The State of Western Australia v AA

[2021] WASC 365

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- AA [2021] WASC 365

CORAM:   QUINLAN CJ

HEARD:   22 OCTOBER 2021

DELIVERED          :   22 OCTOBER 2021

PUBLISHED           :   25 OCTOBER 2021

FILE NO/S:   SO 33 of 2006

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

AA

Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Application to amend conditions of a supervision order – Change of residence – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision order amended

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	M R Gunning

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Gunning Barristers & Solicitors

Cases referred to in decision:

Director of Public Prosecutions v AA [2016] WASC 46

The State of Western Australia v AA [2019] WASC 78

QUINLAN CJ:

(This judgment was delivered extemporaneously on 22 October 2021 and has been edited from the transcript.)

Introduction

1. This is an application under s 49 of the High Risk Serious Offenders Act 2020 (WA) (the Act) to amend the conditions of a supervision order made under the Dangerous Sexual Offenders Act 2006 (WA). The supervision order was made by Mitchell JA on 7 March 2019. By that order, his Honour imposed various conditions on AA, including a residency condition.[1]

   [1] The State of Western Australia v AA [2019] WASC 78.

2. The residency condition (condition 8) required AA live at a particular Hostel. The Hostel was referred to by Mitchell JA as being an appropriate accommodation for AA. His Honour was satisfied, on the evidence before him, that conditions could be imposed to reduce the risk of AA committing serious sexual offences to an acceptable level while living at the Hostel. This was so, notwithstanding the fact that the Hostel was proximate to a school and day care centre.[2]

   [2] The State of Western Australia v AA [2019] WASC 78 [53] ‑ [54] (Mitchell JA).

3. In that context, his Honour said:[3]

   I am also of the view that a supervision order can reduce his risk to acceptable levels, so long (but only so long) as [AA] can be accommodated in a facility, such as the Hostel, which provides a high level of support and supervision.

   [3] The State of Western Australia v AA [2019] WASC 78 [48] (Mitchell JA).

4. His Honour went on to conclude that the Hostel did provide an appropriate level of support and supervision. In so concluding his Honour referred to a summary of the regime at the Hostel in an earlier decision in relation to AA by Jenkins J.[4]

   [4] Director of Public Prosecutions v AA [2016] WASC 46 [35] ‑ [66] (Jenkins J).

5. The Hostel has a 24‑hour, 7‑day a week staffing and enabled AA's medication to be administered by the staff of the Hostel.

The proposed amendment

1. The application before me is to amend condition 8 to require that AA reside at accommodation other than the Hostel. The proposed accommodation, which I have addressed in more detail below, was the subject of evidence before me.

2. Condition 8 of the supervision order made by Mitchell JA provided that AA reside at the Hostel and that:

   Any subsequent change of residential address must be approved in advanced by a [Community Corrections Officer].

3. Given this provision, it would have been open to a Community Corrections Officer (CCO) to approve the proposed change in residence by AA. Nevertheless, out of an abundance of caution, and given Mitchell JA's specific consideration of the Hostel as an appropriate residence, this application was brought in order for the Court to consider the change itself. I am satisfied that was an appropriate course to take, notwithstanding that a CCO could have approved the change.

4. Notwithstanding that cautionary approach, the State submitted that the proposed change of address would, indeed, be appropriate. In that regard the State filed an affidavit affirmed by Alexandra Catherine Maynard on 15 October 2021. Ms Maynard is a senior Community Corrections Officer and AA's primary supervisor.

5. Ms Maynard's evidence reveals the following.

6. The proposed new accommodation is operated by the same organisation that operates the Hostel in which AA currently resides. Ms Maynard deposes that AA's behaviour at the Hostel is such that the staff at the Hostel find it difficult to deal with some of his more demanding needs, in the context of what are his mental health issues and his intellectual disability. By referring to these difficulties, I do not intend that to be, and I do not understand Ms Maynard's affidavit to be, a criticism of those staff members, but simply a recognition that the day‑to‑day relationship between the staff and AA at the Hostel can occasionally trigger antisocial behaviour on his part, due to his perception of those people not liking him.

7. To that end, there has been a great deal of effort by a number of agencies to discuss and address AA's accommodation needs. The evidence reveals that AA has a number of supports, including a specialist support coordinator, a guardian (there having been a guardianship order made by the State Administrative Tribunal in December 2019), the Public Trustee, Community Forensic Mental Health, Alkira (who provides a support worker for 12 hours a week) and a behavioural support practitioner.

8. Those agencies have met on a number of occasions throughout this year, and the discussion has focused on moving AA to semi‑independent accommodation. The interagency view is that moving AA to such accommodation, while still receiving support, may allow him to develop skills and decrease his antisocial behaviours. All of the services that I have referred to are, according to Ms Maynard's affidavit, supportive of this change.

9. In that respect, Community Forensic Mental Health has confirmed that in their view AA would have the capacity to manage his own medication, and it could provide the support required to transition him to that new responsibility. According to the evidence AA has been psychiatrically stable for a lengthy period.

10. The proposed accommodation, which as I have said is operated by the same entity that operates the current Hostel, is a semi‑independent residence and is staffed between 9.00 am and 5.00 pm, Monday to Friday. Both the Community Offender Monitoring Unit and the police have assessed the location recently, and no concerns have been identified by them.

11. In addition, there has been significant development in relation to the availability to AA of NDIS support. In that regard, an NDIS plan was approved on 30 July 2021, the funding for which was increased. It is not necessary for me to identify the specific dollar amounts, but the new plan includes increased one‑on‑one supports to six hours a day, Monday to Friday, and three hours on a Saturday and Sunday. Those supports assist AA with daily living tasks, including self-care, cooking, taking medications, domestic support and assessing social and recreational activities.

12. In addition, there is occupational therapy and behavioural support to assist in the development of behaviour management and training in behaviour management strategies. AA's mental health will continue to be managed by the Community Forensic Mental Health, including assisting him in self-administering his medication. There will therefore be daily support through the NDIS funding, as well as the support of the staff at the location.

13. For this reason, as Ms Maynard's affidavit confirms, while the proposed accommodation is not formally staffed to the same degree as the Hostel, the history since AA's release has been that he spends considerable time away from the Hostel and does not engage in structured activity at the Hostel. As Ms Maynard says, whilst it may appear that he would be provided with less support at the proposed semi‑independent accommodation, in fact the current NDIS plan's dedicated one‑on‑one support will be greater than the support in the community that he currently receives. For that reason the Community Offender Monitoring Unit are supportive of the change.

Conclusion

1. I accept the evidence given by Ms Maynard. I accept that given AA has been now on the supervision order for over two years, that the move to the new accommodation is in his interests and in the interests of protection of the community. As the agencies who have been assisting him are of the view that the move would decrease his antisocial behaviours, I am satisfied that moving to that new accommodation would be consistent with the protection of the community to the same degree, if not more, than the orders made by Mitchell JA on 7 March 2019.

2. All of the agencies involved in the management of AA are to be commended for their attention to his supervision and, in turn, to the protection of the community.

3. For these reasons, I approve the amendment of the supervision order.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

LH

Research Associate to the Honourable Chief Justice Quinlan

25 OCTOBER 2021