The State of Western Australia v AB [No 3]
[2022] WASC 126
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- AB [No 3] [2022] WASC 126
CORAM: STRK J
HEARD: 17, 21 & 22 MARCH 2022
DELIVERED : 12 APRIL 2022
FILE NO/S: SO 8 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
AB
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for restriction order - Whether a risk that the respondent will commit a serious offence is unacceptable - Whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the respondent will commit a serious offence - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)Result:
Application dismissed
Representation:
Counsel:
Applicant : B D Meertens Respondent : G D Cobby SC & B J Willesee Solicitors:
Applicant : State Solicitor's Office (WA) Respondent : Roe Legal Services Case(s) referred to in decision(s):
Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Ewer v Ambrose (1825) 3 B & C 746
Goncalves v The Queen (1997) 99 A Crim R 193
Italiano v The State of Western Australia [2009] WASCA 116
R v M [1980] 2 NSWLR 195
R v Welden (1977) 16 SASR 421
The State of New South Wales v Lidster (Final) [2020] NSWSC 788
The State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v D'Rosario (No 3) [2021] WASC 412
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v MAM [2022] WASC 100
The State of Western Australia v Narrier (No 2) [2022] WASC 49
The State of Western Australia v Nelson [2021] WASC 460
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217
TABLE OF CONTENTS
Introduction
Statutory framework and legal principles
Evidence
Antecedents and criminal history - s 7(3)(g)
Propensity to commit serious offences in the future - s 7(3)(c)
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - ss 7(3)(e) and 7(3)(f)
Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)
Psychological and other assessments - s 7(3)(b)
Any other relevant matter - s 7(3)(j)
Analysis and findings
Conclusion
STRK J:
Introduction
1The respondent is a 27 year old male with a history of violent offending. From the age of 12 to 17, the respondent spent 20 months in the community and otherwise served terms of detention. In February 2013, at the age of 17, the respondent was sentenced to 5 years' imprisonment as an adult.
2On 5 September 2017, the respondent was released from prison and made subject to a post‑sentence supervision order under pt 5A of the Sentence Administration Act 2003 (WA). He was then 23 years old. A copy of the 2017 post‑sentence supervision order is reproduced at sch A to these reasons.
3On 19 November 2017, while subject to the 2017 post‑sentence supervision order, the respondent committed an offence of aggravated armed robbery. The offence involved the theft of a pendant necklace and $20 in cash. The respondent was in the company of others and made threats of violence while pretending to be armed with a handgun.
4The respondent was arrested on 20 November 2017 and was remanded in custody. On 24 June 2019, on his plea of guilty, the respondent was convicted of, among other things, one count of aggravated robbery contrary to s 392 of the Criminal Code (WA). He was sentenced to a total effective sentence of 3 years 6 months' imprisonment, backdated to commence on 20 November 2017. Parole was denied by the Prisoner Review Board on 15 August 2019.
5On 25 June 2020, while in prison, the respondent committed an offence of criminal damage for which he was convicted and sentenced to 5 months' imprisonment to be served cumulatively.
6The respondent was to be released on 19 October 2021 (having completed a total custodial sentence of 3 years and 11 months), subject to a post‑sentence supervision order under pt 5A of the Sentence Administration Act. The 2021 post‑sentence supervision order prescribed a start date of 19 October 2021 and an expiry date of 18 October 2023. A copy of the 2021 post‑sentence supervision order is reproduced at sch B to these reasons.
7During his most recent custodial term, the respondent was charged with an indictable offence of rioters causing damage contrary to s 67 of the Criminal Code. The conduct which grounds the charge is alleged to have occurred on 17 October 2020. The respondent has entered a plea of not guilty. The matter is awaiting trial.
8On 29 July 2021, the State of Western Australia applied for a restriction order under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) in relation to the respondent. The State contends that it is necessary to make a restriction order under the HRSO Act in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence. The respondent's offending history includes 13 convictions for offences of robbery and assault with intent to rob. Item 34 of sch 1 div 1 of the HRSO Act specifies that robbery (s 392 of the Criminal Code) is a 'serious offence' for the purpose of the HRSO Act. Item 35 specifies that the offence of assault with intent to rob (s 393 of the Criminal Code) is also a 'serious offence'.
9On 18 October 2021, after a preliminary hearing of the application pursuant to s 46(1) of the HRSO Act, Corboy J found that there were reasonable grounds for believing that a court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act: [suppressed]. An interim detention order was made pursuant to s 46(2)(c)(i), together with programming orders under s 46(2)(a) and s 74, requiring the respondent to undergo examinations by two qualified experts, a psychiatrist, Dr Gosia Wojnarowska, and a psychologist, Dr Tara Yewers, for the purpose of preparing reports. The court must have regard to such reports in determining the State's application by operation of s 7(3)(a) of the HRSO Act.
10At the preliminary hearing, the respondent contended that parts of the HRSO Act were invalid. Justice Corboy held that the challenged parts of the HRSO Act were not invalid and on 12 November 2021 made the negative declarations sought by the State.[1] That is, Corboy J found that none of the provisions of the HRSO Act contravene any requirement of Ch III of the Constitution or are inconsistent with s 9(1A) of the Racial Discrimination Act 1975 (Cth) in so far as they apply to a serious offender under custodial sentence who has been convicted of the offences of robbery or assault with intent to rob, as referred to in items 34 and 35 of sch 1 div 1 of the HRSO Act.
[1] [suppressed]
11On 23 November 2021, the respondent appealed against the decision of Corboy J in relation to the finding that the challenged parts of the HRSO Act were not invalid, part of which on 21 December 2021 was removed to the High Court of Australia. The decision in the appeal is reserved.[2]
[2] [suppressed]
12The parties requested that the State's application proceed to hearing despite the appeal having not been determined. The State's application for a restriction order was substantively heard on 17, 21 and 22 March 2022. (While listed to commence on 14 March 2022, for reasons related to the COVID-19 pandemic, the hearing of the application was delayed).
13Shortly before the hearing, the State advised that if the court was to find the respondent to be a high risk serious offender, then the State would seek that the court make a supervision order in relation to the respondent under s 48(1)(b) of the HRSO Act. The supervision order conditions proposed by the State are reproduced in sch C to these reasons. Prior to 9 March 2022, the State's indicated intention was to seek that the court make a continuing detention order in relation to the respondent under s 48(1)(a).
14The making of a restriction order was opposed by the respondent. It was the respondent's position that the evidence did not support a finding to a high degree of probability that he is a high risk serious offender as defined in the HRSO Act.
15For the reasons that follow, I am not satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence. The interim detention order will cease to have effect upon the dismissal of the State's application. The respondent will nevertheless be remanded in custody until such time as he may be granted bail in relation to the rioters charge.
Statutory framework and legal principles
16The objects of the HRSO Act as outlined in s 8 are:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.
17Section 7(1) of the HRSO Act provides that an offender is a 'high risk serious offender' if the court dealing with an application under the HRSO Act finds that it 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 the unacceptable risk that the person will commit a serious offence. The State has the onus of satisfying the court that an offender is a high risk serious offender.[3]
[3] HRSO Act s 7(2).
18In the HRSO Act, a 'restriction order' means a continuing detention order or a supervision order.[4] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions in accordance with s 30 of the HRSO Act.
[4] HRSO Act s 3.
19A 'serious offence' is an offence that is specified in sch 1 div 1 of the HRSO Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[5] Schedule 1 comprises a list of serious violent and sexual offences, the majority of which attract a maximum penalty of imprisonment of seven years or more. Relevantly, a 'serious offence' for the purposes of the HRSO Act includes robbery and assault with intent to rob.[6]
[5] HRSO Act s 3, s 5(1) and s 5(2).
[6] HRSO Act sch 1 div 1 sub-div 3, items 34 and 35.
20The court, in considering whether it is satisfied of the matters in s 7(1), must have regard to the following matters listed in s 7(3) of the HRSO Act:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
21The matters set out in pars (h) and (i) above are conclusions or findings based on s 7(3)(a) ‑ (g) and (j) of the HRSO Act.
22Further, the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[7]
[7] HRSO Act s 7(4).
23Section 48(1) of the HRSO Act provides that if the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make in relation to the offender a continuing detention order, or a supervision order (except as provided in s 29). In deciding whether to make a detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[8]
[8] HRSO Act s 48(2).
24The powers conferred by the HRSO Act, like the now‑repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[9] This requires the court to choose the order that is the least invasive or destructive of the offender's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[10] The requirement in s 48(2) of the HRSO Act does not exclude other considerations.[11]
[9] HRSO Act s 48(2).
[10] The State of Western Australia v Latimer [2006] WASC 235 [49] (Murray J).
[11] The State of Western Australia v ACJ [2021] WASC 219 [32].
25The HRSO Act, like the DSO Act, does not require that there be no risk of reoffending; rather, the issue is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[12] The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[13]
[12] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (Beech J), citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57]. [Suppressed]
[13] The State of Western Australia v ACJ [32], citing Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
26Section 29 of the HRSO Act limits a court's power to make a supervision order:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
Two evaluative judgments
27Section 7(1) of the HRSO Act was considered by Corboy J [suppressed]. His Honour preferred an interpretation of the section (read with s 48) that requires that the court assess two separate matters.[14] First, whether a risk that an offender will commit a serious offence is unacceptable; and secondly, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.
[14] See also The State of Western Australia v D'Rosario (No 3) [2021] WASC 412 [18] ‑ [22]; The State of Western Australia v Narrier (No 2) [2022] WASC 49; The State of Western Australia v Nelson [2021] WASC 460 [12] ‑ [15]; The State of Western Australia v MAM [2022] WASC 100 [18].
28That is, s 7(1) involves two evaluative judgments, and 'necessity' and 'adequacy' involve evaluative assessments.
29As was suggested at the preliminary hearing, the word 'unacceptable' might carry a meaning similar to that suggested by French CJ in Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, that is, a risk that is not trivial or transient.[15] Further, the factors identified by Wheeler JA in Director of Public Prosecutions (WA) v Williams, and Buss JA in Italiano v The State of Western Australia [2009] WASCA 116, and the balancing exercise to which their Honours referred, would be most relevant to the determination of whether it was necessary to make a restriction order to adequately protect the community.[16]
[15] [suppressed]
[16] [suppressed]
30I have applied his Honour's preferred construction of s 7(1), which construction was promoted by the respondent at the preliminary hearing and adopted by the State at the hearing of the application.[17] In so doing, I took into account the factors identified by Wheeler JA, and applied the balancing exercise to which Wheeler JA and Buss JA referred. [Suppressed].
[17] ts 322 (17 March 2022).
31I have proceeded on the basis that these separate matters need to be demonstrated 'by acceptable and cogent evidence and to a high degree of probability'.[18] The expression 'high degree of probability' connotes a standard that is more than the civil standard but less than the criminal standard of proof.[19]
[18] HRSO Act s 7(1). See also HRSO Act s 82(2).
[19] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28].
32The effect of this distinction [suppressed], is to make clear the possibility that the court might find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has found that the risk of future offending was unacceptable.[20]
[20] [suppressed] as noted by Quinlan CJ in The State of Western Australia v D'Rosario (No 3) [21].
33As to such possibility, Quinlan CJ recently observed:[21]
While no doubt such a situation would be rare, it is possible to envisage circumstances in which that might be the case. For example, it may be that, in the circumstances of a particular case, other external restraints on an offender (such as a post-sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').
[21] The State of Western Australia v D'Rosario (No 3) [21].
34[Suppressed] s 7(1) recognises that the need to ensure adequate protection for the community should form part of the court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order) and not merely the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).[22]
[22] [suppressed] cited with approval by Quinlan CJ in The State of Western Australia v D'Rosario (No 3) [22].
Evidence
35For the purpose of the hearing of the application, a 1700 page book of materials comprised of five volumes was compiled on behalf of the State. At the hearing, counsel for the State sought to tender all five books. While the third volume was initially marked for identification, by the conclusion of the hearing, all five volumes were tendered.[23]
[23] Exhibits 1 ‑ 5, respectively.
36The first volume contained a copy of the respondent's criminal record, a chronology of offending prepared by the State Solicitor's Office, and various Department of Justice prison records. The prison records included reports which concern the respondent's prison behaviour, incident description reports, a prison 'Individual Management Plan' for the respondent approved on 29 April 2021, a medical record report for the period 21 November 2017 to 17 November 2021, and a substance use test results report for the period 20 November 2017 to 30 November 2021.
37The second volume contained documents which concern the respondent's offending history for offences defined as 'serious offences' under the HRSO Act, including statements of material facts, trial and sentencing transcripts, and pre‑sentence reports. The second volume also contained documents which concern the respondent's offending history for offences not defined as 'serious offences' under the HRSO Act but that the State contends are relevant proceedings for the purpose of the application, including statements of material facts, transcripts and victim impact statements. Finally, the second volume contained various reports described as 'post‑sentence reports', such as treatment reports, a parole assessment report dated 1 August 2019, and a treatment assessment report created on 3 September 2019.
38The third volume contained reports and assessments prepared for this hearing by Dr Wojnarowska, Dr Yewers, Ms Catherine Korda and Ms Emma Cashmore. The third volume also contained a copy of journal articles and other reference materials referred to by Dr Yewers in her report; a copy of the respondent's criminal record as at 3 February 2022; and documents which concern the offence committed by the respondent on 25 June 2020 (referred to at [5] above), which is not a 'serious offences' under the HRSO Act, but which the State contends is a relevant offence for the purpose of the application.
39The fourth volume contained additional Department of Justice prison records concerning the respondent, described as 'updated materials provided by the Department of Justice'. They included a charge history report for the period 30 November 2021 to 1 March 2022, an incidents history report for the period 30 November 2021 to 1 March 2022, a bundle of incident description reports for the period 27 January 2022 to 17 February 2022, and a substance use test results report for the period 30 November 2021 to 1 March 2022. It also contained the second addendum to Dr Wojnarowska's report.
40The fifth volume contained documents produced by Dr Yewers, Dr Wojnarowska and Ms Korda pursuant to witness summonses issued by the court on the application of the respondent that were returnable on 8 March 2022. It also contained documents included at the request of the respondent, including the affidavit of Mr Mark David Gregson, solicitor for the respondent, sworn on 3 March 2022 with annexures marked MDG1 to MDG13; the affidavit of Mr Mervyn James Eades, chief executive officer and founder of Ngalla Maya, sworn on 3 March 2022;[24] and the 2021 post‑sentence supervision order.
[24] Paragraphs 10 and 11 of the affidavit of Mr Eades were struck through on objection by the State, which objections was conceded: ts 351 (17 March 2022).
41The State called four witnesses who gave evidence and were cross‑examined. They were as follows:
(a)Dr Wojnarowska, a forensic consultant psychiatrist and author of the psychiatric report dated 9 February 2022, the addendum dated 17 February 2022, and the second addendum dated 22 February 2022;[25]
(b)Dr Yewers, a counselling psychologist and author of the psychological report dated 31 January 2022;
(c)Ms Korda, a senior forensic psychologist employed by the Department of Justice and the author of a proposed management plan dated 11 February 2022; and
(d)Ms Cashmore, a senior community corrections officer within the Community Offender Monitoring Unit of the Department of Justice. Ms Cashmore was the author of and one of three signatories to the community supervision assessment dated 8 February 2022.
[25] References in these reasons to Dr Wojnarowska's report is a reference to the report dated 9 February 2022 read with the two addenda.
42At the request of the respondent, an order was made for the witnesses to remain out of court. The reports of the witnesses were received into evidence as documents within the third and fourth volumes of the book of materials.
43The State also tendered into evidence:
(a)the respondent's 2017 post‑sentence supervision order, dated 28 August 2017;[26]
(b)a Department of Justice document titled 'Group Rehabilitation Programs for Offenders in Community and Custody in Western Australia, Programs Guide – Adult, January 2022', which document was referred to by Ms Korda in the proposed management plan;[27]
(c)a document titled 'PCL-R Coding Sheet', prepared by Dr Yewers and dated January 2022;[28]
(d)a document titled 'The Hare Psychopathy Checklist – Revised (PCL-R) Scoring Grid', prepared by Dr Yewers and dated January 2022;[29]
(e)an excerpt from a text titled 'The Psychology of Criminal Conduct', by J Bonta and DA Andrews, 6th ed, pages 45 ‑ 46;[30] and
(f)an academic article titled 'Aboriginality and violence: gender and cultural differences on the Level of Service/Risk, Need, Responsivity (LS/RNR) and Violence Risk Scale (VRS)', by M Gower, F Morgan and J Saunders.[31]
[26] Exhibit 6; ts 354 (17 March 2022).
[27] Exhibit 7, being a document referenced in Exhibit 3, page 1182 (Ms Korda's proposed HRSO management plan); ts 354 (17 March 2022).
[28] Exhibit 8; ts 355 (17 March 2022).
[29] Exhibit 9; ts 356 (17 March 2022).
[30] Exhibit 10; ts 357 (17 March 2022).
[31] Exhibit 11; ts 451 (17 March 2022).
44Counsel for the State also relied upon the written submissions dated 9 March 2022.
45The respondent elected not to give evidence. During the course of the hearing, counsel for the respondent tendered into evidence:
(a)an academic article titled 'Does Interrater (Dis)agreement on Psychopathy Checklist Scores in Sexually Violent Predator Trials Suggest Partisan Allegiance in Forensic Evaluations?', by DC Murrie, MT Boccaccini, JT Johnson and C Janke;[32]
(b)an academic article titled 'Psychopathy Checklist-Revised Use and Reporting Practices in Sexually Violent Predator Evaluations', by MT Boccaccini, CS Chevalier, DC Murrie and JG Varela;[33]
(c)email chain between Mr Meertens, Dr Yewers and Dr Wojnarowska dated 24 January 2022;[34]
(d)a compensation award made in favour of the respondent on 4 August 2016 under the Criminal Injuries Compensation Act 2003 (WA);[35] and
(e)a statement of transactions on the respondent's account held by the Public Trustee.[36]
[32] Exhibit 12; ts 516 (21 March 2022).
[33] Exhibit 13; ts 516 (21 March 2022).
[34] Exhibit 14; ts 523 (21 March 2022).
[35] Exhibit 15; ts 566 (21 March 2022).
[36] Exhibit 16; ts 566 (21 March 2022).
46Counsel for the respondent also relied upon the written outline of submissions dated 11 March 2022.
The respondent's objections to evidence
Procedural history and notice of objections
47[Suppressed] the respondent was required to undergo examination by Dr Wojnarowska and Dr Yewers.[37] The reports of the experts were to be provided to the State at least 42 days prior to the hearing of the restriction order application; and any report authored by the Department of Justice, including any proposed management plan or community supervision assessment report, was to be provided to the State at least 35 days prior to the date of the hearing. At the preliminary hearing, 14 March 2022 was fixed as the day for the substantive hearing of the restriction order application.
[37] [suppressed]; HRSO Act s 46(2)(a) and s 74.
48The finalisation of the reports of Dr Wojnarowska and Ms Korda were delayed. An extension of time was sought by the State and not opposed.
49On 14 February 2022, counsel for the respondent advised the State that pursuant to s 41(2)(b) of the HRSO Act, the respondent objected to the giving or adducing of any evidence, report or document at the hearing that had not been provided or identified to the respondent as at 14 February 2022, including the evidence of any person whose report or statement had not been provided to the respondent. The respondent also gave notice of objection to the whole of Ms Cashmore's report, save for the last two paragraphs on page 6 and pages 7 and 8, on the grounds that it was not evidence but in the nature of a submission.
50On 24 February 2022, on the application of the respondent, the court issued three witness summonses requiring the production of documents by Dr Wojnarowska, Dr Yewers and Ms Korda, returnable on 8 March 2022. Among other things, Dr Yewers was summonsed to produce all documents relating to the assessment of the respondent using the risk assessment tool known as the Violence Risk Scale, including any scoring notes and the Violence Risk Scale manual referred to by Dr Yewers in her report.
51On 3 March 2022, the respondent provided to the State full particulars of the respondent's objections to the evidence identified by the State as evidence intended to be led at the substantive hearing. The respondent gave notice of objection to the whole and parts of the community supervision assessment and the proposed management plan. The respondent gave notice of objection to certain opinions proffered by Dr Yewers based on her use of risk assessment tools, particularly the Violence Risk Scale, without production of the operational manuals for the tools, and in circumstances where the State had not proved the methodology, assumptions or rationale underlying the tools. The respondent also gave notice of its objection to Dr Yewers' evidence on the basis that the methodology adopted by Dr Yewers in use of the tools was not explained in her report, and the foundation for the conclusions reached had not been properly identified or explained.
52In the week prior to the hearing, counsel for the State attended each of the witnesses to proof the same. Summaries of additional evidence were prepared. They were described by counsel for the State as being 'specific to the issues raised in the schedule of objections',[38] and provided to the respondent's representatives on the basis that they were 'evidentiary material' as defined in s 34 of the HRSO Act. It was the State's position that the summaries were provided to the respondent as soon as practicable after they had been prepared and received. I understood that the last summary was provided to the respondent on the evening prior to the commencement of the hearing on 17 March 2022.
[38] ts 329 (17 March 2022).
Objections taken at the hearing
53At the hearing of the restriction order application, the respondent accepted that the court should receive Dr Yewers' report and that submissions might be made as to weight.[39] I was satisfied that this was the appropriate course, having regard to the scheme of the HRSO Act, and the reasons of Steytler P and Buss JA in Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217 [42] ‑ [83].
[39] ts 348 (17 March 2022).
54The State sought to adduce evidence from Dr Yewers that was not included in her original report, which was properly the subject of expert evidence, relevant to the determination of the application, and for which there had been no prior disclosure. For example, counsel for the State sought to adduce evidence of Dr Yewers' opinion of the impact of the 2021 post‑sentence supervision order on her assessment of the respondent's risk that without a restriction order, the respondent will commit a serious offence. The State also sought to adduce evidence of Dr Yewers' opinion as to the comparable impact of the terms of the 2021 post‑sentence supervision order and the supervision order conditions proposed by the State on her assessment of the respondent's risk.[40] The respondent objected to the same.
[40] ts 403 ‑ 404 (17 March 2022).
55The State's application is taken to be a criminal proceeding for all purposes.[41] Section 84 of the HRSO Act provides that before the court makes a decision or order on the hearing of a restriction order application it must, if the evidence is admissible, hear evidence called by the State.[42] The ordinary rules of evidence apply to evidence given or called under s 84(3), except as modified by subsection (5). Further, the matters that the court must have regard to in considering whether it is satisfied as required by s 7(1) include any report prepared under s 74 and any other relevant matter. The language is mandatory.
[41] HRSO Act s 82(1).
[42] HRSO Act s 84(2)(a) and s 84(3)(a).
56The supplementary evidence sought to be adduced from Dr Yewers was evidence sought to be called by the State that was admissible. It concerned matters properly the subject of expert evidence relevant to the determination of the application. The evidence, if not within the ambit of s 7(3)(a) or (b), was certainly within the ambit of s 7(3)(j).
57Having regard to these sections within the scheme of the HRSO Act, I ruled that I would allow the State to adduce evidence that had not been provided or identified to the respondent as at 14 February 2022, and in the case of some of the evidence, that had not been adequately disclosed.
58I also received the reports of Ms Korda and Ms Cashmore, as being assessments relating to the respondent of the kind mentioned in s 7(3), and on the basis that submissions might be made as to weight.
59An offer to adjourn the hearing, alternatively to adjust the order in which the State's witnesses might be called over the allocated hearing days to afford the respondent additional time, was refused on behalf of the respondent.
60Finally, I note that numerous objections to the State's examination of the witnesses were successful on the basis that a party who calls a particular witness to give evidence may not ask that witness questions designed to discredit or 'impeach' them. This rule restrained the State from leading evidence to contradict or denigrate the evidence of Dr Wojnarowska.[43]
[43] See, for example, Goncalves v The Queen (1997) 99 A Crim R 193, 216; R v Welden (1977) 16 SASR 421, 427; R v M [1980] 2 NSWLR 195, 209 ‑ 210; Ewer v Ambrose (1825) 3 B & C 746, 749.
Antecedents and criminal history - s 7(3)(g)
61I now turn to the matters relevant to determining whether or not the respondent is a high risk serious offender pursuant to s 7 of the HRSO Act.
62In deciding whether a person is a high risk serious offender, the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.[44]
[44] As observed recently by McGrath J in The State of Western Australia v Nelson [33].
63The criminal record and antecedents are relevant in and of themselves, but are also relevant to whether the person has a propensity to commit serious offences in the future. The criminal record and antecedents are also relevant as to whether there is any pattern of offending behaviour.[45] It is therefore convenient to first consider the respondent's criminal record and antecedents as required by s 7(3)(g).
[45] Again, as observed by McGrath J in The State of Western Australia v Nelson [34], referring to the HRSO Act s 7(3)(c) and s 7(3)(d).
Childhood
64The respondent had a childhood that was chaotic, marked by significant violence, instability, neglect, illicit drug use and crime.
65The respondent reported that he is the oldest of seven children born to his biological parents and has six paternal half‑siblings and three maternal half‑siblings. He described his family and background to Dr Yewers in interview for the purpose of this hearing, reporting that his needs were not reliably met, and that he stole and shoplifted food, clothing and shoes from a young age.[46] He frequently ran away from home to visit relatives or to escape violence. The respondent's report to Dr Yewers was consistent with that given to Dr Wojnarowska.[47]
[46] Exhibit 3, page 1186 ‑ 1188 (Dr Yewers' report pars 16 ‑ 21).
[47] Exhibit 3, page 1233 (Dr Wojnarowska's report pars 60 ‑ 61).
66The respondent further reported to Dr Yewers that his parents were heavy users of alcohol and drugs. Both spent time in prison during his childhood. The respondent reported that his father was and still is a very violent man, and that he witnessed significant violence perpetrated by his father towards his mother, his father's own mother and himself. He described a number of violent incidents to Dr Yewers. In interview, the respondent recalled among other things, that he required hospital treatment following a physical assault from his father when he was about six years old. He also described having witnessed his father tie up his mother, put her in a freezer then spray the room with petrol. He recalled that during the same incident his father broke his grandmother's ribs. Dr Yewers noted that the respondent's accounts were consistent with a Department of Child Protection report that documented two substantiated incidents of physical abuse against the respondent when he was seven and nine years old, and one unsubstantiated incident of physical abuse when he was nine.[48]
[48] Exhibit 3, page 1187 (Dr Yewers' report par 17), referencing Exhibit 2, pages 677 ‑ 682 (Department of Child Protection report for the President / Magistrate of Perth Children's Court dated 19 March 2009).
67In 2002, when the respondent was seven, the Department of Child Protection was granted a Protection Order for the respondent until he turned 18. Various placements were arranged for the respondent, some away from family which he found difficult.
68The respondent reported to Dr Yewers that he was sexually abused by a cousin when he was seven; sexually abused on a number of occasions by a worker on a station to which he had been sent in the north of Western Australia when he was nine or ten; and physically abused in one of the Department of Child Protection placements. There were periods in the respondent's childhood where his whereabouts was unknown. The respondent reported that his opposition to his placements led him to abscond and to commit crime in an effort to return to Perth.
69On 2 July 2019, when sentencing the respondent, Fiannaca J observed as follows:[49]
[52]After you were removed from your parents, you were initially placed in foster care with an aunt on your father's side of the family. However, you were later moved into the care of your grandparents. You started primary school, but your schooling was disrupted. You have said you were bullied at school because of your indigenous background. That resulted in you getting into fights and being kicked out of school. You then ran away from home and fell under the negative influences of older half brothers. Your history after that is one of dysfunction, neglect and exploitation, leading to a life of illicit drug use and crime.
[53]It appears you commenced to use drugs and became involved in criminal conduct at an early age. You were sent north to what you refer to as a boys' home for foster kids on a cattle station. You had trouble settling in at school in a country town, with no family support or contact. You say that you got into more trouble at school and were expelled at the age of ten, and your carers then sent you to work mustering cattle in the bush for two years. While you may have been difficult to deal with, it was nevertheless an extraordinary failure of foster care, depriving you of proper childhood development. You describe being physically abused, crying to be home with your family and feeling deep sadness and depression, especially when your grandmother passed away in Perth. You say that you started to harm yourself and tried to take your own life.
[54]After being allowed to attend your grandmother's funeral, you ran away again and were living on the streets at the age of 12, associating again with negative peers. You fell back into drug and alcohol abuse and committed numerous serious offences, including numerous aggravated burglaries and aggravated robberies, on a regular basis from 2007 until 2012. You were convicted and sentenced to several periods of juvenile detention until February 2013, when you were sentenced to 5 years' imprisonment as an adult. You were not granted parole, but when you were released from prison on 5 September 2017, you were made subject to a Post Sentence Supervision Order under pt 5A of the Sentence Administration Act 2003 (WA). You had only been released from prison for a little over 2 months when you committed the present offences.
[49] [suppressed]; Exhibit 2, pages 893 ‑ 894.
Education and employment
70The respondent's schooling was significantly interrupted. Dr Yewers recorded that the respondent experienced difficulty learning, particularly with literacy; while in detention, he was diagnosed with dyslexia; and presently, he can only read short common words and cannot write.[50]
[50] Exhibit 3, page 1189 (Dr Yewers' report par 26).
71Dr Wojnarowska reported that the respondent had no educational history outside of completing some schooling while in detention at Banksia Hill Detention Centre. The respondent reported to Dr Wojnarowska that although he attended intermittent schooling from an early age, he does not have difficulties with literacy and numeracy.[51] However, during the course of the hearing, counsel for the respondent referenced the respondent's illiteracy.[52]
[51] Exhibit 3, page 1233 (Dr Wojnarowska's report par 62).
[52] ts 429 (17 March 2022); ts 541 (21 March 2022); ts 606 (22 March 2022).
72The respondent has never had paid employment while in the community. He worked on a station as a teenager and whilst at Banksia Hill Detention Centre.[53]
[53] Exhibit 3, page 1234 (Dr Wojnarowska's report par 70).
73The respondent reported to Dr Yewers that he had achieved numerous qualifications while in custody, informing her that he has certificates in bricklaying, paving, building limestone bricks, woodwork, cooking and horticulture.[54] The respondent reported that he had held various jobs in prison, including as a window washer, kitchenhand and gardener, and is willing to work when he is able to access employment. Ms Cashmore confirmed in her consultation with Dr Yewers that the respondent had been employed while in prison since 14 December 2021.[55]
[54] Exhibit 3, page 1189 (Dr Yewers' report par 28).
[55] Exhibit 3, page 1189 (Dr Yewers' report par 27).
74Dr Wojnarowska recorded that the respondent had been referred to the ReSet Intensive Employment Support Service run by Waalitj Foundation. She noted that the respondent had reported his interest in bricklaying and in completing a Certificate III in Surface Extraction through Consolidated Training Services. She noted that the ReSet employment and training mentor can explore other training and employment opportunities with the respondent, along with providing a resume and interview support.[56]
[56] Exhibit 3, page 1237 (Dr Wojnarowska's report par 89).
Relationships
75The respondent is in a prosocial relationship. He has been in a relationship with his partner since he was about 13 or 14 years old. He and his partner have a daughter together who is now three years old. The respondent described his relationship with his partner to Dr Yewers as stable. Further, he indicated that his partner and his partner's mother are supportive of him; they will assist him in reintegrating into the community and meeting his commitments when released; and that his partner does not abuse alcohol or use drugs.
76Dr Wojnarowska noted that there is no reported or known history of violence towards his partner, and the respondent was unable to identify any other social supports beyond his partner and mother-in-law.[57]
[57] Exhibit 3, page 1234 (Dr Wojnarowska's report par 69).
77The respondent reported to Dr Yewers that his partner and her family provide most of the practical and monetary support for his daughter, although money held for him by the Public Trustee had been released and used to purchase some items required by his daughter. In this regard, I understood the respondent to have received compensation in relation to the neglect he suffered as a child. A copy of a compensation award made in his favour in the amount of $100,000 pursuant to the Criminal Injuries Compensation Act 2003 (WA) was tendered in evidence.[58] It records that applications were made by the respondent in respect of injuries and losses suffered by him as a consequence of alleged offences between 16 August 1994 and 27 October 2003. The Public Trustee presently holds $77,124.98 on behalf of the respondent.
[58] Exhibits 15 and 16; see also [suppressed] Exhibit 2, page 896.
78The respondent indicated his intention to reside with his partner, daughter and mother-in-law upon release.[59]
[59] Exhibit 3, page 1225 (Dr Wojnarowska's report pars 9 ‑ 10).
79The respondent reported to Dr Yewers that he presently does not have contact with this father, who is currently serving a long prison sentence with his half‑brother. He reported that several of his other brothers are also currently in prison, and he otherwise has infrequent contact with his family. The respondent acknowledged to Dr Yewers that he recognises that his immediate family have a negative influence on him and they endorse drug use and crime.
80The respondent acknowledged to Dr Yewers that through his teenage years, he continued to gravitate towards antisocial peers who were often several years older, continuing to commit crime in their company, particularly burglaries. He acknowledged to Dr Yewers that the majority of his offences, including the violent ones, have been in the company of antisocial peers and family. The respondent stated to Dr Yewers that he would not associate with his previous peers when released. He identified several friendships through his partner that he considered to be prosocial.
Alcohol and substance abuse
81The respondent has a significant history of illicit drug and alcohol use, which were factors in his frequent lapses into criminal conduct. A pre‑sentence report prepared for the purposes of sentencing for the respondent's 2017 offences records as follows:[60]
In relation to the current offences, [the respondent] advised he was heavily under the influence of methamphetamine, using the drug by injection on a daily basis. …
…
On 12 December 2013, [the respondent] was sentenced to five year term of imprisonment for robbery and burglary offences and escaping lawful custody. He was not afforded an opportunity for Parole and on 5 September 2017, was placed on a Post Sentence Supervision Order. [The respondent] reported as directed throughout the Order. However, shortly after release, he relapsed into drug use, providing positive results to methamphetamine, amphetamine and cannabis on 14 September 2017, 5 October 2017 and 15 November 2017. While [the respondent] was referred to the Departmental psychologist, he was resistant to engagement and never commenced counselling. [The respondent] was remanded in custody on 21 November 2017 for reoffending and has been in custody since this time. …
…
[The respondent's] offending appears directly related to his substance misuse and negative peer associations. …
[60] Exhibit 2, page 835 (Ms Rathmann's verbal pre-sentence report dated 25 June 2019).
82The respondent reported to Dr Yewers that he began using cannabis and alcohol when he was about nine years old, observing that cannabis calmed him down. He reported that he ceased drinking alcohol when he was about 15 years old because he did not like the physiological effects. He also reported that he was introduced to methamphetamines when he was nine years old and he came to use heavily as a teenager. He reported that he would use heroin to manage the 'come down' from methamphetamine intoxication.
83The respondent reported to Dr Yewers that when he is not using drugs, he tends to remain home with his partner, however, when he relapses, he rapidly turns to heavy use.
84The respondent described himself to Dr Yewers as a 'different person' when he is not using drugs, explaining that when he is using drugs, he is impulsive, agitated, paranoid and prone to violence. He elaborated that if he is in a tough situation and using drugs, then he will immediately want to fight.[61]
[61] Exhibit 3, page 1190 (Dr Yewers' report par 32).
85The respondent has used illicit substances while in prison.[62] In the period 20 November 2017 to 30 November 2021, the respondent was tested for illicit substances on six occasions. It appears that testing was both targeted (initiated as a result of intelligence), and random. On two occasions (3 December 2018 and 3 March 2019) the respondent tested positive for cannabis. On two occasions (3 March 2019 and 17 August 2020) the respondent tested positive for buprenorphine. A report for the period 30 November 2021 to 1 March 2022, reproduced in the fourth volume of the book of materials suggests that the respondent was not tested in that period.[63]
[62] Exhibit 1, page 611 (report titled 'Substance Use Test Results - Prisoner').
[63] Exhibit 4, page 1292 (report titled 'Substance Use Test Results - Prisoner Copy').
86The respondent acknowledged to Dr Yewers that he had consistently used suboxone and cannabis, and in particular, used suboxone whenever he was able to access it in order to 'keep calm'. He stated that he was abstinent from all substances while he was held in the Special Handling Unit at Casuarina Prison.
87The respondent reported to Dr Yewers that he is not currently using substances in prison, and recounted to her that he had been offered various substances on Christmas day (2021) but had declined.
88The respondent acknowledged to Dr Yewers that methamphetamine use had negatively impacted his life; caused him to miss three years of his daughter's life; and that he does not want the drug to have a presence in her life going forward.
89As to treatment, the respondent began a methadone maintenance program for the first time in August 2013, but ceased taking it after two months.[64] He reported to Ms Cashmore that he began a methadone program for an 18-month period while in prison but discontinued upon his release in 2017.[65] The respondent recommenced a methadone maintenance program in December 2021 and is presently receiving treatment.[66] Dr Wojnarowska recorded that the respondent had been commenced on a methadone program of 40 mg per day. She recorded that the respondent had also advised that he would like to receive a naltrexone implant and substance use counselling once released.[67]
[64] Exhibit 1, page 593 (Medical Records); Exhibit 4, page 1290 (Medical Records); see also Exhibit 3, page 1193 (Dr Yewers' report).
[65] Exhibit 3, pages 1247 ‑ 1249 (Ms Cashmore's community supervision assessment).
[66] Exhibit 4, page 1278 (Medical Records).
[67] Exhibit 3, page 1237 (Dr Wojnarowska's report par 90).
90The respondent acknowledged to Dr Yewers his propensity to relapse on release from prison and spoke of his intention to continue pharmacologic treatment (ether methadone, suboxone or naltrexone) after he is released into the community.[68]
[68] Exhibit 3, page 1190 (Dr Yewers' report par 34).
91Dr Wojnarowska opined that the respondent fulfills the criteria for Substance Use Disorder (amphetamines and cannabis), this condition being in remissions due to the respondent's current incarceration.[69]
[69] Exhibit 3, page 1232 (Dr Wojnarowska's report pars 51 ‑ 52).
92The respondent's Substance Use Disorder remains untreated.
Criminal record - serious offences and other relevant offences
93The respondent has an extensive criminal history, with convictions recorded under the Criminal Code, the Misuse of Drugs Act 1981 (WA), the Road Traffic Act 1974 (WA) and the Sentence Administration Act.
94For the purpose of the hearing the State prepared a chronology of the respondent's offending which falls within the meaning of a serious offence under the HRSO Act, and other offences the State submits are relevant offences.[70] The chronology included the date and nature of each offence; a high level summary of the material facts for each offence; the date of outcome; and the sentence imposed.
[70] Exhibit 1, pages 9 ‑ 20.
95No concern was raised on behalf of the respondent as to the accuracy or adequacy of information reproduced in the chronology. In determining this application, I had regard to the primary documents reproduced in the book of materials concerning the respondent's offending. For convenience, rather than summarise each of the serious offences and relevant offences in these reasons, I reproduce the State's chronology at sch D to these reasons.
96On the basis of the evidence before me, having regard to the respondent's convictions for serious offences, I am satisfied of the following.
97First, the respondent's history of serious offending is extensive and sustained. The respondent has 13 convictions for offences of robbery and assault with intent to rob, 'serious offences' under the HRSO Act. He committed his first armed robbery when he was only 12 years old. His most recent serious offence was committed when he was 23.
98Secondly, all of the serious offences had a degree of violence or involved demands made with threats of violence, used to gain compliance from victims. The respondent threatened violence with his fist, scissors, knives and bricks, which had the potential to cause serious injury.
99The use of violence or threats of violence by the respondent in the commission of serious offences included the following.
(a)When the respondent was 12 years old and in company with another juvenile male, he pulled a 15cm knife from behind his back and raised it up about half a metre from a 50 year old victim, yelling 'Give me your bag'. The victim backed up in fear which caused her to fall to the ground.[71]
(b)Again, when the respondent was 12, he and a co‑offender ran up behind a victim who was walking her baby in a pram. The accused raised his clenched fist and demanded the victim's handbag, stating that he would punch the victim's son if he did not get it.
(c)When the respondent was 12, the respondent in the company of others approached a male victim and produced scissors, threatening violence if the victim did not hand over his wallet and telephone. The victim attempted to run away, but the respondent and the co‑offenders followed and made further threats while lunging at the victim with the scissors. The respondent attempted to remove the victim's wallet from his pocket but fled before taking any property.
(d)At the age of 14, with a co‑offender at about 9.30 pm on 11 January 2009, the respondent approached a victim at the Halls Creek Bakery armed with a pair of scissors. He threatened the victim with the scissors, stating that he was there to rob the victim and that he would stab him unless he handed over drugs and alcohol.
(e)At about 12.55 am on 12 January 2009, the respondent returned to the Halls Creek Bakery in company armed with a black handled kitchen knife with an 11cm blade. The same victim was asleep. In the course of the offending, the respondent dropped the knife and picked up a brick and again approached the victim in a threatening manner.
(f)At the age of 15 and in the company of a co‑offender, the respondent pulled a victim from her motor vehicle and pushed her to the ground, where she landed heavily on her shoulder and then crawled across the road. As a result of the incident, the victim received bruising to her upper right arm and pain in the shoulder area which required medical attention.
(g)At the age of 17 and with a co‑offender, the respondent approached a victim who was three months pregnant walking with her six year old daughter. He grabbed the victim's handbag which was over her right shoulder. He pulled her handbag strap with such force the victim was pulled to the ground and dragged. She received abrasions and bruising to her feet, knees, hands and arms.
(h)When the respondent was 17 and detained at Banksia Hill Juvenile Detention Centre, he climbed a 6ft barbed wire fence and with company, approached a victim's vehicle. The respondent punched the driver's side window causing it to smash, reached inside and unlocked the door. He and his co‑offender managed to pull the victim from the vehicle.
(i)At the age of 23, the respondent attended a Rivervale premises, home to two victims, both international students from Korea, who shared a bedroom. The respondent was in the company of his sister and two other males. The respondent told one of the female victims to open the front security gate at the address, but was ignored. He climbed over the fence and banged on the door, requesting that a male occupant of the house come outside. The male occupant complied and the respondent went inside the address without permission, locking the male occupant outside. The two female victims heard the respondent in the house and locked themselves in a bedroom. After some time, when things had gone quiet, one of the female victims opened the bedroom door and the respondent forced his way into the bedroom, overcoming their attempts to keep him out by force. The respondent reached into his pocket and pulled out a black cylindrical item which he said was a gun. He took a necklace from the bedroom and the co‑offender, who was still outside, called out to him to leave the address. The co‑offender attempted to enter the front door but was prevented by the victims. The respondent exited the address at the rear door, using force to break the security mesh from the frame to leave.
[71] Exhibit 2, page 620 (Statement of Material Facts of an offence of armed robbery committed on 5 December 2006).
100Thirdly, all serious offences committed by the respondent were in the company of others.
101Fourthly, the respondent targeted vulnerable victims. To the extent that victims suffered physical injury by the actions of the respondent, they were relatively minor. However, the respondent's offending had the potential to cause serious injury and caused considerable fear and trauma for his victims.
102Fifthly, alcohol and illicit drug abuse were factors in the respondent's frequent lapses into criminal conduct.[72] Some of the respondent's early offending was committed in an effort to leave his regional placements and return to Perth.[73]
[72] Exhibit 2, page 717 (transcript from Children's Court proceedings on 29 October 2009); page 835 (Ms Rathmann's verbal pre-sentence report dated 25 June 2019); page 866 (transcript from Supreme Court proceedings on 2 July 2019); page 1014 (Ms Fisher's parole assessment report dated 5 August 2015).
[73] Exhibit 2, page 650 (transcript from Children's Court proceedings on 30 April 2007); pages 680 ‑ 682 (Department of Child Protection report for the President / Magistrate of Perth Children's Court dated 19 March 2009); pages 686 ‑ 693 (transcript from Children's Court proceedings on 16 April 2009); page 763 (Ms Webster's pre-sentence report dated 15 January 2013); pages 781 ‑ 782 (transcript from Children's Court proceedings on 5 December 2012).
103Sixthly, relevant offences in addition to serious offences were also identified by the State. They included the respondent's conviction on 19 August 2010 when aged 16, of two counts of assault occasioning bodily harm in contravention of s 317(1) of the Criminal Code. The respondent attended the carpark of a shopping centre with a co‑offender. The co‑offender's family was involved in a feud with another family which created a large disturbance at that location. Security officers attended and tried to break up the disturbance but a brawl broke out. During the brawl, security officers (victims SWW and DRR) intervened and attempted to break the fight apart. The respondent struck both victims with a large metal pipe, causing injuries that included a bloody nose, abrasions, and bruising causing pain and discomfort. The offences were committed while the respondent was on a supervised release order.
104Finally, I understood it to be common ground that as to the use of violence by the respondent in the course of committing serious and other relevant offences (that is, violence beyond threats of violence), to be limited to having pulled more than one victim from their car; dragging a victim by the strap of her bag; and striking two security officers with a pipe.
Prison behaviour
105As to prison behaviour, I note that when the respondent was 17 and detained at Banksia Hill Juvenile Detention Centre, he escaped detention.[74] On 12 February 2013, the respondent was sentenced to 12 months imprisonment for escaping lawful custody.[75]
[74] Exhibit 2, page 740 - 741 (Statement of Material Facts).
[75] Exhibit 2, page 809 (transcript from Children's Court proceedings on 12 February 2013). The respondent was originally sentenced to 12 months imprisonment on 12 February 2013 with eligibility for parole. On 12 December 2013, the respondent was re‑sentenced to 12 months imprisonment without eligibility for parole, as the respondent was parole is not available for an escaping lawful custody offence.
106Department of Justice prison records contained in the book of materials also reveal that during his last term of imprisonment, the respondent was involved in 68 prison incidents.[76] No witness was called by the State in relation to any of them.
[76] Exhibit 1, pages 24 ‑ 38 (Prison Incidents and Occurrences Records). The respondent has not accrued any further prison incidents or charges since the book of materials was published: see Exhibit 3, page 1206 (Dr Yewers' report par 87).
107While 68 is a significant number of incidents over four years, from my review of the records, I would characterise only some as serious.
108Counsel for the respondent accepted that there was reasonable evidence of the respondent's involvement in the following five 'serious' incidents, summarised briefly as follows:
(a)On 5 December 2018, the respondent entered another prisoner's cell and assaulted him.[77] The police were notified, however no charges against the respondent were laid.
(b)On 18 April 2019, the respondent engaged in a physical fight with another prisoner on the basketball court.[78] The respondent was charged with insubordination/misconduct and issued with a caution.
(c)On 1 May 2019, the respondent engaged in a physical fight with another prisoner.[79] The respondent was charged with insubordination/misconduct, but this charge was subsequently withdrawn.
(d)On 11 June 2019, the respondent punched a prisoner while they were involved in a group altercation.[80] The respondent was charged and confined to his cell for five days as punishment.
(e)On 1 May 2020, the respondent punched a prisoner.[81] The respondent was charged with assault, but the charge was dismissed.
[77] Exhibit 1, pages 129 ‑ 131.
[78] Exhibit 1, pages 148 ‑ 152.
[79] Exhibit 1, pages 153 ‑ 159.
[80] Exhibit 1, pages 160 ‑ 171.
[81] Exhibit 1, pages 212 ‑ 214.
109The following four incidents also involve conduct that I would characterise as being of a serious nature:
(a)On 1 January 2019, the respondent threatened to assault another prisoner.[82] No charges against the respondent were laid.
(b)On 27 June 2019, a group of prisoners, which group included the respondent, were involved in the assault of a prisoner. The records reveal that the prisoner claimed to have been the victim of a physical and sexual assault.[83] The police were notified, however no charges against the respondent were laid.
(c)On 5 November 2019, two prisoners, including the respondent, physically assaulted a prisoner over a packet of cigarettes.[84] The respondent lost privileges for seven days. No further action was taken against the respondent.
(d)On 17 February 2020, six prisoners, including the respondent, physically assaulted a prisoner.[85] No action was taken against the respondent due to the lack of evidence of his involvement.
[82] Exhibit 1, pages 134 ‑ 135.
[83] Exhibit 1, pages 172 ‑ 176.
[84] Exhibit 1, pages 183 ‑ 187.
[85] Exhibit 1, pages 204 ‑ 208.
110Counsel for the respondent submitted that there was insufficient evidence of the respondent's involvement in the four serious incidents described above. Upon a careful review of the materials, I accept that to be the case and I have not weighed the four incidents described above in the balance in determining whether I am satisfied that it is necessary to make a restriction order in relation to the respondent under s 7(1). The evidence is not sufficiently acceptable or cogent.
111There are a further two incidents which are the subject of the respondent's pending charges for rioting.[86] These are matters to which I make no findings of fact. The respondent's involvement is alleged and has not been proven. I do not weigh the reports of these incidents in the balance.
[86] Exhibit 1, pages 319 ‑ 444.
112There are an additional 40 incidents described in the prison reports which include property damage, use of illicit drugs, threats of self‑harm, possession of paraphernalia and general misconduct within prison. Counsel for the respondent submitted that these incidents might appropriately be grouped into three categories. First, those involving trivial conduct; secondly, those where there was insufficient evidence against the respondent and the nature of the conduct was inconsistent with the characterisation of the respondent as a violent recidivist; and thirdly, those that were not relevant to a characterisation under the HRSO Act.
113I understood the respondent to submit, and I agree, that none of the 40 incidents alone ought to weigh heavily in the balance in the determination of the restriction order application. I am satisfied that the reports of these incidents are sufficiently cogent to reveal that while in prison, the respondent has regularly shown defiance and has had considerable difficulty complying with directions. I have had regard to the reports of these incidents only to this extent.
114Finally, I note that there are 17 recorded incidents for which there is no evidence as to their particulars, nor evidence as to the particular actions or involvement of the respondent.[87] In the absence of further evidence, I did not consider the records of the 17 incidents to be sufficiently acceptable or cogent.
[87] The respondent's aide memoire as to the 68 prison incidents identified 21 incidents where there appeared to be no details in the materials before the court relating to the incident. Upon a further review, four of these incidents were detailed in Exhibit 1 and have been included in the 40 incidents described above.
115As discussed below, the records as to prison incidents were considered by Dr Wojnarowska and Dr Yewers in their respective assessments as to risk.
Responses to supervision
116The respondent has a history of failing to meet supervision requirements. As a juvenile, the respondent was subject to supervised release on numerous occasions. He successfully completed one supervised release order. All others were cancelled or breached by reoffending and non-compliance.[88] The respondent was also granted bail on one occasion but reoffended within two days of being released.[89]
[88] Exhibit 2, pages 835 ‑ 836 (Ms Rathmann's verbal pre-sentence report dated 25 June 2019).
[89] Exhibit 2, page 647 (transcript from Children's Court proceedings on 30 April 2007).
117On 12 December 2013, the respondent was sentenced to a five year term of imprisonment for robbery and burglary offences and escaping lawful custody. He was not afforded an opportunity for parole and on 5 September 2017 the respondent was released from prison and made subject to the 2017 post‑sentence supervision order.[90] The 2017 post‑sentence supervision order was imposed as the Prisoners Review Board determined that the respondent had unmet treatment needs, poor prison behaviour, a history of violent offending, and a poor history of community supervision. Under the 2017 post‑sentence supervision order, the respondent was subject to conditions of reporting, urinalysis testing, attendance at programs and psychological counselling, engagement in employment, training or job seeking, and having no contact with victims.
[90] Exhibit 6.
118The respondent reported as required by the 2017 post‑sentence supervision order. However, shortly after his release from prison, he relapsed to drug use, providing positive results to methamphetamine, amphetamine and cannabis on 14 September 2017, 5 October 2017 and 15 November 2017.[91] The respondent committed an aggravated armed robbery offence on 19 November 2017, while subject to the 2017 post‑sentence supervision order.[92] Further, as noted by Dr Wojnarowska, the respondent was difficult to engage and resistant to any programmatic intervention, including psychological counselling.[93]
[91] Exhibit 2, pages 835 ‑ 836 (Ms Rathmann's verbal pre-sentence report dated 25 June 2019); Exhibit 2, pages 999 ‑ 1001 (Statement of Material Facts for breach of 2017 Post‑Sentence Supervision Order).
[92] Exhibit 2, pages 820 ‑ 822 (Statement of Material Facts for offence committed on 19 November 2017).
[93] Exhibit 3, page 1229 (Dr Wojnarowska's report par 34).
119On 15 September 2021, the respondent was made subject to the 2021 post‑sentence supervision order, which will expire on 18 October 2023. The respondent has not been released subject to this order as he remains detained pending determination of the restriction order application and the grant of bail in relation to the rioters charge.
Propensity to commit serious offences in the future - s 7(3)(c)
120The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law, that is, to have an inclination or tendency to do something.[94] In Director of Public Prosecutions (WA) v GTR [178], in the context of an application made under the DSO Act, Murray AJA stated that:
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[94] The State of Western Australia v Bellamy [2013] WASC 467 [70].
The State's position
121The State submitted that the respondent has a propensity to commit serious offences in the future. In support of the same, the State referred to the respondent's 13 convictions for serious offences, committed on five separate occasions, all for armed robbery or aggravated armed robbery. The State further cited the respondent's convictions for multiple generalist offences, not 'serious offences' as defined by s 5 of the HRSO Act, which include violent offences and other offences such as burglary or aggravated burglary, alcohol‑related driving offences, assault of a public officer, and breach of court-imposed sanctions.
122The State submitted that this offending history is relevant to the determination of whether the respondent has a propensity to commit 'serious offences' in the future.
123It was the State's position that the respondent's offending history indicates that he has a tendency to commit serious offences, namely armed robberies, against a variety of victims who are the owners of the property he steals, as well as other 'non‑serious' offences against the person and property. The State submitted that, accordingly, the respondent satisfies the definition of 'propensity' as described by Murray AJA.
The respondent's position
124Counsel for the respondent accepted that when in the company of antisocial peers, and when under the influence of illicit substances, the evidence may indicate that the respondent has a propensity to commit serious offences in the future.[95] Counsel also accepted that if the respondent does not address his drug problem, the respondent may well commit an offence of the type that he has committed in the past.[96]
[95] ts 629 (22 March 2022).
[96] ts 629 (22 March 2022).
Disposition
125Considered as a whole, the evidence suggests that the respondent has a tendency to target vulnerable persons and rob them in circumstances of aggravation (in company and with violence or threats of violence). However, having regard to the breadth of the respondent's history of offending, particularly the nature and frequency in which he has committed offences other than 'serious offences', I do not consider the respondent to have a propensity to commit any particular 'serious offence' as defined in the HRSO Act. Instead, the respondent's offending history more comfortably permits the inference to be made that the respondent has a tendency to commit offences, particularly when in antisocial company and when under the influence of illicit substances.
126Dr Wojnarowska's evidence as to the significance of the respondent fulfilling the criteria for Antisocial Personality Disorder, is consistent with this inference. At the hearing, Dr Wojnarowska gave evidence to the effect that the disorder places a person at risk of reoffending, but not specifically serious reoffending.[97]
[97] ts 365 (17 March 2022).
127Drug use has been involved in almost all of the respondent's offending. Unless the respondent's abuse of illicit drugs can be managed, I am satisfied that the tendency to commit offences is likely to be expressed in future generalist and violent offending.
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
128The State submitted that a 'pattern', as it pertains to behaviour, is a recurrent way of acting by an individual or group towards a given object or in a given situation.[98]
[98] State's submissions par 81.
129The State noted that the respondent's index offending was his first as an adult. He has a lengthy history of similar juvenile offending, including robbery, burglary and violent offences for which he has been sentenced to periods of detention and adult imprisonment.
130Counsel for the State submitted that there is a pattern to the respondent's offending, which is a recurrent way of stealing property from his victims using violence and committing violent offences during the course of the theft/robbery, in order to fund his drug use and/or antisocial lifestyle. In this regard, the State noted that the respondent had advised the author of the pre‑sentence report that concerned the index offence that at the time of committing the index offence, he was heavily under the influence of methamphetamine, using the drug by injection on a daily basis.[99]
[99] State's submissions par 83; Exhibit 2, page 835 (Ms Rathmann's verbal pre-sentence report dated 25 June 2019).
131Having regard to all of the evidence tendered in relation to the respondent's criminal history, I find that the respondent's criminal history reveals a pattern of generalist and violent offending since his childhood, with offences occurring in the context of the respondent's antisocial behaviour in the company of antisocial peers, and associated with substance abuse. Further, his offending exhibits a pattern of making threats to victims to ensure compliance, and violent or dangerous offending that has the potential to cause serious injury.
132While the respondent has engaged in physical violence on a few occasions (as described at [104]), his serious offending history reveals a pattern offending through demands made with threats of violence, used to gain compliance from victims, and then withdrawal from the victim.
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - ss 7(3)(e) and 7(3)(f)
133I must consider if the respondent has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs, and whether or not such participation has had a positive effect.
As a child
134There is very limited evidence as to treatment of the respondent as a child, and it was given little attention by the State in the hearing.
135There is some evidence in the book of materials that reference periods during the respondent's detention where he engaged in regular psychological counselling to provide him with support and to address his offending behaviour and substance abuse.[100] Further, the sentencing remarks of Fiannaca J of 2 July 2019 reference the respondent having said that, while in detention, he received drug and alcohol counselling and took part in several programs to deal with his criminal conduct and violent behaviour; and was referred to a psychologist to assist him to deal with mental health issues and the ongoing trauma of child abuse.[101]
[100] Exhibit 2, page 783 (transcript from Children's Court proceedings on 5 February 2013); referenced by Ms Korda at par 4 of the proposed HRSO management plan, Exhibit 2, page 1179. See also Exhibit 3, page 1234 (Dr Wojnarowska's report par 65).
[101] [suppressed] reproduced in Exhibit 2, page 896.
136A Department of Child Protection report dated 19 March 2009, prepared when the respondent was 14, recorded the following:[102]
Case history for [the respondent] demonstrates that he has had x1 Great Mate's placement and x2 Alta-1 placements. These placements are designed for high needs and have offered intensive support for [the respondent] over the past four years, however whilst these have offered some relief of [the respondent's] behavioural issues they have ultimately not been successful for him and he has chosen to return to his former lifestyle. The inappropriateness of his placement in Halls Creek has been discussed with his family, Legal Aid, Department of the Corrective Services and DCP's SOAS and thus presents many positive and negative outcomes, however until a thorough study is completed to address these general and specific issues of behavioural management and cultural identity; or alternatively a service provides either a 24-hour support supervision or a secure rehabilitation centre (other than Rangeview or Banksia) in the metro area for children such as [the respondent]; government agencies cannot guarantee the safety of the child nor the community.
[102] Exhibit 2, page 382 (Department of Child Protection report for the President / Magistrate of Perth Children's Court dated 19 March 2009).
137There were otherwise no particulars of the treatment the respondent received while in detention nor responsiveness to treatment, which is surprising given he was in detention for all but 20 months from the age of 12 to 18.
138It is common ground that the respondent had and continues to have unmet treatment needs. The evidence suggests that these were identified when the respondent was an adolescent but were not successfully treated.
As an adult
139At the age of 18, the respondent commenced but did not complete the 'Think First' treatment program while in Casuarina prison. He was removed from the program due to his involvement in an incident with two other prisoners on 11 September 2013, and after having missed three sessions. He completed 12 out of the 30 scheduled sessions.
140The evidence suggests that the respondent was initially assessed against the Cognitive Behavioural Rating Scale, which appeared to highlight deficiencies in the following 'dimensions': the respondent's ability to solve problems; ability to self manage; ability to think/develop alternatives; his awareness of consequences; ability to set and achieve goals/ambitions; egocentricity; his social perspective taking; impulsivity; morals/values reasoning; and critical reasoning.
Sch D – Chronology of offending prepared by the State Solicitor's Office
Chronology of serious and other relevant offences
prepared by the State Solicitor's Office as at 30 November 2021
("serious offences" are indicated in red print)
| Date of Offence | Offence | Notes | Court & Outcome Date | Sentence / Outcome |
| 27 November 2006 | Aggravated Burglary and Commit Offence in Dwelling Stealing | The respondent (12 years old) was in company with others and were at the rear of the residence of male victim ESB. They smashed the rear glass door to gain entry and stole property from the unit including a firearm and ammunition from inside a locked cabinet. | Perth Children's Court 30 April 2007 | Detention – 3 months (concurrent) |
| 4 Dec. 2006 | Aggravated Armed Robbery – s 392(c) & (d) CC PE 6410/2006 | The respondent (12 years old) was in company with others. Co-offenders approached the unknown male victim YSW. One of the co-offenders lifted the front wheel of his bicycle and hit YSW on the shoulder, while another co-offender removed his mobile phone from his pocket while he was distracted. YSW followed the co-offenders, arming himself with a brick before approaching the respondent and the co-offenders and requesting the return of his phone. The respondent and the co-offenders armed themselves with a knife and a 1m stick before running at YSW in a threatening manner, causing him to drop the brick and run away from the co-offenders. The respondent ran from the scene and one of the co-offenders struck YSW to the top of the head, causing him to fall to the ground. YSW was surrounded by the co-offenders and handed over his wallet and bag due to threats of violence. The victim suffered swelling to his head. | Detention – 5 months, concurrent | |
| 4 Dec. 2006 | Aggravated Armed Robbery – s 392(c) & (d) CC PE 6411/2006 | This offence occurred a short time after the above offence. The respondent and co-offenders approached an unknown 22-year-old female victim KT who was walking and surrounded her. A co-offender threatened the victim with a large green-handled army knife, holding it near her face. The group then stole her handbag, removing her mobile phone before leaving it in a nearby park and returning to a nearby house. The respondent was arrested on 16 December 2006 and interviewed about these and other offences and made full admissions of taking part in the offences. | Detention – 5 months, concurrent TES – 8 months' detention concurrent w/ convictions for other offences of Trespass, Unlawful damage, Burglary, Breach of bail, and Agg. Burglary committed between 27 Nov 2006 to 6 Feb 2007, backdated to commence 26 Jan. 2007 | |
| 5 December 2006 | Armed Robbery – s 392(c) CC PE 944/2007 | The respondent approached the 50-year old female victim MZ at a bus stop and asked her the time before demanding her bag. When MZ refused, the respondent then pulled a knife with a 150cm blade from behind his back, raising it a half-metre from MZ and demanded her bag. MZ backed up in fear, causing her to fall to the ground. MZ then returned to her feet and threw the bag on the ground. The respondent grabbed the bag and ran away. The respondent jumped a fence into the rear yard of a property where he was chased away by the occupant of the premises. The respondent jumped back over the fence, dropping MZ's property and the knife. Forensic officers attended the property and recovered MZ's property and latent prints which were identified as belonging to the respondent. | Detention – 5 months, concurrent | |
| 8 December 2006 | Aggravated Burglary and Commit Offence in Place Stealing | The respondent (12 years old) was in company with others and have attended a Como delicatessen of the victim DVA in a motor car. The respondent has stood watched while the co-accused has smashed the front window of the deli to gain entry and stole the till and tobacco items. | Detention – 3 months (concurrent) | |
| 13 Dec. 2006 | Aggravated Robbery – s 392(d) CC PE 1152/2007 | The respondent was in company with a co-offender. The respondent approached the 39-year-old female victim SP who was walking her baby son in a pram. The co-offenders ran around SP and the pram until the respondent stopped at the front end of the pram. The respondent raised a clenched fist and demanded SP's handbag, stating he would punch her son if she did not comply. SP tried to back away and turned the pram away to protect her son. The respondent ran at SP's pram and reached under the pram for her handbag while continuing to raise his clenched fist. The offenders then fled with SP's handbag property, a total value of $320. | Detention – 5 months, concurrent | |
| 16 December 2006 | Aggravated Burglary and Commit Offence in Place Stealing | The respondent (12 years old) was in company with others and had earlier broken into the house of the female victim KLC. They had left the house when police was sighted but returned after police had left and grabbed a bag of stolen items. | Detention – 3 months (concurrent) | |
| 20 Dec. 2006 | Aggravated Armed Assault with Intent to Rob – s 393(c) & (d) | The respondent was in company with others. They approached the unknown male victim RKK and produced scissors, threatening violence if RKK did not hand over his wallet and phone. RKK then ran to a nearby church for assistance. The respondent and the co-offenders followed RKK and made further threats to him while lunging at him with the scissor blade. The respondent attempted to remove RKK's wallet from his pocket but fled before taking any property. This offence and a non-serious offence of burglary committed on the same date were committed 2 days after the respondent was released on bail. | Detention – 5 months, concurrent | |
| 20 June 2007 – Released from custody on a Supervised Release Order from the sentence imposed on 30 April 2007. | ||||
| Between 2 July and 19 July 2007 | Multiple offences including: Burglary and commit offence in dwelling, Attempted Burglary with intent in dwelling, Aggravated Burglary and commit offence in dwelling | The respondent commits a string of offences which includes: Fingerprints were recovered from the burglaries committed on 2, 7, 17, & 19 July which were identified as belonging to the respondent. The respondent was interviewed about the Attempted burglary & Aggravated burglaries committed on 19 July and made full and frank admissions. All offences were committed while the respondent was on the Supervised Release Order from the sentence imposed on 30 April 2007. | Perth 9 October 2007 | TES – Detention, 5 months backdated to commence 26 September 2007 |
| 14 January 2008 – Released from custody on a Supervised Release Order from the sentence imposed on 9 October 2007. | ||||
| 26 February 2008 | Aggravated burglary and commit offence in dwelling x 3 S 401(2)(a) CC PE 2151/2008 | The accused and a co-offender went to the victim LJL's home with the intention of stealing a bicycle. LJL was outside the home with an infant and her daughter and ran inside as she was fearful of the respondent due to previous violent incidents. The respondent demanded that LJL give him the bicycle from the foyer of the house; LJL refused. The respondent then opened the front security door and argued with LJL about the bicycle, becoming verbally abusive before reaching inside the foyer, grabbing the bicycle, and pulling it out through the front door. The respondent returned to the address on 27 February to steal another bicycle but left the premises without it after an argument with LJL. These offences were committed while the respondent was on a Youth Supervised Release Order ("SRO"). On 26 March 2008, the respondent was arrested. He was interviewed and admitted to this offence and others. He was charged with this and 2 other offences of Aggravated burglary and commit offence committed on 2 July 2007. | Perth 27 August 2008 | 12 month Youth Conditional Release Order |
| 11 Jan. 2009 | Armed Robbery – S 392(c) CC PE 418/2009 | The respondent (aged 14 years) was armed with a pair of scissors and approached a male victim RPO in his caravan. He threatened RPO with the scissors and stated he was there to rob him and would stab RPO if he did not hand over drugs and alcohol. RPO left the caravan and the respondent stole coins to the value of $12.00 from the dining table before departing. | Perth Children's Court 16 April 2009 | Detention – 14 months, concurrent |
| 12 Jan. 2009 | Aggravated Armed Robbery – s 392(c) & (d) CC PE 419/2009 | Several hours later, the respondent returned armed with a kitchen knife with an 11cm blade and with a co-offender armed with a metal pole. The respondent forced his way into RPO's caravan and was in an agitated and threatening state. The respondent stated that he was there to rob RPO and RPO fled. The respondent spent several minutes searching for items to steal in the caravan while the co-offender waited outside. When the respondent exited the caravan, RPO picked up a metal pole to defend himself. The respondent dropped the knife and armed himself with a brick, approaching RPO in a threatening manner. RPO called for assistance and the respondent fled, having stolen a digital camera valued at $150. The above offences were committed while the respondent was on the Conditional Release Order made 27 August 2008. The respondent was arrested on 14 January 2009 in relation to another matter. He was interviewed and made full admissions, giving an explanation of "I wanted to get caught so I can go back to Perth" for why he committed the offences. | Detention – 14 months, concurrent TES – Detention 14 months concurrent w/ convictions for non-serious offences of Breach of YCRO Order, Agg. Burglary, and Steal motor vehicle, backdated to commence 14 Jan. 2009 | |
| 13 August 2009 – Released from custody on a Supervised Release Order from the sentence imposed on 16 April 2009. | ||||
| 20 November 2006 | Burglary and Commit Offence | The victim IB was a 78-year-old female who was gardening in the front yard of her home. The respondent gained entry to the house via a rear door and stolen valuables of the victim. The victim scream out for help as the respondent ran out the rear door and over a side gate. | Perth Children's Court 29 October 2009 | Detention – 4 months (concurrent) |
| 10 Sept. 2009 | Aggravated Robbery – S 392(d) CC PE 5635/2009 | The victim TMP was a 44-year-old female who was in her car. She slowed her car to allow a group of youths across the road and the respondent and a co-offender broke away from the group to stand in front of her car. The respondent and the co-offender forcibly opened the doors of the car and the respondent grabbed the top of TMP's arm, telling her to get out. The respondent began to forcibly pull TMP by the arm while she held onto the steering wheel. The co-offender reached over and unclipped TMP's seatbelt and she was pulled from the car. TMP began to crawl across the road and the co-offender grabbed her handbag. The respondent fled in TMP's car while the co-offender was apprehended by police. TMP suffered bruising to her upper right arm and pain in the shoulder area. This and other offences committed during the same period were committed while the respondent was on a Supervised Release Order for the sentence imposed on 16 April 2009. | TES – Detention, 18 months concurrent w/sentence imposed 16 Apr. 2009 | |
| 14 July 2010 – Released from custody. | ||||
| 23 November 2010 | Aggravated burglary and commit offence in dwelling CC PE 7070/2010 | The respondent walked to the rear of the premises and used a lever to open a rear door and entered. The victim, 74-year-old CG, was inside with her husband. The respondent took CG's handbag and a man's wallet from the kitchen bench and continued searching through the house. The respondent entered the master bedroom where CG was sleeping with her husband. He searched through the bedside drawers and took 7 diamond rings valued at $12,000. CG was awakened by the sound of the respondent rummaging through the drawers and yelled out. The respondent shone a torch into her eyes prior to running from the bedroom and out the back door. Fingerprints were recovered from the scene which were identified as belonging to the respondent. The respondent was arrested on 6 December 2010 on an outstanding return to prison warrant. He was unable to participate in an interview due to his level of intoxication. | Perth Children's Court 1 April 2011 | Detention – 14 months concurrent |
| 19 August 2010 | Assault Occasioning Bodily Harm x 2 S 317(1) CC PE 693-694/2010 | The respondent attended the carpark of a shopping centre with a co-offender. The co-offender's family was involved in a feud with another family which created a large disturbance at that location. Security officers attended and tried to break up the disturbance but a brawl broke out. During the brawl, security officers (victims SWW and DRR) intervened and attempted to break the fight apart. The respondent struck both victims with a large metal pipe, causing injuries that included a bloody nose, abrasions, and bruising causing pain and discomfort. The respondent was interviewed by police and admitted being present during the incident but denied assaulting the officers. The above offences were committed while the respondent was in the community on a Supervised Release Order. | Detention – 2 months concurrent and 2 months cumulative TES – | |
| 1 December 2011 – Released from custody on a Supervised Release Order. | ||||
| 16 August 2012 – Respondent turns 18. | ||||
| 24 January 2012 | Aggravated Robbery – S 392(d) CC PE 2256/12 | The victim was an unknown female MM, who was 3 months pregnant and walking with her 6-year-old daughter. The respondent was in company with a co-offender and approached MM, grabbing her handbag. He pulled the strap with such force that MM was pulled to the ground and dragged, resulting in her receiving abrasions and bruising to her feet, knees, hands, and arms. The respondent fled with the handbag which contained a wallet containing $300 in Australian currency and a Nokia mobile telephone. The respondent was spoken to at Banksia Hill and declined to participate in an interview but said in explanation "I don't care, as soon as I get out I'm going to do the same again because I love it". The above offences were committed while the respondent was in the community on a Supervised Release Order from the sentence imposed on 1 April 2011. | Perth Children's Court 12 February 2013 | Imprisonment – 14 months, cumulative |
| 17 February 2012 | Burglary and Commit Offence in Dwelling Stealing Steal Motor Vehicle (as defined in s 371A CC) | The respondent attended the victim GWR residence in Cloverdale. The respondent entered the rear of the victim's property with force and stole valuables with the total value of $47,000. The respondent also stole the keys to the victim's Holden Commodore and drove it away from the address. | Imprisonment – 10 months (concurrent) | |
| 24 Feb. 2012 | Aggravated Robbery – s 392(d) CC PE 870/2012 | The respondent was in company with a co-offender in a stolen vehicle when they saw an unknown female victim TLN walking along the road. The respondent exited the vehicle and ran towards TLN. He attempted to grab TLN's handbag but she resisted. The respondent punched TLN to the left side of her face with his fist, causing her to fall to the ground. While on the ground, TLN continued to resist the respondent's attempts to take her handbag. The strap of the bag eventually broke and the respondent fled. TLN suffered soft tissue damage to the left shoulder, upper arm, both elbows, and the face. | Imprisonment – 14 months, concurrent | |
| Aggravated Robbery – s 392(d) CC PE 869/12 | These offences occurred on the same date as the above offences. The respondent was in company with a co-offender in a stolen vehicle when he saw an unknown female victim LCMM walking to her vehicle. The respondent got out of the vehicle and approached LCMM, demanding her handbag. Without attempting to grab LCMM's handbag, the respondent punched her to the face. LCMM fell to the ground and the respondent fled with her handbag. LCMM suffered a 1cm laceration to her face. | Imprisonment – 14 months, concurrent | ||
| 2 August 2012 | Aggravated Armed Robbery Escaping from Lawful Custody Steal Motor Vehicle and Drive Recklessly Steal Motor Vehicle (as defined in s 371A) | The respondent and co-offender were sentenced prisoners at the Banksia Hill Juvenile Detention Centre in Canning Vale when they climbed the wired fence and then approached the victim LD car. The respondent punched the driver's side window causing it to smash and pulled out the victim before getting in the vehicle and drove off. | Imprisonment – 12 months (cumulative) | |
| TES – 5 years' imprisonment with parole eligibility after serving 2 years, concurrent w/ convictions for non-serious offences of Burglary, Escape lawful custody, Agg. burglary, Steal motor vehicle x 3, Reckless driving, and Steal motor vehicle and drive recklessly, backdated to commence 6 Sept. 2012 | ||||
| 19 August 2015 – PRB denies release on parole. | ||||
| 28 August 2017 – PRB imposes a PSSO with conditions including: attend random urinalysis, attend programs and counselling as directed, have no contact with the victims of his offending, engage in employment, training, or job seeking and remain engaged for the duration of the order, and provide a residential address to the CCO and not change that address without prior approval of the CCO. | ||||
| 19 Nov. 2017 | Aggravated Armed Robbery – s 392(c) & (d) PE 5723/2018 | The respondent and a co-offender attended an address in Rivervale. 2 female victims, NL and SL, and a male witness PP were at the address at the time. The respondent told 1 of the female victims to open the front security gate at the address, but was ignored. He climbed over the fence and banged on the door, requesting that PP come outside. PP complied and the respondent went inside the address without permission, locking PP outside. The 2 female victims heard the respondent in the house and locked themselves in a bedroom. After some time, SL opened the door and the respondent forced his way into the bedroom. The respondent produced a black cylindrical item from his pocket which he stated was a gun. He took a necklace from the bedroom and the co-offender, who was still outside, called out to him to leave the address. The co-offender attempted to enter the front door but was prevented by the victims. The respondent exited the address at the rear door, using force to break the security mesh from the frame to leave. Fingerprints were recovered from the mesh which were identified as belonging to the respondent. This offence occurred while the respondent was subject to the Post-Sentence Supervision Order ("PSSO") which commenced on 5 September 2017. | Perth Supreme Court 2 July 2019 INS 179 of 2018 | TES – 3 years, 6 months' imprisonment with parole eligibility, backdated to commence 20 Nov. 2017 |
| 15 Nov. 2017 | Breach of Post Sentence Supervision Order – s 74L Sentence Administration Act 2003 PE 69568/2017 | The respondent was released from prison on 5 September 2017 and subject to a PSSO. On 21 September 2017, the respondent was issued with a Written Lawful Instruction not to "use any illicit substance or non-prescribed medication" for the duration of the PSSO. On 15 November 2017, the respondent provided a urine sample which returned positive to amphetamine, benzodiazepines, methamphetamine, and cannabis on 20 November 2017. | Perth Magistrate's Court 19 November 2018 | Fine – $400 |
| 5 Oct. 2017 | Breach of Post Sentence Supervision Order – s 74L Sentence Administration Act 2003 | Further to the above charge, on 5 October 2017, the respondent provided a urine sample which returned positive to amphetamine, methamphetamine, and cannabis on 10 October 2017. | Fine – $400 | |
| 15 August 2019 – PRB denies release on parole. | ||||
| 25 June 2020 | Criminal Damage or Destruction of Property – s 444(1)(b) AR 10851/2020 | The respondent and 3 co-offenders were incarcerated at Hakea Prison. The 4 offenders began damaging prison property, took the wooden handles from a mop and broom and used them as weapons against prison officers who responded to the disturbance, and used a bed sheet to fasten the entry gate closed to hinder prison officers entering the unit. The respondent stood watch in the hallway while a co-offender placed a mattress on the floor of a cell and set fire to it with a lighter. The fire caused the wing to become smoke-logged, which caused discomfort to the other prisoners still in the wing. The respondent and a co-offender removed timber shelving and used it to assist another co-offender to force open his cell, causing extensive damage to the cell door. When prison officers attempted to enter the wing, the co-offenders used a hose to spray water on the officers and threw multiple projectiles at them, causing them to retreat. After approximately 1 hour, following negotiations, the co-offenders complied with directions and were removed. Prison officers were then able to enter the cell and extinguish the fire. The cost of repairs for the damages is estimated at $15,100. | Armadale Magistrate's Court 12 Jan. 2021 | TES – 5 months' imprisonment cumulative on sentence imposed 2 July 2019 |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk
12 APRIL 2022
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