The State of Western Australia v BC - [2021] WASC 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BC [2021] WASC 164
CORAM:   QUINLAN CJ
HEARD:   21 MAY 2021
DELIVERED          :   21 MAY 2021
PUBLISHED           :   21 MAY 2021
FILE NO/S:   SO 9 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

BC
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 detention order is desirable – Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)

Result:

Orders made pursuant to s 46(2)

Category: B

Representation:

Counsel:

Applicant	:	T W McPhee
Respondent	:	S D Freitag SC

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Tony Hager

Cases referred to in decision:

The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 21 May 2021 and has been edited for publication.)

Introduction

On 12 August 2020, the State of Western Australia applied for orders pursuant to s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) in respect of the respondent (BC). The Dangerous Sexual Offenders Act 2006 has since been repealed and replaced by the High Risk Serious Offenders Act 2020 (WA) (the Act). The State has therefore made an application for a restriction order pursuant to s 35, s 46 and s 48 of the Act.
The preliminary hearing of the application came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that BC is a high risk serious offender within the meaning of the Act.[1]
[1] See s 46(1) of the Act.
If I am so satisfied, the State seeks interim orders pursuant to s 46(2) of the Act, including orders that:
(a)BC undergo an examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application; and
(b)BC be detained in custody until the final determination of the application, pursuant to s 46(2)(c)(i) of the Act.

The law

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 BC 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 ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act, relevantly, includes indecent dealing with a child.
While the definition of 'high risk serious offender' sets a relatively high bar for the imposition of a restriction order (in the sense of requiring proof to a high degree of probability), s 46(1) of the Act sets a low threshold for the purposes of a preliminary hearing. 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. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. 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.[2]
[2] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

In support of its application, the State relies upon the affidavit of Fiona Marie Clare affirmed on 12 August 2020 which contains BC's criminal history and several previous reports in relation to him (including psychological and psychiatric reports).
The evidence reveals that BC has a history of sexual offending against children dating back to 1975 when BC was a teenager himself.
BC was convicted most recently in the Children's Court for 15 offences taking place between 1975 and 1985. These offences included six counts of indecent dealings of boys under 14 years of age, five counts of indecent dealings with children and one count of inciting an indecent dealing with a child under the age of 14. There were six different victims aged between approximately 7 and 12 years old. BC was sentenced to a total effective sentence of 3 years imprisonment for these offences on 11 March 2019, backdated to commence on 24 February 2019.
In 1988, BC was convicted of two counts of aggravated sexual assault. The victim of these offences was his cousin, who was around eight years old at the time the sexual abuse began in 1984. The two offences were based on a single incident, however, the victim gave evidence that the sexual assault had occurred on many occasions. On that occasion BC was sentenced to 5 years and 11 months imprisonment for these offences.
BC's most recent offending took place in 2014. He was sentenced in relation to that offending in June 2016. On that occasion, BC was convicted of nine counts of indecently recording a child under the age of 13, two counts of indecently dealing with a child under the age of 13 and one count of distributing child exploitation material to another. BC was sentenced to a total effective sentence of 3 years imprisonment on 3 June 2016.
BC is currently serving his sentences for the offences which took place between 1975 and 1985, when he was a child. That sentence will be completed on 23 February 2022. BC is eligible for release on parole but has not been released. He was refused parole on 21 July 2020.
There are a number of reports annexed to Ms Clare's affidavit, in the form of pre‑sentence reports, psychological reports and psychiatric reports.
The most recent psychological reports were prepared at the time of BC's most recent sentencing: a report of Ms J Sampson dated 5 March 2019 and a report of Ms C Chamarette dated 8 March 2019. Ms Chamarette was BC's treating psychologist at the time.
Ms Sampson reported that BC had a relatively stable home life growing up although he reported that he was sexually abused by two male strangers and a male scout leader when he was young.
BC reported that he has experimented with several kinds of drugs in the past but has had no persistent use of either drugs or alcohol.
BC was diagnosed with depression around the time he was sentenced in 2016. Ms Sampson stated in her report that 'current psychometric testing indicated severe levels of depression, likely to have been a chronic state for him'. BC disclosed that he had attempted suicide when he was 19 and had recently been depressed and suicidal. Ms Sampson reported that a Basic Personality Inventory (BPI) was administered to BC, and that his scores were indicative of very low self‑esteem, low mood, negative automatic thinking styles, despondency and poor coping and stress resilience. Ms Sampson also reported that 'his final scale of significance was the deviation domain implying that he displayed behavioural patterns that are very different from the norm and manifesting in problematic behaviour, as demonstrated by his offending behaviour and sexual preoccupation.
Ms Sampson stated that BC had previously been assessed in 2016 as a moderate to high risk of sexual offending as an adult (using the STATIC‑99R and RSVP – Risk for Sexual Violence Protocol), and that this assessment 'stands with a slight increase in risk' due to the revelation of the 1975 to 1985 offences.
Ms Sampson made the following recommendations in 2019:
Recommendation is for [BC] to continue to access treatment to address his significant sexual offending as a child and more recently as an adult. He is currently attending group and individual treatment and this should continue indefinitely if possible due to his significant pathology and sexual deviance. If he is given a custodial sanction, he should be prioritised for a custodial sex offender treatment program. When he has completed this or his current program, he should attend a sex offender maintenance program in the community.
Ms Chamarette was more optimistic in relation to BC's risk of reoffending and future treatment needs. She said in her report:
[BC]'s motivation as demonstrated during treatment is the best indication of his reduced risk of re‑offending. He has gained a better understanding of how he came to behave in the way he did through his individual and group therapeutic work in order to ensure that no similar lapse could occur in the future. He has developed a safety plan and has the support of his wife and children. He represents a minimal risk of re‑offending in the future.
…
[BC] has shown a positive response to the intensive weekly group treatment program which is designed for men who have offended in similar ways to him. At 11 weeks into the 20 week group Treatment program he made good progress and he would have gained considerably if he had been able to continue to completion in April 2019 in a way that was not available to him either before or during his past imprisonment. A report of the Government program in which he is currently participating should support the impression that he is positively engaged in rehabilitation and is at a much lowered risk of re‑offending than in the past. Individual sessions which accompany group treatment will continue to ensure a reduction to any risk of re‑offending if he remains in the community.
At the time of his most recent imprisonment BC had started, but did not (as a consequence of his imprisonment) complete a Community Based Sex Offender Treatment Program.
The Program Non Completion Report for this program reported:
[BC]'s assessment scores on the Static‑99R and STABLE‑2007 tools combined place him in the Moderate High category and presented with treatment needs related to sexual preoccupation, deviant sexual interest in prepubescent females, impulsivity and a lack of concern for others.
[BC] initially presented as somewhat unwilling to engage in the program due to his belief that he would soon be sentenced to a term of imprisonment for the current convictions and would be unable to complete the program. However as he progressed his motivation appeared to increase and he actively engaged in the group process. In general [BC] displayed an intellectual understanding of the concepts presented and some factors that contributed to his offending behaviours. However due to his short time in the program, it was difficult to explore the factors that impeded his ability to enact behavioural change and further develop effective coping strategies to mitigate his risk of re‑offending in a similar manner in the future. Therefore his treatment needs remain unmet.
[BC] was exited from the program due to being sentenced to a term of imprisonment for historical sex offences against six male child victims. Therefore he did not have the opportunity to extensively explore the factors related to his offending or formulate effective strategies to mitigate his risk or similar offending in the future. As a result, [BC]'s treatment needs remain unmet.
It is recommended that [BC] would benefit from inclusion in a prison based sex offender program to address his outstanding treatment needs. It is further noted that given [BC]'s entrenched preoccupation with sex and his sexual attraction towards prepubescent female children, it [is] likely that he would benefit from ongoing monitoring and treatment.
While in prison BC had been assessed for but, apparently, not undertaken any treatment. His most recent Treatment Assessment Report dated 22 January 2020 reports as follows:
Based on the current assessment [BC] presents a medium risk of general reoffending on the LS/RNR and a Well Above Average risk of sexual reoffending.
…
It is recommended that [BC] complete the [Sex Offending Intensive treatment program he was unable to complete] to address his outstanding risk factors. Engagement in the [program] will afford [BC] the opportunity to improve social, communication, and emotional regulation skills, develop appropriate coping mechanisms, increase self‑esteem, address negative thinking styles and identify risk factors and warning signs.

Assessment

I am satisfied that there are reasonable grounds to believe that a court might find BC to be a high risk serious offender within the meaning of the Act.
My reasons are as follows.
BC has a history of sexual offending against children ranging from his teenage years to relatively recently. The fact that BC's offending ranges from 1975 to 2014 indicates a pattern of behaviour that needs to be addressed. I am supported in this view by BC's Treatment Assessment Report dated 22 January 2020 which states that '[BC]'s manipulation of the victims in the [historical] offences [from 1975 to 1985] is consistent with behaviour displayed in his sexual offences in 1988 and in 2014'.
There does not appear to have been any treatment provided to BC during his current term of imprisonment.
On the basis of BC's offending history and his unmet treatment needs, I am satisfied therefore 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 and for BC to be examined by a psychiatrist and qualified psychologist for the purposes of preparing reports to be used at that hearing.
I order that the restriction order application be heard on 8 October 2021.

Interim detention order

In the meantime, the State submits that I should make an interim detention order pending the determination of the restriction order application, pursuant to s 46(2)(c)(i) of the Act. That section provides that the court may 'if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order'.
As I indicated earlier in these reasons, BC's current term of imprisonment will expire on 23 February 2022. While he is eligible for release on parole, his parole was refused. The reasons given by the Prisoners Review Board were this:
Your significant criminal history including prior sex offending which suggests a high risk of reoffending your unmet treatment need (sexual offending as evidenced by the nature of your current offences, your criminal history and as assessed by corrective services, the board notes that you have been assessed as requiring the sex offender treatment program however this has not been made available to you as yet.
The Prisoners Review Board's refusal of parole was therefore based on the fact that BC had not participated in the recommended treatment program. He has still not participated in it. I am informed by the State and accept that the next available program will not commence until October 2021.
In addition, the State has provided an affidavit of India Ahalya Allegakoen sworn 14 May 2021 which provides information from the Community Offender Monitoring Unit to the effect that BC has no plans to reapply for parole advising that he was awaiting commencement of a program which was due to start later in the year.
In those circumstances I consider it highly unlikely, to the point of remote, that the Prisoners Review Board (having determined that BC should not be released on parole due to his unmet treatment needs), would make an inconsistent decision prior to the hearing of this restriction order application and release BC on parole without having met those unmet treatment needs.
While the word might in s 46(2)(c)(i) of the Act means 'possible' that must refer, in my view, to a real possibility rather than a remote possibility.
I do not consider that there is a real possibility that BC will be released from custody prior to the determination of the restriction order application. For that reason the statutory precondition to the imposition of an interim detention order under s 46(2)(c)(i) is not met and I therefore cannot make such an order.
If in the highly unlikely event the Prisoners Review Board were to consider BC appropriate for release on parole prior to the determination of the restriction order application, it would remain open to the Court to make an order by way of an interim supervision order under s 58 of the Act at that time.
It is therefore appropriate that there be liberty to apply to the parties generally in relation to the matter. Otherwise it is not open to make an order pursuant to s 46(2)(c)(i) of the Act.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
21 MAY 2021