The State of Western Australia v Atkins [No 3]
[2023] WASC 243
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ATKINS [No 3] [2023] WASC 243
CORAM: MCGRATH J
HEARD: 29 JUNE 2023
DELIVERED : 30 JUNE 2023
FILE NO/S: SO 19 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CHRISTOPHER JAMES ATKINS
Respondent
Catchwords:
Criminal law - High Risk Serious Offender - Contravention proceedings - Application for interim detention pending determination of contravention proceedings - Whether exceptional circumstances exist - Whether there will be substantial compliance with standard conditions of the supervision order - Need to ensure adequate protection of the community
Legislation:
High Risk Serious Offenders Act 2020, s 53, s 56
Result:
Offender detained pending determination of contravention proceedings.
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Dr N Barber |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Neville Barber and Associates |
Case(s) referred to in decision(s):
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
The State of Western Australia v Atkins [2021] WASC 163
The State of Western Australia v Atkins [No 2] [2022] WASC 45
MCGRATH J:
On 2 June 2023, the State of Western Australia filed an application under s 55 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) commencing contravention proceedings against Mr Atkins.[1]
[1] Application for contravention proceedings filed 2 June 2023.
In support of the application the State filed an affidavit of Mr Meerten's sworn 6 June 2023, and an affidavit of Ms Serrano, Community Corrections Officer, affirmed 7 June 2023. The State seeks orders that Mr Atkins' Supervision Order be rescinded and that a continuing detention order be made. In the alternative, the State seeks an order that Mr Atkins be subject to a supervision order on amended terms. The State further applies for an order that Mr Atkins be detained in custody while these proceedings are pending.
On 8 June 2023, Mr Atkins was brought before the Court under s 53 of the HRSO Act. At that time Mr Atkins was unrepresented and therefore, the matter was adjourned. On 29 June 2023, Mr Atkins was represented by counsel.
For the following reasons, I have determined that Mr Atkins will be detained in custody on an interim detention order pending the determination of the contravention proceedings.
Procedural history
On 25 November 2020, the State of Western Australia applied for a restriction order under s 48 of the HRSO Act in relation to Mr Atkins. The State contended that it was necessary to make a restriction order under the HRSO Act to ensure adequate protection of the community against an unacceptable risk that Mr Atkins will commit a serious offence on his release. On 21 May 2022, pursuant to s 46(1) of the HRSO Act, Quinlan CJ found that there were reasonable grounds for believing that a court might find that Mr Atkins is a high risk serious offender within the meaning of the HRSO Act.[2] 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 Mr Atkins to undergo examination by two qualified experts.
[2] The State of Western Australia v Atkins [2021] WASC 163.
On 15 February 2022, Strk J determined that it was necessary to make a restriction order in respect to Mr Atkins to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence. Further, Strk J determined that the risk of the re-offending may be adequately managed in the community with the imposition of a supervision order for a period of 5 years (the Supervision Order).[3] The Supervision Order comprised 38 conditions.
[3] The State of Western Australia v Atkins [No 2] [2022] WASC 45.
Relevant legislative provisions
Section 56 of the HRSO Act relevantly provides that:
(1)This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect of the offender are pending (the pending proceedings)
(2)The court may at any time in the pending proceedings -
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
(3)The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
Therefore, I must be satisfied on the balance on probabilities of both matters specified in s 56(3) before I can order the Mr Atkins' release.
The term 'exceptional circumstances' used in s 56(3) is not defined in the HRSO Act. The term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special or an exception to the general trend of cases.
The standard conditions of the supervision order referred to in s 56(3)(b) are those set out in s 30(2), which provides:
A supervision order in relation to an offender must require that the offender -
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
As to the phrase 'substantially comply', this was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[4] in the context of contravention proceedings. I apply the reasoning of Fiannaca J.
[4] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4, [52].
The relevant questions to be decided are therefore as follows:
1.Is the respondent's release justified by exceptional circumstances?
2.If released, will the respondent substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?
The contraventions
The alleged contravention conduct upon which the applicant relies in support of the contention that Mr Atkins contravened the Supervision Order comprise 15 criminal charges. Mr Atkins has appeared in the Magistrates Court and not entered a plea to the 15 charges, but has given an indicative plea of guilty to 10 charges. The particulars of the charges are as follows.
Charges 1 to 3
On 28 March 2023, Mr Atkins was issued with a direction to attend the Adult Community Corrections Centre, Rockingham for the purpose of undergoing a urinalysis test. On 30 March 2023, in compliance with the direction, Mr Atkins submitted a sample which returned a void result due to the temperature of the sample being outside of the recommended range.
On 4 April 2023, during a scheduled supervision session, Mr Atkins advised his Senior Community Corrections Officer (SCCO) that his Samsung brand mobile phone had extensive screen damage, which was progressively becoming worse. He produced another mobile phone from his pocket, a Next G Telstra mobile, informing his SCCO that he was now using that mobile phone and had been doing so 'on and off for about a month'. Mr Atkins therefore, had failed to advise his SCCO of possessing the mobile phone despite having had previously had the opportunity to do so.
On 13 April 2023, police officers from the High Risk Serious Offender Team (HRSO Team) attended Mr Atkins' home address to conduct a compliance search. After Mr Atkins was advised of the reasons for the search he surrendered a home-made pumping apparatus filled with a quantity of urine.
Accordingly, on 18 April 2023, WA Police charged Mr Atkins by summons with the following offences (RO 2180 - 2182/2023):
(i)1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act (breach of condition 31 of the Supervision Order);
(ii)1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act (further breach of condition 31 of the Supervision Order); and
(iii)1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act (breach of condition 37 of the Supervision Order).
Charges 4 to 7
On 18 April 2023, Mr Atkins attended Adult Community Corrections at Rockingham for the purpose of undertaking a urinalysis test. Mr Atkins submitted a sample as directed. The analysis of the sample by Pathwest established that the sample was diluted with a creatinine level below the standard cut-off threshold of 1.8 mmol/L. Therefore, the sample was not valid.
On 25 April 2023, police officers from the HRSO Team attended Mr Atkins' home address to arrest him. Whilst checking his medication a small seal bag containing seeds was located in a box of tablets. Mr Atkins admitted they were cannabis seeds that belonged to him.
During the same attendance, police located a Samsung mobile phone in Mr Atkins' bedroom. Mr Atkins admitted his possession of the mobile phone. Mr Atkins had not disclosed his possession of the mobile phone to his CCO.
Accordingly, police charged Mr Atkins with the following offences, (PE 21219 ‑ 21222/2023):
(i)1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act (breach of condition 31 of the Supervision Order);
(ii)1 x contravened a requirement of a supervision order contrary to s 80 (1) of the HRSO Act (breach of condition 22 of the Supervision Order);
(iii)1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act (breach of condition 37 of the Supervision Order); and
(iv)1 x possession of a prohibited drug (cannabis seeds) contrary to s 6(2) of the Misuse of Drugs Act 1981(WA).
Charges 8 to 9
On 24 April 2023, Mr Atkins was directed to attend the Adult Community Corrections Centre at Rockingham for the purposes of undergoing a urinalysis tests. Mr Atkins submitted a sample as directed. After analysis by PathWest the sample was found to be diluted with a creatinine level below the standard cut-off threshold of 1.8 mmol/L, which is not considered to be a valid sample.
The same sample submitted by Mr Atkins also tested positive to methylamphetamine. The last occasion on which Mr Atkins submitted a sample of urinalysis which did not contain methylamphetamine was 4 April 2023, which indicates that he used the methylamphetamine sometime between 18 and 24 April 2023.
Accordingly, WA Police charged the Mr Atkins by summons with the following offences (PE 27632 ‑ 27633/2023):
(i)1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act (breach of condition 31 of the Supervision Order); and
(ii)1 x used a prohibited drug (methylamphetamine) contrary to s 6(2) of the Misuse of Drugs Act1981 (WA).
Charges 10 to 12
On 1 May 2023, Mr Atkins was directed to attend the Adult Community Corrections Centre, Rockingham for a urinalysis test. In compliance with the direction, Mr Atkins submitted a sample which, after analysis by PathWest, was found to be diluted with a creatinine level below the standard cut-off threshold of 1.8 mmol/L, which is not considered to be a valid sample.
The same sample submitted by Mr Atkins also returned a positive test result to the presence of methylamphetamine.
On 4 May 2023, WA Police charged Mr Atkins by summons with the following offences (PE 27627 - 27629/2023):
(i)1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act (breach of condition 31 of the Supervision Order);
(ii)1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act (breach of condition 3 of the Supervision Order); and
(iii)1 x used a prohibited drug (methylamphetamine contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA).
Charge 13
On 3 May 2023, Mr Atkins was in Moore Street, East Perth. At that time, officers from the HRSO Team requested that Mr Atkins permit the officers to conduct a search of the vehicle he was driving. Mr Atkins retrieved a Samsung Galaxy A31 mobile telephone from a pocket located beneath the front passenger seat of the vehicle and handed it to the officers.
After officers made enquiries to the Community Offender Monitoring Unit (COMU) it was ascertained that Mr Atkins failed to disclose possession of the mobile phone to his CCO. Mr Atkins had left the mobile phone in the vehicle before attending his appointment with his CCO prior to the HRSO Team's search of the vehicle.
On 3 May 2023, WA Police charged Mr Atkins with the following offence (PE 22539/2023):
·1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act (breach of condition 37 of the Supervision Order).
Charges 14 & 15
On 3 May 2023, Mr Atkins was directed to attend Adult Community Corrections Centre, East Perth for the purposes of undergoing urinalysis by PathWest. Mr Atkins provided a sample which returned a positive test result to the presence of methylamphetamine.
On 8 May 2023, WA Police charged Mr Atkins by summons with the following offences (PE 27630 - 27631/2023):
(i)1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act (breach of condition 22 Supervision Order); and
(ii)1 x used prohibited drug (amphetamine) contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA).
Other matters – Affidavit of Ms Serrano
Ms Serrano deposes that Mr Atkins experiences ongoing lung‑related health issues and was scheduled for cardiothoracic surgery at Fiona Stanley Hospital via the elective wait list service on 1 June 2023. However, the surgery was cancelled that day and therefore, Mr Atkins is awaiting a new surgery date.
Ms Serrano deposes that from information provided by Mr Atkins and the FHS Cardiothoracic Registrar, Mr Atkins must complete five days of antibiotic treatment (which generally requires an overnight admission for the 5 days) prior to surgery.[5] This could not occur prior to the surgery that was listed for 1 June 2023 and therefore the surgery could not proceed.
[5] Affidavit of Ms Serrano, [19].
Ms Serrano deposes that information was sought from the Department of Justice, Director of Medical Services, Dr Rowland and Prison Medical Officer, Dr Gunson on 2 June 2023. Dr Gunson confirmed that:[6]
we are able to facilitate Mr Atkins attendance to hospital for surgery, as long as the dates can be rescheduled, so that he is not aware in advance when he is to be transferred. Otherwise, there should not be an issue with his receiving the procedure in the public hospital system. FCS Medical Bookings would just need to be advised as soon as the dates are known, in order to book transport and escorts beforehand.
[6] Affidavit of Ms Serrano, [20].
In total, Mr Atkins has completed 44 urinalysis tests during the term of his current Supervision Order. Mr Atkins has failed to produce any valid urinalysis result since 28 February 2023. All tests since 28 February 2023 have been positive to cannabis, with four of the tests also positive to amphetamine and methylamphetamine (with these four tests also diluted), and one test from 30 March 2023 was invalid due to the temperature being outside the accepted range.[7]
[7] Affidavit of Ms Serrano, [24].
Ms Serrano deposes that inquiries were made with Pathwest concerning the possible causes of the urinalysis results returning a creatine level below the accepted level of 1.8 mmol/L. Pathwest was asked whether any medical condition could cause the issue. The advice from Dr O'Halloran, Clinical Scientist from Pathwest, stated:[8]
[I]n general terms our clinical doctors attached to the department do not link spot low urine creatinine concentrations with any particular medical condition or medications. The general advice is to try to obtain a (concentrated) sample early in the morning prior to the consumption of too much liquid beverages.
[8] Affidavit of Ms Serrano, [27].
Ms Serrano states that Mr Atkins was found in possession of a urine pumping device which he admitted to using for a urinalysis test instead of his own urine.[9]
[9] Affidavit of Ms Serrano, [9].
Ms Serrano also deposes that on 6 to 7 May 2023 police officers attended Mr Atkins' address at his mother's house and located a number of clip seal bags containing suspected drug items, three mobile telephones, a SIM card and 85 g bag of cannabis in Mr Atkins' bedroom. The police did not charge Mr Atkins for the reason that 'there was insufficient evidence to prove ownership'.[10] Further, the Mr Atkins' mother reported that she had located a significant quantity of cannabis and syringes in Mr Atkins' bedroom.[11]
[10] Affidavit of Ms Serrano, [9]
[11] Affidavit of Ms Serrano, [9].
Mr Atkins has not been charged with any cannabis offences given that he was prescribed medical cannabis on 12 January 2023.[12]
[12] Affidavit of Ms Serrano, [26].
Ms Serrano also outlines other alleged contraventions resulting in actions other than the formal charge that has occurred during the period that Mr Atkins has been on the Supervision Order. The alleged other contraventions include failure to make records in his work diary, allowing the strap of his global positional system tracker to become undone, failure to identify the name of a female work colleague he had collected on the way whilst travelling to work. In addition, Ms Serrano identifies two occasions where Mr Atkins completed the urinalysis sample which were diluted due to low creatinine but that when he subsequently completed a further test, it returned within the acceptable creatinine level.
Ms Serrano also identifies other concerning behaviours regarding unstable relationships that have occurred between Mr Atkins, his mother, niece and nephew.
Further, Mr Atkins, whilst continuing to attend supervision and counselling sessions, has failed to openly discuss his ongoing instability and drug use, attempting to externalise blame onto his supports. Ms Serrano deposes that this adversely impacts meaningful supervision and risk management processes.[13]
[13] Affidavit of Ms Serrano, [32](e).
Ms Serrano deposes that Mr Atkins has displayed hostility towards authority in supports at various times.[14]
[14] Affidavit of Ms Serrano, [32](g).
Ms Serrano deposes that he has failed to disclose any illicit drug use during the supervision sessions but Mr Atkins does 'appear accepting of the urinalysis test results and their implications'.[15]
[15] Affidavit of Ms Serrano, [22].
Mr Atkins currently has support from his mother, who provides him with suitable accommodation. However, Ms Serrano notes that Mr Atkins has been endeavouring to change his address in order to live with his partner. Approval for the change of accommodation has not yet been granted.[16]
[16] Affidavit of Ms Serrano, [32](h).
Mr Atkins filed a number of references from members of the community who speak of his positive qualities. I have also received references from his family who describe him as a supportive and loving person. Mr Atkins has strong family support in the community with stable accommodation. His mother is a very engaged responsible person who has been actively responding to the Community Corrections Officer, including raising her concerns regarding Mr Atkins when necessary.
A reference from a counsellor who treated Mr Atkins between July 2020 and 2022 states that he found Mr Atkins to be open to addressing the events and choices that resulted in him serving a term of imprisonment. The counsellor states that he is willing to provide ongoing counselling.
I have also received a letter from Mr Atkins dated 29 June 2023. Mr Atkins outlines that he is suffering from depression and anxiety. Further, he has health issues with his lungs and prostate. Mr Atkins' states that he is 'trying his hardest to build a life that makes him a valued member of the community'.
Assessment of the application
I now turn to the assessment of whether Mr Atkins should be detained in custody until the determination of the contravention proceedings.
Are there exceptional circumstances
The initial question for my determination is whether exceptional circumstances exist for the purposes of s 56(2) of the HRSO Act. Counsel for Mr Atkins submitted that the exceptional circumstances comprise a number of factors. First, that Mr Atkins has a history of childhood deprivation including being abused and abandoned. That history of deprivation informs an understanding of the ongoing issues that affect Mr Atkins. Second, that Mr Atkins was compliant in the community for a period of 10 months. Third, that Mr Atkins has a lung complaint that requires an operation. Fourth, Mr Atkins suffers from depression and anxiety. Fifth, there may be delay in finalising the proceedings.
The State submitted that the operation was cancelled due to the conduct of Mr Atkins. I understand that Mr Atkins accepts that is the case. In any event, the operation, if necessary, may be addressed whilst incarcerated. Similarly, the extent to which Mr Atkins has depression or anxiety may be managed whilst incarcerated. I accept that Mr Atkins has a history of childhood deprivation. That history was outlined by Strk J. The antecedents of Mr Atkins do not amount to exceptional circumstances. In respect to delay, counsel for the applicant submitted that the State will be relying upon one report at the contravention hearing, which may be listed in a 3 to 4 month period.
After careful assessment, I find that there are no exceptional circumstances within the meaning of s 56(3) of the HRSO Act. I have considered the combination of the factors relied upon by Mr Atkins in making that assessment.
Will the respondent substantially comply with the standard conditions of the Supervision Order
I now turn to the question imposed by s 56(3) as to whether Mr Atkins has satisfied me on the balance of probabilities that if he is released, he will substantially comply with the standard conditions of the Supervision Order, including any amendments made to the standard conditions of the Supervision Order.
As to whether Mr Atkins will substantially comply with the standard conditions of the order, the onus is on Mr Atkins to establish that he will do so on the balance of probabilities.
Mr Atkins has spent approximately 20 years of his life incarcerated for various criminal offences including acts of violence. He has been sentenced to a term of imprisonment almost 50 times from one month to over five years.[17] As Strk J observed, Mr Atkins criminal record reveals a cycle of offending behaviour and incarceration.[18] The violent offending includes vicious sustained physical assaults on women.
[17] The State of Western Australia v Atkins [No 2] [2022] WASC 45, [39].
[18] The State of Western Australia v Atkins [No 2] [2022] WASC 45, [39].
Strk J, in imposing the Supervision Order, observed that Mr Atkins will be subject to additional conditions intended to prevent high risk situations. Strk J stated that drug or alcohol use has been involved in almost all of Mr Atkins previous offending and has been identified as a major risk factor for future violence.[19] Strk J observed that Ms Hasson, psychologist, expressed the opinion that regular urinalysis will assist with Mr Atkins maintaining abstinence from illicit substances.
[19] The State of Western Australia v Atkins [No 2] [2022] WASC 45, [150]-[151].
The State submits that having regard to the drug use and the failure to provide valid samples on numerous occasions, there exists concerns that Mr Atkins has now relapsed into using illicit substances. Therefore, the Court cannot be satisfied that Mr Atkins will substantially comply with the standard conditions of the Supervision Order. There is merit in that submission. Further, the State submits that the failure to give lawful urinalysis supports a finding that there exist concerns that Mr Atkins will not comply with directions of the Community Corrections Officer. There is an element of deception in Mr Atkin's conduct regarding the providing of his urinalysis samples.
At this time, I am unable to find that Mr Atkins will substantially comply with the conditions of his Supervision Order. In making this finding I, wish to make clear that at the contravention hearing there will be a comprehensive addressing of the issues and the Court will receive evidence from an expert who will be able to address the risk of Mr Atkins committing a serious offence in light of his recent lapse in using illicit substances. However, I am unable to release Mr Atkins at this stage.
The Parliament has set a stringent test for the release of an offender who breaches a supervision order. I am unable to be satisfied, at this time, that exceptional circumstances exist or that Mr Atkins will substantially comply with the standard conditions of the Supervision Order.
Conclusion
Therefore, Mr Atkins, will be detained in custody pending the determination of the contravention proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
30 JUNE 2023
3
0