THE STATE OF WESTERN AUSTRALIA -v- RYAN [2020] WASC 352 (2 October 2020)

(b) for the provision of any relevant report by a Department of Justice officer; and

(c) an order that Mr Ryan be detained in custody until the hearing of the restriction order application, or (pursuant to s 58 of the Act) Mr Ryan be released subject to an interim supervision order (on the conditions set out in a minute, filed by the State on 22 September 2020).

1. 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 s 7, find that Mr Ryan is a high risk serious offender.[1]
2. The decision on a preliminary hearing is the first step in a process which might lead to the indefinite detention of an offender following the conclusion of a sentence of imprisonment, on the grounds that it is necessary to make such an order to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.[2]
3. At the preliminary hearing on 23 September 2020, counsel for Mr Ryan informed the court (for the purposes of the preliminary hearing only) that it is accepted that there was sufficient material before the court to form a belief that a court might, at a div 3 hearing, find that Mr Ryan is a high risk serious offender. Having heard counsel for both parties, I accept this concession is properly made.
4. I have, however, assessed the evidentiary material put before the court by the State to assess the strength of the State's case, in order to determine whether the court should exercise its discretion to order that Mr Ryan be detained in custody, or whether he should be released on an interim supervision order.
5. At the conclusion of the hearing on 23 September 2020, I found that the orders sought by the State in s 46(2)(a) and (b) and s 58 should be made, and that Mr Ryan should be released on an interim supervision order on 7 October 2020 (being the date upon which Mr Ryan would otherwise be released from custody) on the conditions sought by the State.
6. These are my reasons for making these orders.

1. On 9 July 2020, the Act received Royal Assent, and as a result, pt 1 of the Act came into effect.
2. On 26 August 2020, with the exception of s 91, sch 1, div 2, subdiv 1, item 1, the remaining provisions of the Act came into force by proclamation, pursuant to s 2(1)(c) and s 122 of the Act.
3. On the same day the Act commenced, the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) was repealed by s 123 of the Act.
4. Under s 35 of the Act, the State may file an application for a restriction order in relation to an offender who is 'a serious offender under custodial sentence who is not a serious offender under restriction'[3] where there 'is a possibility that the offender might be released from custody within the period of 1 year after the application is made'.
5. Section 35 of the Act applies whether the custodial sentence was imposed before or after the commencement of the section.

1. The threshold test for determining whether there are reasonable grounds for belief that a court might find an offender is a high risk serious offender, is in essence the same as the test enunciated by McKechnie J in Director of Public Prosecutions (WA) v Free[4] when determining whether there are reasonable grounds for belief that a court might find a respondent is a serious danger to the community, under the DSO Act.
2. In The State of Western Australia v ZSJ, Justice Fiannaca remarked shortly after the Act came into operation that:[5]

[T]he HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether he is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.

1. In the first decision of this court in which orders were made following a preliminary hearing under the Act, Allanson J in The State of Western Australia v Cox, summarised the threshold test to be met in a div 2 hearing, as follows:[6]

In a preliminary hearing, a judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made ‑ that is, a judge might be satisfied to a high degree of probability that it is necessary to make an order for continuing detention or supervision of the respondent to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. To say that something might occur is to say that it is possible.

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. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. That is the threshold that must be crossed before ordering that the respondent be examined by a psychiatrist and qualified psychologist whose reports will form the primary evidence on the application for a restriction order.

1. Whilst the threshold test to be met in a preliminary hearing has been summarised in many decisions of the court, in which a preliminary hearing has been held under the DSO Act, the full text of what McKechnie J said is worthy of consideration in this matter, when assessing the strength of the case put by the State in this matter:[7]

An order should be made if there are reasonable grounds for belief that a court might find the respondent is a serious danger to the community. 'Reasonable grounds for belief' are words of general application. They most commonly arise in three situations.

...

The context where the expression is found is important. Here the context is not a supervisory function of a court in respect of an administrative act, or the ascertainment of criminal responsibility. The decision to declare that a person is a dangerous sexual offender is exercised by a judge who may be presumed to be knowledgeable as to the law and the workings of the DSO Act. It is a check on the power of the executive in the same way that Burchett J acknowledged in Parker v Churchill (1985) 9 FCR 316:

'The duty, which the Justice of the Peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the Justice of the Peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.'

The decision a judge makes on a preliminary hearing is the first step in a process which might lead to the indefinite detention of a citizen following the conclusion of a sentence of imprisonment on the grounds that they are an unacceptable risk to the community.

A judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. 'Might' is an unusual word to use in the circumstances, being the past tense of 'may', yet describing an event that could occur in the future, not the past. 'May' means a possibility.

It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description. The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made. At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.

The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation. In George v Rockett [1990] HCA 26; (1990) 170 CLR 104:

'When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.'

'The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.'

The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.

1. In deciding whether Mr Ryan is a high risk serious offender, in a div 3 hearing the court must first be satisfied, pursuant to s 7(1) of the Act, that it is necessary to make a restriction order in relation to Mr Ryan to ensure adequate protection of the community against an unacceptable risk that Mr Ryan will commit a serious offence. In so deciding, the court must have regard to the matters listed in s 7(3) of the Act. Consequently, in a preliminary hearing, the court must form the requisite belief by regard to the matters listed in s 7(3) of the Act.
2. In Director of Public Prosecutions v Dodd, Simmonds J said:[8]

(1) At a preliminary hearing the judge must have a belief in the possibility that a later court will be satisfied to a high degree of probability that a person is a serious danger to the community: that belief is the threshold that must be crossed before a judge can order the respondent to undergo examination by two psychiatrists for them to undertake an evaluation of the respondent: Director of Public Prosecutions (WA) v Free [2010] WASC 255 [11] (McKechnie J).

(2) Although DSO Act s 14 directs attention to s 7, and necessarily to s 7(3), it is conceivable a person who may satisfy a criterion representing only one of those listed in s 7(3) may be the subject of a Division 2 order; and so, even in the absence at a preliminary hearing of any reports from a psychiatrist or other medical, psychiatric or psychological assessment, and on the basis of an offender's criminal record, there might be reasonable grounds for concluding a court might be persuaded that the offender is a serious danger to the community: Director of Public Prosecutions (WA) v Ugle [2014] WASC 58 [16] ‑ [17] (McKechnie J).

(3) However, reasonable grounds for such a conclusion will ordinarily require more than a simple recitation of offending behaviour; an assertion without proper evidential foundation that an offender presents a greater risk simply because, for example, they deny the offending for which they have been sentenced: Director of Public Prosecutions (WA) v Wesley [2014] WASC 125 [49] (McKechnie J).

(4) For the court to form that conclusion there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review: Director of Public Prosecutions (WA) v Samson [2014] WASC 199 [20] (McKechnie J).

1. In deciding whether there are reasonable grounds to form the requisite belief, the court is not bound to find the facts upon which the belief is founded by applying the rules of evidence. As Allanson J recently stated:[9]

If there is to be a reasonable ground based on the existence of facts, I need to look at the evidence. Section 46, read with s 84 and s 7, provides for the evidence on which the court may act in a restriction order proceeding. Although s 84(3) refers to the court acting on admissible evidence, s 84(4) and s 84(5) modify the rules of evidence to allow the court to receive into evidence material including 'any document relevant to the antecedents' of the offender; and any medical, psychiatric, psychological or other assessment relating to the offender; and any information indicating whether or not the offender has a propensity to commit serious offences in the future.

1. If the court forms the requisite belief, then the court is required to consider whether it should exercise its discretion to order that an offender be detained in custody or whether to make an interim supervision order until the div 3 hearing can be determined. The relevant principles that guide the court's discretion are as follows:[10]

There are a number of factors to be considered when determining whether or not I should immediately exercise my discretion to order that the respondent be detained in custody. Firstly there is the relative strength of the applicant's case that the respondent represents an unacceptable risk to the community and may commit an offence before the application can be finally heard.

Secondly, I need to consider the extent to which the court can be confident that any such risk will be sufficiently minimised by the respondent's adherence to the supervisory conditions and other requirements of his personal undertaking.

The final consideration is fundamental to the system of justice and is the undesirability of depriving the respondent of his liberty prior to the application being finally determined. In the event that the court ultimately dismisses the application or alternatively makes a supervision order, any interim detention of the respondent will have been unnecessary and possibly damaging to the long‑term interest that that community has in him maximising the chances of future rehabilitation.

1. At a preliminary hearing, if the court is satisfied 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, then the court must fix a day for the hearing of an application for a restriction order.[11]

1. The State's application is supported by an affidavit of Ms Heidi Karen Watson, affirmed on 2 September 2020, which produces relevant documentary material. The State also filed a written outline of submissions.
2. Mr Ryan did not seek to rely on any documentary material or any written outline of submissions.

1. Mr Ryan is a 56-year-old male having been born on 13 September 1964. He is currently serving a total prison sentence of 12 years' imprisonment (without eligibility for parole) and is due for release on the completion of his sentence on 7 October 2020.
2. Mr Ryan's criminal history commenced in 1977 when he was 12 years old.
3. In 1980, when Mr Ryan was 16 years old, he was sentenced by this court to a term of 5 years' imprisonment (with a minimum term of 4 years) for 25 break enter and steal charges. It appears that prior to his release from prison he escaped legal custody and received a further term of 6 months' imprisonment. On his release from prison he committed further offences which resulted in imprisonment, which then began a long cycle (as an adult) of offending and subsequent periods of imprisonment on release from prison.
4. The State points out that between 11 September 1985 and 3 April 2009, Mr Ryan has been convicted of eight serious offences (as defined in s 5(1) and sch 1 of the Act). These are:

(1) On 11 September 1985, Mr Ryan was convicted on pleas of guilty in the District Court of one count of attempted armed robbery in company and one count of unlawful use of a motor vehicle for which he received 12 months' imprisonment on each count concurrent but cumulative on an existing five and a 1/2 year term of imprisonment. The offending involved an armed robbery on a motel in company with a co-offender. Mr Ryan entered the motel armed with a replica pistol, pointed it at the victim and demanded money. The victim recognised the gun was a replica and refused to comply with the demand and got out his waddy (an Aboriginal war club constructed of wood) from behind the counter. Mr Ryan attempted to frighten the victim by pulling the trigger of the replica pistol.[12]

(2) On 2 August 1990, he was convicted in the District Court on a plea of guilty of one count of stealing with violence (robbery), for which he received a term of imprisonment of 2 years and 9 months. The material facts of the offending were that on 10 December 1989, he approached the victim and her friend in Perth City. He approached the victim from behind and tugged on the shoulder strap of her purse. He repeatedly tried to pull the purse from her and eventually grabbed it after pushing the victim to the ground and punching her several times to the face.[13]

(3) On 3 December 1993, he was convicted in the District Court on a plea of guilty to one count of criminal damage for which he received a term of 18 months' imprisonment. The material facts were that on 11 May 1993, he arrived home to find his de facto partner was out. He became angry at this and located a bottle of kerosene in the home which he splashed over beds in three of the home's bedrooms and over property in the kitchen. Later that evening he located his de facto partner at another address where the two argued. He threatened to set fire to the house then left the premises and returned home, where he opened all the gas jets on the stove and set fire to the kerosene before leaving the property, causing damage to the value of approximately $430.[14]

(4) In 2001, he was convicted of several offences in the Supreme Court and the District Court which resulted in a total period of imprisonment of 8 years and 6 months, which included two counts of armed robbery and one count of attempted armed robbery.

(a) The first of the convictions of serious offences occurred on 8 February 2001, entered after trial of one count of armed robbery. The facts of this offence were that on 10 May 1999, Mr Ryan was in Geraldton and asked his cousin, LH, to hold up the victim, who LH knew, for money and drugs. LH called the victim, asking if she could come to his home to buy drugs and she and Mr Ryan, who was carrying a bag containing a sawn‑off shotgun, walked to the victim's home. LH entered the home and approximately five minutes later, Mr Ryan entered the home with a handkerchief over his face and a windcheater over his arm. He demanded drugs and cash and when the victim did not take him seriously, he produced the sawn-off shot gun and told the victim to lie down on the floor, which he did. Mr Ryan then instructed LH to look for drugs and cash. She located cannabis, but could not locate cash. One of the offenders removed the victim's wallet from his back pocket. Mr Ryan told LH to leave, pulled the phone from the wall and told the victim to wait five minutes before moving. He also told the victim there were other people outside and that if he moved, he would blow his head off.[15]

(b) The second and third of the convictions of serious offences (one count of armed robbery and one count of attempted armed robbery) occurred on the night of 14 May 1999, Mr Ryan arranged for his cousin to drive him and SB, both of whom disguised themselves, around Carnarvon. Mr Ryan had a sawn-off shotgun with him. At about 11.00 pm, he told his cousin to park, then walked off in the direction of the Hospitality Inn. He told SB to wait five minutes and that if he had not returned, to come looking for him. He went into the Hospitality Inn carport. The two managers heard him and came out of their nearby unit. He pointed the gun at them and told them to get down on the ground, which they did. He demanded money and told them to do as he instructed or he would shoot them. He then escorted the male victim into the office to open the safe. The respondent told him to lie on the floor, and went through the safe. He told SB, who by this time had arrived, to take the female victim into the unit and get jewellery and money. She told SB she did not have any jewellery and emptied the contents of a purse and wallet onto the bed; neither contained money. He made the victims lie down on the ground again and told them not to move for five minutes and not to call the police or he would return and kill them. His cousin drove him and SB home and they split up the money they had taken (approximately $800).[16]

(5) On 8 October 2008, Mr Ryan was convicted after trial before McKechnie J in the Supreme Court of one count of aggravated armed robbery (and one count of aggravated burglary). The facts of the offences were that on 15 June 2006, Mr Ryan and two others broke into the victim's home whilst she and her 9‑year‑old daughter were sleeping. They were looking for a woman who had previously lived at the address. One of the offenders (a juvenile) was carrying a screwdriver and went into the kitchen. The two other offenders remained in the living room with the victim. Mr Ryan put a knife to the victim's throat and asked for gold, money or drugs. She told him she did not have any. He demanded anything she had, and she gestured to her stereo. The offenders took her stereo, mobile phone, cigarettes and makeup bag.[17]

(6) On 3 April 2009, Mr Ryan was convicted after trial in the Supreme Court before Hasluck J of one count of aggravated armed robbery. The facts were that on 5 February 2008, the respondent had a female acquaintance drive him and his co‑offender to the victim's home. The respondent, armed with a tomahawk and the co-offender, armed with a length of PVC water pipe, entered the victim's shed which was situated near his residence. The respondent threatened the victim with the tomahawk and demanded money and drugs. The co-offender punched the victim in the face, causing a split lip. The offenders obtained 1 or 2 g of amphetamine and $50 in cash, then left the victim's shed and were driven away by the female.[18]

1. Between 1990 and 1997, Mr Ryan was convicted of a number of offences which involved violence. In 1990, he was convicted of one count of assaulting a public officer. In 1994, he was convicted of one count of threatening behaviour and one count of using threatening words. In 1995, he was convicted of two counts of resisting arrest, one count of disorderly fighting and one count of unlawful wounding. In 1996, he was convicted of one count of assault occasioning bodily harm. In 1997, he was convicted of one count of aggravated burglary and commit offence.
2. In 2011, when dismissing the appeals against conviction and sentence imposed by McKechnie J in 2008[19] and Hasluck J in 2009,[20] McLure P remarked when considering the criminality of the offence the subject of the sentence imposed by McKechnie J:[21]

The maximum penalty for the offence of aggravated armed robbery is life imprisonment. The sentence customarily imposed for a single offence of armed robbery usually fall within the range of 4 to 6 years without regard to matters of mitigation: Manyam v The State of Western Australia [2009] WASCA 164 [24] ‑ [25]; The State of Western Australia v Wells [2005] WASCA 23 [5].

By any measure, the criminality of the appellant's offending in this case is at the very high end of the scale of seriousness for both offences. It involved a home invasion in the early hours of the morning by three male offenders acting together and a knife was used by the appellant to threaten the complainant in the presence of her young daughter.

The appellant was aged 44 at the time of sentencing. He had a dreadful criminal history. The sentencing judge counted 24 convictions for burglary, one for attempted burglary, 11 for stealing, six for receiving, nine offences of violence, two convictions for armed robbery, one conviction for robbery and one conviction for attempted robbery. In fact, the offences for which he was sentenced by McKechnie J were committed whilst the appellant was on parole for prior offences of aggravated burglary, armed robbery and attempted robbery for which he also received a total sentence of 8 years.

1. The sentences of imprisonment imposed by McKechnie J in 2008 and Hasluck J in 2009 (the subject of the appeal), totalled 12 years' imprisonment. These terms are due to expire on 7 October 2020.

1. Mr Ryan is an Indigenous man. He was born in Geraldton and was raised in a stable two-parent family with his seven siblings. His home life deteriorated when he was 12 years old after the death of his father, which he witnessed. His father's death had a profound effect upon Mr Ryan and his family members. His mother developed a serious substance use problem. His home life became so problematic he was admitted to a number of boys' homes as a young child.
2. Mr Ryan has reported in the past that he attributed his consistent juvenile offending to having to provide necessities for his siblings as his mother was unable to provide for them, and that he had a childhood filled with instability, trauma and losses. He has also reported that his life had been filled with anger and hatred.
3. Mr Ryan completed year 7 before ceasing school after his father's death. It appears that despite leaving school at a very young age, he is intelligent and does not have any difficulties with literacy and numeracy.
4. When not incarcerated, he has worked a number of different jobs in brick paving and domestic cleaning, but has a limited employment history.
5. Immediately before the time he was remanded in custody, prior to the convictions for his current period of incarceration, his sole income was a disability pension paid by Centrelink.
6. Mr Ryan has reported that he commenced substance use at age 17, when he began using benzodiazepines whilst incarcerated at Fremantle Prison, and has admitted to experimenting with most illicit substances.
7. Prior to being incarcerated in 2008, he reported that he had stopped using benzodiazepines, reporting amphetamine and alcohol use instead, and said that he did not see his amphetamine or alcohol use as problematic.
8. Mr Ryan has had one significant relationship which lasted approximately 18 years and produced three children. He and his ex‑partner engaged in frequent illicit substance use and excessive alcohol consumption.
9. At the time of his 2009 sentencing, Mr Ryan had been in a relationship with another woman for approximately two years and had no children to this partner.
10. Mr Ryan is currently single.

1. No reports for this preliminary hearing were prepared. However, a number of reports that were prepared during Mr Ryan's periods of incarceration and for previous sentencing hearings were produced by the State.
2. Except where the reports have recorded information which is historical, I have not considered or relied upon the opinions stated in any report that was prepared prior to 2005, as I am of the opinion that the opinions stated in the reports prior to 2005 are too distant in time for this court to constitute reliable material in a consideration of the strength of the State's case as to whether a court might find, in a div 3 hearing, (in accordance with s 7 of the Act) that Mr Ryan is a high risk serious offender.
3. Notwithstanding that I have had regard to the reports created from 2005, it is my view that almost all of the reports, particularly those created between 2005 and 2006 must be treated with caution by the court as they contain no current information.
4. It is not in dispute that Mr Ryan has had in the past entrenched substance use issues. In particular, he has a history of extensive benzodiazepine abuse and has used heroin and amphetamines when benzodiazepines were not available. It is also clear that the trigger for Mr Ryan's offending is his drug use.
5. There is, however, no information before the court about whether, since Mr Ryan was incarcerated in 2008, he has continued (within any time of this 12 year period) to use illicit drugs.
6. The only treatment substance use offending information assessment that has been provided to the court is an assessment carried out on 30 October 2008. However, there is no information contained in that report that Mr Ryan had at that time engaged in illicit drug use whilst in prison.[22]
7. Importantly, no relatively current clinical assessment (other than a desktop review of past reports) has been made by any qualified officer of the Department of Justice as to whether Mr Ryan currently has unmet treatment needs.
8. The only treatment report that makes any assessment of Mr Ryan's participation in a program in the period from 2010 until 2020 is a report that appears to have been completed on 22 February 2016 (which is very brief).[23]
9. The most recent assessment of Mr Ryan made by a clinical psychologist was an assessment in March 2009 for the court when Hasluck J ordered reports for the purpose of sentencing Mr Ryan in relation to one count of aggravated robbery.[24]

Reports prepared between June 2005 and 3 October 2019

Treatment Completion Report ‑ Violent Offending Treatment Program (VOTP) ‑ 14 June 2005

1. Between 18 October 2004 and 7 April 2005, Mr Ryan participated in an intensive VOTP. It was reported that, overall, Mr Ryan completed all of the program requirements to a reasonable degree. However, there remained substantial deficits in almost every domain covered by the VOTP.[25] In particular, it appeared at the conclusion of the program that his attitudes were worse in some areas than before he commenced the program.
2. The authors of the report, reported that at the completion of the program:[26]

(a) he displayed a very high level of hostility to others, in particular, he would attribute the cause of his offending behaviour to his victims;

(b) he had a rigid style of thinking with a strong belief he should judge and punish others;

(c) he had an increased level of pro‑criminal sentiments towards the law, courts and police and although there was some change in regard to tolerance for law violations his scores were still higher than those of other offender groups;

(d) he had a range of traits that have been identified as attitudes that underpin violent behaviour;

(e) he exhibited a high level of overt hostility and poor decision‑making skills. He had a general disposition towards becoming angry, which included an increased propensity to express angry feelings with very little provocation;

(f) he had made some treatment gains in regard to identifying and expressing the intensity of emotions. On a positive note, Mr Ryan exhibited an extremely high level of empathic concern. He also exhibited a strong dispositional tendency to adopt another person's perspective. However, this was not evident in regard to his victims, especially when he knows his victims in some way;

(g) he had developed antisocial values across his lifespan, of discontent, embitterment and low investment in others and in the general community. He also seemed to have a very poor attitude to law and order, strong pro-criminal sentiments, with a strong sense of entitlement to anarchistic sentiments. However, he had an increased level of assertiveness or ability to speak up for himself; and

(h) during the VOTP, Mr Ryan was able to demonstrate leadership and organising skills for the group art project and demonstrate the ability to identify and express emotions.

CJS Programs Assessment Report - 3 January 2006

1. On 3 January 2006, whilst on parole, it was reported by a senior programs officer that Mr Ryan had reported that he is tired of his continual interfacing with the justice system and he appeared to have the capacity to change long‑term behaviours, as displayed by his ability to reduce his 'benzo-taking' pattern. It was noted that he presented with a sound vocabulary and a high capacity to take on and process new information. It was recommended that he attend the Emotional Management module initially with the possibility of Social Perspectives and Empathy and/or Preventing Slip Ups as secondary program interventions.[27]

Community Corrections Officers Report ‑ 28 April 2006

1. The author of the report records that:[28]

(a) Mr Ryan was released on parole on 11 April 2005 for a period due to expire on 17 March 2007;

(b) Mr Ryan was convicted of a minor offence on 8 April 2006 and on 11 April 2006 his parole was suspended for failing to undertake a program as directed to address his offending behaviour (he failed to attend scheduled assessments for intervention programs (Relationships Australia domestic violence group assessment)). As a result, it was recommended his parole be cancelled; and

(c) despite Mr Ryan's recent recidivism and history of non‑compliance he commenced his parole satisfactorily. He attended supervision and urinalysis as directed.

Treatment ‑ Violent Offending Checklist dated 30 October 2008

1. This report was prepared approximately two weeks after Mr Ryan was sentenced to a finite term of 8 years' imprisonment by McKechnie J for the offences referred to in [28(5)] of these reasons.
2. The author of the report noted that Mr Ryan:[29]

(a) presented with a low mood and made self‑defeatist comments during the assessment;

(b) had a history of self-harm and depression, but denied any current thoughts of suicide or self-harm. He reported that he was not at that time prescribed any medication to assist with his feelings;

(c) was struggling to come to terms with his current length of sentence, and he believed he is a victim of the justice system; and

(d) did not appear to be setting himself any goals and he thinks engaging in any courses would be pointless at this stage in his life.

1. The author of the report also noted that Mr Ryan had not commissioned any violent offences between 1990 and 1995.[30]
2. The author of the report assessed Mr Ryan as a polite individual who was cooperative throughout the assessment process and stated in his recommendations and conclusion:[31]

Ryan reported that prior to his return to custody he was living a transient lifestyle; having no stable accommodation and instead living out of his vehicle. Ryan attributes his history of offending in recent years out of lack of stability (specifically housing), yet he completely denies involvement in the current offences. Ryan reported he is in the process of lodging an appeal to challenge his sentence term.

Ryan has serious violent convictions on record, and it is noted that in recent years he has accumulated numerous offences for weapons and his violent offending has increased. However, Ryan externalised his pattern of offending to social factors, and did not take responsibility; instead, he was keen to portray himself as the victim of the Justice System.

In light of Ryan's recent increase in violent offending, and his assessed high risk, his score is indicative of requiring inclusion in the Intensive Violent Offending program. However, Ryan is currently refusing treatment given he denies the offence and is subject to a finite term. If Ryan alters his stance, inclusion in the program is recommended.

Psychological Report for Court dated 24 March 2009

1. Mr Ryan was interviewed by a clinical psychologist, Ms Lee, on 27 February 2009. Mr Ryan was not subjected to psychometric tests. Ms Lee did, however, assess Mr Ryan's criminogenic factors and needs as follows:[32]

(a) Mr Ryan appears to hold some attitudes and beliefs that support his offending behaviours. The belief and attitudes are associated with an external locus of control where blame and responsibilities are attributed to external factors outside of one's self. Thus, there was a tendency for Mr Ryan to attribute his criminal offending and drug use to the lack of justice, to a system that is discriminatory, to a childhood that was filled with traumas and abandonment, as well as life circumstances;

(b) Mr Ryan had antisocial peer associations. He reported that he had come out of prison clean of drugs at age 40 years in 2005 and everyone around him was into amphetamines, 'and had all this influence around me';

(c) Mr Ryan reported a lengthy dependent history of substance misuse, in particular, a dependence on prescription drugs. The current offence was committed under the influence of methamphetamines and motivated by the desire to obtain the drugs;

(d) Mr Ryan had poor accommodation and a lack of support from extended family members in the community;

(e) with a significant amount of time spent in the criminal justice system, it appeared Mr Ryan lacked sufficient trade/employment history; and

(f) Mr Ryan reported a childhood filled with instability, traumas and losses. Of significance was the loss of his father when he was a child: he stated that when his father was murdered, he lost a positive male role model. He appeared to struggle with empathy due to circumstances of his childhood and the impact that his offending has had on his development and vice versa. The current offences appear to be driven by his desire to seek out what was rightfully his, without considering the ramifications due to his drug use, and the escalation that resulted from his co‑offender's actions.

1. Ms Lee noted that there were a number of factors related to Mr Ryan that may act as protective factors in reducing his risk of reoffending in a similar manner and these were:[33]
   • Mr Ryan reported making some significant changes to his drug use behaviour by maintaining abstinence from prescription drugs, cigarettes and cannabis;
   • He spoke of his new relationship in positive terms, stating that he and the girlfriend had a harmonious stable relationship, and that she was supportive. The girlfriend confirmed this;
   • He indicated that his girlfriend was not a drug user and was supportive of him making the necessary changes to lead a pro‑social life. The girlfriend confirmed this;
   • Mr Ryan stated that he has continued to make changes in spite of being found guilty of an offence he had not committed and progressing through the appeal process. He pointed to the changes in his criminal record from 2005‑2008 as well as reporting that he had not incurred a prison charge for the whole year he had been in re‑incarcerated;
   • He stated that he had come to a resolution with his grief and loss around his father after meeting the man who was responsible for his death. He reported that he was at peace with the situation. He also reported that he had been engaged in counselling with the Prison Counselling Services on a twice weekly basis on his return to prison;
   • Mr Ryan indicated that State Housing had allocated him a unit of his own and had apparently informed him that a unit will be made available to him when he is released. His girlfriend indicated that this was the case; and
   • He reported that he wanted to take the opportunities and the support that the release to a period of Parole can provide.

Extended Pre‑sentence Report dated 31 March 2009

1. In a pre‑sentence report prepared for a sentencing hearing before Hasluck J for the offences (referred to in [28(6)] of these reasons) and whilst Mr Ryan was serving a finite sentence with an earliest release date of 7 October 2016, the author of the report stated:[34]

It appears that Mr Ryan has engaged in substance use from a young age and over the years has been trapped in a number of addictions that have become problematic. He is aware that his previous substance use was extremely detrimental and has decreased his use in an attempt to avoid a further life engaging in criminal activity. Mr Ryan expressed his eagerness and willingness to engage in programmatic interventions in an attempt to cease all use. Mr Ryan is booked into programmatic intervention at Casuarina Prison including; Cognitive Skills in quarter three of 2009 and Aboriginal Education and Managing Relapse Program in quarter one of 2010.

...

Mr Ryan had a stable early childhood before the home environment was significantly compromised by the death of his father as a young child. As a result he has had an erratic childhood with little positive support. Introduced to substance use at a young age and maintaining substance use throughout the years has often led Mr Ryan to undesirable situations eventuating into offending. Several terms of imprisonment indicate Mr Ryan's inability to re‑adjust effectively into the community. It appears that Mr Ryan has come to the realisation that illicit substance use has had a significant impact on his life to date and may have been a coping mechanism behind underlying factors related to his father's death, lack of family support, negative peers and problematic relationships which have led to continuous re‑offending. Therefore, he has expressed what appears to be a genuine eagerness to make an effort in seeking programmatic intervention and support in this domain to prevent future re‑offending and further issues within his life.

1. Mr Ryan did attend the Cognitive Skills program in 2009, but not the Aboriginal Education and Managing Relapse Program in 2010.
2. It is noted in an Individual Management Plan, dated 21 May 2020, that he refused to participate in a cognitive skills program (Think First) on 29 October 2008. This note is not entirely correct as Mr Ryan did in fact commence a cognitive skills program in 2009 (Think First) but he did not complete it as he became ill.
3. It is noted in the Individual Management Plan, dated 21 May 2020, that the status of Aboriginal Education and Managing Relapse Program (as at 21 May 2020) was 'no longer required'.[35]

Treatment Non-Completion Report dated 18 December 2009

1. On 6 October 2009, Mr Ryan commenced a Think First Program, but early into the course, he missed three sessions due to illness, and later underwent surgery which prevented him from returning to the program.[36]
2. It is noted in the report that at the pre-course interview Mr Ryan stated that he had been a long-term drug user, but was now keen to rebuild his life and become a free man. He also told the author of the report that he hoped the course would sharpen him up, refresh his decision-making and that he wanted to learn to think about things before rushing in. A pre‑course Cognitive Behavioural Rating Scale showed Mr Ryan scoring a low two in impulsivity, but a mid-way three in all remaining areas, (what the remaining areas are and what is the significance of a score of three is not clear from the report). The author of the report also noted that Mr Ryan was a keen participant who always provided good and relevant input to the sessions; that he had the capability of recalling previous sessions; and that he was positive, always polite to facilitators and fellow participants.[37]

Program Non-Completion Report dated 22 February 2016

1. Mr Ryan commenced a second VOTP (Violent Offender Treatment Program) on 4 December 2015, but as a result of an incident he was subsequently relocated to the prison management unit for the 'good order and management of the prison' (which resulted in him not completing the program).[38]
2. A TOMS report of the incident in question, indicates that on 6 January 2016, Mr Ryan was sitting in the B/D day room and began shouting that it should be D wing allowed out and when it was explained to him that this was on the instruction of the SO (that A/C could go out at 5.15 pm), Mr Ryan stated it was only because they are 'all white fellows over there'.[39]
3. The author of the report states that Mr Ryan attended nine program sessions participating in all activities and discussions and displayed an apparent willingness to explore new ideas and ways of thinking to avoid conflict. The author of the report recommended that Mr Ryan be rebooked to a future VOTP should a place become available.[40]

Clinical Re‑assessment Report dated 3 October 2019

1. This report states that it had been provided for the purposes of updating Mr Ryan's current treatment and program requirements. Notwithstanding that it appears Mr Ryan had not been assessed or interviewed by any program officer since December 2015, recommendations were prepared by conducting a desktop review of departmental records.
2. The author of the report made a recommendation that he participate in a Pathways program and made an observation that Mr Ryan has outstanding treatment needs in relation to violence and substance use.[41] The author, however, does not state the basal facts on which that opinion is said to be based.
3. I note, however, that the author of the report referred to an individual management plan created in May 2019, but this plan is not before the court.

1. The author of the report stated that Mr Ryan's security rating is 'maximum', and that he appears to mix appropriately with his peers, but he does not always conduct himself with staff as expected, resulting in prison charges. The author also notes that Mr Ryan has incurred seven prison charges during the past six months, but those charges are not recorded in the report.[42]
2. As to treatment it is relevantly noted that:[43]

(a) on 3 October 2019, it was recommended (as required) that Mr Ryan attend a Pathways Program (to address addictions and offending), the status of which was that Mr Ryan had refused to participate in the program;[44]

(b) on 8 February 2016, he enrolled in a Vocational Literacy and Numeracy program; and

(c) on 24 September 2015, he completed successfully (or competently) a Career Counselling program.

Whether Mr Ryan has a propensity to commit serious offences in the future and whether there is any pattern of offending behaviour

1. As the State points out, 'propensity' should be taken to have its ordinary meaning in the context of the criminal law. That is, an offender has an inclination, tendency or disposition to commit a particular type of offence 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 or her makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.[45]
2. There is no evidence before the court that Mr Ryan suffers from a mental illness or has a personality disorder.
3. I accept that Mr Ryan's criminal history of serious offences exhibits a past pattern of making threats to victims to ensure their compliance, and violent and/or dangerous offending that has the potential to cause serious or life-threatening injury.
4. It is clear that Mr Ryan has shown that in the past he has a propensity to commit serious offences as he has been convicted of eight serious offences as defined in the Act between 1985 and 2008. His criminal record reflects a clear propensity to act violently, and has done so whilst armed with a weapon such as a replica pistol, a sawn-off shotgun, tomahawk, and knife. Mr Ryan has also threatened victims in the past with a weapon, including holding a knife to the throat of a female victim in front of her young child.
5. From this record it can be inferred that he has engaged in the past in a pattern of offending behaviour of serious offences and other violent offences. He has been sentenced to numerous terms of imprisonment since 1980.
6. Mr Ryan's pattern of past offending appears principally to be associated with either intoxication by the use of illicit drugs and/or a desire to obtain illicit drugs.
7. It also appears from the treatment reports that Mr Ryan has in the past displayed a pattern of committing serious offences when he has judged others as deserving it and has externalised his pattern of offending to social factors. It also appears in the past he has not taken responsibility for his actions, portraying himself as a victim of the justice system.

1. There is no acceptable and cogent evidence before the court as to whether Mr Ryan, who is now 56 years old, is likely to continue, on his release, to commit serious offences or violent offences. However, this is not the test to be addressed by the Act, all that is necessary for this court to find in a preliminary hearing is that, in the absence of any reports from a psychiatrist or psychological assessment, there are reasonable grounds for believing that a court might find in a div 3 hearing that Mr Ryan is a high risk serious offender.
2. It must be accepted, given Mr Ryan's criminal history of serious offences and other violent offences, that it cannot be found he does not have the propensity to commit serious offences in the future. However, on the material before the court all that can be found at this particular point in time is that he has shown such a propensity and pattern of serious offences in the past and has for several decades committed such offences not long after his release from imprisonment. In these circumstances, I am satisfied that there are reasonable grounds for forming the belief that a court might find in a div 3 hearing that Mr Ryan is a high risk serious offender.
3. However, having made this finding, when all of the relevant material presently before the court is reviewed, I am of the opinion that the State does not at this point in time have a strong case that the court in a div 3 hearing will find that Mr Ryan is a high risk serious offender. This finding is relevant only to the question whether I should make an interim detention order or an interim supervision order. Having assessed the case of the State as not being strong at this point in time, this is a factor that weighs against an interim detention order. This is not the only relevant factor.
4. The other factor that weighs against a detention order is that the conditions proposed by the State for an interim supervision order are appropriate conditions that should sufficiently provide adequate protection of the community. This is because the proposed conditions of the interim supervision order will provide Mr Ryan with stable accommodation and put in place arrangements to address the triggers of his offending, which are the consumption of illicit substances and association with antisocial peers, in particular, those who engage in the consumption of prohibited drugs. Also, importantly, the conditions of the interim supervision order will require Mr Ryan to ensure that he does not possess, consume or use alcohol or prohibited drugs.

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

[1] High Risk Serious Offenders Act 2020 (WA) s 46(1).

[2] The State of Western Australia v Cox [2020] WASC 344 [7].

[3] A serious offender under restriction is a person who is subject to a restriction order or an interim supervision order: High Risk Serious Offenders Act 2020 (WA) s 3.

[4] Director of Public Prosecutions (WA) v Free [2010] WASC 255.

[5] The State of Western Australia v ZSJ [2020] WASC 330 [5].

[6] The State of Western Australia v Cox [2020] WASC 344 [15] ‑ [16].

[7] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [4], [8] ‑ [13].

[8] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [38].

[9] The State of Western Australia v Cox [2020] WASC 344 [17].

[10] Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160 [62] ‑ [64] (Blaxell J).

[11] High Risk serious Offenders Act 2020 (WA) s 46(2)(d).

[12] Affidavit of Ms Watson, Annexure P, pages 104 ‑ 108.

[13] Affidavit of Ms Watson, Annexure S, pages 116 ‑ 118.

[14] Affidavit of Ms Watson, Annexure V, pages 128 ‑ 130.

[15] Affidavit of Ms Watson, Annexure Z, pages 157 ‑ 159.

[16] Affidavit of Ms Watson, Annexure Z, pages 159 ‑ 160.

[17]Affidavit of Ms Watson, Annexure G, pages 73 ‑ 77; Mr Ryan filed an appeal against conviction and sentence. The appeal was dismissed by the Court of Appeal in Ryan v The State of Western Australia [2011] WASCA 7.

[18] Affidavit of Ms Watson, Annexure M, pages 89 ‑ 101; Mr Ryan filed an appeal against conviction and sentence. The appeal was dismissed by the Court of Appeal in Ryan v The State of Western Australia [2011] WASCA 7.

[19] The facts of which are set out in [28(5)] of these reasons.

[20] The facts of which are set out in [28(6)] of these reasons.

[21] Ryan v The State of the Western Australia [2011] WASCA 7 [78] ‑ [80] (Pullin JA & Mazza J agreeing).

[22] Affidavit Ms Watson, Annexure AX, pages 223 ‑ 226.

[23] Affidavit Ms Watson, Annexure BB, page 239.

[24] Affidavit Ms Watson, Annexure AY, pages 227 ‑ 231.

[25] Affidavit Ms Watson, Annexure AS, page 209.

[26] Affidavit Ms Watson, Annexure AS, pages 204 ‑ 209.

[27] Affidavit Ms Watson, Annexure AT, pages 214 ‑ 215.

[28] Affidavit Ms Watson, Annexure AU, pages 216 ‑ 217.

[29] Affidavit Ms Watson, Annexure AW, page 220.

[30] Affidavit Ms Watson, Annexure AW, page 221.

[31] Affidavit Ms Watson, Annexure AW, page 222.

[32] Affidavit Ms Watson, Annexure AY, pages 229 ‑ 231.

[33] Affidavit Ms Watson, Annexure AY, pages 230 ‑ 231.

[34] Affidavit Ms Watson, Annexure AZ, pages 235 ‑ 236.

[35] Affidavit Ms Watson, Annexure BE, page 245.

[36] Affidavit Ms Watson, Annexure BA, page 237.

[37] Affidavit Ms Watson, Annexure BA, page 237.

[38] Affidavit Ms Watson, Annexure BB, page 239.

[39] Affidavit Ms Watson, Annexure BB, page 240.

[40] Affidavit Ms Watson, Annexure BB, page 239.

[41] Affidavit Ms Watson, Annexure BD, page 241.

[42] Affidavit of Ms Watson, Annexure BE, page 243.

[43] Affidavit of Ms Watson, Annexure BE, page 245.

[44] At the preliminary hearing, counsel for Mr Ryan informed the court that the reason why he had refused to participate in the Pathways program was that he had a finite sentence and simply wished to serve his time and be released into the community.

[45] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [178]; this construction of the word 'propensity' was applied to s 7(3)(c) of the Dangerous Sexual Offenders Act 2006 (WA) in Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [66] (Hall J) and in The State of Western Australia v Jonsson [No 3] [2019] WASC 463 [66] (Archer J) and The State of Western Australia v Pickett [2020] WASC 96 [113] .