The State of Western Australia v ACW [No 5] - [2023] WASC 433

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ACW [No 5] [2023] WASC 433
CORAM:   SOLOMON J
HEARD:   27 JUNE 2023 & 3 NOVEMBER 2023
DELIVERED          :   13 NOVEMBER 2023
FILE NO/S:   SO 10 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ACW
Respondent

Catchwords:

High risk serious offender - Contravention proceedings - Application under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) - Where contraventions are admitted - Whether the respondent will substantially comply with requirements of supervision order - Where evidence suggests respondent can only make progress in the community - Whether the supervision order should be rescinded, affirmed, or amended

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision order affirmed

Representation:

Counsel:

Applicant	:	Mr B Meertens (27 June 2023) and Ms F Allen (3 November 2023)
Respondent	:	Mr T Hager (27 June 2023) and Mr D McKenzie (3 November 2023)

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

Cases referred to in decision:

State Director of Public Prosecution v Rao [2019] WASC 93
State of Western Australia v ACW [No 2] [2020] WASC 480
State of Western Australia v ACW [No 3] [2022] WASC 41
State of Western Australia v ACW [No 4] [2023] WASC 14
State of Western Australia v Latimer [No 12] [2023] WASC 333
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Stephens [No 2] [2021] WASC 318

SOLOMON J:

This is the State's application for orders under s 55(1) of the High Risk Serious Offenders Act 2020 (WA) (the Act). The statutory framework and legal principles relevant to the application were recently summarised by Forrester J in State of Western Australia v Latimer [No 12][1] and need not be repeated, other than as referred to below.
[1] State of Western Australia v Latimer [No 12] [2023] WASC 333 [55] - [66].
By the nature of proceedings under the Act, this is the fifth decision that has been published in respect of the respondent. At some point during the course of these applications, the respondent's name was anonymised, though different pseudonyms have been adopted by different judges. For consistency, the pseudonym in the citation is ACW. However, throughout these proceedings the respondent has been known by the pseudonym WC, and that is how I shall refer to the respondent in these reasons.

Background

In October 2016, WC was sentenced to a total effective sentence of 4 years 6 months' immediate imprisonment for two offences of a violent and sexual nature (the Index Offences). In 2019, the State applied pursuant to the Dangerous Sexual Offenders Act 2006 (WA) that WC be placed on a continuing detention order. The Dangerous Sexual Offenders Act was replaced with the Act on 26 August 2020. On 2 December 2020, her Honour Archer J determined that WC is a high risk serious offender for the purposes of the Act.[2] WC's offending history was set out in her Honour's reasons and need not be repeated. Archer J was satisfied that WC had significant outstanding treatment needs that could not be adequately met in the community, particularly considering that the only accommodation available for WC in the community at the time was less than desirable.[3]
[2] State of Western Australia v ACW [No 2] [2020] WASC 480.
[3] State of Western Australia v ACW [No 2] [2020] WASC 480 [142], [145] - [163].
In January 2022, her Honour presided over the one-year review of the respondent's continuing detention order. On that occasion, her Honour was satisfied that WC should be released on a supervision order.[4] The supervision order contained 55 conditions. WC was released on 8 March 2022.
[4] State of Western Australia v ACW [No 3] [2022] WASC 41.
It is conceded that WC contravened the supervision order imposed by Archer J. The relevant conditions of that supervision order provided that:
[…]
4) Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
[…]
5) Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone, or by electronic means, unless
(a) the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b) the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
The facts giving rise to the four contravention charges can be summarised as follows.
On 3 May 2022, police attended at WC's home to ensure that he was complying with the supervision order. As police approached the house, a teenage girl ran from the house and hid. Police located the girl and confirmed her identity, including her age of 17 years. For the purposes of these reasons, I will refer to the girl as Ms B. The evidence establishes that WC had been involved in a romantic and sexual relationship with Ms B. At all times during their relationship, WC was aware that Ms B was 17 years old.[5] WC had not been authorised to have contact with Ms B. WC was charged under s 80(1) of the Act.
[5] Affidavit of Melanie Keogh (affirmed 25 January 2023) [12].
Police then seized mobile devices from WC's home and located photos and images of WC interacting with young children between the ages of 18 months and seven years, who have since been identified as nieces and nephews of WC. Other than the fact that WC was not authorised to have contact with those children, there is no suggestion of impropriety or untoward behaviour. WC was again charged under s 80(1) of the Act.
Further images and recordings showed WC interacting with different children between the ages of three and six years, on a different day. Those children are also WC's nieces and nephews. Other than the fact that WC was not authorised to have contact with those children, there is no suggestion of impropriety or untoward behaviour. WC was again charged under s 80(1) of the Act.
Pursuant to condition 4 of the supervision order, on 9 March 2022 a Community Corrections Officer issued a direction to WC that he must be able to be contacted on his mobile phone at all times. On 26 April 2022, a representative of Community Corrections attempted to contact WC. WC's phone was answered by a family member who stated that WC had left his phone behind at the family member's address. The failure by WC always to be contactable was a contravention of the supervision order.
WC was arrested on 3 May 2022 in relation to the contraventions. He has been in prison since that arrest, now more than 18 months ago.
On 13 May 2022, WC pleaded guilty to the four charges and was convicted. On 18 May 2022, WC was sentenced to 9 months' imprisonment and fined $1000. On 10 February 2023, the Community Offender Monitoring Unity (COMU) obtained an arrest warrant pursuant to s 51 of the Act, which executed on 11 February 2023 and had the effect of keeping WC in custody.
On 13 February 2023, the State appeared before Archer J on an urgent basis seeking an interim detention order pursuant to s 53(2)(b) of the Act, pending an application for a s 55(1)(a) continuing detention order. Archer J placed WC on an interim detention order.[6] The hearing of this application was listed for 27 June 2023. For reasons that I will explain below that hearing was adjourned part-heard and brought back before me on 3 November 2023.
[6] State of Western Australia v ACW [No 4] [2023] WASC 14.
That timeline can be summarised in the following way. In December 2019, the State applied to have WC declared a high-risk serious offender. While that application was on foot, WC remained in custody, notwithstanding that WC completed his sentence for the Index Offences in March 2020. On 20 December 2020, WC was declared a high risk serious offender and placed on a continuing detention order. Pursuant to that order, WC spent a further 14.5 months in custody until he was released on a supervision order in March 2022. Between April and May, WC contravened that supervision order in the manner I have set out above. His conduct was not of itself criminal in nature, but was rendered so by the conduct constituting a breach of the supervision order. In May 2022, WC was sentenced to spend a further nine months in prison for those breaches. That sentence expired in February 2023. Since then, WC has been in prison pursuant to the interim detention order of Archer J. WC has thus spent 10 months in prison pursuant to the interim detention order imposed by Archer J and a total of 18 months in prison following his breach of the supervision orders. Since completing his sentence in March 2020, other than a period of less than two months from 8 March to 3 May 2022, WC has been in prison. That is a period of some three and half years.

Relevant legislative provisions

Section 53 of the Act sets out the circumstances in which the State may apply for an order under s 55. That includes where an offender is charged with an offence under s 80(1) of the Act.
Section 55 of the Act relevantly provides as follows:
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must –
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2)…
(3)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 29(1) of the Act provides:
Limitation on power to make or amend 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.
(3)This section does not apply to the making of an interim supervision order.
Even if the court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of a supervision order, this will not necessarily mean that a supervision order should be amended or affirmed, rather than rescinding a supervision order in favour of a continuing detention order. By operation of s 55(3), even if the court is satisfied that an offender will substantially comply with a supervision order, there may be extenuating circumstances that mean that the community can only be adequately protected by placing the offender on a continuing detention order.

The evidence

The State's application was first listed before me on 27 June 2023 (the Contravention Hearing).
The State tendered a Book of Materials (BoM) for the purposes of the Contravention Hearing. The BoM was comprised of two volumes. The first volume contained the various judgments published in the matter, WC's criminal history and charge/incident history while in custody, the particulars and prosecution notices in respect of the contravention charges, WC's historical psychological assessments and sentencing reports. The second volume contained records of WC's calls from prison to various members of his family and to Ms B. The State played audio recordings of some of those phone calls at the hearing on 27 June 2023.
Volume Two of the BoM also contained a treatment progress report authored by Joanne Collyer, a psychological report authored by Julie Hasson, and a performance report authored by Danielle Cromie.
Joanne Collyer, Julie Hasson, Danielle Cromie and Cassie McNally were called to give evidence. I will summarise each of their evidence in turn.

Julie Hasson

Ms Hasson gave evidence that she had met with WC on three occasions, and that on each occasion, she observed that progress had been made.[7] In particular, Ms Hasson opined that WC was developing insight, that he was no longer engaging in impression management, and that he 'has the ability to reflect and understand what he has done wrong.'[8]
[7] ts, 27 June 2023, 275.
[8] ts, 27 June 2023, 276.
Ms Hasson also gave evidence that WC had taken the consequences of the contravention seriously. Ms Hasson was of the opinion that WC now had a better understanding of the importance of complying with the supervision order.[9] At the time of the contravention he had not appreciated the gravity of his conduct. Ms Hasson explained that WC now understands that gravity and is far more committed to compliance with the conditions.
[9] ts, 27 June 2023, 278.
At the Contravention Hearing, Ms Hasson gave evidence in relation to a number of properties where it was proposed WC would reside if released from custody. WC is a Miriwoong man, and he has at all times expressed a preference to remain with his community and to live on his country in Kununurra.
At the time of the Contravention Hearing there were three proposed addresses. All three of those properties satisfied WC's desire to remain in his community, and all three are owned or are being leased by members of WC's family. The first proposed address was where WC had resided upon his previous release from prison and while subject to the supervision order. Since that time, the property has been vacated. Ms Hasson gave evidence that the first property was not a viable option. In respect of the other two properties, various issues were raised in respect of other people likely to reside at the address, including children. Ms Hasson's evidence was that although WC has not lived completely independently for any significant time, she did not think it would be unreasonable for WC to live alone. Ms Hasson gave evidence that in her view, the risk of WC reoffending towards children was quite low compared to the risk that he may reoffend against an adult.[10] However, Ms Hasson considered that it was 'not an ideal situation to have [WC] living with children'.[11]
[10] ts, 27 June 2023, 280.
[11] ts, 27 June 2023, 280.
Ultimately, Ms Hasson gave expert evidence that in her assessment WC still remains a high risk, but that that risk could be adequately managed in the community. Indeed, in both her written report and oral evidence, Ms Hasson's evidence was that WC would be unable to make further progress in respect of managing his relationships with women and emotional regulation while in prison. Ms Hasson explained that WC had reached a plateau in terms of the therapeutic progress he was able to make. Further imprisonment would not produce further progress but might indeed undermine the progress that had been made by reducing WC's hope and incentive. Ms Hasson explained that the only way WC could make further progress was by living in the community and receiving supervision and counselling in that context.
When the matter came before the court again on 3 November 2023, Ms Hasson gave further evidence and reiterated her view that WC could be managed in the community under the existing conditions imposed by Archer J on 21 January 2021. Ms Hasson did not think that further or different conditions were warranted. Importantly, she explained that WC would receive regular counselling if released to the community under supervision. That was the only way he was likely to make further progress. In contrast, if WC remained in prison, Ms Hasson explained that it was unlikely that any therapy or counselling would be useful and indeed it was unlikely to be made available. Simply put, the only way WC could proceed to a productive life was to be released into the community under supervision where he would receive therapy and counselling.

Joanne Collyer

Ms Collyer is a senior counselling psychologist. For the purposes of this application, Ms Collyer prepared an HRSO Treatment Progress report dated 30 May 2023, and gave oral evidence.
For the purposes of preparing her report, Ms Collyer met with WC twice for a total of 3.5 hours. Ms Collyer observed that WC presented in a notably different manner on the second of those occasions, and that he was more forthcoming and willing to discuss the contraventions and to speak about things that may be embarrassing or paint him in a negative light.[12]
[12] ts, 27 June 2023, 296.
Ms Collyer also observed that since the continuing detention order imposed by Archer J in 2021, WC had positively engaged with the relevant treatment and programs identified by her Honour.[13]
[13] BOM Vol 2, 446.
Ms Collyer gave evidence that if WC was released into his community, he would be able to maintain a therapeutic relationship with his counsellor via Microsoft Teams or some other technology but would be unlikely to be able to continue to meet with his counsellor in person. Despite some concerns raised by me and by counsel at the Contravention Hearing, Ms Collyer gave evidence that it was unlikely that WC would lose access to counselling services entirely even if he resided in a regional community.[14]
[14] ts, 27 June 2023, 299 - 302.
In her written report, Ms Collyer stated that 'placement in the Perth metropolitan area is not viewed as an optimal option for [WC]' due to his cultural ties to country and the support of his family in Kununurra.[15]

Danielle Cromie

[15] BoM Vol 2, 453.

Ms Cromie is a senior Community Corrections Officer with the Adult Community Corrections Centre. She has been WC's Community Corrections Officer since 3 January 2023. For the purposes of this application, Ms Cromie prepared a written Performance Report dated 21 June 2023, and gave oral evidence.
Ms Cromie gave evidence that while subject to the supervision order and prior to his return to custody, WC attended 17 scheduled supervision sessions with his CCO. Ms Cromie's evidence was that WC's engagement in those sessions 'appeared to be superficial, and he lacked transparency during sessions, which is evidenced by his lack of disclosure regarding relationships, substances and contact with children.'[16] Ms Cromie described WC as 'resistant' to the supervision order.[17] Ms Cromie also gave evidence that WC had been involved in a few minor incidents since his return to custody in May 2022. However, Ms Cromie reported that since the imposition of the interim detention order, WC appears to have made positive progress. Ms Cromie described WC as being able to reflect on 'lessons learnt', expressing frustration at himself for the breaches of the supervision order, and identifying the importance of being honest with community corrections.[18] WC has expressed to Ms Cromie his intention to comply with any further supervision orders.
[16] BOM Vol 2, 484.
[17] BOM Vol 2, 485.
[18] BOM Vol 2, 488.
At the conclusion of her written report, Ms Cromie's evidence was that there had been no identifiable changes in the risk that WC posed to the community, and that no additional conditions of supervision were proposed, should WC be released on a supervision order.

Ms Cromie also gave evidence in respect of the suitability of the proposed residences for WC. At the time of the Contravention Hearing, only one of the three properties had been formally assessed using Desktop Spatial Analysis. Ms Cromie had attempted to contact the various leaseholders of the properties with limited success and had attended in person at each of the properties. Ms Cromie gave evidence consistent with that of Ms Hasson that the first proposed address had been repossessed by the Department of Communities and was no longer suitable. Ms Cromie gave evidence that the members of WC's family who currently resided in the remaining two properties were supportive of WC. However, there would be difficulties accommodating WC at either of the other two properties, as children regularly resided at both of those properties. Ms Cromie explained that, upon consultation with other officers from Community Corrections and after completing a risk management plan, it may be possible for WC to be granted permission to have contact with the children believed to reside at the premises.[19]
[19] ts, 27 June 2023, 309.
Ms Cromie also gave evidence that WC had applied to the Department of Communities for accommodation of his own in 2015.[20] Ms Cromie explained that to her knowledge, there was an 11-year waitlist for applicants seeking housing through the Department of Communities.[21]
[20] ts, 27 June 2023, 311.
[21] ts, 27 June 2023, 307.
Ms Cromie's evidence was that in order to be further assisted by Community Corrections and improve his chances of being accepted into a housing program, such as through the HRSO Supported Accommodation Program, WC would have to 'be prepared to relocate to the metro area'.[22]
[22] ts, 27 June 2023, 314.
Ms Cromie also addressed some of my questions about the feasibility of WC's supervision conditions, and in particular, the practicality of the conditions that surrounded WC's contact with children while living in a large indigenous family. Ms Cromie acknowledged that for people in WC's situations, such conditions may be more difficult, but they were still workable and realistic.[23]
[23] ts, 27 June 2023, 318.
At the resumed hearing on 3 November 2023, Ms Cromie gave evidence that WC was continuing to engage with counselling in prison, and that Community Corrections intended to keep WC in contact with his current therapist if he were to be released into the community.[24]
[24] ts, 3 November 2023, 363.
Ms Cromie also gave evidence that if WC were released, the department would require some time to arrange a flight for WC to Kununurra. Ms Cromie estimated that the department would be able to prepare the relevant documents and arrange transportation for WC by 14 November 2023.[25]

Accommodation

[25] ts, 3 November 2023, 364.

On the morning of the Contravention Hearing, an email was sent from a Ms McNally to my chambers concerning the analysis of the three proposed addresses. Ms McNally is a team leader at the COMU in Perth. Ms McNally was called as a witness for the purpose of putting that email into evidence.[26]
[26] Exhibit D.
Without descending into the detail of each of the properties, it is sufficient to observe that local police expressed concerns about the reliability of GPS monitoring at one of the properties, the presence of children at each of the premises, the proximity of the premises to other convicted sex offenders and victims of sex offences, and reports of family and domestic violence in and around the proposed residences. That email also included the following:
Local Police in Kununurra are not in support of [WC] being released to reside within Kununurra, however have identified [REDACTED] as the most suitable address if no children continue to reside there.
The address preferred by the police is the address that has now been repossessed by the Department of Communities and is therefore no longer viable.
At the Contravention Hearing, it became apparent that a significant barrier to WC's release was a lack of suitable accommodation. WC's counsel sought an adjournment until 1 September 2023 in order to further investigate options for WC's accommodation upon release. At that hearing, I expressed concern regarding the time WC had already spent in prison awaiting the outcome of this application. As has been observed in this court before, there is no power to backdate a continuing detention order, and so no account can be taken of time spent in prison during adjournments of applications under the Act.[27]
[27] State Director of Public Prosecution v Rao [2019] WASC 93 [12] (Quinlan CJ).
On 31 August 2023, the parties applied by consent to further adjourn the matter until 3 November 2023. Counsel for the State advised the court that progress would be made towards the issue of accommodation in the interim. Consequently, I relisted the contravention application for 3 November 2023. I also requested that the State provide the court with fortnightly updates, via email, about the availability and suitability of the proposed accommodation.
Those updates were provided by email.
At the resumed hearing on 3 November 2023, both Ms Hasson and Ms Cromie gave further evidence in respect of accommodation. The fortnightly email updates were tendered into evidence. The State's position was that there was suitable accommodation available to consider in the event that the court was minded to permit WC to be released from prison on a supervision order.

Disposition

WC plainly contravened the supervision orders of Archer J. As explained, he was convicted and sentenced for that contravention and has served that sentence. Under s 55 of the Act, the court must therefore either rescind the supervision order and make a continuing detention order, amend the conditions of the supervision order or extend the period of its operation, or affirm the supervision order without amendment. If the court is not satisfied on the balance of probabilities that WC will substantially comply with the standard conditions, then a continuing detention order must be made. In deciding which order to make, the paramount consideration is the need to ensure the adequate protection of the community.
On the basis of the evidence before the court, particularly that of Ms Hasson, I am satisfied that WC will substantially comply with the standard conditions, and that the conditions imposed by Archer J will be sufficient other than the change of address to reflect the availability of suitable accommodation.
I also observe that the only barrier to the making of the orders reflecting these reasons has been the lack of suitable accommodation. It is more than regrettable that someone remains imprisoned, not because they are serving a sentence for a crime, but because there is a lack of suitable accommodation; see also The State of Western Australia v Corbett [No 5] [2017] WASC 115 at [5]; The State of Western Australia v Stephens [No 2] [2021] WASC 318 at [54].
I have also not overlooked the paramount consideration mandated by the Act: adequate protection of the community. On one view, the community's protection can only be safeguarded if every person who has the propensity to commit a violent crime is imprisoned. But the Act does not require the absolute protection of the community. Rather it requires adequate protection. In its context, that notion of adequacy must permit some consideration to be given to the dignity and liberty of the offender as well as the opportunity for their rehabilitation within the community. It might also be observed that the protection of the community is ultimately best served by facilitating an offender's integration as a productive and constructive member of society. The protection of the community is most unlikely to be enhanced when young men are institutionalised to the point where rehabilitation and reintegration are no longer possible.
For those reasons, WC should, in my view, be released on an amended supervision order. On 3 November 2023, the parties provided to the court a minute of consent orders that would give effect to that intention, and which amended the terms of the supervision order to the satisfaction of the state. Those are the orders which I shall make.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
13 NOVEMBER 2023