The State of Western Australia v Bentley
[2018] WASC 30
•5 FEBRUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BENTLEY [2018] WASC 30
CORAM: JENKINS J
HEARD: 22 JANUARY 2018
DELIVERED : 22 JANUARY 2018
PUBLISHED : 5 FEBRUARY 2018
FILE NO/S: DSO 3 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CHRISTOPHER JOHN BENTLEY
Respondent
Catchwords:
Dangerous Sexual Offenders Act - Preliminary hearing - Whether reasonable grounds that an order might be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7(1), s 11, s 14(1), s 37
Result:
Application granted
Orders sought by applicant made
Category: B
Representation:
Counsel:
Applicant: Mr B Meertens
Respondent: Mr G Cleveland
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Huron Legal
Case(s) referred to in judgment(s):
Bentley v The State of Western Australia [2007] WASCA 38
Director of Public Prosecution v Free [2010] WASC 255
Director of Public Prosecutions v Dodd [2015] WASC 249
JENKINS J:
(This judgment was delivered extemporaneously on 22 January 2018 and has been edited from the transcript).
Introduction
The State of Western Australia applies for an order under the Dangerous Sexual Offenders Act 2006 (the Act), s 14(1) and div 2 in respect to Mr Bentley. In accordance with the Act, s 11, this is a preliminary hearing to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that Mr Bentley is a serious danger to the community under the Act s 7(1). That is, to determine whether the court is satisfied that there are reasonable grounds for believing that the court might find that there is an unacceptable risk that if Mr Bentley were not subject to a continuing detention order or a supervision order he would commit a serious sexual offence.
If the court is satisfied of those matters, it must order that Mr Bentley, undergo examinations by two qualified experts named by the court, at least one of whom is to be a psychiatrist, for the purposes of preparing reports in accordance with the Act s 37, to be used on the hearing of the State's application (the division 2 hearing).
The law
McKechnie J discussed the requirements of the statute in the case of the Director of Public Prosecution v Free [2010] WASC 255 [4] ‑ [13]. His Honour said:
It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description. The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made. At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.
The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation. In George v Rockett (1990) 170 CLR 104:
When a statute prescribes that there must be "reasonable grounds" for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
Further on:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review [11] ‑ [13].
Simmonds J also discussed the relevant provisions in Director of Public Prosecutions v Dodd [2015] WASC 249, [34] ‑ [42]. I have read and taken into account what his Honour said.
Mr Bentley's submissions
This application is opposed by Mr Bentley. Mr Bentley's position is, that there are no reasonable grounds for a belief that a court might find him an ongoing serious danger to the community. It is therefore unnecessary to order the division the division 2 hearing.
Mr Bentley has filed an affidavit in which he says he does not meet the threshold for a division 2 hearing, because of the extent of improvement in his mental health, his history as a prisoner, the courses he has undertaken whilst in custody and his rehabilitation over the past 17 years. Mr Bentley relies in particular on the following matters to establish that the threshold has not been met:
(1)his time in custody;
(2)his acceptance of his crimes;
(3)his mental illness at the time he committed his serious sexual offences, and that he is now in stable health;
(4)his therapeutic use of prescribed drugs whilst in prison;
(5)the therapy he has had whilst in prison;
(6)the yoga he has practised whilst in prison;
(7)is abstention from the use of illicit drugs whilst in prison;
(8)the fact that he will have the support of a law abiding female friend who is a registered nurse, when he is released from prison;
(9)the studies he has completed whilst in prison; and
(10)his intention to pursue further studies and become a writer once released from prison.
Mr Bentley particularly relies upon the opinion of Professor Paul Skerritt, psychiatrist, that Mr Bentley's personality disorder has spontaneously remitted and that there is now no sign of the schizoaffective disorder or paranoid psychosis which Mr Bentley was suffering from at the time of the commission of his serious sexual offences. He says that should be sufficient assurance to the court that he will not reoffend in the future and that consequently, I should not find that a court may find him a serious danger to the community.
Professor Skerritt assessed Mr Bentley and prepared a report dated 21 November 2017. Mr Bentley submits that Professor Skerritt has no concerns about the underlying problems of mental illness or deviant personality behaviour that would support a belief by a court that Mr Bentley is a serious danger to the community. In these respects, Mr Bentley relies upon the following comments by Professor Skerritt:
Mr Bentley presented himself very well to me and I could not see any signs either of personality disorder or mental illness. In any case, I think it is quite clear that he was suffering from a serious mental illness, which is now in remission, and is thus not of relevance in consideration of further detention. We have to ask ourselves whether this particular aspect of his psycho pathology has changed in the extended period that he has been in prison. He has had various courses, etcetera, but I believe that the most powerful factor there is, is the years that have passed. My own subjective assessment of him suggests that he was certainly able to moderate his behaviour and present quite well in the admittedly artificial interview situation. The periods of observation of [named friend] are perhaps similar on a longer time scale. I note that psychologist, Mr Steve Jobson, was also of the opinion that the time might have come for his release.
Finally:
I am inclined to accept that his personality disorder has come into spontaneous remission. On the objective line he has consistently not shown any evidence of drugs in prison, of significance, (both in the psychotic disorder and assessment of his bona fides). Whatever misdemeanours he may have committed in prison do not seem to have happened in recent years. If he were to be discharged I would agree with the opinions of Mr Jobson, that very considerable support systems need to be put in place, along with the companionship of [named friend] to minimise the chance of reoffending.
Mr Bentley submits that he does not have a propensity to commit serious sexual offences in the future. He says that his serious sexual offending occurred over 16 years ago when he was mentally ill. He says that his reports and his behaviour over the past decade of wellness show no nexus or propensity whatsoever between sexual offending and his current state of healthy mental wellbeing. Mr Bentley submits that any such pattern occurred during his mental health crisis. He says he is now well and there is no evidence of a mental illness which would indicate that the pattern may re‑emerge. He submits that patterns of offending often disappear through the effluxion of time, particularly when those patterns were associated with a mental illness which is now in remission.
Background and criminal history.
Mr Bentley is 54 years old. He is currently serving a sentence of 12 years and 4 months' imprisonment which was ordered to be served partly cumulatively on an earlier sentence. His sentence will expire on 15 May 2018. He was eligible for parole in May 2016, but the Prisoners Review Board refused to release him.
Mr Bentley had a disturbed childhood with incidents of family violence and parental alcoholism. He ran away from home at an early age and was ultimately made a ward of the State. He began to get into trouble at school. He spent much time in a boys home, where it appears that he was sexually abused, and he was later raped in prison at a relatively young age.
He had a problem with binge drinking from the ages of 21 to approximately 35, often associated with offending and violence.
A serious injury in 1999 involving fractures of the back and pelvis required a course of strong pain killers. He developed an addiction to illicit drugs, in particular amphetamines. He also became a dealer of drugs.
Mr Bentley has a long history of generalised offending, commencing when he was a child. This offending occurred in most of the States of Australia and in the Northern Territory.
Up until 2000 there were no offences of a sexual nature on Mr Bentley's record but his record included a number of violent offences including assault, burglary and drug related offending. Mr Bentley's serious sexual offending relates to offences committed in 2000 and 2001, when Mr Bentley was in his late 30s. Mr Bentley was sentenced in the District Court at Perth on 17 May 2002 to 8 years imprisonment in respect of each of two sexual penetrations without consent, 4 years' imprisonment for depravation of liberty and 2 years' imprisonment for a threat offence.
The total effective sentence was 12 years imprisonment backdated to a date in January 2002. Although he considered Mr Bentley a marginal candidate for parole, the learned sentencing judge made a parole eligibility order.
The facts of those offences were that the complainant was 16 years of age at the time. She and Mr Bentley knew each other as she would sometimes babysit the children of his de facto spouse. The victim sometimes used amphetamines.
At some time in June 2000 Mr Bentley arranged with her that he would get her some drugs. He injected her with a mixture of white powder and water. The complainant lost control of her muscles and went into a stupor. When she awoke she found she was bound so that her arms and legs were fastened. Mr Bentley was having penile vaginal sex with her. She struggled but was unable to move and indicated that she did not want him there. He nevertheless penetrated her mouth with his penis and ejaculated. He dressed her and rebound her arms behind her back. He forced her to swallow what she believed to be cold or flu tablets and some other tablets and to smoke some marijuana. He then drove her home. The threat which he made to her was to the effect that if she told anybody about what had happened he would do the same again. He told her she would pay if anybody found out and that he knew where she lived so she could not hide.
Whilst Mr Bentley was on bail for those offences he committed what were described by the Court of Appeal as sexual offences which were 'among the most serious examples of offending of their kind'. The offences of which Mr Bentley was convicted after trial consisted of one count of armed robbery, one count of unlawful detention, seven counts of sexual penetration without consent in circumstances of aggravation, and one count of burglary. He was acquitted of one count of sexual penetration.
The facts out of which those convictions arose were that Mr Bentley followed a young woman from her place of work in Bunbury to her home. He used a ruse to get inside her home. Once inside he asked her for a drink and made some small talk. He produced some mobile telephones from his backpack and asked her if she wished to buy one. While crouched down over the backpack he produced a large hunting knife, held it up to her and asked for money. At knifepoint he took the victim to the kitchen. He then stole money from her and demanded her credit card. Throughout the remainder of the afternoon Mr Bentley subjected the victim to a series of sexual assaults, including penile sexual penetration and cunnilingus. Throughout the period he had the knife with him and he referred to it, indicating that he would use it if the victim tried to run away. At one stage he pulled her hair out of its bun and combed the knife through it. He demanded that she engage in other indecent conduct. Having completed that series of assaults, Mr Bentley allowed the complainant to shower. At that point he rummaged through the house, left beer bottles in various places and stole the complainant's watch and other property. The court found that it was his intention to cover his trail by pretending that he and the victim had been drinking together and had then engaged in consensual sexual intercourse. This was the case that Mr Bentley had put to the jury, but which was rejected. The entire series of offending took more than two hours. Mr Bentley then left the victim's house.
Later on the same afternoon, Mr Bentley committed a series of offences to which he pleaded guilty. Those offences were, one count of unlawful detention, two counts of armed robbery, and two counts of stealing. Thus, there was no serious sexual offending during that incident. However, the facts indicate that that may have been the ultimate result if the victim had not managed to escape.
The facts of those offences were that at about 5.00 pm, the 17‑year‑old victim walked to her car, which was parked in a hospital car bay in Bunbury. Mr Bentley was in the area offering mobile phones for sale to young women who were parked nearby. Seeing the victim, he followed her to the car, produced his hunting knife, held the knife at her leg and pressed it against her. He forced her into her car. He got into the driver's side and made the victim help him disconnect the immobiliser. He then drove off with the victim in the car. Mr Bentley initially made some reassuring comments to the victim about letting her go. However, he retained the knife at all times. He questioned the victim at some length, demanded money from her. He drove her around the area of South Bunbury. At a remote location he stopped the vehicle and told the victim to get into the boot. He did not proceed further with that demand. He then drank some beer and smoked cannabis before driving on. He told the complainant that he had killed people, but not girls. He gave her the knife but she handed it back to him, being too frightened to attempt to use it to assist her in an escape. Mr Bentley drove off in such a fast and erratic manner that the victim believed she might be killed. At one point Mr Bentley dropped the knife and lost it temporarily within the car. He told the victim to look for it. She took the advantage of that opportunity to escape by taking off her seat belt and getting out of the car at a set of traffic lights. He grabbed her and there was a brief struggle. She got away, although she was scratched in the process. At some point after she made her escape Mr Bentley used the victim's credit card at an automatic teller machine to withdraw $600 from her account.
In relation to those offences, Mr Bentley was sentenced to a total of 24 years imprisonment, and refused parole eligibility. That sentence was successfully appealed.[1] At the time he was resentenced, Court of Appeal had before it two psychiatric reports. One from Dr Patchett said that Mr Bentley had suffered from a schizoaffective disorder at the time of his offending, which was in effect causative of his offending. It was the psychiatrist's opinion that the disorder was well managed on drug therapy by the time of the appeal.
[1] Bentley v The State of Western Australia [2007] WASCA 38.
The second report by Dr Brett said that although Mr Bentley had a schizoaffective disorder it was difficult to determine when this commenced. Dr Brett was not satisfied that it was causative of his offending. He conceded that it was possible that at the time of his offending Mr Bentley may have been suffering from psychotic symptoms which would have impaired his judgment. He noted the difficulty of diagnosis given the existence of an underlying personality disorder and substance abuse. The Court of Appeal determined that the probabilities were that Mr Bentley's sexual offending was likely to have been contributed to by the mental illness described by both psychiatrists and to some degree.
Dr Patchett described Mr Bentley's admission into the Frankland Centre in December 2002 in the following terms:
On admission to the Frankland Centre he described a four year history of coming to the realisation that I can switch on people. They all know I know it's all a conspiracy. He spoke of conspiracies in the legal system and the prison system, but that it didn't bother him because he had also come to the realisation that he had special powers and special insights into people. He spoke of having inner clarity of being spiritual and how important political figures and God himself were speaking through their wisdom through him. During the admission Mr Bentley also eluded to the presence of psychotic symptoms at the time of his offending. He spoke of having special powers of perception in being able to appreciate the sexual desires of those around him, of women in particular, and spoke of how he was called by the female victim of a serious sexual assault by what appeared to be an auditory hallucination. Mr Bentley was treated with the antipsychotic preparation, Olanzapine, in combination with a mood stabiliser, sodium valproate, and returned to Casuarina Prison, where I followed him up ever since.
During the prison follow up it has been apparent that Mr Bentley was suffering from a very clear paranoid psychosis at the time of his offending, during his trial, and even following conviction. It was apparent in the prison setting, and even in the early stages of admission to the Frankland Centre, that he was extremely suspicious and guarded concerning even those who were trying to help him, such that the full extent of his psychosis was never revealed. Mr Bentley became unwell again and required transfer from prison to the Frankland Centre in April 2003. He presented with a major depressive illness, and the diagnosis was for a find to schizoaffective disorder, current episode depressed. An anti‑depressant was added to his treatment regime, and he was returned to prison in mid‑May 2003. At that stage he retained residual ideas that he had special abilities to 'turn people on', and described a number of mystical beliefs, but these were clearly attenuated from the height of his earlier psychotic experiences [33].
Dr Patchett described Mr Bentley as 'one of those gratifying cases', a 'very compliant and cooperative patient'. In the Court of Appeal, Wheeler J noted that Dr Patchett explained that the mental illness was, in his view, by no means the whole of the explanation for Mr Bentley's offending. As well as the mental illness, Mr Bentley was suffering from the effects of his substance abuse and an underlying personality disorder. He had a long history of offending and was never likely to be 'a very stable individual' in terms of his personality functioning. Dr Patchett said he would always be predisposed to offending, although not necessarily to sexual offending.[2]
[2] [36] ‑ [37].
Wheeler J said in addition, at the time at which the appellant was sentenced in this court his Honour had before him a psychological report which pointed to a medium to high risk of re‑offending, and a psychiatrist's report which was to the effect that the appellant did not have any major treatable mental illness, and that he scored in the high risk category for re‑offending. The history of the appellant's subsequent treatment is such as to suggest that he was, at least at the time of these offences, suffering from a psychiatric disorder which contributed to his offending to some degree, and for which he is now being treated with apparently a degree of success.
In summary, Mr Bentley's serious sexual offending convictions relate to two victims on two days, separated by about nine months. In respect of the number of victims and the short period of time over which he offended, his serious sexual offending is different to many dangerous sexual offenders who have lifelong records of committing sexual offences against many victims. What also distinguishes Mr Bentley's offending from that of other sex offenders is the gravity of his offending. Thankfully there are not many cases where the offending against strangers is so appalling. The other notable thing about it his offending is that it occurred in the context of wide ranging dishonesty and violent offending.
Treatment programs
Mr Bentley has completed an intensive sex offender treatment program and the Pathways Program. The completion report for the intensive sex offender treatment program which he finished on 30 November 2015 was not very positive. There was some scepticism about Mr Bentley's optimism that all his treatment needs had been met. This was evidenced by the recommendation that should he be released to parole he should be required to adhere to conditions of parole, his community corrections officer, ANCOR and SOMS. He should also be required to attend a sex offender maintenance program or individual counselling, undertake random urinalysis, and provide a copy of a self‑management plan to his community corrections officer.
The completion report for the Pathways Program dated 18 April 2016, was more positive. His participation was considered to be satisfactory. The author said although uncertain of his future, Mr Bentley's overall approach post‑release appeared focused on applying his knowledge and skills to the betterment of himself, focusing on positive outcomes and goals, continuing counselling, furthering his education, and remaining alcohol, drug and crime free. It suggested that he is likely to still be within the early stages of change, and will require ongoing intervention and support to consolidate and improve upon Pathways Program gains and to apply knowledge gained from other mandated programs and self‑imposed changes to his life.
The authors also recommended various strategies post‑release to assist Mr Bentley to stay offence free in the community. Firstly, a referral for an assessment for further community support, such as with a substance use or personal counselling agency. Mr Bentley had indicated his willingness to engage in such support. Secondly, post‑release referral for a mental health assessment to assess his mental health given his apparent mental health and behavioural diagnoses in the past. Thirdly, referral to appropriate employment agencies with assistance to gain meaningful employment and/or further education. Fourthly, referral to an appropriate accommodation agency and/or support in gaining suitable accommodation, and fifthly, support to develop formal and informal support networks and healthy and prosocial community and pastime interests.
A psychological assessment completed in 2016 by Mr Jobson was of the opinion that Mr Bentley had made some progress towards rehabilitation while in custody, but there remained significant factors which contributed towards a risk of serious sexual offending if Mr Bentley was released on parole, which was the issue at that time.
The psychological report from Mr Jobson was supportive of release to parole and recommended a range of areas which would require support for Mr Bentley to successfully transition to the community. Mr Jobson suggested that Mr Bentley should be regularly monitored for signs of psychological deterioration or regression with those monitoring him remaining alert for the 'early warning' signs of further offending behaviour.
It is clear from the recommendations in Mr Jobson's report that Mr Jobson's opinion was that Mr Bentley will require ongoing supervision in the community to moderate his risk of reoffending. Mr Bentley has spent a lengthy period of time in custody, and his ability to cope outside of prison has not been tested. An unsupported release at the conclusion of his sentence would be likely to increase the number of stressors faced by Mr Bentley and run the risk of a relapse to substance abuse with the potential for declining mental health and recidivist behaviour. Amongst the recommendations Mr Jobson made are for Mr Bentley to be referred to an assessment for further community report, such as with a substance abuse or personal counselling agency, and a post‑release referral for mental health assessment.
On 21 June 2016, Dr Brett presented a report on Mr Bentley to the Prisoners Review Board. For the purpose of preparing that report, Dr Brett reviewed Mr Bentley on 8 June 2016 and also had access to a broad range of antecedent material. Dr Brett was one of the psychiatrists who provided an opinion when Mr Bentley was last sentenced and on appeal.
Dr Brett is of the opinion that Mr Bentley did not have a major mental illness. He is on the opinion that his previous psychoses were the result of chronic illicit drug use. Dr Brett remains of the opinion that Mr Bentley has dissocial personality disorder. Dr Brett conducted a risk assessment based on the Static‑99R and the RSVP. He concluded:
Mr Bentley has a history of serious sexual offending. I find him to be in the high risk category for sexual reoffending. This is based on the Static‑99R and the Risk for Sexual Violence Protocol, RSVP. His risk for reoffending would increase significantly with substance abuse. It would reduce with abstinence, stable accommodation, meaningful activity and support. I do not believe that his risk would reduce significantly in the foreseeable future. He has been in prison for a long period of time. It would be hoped that his risk could be managed in the community with significant support and monitoring. Mr Bentley has completed the ISOTP. They have completed a comprehensive report. Their summary and recommendations are consistent with my findings. I agree with their recommendations. I believe that if he is granted parole, then his transition into the community could be more safely monitored. He could have conditions that he would have substance abuse counselling and testing, sexual offender maintenance therapy, stable accommodation and access to transitional support services.
As I have stated, his parole was declined, so this transition to the community did not occur.
I also take into account Dr Skerritt's opinion, which I have earlier expressed. I note that Professor Skerritt did not carry out a risk assessment. In any event, he agreed with Mr Jobson and Dr Brett's opinions that very considerable support systems need to be put in place to minimise the risk of Mr Bentley's reoffending once he is released into the community.
Conclusions
In mid‑2016 Dr Brett was of the opinion that Mr Bentley was in the high risk category for serious sexual offending. All the experts who have provided the most recent reports about Mr Bentley are of the opinion that upon his release significant strategies should be implemented to ensure that he remains offence free and, in particular, sexual offence free in the community. These opinions strongly suggest to me that a court may find that upon his release the accused may be a serious danger to the community if he is not on a supervision order made under the Act.
In my opinion, there are reasonable grounds for believing that a court may find that Mr Bentley is a serious danger to the community.
The Court of Appeal decided that Mr Bentley's schizoaffective disorder had predated his serious sexual offending and contributed to it in some way. At the time of his resentencing, his psychiatric order was said to be well managed. The prevailing expert opinion is that he now does not suffer from a major mental illness. However, in Dr Brett's opinion, that would seem to be very much connected to the fact that he is currently drug free whilst in custody. If that was to not occur and if there were not strategies in place to ensure that he remained drug free, there would be a real question as to whether there was a likelihood of that schizoaffective disorder re‑emerging.
I also note Dr Brett's opinion that Mr Bentley remains in the high risk category for serious sexual offending. I also note Mr Bentley's antecedents and criminal record, both general and in respect of sexual offending. It is serious and his serious sexual offending was of the gravest kind. I also note that at the time of this offending, he had a personality disorder and substance abuse issues.
On the basis of these matters, I conclude that there are reasonable grounds for concluding that a court might be persuaded that Mr Bentley is a serious danger to the community if he is not on a continuing detention order or a supervision order. Whilst in prison, hopefully Mr Bentley has learned of and developed some strategies to avoid committing these same sort of offences if released. However, the success of his efforts to address the factors which may contribute to him committing serious sexual offences in the future is a matter which can be addressed at the division 2 hearing.
I conclude that I am satisfied that there are reasonable grounds for believing that the court may find that Mr Bentley is a serious danger to the community, and therefore I will make the orders as sought by the applicant.
2
4
1