State of Western Australia v Sandwell [No 2]
[2024] WASC 452
•28 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: STATE OF WESTERN AUSTRALIA -v- SANDWELL [No 2] [2024] WASC 452
CORAM: MCGRATH J
HEARD: 28 NOVEMBER 2024
DELIVERED : 28 NOVEMBER 2024
FILE NO/S: SO 4 of 2019
BETWEEN: STATE OF WESTERN AUSTRALIA
Applicant
AND
PAUL NICHOLAS SANDWELL
Respondent
Catchwords:
Criminal law - High risk serious offender - Contravention proceedings - Application for detention pending determination of contravention proceedings - Need to ensure adequate protection of the community
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 53(2)(b), s 56
Result:
Offender detained pending determination of contravention proceedings
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McDonnell |
| Respondent | : | Dr N Barber |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Barber Legal |
Case(s) referred to in decision(s):
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
The State of Western Australia v Sandwell [2022] WASC 206
MCGRATH J:
The State has filed an application under s 55 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) commencing contravention proceedings in respect of the respondent. The State seeks an order under s 53(2)(b) of the HRSO Act that the respondent be detained in custody pending the finalisation of the contravention proceedings. In support of the application the State relies upon the affidavit of Ms Holloway, legal practitioner, affirmed 28 November 2024 and the affidavit of Ms Doyle, Senior Community Corrections Officer, affirmed 25 November 2024.
On 6 June 2019, the State applied for orders under the Dangerous Sexual Offenders Act 2006 (DSO Act) that the respondent was a serious danger to the community and that he be detained in custody or released subject to a supervision order under the DSO Act. On 4 July 2019, the court determined that the respondent was a high risk serious offender and should be subject to a continuing detention order, pursuant to s 14(2)(b)(i) of the DSO Act. On 7 June 2022, Smith J ordered that the respondent be released on a supervision order, subject to stringent conditions.[1]
[1] The State of Western Australia v Sandwell [2022] WASC 206.
The issue that I must decide is whether the respondent may be released on an interim supervision order pending the determination of the new contravention proceedings or be detained in custody. Counsel for the respondent submitted that given the circumstances, the detention of the respondent is not opposed. I find that the submission of counsel for the respondent was properly made and that the respondent must be detained in custody pending the determination of the contravention proceedings for the following reasons.
Relevant legislative provisions
Section 56 of the HRSO Act provides as follows:
(1)This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect of the offender are pending (the pending proceedings).
(2)The court may at any time in the pending proceedings -
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
(3)The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
(4)The onus of proof as to the matter described in subsection (3)(b) is on the offender.
(5)For the purposes of subsection (3), in considering whether releasing the offender is justified by exceptional circumstances the court may, as it thinks fit, receive and take into account information put before it, whether or not that information would normally be admissible in a court of law.
(6)In making a decision under subsections (2) and (3), the paramount consideration is to be the need to ensure adequate protection of the community.
(7)If the court releases the offender -
(a)the offender remains subject to the supervision order; and
(b)the court may, before the pending proceedings are determined, make an interim order amending the supervision order to include any requirements the court considers appropriate to ensure adequate protection of the community; and
(c)the court may order the offender to reappear before the court at any adjourned hearing of the pending proceedings; and
(dif it is alleged that the offender has further breached the supervision order or breached an order made under paragraph (c), the court may issue a warrant to have the offender arrested and brought before the court.
The respondent was in custody pursuant to an arrest warrant. Therefore, I must apply s 56(3) of the HRSO Act.
I must be satisfied on the balance of probabilities of both matters specified in s 56(3) before I can order the respondent's release.
The term 'exceptional circumstances' used in s 56(3)(a) is not defined in the HRSO Act. The term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special or an exception to the general trend of cases.
The standard conditions of the supervision order referred to in s 56(3)(b) are those set out in s 30(2), which provides:
A supervision order in relation to an offender must require that the offender -
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
As to the phrase 'substantially comply', this was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart in the context of contravention proceedings.[2] I apply the reasoning of Fiannaca J.
[2] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
The relevant questions to be decided are therefore as follows:
1.Is the respondent's release justified by exceptional circumstances?
2.If released, will the respondent substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?
The alleged contraventions
The conduct upon which the applicant relies in support of the contention that the respondent is likely to contravene the supervision order is outlined in the affidavit of Ms Doyle, affirmed 25 November 2024.
Ms Doyle deposes that since his release on the supervision order, the respondent has contravened the supervision order resulting in the respondent being convicted of criminal offences. The State has not previously commenced contravention proceedings in this Court. However, the respondent has been convicted of offences of contravening a requirement of a supervision order contrary to s 80(1) of the HRSO Act. The relevant particularisation of the previous contravention charges are outlined in the affidavit of Ms Doyle.[3]
[3] Affidavit of Ms Doyle affirmed 25 November 2024, [5] ‑ [9].
In support of this application the State relies principally upon the report of Dr Wynn‑Owen, Consultant Forensic Psychiatrist, dated 31 October 2024.
Dr Wynn‑Owen has expressed the opinion the respondent appears unable to manage his sexually deviant thinking and that there is a high imminence of serious offending.
Dr Wynn‑Owen states that the respondent currently presents as a high risk of future sexual offending. This opinion is based upon a 'well above average' Static‑99R score and the presence of a range of dynamic sexual offence risk factors that have been unresponsive or minimally responsive to treatment interventions. Dr Wynn‑Owen stated that the most significant risk factor is sexual deviance (paedophilic disorder). In Dr Wynn‑Owen's opinion it is unlikely that the SSRI medication that is currently being taken by the respondent is having any noticeable effect on his sexual thinking and fantasy. Further, repeated exposure to arousing stimuli, in media and in his environment (shopping centres and the park across the street) appears to be increasing the respondent's level of sexual pre‑occupation and will be reinforcing the underlying deviant sexual interest.
Dr Wynn‑Owen stated his overall opinion that the respondent's risk of committing a future sexual offence has increased since release, particularly since the move to his current accommodation. Dr Wynn‑Owen said that the respondent's initial non‑disclosure of forming friendships at his accommodation, and the admission that his internal dialogue encourages him not to be open with community corrections or his psychologist, indicated the need for ongoing concern about the reliability of his self‑reporting, including about his current sexual thinking.[4]
[4] Dr Wynn‑Owen's report dated 31 October 2024, [32].
Dr Wynn‑Owen reported that he conducted an interview with the respondent. During that interview, the respondent stated he is distracted by the sound of children in the park opposite his current residence and that to manage his urges he shuts the front door and sits out the back.
Further, the respondent acknowledged that his sexual fantasies are triggered by seeing and hearing children and, in particular, if they were present in areas such as shopping centres or observing children through the media. The respondent said that he recently observed a young boy when he was at a shopping centre and he thought 'I could just take him to the toilets'. Whilst the respondent said such intrusive thoughts/fantasy were infrequent, Dr Wynn‑Owen stated that other statements seemed to be at odds with that claim. In particular, Dr Wynn‑Owen stated that the respondent said 'I'm seeing kids, obviously… attracts my attention all the time'.
The respondent characterised himself as 'Mr Deviant'. Dr Wynn‑Owen said that from the respondent's description, 'Mr Deviant' is the manifestation of the respondent's paedophilic sexual interest and behaviour. The respondent said that 'Mr Deviant' protects him and that 'Mr Deviant' likes jail and that it is a 'fighting game to get him to shut up'.[5]
[5] Dr Wynn‑Owen's report dated 31 October 2024, [7].
Assessment of the application
I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.
The State submits that there is a risk that the respondent will contravene the supervision order and that there is a potential risk of the respondent committing serious offences opportunistically or intentionally whilst subject to the supervision order. The State submits that conditions do not satisfactorily manage the risk. The State submits that there are no meaningful amendments that could be made to the supervision order to allow adequate management of the respondent's risks of continually contravening the supervision order or committing a serious offence in the community.
Further, the State submits that there are no exceptional circumstances that justify the release of the respondent.
On the basis of the information I have at the time of hearing this application, I am not satisfied that the respondent would substantially comply with the standard conditions of a supervision order if released. In particular, I am not satisfied that the respondent would substantially comply with the conditions regarding supervision by a Community Corrections Officer and compliance with all reasonable directions issued by such an officer.
Further, I am not satisfied that an amended supervision order would adequately manage the risk of the respondent offending in an opportunistic manner. In making that finding, I rely upon the report of Dr Wynn-Owen.
I am satisfied that exceptional circumstances have not been established that justifies the respondent's release.
Accordingly, I am satisfied that the respondent must be detained in custody to ensure the adequate protection of the community.
Conclusion
Therefore, the respondent will be detained in custody pending the determination of the contravention proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
PB
Associate to the Judge
2 DECEMBER 2024
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