The State of Western Australia v ACG
[2022] WASC 427
•13 DECEMBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ACG [2022] WASC 427
CORAM: STRK J
HEARD: 9 DECEMBER 2022
DELIVERED : 9 DECEMBER 2022
PUBLISHED : 13 DECEMBER 2022
FILE NO/S: SO 17 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ACG
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Whether interim supervision order is desirable - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders pursuant to s 46(2) made
Interim supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | D McDonnell |
| Respondent | : | A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182
The State of Western Australia v Hansen [2022] WASC 391
The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v Narrier [2021] WASC 250
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
Table of Contents
Introduction
The law
The evidence
Background and offending history
Reports and assessments
Rehabilitation attempts and behaviour in prison
Decision not to impose a post‑sentence supervision order
Proposed accommodation
Disposition
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
Should an interim supervision order be imposed?
STRK J:
(This judgment was delivered extemporaneously on 9 December 2022 and has been edited from the transcript.)
Introduction
On 8 November 2022, the State of Western Australia applied for a restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
The preliminary hearing of the application came before the court today.
The main purpose of the preliminary hearing is for the court to determine whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act. The State submitted that there were sufficient facts and circumstances for the court to be satisfied of the same and pressed for an order that the respondent be released on an interim supervision order until the determination of the proceeding.
Counsel for the respondent submitted that the respondent did not presently present a risk that satisfies the threshold test in s 46 of the HRSO Act. In support of the same, counsel noted the respondent's age, his frailty which comes about as a consequence of his ongoing medical conditions, and the length of time since offending (counsel described the offending as dating back 20 years, committed over a three-year period). Counsel submitted that the respondent can no longer consume alcohol by reason of his Crohn's disease, which was significant as counsel described alcohol as having been 'causative' of the respondent's offending. Counsel further submitted that if the court was satisfied that there were reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act, his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) provided sufficient protection for the community and an interim supervision order ought not be imposed.[1]
[1] ts 6 (9 December 2022).
After hearing counsel and upon considering the materials before me, in all of the circumstances, I am satisfied that the requirements of s 46 have been met. I am also satisfied that it is desirable for the protection of the community that an interim supervision order be imposed pending the final determination of the application.
My reasons for so concluding are as follows.
The law
Pursuant to s 46 of the HRSO Act, the main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the court is 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 offender, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[2]
[2] HRSO Act s 7(1).
A 'serious offence' within the meaning of the HRSO Act, relevant to the respondent, includes sexual offences against a child under 13 (Criminal Code s 320) and sexual offences by a relative (Criminal Code s 329).[3] The respondent also has convictions for possession of child pornography contrary to s 60(4) of the Censorship Act 1996 (WA), which Act was renamed the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) in 2006. Section 60(4) is now a repealed provision, but the acts that constituted an offence under it would now constitute the offence of possession of child exploitation materials contrary to s 220 of the Criminal Code. By operation of s 5(2) of the HRSO Act, such offence is a 'serious offence' within the meaning of the HRSO Act.[4]
[3] HRSO Act s 5, read with sch 1 div 1 subdiv 3.
[4] This construction was accepted by the State Solicitor's Office on 9 December 2022 and not opposed by the respondent.
The nature of the test to be applied under s 46(1) of the HRSO Act is well-established.[5] I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible, and belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. Further, for there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[5] See, for example, The State of Western Australia v Hansen [2022] WASC 391 [10]; The State of Western Australia v PAS [2020] WASC 405 [20] - [21]; The State of Western Australia v Winder [2021] WASC 65 [16]. The High Court recently upheld the constitutional validity of the HRSO Act insofar as it applies to the offences of robbery and assault with intent to rob in Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182.
The evidence
In support of its application, the State relied upon the affidavit of James Francis Bennett deposed to on 8 November 2022. Mr Bennett's affidavit contained details of the respondent's criminal history, as well as several reports in relation to him. The reports included pre‑sentence reports, psychological reports, parole assessment reports, parole review reports, an individual management plan, a record of decisions made concerning the respondent by the Prisoners Review Board, and reports detailing the respondent's involvement in programs while in prison.
In addition to Mr Bennett's affidavit, I received an affidavit from a team leader of the Community Offender Monitoring Unit, Aimee Stacey Elise Goode, deposed to on 1 December 2022. Ms Goode's affidavit addressed the respondent's proposed accommodation upon his release.
I also received various documents prepared by the Department of Justice, including:
(a)a post-sentence supervision order report written by Trudy Hill on 15 November 2022;
(b)a letter from the Prisoners Review Board to the respondent dated 30 November 2022;
(c)a large bundle of Department of Justice medical records with respect to the respondent dated 30 November 2022;
(d)a history of the Prisoners Review Board decision slips, which included decisions made from 30 June 2013 to 30 November 2022;
(e)an email communication from a law clerk at the State Solicitor's Office sent on 5 December 2022, which contained commentary on the proposed conditions from the Community Offender Monitoring Unit;
(f)an email communication from a law clerk at the State Solicitor's Office sent on 7 December 2022, which contained an update as to the accommodation available to the respondent; and
(g)an email communication from the State Solicitor's Office sent on 9 December 2022 confirming the State's position that the respondent's conviction for possession of child pornography constituted a serious offence for the purposes of the HRSO Act.
Background and offending history
The respondent is 61 years old. He has multiple convictions for sexual offences, including inciting a child who was a lineal relative to do an indecent act, sexual penetration of a child who was a relative, sexual penetration of a child under 13, indecently recording a child under 13, and possession of child pornography.[6] All of these convictions constitute 'serious offences' under the HRSO Act.
[6] Affidavit of JF Bennett, annexure A.
As an adult, the respondent was also convicted of breach of bail, larceny and driving-related offences (namely, the illegal use of a motor vehicle, using an unregistered vehicle, and failing to have motor insurance).[7] He received convictions as a juvenile for stealing, giving a false name or address, driving without a licence, using violence with intent to steal, burglary, aggravated assault, indecent dealing with a child under 13, and criminal damage.[8] As no materials were before the court with respect to these non-serious adult offences or offences committed by the respondent as a juvenile, they did not bear heavily in the balance.
[7] Affidavit of JF Bennett, annexure A, annexure B.
[8] Affidavit of JF Bennett, annexure A.
The respondent was most recently convicted of serious offences in 2013.[9] The offences were all perpetrated against one child, who was the daughter of the respondent's partner at the time. The offences occurred between 2001 and 2007. There were six counts on the indictment.
[9] Affidavit of JF Bennett, annexure E, annexure F, annexure G.
The first and second counts on the indictment, being that the complainant was able to first remember, occurred on the same date when the complaint was between five and eight years old. The respondent covered his penis and the complaint's anus and vagina with moisturiser, then penetrated her anus with his penis until she cried out. He then penetrated her vagina with his penis until he ejaculated. The respondent was found guilty of knowingly sexually penetrating a child who was a lineal/de facto relative and sentenced to 4 years and 6 months imprisonment for each count.
On a different occasion, the respondent called the complainant into the bedroom, exposed his penis and had the complainant masturbate him. While the complainant was masturbating him, he pushed her head towards his penis and attempted to force her mouth onto it. The complainant resisted and pulled away. These acts constituted counts three and four respectively. The respondent was found guilty of inciting a child who was a lineal relative to do an indecent act and sentenced to 1 year and 6 months imprisonment for count three. For count four, the respondent was found guilty of knowingly sexually penetrating a child who was a lineal/de facto relative and sentenced to 2 years and 3 months imprisonment.
Count five occurred on a different occasion. The complainant was in a spare room of the house. The respondent entered the room, removed his clothing, laid the complainant on the floor and pushed her legs open. He then penetrated her vagina with his penis until the point of ejaculation. He was found guilty of knowingly sexually penetrating a child who was a lineal/de facto relative and sentenced to 4 years and 6 months imprisonment.
Finally, count six involved the respondent forcing the complainant to perform fellatio on him, whereby he moved her head back and forth a number of times. The respondent was found guilty of knowingly sexually penetrating a child who was a lineal/de facto relative and sentenced to 5 years imprisonment.
The sentencing judge ordered that counts one to five be served concurrently and count six be served cumulatively. The respondent's total term of imprisonment was 9 years and 6 months. He will have completed that sentence on 20 December 2022.[10]
[10] Affidavit of JF Bennett, annexure C.
The other serious offences committed arise out of a separate set of facts. On an unknown date between 2005 and 2006, the respondent took a series of four sexually explicit photographs of the complaint's genitalia. She was aged four or five and was the daughter of the respondent's close friend and had come to his home to visit his step-daughter. He then penetrated her vagina with his penis, which he also recorded. Police executed a search warrant on the respondent's home and seized his laptop, on which an animated child pornography video was found. The respondent pleaded guilty to two counts of indecently recording a child under 13 years, one count of sexually penetrating a child under 13 years and one count of possession of child pornography and received a total sentence of 4 years and 6 months imprisonment.[11]
Reports and assessments
[11] Affidavit of JF Bennett, annexures H - J.
In the materials before the court, the most recently prepared psychological report was that of Wendy Wager dated 10 June 2013.[12] Among other things, Ms Wager discussed the respondent's physical and mental health at that time. Ms Wager reported that the respondent suffers from Crohn's disease for which he underwent surgery in 2010, resulting in part of his bowel being removed. She noted that although the respondent claimed to have suffered amnesia due to the post‑surgery drugs, his memory had returned at the time of his interview with her. Ms Wager further reported that the respondent had been on anti‑depressants since being incarcerated. Ms Wager's account accords with the respondent's recent medical history contained in documents before the court.[13]
[12] Affidavit of JF Bennett, annexure N.
[13] Bundle of medical records dated 30 November 2022. See also affidavit of JF Bennett, annexure G.
Ms Wager further reported that with respect to an offence for breach of bail committed in 2008, the respondent explained that the breach occurred because he remained living with his ex‑partner as he progressively became more ill.
With respect to his sexual development, the respondent reported to Ms Wager that he was 'brutally raped' by his father for two years, commencing when he was aged six, and that he had not disclosed the abuse until after his first charges for sexual offending, at which point he told his ex‑partner. The respondent further reported to Ms Wager that he had been advised he would not function sexually as a result of nerve damage sustained in surgery.
Ms Wager also opined on the respondent's risk level. His STATIC‑99 actuarial tool results placed him in the 'high' risk category, of which four out of 10 offenders with a similar score would reoffend within a five year period. Utilising the Risk for Sexual Violence Protocol, she identified a number of static and dynamic risk factors with respect to the respondent, including difficulties with self‑awareness, his apparent difficulties managing stress and issues related to his own sexual victimisation. She also considered that sexual deviance was apparent given the young age of his victims, although he reported to Ms Wager that he also engaged in non‑deviant sexual relations. Ms Wager concluded by stating:
Based on information available [the respondent] is considered at high risk of reoffending in a sexual manner. His physical condition has deteriorated and he has aged since he committed the offences and could therefore be factors to argue some risk reduction. However should his physical condition improve and he form a relationship where he would have access to young females (children or grandchildren of a partner) his risk would remain high.
…
[The respondent] may benefit generally from participation in a brief cognitive skills programme as well as a medium intensity substance use programme while in custody. Finally, should he be placed on community supervision (order or parole) then he should be monitored with regard to his relationship status. As he has minimal contact with family he may therefore gravitate to another relationship for company and so monitoring should explore potential victim accessibility through any relationship.
Another psychological report included in the materials was that written by Mary‑Anne Martin on 23 May 2011.[14] There are two notable elements of the report. First, through the use of the STATIC‑99, Ms Martin assessed the respondent as being a 'medium to high' risk of sexual reoffending within the next five years. Dynamic factors associated with his risk were not able to be identified due to the respondent's memory loss at that time. Secondly, Ms Martin considered that due to the respondent being in a wheelchair and frail at the time, she estimated that his risk was very low, but acknowledged that this may change depending on him regaining his ability to walk. In this respect, I note that a medical record dated 3 October 2022 stated that the respondent was using a walking stick.
[14] Affidavit of JF Bennett, annexure L.
A parole assessment report of Kathleen Fisher dated 10 November 2020 provides five relevant insights into the respondent:[15]
1.He failed to take responsibility for his offending and minimised his involvement in the offences for which he was convicted. The author noted as follows:
He explained that he was in possession of a stolen computer that contained sexual images of a friend's daughter and was accused of the associated offence/s which led him to evade Police for 18 months. He denied sexual offending rather that his step‑daughter (victim) was angry at being removed from her mother's care in 2010 for three months and therefore made false claims of sexual abuse. According to [the respondent], his step-daughter resented his relationship with her mother and had made up the stories to avoid being placed into further foster care. [The respondent] was adamant that there is medical evidence (that he cannot disclose) to support that he has not abused anyone. He failed to take any responsibility and minimised his involvement in the current offending citing that he had care of his biological daughters from age seven/nine and there was never any sexual abuse accusations occurring.
2.With respect to his upbringing, the respondent reported that his father was heavy handed with discipline but denied being sexually abused by his father. The author of the report noted that the respondent's account was inconsistent with the content of Ms Wager's 2013 psychological report (as discussed above).
3.The respondent disclosed an intention to resume contact with his grandchildren, both aged 15 and 17 at the time, upon his release. He also stated during the interview that he still loves his ex‑partner and step‑daughter; however, realises that he cannot be with them. The author noted that 'such comments were concerning and any contact with his ex‑partner would place the victim at extreme risk'.
4.The respondent claimed he was willing to undertake an assessment for prior alcohol use and also to engage in private psychological counselling; however, was adamant that this will only be to assist his transition back into the community and support to cope better with the changes that occurred whilst imprisoned. I understood this to mean that the respondent was unwilling to accept treatment to address his sexual offending.
5.The author opined that the respondent was at a high risk of re‑offending in a sexual manner, and so did not support his release on parole.
[15] Affidavit of JF Bennett, annexure R.
Other past reports written about the respondent are largely consistent with the information summarised above.[16]
Rehabilitation attempts and behaviour in prison
[16] Affidavit of JF Bennett, annexure K, annexure M, annexure O, annexure U..
With respect to the respondent's behaviour in prison, an individual management plan dated 23 June 2022 noted that prison staff had reported that the respondent was polite and respectful towards them, and that he adheres to the unit rules and follows instructions as required.[17] According to a parole review report dated 2 March 2022, all urinalysis tests in prison to detect for substance use had been negative.[18]
[17] Affidavit of JF Bennett, annexure W (section 1.5).
[18] Affidavit of JF Bennett, annexure V (section 7.2).
The respondent has been in prison since December 2010.[19] During this term of imprisonment, he has not participated in any treatment programs. In the individual management plan, it was noted that the respondent had refused to participate in individual psychological intervention.[20] In 2013, he was assessed and recommended for an intensive Sexual Offender Treatment Program, which he refused to participate in without providing a reason.[21] The individual management plan dated 23 June 2022 recorded that the respondent had changed his stance on participating in the program, however no places were available prior to his release date.[22] There was no evidence before the court that the respondent had participated in any other programs to assist in his rehabilitation.
[19] Affidavit of JF Bennett, annexure J.
[20] Affidavit of JF Bennett, annexure W (section 1.9).
[21] Affidavit of JF Bennett, annexure P.
[22] Affidavit of JF Bennett, annexure W (section 1.9).
Counsel for the respondent informed the court that she was instructed that the respondent intended to participate in psychological counselling upon his release, which the proposed provider had confirmed to counsel. Despite the respondent's denials as to having committed the offences for which he was convicted, the provider confirmed that there is a sex offender treatment program commencing in March 2023 available to the respondent.[23]
[23] ts 6 (9 December 2022).
The respondent has limited familial supports and does not receive social visits within prison.[24] He receives monthly visits from Uniting WA and speaks to his brother over the telephone and exchanges mail with him.[25]
Decision not to impose a post‑sentence supervision order
[24] Affidavit of JF Bennett, annexure W (section 1.8); post-sentence supervision order report dated 15 November 2022.
[25] Affidavit of JF Bennett, annexure W (section 1.8).
On 30 November 2022, the Prisoners Review Board informed the respondent that it was of the opinion that a post‑sentence supervision order pursuant to Part 5A of the Sentence Administration Act 2003 (WA) was not required with respect to the respondent. The Board reached that decision taking into account the post‑sentence supervision order report dated 15 November 2022.
Proposed accommodation
In relation to the proposed accommodation of the respondent upon his release, I note as follows. I understand that he has been engaging with Uniting WA and it is intended that he receive reintegration support and transitional accommodation from the service, which support has been confirmed by Uniting WA.[26]
[26] Affidavit of ASE Goode pars 7, 11.
By an email communication received on 7 December 2022, the court was informed that Uniting WA have a private property available for the respondent to rent from his release until 19 January 2023, should he be made subject to an interim supervision order under the HRSO Act. Although there is a possibility that the rental period may be extended, counsel for the respondent informed the court that the respondent's intention is to rent privately after this date. Counsel for the State also informed the court that the respondent has the financial means to secure accommodation, and the testing of electronic monitoring at the proposed address did not present any issues.[27]
[27] ts 10 (9 December 2022).
Disposition
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
I am satisfied that there are reasonable grounds to believe that a court might find the respondent to be a high risk serious offender. My reasons for so concluding are as follows.
Given the effluxion of time since the preparation of the psychological reports referenced at [23] to [27] above, I did not give particular weight to the opinions expressed as to the respondent's risk of sexual reoffending, which were grounded in part upon the results obtained through use of various actuarial and diagnostic tools. However, the depravity of the respondent's offending cannot be ignored. Further, his contact offences have a number of elements in common, being sexual penetration of a female child between the age of four and seven, who was in his care at the time. Such an apparent pattern in offending in my assessment provides reasonable grounds for a heightened concern that there is a risk of recurrence. Although the respondent reported to Ms Wager in 2013 that he would not be able to function sexually due to nerve damage, there is no evidence presently before the court to ground any finding as to how the respondent's current medical condition, intolerance to alcohol, and abstinence from alcohol may impact upon his risk of reoffending.
The decision by the Prisoners Review Board not to impose a post‑sentence supervision order is not determinative of this application. Further, the respondent has consistently denied and minimised his offending. This is a reoccurring theme among the past reports written with respect to him. Until recently, the respondent has refused to participate in treatment programs and counselling to address his offending behaviour. While I weighed in the balance that the respondent had taken steps to arrange treatment upon his release, the fact that the respondent had to date received no treatment weighed heavily in the balance.
On the basis of the respondent's offending history and his unmet treatment needs, I am satisfied that there are reasonable grounds to believe that a court might find that he is a high risk serious offender. I will therefore make orders for the hearing of the restriction order application.
Should an interim supervision order be imposed?
As I indicated, the State does not seek an interim detention order. Rather, the State submitted that an order pursuant to s 58(5) of the HRSO Act that the respondent be placed on an interim supervision order until the determination of the restriction order application ought be made. I proceed on the basis that it is open to the court, given the non‑prescriptive wording of that section, to make an interim detention order, an interim supervision order, or neither order pending the determination of the restriction order application.[28]
[28] The State of Western Australia v Narrier [2021] WASC 250 [59].
Although the respondent will be released from custody on 20 December 2022, I also proceed on the basis that on its proper construction, s 58(2)(b) applies in relation to a person who would not be in custody on a specified future date from which the order is to take effect. I therefore have the jurisdiction to make an interim supervision order.[29]
[29] See, for example, The State of Western Australia v Hart[2021] WASC 205 [32] ‑ [33].
The real issue in the present case is therefore whether it is desirable to ensure for the adequate protection of the community that the respondent be subject to interim detention order, an interim supervision order, or neither order.
I am satisfied that it is desirable to ensure for the adequate protection of the community that the respondent be subject to an interim supervision order.
Counsel for the respondent submitted that the proposed future treatment of the respondent, in combination with the conditions to which he will be subject under the Community Protection (Offender Reporting) Act and the reintegration support he will receive from Uniting WA, ameliorated the risk to the community posed by the respondent. I did not accept the same.
In so finding, I was cognisant that the respondent is a reportable offender under the Community Protection (Offender Reporting) Act.[30] I weighed in the balance the submission made on behalf of the respondent that given the very wide-ranging powers that might be exercised under that Act, concerns as to the respondent's risk will be ameliorated by its operation.[31] The evidence before me did not permit a meaningful comparison of the effectiveness of an order available under that Act and an interim supervision order under the HRSO Act. I was taken by counsel to the initial reporting requirements under the Community Protection (Offender Reporting) Act and the ongoing reporting obligations under that Act. In the end, I was persuaded by the State that such controls were insufficient in all of the circumstances. I particularly noted that the Community Protection (Offender Reporting) Act does not contemplate electronic monitoring, the imposition of a curfew nor the suite of conditions intended to prevent high risk situations that are contemplated in the proposed interim supervision order. On the evidence before me, I considered the obligations that might be imposed on the respondent under the Community Protection (Offender Reporting) Act to be insufficient to ensure the adequate protection of the community.
[30] Affidavit of ASE Goode par 19.
[31] ts 6 (9 December 2022).
The respondent has been in custody for over a decade. The world has changed considerably since he was last at liberty. He will no doubt find adjustment to life in the community difficult. It is in his interests and, most significantly, in the interests of the community that he has as much support and structure as possible to live a pro‑social life upon his release.
I am also satisfied that the respondent will adhere to the proposed conditions of an interim supervision order as promoted by the State, and that adherence to the conditions will ensure the adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community. The email sent on 5 December 2022 from the State Solicitor's Office which contained information from the Community Offender Monitoring Unit as to the reason behind each of the proposed conditions assisted with the same.
As was submitted by counsel on behalf of the State, an interim supervision order will allow the Community Offender Monitoring Unit and police to monitor the respondent's relationship status, to minimise his risk of committing a sexual offence against a child.[32] This is entirely appropriate, as are the suite of conditions which limit the respondent's access to children, protect victims, provide structure by way of a curfew and reduce the risk of online offending. The respondent's breach of bail in 2008 further warrants comprehensive conditions for his supervision on this occasion. On balance, while numerous and complex conditions are proposed, I am satisfied that comprehensive conditions are appropriate in the circumstances.
[32] State's submissions par 129.
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 DECEMBER 2022
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