The State of Western Australia v Bentley [No 3] - [2019] WASC 474

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BENTLEY [No 3] [2019] WASC 474
CORAM:   CORBOY J
HEARD:   21, 28 NOVEMBER 2019 & 3 DECEMBER 2019
DELIVERED          :   3 DECEMBER 2019
PUBLISHED           :   24 DECEMBER 2019
FILE NO/S:   DSO 3 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution

AND

CHRISTOPHER JOHN BENTLEY
Accused

Catchwords:

Criminal law – Dangerous sexual offender – Application for interim release order – 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:

Dangerous Sex Offenders Act 2006 (WA), s 24A

Result:

Application granted

Category: B

Representation:

Counsel:

Prosecution	:	Mr B D Meertens
Accused	:	Ms M Sandars (21 November 2019), Ms S J Oliver (28 November 2019 and 3 December 2019)

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Justine Fisher Barristers & Solicitors

Case(s) referred to in decision(s):

The State of Western Australia v Bentley [2018] WASC 135

CORBOY J:

(These reasons were delivered orally on 3 December 2019 and have been edited for publication.)

Background

In May 2018, Mr Bentley was found to be a serious danger to the community pursuant to s 7(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). He was released to the community subject to a supervision order made under s 17(1)(b) of the DSO Act (the Supervision Order).[1]
[1] The State of Western Australia v Bentley [2018] WASC 135.
In August 2018, Mr Bentley pleaded guilty to a contravention of the Supervision Order. He entered a residence with a female who resided at the address without prior authorisation from his Community Corrections Officer. It is relevant to note that Mr Bentley reported the incident to his case manager the following day and there was no allegation of inappropriate conduct by Mr Bentley. He was charged with the contravention after his case manager reported the incident to the Sexual Offender Management Squad (the First Contravention).
Following the First Contravention, the State applied for an order under s 23 of the DSO Act. At the hearing of the application, the State conceded that the Supervision Order should be amended rather than rescinded. I accepted that concession having regard to the nature of the contravention, the circumstances in which it was committed and the time Mr Bentley had spent in custody following his arrest.
Mr Bentley was released back to the community on 13 February 2019, subject to the Supervision Order as amended at the s 23 hearing. Relevantly, condition 30 of the Supervision Order provides that Mr Bentley is not to possess, consume or use any prohibited drug including methylamphetamine. Condition 42 of the Supervision Order requires Mr Bentley to attend for, and submit to, urinalysis testing for prohibited drugs as directed by a community corrections officer or a police officer.
On 28 May 2019, Mr Bentley provided a sample of urine pursuant to condition 42 of the Supervision Order. The sample returned a positive result for methylamphetamine and amphetamine. The recorded concentrations were 1,120 mg per litre for amphetamine and 2,392 mg per litre for methylamphetamine. Mr Bentley was subsequently charged with having committed an offence by contravening the Supervision Order contrary to s 40A(1) of the DSO Act (the Second Contravention). He pleaded guilty to the charge on 14 August 2019 and was fined $500. The sentencing judge took into account that Mr Bentley had then been in custody for 76 days in imposing the fine.

The Contravention Application

On 18 June 2019, the State made an application under s 23 of the DSO Act (the Contravention Application). The Contravention Application is listed for hearing on 30 and 31 January 2020 (the Contravention Hearing).
The State has filed a book of materials for the purpose of the Contravention Hearing. The book of materials includes particulars of the contravention for which Mr Bentley was convicted; a psychiatric report prepared by Dr Wynn Owen; a treatment progress report provided by a senior counselling psychologist, Ms Wilson-Brown; and a performance report provided by a senior Community Corrections Officer, Ms Comery.
The State has subsequently filed amended particulars of contravention alleging a further contravention of the Supervision Order. That alleged contravention has not been the subject of a charge. The State has also filed a supplementary report by Dr Wynn Owen.

The Interim Release Application

Mr Bentley has made an application pursuant to s 24A of the DSO Act for an interim release order pending the determination of the Contravention Application (the Interim Release Application).
The Interim Release Application is supported by affidavits made by Mr Bentley and his solicitor, Ms Pearson. So far as is relevant, s 24A of the DSO Act provides that:
24A.Orders made during contravention proceedings
(1)This section applies if a person who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 22 in respect of the person are pending (the pending proceedings).
(2)The court may at any time in the pending proceedings -
(a)if the person is detained in custody, order the person to be released, subject to subsection (3); or
(b)if the person is not detained in custody, order the person to be detained in custody.
(3)The court cannot order the person to be released unless it is satisfied, on the balance of probabilities -
(a)that releasing the person is justified by exceptional circumstances; and
(b)that the person will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (5)(b).
(3A)The onus of proof as to the matter described in subsection (3)(b) is on the person.
(4A)For the purposes of subsection (3), in considering whether releasing the person is justified by exceptional circumstances the court may, as it thinks fit, receive and take into account information put before it, whether or not that information would normally be admissible in a court of law.
(4)In making a decision under subsections (2) and (3), the paramount consideration is to be the need to ensure adequate protection of the community.
(5)If the court releases the person -
(a)the person remains subject to the supervision order; and
(b)the court, before the pending proceedings are determined, may make an interim order amending the supervision order to include any requirements the court considers appropriate to ensure adequate protection of the community; and
(c)the court may order the person to reappear before the court at any adjourned hearing of the pending proceedings; and
(d)if it is alleged that the person has further breached the supervision order or breached an order made under paragraph (c), the court may issue a warrant to have the person arrested and brought before the court.

Exceptional circumstances

Mr Bentley identified two circumstances that he contended were exceptional for the purpose of s 24A(3)(a) of the DSO Act: first, delay and the time spent in custody pending the determination of the Contravention Application; and second, the effect that delay will have on his entitlement to be offered public housing. The State conceded that the second of those circumstances was exceptional having regard to Mr Bentley's position on a Homeswest waitlist. I accept that the State's concession was appropriate.
Briefly stated, Mr Bentley has been on a Homeswest waitlist for approximately eight years. He is near or at the top of the list. However, he will not be offered any suitable accommodation that might become available while he remains in custody and he will be relegated to the bottom of the list if he is not in a position to accept an offer of accommodation by January 2020. Consequently, the effect of Mr Bentley remaining in custody pending the determination of the Contravention Application is that he will lose the priority for public housing that he has acquired over a period of approximately eight years.
This court has commented in the past about the lack of appropriate accommodation for dangerous sexual offenders and the impact that the scarcity of accommodation can have on deciding whether the community will be adequately protected if an offender is released subject to a supervision order. There have been cases where the lack of suitable accommodation has been either a decisive or significant factor in determining whether a continuing detention or supervision order should be made. In this case, the loss of Mr Bentley's priority for public housing could significantly and adversely affect his interests in the Contravention Application regardless of the merits of the State's position in the application.

Substantial compliance with conditions of the Supervision Order

Notwithstanding the State's concession, an interim release order can only be made if, on the balance of probabilities, the court is satisfied that Mr Bentley will substantially comply with the standard conditions of the Supervision Order. The standard conditions of a supervision order are those conditions the court must impose pursuant to s 18(1) of the DSO Act. That section provides:
18.Conditions of supervision order
(1)If the court makes a supervision order against a person, the order must require that the person -
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person'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 person'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, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); 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 sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order; and
(g)be subject to electronic monitoring under section 19A.
There are two points to be made about the standard conditions. First, the standard conditions do not include a requirement that the offender remain drug free – although, it is the experience of this court that the consumption of illicit substances such as methamphetamine is frequently identified as a risk factor for sexual offending. That is so in relation to Mr Bentley. He has a history of drug use and substance abuse that has been identified as a factor increasing the risk for him committing a serious sexual offence.
Second, it has not been suggested that Mr Bentley has not, or will not, comply with the standard conditions of the Supervision Order other than the requirement that he comply with any reasonable direction of his Community Corrections Officer.

Need to ensure adequate protection of the community

A further and related point should also be noted. Although s 24A(3) of the DSO Act only refers to substantial compliance with the standard conditions of a supervision order, s 24A(4) provides that the paramount consideration in determining an application for interim release is the need to ensure adequate protection for the community.
Neither party addressed the interaction between s 23A(3) and s 24A(4) of the DSO Act. However, in my view, the effect of s 24A(4) is that the court can consider the likelihood of an offender not complying with the conditions of a supervision order, other than the standard conditions, in determining what is necessary to ensure the community is adequately protected.

Whether Mr Bentley will comply

There is information in the material filed in the Contravention Application that raises concerns about Mr Bentley's willingness to comply with the directions of his Community Corrections Officer and the conditions of the Supervision Order.
The DSO performance report states that there have been problems associated with Mr Bentley's compliance with condition 20 of the Supervision Order (not to delete data from any computer or electronic storage device in his possession without prior permission from a community corrections officer or the police) and condition 53 (not to be in possession of pornographic material).
Further, Mr Bentley has formed a relationship with a person he met on a dating site, Ms M. According to the DSO performance report there were issues regarding Mr Bentley's willingness to comply with directions regulating contact with Ms M.
Ms M is aware of Mr Bentley's status as a dangerous sexual offender who is subject to a supervision order and the relationship is ongoing. Mr Bentley and Ms M plan to live together if Mr Bentley is released to the community.
There are other aspects of the relationship between Mr Bentley and Ms M that are of concern to Community Corrections. In particular, Ms M reports that her son has an addiction to methamphetamine. It is alleged that Mr Bentley has advised him on how to avoid a positive result on drug testing when applying for employment. Ms M has advised that she does not permit her son to bring drugs to her house but there is a concern about Mr Bentley's possible association with Ms M's son given Mr Bentley's recent contravention of the Supervision Order by consuming methamphetamine.
Moreover, there has been conflict between Mr Bentley and his community corrections officer which is focused on the relationship with Ms M. Community Corrections are concerned that Mr Bentley has displayed a belligerent attitude towards supervision. In particular, it is reported that Mr Bentley has resented the restrictions that have been imposed on the time that he can spend with Ms M. Those concerns raise an issue regarding the likelihood of Mr Bentley complying with directions given by his community corrections officer.
Mr Bentley's affidavit dealt with several matters I raised at the initial hearing of the Interim Release Application: the circumstances surrounding his use of methylamphetamine; the allegation that he contravened the Supervision Order by deleting data from his mobile phone; his relationship with Ms M; the allegation that he advised Ms M's son on how to defeat drug testing; and the extent to which any involvement with Ms M's son might pose a risk of further use of illicit substances.
Mr Bentley was cross‑examined on his affidavit at the resumed hearing of the Interim Release Application. I do not propose to summarise the detail of Mr Bentley's evidence. It is sufficient to note that, first, Mr Bentley conceded that he had given an account of the circumstances in which he consumed methylamphetamine to Community Corrections and Dr Wynn Owen that sought to minimise the seriousness of his contravention. Contrary to the information he had previously provided, he admitted he had taken a few puffs from a methamphetamine pipe that had been offered to him by a person he encountered at a train station.
Second, Mr Bentley accepted that text messages, emails and other data had been deleted from his mobile phone by Ms M, a matter that was apparently confirmed by conversations between Mr Bentley and Ms M that were recorded while Mr Bentley has been held in custody. Mr Bentley contended that the deletion of the data by Ms M was not a contravention of the Supervision Order as his mobile phone was not in his possession at the relevant time and he was not the person who had deleted the data.
Third, Mr Bentley conceded he had told Ms M's son that he would not return a positive test for methamphetamine when required to undertake drug testing if he took a particular herb. Mr Bentley maintained that he had given Ms M's son that advice because he was anxious for him to obtain employment to assist in his rehabilitation.
Fourth, Mr Bentley acknowledged that there had been difficulties between himself and his Community Corrections officer. His relationship with the officer was the subject of recorded discussions between Mr Bentley and Ms M while Mr Bentley has been held in custody.
It is clear that Mr Bentley and Ms M resent the limitations that have been imposed on their relationship and that this has caused friction between Mr Bentley and his Community Corrections officer. On the other hand, Mr Bentley made comments to Ms M in the recorded conversations to the effect that another Community Corrections officers could have been even more difficult.
The State submitted that the matters admitted by Mr Bentley in cross‑examination establish that he was not to be trusted and that he was willing to behave in a deceptive and devious manner so that it could not be concluded that he would substantially comply with any direction given by a community corrections officer.
It is difficult to reach a concluded view about that submission on the evidence that has been received in the Interim Release Application. For example, Dr Wynn Owen expressed the opinion in his psychiatric report that Mr Bentley's methamphetamine use was evidence of high risk behaviour which indicated an increase in the risk of offending. He considered the breach to be serious as it 'potentially commences the path to offending'.
Dr Wynn Owen was subsequently provided with a copy of the transcripts of the recorded calls made between Mr Bentley and Ms M while Mr Bentley was in custody. In an addendum to his psychiatric report, he noted that there was no doubt that Mr Bentley had requested Ms M delete material from his mobile phone. However, he added that there were 'some positives indicated by the recorded conversations'. In particular, the conversations demonstrated a supportive relationship between Mr Bentley and Ms M and that the relationship was a protective factor that reduced the risk of Mr Bentley offending in the future.
Dr Wynn Owen was not examined on his reports in the Interim Release Application. Accordingly, it is not possible to ascertain what, if any, effect Mr Bentley's evidence in the application might have on Dr Wynn Owen's opinions.
Further, the concessions and admissions made by Mr Bentley in cross‑examination were made frankly and without equivocation. That approach might be interpreted in ways that are favourable or unfavourable to Mr Bentley. However, I accept that the evidence given by Mr Bentley in cross‑examination suggests he is willing to interpret the conditions of the Supervision Order in a self‑interested, perhaps cynical way. He does not appear to have fully accepted the finding of this court that the many conditions imposed by the Supervision Order are necessary to ensure that the community is adequately protected on his release. Accordingly, there were aspects of Mr Bentley's evidence that cause concern. However, I am unable to reach any concluded view. The evidence before me was necessarily confined because of the interlocutory nature of the Interim Release Application.

Conclusion

After carefully considering the State's submissions, I have concluded that the interim release order should be made having regard to the following matters. First, the DSO performance report refers to instances where the signal from Mr Bentley's GPS device had been lost. Mr Bentley either immediately communicated or was successfully contacted when that occurred and it does not appear that he has sought to evade the conditions of the Supervision Order that require electronic monitoring.

Second, as has been mentioned, the Contravention Hearing is listed for 30 and 31 January 2020. It is apparent from the evidence that Mr Bentley is acutely aware of the conditions of the Supervision Order and, in my view, it is unlikely that he would jeopardise his prospects of remaining in the community by failing to substantially comply with a direction from his Community Corrections officer in the relatively short time until the Contravention Hearing. Similarly, it is unlikely that he would fail to substantially comply with the standard or other conditions of the Supervision Order in the short time prior to the hearing.
Third, Mr Bentley has been frank in disclosing his status and history to Ms M and, for the purpose of the Interim Release Application, I accept the observation of Dr Wynn Owen that a supportive relationship with Ms M is likely to be a protective factor. I stress that I have accepted that opinion only for the purpose of the Interim Release Application as Dr Wynn Owen's opinions have been expressed without the benefit of the further evidence. Dr Wynn Owen gave evidence at the division 2 hearing in April 2018 at which the Supervision Order was made. The view that Mr Bentley's relationship with Ms M is a positive protective factor apparently accords with the opinions expressed by Dr Wynn Owen in the division 2 hearing. In particular, Dr Wynn Owen considered that Mr Bentley required ongoing treatment in relation to, among other things, developing prosocial skills and behaviours, in particular in interpersonal interactions and in recognising and seeking intimacy.[2]
[2] The State of Western Australia v Bentley [2018] WASC 135, [96].
I am satisfied on the balance of probabilities that Mr Bentley will substantially comply with the standard conditions of the Supervision Order for the relatively short time until the hearing of the Contravention Application. I am further satisfied that the community will be adequately protected by the provisions of the Supervision Order until the hearing of the Contravention Application. It goes without saying that the views that I have expressed should not be taken as an indication of what findings might, or should, be made in determining the Contravention Application at the Contravention Hearing.
However, there is one further matter. My Associate received an email from Mr Meertens on 20 November 2019 containing advice from Ms Cassam about what steps would be needed to be undertaken if Mr Bentley was to be released on an interim release order and he was to be permitted to reside with Ms M. I do not propose to amend the terms of the Supervision Order. Therefore, it is a matter for Community Corrections under the terms of the Supervision Order as to whether Mr Bentley should be permitted to reside fulltime with Ms M. If so, it is a matter for Community Corrections as to what steps need to be undertaken to enable that to occur, in particular, the steps identified in the advice from Ms Cassam to Mr Meertens which have also been communicated to my Associate.
If I am advised by Mr Meertens, on behalf of the State, that Community Corrections are willing to allow Mr Bentley to reside fulltime with Ms M at her residence, and the arrangements necessary for that to occur have been completed, I will make an order releasing Mr Bentley without further appearance; that is, on the papers. If there is any difficulty in relation to that matter, then the Interim Release Application may be brought back before me for further submissions.

Orders

I will make an interim order pursuant to s 24A of the DSO Act, releasing Mr Bentley to the community subject to the Supervision Order made on 4 May 2018 and as amended on 13 February 2019 and as further amended in paragraph 8. The publication of that address in paragraph 8 will be suppressed.

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 Corboy
24 DECEMBER 2019