THE STATE OF WESTERN AUSTRALIA -v- QUARTERMAINE [No 5] [2024] WASC 226 (24 June 2024)

1. Section 53 of the HRSO Act specifies the circumstances in which the applicant may apply for an order under s 55. This includes where an offender is charged with an offence under s 80(1) of the HRSO Act. It is not in dispute that the respondent falls within the terms of this section.
2. Section 55 of the Act relevantly provides as follows:

(1) If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must -

(a) rescind the supervision order and make a continuing detention order in relation to the offender; or

(b) except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or

(c) except as provided in section 29, make an order affirming the supervision order without amendment or extension.

(2) If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must -

(a) rescind the supervision order and make a continuing detention order in relation to the offender; or

(b) except as provided in section 29, make an order -

(i) amending the conditions of the supervision order; or

(ii) amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.

(3) In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.

1. A 'continuing detention order' is, pursuant to s 26(1) of the HRSO Act, an order that 'the offender be detained in custody for an indefinite term for control, care, or treatment'. A 'supervision order' is, pursuant to s 27(1) of the HRSO Act, an order that 'the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30'. If a court makes a supervision order, there are conditions that the court is required to impose (s 30(2) of the HRSO Act) and conditions that may be imposed (s 30(3), s 30(5) and s 30(6) of the HRSO Act).
2. Section 29 of the HRSO Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, the offender will substantially comply with the standard conditions of the order. The onus of proof is on the respondent pursuant to s 29(2) of the HRSO Act. The standard conditions of a supervision order are those set out in s 30(2) of the HRSO Act, and include conditions as to reporting, notification of changes of circumstances, supervision by a Community Corrections officer (CCO), not leaving the State of Western Australia without permission, not committing a serious offence and being subject to electronic monitoring.
3. The words 'will substantially comply with' in s 29(2) of the HRSO Act are identical to those that appeared in provisions of the Dangerous Sexual Offenders Act 2006 (WA) and bear the same meaning. These words should be given their ordinary meaning, consistent with the purposes of the HRSO Act and the general conditions of a supervision order, as well as the overall object of the HRSO Act which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the offender will commit a serious offence.
4. Even if the Court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions set out in s 30(2), this will not necessarily mean that a supervision order should be amended, extended or affirmed. This is because, by reason of s 55(3), the paramount consideration in deciding whether to make an order under s 55(1) is the need to ensure adequate protection of the community. Accordingly, even if the Court is satisfied that an offender will substantially comply with the standard conditions of a supervision order, there may be circumstances in which, despite such a finding, the Court is not satisfied that releasing the offender on a supervision order will ensure adequate protection of the community.

1. The contraventions comprise 14 summary charges to which the respondent pleaded guilty in the Magistrates Court.[8] The respondent admits that he contravened his supervision order.
2. On 3 March 2022, the respondent was charged with two offences, namely stealing contrary to s 378 of the Criminal Code and using a prohibited drug (amphetamine) contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA).[9] On 4 March 2022, the respondent was charged with one charge of disorderly behaviour in a police station contrary to s 74A(2)(b) of the Criminal Code (which charge was subsequently substituted with one charge of committing an obscene act in a police station contrary to s 202(1)(b) of the Criminal Code), and one charge of assaulting a public officer contrary to s 318(1)(d) of the Criminal Code.
3. On 3 March 2022, the respondent was charged with five charges of contravening his supervision order contravening s 80(1) of the HRSO Act.
4. On 20 April 2022, five further contravention charges were preferred pursuant to s 80(1) of the HRSO Act.
5. The stealing charge involved the respondent stealing a vacuum cleaner form Kmart to the value of $99.00. The charge of using a prohibited drug, namely amphetamine, arose from the respondent providing a positive sample of urine for analysis.
6. The conviction for assaulting a public officer involved the respondent resisting police officers who were attempting to place him in a cell in the Perth Watch House after his arrest. The respondent commenced fighting the officers, which resulted in two officers and the respondent falling to the floor. During the struggle the respondent, whilst lying on his back, kicked a police officer three times to his neck, chin and chest area. The assault resulted in moderate pain to the officer's neck, head and chest area.
7. The charge of committing an obscene act in a police station contrary to s 202(1)(b) of the Criminal Code involved the respondent pulling down his trousers and holding his erect penis and masturbating intermittently for 20 minutes in the presence of staff at the lockup.
8. The ten contravention charges comprised breaches of the conditions of his supervision order, namely, leaving his residential address between 6.07 pm and 6.31 pm without seeking approval from his CCO thereby breaching his curfew; whilst subject to a curfew, visited a female without having obtained prior approval from his CCO; failing to comply with the instruction of his treating psychiatrist; failing to meet with a clinical nurse to administer his medication; and failing to attend an appointment with Uniting Church WA. In addition, further contravention charges arose from the respondent committing the criminal charges.
9. On 13 May 2022, the respondent pleaded guilty to all the charges, including the charges regarding the contravention of his supervision order. The learned Magistrate imposed a term of immediate imprisonment of 7 months for the charge of assaulting a public officer contrary to s 318(1)(d) of the Criminal Code. The immediate term of imprisonment was backdated to commence on 4 March 2022. Fines were imposed in respect to the charges of contravening s 80(1) of the HRSO Act and the other charges.

1. In The State of Western Australia v Quartermaine [No 2],[10] Smith J outlined the respondent's family and social history,[11] his criminal history,[12] his medical conditions,[13] his compliance with antipsychotic medication,[14] history of substance abuse,[15] and assessments undertaken of his intellectual ability.[16] I take into account the antecedents of the respondent as outlined by Smith J. It is not necessary that I reproduce that material.
2. At the hearing on 28 April 2023, the State tendered Volumes 1 and 2 of the Book of Materials. I received reports from Dr Wojnarowska, Consultant Psychiatrist, dated 19 January 2023 and an Addendum Report dated 21 November 2021 respectively. I received a report from Mr Carmichael, Adult Community Corrections Officer, addressing the respondent's treatment progress, dated 24 January 2023. I also received a report from Ms Korda, Senior Forensic Psychologist, addressing the progress of the respondent's treatment, dated 22 December 2022.
3. Dr Wojnarowska, Mr Carmichael and Ms Goode gave evidence at the hearing of the contravention proceedings on 28 April 2023.
4. At the hearing on 19 June 2024 the State tendered Volumes 3 and 4 of the Book of Materials.[17]
5. I also received the respondent's NDIS plan dated 24 January 2023, 4 October 2023 and the Approved NDIS Plan dated 7 November 2023.[18] The Approved NDIS Plan provides significant support for the respondent in the community.
6. In respect to accommodation, I received a Desktop Spatial Analysis assessment of the proposed accommodation.[19] The assessment identifies possible risks in the area but I am satisfied that the proposed accommodation is suitable for the respondent.

1. Dr Wojnarowska stated in her report of 19 January 2023 that the respondent's Static‑99R (2016 revision) score of 8 remains unchanged. His score places him in the well above average risks. In routine samples with the same score the five year recidivism rate of committing a further sexual offence is between 36% to 45%.
2. In respect to the PCL‑R instrument that assesses psychopathy traits the respondent's overall score was low. However, on antisocial behaviour facets his score was elevated due to his history of offending, supervision failure, poor adjustment and poor behavioural control. Dr Wojnarowska said that the respondent has used illicit substances whilst in the community for a short period of time when subject to his supervision order. Further, he continues to display limited insight, has a tendency to project blame on others and has difficulty with containing negative emotions resorting at times to interpersonal violence.
3. Dr Wojnarowska said the most likely scenario for the respondent engaging in future violence would involve the respondent wandering aimlessly, not engaging in any activities and not being subject to formal supervision. Dr Wojnarowska stated her view that if this was to occur, the respondent would then return to illicit substance use and engage in general criminal activity, such as burglaries, to support his drug habit. The respondent, not having a regular partner, would then struggle to secure a short‑term intimate partner. In such circumstances, the respondent is likely to commit sexual offences against a female occupant of a house that he enters unlawfully.[20]
4. Dr Wojnarowska said that given the respondent's historically high sexual drive and limited sexual outlets, he is likely to commit sexual offences against female occupants of a house he would break in to, irrespective of their age. Further, there could be an escalation to sexual penetration and physical assault of the victim. Another likely future risk scenario for sexually motivated violence would be against his intimate partner in the context of her refusing to have sex. Dr Wojnarowska stated that in those circumstances, the violence may escalate to the respondent inflicting a severe physical assault on the victim.
5. Dr Wojnarowska expressed the opinion that the respondent was at a high risk of engaging in serious sexual and nonsexual violence if not subject to the HRSO Act.
6. Dr Wojnarowska stated that she had reviewed the respondent's proposed supervision order conditions and was of the opinion that the supervision order should include a restriction on him frequenting parks where he is likely to encounter children who might become unintentional victims of his non‑contact sexual offending.
7. Dr Wojnarowska stated that the respondent should be placed in a psychiatric hostel‑type accommodation that would provide support and supervise his medication.

1. During her testimony on 28 April 2023, Dr Wojnarowska stated that she was not supportive of the respondent returning to live with his mother due to the antisocial behaviour conducted at that residence.[21] Dr Wojnarowska said the ideal accommodation would be supported accommodation because the respondent is unable to function independently due to the presence of mental illness and cognitive deficits.[22] Dr Wojnarowska stated that for the respondent to be given a sufficient level of support, three to four hours per day via a support worker would be sufficient to manage the risk in the community.[23]

Dr Wojnarowska's Addendum Report dated 21 November 2023

1. In Dr Wojnarowska's Addendum Report dated 21 November 2023, Dr Wojnarowska stated that her diagnostic assessment has not changed since her report of 19 January 2023.[24] Dr Wojnarowska stated that the respondent has a history of psychotic symptoms, including auditory hallucinations, somatic delusions and passivity phenomena. His illness has been in remission whilst in prison due to forced abstinence, and having a structured and restricted lifestyle. However, historically symptoms return when the respondent ceases his medication or uses illicit substances.[25]
2. Dr Wojnarowska expressed the opinion that based on the respondent's clinical presentation, she agrees with the diagnosis of schizophrenia with negative syndrome (avolition and amotivation), as well as cognitive impairment most likely secondary to chronic schizophrenia and chronic substance abuse. Dr Wojnarowska stated that the respondent fulfills the criteria for Antisocial Personality Disorder.[26]
3. Dr Wojnarowska stated that her assessment of the risk of the respondent reoffending has not changed since her previous report. Dr Wojnarowska stated that the respondent has numerous outstanding treatment needs that require specialised psychological service and extensive supports in the community.
4. Dr Wojnarowska expressed the opinion that with the proposed NDIS plan, the respondent's risk of reoffending may be managed with a supervision order in the community.

1. Given that the respondent has contravened the conditions of his present supervision order, I must determine whether the supervision order should be rescinded and a continuing detention order made, or whether the respondent should be permitted to remain on the supervision order either in its present terms or on amended terms. In deciding this question the paramount consideration is the need to ensure adequate protection of the community.
2. I am unable to release the respondent on a supervision order unless the respondent satisfies me on the balance of probabilities that he will substantially comply with the standard conditions of the supervision order.
3. I am satisfied that on the balance of probabilities the respondent will substantially comply with the standard conditions of the supervision order. The State did not submit that I should find otherwise. In making that determination, I am mindful that the respondent did not commit a serious offence whilst in the community subject to his supervision order. Further, I note that Dr Wojnarowska expressed the opinion that there is now adequate NDIS support for the respondent in the community. Further, the respondent has appropriate accommodation.
4. Being satisfied that the respondent would substantially comply with the standard conditions, I must determine whether to affirm the supervision order or rescind the supervision order and make a continuing detention order, or amend the supervision order.
5. The State has submitted that the respondent may be released subject to amendments outlined in the proposed amended supervision order. The further conditions comprise a requirement that the respondent engage with the NDIS providers as directed by the CCO and ensure that any persons present in the respondent's residence are aware in respect to the obligation to comply with monitoring of curfew requirements.
6. I am satisfied that the submission of the State was properly made. The evidence establishes that the respondent's risk may be adequately managed in the community. Dr Wojnarowska expressed the opinion that the risk may be managed in the community if the respondent is subject to the conditions of the amended supervision order.
7. Accordingly, the respondent will be released into the community subject to the amended supervision order.
8. The amended supervision order is attached and marked as Annexure A.

AS AMENDED BY THE HON JUSTICE MCGRATH ON 19 JUNE 2024

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the HRSO Act, makes a supervision order in relation to the Respondent, for a period of 10 years from 6 December 2021, not being a date earlier than 21 days from the date this Order is made, on the following conditions:

1. Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth within 48 hours of release to the order time and advise the officer of your current name and address.
2. Report to, and receive visits from, a CCO as directed by the court.
3. Notify a CCO of every change of your name, place of residence, or place of employment at least 2 days before the change happens.
4. Be under the supervision of a CCO, which includes comply with any reasonable direction of the officer (including direction for the purposes of sections 31 or 32).
5. Not leave, or stay out of, the State of Western Australia without the permission of a CCO.
6. Not commit a serious offence during the period of the Order.
7. Be subject to electronic monitoring under section 31.

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

1. Report to, and receive visits from, a CCO at times and at places as directed by the CCO and comply with the lawful orders and directions of a CCO.
2. Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.

Medications/mental health and attendance at programs/treatment

1. Attend all appointments and receive visits from any medical practitioner, psychiatrist, nurse, social worker, psychologist, support service and/or support person as directed by a CCO.
2. Undertake any medication regime as prescribed by a medical practitioner(s) and as directed by a CCO, and comply fully with that treatment (and any testing to monitor your compliance with that treatment as directed by a CCO).
3. Comply with the instructions of the treating psychiatrist with regard to mental health treatment and medications.
4. Permit any medical practitioner, psychiatrist, nurse, social worker, psychologist, support service and/or support person to disclose details of your medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment or programs to the Department of Justice.
5. Permit any medical practitioner, psychiatrist, nurse, social worker, psychologist, support service and/or support person to advise the CCO immediately if they become aware, or suspect, that you have, or intend to, cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.
6. Engage with any providers that may be engaged to provide you with any services and/or supports funded under your National Disability Insurance Agency (NDIA) Plan as directed by a CCO.

1. Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody and thereafter report to and receive visits from WA Police at times and at locations as directed by the Officer-in-Charge of SOMS or his/her delegate.
2. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).
3. If requested, permit WA Police to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the WA Police believes to contravene the conditions of the order.
4. Remain at your premises and/or vehicle when WA Police conduct a search under the HRSO Act.

1. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this Order, including confidential information.
2. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.

1. Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
2. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
3. Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring.

1. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
2. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 (WA) and your use is in accordance with the instructions of the provider.

1. Be subject to a curfew, pursuant to section 32 of the HRSO Act, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
2. When subject to a curfew under this order, present yourself for inspection at the front door or outside the front of the house of your approved address, or speak on the telephone, to any CCO or WA Police or their agent monitoring your compliance with the curfew.
3. When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

1. Report at your next contact with your CCO, the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.
2. As directed by your CCO, make disclosure regarding your past offending and the current Order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or WA Police.
3. Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO.
4. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by WA Police, including accompanying such persons to an appropriate location for such testing to take place.
5. Provide a valid sample pursuant to condition 34.
6. Not to possess, or consume, or purchase, or use alcohol.
7. Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:

(a) For the purpose of averting or minimising a serious risk of death or injury to yourself or another person.

(b) For a purpose, and for a duration, approved in advance by a CCO.

(c) On the order of a CCO or WA Police.

1. Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drug, unless the identity of such person is approved in advance by a CCO.
2. Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place.
3. Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
4. Advise a CCO of every telecommunication device in your possession and upon request, permit a CCO or WA Police to access your telecommunications devices, at any location nominated by the CCO or WA Police, for the purpose of ascertaining your activities and associations.
5. Not allow any person other than a CCO or WA Police access to any telecommunication device referred to in condition 41, without prior approval of the CCO.
6. Not to delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data on your telecommunication devices, including but not limited to calls, Short Message Service (SMS) or logs capable of identifying your activities and associations.
7. Not to attend a park where that park contains children's play equipment.

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 Quartermaine [2021] WASC 68.

[2] The State of Western Australia v Quartermaine [No 2] [2021] WASC 267.

[3] The State of Western Australia v ACW [No 4] [2023] WASC 14.

[4] The State of Western Australia v Quartermaine [No 3] [2023] WASC 50.

[5] The State of Western Australia v Quartermaine [No 3] [2023] WASC 50 [48].

[6] The State of Western Australia v Quartermaine [No 4] [2023] WASC 66.

[8] Exhibit 1, Book of Materials Volume 1, Prosecution Notices and Statement of Material Facts, 251 ‑ 305.

[9] Criminal History of the Respondent compiled 18 June 2024.

[10] The State of Western Australia v Quartermaine [No 2] [2021] WASC 267.

[11] The State of Western Australia v Quartermaine [No 2] [2021] WASC 267 [22] - [30].

[12] The State of Western Australia v Quartermaine [No 2] [2021] WASC 267 [31] - [39].

[13] The State of Western Australia v Quartermaine [No 2] [2021] WASC 267 [40] - [45].

[14] The State of Western Australia v Quartermaine [No 2] [2021] WASC 267 [52] - [54].

[15] The State of Western Australia v Quartermaine [No 2] [2021] WASC 267 [46] - [51].

[16] The State of Western Australia v Quartermaine [No 2] [2021] WASC 267 [59] - [68].

[17] Exhibit 5, Book of Materials Volumes 3 and 4.

[18] Exhibit 5, Book of Materials Volume 3, 642.

[19] Exhibit 6, Desktop Spatial Analysis of Accommodation, filed 14 March 2024.

[20] Exhibit 1, Book of Materials Volume 2, Report of Dr Wojnarowska dated 19 January 2023 [129].

[24] Exhibit 5, Book of Materials Volume 3, Addendum Report of Dr Wojnarowska dated 21 November 2023 [18].

[25] Exhibit 5, Book of Materials Volume 3, Addendum Report of Dr Wojnarowska dated 21 November 2023 [19].

[26] Exhibit 5, Book of Materials Volume 3, Addendum Report of Dr Wojnarowska dated 21 November 2023 [20] ‑ [21].