The State of Western Australia v A [No 2]
[2019] WASC 202
•13 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- A [No 2] [2019] WASC 202
CORAM: DERRICK J
HEARD: 11 JUNE 2019
DELIVERED : 11 JUNE 2019
PUBLISHED : 13 JUNE 2019
FILE NO/S: DSO 1 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
A
Respondent
Catchwords:
Dangerous sexual offender - Application by offender under s 24A(2)(a) of the Dangerous Sexual Offenders Act 2006 (WA) (Act) for release pending determination of State's application for orders under s 23(1)(a) or s 23(1A)(a) of Act - Whether exceptional circumstances justifying release - Whether offender will substantially comply with standard conditions of supervision order if released
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Application refused
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr P G Giudice |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | George Giudice Law Chambers |
Case(s) referred to in decision(s):
The State of Western Australia v A [2018] WASC 250
DERRICK J:
(This judgment was delivered extemporaneously on 11 June 2019 and has been edited from the transcript.)
Introduction
On 17 August 2018 Corboy J found that the respondent was a serious danger to the community under s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act).[1] On the same date Corboy J released the respondent into the community on a supervision order for a period of seven years. The supervision order contained 56 conditions and was ordered to commence on 17 September 2018.
[1] The State of Western Australia v A [2018] WASC 250.
On 28 March 2019 the State made an application pursuant to s 22(2) of the Act for orders under s 23(1)(a) or s 23(1A)(a) of the Act (the contravention application). The contravention application is supported by an affidavit affirmed by Mr Timothy Snow on 28 March 2019. Mr Snow is a Senior Community Corrections Officer (SCCO) and is the respondent's current case manager.
On 29 March 2019 the respondent was arrested on a warrant that had been issued on that day by the Chief Magistrate pursuant to s 21(2) of the Act and was taken into custody. The reasons specified in the warrant for the issue of the warrant were that the respondent was likely to contravene a condition of his supervision order and had contravened a condition of his supervision order.
Later on 29 March 2019 the respondent, having been arrested on the warrant, the respondent was brought before this court. He appeared before Jenkins J. Jenkins J made orders adjourning the contravention application to 12 April 2019 for directions. Her Honour also made an order under s 24A(2) of the Act that the respondent was to be detained in custody until the hearing on 12 April 2019 or until a further order of the court.
On 12 April 2019 the respondent appeared before Mitchell JA. On that date Mitchell JA ordered that the hearing of the contravention application take place on 30 July 2019. His Honour made necessary programming orders. His Honour also made an order pursuant to s 22(2)(b) and s 24A(2)(b) of the Act that the respondent be detained in custody until the final determination of the contravention application or further order of the court. His Honour framed the order for detention in these terms to permit the respondent to make an application to be released pending the determination of the contravention application.
By an application dated 30 May 2019 the respondent applies to be released from custody pending the determination of the contravention application. The respondent has made his application under s 24A(2)(a) of the Act. The application is supported by an affidavit sworn by GJL on 28 May 2019.
The respondent's application for release is opposed by the State. The State's opposition to the application is consistent with the fact that by the contravention application the State is seeking pursuant to s 23(1)(a) of the Act orders that the respondent's supervision order be rescinded and that a continuing detention order be made in relation to him.
The basis for the State's application
The State has made the contravention application in light of the following matters.
First, since being released on the supervision order the respondent has been convicted of four offences of contravening the order contrary to s 40A of the Act. The contravention offences were committed by the respondent on 29 November 2018, 6 February 2019 and 17 February 2019.
Second, since being released on the supervision order the respondent has contravened the supervision order on an additional six occasions, although these occasions have not, in the exercise of a discretion by the Community Offender Management Unit (COMU), been made the subject of a charge under s 40A of the Act.
Third, since the respondent has been released on the supervision order he has engaged in behaviours and made disclosures which have caused the COMU to form the view that his risk of committing further breaches of the supervision order and further serious sexual offences has increased.[2]
[2] Affidavit of Timothy Snow, [15], [16] and [18].
The COMU is the entity that is primarily responsible for the supervision and management of the respondent in the community. The COMU works in conjunction with the Western Australian Police Service's Sex Offender Management Squad.
The facts of the respondent's contravention offences, additional contraventions, and behaviours leading the COMU to form the view that there is an increased risk of him committing further breaches of the supervision order and committing further serious sexual offences are referred to in Mr Snow's affidavit. They are also set out in a document filed and served by the State entitled 'Particulars of Contravention Allegations and Likely Contraventions'.
Relevant legislative provisions
Section 24A(1) of the Act provides that the section applies to a person who is subject to a supervision order and in respect of whom proceedings on an application made under s 22 of the Act are pending. Thus the section applies to the respondent.
Section 24A(2) provides as follows:
The court may at any time in the pending proceedings -
(a)if the person is detained in custody, order the person to be released, subject to subsection (3); or
(b)if the person is not detained in custody, order the person to be detained in custody.
Section 24A(3) of the Act provides:
The court cannot order the person to be released unless it is satisfied, on the balance of probabilities -
(a)that releasing the person is justified by exceptional circumstances; and
(b)that the person will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (5)(b).
Therefore, I must be satisfied on the balance of probabilities of both of the matters specified in s 24A(3) before I can order the respondent's release.
The term 'exceptional circumstances' used in s 24A(3)(a) is not defined in the 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 24A(3)(b) of the Act are those set out in s 18(1) of the Act.
Section 24A(3A) provides that the onus of proving the matter specified in s 24A(3)(b) is on the person.
Section 24A(4) provides that in making a decision under subsections (2) and (3) the paramount consideration is the need to ensure adequate protection of the community.
Finally, s 24A(5) provides:
(5)If the court releases the person ‑
(a)the person remains subject to the supervision order; and
(b)the court, before the pending proceedings are determined, may 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 person to reappear before the court at any adjourned hearing of the pending proceedings; and
(d)if it is alleged that the person has further breached the supervision order or breached an order made under paragraph (c), the court may issue a warrant to have the person arrested and brought before the court.
The affidavit of GJL
As I have stated, the respondent's application is supported by an affidavit sworn by GJL. In her affidavit GJL deposes to the following:
1.She is the respondent's mother;
2.She is 75 years old, lives alone in Queensland, and receives an old age pension in the amount of approximately $1046 per fortnight;
3.She is the only person who the respondent can rely on. The respondent's family will not have anything to do with him. The respondent's older sister is supportive of him but has no money and cannot contribute;
4.She is paying the respondent's rent of $460 per fortnight for his residential rental property in an effort to avoid him losing his tenancy;
5.She is paying the respondent's insurance on his Magna motor vehicle of $168.60 for three months;
6.She has paid the respondent's electricity bill for his house in the sum of $71.10;
7.She has paid the respondent's phone bill of $30.21 for the last month. The respondent's phone bill is approximately $40 per month, although she believes that if the respondent has not used his phone he receives some credit;
8.To date she has made payments for the respondent totalling $2,150;
9.Her rent is $260 per week. Part of her rent 'is paid pursuant to [her] pension in about the sum of $136 per fortnight'. By the time she pays her rent and her electricity she does not have very much money left over;
10.She has about $3,700 in the bank but this amount is dwindling. If she is required to continue to pay the respondent's expenses she will have no savings left and will not be able to pay any more;
11.She 'presumes' that if she runs out of savings so that she can no longer pay the respondent's expenses, and if the respondent is not released, his lease of his residential property will be terminated. She understands the respondent's lease expires in August 2019;
12.If the respondent remains in jail he will not be able to organise for his personal belongings to be placed in storage. She will therefore be forced to travel to Western Australia to close his house down, hand back the keys and sell his property;
13.If the respondent is released he will be able to at least pay his rent because he will qualify for Centrelink payments; and
14.It has taken her since 2007 to save the money that she has in her bank account. She hopes that if the respondent is released he will be able to resume paying his own expenses and obtain employment so that he can pay her back.
The respondent has also provided in support of his application a copy of the Residential Tenancy Agreement for his residential rental property (the Agreement). The Agreement reveals that the respondent's lease of the property is for a fixed term of six months, that the lease is due to expire on 23 July 2019 and that the weekly rent payable for the property is $230.
Additional information provided by the respondent during the hearing of the application
During the hearing of the application the respondent informed me, at the request of his counsel and without objection from counsel for the State, that he has spoken to his landlord and that his landlord has agreed, on the expiry of the term of the Agreement, to enter into a new 12 month lease with him.
The respondent also informed me, in substance, that when he was first released on the supervision order he did have difficulty complying with the conditions of his order because he did not have the skills to do so, that over the period of time that he was in the community on the supervision order and was engaging in supervision sessions and psychological counselling he began to develop the skills that were necessary to enable him to comply with the order, and that he is now '100% aware' of the importance of complying with all of the conditions of the supervision order and of the seriousness of contravening any of the conditions.
The parties' submissions
In the written submissions filed on behalf of the respondent prior to the hearing of the application it was submitted, in purported reliance on GJL's affidavit, that the respondent's release was justified by the combined effect of two exceptional circumstances. The first of the identified exceptional circumstances was the financial burden that will be imposed on the respondent's mother, GJL, if she is required to continue to meet his expenses, including his rental expenses. The second of the identified exceptional circumstances was the likelihood, due to GJL's inability to continue to meet the respondent's expenses indefinitely, that if the respondent is not released before the contravention application is determined the lease of his residential rental accommodation will, due to non-payment of rent, be terminated with the consequence that he will be left without accommodation in the community. However, during the hearing of the application the respondent's counsel conceded, in response to questioning by me, that the contents of GJL's affidavit reveal that she does have sufficient funds to continue to pay the respondent's rent up until the date of the hearing of the contravention application and for some considerable period of time thereafter. Further, counsel confirmed, consistently with the statements made by GJL in her affidavit, that GJL does in fact intend, if the respondent remains in custody, to continue to pay the respondent's rent and other expenses for as long as she is financially able to do so. In these circumstances, and in light of the above referred to additional information provided to me by the respondent as to the ongoing availability of his rental property for a further period of 12 months beyond the current expiry date of the Agreement, the respondent's counsel, during the hearing of the application, in effect abandoned the submission that the evidence before the court established the second of the initially contended for exceptional circumstances. That is, counsel abandoned the submission that if the respondent is not released before the determination of the contravention application there is a likelihood that the lease of his residential accommodation will, due to non‑payment of rent, be terminated with the consequence that he will be left without accommodation in the community and that this constitutes an exceptional circumstance for the purposes of s 24A(3)(a). Rather, counsel put the respondent's case on the basis that the relevant exceptional circumstance justifying the respondent's release consisted of the financial hardship that will be caused to GJL if she is, by reason of the respondent remaining in custody, required to continue to pay his expenses.
With respect to the issue of whether he will substantially comply with the standard conditions of a supervision order if he is released pending the determination of the contravention application, it was submitted on behalf of the respondent, in substance, that his contraventions are not of a serious nature, and that his conduct while on the supervision order does not provide a basis for the COMU to form the view that there is an increased risk of him committing further breaches of the supervision order and committing further serious sexual offences.
The State submitted that given GJL's age and financial position it was open for me to find that the financial burden that will be placed on her if she is required to continue to meet the respondent's expenses while he is in custody does constitute an exceptional circumstance for the purposes of s 24A(3)(a). However, the State submitted that bearing in mind the paramount consideration of the need to ensure adequate protection of the community, the respondent had not discharged his onus of proving that if released he will substantially comply with the standard conditions of his supervision order or an amended supervision order.
At the outset of his submissions counsel for the State informed me about accommodation that may become available to the respondent in the future if he does, by reason of being kept in custody pending the determination of the contravention application, lose his current privately obtained rental accommodation. However, in light of what I have already said in relation to the ongoing availability of the respondent's accommodation it is not necessary for me to refer further to what counsel for the State told me in this regard.
I note that prior to the hearing of the application my attention was drawn to two oral decisions given by two judges of this court in the course of contravention proceedings instituted under the Act in 2016 against Mr Warren John Ricky Ugle.[3] The first of the decisions was given by Hall J on 29 January 2016. The second of the decisions was given by Fiannaca J on 18 November 2016. In both instances their Honours were required to consider whether the potential loss of accommodation by Mr Ugle as a consequence of being kept in custody pending the determination of contravention proceedings instituted against him constituted an exceptional circumstance justifying his release within the meaning of s 24A(3)(a). In both instances their Honours accepted, I think it is fair to say, that the risk that a dangerous sexual offender the subject of contravention proceedings will lose their accommodation if they are detained in custody pending the determination of the proceedings is, depending on the facts of the particular case, capable of constituting an exceptional circumstance justifying the release of the offender pending the determination of the proceedings. However, given that potential loss of accommodation is no longer put forward by the respondent as a relevant exceptional circumstance, it is unnecessary for me to consider this issue further.
[3] The State of Western Australia v Warren John Ricky Ugle - DSO 2 of 2014.
Analysis and decision
Are there exceptional circumstances?
The initial question for my determination is whether the significant financial hardship that will be caused to GJL if she is required to continue to meet the respondent's expenses is an exceptional circumstance for the purposes of s 24A(3)(a).
In many instances the fact that a person chooses, to their financial detriment, to provide financial support to a close relative who is in custody by continuing to meet the relative's ongoing expenses will not be particularly unusual, or out of the ordinary, or in some way special. However, every case must be considered on its own facts and circumstances.
GJL is an elderly retired pensioner. She has only a limited income and limited savings. It has taken her a long time to save the relatively modest amount of money that she has. There is no question that she will, if the respondent is kept in custody pending the determination of the contravention application, use up a very significant proportion of her modest savings in paying the respondent's rent and other expenses. This will cause her to suffer very significant temporary and in all likelihood long term financial hardship. The significance of the hardship is, in my view, sufficiently unusual or out of the ordinary or special to justify the conclusion that it amounts to an exceptional circumstance within the meaning of s 24A(3)(a).
Will the respondent substantially comply with the standard conditions of the supervision order?
I turn then to the question posed by s 24A(3)(b) read with s 24A(3A), specifically whether the respondent has satisfied me on the balance of probabilities that if he is released he will substantially comply with the standard conditions of the supervision order including any amendments made to the standard conditions.
As I have already stated, the respondent has been convicted of four offences of contravening his supervision order. The first in time of the offences (committed on 29 November 2018) involved the respondent not having his Global Positioning System (GPS) hand held device with him for a period of 28 minutes with the result that his movements could not be monitored for this period of time. The second of the offences (committed on 6 February 2019) was comprised of the respondent's failure to attend a session of the Sex Offenders Maintenance Program. The third and fourth of the respondent's offences (committed on 17 February 2019) arose out of the respondent having contact with his neighbour and her 12 to 14 year old son during which time the son acted as an interpreter for the respondent and his neighbour, and then failing to properly document this interaction in his diary.
The respondent's explanations for his four contravention offences are referred to by Mr Snow in his affidavit. However, even taking into account the respondent's explanations the contraventions were, in my view, contrary to the submission made by the respondent, of a relatively serious nature.
The respondent's six contraventions of the supervision order that have not been made the subject of charges under s 40A of the Act involved him engaging in the following conduct:
1.On 2 October 2018, failing to carry his GPS hand held device for 13 minutes resulting in no GPS tracking of his location for this period;
2.On 29 October 2018, entering an exclusion zone for a period of 30 seconds while in transit;
3.On 19 November 2018, failing to carry his GPS hand held device for 10 minutes (while in a hydrotherapy pool) resulting in no GPS tracking of his location for this period;
4.On 5 February 2019, entering an early learning centre exclusion zone for one minute resulting in him receiving a notification alert to leave the area;
5.On 26 February 2019, attending Kings Park contrary to a verbal instruction issued to him on 22 February 2019 and a written lawful instruction issued to him on 25 February 2019; and
6.On 20 March 2019, failing to comply with his curfew condition returning to his home address 15 minutes late.
The explanations that the respondent has proffered for these six contraventions are referred to by Mr Snow in his affidavit. Again, even taking into account these explanations it is my view that the respondent's contraventions, with the possible exception of the contravention on 29 October 2018, are of a relatively serious nature. I do not accept the submission made by the respondent that the alleged contraventions are not of a serious nature.
That leaves the behaviour that the respondent has engaged in, and disclosures that he has made, which have caused the COMU to form the view that his risk of committing further breaches of the supervision order and further serious sexual offences has increased. The behaviour is referred to by Mr Snow in pars 12 and 13 of his affidavit. The behaviour is extensive and has been engaged in over the period September 2018 to March 2019. Without in any way attempting to be exhaustive, the behaviour of the respondent identified by Mr Snow includes the following:
1.In September 2018 the respondent disclosed to his SCCO that he had accessed online pornography and had an interest in young females;
2.On 24 October 2018 the respondent disclosed to his SCCO that he had begun to notice an attraction to the physical attributes of younger females in their teenage years when in public;
3.On 9 November 2018 the respondent disclosed to his SCCO that he had visited adult pornography sites during the previous week but conceded that his preference was for younger looking females;
4.On 22 November 2018 the respondent disclosed to his SCCO that he had begun to join online groups with the theme of bisexuality, and that he was open to this;
5.On 23 November 2018 the respondent, in discussing his sexual thoughts with his Department of Justice psychologist, stated that his 'perving' on young girls had decreased now that he keeps his eyes up in public as opposed to first looking at their bodies, and that he first looks at their faces to identify their age;
6.On 2 January 2019 the respondent disclosed to his SCCO that he had created an online group encouraging people to explore their sexuality and had become the coordinator for a bisexual meet and greet group. His SCCO warned him against engaging in this behaviour because it could be considered to be in breach of one of the conditions of his supervision order;
7.On 9 January 2019 the respondent informed his SCCO that he was still taking the initiative to establish himself in a leadership position in the online group encouraging people to explore their sexuality notwithstanding the warning given to him by the SCCO on 2 January 2019;
8.In January 2019 the respondent was noted by way of GPS checks to have spent a lot of time on group walks during which he had spent time close to playgrounds;
9.On 26 February 2019 the respondent stated during supervision that he felt repulsed by sexual thoughts towards male children, that his choice is young females and that since his release into the community he has had trouble not looking at young female children and having sexual thoughts about them; and
10.The respondent made online contact with a 16 year old female who called him 'dady' and did not terminate the conversation. He admitted that he enjoyed the attention.
In his affidavit Mr Snow repeatedly asserts that the behaviours engaged in by the respondent demonstrate deceitfulness and dishonesty on his part.[4] The respondent takes issue with this assertion pointing out that for the most part he has disclosed the thoughts and behaviours that have led the COMU to become concerned about the level of risk that he poses to the community.
[4] Affidavit of Timothy Snow, [11], [14] and [15.
It is clear from Mr Snow's affidavit that at least some of the concerns of the COMU in relation to the respondent's level of risk arise from disclosures that he has made to his SCCO and the Department of Justice's psychologist. However, it is also clear from Mr Snow's affidavit that there have been occasions on which the respondent has not disclosed to his SCCO and others certain aspects of his conduct, or certain interactions that he has had, as promptly as he should have done or at all until being directly challenged. It is, I infer, these failures on the part of the respondent that Mr Snow contends demonstrate deceitfulness and dishonesty on the respondent's part.
Leaving to one side the issue of whether the respondent has been deceitful and dishonest, it is in my view apparent from the respondent's disclosures and conduct to which I have referred, that he has a strong sexual interest in, and pre-occupation with, 'young' females, and that he may well be engaging in certain activities in order to bring himself into contact with young females or at least allow him to observe them. Further, the respondent has by his repeated contraventions of the supervision order and some of his other behaviours shown at least a careless or reckless, if not deliberate, disregard for the conditions of his supervision order and instructions given to him by his SCCO, as well as a lack of insight into the potential risks that his contraventions give rise to so far as his risk of reoffending is concerned. He has also, by his other behaviours to which I have referred, showed a lack of insight into the need for him to avoid engaging in certain conduct in order to ensure that his risk of committing further serious sexual offences does not increase. He has continued to place himself in risk situations which in turn increase the risk that he poses to the community.
It almost goes without saying that the respondent is not to be criticised or penalised for being open and frank with his SCCO and psychologist about his sexual interest in young females. Moreover, given that the respondent's past serious sexual offences have included offences committed against girls unrelated to him ranging in age from approximately 4 years to 13 years (albeit with whom he had formed some form of relationship),[5] the fact that the respondent has a strong sexual interest in, and pre-occupation with, young females is unsurprising. The relevance of the respondent's disclosures, however, is that they reveal the level of the respondent's sexual pre-occupation with young females and provide the context within which the significance of the respondent's contraventions of the supervision order and other behaviours must be assessed.
[5] The State of Western Australia v A [22] - [44], [108].
It should not be overlooked in this context that Mr Snow, who is the SCCO currently directly responsible for the management of the respondent in the community, has obviously, and no doubt in consultation with other officers employed within the COMU, become concerned enough by the respondent's behaviour and risk level to request the State to make the contravention application. Mr Snow's opinion as to the respondent's risk level is not something that is to be treated lightly. That opinion, as stated in pars 15 and 18 of his affidavit, is that the respondent's 'accumulation of risk taking behaviours, lack of insight into his actions and possible consequences are of concern for ongoing risk escalation in the community' and that the respondent 'is at increased risk of future non-compliance with conditions of the [supervision order] to reduce incidental contact with children and families and…reoffending in a serious sexual manner.'
In light of the respondent's expressed ongoing sexual interest in, and pre-occupation with, 'young' females, the nature and number of the respondent's contraventions of the supervision order, the respondent's behaviour in failing to comply with lawful instructions, the respondent's apparent willingness to place himself in situations that have the potential to increase the risk of him committing further serious sexual offences, and the opinion of Mr Snow the respondent has failed to satisfy me on the balance of probabilities that if he was released he would substantially comply with standard conditions 4 and 6 of his supervision order, including any amendments that might be made to these standard conditions or any other conditions of the supervision order. Standard conditions 4 and 6 of the respondent's supervision order are the standard conditions specified in s 18(1)(d) and s 18(1)(f) of the Act. In arriving at this conclusion I have borne in mind that the paramount consideration is the need to ensure the adequate protection of the community.
Conclusion
For the reasons I have stated I refuse the respondent's application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Hon Justice Derrick13 JUNE 2019