State Director of Public Prosecution v Carr - [2021] WASC 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   STATE DIRECTOR OF PUBLIC PROSECUTION -v- CARR [2021] WASC 26
CORAM:   HALL J
HEARD:   3 FEBRUARY 2021
DELIVERED          :   3 FEBRUARY 2021
PUBLISHED           :   5 FEBRUARY 2021
FILE NO/S:   SO 20 of 2020
BETWEEN:   STATE DIRECTOR OF PUBLIC PROSECUTION
Applicant

AND

PAUL JAMES CARR
Accused

Catchwords:

High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for believing that the court might find that the offender is a high risk serious offender – Whether interim detention order or an interim supervision order should be made pending final determination of the proceedings

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant	:	Mr M J McPhee
Accused	:	Mr A G Elliott

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:	Anthony Elliott

HALL J:

(This judgment was delivered extemporaneously on 3 February 2021 and has been edited from the transcript.)

I will give my decision now and some short oral reasons for it. On 23 December 2020, the State filed an application seeking that orders under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) be made in relation to the respondent. In particular, the State applied for a restriction order under s 48 of the HRSO Act; that is, either a continuing detention order or a supervision order. After a restriction order application is made, the court must fix a date for a preliminary hearing. That preliminary hearing was set for today.
The main purpose of such a 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 the offender is a high risk offender.
For the purposes of the preliminary hearing, the State filed an affidavit of Darren Burridge, affirmed on 23 December 2020. That affidavit sets out the history of the application and annexes documents relevant to the respondent's criminal history, treatment in prison and risk of reoffending. Relying on that information, the relevant history can be summarised as follows.
On 6 March 1987, the respondent committed offences in Western Australia of break and enter a dwelling with intent, deprivation of liberty and two counts of aggravated sexual assault. He was not apprehended at that time and, shortly afterwards, moved to New South Wales. On 4 May 1987, the respondent committed offences in New South Wales of malicious wounding and assault. These offences arose from attacks with a knife upon the respondent's brother‑in‑law. On 29 May 1987, he was sentenced to 6 months imprisonment for those offences. On 21 September 1987, shortly after his release from prison, the respondent again attacked his brother‑in‑law, this time killing him. He was convicted of murder and sentenced to life imprisonment. Subsequently, the Supreme Court of New South Wales set a minimum and additional term on that sentence, the effect of which was that the respondent was released on 31 March 2007.
On 16 January 2008, he committed an offence in New South Wales of aggravated breaking and entering and committing an indictable offence. This offence involved attending a house where his ex‑partner was present and attacking her and another occupant whilst together with another co‑offender. On 19 December 2008, he was sentenced to 5 years 1 month 5 days imprisonment and he completed that sentence on 20 February 2013.
In the meantime, a cold case review had established that the respondent was the person responsible for the 1987 offences in Western Australia. On his release in New South Wales in 2013, he was immediately taken into custody again and extradited to Western Australia. He stood trial in the District Court, was convicted on all counts and, on 21 January 2015, was sentenced to a total effective sentence of 8 years imprisonment backdated to 20 February 2013. The respondent was not granted parole and his current sentence will expire on 7 February 2021.
The State can file an application for a restriction order where the offender is serving a sentence for a serious offence as defined under the HRSO Act and there is a possibility of release within a year of the application. Both of those conditions have been met here. The deprivation of liberty and two aggravated sexual assaults are within the definition of a serious offence within the Act.
The first issue to be determined on this preliminary hearing is whether there are reasonable grounds for believing that the court might find that the respondent is a high risk offender. The second issue is whether, if the answer to the first issue is in the affirmative, an interim detention order should be made, the effect of which would be to detain the respondent in custody after his current sentence expires and until these proceedings are complete.
As to the first issue, the operative word in the Act is 'might'. This requires only that there are reasonable grounds for believing that it is possible that a finding that the respondent is a high risk offender could be made. For a court to be so satisfied, there must be some material which could be the basis for the reasonable grounds and which is relevant to the factors referred to in s 7 of the Act. That material is in the affidavit I have referred to.
It is sufficient for present purposes to note that there is material that could support the following:
1.the respondent has a long history of violent offending;
2.he also has a history of serious sexual offending, albeit that those offences occurred over 30 years ago;
3.he has maintained a stance of denial regarding the sexual offences and declined opportunities to undertake relevant programs; and
4.reports and assessments indicate that whilst his prison conduct has been largely positive, particularly in the more recent years, there remains a high risk of violent offending and a moderate to high risk of sexual offending.
That material is sufficient to satisfy me that there are reasonable grounds for believing that the court might make a finding that the respondent is a high risk offender. Of course, this is not the occasion to consider the likelihood that such a finding would be made, and it remains possible that such a finding would not be made. Accordingly, it is appropriate to make orders as sought by the State for the obtaining of reports and the fixing of a final hearing date when the question of whether the respondent is a high risk offender can be determined.
The remaining issue is whether the respondent should be detained on an interim detention order or released on an interim supervision order. I take into account that the respondent will complete his current sentence very shortly and has now spent very many years in custody. This means he has had little opportunity to prove that he has changed and that the risk of reoffending has reduced. On the other hand, the most recent report by a psychologist in December 2020 has stated that the current risk of violent reoffending is high.
I take into account in his favour, in this regard, that he has not committed – according to the papers provided to me – any violent offending whilst in prison. However, prison is a highly controlled environment and this not necessarily indicative of the risk of violent reoffending when in the community. When viewed in the context of the respondent's past instances of violence, the assessment by the psychologist represents a very serious concern.
The risk of sexual offending has also been assessed as a moderate to high risk. If either or both of the risks referred to were to be realised in the community in a way that was similar to the respondent's past offending, the consequences would be of the utmost seriousness. I take into account that the basis on which the assessment by the psychologist has been made is challenged by counsel on behalf of Mr Carr and that further information in that regard is being sought. It is open at a hearing once final assessments and reports have been obtained, to challenge such assessments as may be made and any preliminary assessments made by the psychologist may not necessarily be borne out. However, I am left with those assessments at this stage.
I have considered whether those risks that I have referred to could be reduced or mitigated to an acceptable level by making an interim supervision order under s 58. A possible order has been suggested by the State in one of the alternative minutes of proposed orders that have been provided. It contains a number of stringent conditions. No doubt if all of such conditions could be complied with, the risk could be reduced. However, I do not minimise the difficulties that a person who has been in custody as long as Mr Carr, and is no doubt institutionalised by that experience, would have in compliance.
I have come to the conclusion that an interim supervision order would not be appropriate in this case and that is because of the high risk of violent reoffending, the moderate to high risk of sexual reoffending, that the respondent has no family or other known supports in the community in Western Australia should he be released and that, at this stage, no suitable accommodation has been secured. There is also reference in the papers to there being no fully formed plan for release.
Mr Carr's stated intention in the past has been to leave Western Australia and travel to Victoria and that may account for why he has no plan for release in this jurisdiction, but a supervision order would require him to stay here and there would need to be some plan for him to remain in this jurisdiction if a supervision order were to be viable. I understand that an application has been made to a service provider for suitable accommodation but that application has not yet been determined. There may well also be other options for suitable accommodation and for a release plan to be developed. However, that is not the case at the moment. If it were to change then the respondent would have liberty to apply.
The final factor is that the respondent has not engaged with programs to reduce his risk of reoffending. Whilst he has given a reason for that, the fact is that those programs have not been engaged with and so I have no material which would give me comfort that either he would engage in such programs in the community or that the benefits that flow from having undertaken such programs have been realised.
I accept that the deprivation of the liberty of a person who has served his full sentence is no small thing and should not be done lightly. However, in all of the circumstances, I have come to the conclusion that an interim supervision order is not realistic at this stage and would not adequately ensure protection of the public. Accordingly, there will be orders in terms of the applicant's first minute of proposed orders.
1.The hearing of the restriction order application pursuant to s 48 of the HRSO Act will be heard on a date not before 25 July this year.
2.The respondent is to undergo examinations by two qualified experts, namely, one psychiatrist, Dr Peter Wynn‑Owen and one psychologist, Ms Julie Hassan, for the purposes of preparing reports as required by s 46(2)(a) and s 74 of the HRSO Act that are to be used on the hearing of the restriction order application.
3.The experts named in order 2 are not to include in their reports information or opinions about the respondent based on a communication with a third person unless details of that communication is sufficient to identify the person with whom the communication was held, its date and a summary of its content is included in the expert's report.
4.The reports of the experts are to be provided to the applicant at least 21 days prior to the hearing of the restriction order application.
5.Any report authored by the Department of Justice, including any proposed management plan, be provided to the applicant and the respondent at least 14 days prior to the date of the hearing of the restriction order application.
6.The experts named in order 2 liaise with the Department of Justice as to a management plan, if appropriate, for the respondent to be supervised in the community.
7.Pursuant to s 122 of the Criminal Investigation Act 2006 (WA), the experts named in order 2 may be supplied with and may view any audio.
8.Visual recordings of interviews with the respondent or transcript of the same for the purpose of preparing their reports.
9.The respondent is to be detained in custody until the final determination of the applicant, pursuant to s 46(2)(c)(i) of the HRSO Act.
10.There be liberty for the parties to apply generally.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
5 FEBRUARY 2021