THE STATE OF WESTERN AUSTRALIA -v- WILLIAMS [No 2] [2024] WASC 215 (20 June 2024)

1. It is useful to start with describing the objects of the HRSO Act, which are set out in s 8. The objects are:

(a) to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and

(b) to provide for continuing control, care or treatment of high risk serious offenders.

1. The importance of ensuring adequate protection of the community and of victims of serious offences cannot be understated. This does not mean that sight should be lost of the importance of the care and treatment of offenders. The successful care and treatment of an offender assists in their rehabilitation. This not only benefits the offender. It also has real benefit for the community. It significantly reduces the risk and gravity of reoffending. Further, it reduces the extent to which the offender must be detained in custody, or monitored in the community, and thus reduces the financial costs associated with the offender.
2. Section 5 defines the term 'serious offence' that is used in s 8. It does so predominantly by reference to offences specified in sch 1 div 1, and sch 1 div 2 where the offence is committed in the circumstances indicated in div 2. For the purposes of this application, I have reviewed the offences listed in sch 1 and also had regard to the balance of what s 5 prescribes is a serious offence.
3. Section 48 sets out the court's power to make a restriction order. It provides:

(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -

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

(b) except as provided in section 29, make a supervision order in relation to the offender.

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

1. Pursuant to s 48, if the court finds the offender is a high risk serious offender the court must make a continuing detention order or a supervision order. The ability to make a supervision order is subject to s 29. Section 29 provides that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions of the order.
2. Section 7(1) defines the phrase 'high risk serious offender' 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. The phrase 'high degree of probability' connotes a standard that is more than the civil standard of balance of probabilities but less than the criminal standard of beyond reasonable doubt.[6] The State has the onus of satisfying the court to this standard that Mr Williams is a high risk serious offender.[7]
2. In considering whether I am satisfied that Mr Williams is a high risk serious offender, I must have regard to the matters that are set out at s 7(3)(a) - (j). Section 7(3)(j) is a 'catch all' type provision, which in effect provides that I must have regard to any other relevant matter in addition to those set out at s 3(a) - (i).
3. Section 7(4) sets out what I must disregard in making the relevant assessment. Specifically, I must disregard the possibility that Mr Williams might temporarily be prevented from committing a serious offence by imprisonment or remand in custody, or the imposition of bail conditions.
4. The HRSO Act was considered by the High Court in Garlett v The State of Western Australia,[8] which concerned a constitutional challenge to the HRSO Act insofar as its provisions apply to a person who has been convicted of the offence of robbery (s 392 of the Code).[9] Kiefel CJ, Keane and Steward JJ in a joint judgment, and Edelman and Gleeson JJ in separate judgments, held that the challenge failed. Gageler and Gordon JJ dissented in separate judgments.
5. The joint judgment of Kiefel CJ, Keane and Steward JJ, and the separate judgment of Edelman J, specifically addressed the application of s 7 and s 48.
6. Respectfully acknowledging the many decisions of this court concerning the operation and application of s 7 and s 48, it is sufficient in this case to refer to what is said regarding those provisions in the joint judgment and in the judgment of Edelman J.
7. Kiefel CJ, Keane and Steward JJ observed that: [10]

... the evaluative task required of the Court under ss 7 and 48 of the HRSO Act is difficult. But its difficulty should not be exaggerated.

1. In respect of the concepts of 'unacceptable risk' and 'necessary to make a restriction order' contained within s 7, their Honours said:[11]

Whether or not a risk that an offender will commit a "serious offence" is "unacceptable" is a question which requires the Court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is "necessary" to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community. The Court is required to perform this evaluative exercise and come to its own determination as to whether to make a restriction order; it does not automatically follow from the inclusion of an offence in Sch 1 that a restriction order must be made. (footnote omitted)

The inclusion of an offence ... in Sch 1 to the HRSO Act reflects a legislative judgment as to the kinds of offences which may be such as to cause harm of a kind from which the community needs protection different from that provided by the criminal law. (emphasis added)

... it is always for the Court to determine whether there is an "unacceptable risk" that the offender will commit such an offence, having regard to the evidence as to the nature of the offending and the circumstances of the offender. Importantly, the evaluative exercise contemplated by s 7 of the HRSO Act is not an exercise involving the notional ordering in the abstract of the relative culpability of categories of offences. Rather, s 7 contemplates a practical evaluation concerned with the circumstances of the particular offending and the particular offender. While the requirement of an evaluation under s 7 depends upon the offender having been convicted of a "serious offence", ss 7 and 48 do not envisage the possibility that a restriction order might be made to prevent the commission of a serious offence, whether of the same kind or of another kind, unless the risk of further offending involves a real threat of harm to the community. (footnote omitted)

1. Their Honours endorsed the approach of Derrick J in The State of Western Australia v Patrick [No 5] that the 'scheme of the [HRSO] Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community'.[14] Their Honours also observed that the point made by Derrick J is similar to the point made in the following passage from the joint judgment in Minister for Home Affairs v Benbrika:[15]

It is difficult to envisage any circumstances in which a continuing detention order would be made to prevent the risk of the commission of a serious ... offence where that offence is of a kind that could not be seen to pose a real threat of harm to the community.

...

Correctly understood, a continuing detention order could not properly be made by a Court ... in a case where the only risk of offending identified by the authorities did not carry a threat of harm to members of the community that was sufficiently serious in the assessment of the Court as to make the risk of the commission of the offence "unacceptable" to that Court.

1. As can be seen from the passages set out at [26] - [29] above, it is not sufficient that there be a risk that the offender will commit a serious offence. Rather, the risk to which s 7(1) and s 48 is directed is 'the risk of further offending [that] involves a real threat of harm to the community'.
2. Edelman J interpreted the relevant provisions of the HRSO Act as encompassing five stages.
3. The first stage is that the State must identify the serious offence(s) which the offender is at risk of committing. His Honour explained that:[16]

Since the Court must assess the risk that the offender will commit "a serious offence", the application must specify the serious offence within Sch 1 to the HRSO Act which the State alleges there is an unacceptable risk that the offender will commit. (footnote omitted)

1. The second stage is to assess the level of the risk (that is, the probability of the commission of the specified serious offence).[17] In relation to the concept of 'unacceptable', his Honour said that:[18]

The open-textured criterion of "unacceptable", similar to criteria such as "oppressive", "unreasonable", or "unjust", is so closely associated with notions of the "adequate" protection of the community and the "necessity" of the restriction order that it is best addressed at the third stage. The second stage can therefore be limited to an assessment of the level of risk that the offender will commit the specified serious offence. (footnote omitted)

1. In respect of expert evidence directed to the assessment of risk, Edelman J said:[19]

Great caution is required in the treatment of this evidence because risk prediction for serious violence, including sexual violence, has been said to be "plagued by high false‑positive rates". Members of this Court have repeatedly emphasised the notorious difficulties in expert evidence in this area, including by reference to comments in literature that "[p]redictions of dangerousness have been shown to have only a one‑third to 50% success rate". Caution should be exercised in evaluating any expert evidence based on generalised psychological tools for assessment of recidivism. A fundamental premise of our criminal law is that individuals, with their vast variety of backgrounds and circumstances, should be treated based upon their own circumstances.

The expert evidence can be taken into account cautiously, but the level of the risk is ultimately a question for the judge, based upon all the evidence and all the factors in s 7(3). (footnotes omitted)

1. In respect of the third stage, his Honour said:[20]

The requirements that the risk be "unacceptable" and that the restriction order be "necessary" to ensure "adequate" protection of the community direct attention to whether the identified risk to the community can be tolerated. That assessment must be made in light of the whole of the burden which would be placed upon the liberty of the offender by the making of a restriction order, including any standard supervision order conditions.

Section 7 thus requires balancing, on the one hand, the level of the risk identified at the second stage (that is, the probability of the commission of the specified serious offence) together with the magnitude of the harm associated with that risk with, on the other hand, the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed. (footnotes omitted)

1. The fourth stage identified by his Honour was directed to what type of restriction order should be made if the court finds the offender is a high risk serious offender. The fifth stage was directed to the review processes provided for by the HRSO Act where the offender is placed on a continuing detention order.[21]
2. Overall, I do not discern any material difference between the balancing exercise which Edelman J speaks of in the passage set out at [35] above and the approach explained in the joint judgment as I have set out at [26] - [29] above.
3. I proceed as follows.
4. Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the possible harm. The assessment of the nature and extent of the possible harm directs attention to the possible serious offences that might be committed and the harm they may cause. It also directs attention to the likelihood that the offender might commit such offences (that is, the likelihood the risk might eventuate). The extent to which deterrent factors have operated to reduce risk in the past feeds into the assessment of current and future risk, as does the offender's historical and current response to rehabilitation. These are all factors that inform the assessment of whether the risk is 'unacceptable'. They are by no means exhaustive. I am reluctant to attempt to provide greater definition, bearing in mind the caution expressed by the High Court in M v M against 'striving for a greater degree of definition than the subject is capable of yielding'.[22]
5. If the risk is found to be 'unacceptable', the nature and extent of that unacceptable risk then informs the assessment of whether a restriction order is necessary to ensure adequate protection of the community. And, as Kiefel CJ, Keane and Steward JJ explained, the assessment of whether the order is necessary requires recognition that an offender's entitlement to be at liberty is not lightly to be denied.
6. I turn next to the type of restriction order that may be made if I am satisfied Mr Williams is a high risk serious offender.

1. Section 48(1) requires that either a continuing detention order or a supervision order must be made. As I have explained, the court's ability to make a supervision order is conditioned on the court being satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order.[23]
2. The nature, conditions and period of a supervision order are addressed by s 27 and s 30.
3. Section 27(1) provides that a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate. Section 27(2) provides that a supervision order has effect from a date, and for a period, stated in the order. The structure of s 27 provides a clear distinction between the conditions of a supervision order (s 27(1)), and the period of a supervision order (s 27(2)). That is, the period of the order is not a condition of it.
4. Section 30(2) sets out the standard conditions of a supervision order. Broadly speaking, the conditions in s 30(2)(a) - (e) and (g) impose reporting and notification obligations on the offender and subject the offender to intensive supervision. The standard condition provided for by s 30(2)(f) is that the offender not commit a serious offence during the period of the order.
5. Section 30(3) provides the court with a discretion to impose a condition that requires the offender not to make any public comments relating to a victim of a serious offence committed by the offender. Section 30(4) regulates the exercise of that discretion.
6. Section 30(5) provides that a supervision order may contain any other terms that the court thinks appropriate:

(a) to ensure adequate protection of the community; or

(b) for the rehabilitation, care or treatment of the offender; or

(c) to ensure adequate protection of victims of serious offences committed by the offender.

1. In relation to the question of whether an offender will substantially comply with the standard conditions imposed by s 30, the joint judgment in Garlett quoted with approval the following observations of Fiannaca J in The State of Western Australia v ACJ:[24]

The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro-social support available to him.

1. Thus, the assessment of whether the offender will substantially comply with the standard conditions takes account of the protective and supportive measures provided by the terms of the order.
2. In respect of the type of order that should be made if the court is satisfied the offender is a high risk serious offender, the joint judgment quoted with approval the following additional observations of Fiannaca J in ACJ:[25]

The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2). As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order. (footnotes omitted)

1. In respect of the additional conditions that a court might impose over and above the standard conditions of a supervision order, Edelman J in Garlett observed:[26]

The requirement of appropriateness [in s 27(1)] imposes a duty on the Court to make only the additional supervision conditions required to ensure "adequate" protection of the community, while imposing the minimum intrusion on an offender's liberty. (footnotes omitted)

1. In my view, this observation applies equally to the period of a supervision order. The period should reflect the minimum intrusion necessary to ensure adequate protection of the community.
2. Further, in my view, the type of additional conditions which might be imposed are relevant to assessing the following three matters. First, whether additional conditions, taken together with the standard conditions, can ensure adequate protection of the community in the relevant circumstances. Second, if that is the case, what additional conditions are required to ensure adequate protection of the community, while imposing the minimum intrusion on an offender's liberty. Third, whether the additional conditions, taken together with the standard conditions and all of the relevant circumstances, satisfy the court that the offender will substantially comply with the standard conditions.
3. In respect of the period of a supervision order, the HRSO Act does not provide any ability for a court to shorten the period of the order after it has been made.
4. An application to amend the conditions of a supervision order can be made by the offender.[27] An application to amend the conditions can also be made, with the Attorney General's consent, by the CEO of the Public Service department principally administering the HRSO Act (Department).[28] The court's power to amend the conditions is conditional upon the court being satisfied that:

(a) the offender is unable to comply with the conditions because of a change in their circumstances, or the amendment is necessary or desirable for another reason;[29] and

(b) it is reasonable to make the amendment in all the circumstances;[30] and

(c) the conditions, as amended, will be sufficient to ensure adequate protection of the community.[31]

1. Further, the court's power to amend does not extend to the standard conditions of a supervision order. A supervision order must include the standard conditions.[32] The power to amend cannot override that mandatory requirement. This is confirmed by the text of the amendment power, which provides that the court's discretion to amend applies 'except as provided in section 29'.[33] The court's discretion to amend is therefore subject to the court being satisfied the offender will substantially comply with the standard conditions of the order. Thus, the amendment power recognises that the standard conditions will remain.
2. Section 55(1) provides that if an offender has contravened or is contravening a condition of a supervision order, the court may amend the conditions or extend the period of the order, or do both. The distinction in s 55(1) between the conditions of a supervision order, and the period of a supervision order, confirms to my mind that the period of the order is not regarded as a condition of it - see [44] above.
3. The State may apply for a further restriction order in relation to an offender who is subject to a supervision order that is to expire within one year.[34] The further restriction order sought can be a new supervision order commencing on the expiry of the existing order.[35] The State's ability to apply for a further order is not conditioned on the offender committing any further serious offences after the commencement of the existing supervision order.
4. I turn now to the specifics of this application.

1. The State called Dr Petch, Dr Riordan, Mr Carmichael and Ms McGeown as witnesses. Each had prepared reports which were contained in vol 2 of the Book of Materials for the hearing. The State led further evidence from each of them at the hearing, directed to the substantive matters raised by their reports and also addressing matters that had arisen since the reports were prepared. Mr Williams was present at the hearing. He did not give or adduce any evidence.

1. Mr Williams is 45 years of age.
2. Mr Williams had six brothers and sisters. He is the youngest. His two eldest brothers have passed away.
3. Mr Williams' parents separated when he was two and he had limited contact with his father as a child. After his parents' separation, his mother started a relationship with another man which lasted for 14 years. This man was like a stepfather to Mr Williams.
4. While Mr Williams perceives his childhood as 'happy', he was exposed as a child to drunken behaviour, drug use and violence, including sexual and non-sexual assaults of women. Mr Williams was sexually abused as a child.[36]
5. Mr Williams attended school until about Grade 6 and left at the age of 10 or 11. At times when Mr Williams was at school, he was intoxicated on solvents. On leaving school Mr Williams was not able to read or write. He learnt to do so by educating himself in prison.
6. From an early age Mr Williams started sniffing solvents with friends. From about the age of 10 he used cannabis almost every day for about 20 years. He first used methylamphetamine at the age of 15 and thereafter used it about two to three times per week. He started drinking alcohol at the age of 13 and considers himself to have been an alcoholic in the past. He told Dr Petch that drinking alcohol makes him violent.
7. Mr Williams has had a number of short term jobs but has never had formal employment. He does not have any formal trades or qualifications. Mr Williams has an injury to his shoulder which repeatedly dislocates.
8. Mr Williams has five children with two different partners. He has not seen his children for many years.

1. Sadly, and perhaps reflective of what he was exposed to as a young boy, Mr Williams' offending history starts at the age of only 11.
2. Although Mr Williams has an extensive criminal history, he does not have an extensive history of committing 'serious offences' as that phrase is defined in the HRSO Act.
3. Mr Williams has committed three offences that constitute serious offences in accordance with sch 1 div 1 of the HRSO Act.[37] They are two offences of sexual penetration without consent committed on 4 October 2014, and one offence of robbery committed on 4 December 2002. The relevant circumstances of the two sexual penetration offences are as follows.
4. The victim was a friend of Mr Williams' then partner. She returned to her home and found Mr Williams was there. The victim told Mr Williams to leave. The victim walked through her lounge room to the front door. Mr Williams followed her. Mr Williams touched the victim on her buttocks. She pushed him away. He then reached around, forced his hand up her shorts and penetrated her vagina with his fingers. She pushed his hand away. He again used his hand to lift up her shorts and penetrated her vagina with his fingers. Eventually the victim pushed him outside the front door and closed the security screen. Mr Williams was also convicted of an offence of unlawful indecent assault arising from his touching of the victim on her buttocks.
5. As an adult, Mr Williams has one other offence that constitutes a sexual assault. That also was an offence of unlawful indecent assault, committed on 28 May 2006. Mr Williams had arranged to meet up with the victim to smoke cigarettes. He propositioned her for sex and rubbed her buttocks. She pulled his hand away and left. Initially Mr Williams followed her, and then went off in a different direction.
6. In respect of the robbery offence committed on 4 December 2002, the victim was a 14‑year‑old boy. He was playing with his remote control car in the street. Mr Williams was walking down that street. Mr Williams approached the victim. Mr Williams grabbed the remote controller for the car, threatening to punch the victim in the nose if he did not hand it over. The victim let go of the controller and ran away, picking up the car as he left. The aerial of the controller broke off in the interaction. The violence associated with this offence was the threat of punching the victim.
7. The State also relied on a further offence that Mr Williams committed on 18 December 1989 when he was 11 as constituting a serious offence. It was an offence of aggravated indecent assault of a young girl who it appears was 13 years of age at the time. The relevant offence provision has since been repealed.
8. The summons for the offence states that Mr Williams and four other young men held her arms and indecently assaulted her by feeling her breasts, buttocks and crotch. It is not clear though that the circumstances of the offending would necessarily constitute a serious offence under the Code, which is a requirement for an offence against a repealed provision to constitute a serious offence under the HRSO Act.[38] It would very much depend on what circumstance of aggravation was accepted when Mr Williams pleaded guilty to the offence. In any event, the offence was committed when Mr Williams was 11 and whether it is classified as a serious offence or not does not affect the outcome of this matter.
9. The final offence relied on by the State as constituting a serious offence is the grounding offence for this application, being the offence of unlawful assault causing bodily harm contrary to s 317 of the Code. As I have explained, that offence is not a defined serious offence within the meaning of the HRSO Act, but was declared to be a serious offence by the learned magistrate who sentenced Mr Williams. The circumstances of that offence were described by the Chief Justice in the following terms, which I gratefully adopt:[39]

That offence occurred on 7 January 2023. The victim was Mr Williams' then partner. The relationship commenced approximately two years prior to Mr Williams having been then most recently imprisoned and recommenced after his release. On the day of the offence, Mr Williams and the victim were walking along a local road after being at a friend's house where they had consumed alcohol. An argument broke out between them and the two of them became physically aggressive. During the altercation, Mr Williams punched the victim once to the left eye, causing bruises and swelling, and pain and discomfort. The offence occurred approximately four weeks after Mr Williams' release from prison for family violence offences against his previous intimate partner.

1. For the purposes of the hearing, the State prepared a chronology which contained Mr Williams' history of offending. In addition to the offences that I have described at [71] - [77] above, as an adult Mr Williams has committed offences of assault, violence against current or previous partners, breach of violence restraining orders, endangering the life, health or safety of his partner and assaulting a public officer.
2. Aspects of Mr Williams' more recent offending that are of particular concern are as follows. Attending at his former partner's home in breach of a violence restraining order and trying to stab her in the leg with a knife (8 December 2020). Attending at his former partner's home in breach of a violence restraining order, grabbing her arm while he was holding a knife and telling her he would 'have her in a pile of blood' (26 October 2020). Attending at his former partner's home in breach of a violence restraining order, entering her bedroom, placing his thumb into her eye socket area causing pain and bruising and threatening to throw hot water on her, saying 'I'll make sure you're scarred for life' (19 October 2020).
3. Mr Williams has previously threatened to break his partner's legs while holding a pole in one hand and a knife in the other (21 May 2017). Also, as part of one incident, Mr Williams swung a baseball bat twice at his partner's head (missing), held a knife approximately 15 cm from her throat and threatened to stab her if police attended (12 December 2017). Mr Williams also repeatedly punched his partner to the head and kicked her to the stomach and ribs while she was on the ground (4 November 2014).
4. In summary, Mr Williams has an extensive history of violent behaviour against current or prior partners, which has continued notwithstanding the existence of violence restraining orders. He does not have an extensive history of committing sexual offences that are serious offences under the HRSO Act.

1. I set out below a summary of the material evidence given at the hearing and comprised within the Book of Materials.

1. Dr Petch is a consultant forensic psychiatrist.
2. Dr Petch is of the opinion that Mr Williams meets the necessary threshold for a diagnosis of psychopathy.[40] Dr Petch is of the opinion that there is evidence that Mr Williams suffers from substance misuse disorder and anti‑social personality disorder.[41]
3. Dr Petch is of the opinion that the risk assessment undertaken indicates a high level of risk to the community of further serious offending.[42] Dr Petch described Mr Williams as having a well-established tendency to offend, and to be seriously violent in the context of broader coercive control in domestic relationships, usually whilst using substances.[43] Dr Petch accepted that Mr Williams is somebody who falls into the high risk, high needs category of offenders.[44]
4. Dr Petch considers that Mr Williams fails to appreciate the seriousness of his offending and the impact of his actions on others and does not accept responsibility for his offending behaviour.[45]
5. In respect of treatment and supervision, Dr Petch explained that at interview, Mr Williams was quite clear that he did not particularly welcome the intrusion and impact on his life of the conditions imposed by the interim supervision order. Dr Petch said Mr Williams did not particularly like having the electronic monitoring device. Dr Petch did not regard this as a surprise, saying he did not think many people would welcome such supervision requirements.[46]
6. Dr Petch identified multiple drivers for Mr Williams' offending, which included substance misuse and poor emotional regulation. Dr Petch stated that it was normal for Mr Williams to use substances to help him with coping and stress. Further, in respect of Mr Williams' poor emotional regulation, Dr Petch stated that Mr Williams' traumatic childhood has led to an overdeveloped stress response that is easily triggered.[47]
7. Dr Petch was asked about the effect of intoxication on Mr Williams' behaviour. Dr Petch said that Mr Williams could still possibly be violent when he is not intoxicated, however it is more likely that he would be violent when he is intoxicated.[48]
8. Dr Petch expressed his concerns about Mr Williams living at his mother's house. Dr Petch pointed to Mr Williams' mother being gravely ill, that the accommodation is shared by a number of people and a lot of people visit from time to time. Dr Petch is concerned that this exposes Mr Williams to associating with people who are affected by drugs or alcohol. Dr Petch acknowledged that the current living arrangements are the best that are currently available. However, he considers that the living arrangements are not ideal and are not without risk.[49]
9. Dr Petch was asked to explain the comment in his report that Mr Williams may struggle to adhere to the conditions in the short or long term without appropriate support. Dr Petch explained this comment, in part, was directed to the sheer complexity of the proposed conditions and the number of them. As Dr Petch rightly observed, 'remembering them all and adhering to them all at any one time is challenging for anybody'.[50]
10. Dr Petch also noted that it is very difficult for someone like Mr Williams, who has a long-standing substance misuse disorder, to keep abstinent when illicit drugs are readily available in the locality in which Mr Williams lives. Dr Petch noted that Mr Williams' drug use is not as rife as it once was. Dr Petch acknowledged that Mr Williams' reduced drug use was an achievement for him. However, Dr Petch noted that Mr Williams' drug use is still intermittent and still does pose an elevated degree of risk in terms of his day-to-day functioning.[51]
11. Dr Petch in his report identified five main approaches to reducing Mr Williams' risk of relapsing to substance misuse and then into offending and serious offending. They are:[52]
    • treat his substance use through rehabilitation and ongoing psychological input and relapse prevention;
    • optimise his coping strategies and social skills deficits within relationships through ongoing psychological counselling and treatment;
    • optimise his psychosocial functioning in the community through the provision of stable programs and constructive activities tailored to meet his needs;
    • provide very close ongoing supervision through the conditions of the order including guidance on how to keep within those conditions;
    • all this requires support, treatment and assistance to assist him in managing his difficulties. The support he receives will be vital if he is able to maintain stability.
12. Dr Petch was asked about developments that had taken place since he wrote his report. In particular, he was taken to Mr Williams' positive test results for methylamphetamine and amphetamine arising from a sample collected on 5 April 2024. Dr Petch indicated that he thought Mr Williams would find it difficult to refrain absolutely from drug use.[53]
13. Dr Petch was taken to the proposed conditions of the supervision order, which he had reviewed and agreed were appropriate. In his report, Dr Petch set out his opinion that the duration of the order would likely need to exceed two years.[54] In evidence, he explained he was not sure that less than two years would be particularly helpful. He also said that in two years it might be helpful for a court to review the order to see Mr Williams' progress on it.[55]
14. In cross‑examination, Dr Petch was taken to the list of drivers for Mr Williams' offending. He agreed that many of those drivers can be addressed through counselling. Mr Williams' counsel pointed out to Dr Petch that Mr Williams' previous longest continuous period in the community was 165 days, however he has now been in the community for about eight months. Dr Petch described this as a real achievement. Dr Petch said he would have anticipated that without the conditions, Mr Williams would have struggled a lot more. Dr Petch therefore thinks the conditions probably have had a positive impact.[56] I infer Dr Petch is talking about the conditions imposed by the interim supervision order and also imposed by the PSSO.
15. Dr Petch was taken to the reference in his report that Mr Williams had reduced incidents after he completed a family violence program in 2014, although the violence and offending continued beyond that date. In evidence, Dr Petch said the reduction in incidents suggests that:[57]

... with decent and proper wraparound support, there is a response that will ameliorate risk. So it does demonstrate the value of provision of services for him.

1. In terms of the conditions of a supervision order, Dr Petch was of the view that the simpler the conditions, the better. Dr Petch observed in respect of the proposed conditions: [58]

... I don't think that Mr Williams necessarily has an able appreciation that the conditions are there in order to assist him remaining in the community and reduce the chances of him reoffending and ending up back in custody because nobody wants that. So these conditions are deemed necessary in order to maintain his safety, but also, it's for his benefit.

1. Dr Petch said in cross-examination that for someone with Mr Williams' long-standing substance abuse issues, it is expected there will be relapses. Dr Petch also observed that Mr Williams needs ongoing help in achieving and maintaining a degree of insight and understanding that the conditions are of benefit to him. [59]

1. Dr Riordan is a consultant forensic psychologist.
2. Dr Riordan is of the opinion that Mr Williams fulfils the criteria for anti‑social personality disorder and presents with significant difficulties with interpersonal attachment that has contributed to his repeated use of violence in interpersonal relationships.[60]
3. Dr Riordan considered that during her interview with Mr Williams, he diffused responsibility for his use of violence as being a reasonable and proportionate response to the behaviour of his victims.[61]
4. Dr Riordan described Mr Williams as presenting with a chronic history of perpetrating intimate partner violence. Dr Riordan stated in her report that Mr Williams' early growth and development occurred within community, family and social contexts that normalised, condoned and encouraged the use of violence to meet needs, express emotional states, resolve conflict, have fun, and assert power and dominance. Dr Riordan is of the opinion that Mr Williams has developed a reliance on sex and sexual behaviour as a form of self-soothing, to assist him to manage life stressors and to regulate his emotional states.[62]
5. Dr Riordan also set out in her report that Mr Williams presents as someone who misinterprets 'even the most benign social behaviour of a woman that he finds sexually attractive to indicate reciprocal sexual interest'.[63]
6. Dr Riordan expressed the opinion in her report that in the absence of any restriction order, Mr Williams would present a well above average risk for committing a serious offence as defined in the HRSO Act.[64] In her evidence, Dr Riordan described the phrase 'well above average' as meaning Mr Williams falls into the highest level.[65]
7. Dr Riordan's opinion needs to be understood against the background of what she said earlier in the report. Dr Riordan identified four risk scenarios.[66] First, she considered the most likely future offence will involve Mr Williams physically assaulting an intimate partner. Second, he may behave in a threatening, intimidating and violent manner towards someone known to him that he perceives to have acted in an inappropriate way. Third, Mr Williams will engage in an act of sexually harmful and/or abusive behaviour directed towards an intimate partner or casual sexual acquaintance. Fourth, Mr Williams presents with a tendency to misinterpret friendly behaviour and common social etiquette of females as expressing a sexual interest in him. In such a scenario, he may act in an inappropriate way towards them.
8. Dr Riordan expressed the opinion that Mr Williams poses a well above average risk of sexual, violent and generalist reoffending if those risk scenarios are not adequately managed.[67]
9. In evidence, Dr Riordan was taken to a section of her report noting that Mr Williams said he and his lawyer would fight her to have the GPS monitoring condition removed.[68] She was asked for her opinion as to the likelihood that Mr Williams would remove the device. She said it was a difficult question to answer but noted that he kept the device on since February 2024. Having heard Dr Petch's evidence, Dr Riordan observed:[69]

... if Mr Williams can come to understand that the conditions of the order are there to assist rather than being completely punitive, then he might be more readily accepting of the GPS monitoring [over time].

1. In relation to Dr Petch's assessment that Mr Williams presented with psychopathy, Dr Riordan explained that on the tests that she undertook, Mr Williams did not meet the clinical cut off score for psychopathy. However, Dr Riordan said that his overall score fell within the high range on the relevant test. Dr Riordan considered her score on this test and Dr Petch's score fell within the standard error margin for the test.
2. In her evidence, Dr Riordan expressed concerns around the home where Mr Williams was living. She pointed to his mother being unwell and this causing stress for Mr Williams. She also pointed to people coming and going from the house and that those people were using drugs and alcohol. She described it as being a very difficult situation.[70]
3. In Dr Riordan's report she considered that the risk associated with Mr Williams' substance use was not recently present due to Mr Williams' abstinence from alcohol and other drugs.[71] However, since then, Mr Williams has returned positive tests for methylamphetamine and amphetamine.
4. In her evidence, Dr Riordan was taken to Mr Williams' description that one of his relapse prevention strategies was to recite the Daily Bread, which she understood to be scripture readings. Dr Riordan explained that she would be concerned if that was his only relapse prevention strategy.[72]
5. Dr Riordan was taken to the part of her report where she said that Mr Williams would benefit from ongoing individual intervention through the forensic psychological intervention team irrespective of whether the court imposes a restriction order.[73] She understands that the team member who had been providing treatment for Mr Williams in Albany had resigned. She described this as a setback as Mr Williams had already established some level of therapeutic relationship with that team member.[74] As I set out below, a replacement psychologist has not been appointed to that role.
6. The prospect of video counselling was raised with Dr Riordan. She said there was sound research evidence to suggest that video link intervention can be effective. She also thought that if the counsellor was a female, the use of a video link may reduce the prospect of Mr Williams having a sexual preoccupation with the counsellor.[75]
7. Dr Riordan was taken to the recommendation in her report that the term of the supervision period order be at least five years. In her report, Dr Riordan said that period 'would provide an opportunity for Mr Williams to consolidate any initial treatment gains, establish and maintain lifestyle changes, and to demonstrate sustained capacity to self-manage his risk'.[76] In her evidence, she said she recommended this term essentially due to the density of Mr Williams' criminogenic needs.[77]
8. In cross‑examination, Dr Riordan was taken to the following passage from her report:[78]

... since his release from prison, Mr Williams' decisions and behaviour appear to be much more considered, [indicating] a reduction in the salience of impulsivity over time.

1. Dr Riordan was asked what may have led to that reduction. She said: 'The order'.[79]
2. Dr Riordan also said she thinks Mr Williams is much more cognisant of the order restrictions being monitored. Dr Riordan considered this assisted Mr Williams in making decisions in a more deliberate way.[80]
3. Dr Riordan was asked whether Mr Williams is benefiting from the order and she answered '[a]bsolutely, yes' and agreed that it is relevant to his risk.[81] I infer Dr Riordan's reference to the 'order' is a reference to the PSSO and the interim supervision order.
4. Dr Riordan was taken to her evidence that the order should have a five year duration. She was asked for her view on coming back before the court for a review and whether that might be of benefit. Dr Riordan said a review would always be of benefit because risk is dynamic.[82]
5. In Dr Riordan's report, she recommended there be a gradual moderation of the conditions of a supervision order with respect to reporting and monitoring if Mr Williams continues to engage well, including by way of meaningful engagement in treatment.[83] Dr Riordan reiterated this recommendation in her evidence in cross‑examination.[84]

1. Mr Carmichael is a planning manager for high risk serious offenders.
2. He provided a report as to the treatment options available to Mr Williams. In that report, he explained that the available options are constrained by Mr Williams living in the Albany area.
3. In evidence, Mr Carmichael said that Mr Williams had attended eight sessions with a psychologist. Unfortunately, the psychologist has since resigned and Mr Williams has not yet been allocated a new psychologist. Mr Carmichael was not able to provide a timeline as to when Mr Williams will be allocated a new psychologist.
4. In evidence, Mr Carmichael said there is potential for Mr Williams to receive counselling by video link pending the appointment of a new psychologist.

1. Ms McGeown is a senior community corrections officer who has been supervising Mr Williams since 2023 when he was released on the PSSO.
2. In Ms McGeown's report, she expressed concern about Mr Williams living at his mother's house, because this places him at risk of using drugs and alcohol. She noted that Mr Williams had told her that people who were negative influences attended at his mother's house and this was influential to his drug use and offending cycle. She also noted that illicit drugs are being supplied from properties that Mr Williams has attended.[85]
3. In her evidence, Ms McGeown said that Mr Williams had been attending the 'atWork' organisation in Albany, which is a job network agency. She said the agency had been exploring with Mr Williams potential traffic management courses.[86]
4. Ms McGeown expressed concerns about Mr Williams attending residential homes where she considered vulnerable females were living.[87] Ms McGeown is able to discern Mr Williams' movements from monitoring his electronic GPS tracking device. It appears that Ms McGeown's concern is that Mr Williams' purpose for attending at those homes is to interact with the vulnerable females who live there. However, it is difficult on the material before me to determine what Mr Williams' purpose was for going to those homes, or who was there when he did so. From what I could see in the reports, Mr Williams was not asked about this topic. In respect of one of the homes, Mr Williams has gone there 14 times since the imposition of the interim supervision order. This is of concern. It may elevate the risk of Mr Williams engaging in offending behaviour, especially if he were to form a relationship with one of the females in the home without the prior knowledge of his supervising community corrections officers.
5. The updated community supervision assessment report in respect of Mr Williams dated 8 April 2024 states that Mr Williams' GPS tracking did not reveal any curfew or exclusion zone violations.[88]
6. In terms of Mr Williams' accommodation, he is on the priority list for public housing. Ms McGeown explained that the current delay for obtaining priority housing in the Great Southern region is such that a person who had applied in June 2019 was receiving priority housing in April 2024.[89]
7. Ms McGeown explained that Mr Williams had been attending individual and group counselling sessions through the Palmerston Association.[90] The updated community supervision assessment report states:[91]

Mr Williams has continued to attend counselling with the Palmerston Association for both individual and group counselling sessions. Confirmation has been received from Palmerston advising that Mr Williams has been attending and participating in the SMART Recovery Program (Self-Management and Recovery Training) on a regular basis and that he has displayed a good level of engagement. In addition, Mr Williams participates in individual counselling on a weekly basis to address his substance and alcohol misuse and information received from his counsellor confirms that he has attended in person on seven occasions since November 2023 in addition to brief interventions via telephone. Feedback from his counsellor indicates a good level of engagement and willingness to address his entrenched history of illicit substance and alcohol abuse.

1. In her evidence, Ms McGeown described Mr Williams as 'generally pretty honest'.[92] This is to be contrasted with the community supervision assessment report dated 31 January 2024, which stated that a 'lack of upfront and honest disclosure on a consistent basis by Mr Williams raises concern regarding his ongoing high risk of reoffending'. The report goes on to state that Mr Williams 'has remained relatively guarded'.[93] It seems to me that these contrasting views can be reconciled on the basis they reflect that overall, Mr Williams is initially guarded but when queried, is generally honest. I think this is consistent with Ms McGeown's evidence in cross‑examination, when she said that she and Mr Williams had 'maintained open and honest and frank discussions about why he is in this position'.[94]
2. In cross‑examination, Ms McGeown accepted that Mr Williams' engagement with Palmerston was at his own volition.[95]

1. Following the hearing, I admitted into evidence further material provided by the State relating to urine samples that Mr Williams provided on 5, 8, 15 and 17 April 2024. The material comprised prosecution notices and statements of material facts in respect of the results of those samples. Mr Williams consented to this further material being admitted into evidence. The parties did not wish to make further submissions in respect of this further material.
2. The results for the 8 April 2024 sample were not available at the time of the hearing on 12 April 2024. The samples taken on 15 and 17 April 2024 were taken after the hearing.
3. The results are not good. Each of the tests returned positive readings for amphetamine and methylamphetamine.
4. As a consequence of the positive results, Mr Williams was charged with four offences of contravening the interim supervision order. He was taken into custody. On 9 May 2024, Mr Williams was convicted and sentenced for the four offences to a global fine of $800. He was released from custody and remains subject to the interim supervision order.
5. I now turn to the assessment of the factors set out in s 7(3) of the HRSO Act.

1. Section 7(3)(a) requires that I have regard to the reports prepared under s 74 and the extent to which Mr Williams cooperated in the examinations required for the purposes of those reports. The relevant reports are those of Dr Petch and Dr Riordan. I have addressed their reports and evidence at [83] - [121] above. Further, there is no suggestion that Mr Williams did not cooperate in the assessments undertaken for the purposes of the reports.

1. Section 7(3)(b) requires that I have regard to any additional assessments. These comprise the matters set out in the reports of Mr Carmichael and of community corrections. I have addressed these reports and the evidence of Mr Carmichael and Ms McGeown at [122] - [134] above.

1. It is useful to address s 7(3)(c) - (d) together. Section 7(3)(c) requires that I have regard to information indicating whether or not Mr Williams has a propensity to commit serious offences in the future. Section 7(3)(d) requires that I have regard to whether there is any pattern of offending behaviour by Mr Williams.
2. The State submits that Mr Williams has a propensity, being an inclination, tendency or disposition, to commit serious offences of violence against persons both known and unknown to him. I do not accept that submission. The only 'serious offences' that Mr Williams has committed which involve the use of actual violence are the two sexual penetration offences. These offences arose out of one incident. The robbery offence involved threatened violence. The offence which was declared to be a serious offence is not a serious offence by itself - see [77] above. Overall, I do not think Mr Williams' prior offending has the necessary characteristics to justify a finding that he has a tendency to commit serious offences of violence as the State suggests.
3. That being said, Mr Williams has a pattern of violent offending, in particular towards his current or prior partners. That is of real concern. Where the offending has involved the actual or threatened use of weapons, it is only through good fortune that the offending did not cause significant physical harm to the victims. It is still likely to have caused psychological harm. It is this overall pattern of offending, taken together with the serious offences, that is of most concern on this application.

1. It is useful to address s 7(3)(e) - (f) together.
2. Section 7(3)(e) requires that I have regard to any efforts made by Mr Williams to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation program. Section 7(3)(f) requires that I have regard to whether Mr Williams' participation in any rehabilitation program has had a positive effect.
3. Self‑evidently, prior attempts at rehabilitation have not resulted in entrenched gains for Mr Williams.
4. Under his most recent supervision regime, Mr Williams engaged with his allocated psychologist for eight sessions, until her resignation. A replacement psychologist has not yet been allocated, however Mr Williams can participate in video counselling sessions.
5. Mr Williams has engaged in individual and group counselling sessions through the Palmerston Association and has engaged well in both types of sessions. Mr Williams engaged in these programs voluntarily.
6. Further, Mr Williams has not engaged in any violent offending since being released from prison, which is now a period of approximately 10 months. This reflects that some initial gains have been made and that the PSSO and interim supervision order are having a positive effect.
7. There is also Mr Williams' ongoing drug use. That is of concern. The positive results in respect of samples provided shortly after the hearing are of particular concern. Mr Williams was present at the hearing. From my observations, he appreciated the significant consequences for him of the State's application.
8. However, it is unrealistic to expect that someone who has been using drugs since they were 11 years of age will readily be able to cease drug use absolutely. Dr Petch said that he thought Mr Williams would find it difficult to refrain absolutely from drug use.
9. I think what is also important is that the drug use has not escalated to violent offending. As Dr Riordan said in her report: 'Mr Williams' decisions and behaviour appeared to be much more considered, [indicating] a reduction in the salience of impulsivity over time'.[96]
10. Dr Riordan said in her report that Mr Williams expressed a reluctance to continue his engagement with the forensic psychological intervention team after the restriction order hearing.[97] Dr Riordan met with Mr Williams on 21 and 22 November 2023 for the purposes of preparing her report. The updated community supervision assessment report conveys that since November 2023, Mr Williams engaged well in group and individual sessions with Palmerston.
11. Overall, I think Mr Williams is at that 'tipping point' where he has started to appreciate that counselling is there to help him and is not a punitive regime.

1. Section 7(3)(g) requires that I have regard to Mr Williams' antecedents (personal background) and criminal record.
2. I have addressed Mr Williams' criminal record when dealing with s 7(3)(c) - (d).
3. The State points out in its written submissions that as an adult, Mr Williams has been in custody for approximately 45% of the time. Prior to his most recent release from prison, the longest period that Mr Williams spent in the community as an adult was 165 days.
4. Mr Williams' personal background demonstrates the devastating impact that can occur when a young boy is exposed to drug use and violence, and where that drug use and violence is condoned in the environment in which he grows up. Such a background might well reduce Mr Williams' criminal responsibility on sentencing in accordance with Bugmy principles.[98] It does not, however, reduce his risk of reoffending.
5. Mr Williams has little in the way of positive supports around him. The most significant protective factors in place at the moment are the interim supervision order, Mr Williams' engagement with Palmerston and the prospect that he might be able to obtain employment through 'atWork'.

1. Section 7(3)(h) requires that I have regard to the risk that if Mr Williams were not subject to a restriction order, he would commit a serious offence.
2. Mr Williams' history is such that he has spent a significant part of his adult life in custody and has engaged in a consistent pattern of violent offending, predominantly against current or previous partners.
3. Dr Petch and Dr Riordan both express the opinion that Mr Williams is a high risk of committing a 'serious offence'. However, in substance, their reports and evidence are directed more to the general nature of Mr Williams' possible future conduct, without addressing the specifics of what might elevate that conduct into a 'serious offence'. In that respect, it is not for Dr Petch and Dr Riordan to discern whether particular conduct constitutes a serious offence under the HRSO Act. Their expertise is directed to the type of behaviour that Mr Williams might engage in, and the risk that he might do so.
4. Dr Petch's and Dr Riordan's opinions focus on the risk that Mr Williams might engage in acts of violence against current or prior partners. They assess that risk as high. That Mr Williams may engage in such acts does not necessarily result in the prospective conduct constituting a serious offence. It is the gravity of Mr Williams' future possible conduct that needs to be considered.
5. In my view, Mr Williams' relevant risk profile is directed to possible violent offending against an existing or prior intimate partner that is of such a nature and gravity that it constitutes a 'serious offence'. The most likely such offences are that of causing grievous bodily harm (s 297 of the Code) or doing an act causing bodily harm or danger with intent to cause bodily harm (s 304(2) of the Code). For the relevant injury to constitute grievous bodily harm, it is necessary that bodily injury is suffered of such a nature as to cause or be likely to cause permanent injury to health. This assessment considers the nature of the injury itself, without the availability of medical assistance. For 'bodily harm' to be caused, the act must result in a bodily injury that interferes with health or comfort.
6. While Mr Williams' offending to date has not resulted in grievous bodily harm to the victim, that is through good fortune, not because Mr Williams' acts were not capable of causing such harm. This is particularly the case where the offending has involved the actual or threatened use of weapons.
7. Since his release from prison on the PSSO, Mr Williams has not engaged in any violent offending. However, during that period he has been the subject of either the PSSO or the interim supervision order. Dr Petch and Dr Riordan were both adamant in their evidence that it is these supervisory regimes which have assisted in preventing Mr Williams from further violent offending.
8. Overall, I think there is presently a high risk that if Mr Williams is not placed on a restriction order, he will engage in violent behaviour of such a nature and gravity that the behaviour will constitute a serious offence of the type I have described at [165] above.

1. Section 7(3)(i) requires that I have regard to the need to protect members of the community from the risk that I have identified at [165] ‑ [168] above.
2. As I have explained, Mr Williams has a pattern of violent offending, in particular towards his current or prior partners. And, where that offending has involved the actual or threatened use of weapons, the offending carried a substantial risk of significant physical harm being caused to the victims. Irrespective of the physical harm caused, the offending carries a real prospect of causing psychological harm to the victims. Mr Williams has not been deterred by violence restraining orders from engaging with, and assaulting, those persons for whose protection the orders were made. Mr Williams also has a long-standing substance misuse disorder, which has the capacity to affect the nature and gravity of his actions.
3. There is therefore a substantial need to protect members of the community from the risk of Mr Williams engaging in violent offending.

1. Section 7(3)(j) requires that I have regard to any other relevant matter. In this case, the relevant matters are picked up by the mandatory considerations in s 7(3)(a) - (i). There are no other relevant matters.

Assessment of whether Mr Williams is a high risk serious offender

1. I am satisfied that the evidence overall is acceptable and cogent evidence upon which I can make the requisite assessment. In particular, in my view the evidence sufficiently and cogently addresses the mandatory topics set out in s 7(3).
2. The starting point in the required analysis is to assess what type of serious offences Mr Williams is at risk of committing. I have identified that Mr Williams' risk of committing serious offences is directed to possible violent offending against a current or prior partner that is of such a nature and gravity that it constitutes a serious offence. The particular offences of concern are causing grievous bodily harm, or doing an act causing bodily harm or danger with intent to cause bodily harm. In my view, there is presently a high risk that Mr Williams will engage in violent offending of that nature.
3. A perhaps unusual feature of this application is that the identified risk is that of Mr Williams committing a serious offence of a type he has not previously committed.[99] However, it is not always necessary that the serious offences that an offender has committed are the same as the serious offences that they might commit. In this respect, Mr Williams has displayed a pattern of offending that includes the actual or threatened use of weapons which carried the risk of significant physical injuries to the victims.
4. The consequences of any such future offences are not limited to the physical harm that might be caused. Significant psychological harm might also be caused. Enduring psychological harm is often a consequence of domestic violence.
5. I am satisfied the nature and extent of the harm that might eventuate if Mr Williams offends in the way I have described is significant. The likelihood of him committing a serious offence absent a restriction order is high. He has not been deterred by violence restraining orders from engaging with and assaulting those persons for whose protection the order was made. He also has not been deterred by the many terms of imprisonment to which he has been sentenced. Mr Williams has not achieved substantial rehabilitative gains as an adult. He continues to use illicit drugs, which increases his risk of resorting to violence.
6. Mr Williams has engaged with treatment since being released on the PSSO and I assess that he is at the 'tipping point' where he has started to appreciate that counselling is there to help him and is not a punitive regime. However, this falls well short of demonstrated rehabilitation.
7. Ultimately, the significant nature and extent of the harm that might eventuate from any future serious offences, combined with the high likelihood of that offending occurring absent a restriction order, is such that I am satisfied there is presently an unacceptable risk that Mr Williams will commit a serious offence of the type I have described. I am satisfied of this to a high degree of probability.
8. I need to next consider whether it is necessary to make a restriction order to ensure adequate protection of the community against that unacceptable risk. In making that assessment, I recognise Mr Williams' entitlement to be at liberty, an entitlement not lightly to be denied. Further, as I said earlier, the nature of the unacceptable risk informs the assessment of 'necessity'.
9. In part, the unacceptable risk arises because over his adult life Mr Williams has not been able to achieve substantial rehabilitation and he has not been deterred by protective measures put in place, in particular, violence restraining orders. He also has not been deterred by the many terms of imprisonment to which he has been sentenced. The failure of deterrent measures and the lack of substantial gains in rehabilitation lead me to the view that it is necessary to make a restriction order to ensure adequate protection of the community. I am satisfied of this to a high degree of probability.
10. I therefore am satisfied that Mr Williams is a high risk serious offender under the HRSO Act.

1. I now need to decide whether to make a continuing detention order or a supervision order. There is not a predisposition to making a continuing detention order. That being said, s 48(2) of the HRSO Act provides that the paramount consideration in the choice of order is the need to ensure adequate protection of the community. The word adequate conveys the minimum necessary to provide the requisite protection.
2. If I am to make a supervision order, I must be satisfied on the balance of probabilities that Mr Williams will substantially comply with the standard conditions of it. He bears the onus of proving this. The requisite assessment is ultimately a matter of judgment for me depending on the circumstances of this case.
3. I have summarised the standard conditions at [45] above.
4. I think there are two important observations to make in respect of the standard conditions. The first is that Mr Williams has been subject to an interim supervision since 7 March 2024. That order contained the standard conditions set out in s 30(2).[100] While he has presented with numerous positive tests for illicit drugs, it is not suggested that he has breached the standard conditions imposed by the interim supervision order.
5. The second observation is that the requisite assessment under s 29(1) is undertaken having regard to the effect of the order on him. So, it differs to the assessment under s 7(1) as to whether he is a high risk serious offender. The assessment under s 7(1) is undertaken on the basis that there is no supervision order in place. The assessment under s 29(1) is undertaken on the basis that such an order is in place.
6. As will be apparent from what I have already set out, while Mr Williams has been the subject of the interim supervision order, and before that the PSSO, Mr Williams has not committed any serious offences or any offences involving violence. He has breached the interim supervision order by returning positive tests to methylamphetamine and amphetamine, however those breaches do not constitute a serious offence.
7. The State in its submissions raised a concern as to Mr Williams' attitude to being the subject of electronic monitoring. However, it is important that Mr Williams' comments are put in their proper context. Dr Riordan recorded in her report that Mr Williams told her that he would not remain subject to GPS monitoring and that 'he and his lawyer would "fight" [her] to have the condition removed'.[101] This conveys that Mr Williams would seek to have the GPS monitoring condition removed. It does not convey that he would not comply with it. Further, on the evidence of Ms McGeown, there is no suggestion that Mr Williams has not complied with the condition, nor is there any suggestion that the results of the electronic monitoring indicate he has breached the curfew or the exclusion zone conditions.
8. The State also referred to Mr Williams' resentment of the supervision process as described by Dr Petch in his report.[102] However, as Dr Petch noted in his evidence, such an attitude is not unusual for someone subject to these types of orders.[103]
9. The State points to Mr Williams having a poor record of previous compliance with supervision. However, I think that has to be looked at against what has occurred since he has been on the PSSO and the interim supervision order. Both Dr Petch and Dr Riordan expressed the view that the PSSO and the interim supervision order are the predominant reason why Mr Williams has not committed any serious offences under the HRSO Act since he was released into the community on 8 August 2023 (pursuant to the PSSO).
10. Furthermore, Ms McGeown in her evidence said that she and Mr Williams 'have maintained open and honest and frank discussions about why he is in this position'.[104]
11. The standard conditions of a supervision order subject offenders to electronic monitoring. Broadly speaking, the additional conditions of the proposed supervision order put forward by the parties in respect of Mr Williams:

(a) regulate where Mr Williams will live and who he may permit to visit that home;

(b) regulate what other residential homes he may visit;

(c) require Mr Williams to report any new friendships and new intimate partners to community corrections officers;

(d) permit regular visits from police officers on Mr Williams and permit those officers to search Mr Williams, his home and vehicle;

(e) require Mr Williams to engage in counselling;

(f) preclude Mr Williams from having contact with the victims of his offending;

(g) put in place a disclosure regime that permits community corrections to monitor the medication that Mr Williams is prescribed;

(h) impose a curfew; and

(i) provide extensive conditions aimed at preventing Mr Williams from being in situations that significantly increase his risk of reoffending.

1. I am satisfied that the overall effect of the supervision order ensures the adequate protection of the community and does so in a manner that reflects the minimum intrusion necessary on Mr Williams' liberty. A factor of importance in coming to this view is that Mr Williams has not committed any serious offences, or any offences involving violence, while he has been subject to the PSSO and the interim supervision order. Further, both Dr Petch and Dr Riordan are of the view that the PSSO and the interim supervision order have contributed to that outcome. For the same reasons, I am satisfied on the balance of probabilities that Mr Williams will substantially comply with the standard conditions of a supervision order.

1. I turn now to the period of the order. As explained earlier, in my view the period of the supervision order should reflect the minimum intrusion necessary to ensure adequate protection of the community.
2. I do not think a sensible assessment can be made as to when Mr Williams might cease to be a high risk serious offender. There are far too many variables involved in such an assessment. They include accommodation options, treatment options, employment options, health, financial stability, relationship status, the extent to which Mr Williams is associating with people who are a positive or negative influence on him and the extent to which Mr Williams is able to reduce, or preferably eradicate, his illicit drug use. Many of these variables are beyond Mr Williams' control.
3. The HRSO Act does not provide for regular reviews of a supervision order, which are a feature of continuing detention orders.[105] Further, the HRSO Act does not provide a mechanism by which the period of a supervision order can be shortened. Thus, even if a person subject to a supervision order has achieved satisfactory rehabilitation, they do not have the option of applying to shorten the order. They can apply to amend the conditions, however the standard conditions will remain.
4. On the other hand, the State has the ability under the HRSO Act to apply for a further supervision order to commence at the expiry of the supervision order that I impose.[106] Thus, if the court considers that a further supervision order should be made, there will be no gap between the expiry of the old order and the start of the new one. Further, the State's ability to apply for a new order is not conditioned upon Mr Williams committing any further serious offence.
5. Both Dr Petch and Dr Riordan are of the opinion that the conditions of the supervision order should be the subject of review to assess how Mr Williams is progressing. Given the HRSO Act does not provide for regular reviews of a supervision order, the only means by which an offender can seek a 'review' of the conditions is by making an application to amend under s 49. The mechanisms for obtaining reports as provided for by pt 7 of the HRSO Act do not apply to an application to amend.[107] Given Mr Williams' personal circumstances, in my view it is likely to be quite difficult and onerous for him to initiate an application to amend. The CEO of the Department (with the Attorney General's consent) may make an application to amend, but is not obliged to do so. Section 49 does not permit the State to make an application to amend. Given these matters, there can be no certainty that an application to amend so as to facilitate a 'review' of the conditions will be brought.
6. In the circumstances of this case, in my view an important factor in setting the term of the supervision order is the period by which Mr Williams will be able to make appreciable gains in his rehabilitation and achieve some stability living in the community. Mr Williams has been subject to the interim supervision order since 7 March 2024 and subject to the PSSO since 8 August 2023. He has not committed any serious offences, or any offences involving violence, since 8 August 2023. Both Dr Petch and Dr Riordan are of the view that the PSSO and the interim supervision order have contributed to that outcome. Mr Williams' illicit drug use remains a significant problem.
7. I have had regard to the views of Dr Petch and Dr Riordan relating to the period of the order. Dr Petch's view is that two years is the minimum period by which Mr Williams will be able to make sustained gains in his rehabilitation. Dr Riordan's view is that the minimum period of the supervision order should be five years, reflecting her view of the period sufficient for Mr Williams' criminogenic needs to be met. Dr Riordan's view is directed to the period in which Mr Williams will achieve substantive rehabilitation.
8. Overall, I assess the period by which Mr Williams will be able to make appreciable gains in his rehabilitation and achieve some stability living in the community as approximately 2 years and 6 months from the commencement of the interim supervision order.
9. Having regard to the matters set out at [195] ‑ [202] above, in my view the appropriate period of the supervision order is 2 years and 3 months. In my view, this period reflects the minimum intrusion on Mr Williams' liberty that is necessary to ensure adequate protection of the community. If prior to the expiry of the period of the supervision order, the State considers that Mr Williams remains a high risk serious offender, the State can apply for a new supervision order that runs continuously from the expiry of the supervision order that I impose. If a new supervision order is made, its conditions and period can be framed by reference to Mr Williams' progress on the supervision order that I have imposed.
10. The supervision order will commence upon, or shortly after, the delivery of these reasons. I am satisfied that the implementation of the order is practically feasible from that point in time, given that Mr Williams is already subject to the interim supervision order.[108]
11. I have some queries and comments on the conditions of the supervision order proposed by counsel. I will raise those matters with counsel upon delivery of these reasons. The final form of the order made will be attached to the published version of these reasons.

IN THE MATTER of the High Risk Serious Offenders Act 2020

_________________________________________________________________________

ON 19 JUNE 2024 _________________________________________________________________________

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of two years and three months from 19 June 2024 on the following conditions:

1. Report to a Community Corrections Officer (CCO) at the Albany Adult Community Corrections Centre, 184 Stirling Terrace, Albany, Western Australia, 6330 and within 48 hours of the order being issued and advise the officer of your current name and address;

1. Report to and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments you have;

1. Notify a CCO of every change of your name, place of residence, or place of employment at least 2 days before the change happens;

1. Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 (electronic monitoring) or 32 (curfew));

1. Not leave, or stay out of the State of Western Australia without the permission of a CCO;

1. Not commit a serious offence as defined in the High Risk Serious Offenders Act 2020 (serious offence) during the period of the Order;

1. Be subject to electronic monitoring under section 31;

1. Reside (live) at [address redacted] and spend each night there (period can be defined by a CCO). You can stay at a different address only if the different address is approved in advance by a CCO assigned to you (please note the address is the subject of a suppression order);

1. Not start or increase any paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO;

1. Attend and engage in all appointments as directed. Receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, mentor, support service and/or support person as directed by a CCO;

1. Comply with the requirements of all programs as directed by a CCO;

1. Permit any medical practitioner, psychologist or psychiatrist to tell the Department of Justice about your medical treatment. This includes any medication you are taking, or that has been prescribed to you;

1. Report to the Officer-in-Charge of the High Risk Serious Offender team at the Albany Police Station (the OIC), Stirling Terrace, Albany within 48 hours of the order starting, and report to and receive visits from Police when and where directed by the OIC or another officer;

1. If asked to, allow Police Officers to enter and search your home and/or vehicle, and search you and allow the Police Officers to seize (take) any items they believe to contravene the conditions of the Order. The police officer is to show you a copy of this condition 14 before acting pursuant to it;

1. Remain at your home and/or vehicle while Police Officers conduct a search of your home and/or vehicle under condition 14;

1. Agree to the exchange of any information about you between people and agencies involved in carrying out the Order, including any medical practitioner, psychologist, psychiatrist or counsellor;

1. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to speak to anyone you spend time with or may spend time with and, where appropriate, to tell them information about you, including your offending history;

1. Unless you have the prior approval of your CCO, have no contact with the victims of your sexual offending and have no contact with current or previous partners who are victims of your offending. Contact in this condition means speaking to the victim in person or by phone, making any gestures towards the victim, messaging the victim using electronic devices, or asking someone else to speak to or send a message to the victim;

1. Unless contact with victims is permitted by the previous condition, if you see any of the victims, you must immediately leave where you are, without speaking to them or gesturing to them, and you must look away from the victims;

1. Report to the CCO and WA Police any contact with your victims within 48 hours of such contact occurring. Contact in this condition means speaking to the victim in person or by phone, making any gestures towards the victim, messaging the victim using electronic devices, or asking someone else to speak to or send a message to the victim;

1. Not commit any criminal offence that can be dealt with by a sentence of imprisonment, and which also involves sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;

1. Not possess or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, which includes cannabis. This does not apply to a drug that your doctor has prescribed for you, as long as you don't use more than the doctor has told you to use;

1. Not breach any order imposed under the Restraining Orders Act 1997;

1. You must not assault or threaten any staff member from the Department of Justice, or any person providing a service on behalf of the Department;

1. Comply with a curfew, requiring you to remain at and not leave your approved address as directed by a CCO from time to time;

1. When subject to a curfew under this order, during the time when you must be at your approved residence:

(a) go to the front door or front yard if a CCO or Police Officer asks to see you;

(b) speak on the telephone, to any CCO or Police Officer or their representative monitoring your curfew, if they call to check you are at home;

1. When subject to a curfew under this Order, you must tell anyone at the house who may answer the telephone or door that you are on a curfew and ask them to tell you about attempts by police or a CCO to contact you;

1. You must not be in a vehicle with a female (including taxis and rideshare vehicles, for example, Uber) except where:

a) You have the prior approval of your CCO or WA police;
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> b) The vehicle is an emergency services vehicle (for example, an ambulance or police vehicle); or
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> c) The vehicle is a public transport vehicle (for example, a public bus);

1. Except for the approved address where you live (condition 8), not enter any residential address, unless authorised in advance by a CCO;

1. Not invite or encourage any female to enter any residential address in which you live unless you have first obtained the CCO's approval. This condition does not prevent you from encouraging a female who lives at your approved residential address to come inside the home;

1. When asked by a CCO to do so, you must tell them:

(a) about any romantic or sexual relationship that you have and who it is with;

(b) who you are spending time with;

(c) who you are speaking to or messaging using an electronic device such as a phone, computer or tablet;

1. You must make such disclosure as your CCO tells you to of your past offending and the current order to anyone you are spending time with or are communicating with. You must also permit the CCO or a Police Officer to check with that person to make sure the disclosure has been made;

1. Not spend time or communicate with anyone you know to have committed a serious offence unless you have first obtained the CCO's approval CCO;

1. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to another place for a sample to be taken;

Provide a legitimate sample pursuant to condition 34;

1. Not buy, or possess, or use alcohol without prior approval of a CCO;

1. Not to go or remain at any licensed venue unless permitted or required to do so for the following reasons:

a) For the purpose of avoiding or minimising a serious risk of death or injury to yourself or another person;
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> b) As approved in advance by a CCO;
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> c) On the order of a Police Officer;

1. Not to stay anywhere that prohibited drugs are being used or, if drugs are being used at your home, go to another part of the house, or ask the persons using prohibited drugs to leave;

1. When requested, tell a CCO or Police Officer of every computer, phone, tablet or other similar type of device that you possess or use, whether or not it can be connected to the internet, and tell them where it is;

1. Not allow any person other than a CCO or WA Police access to any device referred to in condition 39, without the CCO's prior approval. You must enable device locking or password access of your electronic devices;

1. Not provide or disclose your passwords or other means used to access the devices referred to in condition 39, or any online accounts, to any person other than a CCO or Police Officer. Should any other person need to access a device, for example to fix it, approval must be sought in advance from a CCO;

1. When asked, to permit a CCO or WA Police at any location nominated by them, to access your electronic devices for the purpose of monitoring your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all mobile and landline telephone services, all internet service provider details, screen name(s), user name(s), and email addresses. The CCO or police officer is to show you a copy of this condition 42 before making a request pursuant to it;

1. Not delete, remove, hide or change, or ask or allow any other person to delete, remove, hide or change, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police;

1. You may only create a social media account if your CCO has allowed you to create the account. You may only use a social media account in accordance with how your CCO has allowed you to use it;

1. Not to possess any firearm, any ammunition or any offensive or prohibited weapon, or a replica firearm, ammunition or offensive weapon, and not to apply for, or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, or a replica firearm, ammunition or offensive weapon;

1. Not to enter the suburbs of Mandurah, Rockingham or Fremantle without prior approval of a CCO.

_______________________________

I have received a copy of this Order. I have had it explained to me and understand the effect of this Order and what may happen if I contravene it.

Signed by the Respondent _________________________________

In the presence of: _________________________________

Name and address: _________________________________

_________________________________

Date: _________________________________

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

[2] HRSO Act, s 3, definitions of 'serious offender under custodial sentence' and 'under a custodial sentence'.

[4] The State of Western Australia v Williams [2023] WASC 283.

[5] Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1, 47.

[6] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28].

[8] Garlett v Western Australia [2022] HCA 30.

[14] Garlett [85]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56].

[15] Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166, 184 - 185 [46] - [47].

[22] M v M [1988] HCA 68; (1988) 166 CLR 69, 78 [25]; see also Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 593 [22] (Gleeson CJ), 657 [225] (Callinan and Heydon JJ).

[24] Garlett [103]; The State of Western Australia v ACJ [2021] WASC 219 [416].

[26] Garlett [230]; see HRSO Act, s 30(5), which also requires that conditions are 'appropriate'.

[28] HRSO Act, s 49(1)(b), read with the definitions in s 3.

[36] Book of Materials, vol 2, page 624.

[37] That being an offence defined to be a serious offence, as opposed to an offence declared to be a serious offence.

[40] Book of Materials, vol 2, page 676.

[41] Book of Materials, vol 2, page 670.

[42] Book of Materials, vol 2, page 688.

[43] Book of Materials, vol 2, page 688.

[45] Book of Materials, vol 2, page 675.

[47] Book of Materials, vol 2, page 685.

[52] Book of Materials, vol 2, page 689.

[54] Book of Materials, vol 2, page 692.

[60] Book of Materials, vol 2, page 746, par 214.

[61] Book of Materials, vol 2, page 737, par 179.

[62] Book of Materials, vol 2, pages 726 - 727, par 138.

[63] Book of Materials, vol 2, page 727, par 140.

[64] Book of Materials, vol 2, pages 749 - 750, par 232.

[66] Book of Materials, vol 2, pages 747 - 748, pars 220 ‑ 223.

[67] Book of Materials, vol 2, page 749, par 231.

[68] Book of Materials, vol 2, pages 725 - 726, par 135.

[71] Book of Materials, vol 2, page 746, par 215.

[73] Book of Materials, vol 2, page 751, par 235.

[76] Book of Materials, vol 2, page 752, par 242.

[78] Book of Materials, vol 2, page 739, par 186.

[83] Book of Materials, vol 2, page 752, par 243.

[85] Book of Materials, vol 2, pages 766 - 767.

[88] Updated community supervision assessment report dated 8 April 2024, page 4.

[91] Updated community supervision assessment report dated 8 April 2024, page 3.

[93] Book of Materials, vol 2, page 764.

[96] Book of Materials, vol 2, page 739, par 186.

[97] Book of Materials, vol 2, page 737, par 179.

[98] See SYO v The State of Western Australia [2024] WASCA 31 [65] - [73].

[99] That being an offence defined to be a serious offence, as opposed to an offence declared to be a serious offence.

[100] Conditions 1 ‑ 7 of the interim supervision order.

[101] Book of Materials, vol 2, page 725, par 135.

[102] State's written submissions dated 8 April 2024, page 31, par 153; Book of Materials, vol 2, page 681.

[107] HRSO Act, s 72, definition of 'report'.