being finally determined, bearing in mind that the application may ultimately be refused.
13. As to the first of the above referred to factors to be taken into account in determining if I should make an interim supervision order rather than a detention order pending the determination of the restriction order application, I am satisfied on the basis of what is before me that there are reasonably strong prospects of the applicant satisfying the court that the respondent is a high risk serious offender.
14. With respect to the second of the above referred to factors, the applicant submits that the court cannot be satisfied that releasing the respondent on an interim supervision order will ensure adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community. The applicant's sole basis for this submission relates to the residential condition of the draft interim supervision order. More particularly, the applicant's submission is that the proposed address is unsuitable for the respondent to be released to. The applicant's submission in this regard is based on information provided by officers from the Community Offender Management Unit (COMU) on Monday 19 July 2021 (not on affidavit) and, by way of further clarification, during today's hearing. The information is as follows:
    1. The proposed address is the residence of the respondent's cousin, Ms Claudia Narrier, Ms Narrier's partner, and their two young children aged 5 and 3. Ms Narrier is the respondent's sponsor;
    2. On Friday 16 July 2021 an assessment of the proposed address was completed by ACC and was deemed unsuitable for the following reasons:

(1) Ms Narrier's partner is a user of illicit substances although he is not permitted by Ms Narrier, and does not, use substances at the proposed address;

(2) Ms Narrier has applied for, an obtained, from the Department of Racing, Gaming and Liquor, an order that the proposed residence is an alcohol free premises;

(3) Although the proposed address has an alcohol use restriction, Ms Narrier has disclosed that she recently consumed alcohol on the premises while she was experiencing stress; and

(4) There have been instances of domestic violence at the proposed address that have occurred between Ms Narrier and her partner. Ms Narrier has acknowledged that she recently called the police to the proposed address so that a police order could be served on her partner. Concerns are held for how any instances of domestic violence would impact on the respondent.

1. I note that prior to receiving the information from COMU in relation to the proposed address the applicant's position was that the appropriate order was for the respondent to be released on an interim supervision order containing the conditions set out in the draft interim supervision order.
2. The respondent does not seek to take issue with the information that COMU has provided about the proposed address. However, the respondent submits that despite the information provided the proposed address is suitable for him to be released to. In this regard the respondent makes the following points:
   1. The proposed address is in a regional location and is therefore far removed from many of the respondent's metropolitan based anti-social and illicit substance using associates;
   2. Ms Narrier does not permit illicit substances or alcohol to be consumed at the proposed address and there is no evidence to suggest that this is occurring or has occurred, save for the one occasion involving Ms Narrier herself which she has frankly acknowledged;
   3. Ms Narrier is, as evidenced by her attitude towards the use of alcohol and illicit substances at the proposed address, and her frank acknowledgment of the one occasion on which she consumed alcohol at the proposed address, endeavouring to be prosocial and is therefore likely to be a positive influence on the respondent; and
   4. There is no evidence that any of the instances of domestic violence has resulted in charges being laid and Ms Narrier has, in any event, demonstrated a willingness to call for police assistance to deal with the conduct of her partner if she considers this to be necessary.
3. For the reasons advanced by the respondent I am, contrary to the position taken by the applicant, satisfied that the proposed address is a suitable address for the respondent to be released to. The proposed address is a long way from the metropolitan area and is, on what I have been told, an 'alcohol free zone' and an 'illicit substance free zone'. Given the respondent's risk factors the importance of these matters should not to be underestimated. Moreover, although I acknowledge the possibility that the respondent will seek to involve himself in any instances of domestic violence if he considers this to be necessary to protect his cousin, given the paucity of detail in the information before me in relation to the regularity of instances of domestic violence, or the precise nature and extent of the violence, and bearing in mind the undesirability of depriving the respondent of his liberty prior to the restriction order application being determined, I do not consider this possibility to of itself warrant the conclusion that the respondent should not be released to the proposed address. In summary, I am satisfied on the information before me that releasing the respondent on an interim supervision order which contains the relatively stringent conditions set out in the draft interim supervision order, including the residential condition, will ensure adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community.
4. I will therefore make an order pursuant to s 58(5) of the Act that the respondent be placed on an interim supervision order in the terms of the draft interim supervision order until the determination of the restriction order application. If the respondent fails to comply with any of the conditions of the interim supervision order he will be able to be immediately returned to this court and will, in such circumstances, face the prospect of being made the subject of a detention order pending the determination of the restriction order application.
5. Obviously, my decision to make an interim supervision order cannot in any way be seen as binding the judge who ultimately hears the restriction order application. If the judge who ultimately hears the restriction order application does decide that the respondent is a high risk serious offender, it will of course be open to the judge to decide, on the basis of the more extensive material that will as a result of the orders that I am about to make be before them, that it is necessary to make a continuing detention order in order to ensure the adequate protection of the community. Clearly, the respondent's performance on the interim supervision order is likely to have a significant bearing on the judge's decision in this regard.

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

[1] The State of Western Australia v Narrier [2018] WASCSR 3.

[2] The respondent is an 'offender' for the purposes of the Act and a 'serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act: see the definition of 'offender' in s 3 of the Act, par (a) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act. Given that the respondent is to be released on 21 July 2021 the application was, as required by s 35(3) of the Act, made within a period of one year of the date on which the respondent is to be released from custody.

[3] Act, s 3. After the applicant filed the application for the restriction order to be made in relation to the respondent, the court fixed 20 July 2021 for the preliminary hearing.

[4] A 'restriction order' is a continuing detention order as defined in s 26(1) of the Act or a supervision order as defined in s 27(1) of the Act: Act, s 3.

[5] The State of Western Australia v Ryan [2020] WASC 352 [18].

[6] Act, s 46(2)(a). The terms 'psychiatrist' and 'qualified psychologist' are defined in s 3 of the Act.

[10] The State of Western Australia v Nelson [2021] WASC 215 [10]. See also The State of Western Australia v PAS [2020] WASC 405 [20] - [21]; The State of Western Australia v Winder [2021] WASC 65 [16].

[11] Act, s 5(1)(a) and definition of 'serious offence' in s 3.

[12] It is appropriate to refer to an order made under s 58(5) as an 'interim supervision order' even though this term only appears in the heading to s 58 because the term 'interim supervision order' is defined in s 3 of the Act to mean an order under s 58.

[16] The State of Western Australia v CA [2020] WASC 164 [22] - [33].

[17] I adopted a similar approach in The State of Western Australia v Ratcliff [2021] WASC 31 [42] - [43]. A similar approach was also adopted in The State of Western Australia v Hart [2021] WASC 205 [32] ‑ [33].

[18] Director of Public Prosecutions for Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [2006] WASC 160 [62] ‑ [64]; The State of Western Australia v Ryan [21].