The State of Western Australia v Abela
[2020] WASC 50
•20 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ABELA [2020] WASC 50
CORAM: MCGRATH J
HEARD: 20 FEBRUARY 2020
DELIVERED : 20 FEBRUARY 2020
FILE NO/S: DSO 11 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CHARLES JOHN ABELA
Respondent
Catchwords:
Dangerous Sexual Offenders Act - Preliminary hearing - Whether reasonable grounds that an order might be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7(1), s 8, s 11, s 14, s 17, s 37
Result:
Application granted
Orders sought by applicant made
Category: B
Representation:
Counsel:
| Applicant | : | Ms H K Watson |
| Respondent | : | Mr S R McGrath |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Stephen McGrath |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Dodd [2015] WASC 249
Director of Public Prosecutions (WA) v Free [2010] WASC 255
MCGRATH J
(This judgment was delivered extemporaneously on 20 February 2020 and has been edited from the transcript.)
The State of Western Australia applies, pursuant to s 8(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act), for orders under s 14 and s 17(1) of the Act in respect of Mr Abela.[1]
[1] Application by the State of Western Australia dated 20 December 2019.
In accordance with s 11 of the Act, the purpose of this preliminary hearing is to determine whether the court is satisfied that there are reasonable grounds for believing that the court might find that Mr Abela is a serious danger to the community under s 7(1) of the Act. That is, to determine whether the court is satisfied that there are reasonable grounds for believing that a court might find that there is an unacceptable risk that if Mr Abela were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.
The application is opposed by Mr Abela.
For the following reasons, I have determined that the orders sought should be made. In these reasons for decision, I will consider the following:
(a)the relevant legal principles;
(b)the factual background and evidentiary material; and
(c)an assessment of the application.
Relevant legal principles
Section 8 of the Act provides that the Director of Public Prosecutions may file an application for orders under s 14, and for a div 2 order, if the respondent is under a custodial sentence for a serious sexual offence, and there is a possibility that the respondent might be released from custody within the period of one year after the application is made.
Further, s 11 of the Act provides that the application must be the subject of a preliminary hearing before the court.
The main purpose of a preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community.[2] That is, to determine whether the court is satisfied that there are reasonable grounds for believing that the court might find that there is an unacceptable risk that, if the offender is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.[3]
[2] Dangerous Sexual Offenders Act 2006 (WA), s 11(3).
[3] Dangerous Sexual Offenders Act 2006 (WA), s 7(1).
Section 14(1) of the Act provides that at the preliminary hearing, if the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community, the proper officer of the court must, subject to s 7(2A), fix a day for the hearing of the application for a div 2 order.
Further, the court must order that the respondent undergo examinations by two qualified experts named by the court, at least one of whom is to be a psychiatrist, for the purposes of preparing reports in accordance with s 37 to be used on the hearing of the application for the div 2 order.[4]
[4] Dangerous Sexual Offenders Act 2006 (WA), s 14(2)(a).
In Director of Public Prosecutions (WA) v Free[5] McKechnie J made the following observations in relation to the requirements of s 14(1) which I apply in respect of this application:
A judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made.
It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description. The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made. At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.
The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation. In George v Rockett (1990) 170 CLR 104:
'When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.'
Further on:
'The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.'
The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.
[5] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [10] ‑ [13].
Similar observations in relation to the requirements of s 14(1) were made by Simmonds J in Director of Public Prosecutions (WA) v Dodd.[6]
[6] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [34] ‑ [42].
I will now consider the material before the court which bears upon my determination of the question posed by s 14(1) of the Act.
Factual background and evidence
The State's application is supported by an affidavit of Ms Watson which produces relevant documentary material and a written outline of submissions.[7] Mr Abela did not seek to rely on any documentary material nor any written outline of submissions.
Criminal history
[7] Affidavit of Heidi Karen Watson affirmed 26 September 2019; Applicant's Outline of Submissions for Preliminary Hearing dated 12 November 2019.
Mr Abela is a 61 year old male having been born on 30 September 1958.
Mr Abela has a criminal history that relevantly comprises sexual offending.[8] Mr Abela has been convicted of sexual offending in 1986, 1990, 1993 and 2013. I will provide an outline of Mr Abela's offending.
1986 offending – wilful exposure
[8] Western Australian Criminal Record, Annexure B to the Affidavit of Ms Watson.
In 1986, Mr Abela was convicted of wilful exposure. The offending occurred whilst Mr Abela was driving his vehicle. In the presence of the complainant he laid on his back and spread his legs so that his genitals were visible.
1990 offending – aggravated sexual assault of a child under the age of 16 years, aggravated indecent assault of a child under the age of 16 years, procuring a child to indecently deal
On 5 November 1990, Mr Abela pleaded guilty to 10 sexual offences which were committed against a 9 year old girl.
The offences comprised four counts of aggravated sexual assault of a child under the age of 16 contrary s 324E of the Criminal Code, four counts of aggravated indecent assault of a child under the age of 16 years contrary to s 324C of the Criminal Code, and two counts of procuring a child under 16 years of age to indecently deal contrary to s 189 of the Criminal Code.[9] The offending occurred between 4 April 1990 and 30 June 1990.
[9] Supreme Court Indictment 239 of 1990 dated 5 November 1990, Annexure G to the Affidavit of Ms Watson.
The counts on the indictment were representative of Mr Abela's ongoing sexual abuse of the victim. Mr Abela, who was then 31 years of age, repeatedly made the victim perform fellatio on him and repeatedly told her not to tell anyone. On occasions, Mr Abela would ejaculate. Mr Abela made the victim masturbate his penis on two occasions.
The offending came to light when the victim wrote her mother a note outlining that she was being sexually abused.[10] On 9 November 1990, Mr Abela was sentenced to a term of imprisonment of 3 years and made eligible for parole.[11] Mr Abela was released on parole on 3 October 1991.[12]
1993 offending – indecently dealt with a girl aged under 13 years
[10] Transcript of sentencing hearing in the Supreme Court of Western Australia on 5 November 1990, Annexure I to the Affidavit of Ms Watson.
[11] Transcript of sentencing hearing in the District Court of Western Australia on 9 November 1990, Annexure J to the Affidavit of Ms Watson.
[12] Transcript of sentencing hearing in District Court of Western Australia on 8 February 1994, Annexure M of the Affidavit of Ms Watson.
In 1993, Mr Abela was convicted of indecently dealing with a girl under the age of 13 years contrary to s 320(4) of the Criminal Code. Mr Abela was aged 35 years and the victim was an 11 year old girl.[13] The offending involved Mr Abela asking the child to sit on his lap and then placing his hand over her vaginal area and rubbing that area over her clothes. Further, Mr Abela took hold of the hand of the young victim and squeezed her hand to stimulate his groin area on two occasions. On 8 February 1994, Mr Abela pleaded guilty to the count and was sentenced to 18 months' imprisonment with eligibility for parole.[14] The maximum penalty for this offence is 10 years' imprisonment and therefore this offence falls within the definition of 'serious sexual offence' under the Act.
[13] District Court Indictment 241 of 1994 dated 1 February 1994, Annexure K to the Affidavit of Ms Watson.
[14] Transcript of sentencing hearing in District Court of Western Australia on 8 February 1994, Annexure M of the Affidavit of Ms Watson.
On 29 July 1994, Mr Abela was released on parole.[15]
1992 to 2011 (index offences) – sexual penetration of a child under the age 13 years, indecently dealing with a child under 13 years of age. Indecently dealing with a child over 13 years and under 16 years, indecently deal with a lineal relative
[15] Chronology of Sexual Offending, Annexure F to the Affidavit of Ms Watson.
On 22 February 2013, Mr Abela pleaded to 14 counts, being one count of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code, eight counts of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code, three counts of indecently dealing with a child over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Criminal Code, and two counts of indecently dealing with a lineal relative contrary to s 329(4) of the Criminal Code.[16] The offending involved six separate victims and occurred between the years 1992 and 2011.
[16] District Court Indictment 590 of 2012 dated 15 February 2013, Annexure P to the Affidavit of Ms Watson.
Counts 1 and 2 concern two counts of indecently dealing with a child under 13 years of age perpetrated against a 9 ‑ 10 year old girl. The offending involved Mr Abela pulling his penis out of his shorts and telling the victim to lick it. Further, Mr Abela took his penis out of his shorts and told the victim to hold the penis, which the victim did for a short period.
Counts 3 ‑ 5 concern two counts of indecently dealing with a child and one count of sexually penetrating a child under the age of 13 years. The victim was 12 years of age. Count 3 was a representative count reflecting ongoing conduct of Mr Abela of pulling his shorts aside and exposing his penis to the 12 year old girl.
Counts 4 and 5 occurred on the same date between 31 December 1996 and 1 March 1997. Mr Abela exposed his penis to the child and told her to touch and suck his penis. The child refused, but Mr Abela put her hand on his penis and then placed his hand down the child's pants and penetrated her vagina with his finger.
Counts 6 ‑ 8 concern indecently dealing with a child over 13 years of age and under 16 years of age with a 14 year old girl who was a friend of Mr Abela's daughters. Counts 6 and 7 involved Mr Abela taking the 14 year old girl's hand and placing it on his penis and causing her to squeeze his testicles. Count 8 involved Mr Abela telling the victim to rub his groin because it was sore.
Counts 9 and 10 involved a 12 year old daughter of one of Mr Abela's friends. The victim woke up to find Mr Abela's penis exposed and pushed into her face. Count 10 involved Mr Abela telling the 12 year old child that if she did not touch his penis he would tell her father that she was taking money. Accordingly, he put the child's hand inside his shorts and onto his penis.
Counts 11 and 12 related to a girl of 16 years of age. The offending involved Mr Abela placing his hand on the victim's vagina on top of her clothing. Count 12 involved Mr Abela putting his hand under the victim's knickers and rubbing her vagina.
Counts 13 and 14 relates to offences of indecently dealing with a child. Count 13 concerns Mr Abela causing the child to put both her hands on Mr Abela's penis. Count 14 concerns Mr Abela walking into the room whilst the young girl was naked and touching her bottom.
On 26 April 2013, Mr Abela was sentenced to a total of 7 years' imprisonment for the offending.[17]
[17] Transcript of sentencing hearing in the District Court of Western Australia on 26 April 2013, Annexure T to the Affidavit of Ms Watson.
All counts on the indictment, except counts 11 and 12, fall within the definition of 'serious sexual offence' under s 3 of the Act.
Reports
Given that this is a preliminary hearing, no reports were prepared. However, a number of reports in relation to Mr Abela which have been prepared for previous sentencing hearings were produced by the applicant. I will outline the salient aspects of the principal reports.
In 1994, Ms Zuin, psychologist, provided a report dated 8 March 1994.[18] Ms Zuin determined that Mr Abela possessed personality traits that were at or near the normal range for the general population and gave a clinical impression of a psychologically healthy individual. However, Mr Abela's testing scores indicated that he was dishonest about sexually deviant interests and was not motivated towards treatment. Further, Mr Abela cognitively distorted what actually happened and displayed a degree of immaturity.[19]
[18] Report of Ms Zuin dated 8 March 1994, Annexure U to the Affidavit of Ms Watson.
[19] Report of Ms Zuin dated 8 March 1994, Annexure U to the Affidavit of Ms Watson.
In 1994, Dr Wehner, clinical psychologist at the Sex Offender Treatment Unit, provided a report to the Parole Board dated 14 July 1994.[20] Dr Wehner stated that Mr Abela had taken full responsibility for his offending and displayed 'generally good insight' into the nature of his sexual deviancy. Dr Wehner assessed Mr Abela as being at a medium risk of reoffending.[21]
[20] Report of Dr Wehner dated 14 July 1994, Annexure V to the Affidavit of Ms Watson.
[21] Report of Dr Wehner dated 14 July 1994, Annexure V to the Affidavit of Ms Watson.
Ms Cull, psychologist at the Sex Offender Treatment Unit, provided a report dated 2 May 1995.[22] Ms Cull reported that Mr Abela participated in the community based sex offender treatment program until the end of his parole in January 1995. It was noted that Mr Abela completed most of the course but not the modules for relapse prevention.[23] Ms Cull considered that Mr Abela participated well.[24]
[22] Report of Ms Cull dated 2 May 1995, Annexure W to the Affidavit of Ms Watson.
[23] Report of Ms Cull dated 2 May 1995, Annexure W to the Affidavit of Ms Watson.
[24] Report of Ms Cull dated 2 May 1995, Annexure W to the Affidavit of Ms Watson.
Ms Sampson, psychologist, provided a report dated 11 March 2013.[25] Ms Sampson assessed Mr Abela using the Static 99 actuarial tool and expressed the opinion that Mr Abela has a 33% chance of sexual re‑offending within a 5 year period and a 38% chance of sexual reoffending with a 10 year period.[26] Ms Sampson utilised the Risk for Sexual Violence Protocol and identified risk factors. Ms Sampson stated that of concern is that Mr Abela engages in chronic sexual offending and has a previous history of sexual convictions, with his behaviour not being diverse but paedophilic targeting females. Ms Sampson stated that the paedophilic type of offending involved psychological coercion, grooming behaviours and threats. Further, Ms Sampson stated that Mr Abela held some distorted attitudes to his behaviour, such as denigrating the victims.
[25] Report of Ms Sampson dated 11 March 2013, Annexure X to the Affidavit of Ms Watson.
[26] Report of Ms Sampson dated 11 March 2013, Annexure X to the Affidavit of Ms Watson.
Ms Sampson assessed Mr Abela as being at moderate-high risk of similar offending in the future.[27]
[27] Report of Ms Sampson dated 11 March 2013, Annexure X to the Affidavit of Ms Watson.
A pre-sentence report dated 15 April 2013 was prepared with respect to the 2013 offending.[28] Ms O'Neill stated that Mr Abela exhibited minimisation of his offences, completely denied the sexual penetration offence and claimed that the police targeted him. Further, Mr Abela did not display or express any victim empathy.[29]
Treatment programs
[28] Pre-sentence Report of Ms O'Neill dated 15 April 2013, Annexure Y to the Affidavit of Ms Watson.
[29] Pre-sentence Report of Ms O'Neill dated 15 April 2013, Annexure Y to the Affidavit of Ms Watson.
On 10 December 2014, whilst incarcerated, Mr Abela completed the Think First Cognitive Skills Program.[30] The program completion report dated 20 January 2015 confirms that Mr Abela accepted responsibility for some of his offences, but denied his involvement in other offences. The report considered that Mr Abela was impulsive and lacked consequential thinking. However, as the program progressed Mr Abela showed some improvement. Outstanding treatment needs identified included victim empathy, alternative coping strategies and emotional regulation.
[30] Think First Program Completion Report of Ms Morrison dated 20 January 2015, Annexure AA to the Affidavit of Ms Watson.
In 2016, Mr Abela completed the Intensive Sex Offender Treatment Program (ISOTP). The program completion report for the ISOTP dated 26 April 2016 confirms that Mr Abela's static risk remained as moderate-high when he began the program.[31] The program completion report noted that factors contributing to Mr Abela's sexual abuse of children included a number of factors including him having a suspicion of and negative view towards women, emotional identification with children, a sense of sexual entitlement, distorted thinking and the taking of a victim's stance, external locus of control, a deviant sexual interest and distorted beliefs about child abuse.[32]
[31] Program completion report for the Intensive Sex Offender Treatment Program dated 26 April 2016, Annexure AB to the Affidavit of Ms Watson.
[32] Program completion report for the Intensive Sex Offender Treatment Program dated 26 April 2016, Annexure AB to the Affidavit of Ms Watson.
Assessment
Counts 1 ‑ 10 and counts 13 and 14 on District Court Indictment 590 of 2012 dated 11 October 2012[33] for which Mr Abela is currently serving his term of imprisonment constitute a 'serious sexual offence' as defined in s 3 of the Act and s 106A of the Evidence Act 1906 (WA).
[33] District Court Indictment 590 of 2012 dated 11 October 2012, Annexure N to the Affidavit of Ms Watson.
Further, given Mr Abela's expected date of release is 25 April 2020, the statutory requirement that Mr Abela might be released within the next 12 months has also been satisfied. Accordingly, the threshold for the State making the application under s 8 of the Act is met.
Mr Abela opposed the making of the div 1 orders. Mr Abela contended that he is no longer a risk and that he would be willing to undertake any courses if released. Mr Abela in support of his submission stated that for extended periods whilst not incarcerated he did not reoffend which supports his contention that he is able to manage any issues.
The contention of Mr Abela is without merit. I am satisfied that there are reasonable grounds for believing that the court might determine that Mr Abela is a serious danger to the community. Mr Abela has a significant history of offending in a sexual manner against children over a period exceeding a decade. Mr Abela has committed offences against eight different girls, six of whom were under 13 years of age, one was 14 years of age and one was 16 years of age. Mr Abela's offending has been characterised by grooming, psychological threats and coercion. Whilst Mr Abela has had the benefit of treatment courses he has unmet treatment needs. A moderate-high risk exists that Mr Abela will commit sexual offences against children in the future.
Conclusion
Accordingly, in all the circumstances, I am satisfied that there are reasonable grounds for believing that the court might, under s 7(1) of the Act, find that Mr Abela is a serious danger to the community. That is, I have a belief in the possibility that the court will be satisfied to a high degree of probability that Mr Abela is a serious danger to the community. I therefore allow the application under s 14(1) of the Act and will make the orders sought by the applicant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath21 FEBRUARY 2020
0
3
1