State Director of Public Prosecutions v Burt
[2025] WASC 19
•30 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BURT [2025] WASC 19
CORAM: LEMONIS J
HEARD: 22 JANUARY 2025
DELIVERED : 22 JANUARY 2025
PUBLISHED : 30 JANUARY 2025
FILE NO/S: SO 17 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MARK FREDERICK BURT
Respondent
Catchwords:
Application for a restriction order under the High Risk Serious Offenders Act 2020 (WA) - Respondent serving a term of imprisonment that expires on 1 February 2025 - Consideration of whether the State has met the requisite criterion for the court to fix a date for hearing of the State's application - Consideration of whether appropriate to impose an interim detention order - Consideration of whether appropriate to impose an interim supervision order
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Criterion under s 46 of the High Risk Serious Offenders Act 2020 (WA) is met
Date set for restriction order hearing and ancillary orders made for the provision of expert evidence at that hearing
Short interim detention order made
Interim supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Lloyd and Ms F M Allen |
| Respondent | : | Mr R Wilson |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v JPA [2024] WASC 225
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Williams [No 2] [2024] WASC 215
The State of Western Australia v Winder [2021] WASC 65
LEMONIS J:
(These reasons were delivered orally on 22 January 2025. They have been amended to correct matters of language and to include extracts from authorities and full citations.)
On 5 December 2024, the State of Western Australia applied for a restriction order in respect of Mr Mark Frederick Burt under the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act).
Mr Burt is currently in custody serving a term of imprisonment of 4 years and 7 months backdated to commence on 2 July 2020. He is due to be released from custody on 1 February 2025.
Section 46 of the HRSO Act requires that there be a preliminary hearing in respect of the State's application, which is the hearing listed before me today. The State has provided helpful written submissions for the purposes of today's hearing.
Preliminary hearing
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the court might find, pursuant to s 7 of the HRSO Act, that Mr Burt is a high risk serious offender within the meaning of that Act. If I am not so satisfied, then I cannot fix a day for the hearing of the State's application for a restriction order.
A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence. A restriction order is made under s 48 of the HRSO Act and comprises either a continuing detention order or a supervision order. A supervision order permits an offender to be in the community subject to conditions. So, to state the obvious, a restriction order does not necessarily entail a person being detained in custody.
Section 7 of the HRSO Act sets out the matters that the court must have regard to in assessing whether a person is a high risk serious offender. These matters are comprehensively addressed in the State's written submissions.
In TheState of Western Australia v Williams [No 2],[1] I expressed my view as to how to approach an assessment of whether a person is a high risk serious offender:[2]
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. …
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.
[1] TheState of Western Australia v Williams [No 2] [2024] WASC 215.
[2] Williams [39] ‑ [40].
In respect of the issue before me on this preliminary hearing, Quinlan CJ observed in The State of Western Australia v Winder that:[3]
For the purposes of this hearing, I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. I emphasise the word might. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[3] The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ). See also The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J).
Mr Burt is represented today by experienced counsel, Mr Wilson, who concedes that the criteria set out in s 46 of the HRSO Act is met.
For the reasons which follow, I accept that concession and I am satisfied that the criteria in s 46 is met. I will therefore make an order setting a hearing date for the restriction order application and ancillary orders to facilitate the hearing of that application.
Evidence
In support of the application, the State relies upon an affidavit of Mr Daniel Sean McDonnell affirmed 5 December 2024. Mr McDonnell's affidavit contains amongst other matters the details of Mr Burt's criminal history as well as a psychological report dated 5 July 2015 and a treatment assessment report dated 20 August 2021.
As I have said, Mr Burt is currently serving a sentence of 4 years and 7 months that commenced on 2 July 2020. The sentence is in respect of the following offences:
1.deprivation of liberty contrary to s 333 of the Criminal Code (WA); and
2.with intent to harm omitted to do or did an act causing bodily harm contrary to s 304(2)(a) of the Criminal Code.
Both are serious offences within the meaning of the HRSO Act. The offences were committed against Mr Burt's then partner. The sentencing judge also made a declaration that Mr Burt was a serial family violence offender; that declaration being made on, and with effect from, 11 October 2021.
Mr Burt has committed two other serious offences, both being offences that with intent to harm he did an act as a result of which the life, health or safety of the victim was or was likely to be endangered. This is an offence against s 304(1)(b) of the Criminal Code. The offences were committed against Mr Burt's then partner. The offences were committed on 9 June and 16 June 2014. At the time of both offences, a violence restraining order was in place in protection of the victim of the offence, which required that Mr Burt not have any contact with her.
The circumstances of the offence committed on 9 June 2014 are as follows. Mr Burt tied a noose on a rope, placed the noose around the victim's neck and tied the other end to the roo bar of his vehicle. He then drove the vehicle at a pace that meant that the victim had to run behind the vehicle with the rope around her neck so that if she stopped running the rope would be tightened and she would then be dragged behind the vehicle. While doing this he yelled out to her, 'Run, you dog and don't stop or I'll go faster'.[4]
[4] Sentencing remarks, Mr McDonnell's affidavit, pages 151 - 152.
On 16 June 2014, Mr Burt and his son were passengers in a motor vehicle and saw the victim driving in her vehicle in traffic ahead. Mr Burt asked the driver of the vehicle he was in to speed up and follow her which he did. Ultimately, the victim performed a U‑turn and headed in the opposite direction. The driver of the vehicle that Mr Burt was in refused to follow her any further and got out. Mr Burt then got into the driver's seat and drove to catch up with the victim. Mr Burt was driving at speed. The victim did another U‑turn and travelled in a different direction. Mr Burt then again chased her at speed and caught up with her vehicle and collided into it, as a result of which her vehicle rolled on two separate occasions and came to rest on its roof. The victim suffered lacerations to her arms and required a CT scan in respect of a suspected neck injury.[5]
[5] Sentencing remarks, Mr McDonnell's affidavit, pages 153 - 154.
In respect of the offences for which Mr Burt is currently serving a term of imprisonment, he had been in a relationship with the victim for about six months and had known her for about seven years. The offences were committed over the period from 19 to 20 June 2020.
After socialising together elsewhere, they returned to a caravan to sleep for the night. Mr Burt became angry with the victim and started to yell at her. Mr Burt got on top of her, straddled her chest and put his hand over her mouth so she could not talk or breathe. She was scared and tried to respond, and Mr Burt forced the side of his hand into her mouth. This further impeded her ability to breathe so she bit his hand forcing him to remove it. Mr Burt became angrier, grabbed a blanket, wrapped it around his fingers and then pushed his hand into her mouth and down her throat. This caused pain and injured her mouth. This continued for about 10 or 20 seconds. He then removed his hand and placed it around her throat and began to strangle her for about 10 to 20 seconds. The victim dug her nails into parts of Mr Burt's arm and cheek and managed to get him off her and then ran. However, Mr Burt pushed her so she was cornered in the kitchen then grabbed her by the hair and took her back to the bedroom and held her down.
She was crying and trying to get up to breathe properly and she told Mr Burt she needed to sit up so she could breathe. Mr Burt refused to let her leave, including by way of refusing to let her go to the toilet. Eventually they went to sleep together with Mr Burt's arm over her holding her in place and preventing her from leaving. About two or three days later the victim attended the Albany Health Campus to be treated for her injuries and was found to have trauma to the inside of her mouth.
Additional offending behaviour
In terms of his offending behaviour additional to that which I have already described, from when Mr Burt was about 20 years of age through to when he was 36, Mr Burt's offending was predominantly constituted by driving offences and cannabis related offences.
There is then a nine‑year gap in Mr Burt's offending which was ultimately brought to an end when he committed a reckless driving offence in late 2013. Mr Burt then committed the serious offences on 9 and 16 June 2014.
Mr Burt has also committed a number of offences of breaching violence restraining orders, predominantly by attempting to contact his former de facto partner, the subject of the June 2014 offending. There were 17 such offences committed in 2014. Further, in 2014 Mr Burt also committed an offence of attempting to induce his ex‑partner to withhold her evidence and an offence of offering a benefit to his son to withdraw his evidence. Mr Burt was sentenced for all of the offending I have just described at the same time he was sentenced for the serious offences committed on 9 and 16 June 2014. The total effective sentence was 5 years imprisonment, backdated to commence from 16 June 2014.
Mr Burt was released from custody in June 2019. His next offending was an offence of breach of a family violence restraining order committed on 16 January 2020, and then the offences for which he is now in custody.
Mr Burt's criminal history shows that he is able to live positively in the community. However, Mr Burt has now repeatedly committed serious acts of violence against his partners and committed numerous breaches of violence restraining orders.
On 11 October 2021, her Honour Judge Petrusa declared Mr Burt to be a serial family violence offender.
Mr Burt's personal circumstances
Mr Burt was born on 4 October 1968 and is now 56 years of age. He left school at year 12 and worked as a tree lopper until about 2010 or 2011 when he was injured. Mr Burt has not had employment since then. He has been in a wheelchair for the last six months and on crutches since 2019. This is a result of injuries he suffered in Albany prison. Those injuries are permanent and have required surgery to his ankle.
Mr Burt grew up in a violent family dynamic, describing his father as a violent man who verbally and physically assaulted him, his mother and his siblings.
His father died when Mr Burt was 12 years of age. Mr Burt has a good relationship with his mother.
Mr Burt was married to the victim of the first set of serious offences for 28 years. They have three children together, who are all now adults.
Mr Burt has prior convictions for cannabis use and one offence of possession of amphetamine. His predominant prior drug use appears to be that of cannabis use.
Propensity to commit further offences and risk of re-offending
The psychologist who prepared a report for the purposes of Mr Burt's sentencing for the serious offences committed in 2014 expressed the view that his conduct the subject of those offences was 'consistent with the kind of intimidation and aggression frequently enacted in the context of domestic violence'.[6] The psychologist expressed the opinion that Mr Burt was predicted to have a moderate likelihood of reoffending in a domestic violence context and a low likelihood of violence towards others generally.[7] The psychologist also expressed the view that should Mr Burt commence another relationship with a woman, she could be at risk of domestic violence perpetrated by him.[8] That risk was realised when Mr Burt committed the two offences the subject of the prison sentence he is currently serving.
[6] Mr McDonnell's affidavit, page 233, par 19.
[7] Mr McDonnell's affidavit, page 234, par 21.
[8] Mr McDonnell's affidavit, page 234, par 23.
In declaring Mr Burt a serial family violence offender on 11 October 2021, her Honour Judge Petrusa set out Mr Burt's criminal history and then observed:[9]
As this history makes clear, Mr Burt has repeatedly committed serious acts of violence against his partners. Further, despite serving his full five‑year sentence, and successfully completing courses relating to behavioural management and domestic and family violence, he committed the serious offences of family violence within 12 months of his release. Consequently, I am satisfied that Mr Burt poses a danger to women with whom he has an intimate relationship, and it is very likely he will commit another family violence offence.
In addition to the offences of family violence that I have referred, Mr Burt has two convictions for attempting to interfere with witnesses. These offences are related to his offending against his ex‑wife and efforts to have those charges discontinued. These offences also speak to his level of risk.
[9] Mr McDonnell's affidavit, pages 99 - 100.
The evidence before me demonstrates that Mr Burt has a propensity to engage in significant violence against domestic partners. Also, Mr Burt has demonstrated a disregard for protective orders and a willingness to intimidate or corrupt witnesses in an attempt to get charges dropped.
Rehabilitation efforts and gains
In terms of Mr Burt's efforts towards rehabilitation, Mr Burt did complete the Stopping Family Violence program in 2015. However, the completion report indicated that he externalised blame for his behaviour on others. Also, more significantly, Mr Burt then committed the two offences over the period 19 to 20 June 2020 for which he is currently serving a term of imprisonment.
When the Prisoners Review Board declined Mr Burt parole on 19 September 2018, the Board expressed the view that Mr Burt had unmet treatment needs for substance abuse.
Accommodation
What is suitable accommodation and how the available accommodation impacts on the ultimate disposition depends on the circumstances. Suitable does not mean ideal.
In The State of Western Australia v Corbett [No 5], Hall J (as his Honour then was) said:[10]
The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending.
[10] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].
Consistently with that observation, accommodation is predominantly relevant to risk assessment. The overall nature of the available accommodation may reduce the risk of re‑offending, it may increase the risk of re‑offending, or it may be neutral. Also, accommodation has many features that may not necessarily point in the same direction regarding risk, for example location, type, other occupants, cost, and available support services.
The potential impact that the proposed accommodation has on risk is taken into account in the overall assessment of whether a person is a high risk serious offender within the meaning of s 7, and if so, the type of restriction order which ought be made.
Presently the position is that it is proposed that Mr Burt live with a person who he met in prison. The State has some reservations in relation to the proposed accommodation, however, does not oppose that accommodation absolutely.
Post sentence supervision order
The Prisoners Review Board has imposed a post sentence supervision order (PSSO) in respect of Mr Burt for the period from 1 February 2025 to 31 January 2027. Amongst other matters, the PSSO requires Mr Burt:
1.not to use or be in possession of illicit drugs;
2.attend for random urinalysis for illicit substances as directed by a community corrections officer and provide a valid sample; and
3.not to consume alcohol and to submit to random breath testing as requested by police.
My assessment
In all of these circumstances I am satisfied there are reasonable grounds to believe that the Court might find that Mr Burt is a high risk serious offender within the meaning of the HRSO Act. The following matters are of particular importance in coming to that view. The evidence presently before me demonstrates Mr Burt has a propensity to engage in significant violence against domestic partners. It also demonstrates that Mr Burt has a disregard for protective orders and a willingness to intimidate or corrupt witnesses in an attempt to get charges dropped. And, Mr Burt has not achieved substantial rehabilitative gains in order to address the cause of his serious offending.
Interim detention order
The State had initially sought an order that Mr Burt remain in custody pending the determination of these proceedings pursuant to s 46(2)(c)(i) of the HRSO Act. For present purposes, it is sufficient to note that to make a detention order, I must be positively satisfied that such an order is appropriate for the adequate protection of the community.[11]
[11] The State of Western Australia v JPA [2024] WASC 225 [30].
Mr Burt's counsel points to the following matters:
1.Mr Burt's physical disabilities reduce his risk of engaging in violent offending.
2.Mr Burt has provided five prior urine samples, one in 2020 and 2022, and three in 2023, all of which have returned a negative result to illicit substances.
3.Mr Burt has accommodation available. That accommodation has been assessed as suitable for GPS monitoring.
Given these matters, the State does not oppose for the moment an interim supervision order being made pursuant to s 58(5) of the Act. The preconditions to the making of an interim supervision order are:
1.the offender to whom the pending proceedings relate is not in custody;[12] and
2.the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under s 58.[13]
[12] HRSO Act, s 58(2)(b).
[13] HRSO Act, s 58(2)(c).
The nature and extent of the harm which Mr Burt presents a risk of causing if he is released into the community is significant. It entails the risk of significant violence being committed against domestic partners.
The PSSO provides some degree of protection, in particular around the use of alcohol. However, an interim supervision order provides much greater protection, because the proposed conditions prevent Mr Burt from contacting his previous partners and also require him to disclose to his supervising officer the existence of any new relationship.
Further, Mr Burt has available accommodation, which is suitable for electronic monitoring purposes. The State has rightly expressed reservations about that accommodation, which I understand, in particular, are because Mr Burt met the person who resides there in prison. That aside, there do not appear presently to be any immediate issues with the accommodation itself.
Mr Burt's counsel says that in all of these circumstances, the court should impose an interim supervision order, and not an interim detention order.
In my view, as matters presently stand, it is appropriate to impose an interim supervision order.
It will however take a few days for the necessary electronic monitoring equipment to be installed at the proposed premises. Therefore, the State seeks a short interim detention order to 4 February 2025 to enable that to occur. I consider that is appropriate. The availability of electronic monitoring is one of the reasons why I am persuaded that an interim supervision order is appropriate.
Conclusion
For these reasons, I am satisfied that the criteria in s 46 of the HRSO Act is met. I will therefore make an order fixing the date for hearing of the State's application for a restriction order.
Further, in accordance with s 46(2), I will also order that Mr Burt undergo examination by a psychiatrist and a psychologist, and I will make orders facilitating the preparation of their reports.
In respect of those reports, I consider it is beneficial if they address the expert's opinion in respect of the following additional matters:
1.the topics that should be addressed in a supervision order, if such an order was imposed; and
2.any particular areas of treatment or support which the expert considers would assist Mr Burt to successfully integrate into the community.
I will also order that Mr Burt be subject to the conditions of the proposed supervision order to commence on 4 February 2025 to continue and to operate until further order and that he be the subject of a short interim detention order until 4 February 2025. The intention is that the interim supervision order will commence immediately upon Mr Burt's release from custody on 4 February 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OM
Associate to the Hon Justice Lemonis
30 JANUARY 2025
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