The State of Western Australia v Bentley [No 2]
[2019] WASC 95
•25 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BENTLEY [No 2] [2019] WASC 95
CORAM: CORBOY J
HEARD: 11 DECEMBER 2018 & 13 FEBRUARY 2019
DELIVERED : 13 FEBRUARY 2019
PUBLISHED : 25 MARCH 2019
FILE NO/S: DSO 3 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CHRISTOPHER JOHN BENTLEY
Accused
FILE NO/S: INS 165 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CHRISTOPHER JOHN BENTLEY
Accused
Catchwords:
Criminal law - Dangerous sexual offender - Contravention of supervision order - Supervision order amended
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 23
Result:
Supervision order amended
Category: B
Representation:
DSO 3 of 2017
Counsel:
| Applicant | : | Mr B D Meertens |
| Accused | : | Ms S Oliver |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Huron Legal Pty Ltd |
INS 165 of 2018
Counsel:
| Applicant | : | Mr B D Meertens |
| Accused | : | Ms S Oliver |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Huron Legal Pty Ltd |
Case(s) referred to in decision(s):
The State of Western Australia v Bentley [2018] WASC 135
CORBOY J:
The application and the result
Mr Bentley is subject to a supervision order (the Supervision Order) made under s 17(1)(b) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). He pleaded guilty to a charge that he contravened a condition of the order.
The Director of Public Prosecutions applied under pt 2 div 4 of the DSO Act for an order that the Supervision Order be rescinded and a continuing detention order be made; alternatively, an order that the Supervision Order be amended in such terms as the court thought fit (the s 23 Application). Directions were made on 6, 14 and 29 August 2018 and the application was heard on 11 December 2018 and 13 February 2019. Evidence was taken from a forensic psychiatrist, Dr Wynn Owen; a forensic psychologist, Dr Poli; and a senior community corrections officer, Ms Yun.
Following the hearing on 11 December 2018, the DPP accepted that the Supervision Order should be amended rather than rescinded. The change in the DPP's position reflected the expert evidence presented in the hearing of the s 23 Application on 11 December 2018.
I concluded that it was appropriate to amend the Supervision Order on the terms proposed by the DPP having regard to the nature of Mr Bentley's contravention, the time he had spent in custody since the contravention and the evidence presented in the s 23 Application. Accordingly, on 13 February 2019 I ordered that the Supervision Order be amended and Mr Bentley be released from custody subject to the order as amended. These are my reasons for making those orders.
The Supervision Order and the contravention
On 4 May 2018, McGrath J found that Mr Bentley was a serious danger to the community pursuant to s 7(1) of the DSO Act: The State of Western Australia v Bentley [2018] WASC 135 (the Division 2 Hearing). His Honour concluded that Mr Bentley should be released to the community subject to conditions imposed under s 17(1)(b) of the DSO Act. Those conditions were specified in the Supervision Order. In particular, condition 49 of the Supervision Order provides that Mr Bentley is not to 'enter any residential address in which a female resides or is known to reside, unless authorised in advance by a [community corrections officer]'.
On 24 July 2018, Mr Bentley attended a case management meeting. He reported having accompanied a woman, who he referred to as 'Dee', to a house in East Perth the previous day. Another man had been at the house and Mr Bentley stated he thought he was permitted to be with Dee provided someone else was also present. Mr Bentley recorded the meeting in the diary he is required to keep under the Supervision Order.
Mr Bentley's case manager reported the matter to the Sexual Offender Management Squad (SOMS). The report was investigated and a statement obtained from 'Dee'. She identified herself as Dawnella Freeman.
Ms Freeman confirmed that she had met Mr Bentley a number of times at the Tranby Centre and that on 23 July 2018 they had left the centre together and had a coffee. They went to a park and then obtained food. Subsequently, they walked back to a house in Mt Lawley at which Ms Freeman was squatting with another man who she referred to as 'Coach'. They went into a room occupied by Ms Freeman which was separate to the room occupied by Coach. Mr Bentley stayed for about an hour talking to Ms Freeman. Mr Bentley told Ms Freeman, among other things, that he had been in prison for 17½ years and Ms Freeman inferred 'he must have been locked up for sex crimes'. He also told her that 'he wasn't allowed to be anywhere with someone else alone unless there was another person there and because Coach was in the house he felt he was okay'. He said he was not to be alone with a female.
Ms Freeman added in her statement:
Chris and I didn't have sex but we mucked around together a bit.
It was just a bit of touching and kissing but nothing more than that.
Chris was getting pretty paranoid and looking around was scared the police would come at any time. He appeared on edge.
Chris just left because he was getting so paranoid.
Mr Bentley was subsequently interviewed on 25 July 2018 by police officers attached to SOMS. He made no admissions as he had been advised by his lawyer not to make a statement to the police.
Mr Bentley was subsequently charged with an offence under s 40A(1) of the DSO Act: 'that being subject to a Supervision Order who, without reasonable excuse, contravenes a requirement of the order by entering a residential address with a female who resides at the address without authorisation in advance from his community corrections officer'. He pleaded guilty to that charge in this court on 29 August 2019. He had been held in custody since 25 July 2018.
The DSO Act
Section 40A(1) of the DSO Act provides that a person subject to a supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence. The maximum penalty for the offence is two years' imprisonment.
Part 2, div 4 of the DSO Act concerns contraventions of a supervision order. The division provides that a person who is subject to a supervision order may be brought before a magistrate where a member of the police force or community corrections officer reasonably suspects that the person is likely to contravene, is contravening, or has contravened, a condition of the order. If satisfied that there are reasonable grounds for suspecting a contravention or likely contravention, the magistrate must issue a summons or warrant requiring the person to appear or be brought before this court for the purpose of considering the suspected or anticipated contravention.
The DPP may also apply to this court for an order under s 23 of the DSO. Section 23 provides that:
(1)If, on the hearing of an application under section 22, the court is satisfied, on the balance of probabilities, that the person 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 person; or
(b)subject to subsection (1B), make an order amending the conditions of the supervision order, or extending the period for which the person is to be subject to the supervision order, or both; or
(c)subject to subsection (1B), make an order affirming the supervision order without amendment or extension.
(1A)If, on the hearing of an application under section 22, the court is satisfied, on the balance of probabilities, that the person to whom the application relates is likely to contravene a condition of a supervision order, the court must —
(a)rescind the supervision order and make a continuing detention order in relation to the person; or
(b) subject to subsection (1B), make an order —
(i) amending the conditions of the supervision order; or
(ii) both amending the conditions of, and extending the period for which the person is to be subject to, the supervision order.
(1B)A court cannot make an order under subsection (1)(b) or (c) or (1A)(b) unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions or amended standard conditions of the supervision order.
(1C)The onus of proof as to the matter described in subsection (1B) is on the person to whom the application relates.
(2)In deciding which order to make under subsection (1) or (1A), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 40B of the DSO Act provides that a court of summary jurisdiction dealing with the charge of an offence under s 40A(1) must, on an application made by a police officer or the DPP, transfer the charge to the Supreme Court if proceedings have been commenced under pt 2, div 4. The DPP must prosecute the charge in the Supreme Court and a judge of the Supreme Court must deal with the charge summarily under the Criminal Procedure Act 2004 (WA) as if it were a prosecution of a simple offence in a court of summary jurisdiction. Section 40B(4) further provides that any findings of fact by the Supreme Court in the proceedings on the charge may be used in proceedings under pt 2, div 4 and, upon conviction, the sentencing of the offender may be adjourned until the proceedings under pt 2, div 4 are completed.
The appellant's history of offending and antecedents
Mr Bentley was born on 30 July 1962 and is, accordingly, 56 years of age. He had a history of drug use and alcohol abuse prior to being sentenced to a lengthy term of imprisonment in 2002. He has been involved in three long-term relationships from which he has three children. He has a history of engaging in numerous brief or short-term sexual relationships: State of Western Australia v Bentley [36].
Mr Bentley has an extensive criminal history involving convictions in Victoria, Tasmania, Queensland, New South Wales, the Northern Territory and Western Australia. He was first convicted of a criminal offence as an adult in 1979. His criminal record shows a persistent history of antisocial behaviour with numerous convictions for offences of dishonesty, assault and property damage. He has convictions in Western Australia for possessing prohibited drugs, assault, resisting arrest, breaking and entering a building with intent, property damage and offences against the Road Traffic Act 1974 (WA).
In May 2002, Mr Bentley was convicted of four offences committed in June 2000: two counts of sexual penetration, one count of unlawful detention and one count of threat to harm with intent to prevent the doing of an act. The victim of those offences was aged 16 years and was known to Mr Bentley. The offences were accompanied by illicit drug use.
In November 2002, Mr Bentley was convicted of a number of further offences: seven counts of sexual penetration without consent in circumstances of aggravation; three counts of armed robbery; two counts of unlawful detention; one count of burglary and two counts of stealing. The offences were committed on the same day in March 2001 and involved two victims and two separate episodes of offending that occurred shortly after each other.
Mr Bentley successfully appealed against the sentences imposed for the offences for which he was convicted in November 2002. He was resentenced to a total effective sentence of 16 years 4 months for all of the offences in respect of which he was convicted and sentenced in 2002.
As mentioned, in the Division 2 Hearing, McGrath J found that Mr Bentley was a serious danger to the community but should be released to the community subject to the Supervision Order. His Honour noted in making those findings that:
(a)Mr Bentley was 37 when he committed the sexual offences in June 2000 and 38 when he committed the further sexual offences in March 2001. He had no prior history of sexual offending.
(b)It could be inferred from the offences committed by Mr Bentley that he had a tendency to commit serious sexual offences against women. However, there was no obvious pattern to his offending except that it involved women.
(c)Mr Bentley had completed the Intensive Sexual Offender Treatment Program (ISOTP) in 2015. However, Mr Bentley demonstrated some hostility towards the program claiming that it caused trauma. He also completed the Pathways (Drug and Alcohol) Program.
(d)Dr Wojnarowska considered Mr Bentley suffered from a psychotic disorder not otherwise specified which was in remission at the time she examined him. He also suffered from a narcissistic personality disorder with strong antisocial traits; psychosocial environmental problems that, in part, reflected difficult childhood experiences, including sexual assault as a child; and problems with intimate relationships primarily due to his narcissistic and psychopathic traits.
(e)Dr Wojnarowska considered Mr Bentley remained at a high risk of sexually offending but the risk could be managed in the community with appropriate supervision and treatment.
(f)Dr Wynn Owen diagnosed Mr Bentley as suffering from a substance abuse disorder, a personality disorder with antisocial and narcissistic features and a relapse in paranoid psychosis associated with thought disorder and persecutory and grandiose delusional beliefs.
(g)Dr Wynn Owen considered that Mr Bentley's risk of future serious sexual offending was high if he did not abstain from drug use and did not receive ongoing mental health reviews.
(h)Ms Hanson, a forensic psychologist, identified a number of treatment needs, particularly around Mr Bentley's inability to establish satisfactory relationships, drug use and his mental health generally. However, in her opinion, Mr Bentley did not present with any clear deviant sexual interest. She noted that Mr Bentley had in the past expressed hostility towards counselling and treatment programs and she was concerned that this attitude could present problems if he was released into the community under supervision.
Justice McGrath concluded that the community could be adequately protected by appropriate conditions imposed on Mr Bentley's release. His Honour was further satisfied, on the balance of probabilities, that Mr Bentley would substantially comply with the standard conditions contained in a supervision order. Stringent conditions could be imposed to ensure that Mr Bentley did not use illicit substances and to monitor his relationships. Mr Bentley's mental health issues would be treated with compulsory medication and he would be required to use a GPS monitor.
The evidence in the s 23 Application
Dr Wynn Owen
Dr Wynn Owen provided a report dated 3 December 2018 for the purpose of the s 23 Application. He noted that Mr Bentley had attended counselling sessions with a forensic psychologist following his release to the community and he had also attended two appointments with a psychiatrist. There was no indication that he had used alcohol or any prohibited drug since his release.
Dr Wynn Owen concluded:
In the approximately eight weeks Mr Bentley spent in the community, from May to July 2018, he was subject to a number of stresses, probably the most significant of which was community reintegration after 17 years in prison and associated institutionalisation. Stress is also included in the failure of the hoped for relationship and loss of companionship with a woman who had been a friend for more than 10 years; particularly coming to terms with supervision conditions; sensitivity and resentful reactions to the management of communication styles of some members of the supervision team … Mr Bentley used relaxation techniques, meditation, writing, reading, exercise and returning to his unit when feeling overwhelmed to manage these stresses and was regarded by his treating psychologist as demonstrating effective stress management. In this context Mr Bentley acknowledges breaching condition 49 of his Order, reportedly through misunderstanding the condition. As he was not intoxicated at the time (or using illicit drugs at all while in the community) and mentally stable and an actively mental health follower, the situation does not appear to affect the pattern of his past sexual offending.
Dr Wynn Owen stated in his oral evidence that he had examined Mr Bentley for the purpose of the s 23 Application. He had previously examined Mr Bentley on three occasions for the purpose of giving evidence in the Division 2 Hearing.
Dr Wynn Owen considered that the risk of Mr Bentley committing a serious sexual offence had not changed between the Division 2 Hearing and the hearing of the s 23 Application.[1] He remained at a high risk of serious sexual offending in the future, particularly if he used methylamphetamine or his mental health deteriorated. However, he considered that the risk of Mr Bentley offending could be adequately managed in the community, particularly with the additional conditions that had been proposed as a result of the contravention of the supervision order.[2]
[1] ts 210.
[2] ts 220.
In relation to the contravention, Dr Wynn Owen did not consider that the situation disclosed a high risk of offending. Mr Bentley had been reasonably open with Ms Freeman about his circumstances; he was not intoxicated and did not display any signs of mental instability.
Dr Wynn Owen noted that Mr Bentley had acknowledged experiencing considerable anxiety and discomfort on returning to the community after such a long period in custody. Mr Bentley found the conditions of the supervision order to be extremely onerous and felt some discomfort in dealing with SOMS. He was anxious not to be seen as a child sex offender.
However, Dr Wynn Owen also considered that Mr Bentley's understanding of the Supervision Order and the need to strictly comply with its conditions had been reinforced by the further time spent in custody following the contravention. Mr Bentley had not returned any positive result on urine analysis and there was no indication of a deterioration in his mental state. He had endeavoured to implement some strategies to cope with the anxiety and stress of being in the community.
Dr Poli
Dr Poli is a senior forensic psychologist with the Department of Justice. She provided a report dated 14 November 2018 for the purpose of the s 23 Application. The report was very comprehensive and counsel for the DPP and for Mr Bentley did not take issue with the opinions expressed by Dr Poli.
Dr Poli stated that Mr Bentley's engagement in individual counselling since his release into the community had progressed steadily. He appeared to have developed some self-management strategies to assist him to cope in the community and he had been able to utilise those strategies to withstand minor stresses. He had engaged in a number of positive recreational activities and had displayed reasonable insight into his presentation at a time when he first experienced a known psychotic episode.
However, his treatment needs, as identified in previous reports provided to the court, remained. In particular, he lacked awareness of high risk situations that might leave him vulnerable to reoffending sexually. The contravention involving Ms Freeman highlighted the desirability of monitoring his relationships – isolation and the need to connect with others were factors that apparently contributed to Mr Bentley's offending in 2000 and 2001.
Dr Poli made a number of recommendations concerning Mr Bentley's future treatment on his release to the community. Those recommendations reflected her assessment of Mr Bentley's personality traits and his history of mental illness.
Dr Poli reported in her oral evidence that it appeared Mr Bentley's engagement with his counsellor had been positive and he had reported feeling comfortable with his counsellor. She confirmed that a mental state examination of Mr Bentley had been conducted for the purpose of preparing her report and there was nothing in the examination that was inconsistent with the conclusions and diagnoses that had been reached by Dr Wynn Owen and Dr Wojnarowska (who had provided a report for the purpose of the Division 2 Hearing).
Dr Poli did not consider that, as a forensic psychologist, it was appropriate for her to undertake an assessment of the risk of Mr Bentley committing a serious sexual offence in the future. However, she confirmed that Mr Bentley's treatment needs could be met in the community.
Accommodation
At the hearing on 11 December 2018, Ms Yun stated that there was no suitable accommodation available for Mr Bentley should he be released to the community. I indicated to Mr Bentley's counsel that the lack of suitable accommodation could be a significant factor in determining whether the community could be adequately protected if Mr Bentley was released from custody. At the request of Mr Bentley's counsel, I agreed to adjourn the application to enable further enquiries to be made about the availability of accommodation.
The hearing of the s 23 Application was reconvened on 13 February 2019 after the court and the parties were advised that suitable accommodation for Mr Bentley had been identified. The court was provided with the results of a 'Desktop Analysis' on the proposed accommodation.
Disposition
As noted, Dr Wynn Owen considered the risk of Mr Bentley committing a serious sexual offence in the future had not changed between the making of the supervision order and the s 23 Application. He further considered that the risk could be adequately managed while Mr Bentley remained in the community subject to the supervision order. Mr Bentley had been returned to custody upon his contravention of the order and that had emphasised to him the necessity of strictly complying with the conditions on which he had been released to the community.
In relation to his contravention of the supervision order, I note that Mr Bentley:
(a)advised Ms Freeman that he had been in prison for a lengthy time and conveyed sufficient information for her to conclude he had committed sex offences in the past;
(b)advised Ms Freeman he was only permitted to be with her because there was another male in the house;
(c)recorded having being with Ms Freeman in his diary; and
(d)advised his case manager the following day that he had been with Ms Freeman.
Those matters indicate that Mr Bentley had an understanding of the purpose of the Supervision Order and the limitations it was intended to impose. His understanding of the precise terms of the order was not perfect, but his behaviour does not appear to have been deceptive or intended to manoeuvre Ms Freeman into a situation where she was at risk. He reported what had occurred with reasonable accuracy.
At the completion of the hearing of the s 23 Application, I concluded that:
(a)the community would be adequately protected if the Supervision Order was not rescinded and Mr Bentley was released to the community;
(b)the Supervision Order ought to be amended to incorporate further conditions proposed by the DPP;
(c)on the balance of probabilities, Mr Bentley will substantially comply with the standard conditions of the Supervision Order.
I reached those conclusions having regard to the following matters:
(a)the expert evidence presented in the Division 2 Hearing;
(b)the findings made by McGrath J in the Division 2 Hearing;
(c)the opinions expressed by Dr Wynn Owen and Dr Poli in the s 23 Application;
(d)the nature of Mr Bentley's contravention of the Supervision Order, including the fact that he reported being with Ms Freeman;
(e)the consequences of the contravention for Mr Bentley and the effect that is likely to have had in reinforcing the need for compliance with the Supervision Order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to the Honourable Justice Corboy25 MARCH 2019
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