The State of Western Australia v Bentley [No 4]
[2020] WASC 102
•1 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BENTLEY [No 4] [2020] WASC 102
CORAM: MCGRATH J
HEARD: 30 & 31 JANUARY 2020
DELIVERED : 1 APRIL 2020
FILE NO/S: DSO 3 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CHRISTOPHER JOHN BENTLEY
Respondent
Catchwords:
Criminal law - Dangerous sexual offender – Contravention of supervision order – Application to rescind, affirm, extend or amend supervision order – Supervision order amended
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Supervision order amended
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Ms S J Oliver |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Justine Fisher Barristers & Solicitors |
Case(s) referred to in decision(s):
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
The State of Western Australia v Bentley [2018] WASC 135
The State of Western Australia v Bentley [2019] WASCR 91
The State of Western Australia v Bentley [No 2] [2019] WASC 95
The State of Western Australia v Bentley [No 3] [2019] WASC 474
MCGRATH J:
Mr Bentley is subject to a supervision order made under s 17(1)(b) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). The State applies for an order under s 23 of the Act that the supervision order be rescinded for reason of contravention and that Mr Bentley be subject to a continuing detention order or, alternatively, that the amended supervision order should be further amended.[1]
[1] Application by the State of Western Australia dated 18 June 2019.
On 14 August 2019, Mr Bentley pleaded guilty to one charge against s 40A(1) of the Act, which alleged that between 14 and 28 May 2019 at Perth, without reasonable excuse, Mr Bentley contravened a requirement of the amended supervision order by consuming or using a prohibited drug or substance, namely amphetamine and methylamphetamine (the breach offence).[2] On 14 August 2019, I imposed a $500 fine for that offending.
[2] ts 3 (14/08/2019).
At the contravention hearing, the State relied upon a further alleged contravention, being that between 6 May 2019 and 9 August 2019, Mr Bentley contravened the amended supervision order by procuring his partner, Ms M, to delete data from an electronic storage device without prior permission from a community corrections officer or the WA Police.[3] Subsequent to the contravention hearing, the State withdrew the second contravention allegation relying only on the one contravention.[4]
[3] Applicant's Outline of Submissions for Contravention Hearing dated 29 January 2020.
[4] Applicant's Supplementary Outline of Submissions for Contravention Hearing dated 10 February 2020.
For the following reasons I have determined that Mr Bentley should be released into the community subject to an amended five year supervision order with 58 conditions pursuant to s 17(1)(b) of the Act.
In these reasons for decision, I will consider the following:
1.The relevant legal principles.
2.The procedural history.
3.The antecedents and history of offending of Mr Bentley.
4.The evidence received at the contravention hearing.
5.The alleged contraventions and findings.
6.An assessment and determination of the proceedings.
Relevant legal principles
Section 40A(1) of the 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 2 years' imprisonment.
Part 2 div 4 of the 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 a community corrections officer reasonably suspects that the person is likely to contravene, is contravening, or has contravened, a condition of the order.[5] 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.[6]
[5] Dangerous Sexual Offenders Act 2006 (WA), s 21(1).
[6] Dangerous Sexual Offenders Act 2006 (WA), s 21(2).
Section 22(2) of the Act provides that the DPP may, in certain circumstances, commence contravention proceedings under s 23 of the Act. It is not in dispute that the preconditions for commencing the contravention proceedings were satisfied.
Section 23 of the Act was amended by the Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA), which came into operation on 29 March 2018 (before these contravention proceedings were commenced). There is no dispute in these proceedings that the amended s 23 applies. Section 23 of the Act relevantly states:
(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.
…
(1B)A court cannot make an order under subsection (1)(b) or (c) … 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) …, the paramount consideration is to be the need to ensure adequate protection of the community.
Accordingly, if the court is satisfied, on the balance of probabilities, that the respondent has contravened or is contravening a supervision order it 'must' make one of the orders in s 23(1)(a), (b) or (c). Prior to the amendments the Act stated that the court 'may' make one of the orders.
Section 23(1B) of the Act prevents the court from amending or affirming the amended supervision order unless satisfied on the balance of probabilities that the respondent will substantially comply with its standard conditions or amended standard conditions. A standard condition, in relation to a supervision order, means a condition which under s 18(1) of the Act must be included in a supervision order. Section 18(1) provides that a supervision order must require the person to whom it applies to:
(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 two 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.
The words 'will substantially comply with' in s 23(1B) should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.[7]
[7] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52] (Fiannaca J).
The onus of proof that the person will substantially comply with the standard conditions of a supervision order is on the person to whom the application relates.[8] Given that the respondent has the legal burden of establishing that he will substantially comply with the standard conditions of the supervision order, the respondent also has the evidential burden.[9] In determining whether the respondent has discharged the burden the court must have regard to all relevant and admissible evidence adduced in the proceedings.
[8] Dangerous Sexual Offenders Act 2006 (WA), s 23(1C).
[9] Braysich v The Queen [2011] HCA 14 [35]; (2011) 243 CLR 434, 454 (French CJ, Crennan & Keifel JJ).
It remains the case that the provisions of pt 2 div 4 of the Act, which includes s 23, assume that a person in respect of whom a supervision order is extant continues to be a serious danger to the community for the purposes of the Act. The court is not required to make that determination. Prior to the amendments, s 23(1)(b) stipulated that the court had to be so satisfied before it could make a continuing detention order.
The State alleged, and Mr Bentley did not dispute, that he contravened the amended supervision order by committing the breach offence.
Consequently, I have to decide whether to rescind the amended supervision order and make a continuing detention order or affirm, extend or amend the supervision order.
Given the applicable legal principles the following two issues must be determined:
1.I must be satisfied on the balance of probabilities that Mr Bentley will substantially comply with the standard conditions of the supervision order.
2.I must be satisfied that if Mr Bentley is released on a supervision order that the community will be adequately protected. If not, then Mr Bentley must be detained.
Procedural history
On 7 September 2017, the State made an application for Mr Bentley to be declared a dangerous sexual offender under the Act. On 22 January 2018, Jenkins J heard the div 1 hearing and made orders under div 1 of the Act.[10]
[10] The State of Western Australia v Bentley [2018] WASC 30.
On 4 May 2018, I made orders declaring that Mr Bentley was a dangerous sexual offender under div 2 of the Act.[11] Mr Bentley was released on a supervision order of 5 years duration with 53 conditions.
[11] The State of Western Australia v Bentley [2018] WASC 135.
On 25 July 2018, Mr Bentley was arrested and charged with an offence of contravening a condition of the supervision order contrary to s 40A of the Act. The contravention involved Mr Bentley attending an address in Mount Lawley with a female without prior approval of a community corrections officer, in contravention of condition 49 of the first supervision order which provided that Mr Bentley was not to enter any residential address in which a female resides or is known to reside, unless authorised in advance by the community corrections officer. The State commenced contravention proceedings and sought an order under s 23 of the Act that the first supervision order be rescinded and that Mr Bentley be detained, or alternatively, that the supervision order be amended.
On 11 December 2018 and 13 February 2019 the contravention proceedings were heard. Corboy J ordered that Mr Bentley be released on an amended supervision order with 56 conditions.[12]
[12] The State of Western Australia v Bentley [No 3] [2019] WASC 474.
Relevantly, condition 30 of the amended supervision order provides that Mr Bentley must not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to cannabis and methylamphetamine, unless the drug has been prescribed by a person duly authorised under the Medicines and Poisons Act 2014 (WA) and the use is in accordance with the prescriber's instructions. Condition 42 of the amended supervision order provided that Mr Bentley must attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the police or the community corrections officer.
On 28 May 2019, Mr Bentley returned a positive urinalysis for amphetamine and methylamphetamine. The recorded concentrations were 1120 micrograms per litre for amphetamine and 2392 micrograms per litre for methylamphetamine. On 31 May 2019, Mr Bentley was charged that whilst subject to a supervision order, without reasonable excuse, he contravened a requirement of the order by consuming or using a prohibited drug or substance namely amphetamine and methylamphetamine in contravention of condition 30 of the supervision order.[13] Consequently, Mr Bentley was arrested and refused bail and therefore remanded in custody.
[13] Prosecution Notice, charge number PE 26332/2019.
On 18 June 2019, the State made a contravention application under the Act seeking an order that the supervision order be rescinded and that a continuing detention order be made, or alternatively, that the supervision order be further amended.[14]
[14] Application by the State of Western Australia dated 18 June 2019.
On 14 August 2019, Mr Bentley pleaded guilty to one charge of contravening condition 30 of the supervision order contrary to s 40A(1) of the Act.[15] On 14 August 2019, Mr Bentley came before me to be sentenced for that offence.[16] I imposed a fine of $500. In determining the quantum of the fine I took into account the fact that Mr Bentley had spent 76 days in custody awaiting sentence.
[15] Prosecution Notice charge number PE 26332/2019; ts 3 (14/08/2019).
[16] The State of Western Australia v Bentley [2019] WASCR 91.
The contravention proceedings were listed for hearing on 26 September 2019. However, the contravention proceedings were adjourned for the reason that the State proposed to allege a further contravention by Mr Bentley. The State contended that Mr Bentley contravened condition 20 of his supervision order by procuring his partner to delete material from his mobile phone. Condition 20 provides that Mr Bentley must not delete any data from any computer or electronic storage device without prior permission from the community corrections officer or WA Police.
On 21 and 28 November 2019, Corboy J heard an application by Mr Bentley for interim release awaiting the determination of the contravention proceedings pursuant to s 24A of the Act. On 3 December 2019, Corboy J made orders that Mr Bentley be released subject to the amended supervision order.[17]
Antecedents and history of offending of Mr Bentley
[17] The State of Western Australia v Bentley [No 3] [2019] WASC 474.
I outlined Mr Bentley's antecedents and criminal history comprehensively in The State of Western Australia v Bentley.[18] A summary of the antecedents of Mr Bentley and his history of offending were outlined by Corboy J in The State of Western Australia v Bentley [No 2][19] as follows:
[18] The State of Western Australia v Bentley [2018] WASC 135.
[19] The State of Western Australia v Bentley [No 2] [2019] WASC 95.
[16]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].
[17]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).
[18]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.
[19]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.
[20]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.
[21]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.
Evidence in the contravention proceedings
At the hearing of this application on 30 ‑ 31 January 2020, the State tendered, without objection, a book of materials,[20] and a supplementary book of materials.[21]
[20] Exhibit 1, Book of Materials dated 19 September 2019.
[21] Exhibit 2, Supplementary Book of Materials dated 15 November 2019.
The State called three witnesses being Dr Wynn Owen,[22] psychiatrist, Dr Tania Wilson-Brown,[23] senior counselling psychologist and Ms Comery,[24] senior community corrections officer. Each of the three witnesses gave oral evidence at the hearing which confirmed and elaborated upon the contents of their reports.
[22] ts 381 (30/01/2020).
[23] ts 404 (30/01/2020).
[24] ts 423 (30/01/2020).
Mr Bentley relied on his affidavit affirmed 21 January 2020[25] and an affidavit of Ms M affirmed 21 January 2020.[26] In addition, Mr Bentley gave evidence[27] and called one further witness being his partner, Ms M.[28]
[25] Affidavit of Mr Bentley affirmed 21 January 2020.
[26] Affidavit of Ms M affirmed 21 January 2020.
[27] ts 470 ‑ 511 (31/01/2020).
[28] ts 511 ‑ 528 (31/01/2020).
The contraventions
At the hearing of the application the State relied upon two contraventions. However, the second alleged contravention was discontinued after the hearing. I will outline both contraventions which were alleged at the hearing of the State's application. It is necessary that I make findings in respect to the circumstances of the offending that ground the contraventions.
The first contravention
The first pleaded contravention was that Mr Bentley contravened condition 30 of the supervision order by consuming a prohibited drug or substance, namely methylamphetamine. On 28 May 2019, Mr Bentley submitted a urinalysis test. The test proved positive for amphetamine and methylamphetamine. The threshold for amphetamine is 150 micrograms per litre. Mr Bentley had a concentration of 1129 micrograms per litre. The threshold for methylamphetamine is 150 micrograms per litre. Mr Bentley had a concentration of 2392 micrograms per litre. At sentencing the State accepted that the Toxicology Department of Pathwest had advised that methylamphetamine may metabolise into amphetamine after ingestion.[29] Therefore, the State alleged that Mr Bentley consumed methylamphetamine. The only reasonable inference that may be drawn from the positive drug test was that on a date unknown between 14 and 28 May 2019 Mr Bentley consumed methylamphetamine.
[29] The State of Western Australia v Bentley [2019] WASCR 91 [13].
On 14 August 2019, Mr Bentley pleaded guilty to one charge of contravening condition 30 of the supervision order contrary to s 40A(1) of the Act.[30]
[30] Prosecution Notice charge number PE 26332/2019.
At sentencing no finding was made as to how Mr Bentley digested methylamphetamine. Counsel for Mr Bentley submitted at the sentencing hearing that from the positive drug test it may be inferred that Mr Bentley must have consumed the drug.
At the contravention hearing, the State submitted that a finding should be made that Mr Bentley deliberately consumed methylamphetamine and that he did not inadvertently do so.
Mr Bentley's evidence in respect of how he consumed methylamphetamine is unsatisfactory. In his affidavit, relied upon in these proceedings, Mr Bentley deposed that:[31]
This is my first 'dirty' urinalysis test in about 18 years. I believe it was because I drank some water from a drink bottle from a 'streetie'. I also took two to three puffs of a meth pipe. I had been sick with a virus that week and had a lot of stress. I immediately felt embarrassed and disappointed in myself. I knew I would never do it again, I was 'dirty on myself'. I also had a Codral for my cold and some other medication.
[31] Affidavit of Mr Bentley, [4(d)].
During his testimony, Mr Bentley stated that he did not deliberately inhale methylamphetamine and that what he deposed in his affidavit, that he took 'two to three puffs of a meth pipe', was false.[32] Mr Bentley gave testimony that the only way that he consumed methylamphetamine was inadvertently drinking from a water bottle that belonged to a homeless person name Cole.[33]
[32] ts 477 (31/01/2020).
[33] ts 480 (31/01/2020).
I am satisfied that the State has proven that the only reasonable inference is that Mr Bentley did intentionally consume the methylamphetamine and that the consumption was not inadvertent. I do not accept Mr Bentley's testimony that the cause of the positive drug test was due to drinking from a random water bottle. I make that finding for the following reasons.
First, in his affidavit which is a written document, obviously drafted after reflection and then affirmed, Mr Bentley states that he did deliberately consume methylamphetamine. Further, Mr Bentley in his affidavit offers an explanation as to why he deliberately consumed methylamphetamine being stress, and further expresses regret at consuming it.
Second, Mr Bentley has a history of using methylamphetamine prior to his incarceration. Regrettably, Mr Bentley has an entrenched history of using that illicit substance. The deliberate consumption of methylamphetamine is entirely consistent with that history.
Third, Mr Bentley told the authors of the reports that he proposed to give a version to the court that was not true. Ms Wilson-Brown asked Mr Bentley how he returned a positive drug test to which Mr Bentley referred to two versions of events: the one that he intended to tell the court and what actually happened. Mr Bentley stated that he proposed to tell the court that he took a puff of methylamphetamine but that the truth was that he drank from a random bottle.[34] Further, Mr Bentley told Dr Wynn Owen that he drank from someone's water bottle but that he proposed to say that he smoked from a pipe 'to make it easier.'[35] By so doing, Mr Bentley expressed his willingness to mislead the court.
[34] Exhibit 1, Report of Ms Wilson-Brown, 85.
[35] Exhibit 1, Report of Dr Wynn Owen dated 12 September 2019, 70.
Ms Comery in her report stated that Mr Bentley told her that he met up with 'Old Col' and asked for a drink of water because he was not feeling well. Further, Mr Bentley stated that his intention was to lie to the court by stating that he smoked methylamphetamine with Old Col in 'order to have this all over faster'.[36]
[36] Exhibit 1, Report of Ms Comery, 101.
Fourth, the alternative explanation offered by Mr Bentley that he randomly came across a homeless person known as Cole from whom he accepted a drink is inherently unbelievable. The only evidence regarding Cole and the random water bottle is the assertion from Mr Bentley.
Fifth, Mr Bentley pleaded guilty to the breach offence which was an admission of all the elements of the offence including that the contravention was without reasonable excuse. Mr Bentley did not assert that the positive test analysis was due to an inadvertent consumption of methylamphetamine. I do not accept Mr Bentley's assertion that he merely stated that he smoked from a pipe to make it easier because he would not otherwise be believed. Given the inconsistencies in Mr Bentley's recollection I do not accept his evidence that the consumption of methylamphetamine was inadvertent.
The second contravention
At the hearing of the application the State further relied upon a second contravention allegation contending that telephone calls between Mr Bentley and Ms M disclosed that Mr Bentley was procuring his partner to delete recorded material on his mobile phone. Subsequent to the hearing the State confirmed that it no longer relied upon the second contravention. However, the alleged conduct of Mr Bentley is relied upon by the State as forming part of the relevant evidence that the court may consider in determining whether Mr Bentley should be released subject to a supervision order or be detained.
Condition 20 of the amended supervision order provides that Mr Bentley not delete any data from any computer or electronic storage device in his possession without prior permission from the community corrections officer or WA Police.
On 4 June 2019, Mr Bentley signed an authority releasing all his property to his partner Ms M.[37] Accordingly, Ms M took possession of Mr Bentley's property including his mobile phone.
[37] Re-amended Particulars of Contravention Allegation, [22].
Mr Bentley and Ms M were recorded during a number of telephone conversations on the Prisoner Telephone System. The State produced the transcripts of the telephone conversations[38] and a disc recording.[39] The State particularised the relevant parts of the telephone conservations in the State's Re-Amended Particulars of the Contravention Allegation.[40]
[38] Exhibit 3, Transcripts of telephone conversations.
[39] Exhibit 4, Disc of telephone conversations.
[40] Re-amended Particulars of Contravention Allegation, [23] ‑ [30].
During the telephone calls Ms M states that she intended to delete recordings from Mr Bentley's telephone. Ms M told Mr Bentley during a telephone call that she had been going through the phone and had commenced deleting material to which Mr Bentley acquiesced. Subsequently, Mr Bentley encouraged Ms M to delete material. The actual content deleted is not known and therefore, was not produced at the hearing. Mr Bentley gave evidence that the material comprised messages with women before he formed the relationship with Ms M and therefore, Ms M wished to delete the messages.[41] Mr Bentley stated that he considered that he did not have possession of the mobile phone and that given that he did not delete the material he was not in breach of the condition.[42]
[41] Affidavit of Mr Bentley, [9].
[42] Affidavit of Mr Bentley, [9].
The State contends that the relevance of the telephone deletions is that they support a finding that Mr Bentley is anti-authoritarian and not able to comply with a supervision order.[43]
[43] Applicant's Supplementary Outline of Submissions for Contravention Hearing, [23].
Assessment of contravention
Mr Bentley has admitted to contravening the amended supervision order by committing the breach offence.
I cannot release Mr Bentley on a supervision order unless I am satisfied, on the balance of probabilities that he will substantially comply with the standard conditions of the supervision order. Further, I must be satisfied that the community will be adequately protected by the supervision order.
I will outline a summary of the witnesses at the contravention hearing and then turn to consider each contention of the State as to why Mr Bentley must be detained.
Psychiatric report – Dr Wynn Owen
For the purpose of the contravention proceedings, Dr Wynn Owen assessed Mr Bentley and provided two psychiatric reports pursuant to s 23A of the Act. Dr Wynn Owen also gave oral evidence.
Dr Wynn Owen observed that Mr Bentley does display an attitude towards supervision and monitoring that appears 'somewhat negative'.[44] Dr Wynn Owen stated that whilst the attitude is a potential management problem it is consistent with a lifelong pattern of antisocial and anti‑authoritarian attitudes and behaviour.[45] Dr Wynn Owen expressed the opinion that the use of methylamphetamine is evidence of engaging in high risk behaviour. Mr Bentley's most significant risk factors for future offending are methylamphetamine use and mental illness.[46]
[44] Exhibit 1, Report of Dr Wynn Owen dated 12 September 2019, 70.
[45] Exhibit 1, Report of Dr Wynn Owen dated 12 September 2019, 76.
[46] Exhibit 1, Report of Dr Wynn Owen dated 12 September 2019, 77.
Dr Wynn Owen stated that the RSVP static risk factor findings based on past offending are unchanged from previous assessments.[47]
[47] Exhibit 1, Report of Dr Wynn Owen dated 12 September 2019, 74.
Dr Wynn Owen reviewed the PTS telephone calls and expressed the opinion that there was 'no clear confirmation of deliberate drug use by Mr Bentley' but that there 'is no doubt that Mr Bentley requests Ms M delete material from his mobile phone.'[48]
[48] Exhibit 2, Report of Dr Wynn Owen dated 18 November 2019, 335.
Dr Wynn Owen expressed the view that the PTS telephone calls disclose a 'consistently supportive quality of the relationship between Mr Bentley and Ms M over the period early June to early September 2019 and statements from Mr Bentley which indicate his awareness of factors likely to increase his risk of future sexual offending.'[49] Dr Wynn Owen states that for males, being in a relationship is a protective factor reducing the risk of future reoffending.[50]
[49] Exhibit 2, Report of Dr Wynn Owen dated 18 November 2019, 335.
[50] Exhibit 2, Report of Dr Wynn Owen dated 18 November 2019, 335.
Dr Wynn Owen stated that the review of the PTS telephone calls does not change his assessment of the future risk of sexual offending.[51]
[51] Exhibit 2, Report of Dr Wynn Owen dated 18 November 2019, 335.
During his testimony Dr Wynn Owen accepted that the intervention of Ms Ballantyne, psychologist, was a very positive step in addressing the risk issues including the use of methylamphetamine.[52] Dr Wynn Owen stated that Mr Bentley's risk factors, in particular drugs, can be managed in the community with increased rigor in testing and psychological intervention.[53]
Psychological report – Ms Wilson-Brown
[52] ts 402 (30/01/2020).
[53] ts 402 ‑ 403 (30/01/2020).
Ms Wilson-Brown, a forensic psychologist, prepared a treatment progress report of Mr Bentley for the contravention hearings. Ms Wilson-Brown interviewed Mr Bentley on 22 and 29 July 2019.[54]
[54] Exhibit 1, Report of Ms Wilson-Brown, 79.
Following Mr Bentley's release he has continued to engage with Ms Ballantyne, psychologist, for individual counselling engaging in six counselling sessions in the community prior to his return to custody,[55] and to date has had five further sessions.[56] Ms Wilson-Brown concluded that Mr Bentley has demonstrated a progressively increased willingness to engage in counselling and is responding to this treating psychologist in a collaborative manner.[57] Whilst treatment gains were limited due to the brevity of the time that Mr Bentley has been in the community, progress was noted in his ability to explore his current coping, having an awareness of the cognitions and emotions he is currently experiencing, and his demonstration of an increased capacity to articulate these and his associated coping strategies in counselling.[58]
[55] Exhibit 1, Report of Ms Wilson-Brown, 81.
[56] ts 407 (30/01/2020).
[57] Exhibit 1, Report of Ms Wilson-Brown, 90.
[58] Exhibit 1, Report of Ms Wilson-Brown, 90.
Ms Wilson-Brown stated that should Mr Bentley be released on a supervision order then counselling with Ms Ballantyne will occur weekly, with an initial focus on his adjustment to the community and exploring his ability to cope with stressors.[59]
Performance report – Ms Comery
[59] Exhibit 1, Report of Ms Wilson-Brown, 91.
Ms Comery prepared a community corrections performance report[60] and also gave oral evidence.[61]
[60] Exhibit 1, Report of Ms Comery, 92 ‑ 105.
[61] ts 423 ‑ 468 (30/01/2020 and 31/01/2020).
Ms Comery during her evidence stated that the professional relationship with Mr Bentley arose after he was charged with the contravention offence.[62] In her report, Ms Comery considered that Mr Bentley's attendance with his supervision obligations was satisfactory.[63] However, Ms Comery expressed concerns that Mr Bentley has anti-authoritarian attitudes, tendency to challenge boundaries and general distrust of supporting agencies which forms a barrier to ongoing case management.[64] A further issue was Mr Bentley's request to spend additional time with Ms M.[65]
[62] ts 450 (31/01/2020).
[63] Exhibit 1, Report of Ms Comery, 104.
[64] Exhibit 1, Report of Ms Comery, 104.
[65] ts 450 (31/01/2020).
During her testimony, Ms Comery confirmed that during supervision Mr Bentley attended his supervision meetings and responded positively,[66] attended counselling sessions with Ms Ballantyne, complied with directions and was considered forthcoming with information and was receptive when issues were raised with him.[67] Mr Bentley notified Ms Comery of any changes in his circumstances including that he had formed a relationship with Ms M.[68]
Mr Bentley
[66] ts 457, 461 (31/01/2020).
[67] ts 460, 461 (31/01/2020).
[68] Exhibit 1, Report of Ms Comery, 96.
Mr Bentley gave evidence at the contravention hearing.[69] I have outlined Mr Bentley's testimony regarding the consumption of methylamphetamine. Mr Bentley in his affidavit deposes that he is committed to complying with the supervision order and that he now has the support of Ms M and her family. Mr Bentley deposes that he has attended all appointments as directed but expressed frustration with some of the arrangements.[70]
Ms M
[69] ts 470 ‑ 506 (31/01/2020).
[70] Affidavit of Mr Bentley, [10].
Ms M gave evidence at the contravention hearing.[71] In her affidavit Ms M confirmed that she is in a relationship with Mr Bentley and is very supportive.[72]
[71] ts 511 ‑ 528 (31/01/2020).
[72] Affidavit of Ms M.
State's contention and assessment
The State raises a number of issues in support of the contentions that Mr Bentley will not substantially comply with the standard conditions and that I am unable to be satisfied that the community will be adequately protected.
First, the State contends that Mr Bentley's contravention involved a deliberate and not inadvertent use of methylamphetamine. As I have observed, I do not accept that Mr Bentley tested positive due to accidentally consuming it by drinking from another person's water bottle. Rather, I make the finding that Mr Bentley intentionally digested methylamphetamine. The State therefore, contends that there is a real risk that Mr Bentley will use methylamphetamine if released and that such use is a high risk factor in reoffending.
Mr Bentley pleaded guilty to the breach offence and took responsibility by so doing. Dr Wynn Owen gave evidence that in his opinion there was no basis to find that Mr Bentley had returned to regularly using methylamphetamine. Dr Wynn Owen expressed the opinion that after reviewing the telephone calls between Mr Bentley and Ms M there was no confirmation that Mr Bentley had commenced to deliberately take methylamphetamine. Dr Wynn Owen expressed the opinion that the reference to prescription medications to avoid detection of methylamphetamine does not 'confirm anything other than knowledge of some methods of avoiding drug use detection and potentially underlying attitudes that support or condone illicit drug use'.[73] Whilst the deliberate use of methylamphetamine is a risk factor, Dr Wynn Owen expressed the opinion that with increased drug testing and psychological intervention that risk is manageable in the community.
[73] Exhibit 1, Report of Dr Wynn Owen dated 18 November 2019, 335.
Second, the State contends that Mr Bentley has an anti‑authoritarian and hostile attitude to Community Corrections. I accept that Ms Comery undertook her management of Mr Bentley very professionally and acted in the best interests of the community and Mr Bentley. Dr Wynn Owen stated that Mr Bentley's attitude to supervision is 'a potential management problem'.[74] However, as Dr Wynn Owen observes the anti‑authoritarian attitude of Mr Bentley is 'completely consistent with a lifelong pattern of antisocial and anti‑authoritarian attitudes and behaviour.'[75] It is clear that this is an issue that requires ongoing management. The question is whether this issue may be managed by a supervision order to the extent necessary that I am satisfied that the community will be adequately protected. As Dr Wynn Owen observed, a person subject to a supervision order may have anti-authoritarian attitudes but will still meet their legal obligations under the Act.
[74] Exhibit 1, Report of Dr Wynn Owen dated 12 September 2019, 76.
[75] Exhibit 1, Report of Dr Wynn Owen dated 12 September 2019, 76.
Third, the State contends that the deleting of the telephone materials is relevant to determining whether Mr Bentley will breach the standard conditions of a supervision order. The State did not proceed with the second alleged contravention. I have outlined the second alleged contravention. The police permitted the mobile phone to be given to Ms M who then examined the recorded material. Ms M initiated the deletions without Mr Bentley's permission. Subsequently, Mr Bentley acquiesced and then requested further deletions. The mobile phone was in the possession of Ms M at all times. The deleted material was not retrieved. I am unable to make a finding that the material was of such a nature that having possession contravened any condition of the supervision order or was unlawful. However, the deletion of the material does support a finding that Mr Bentley has anti‑authoritarian traits.
Fourth, the State contends that Mr Bentley's relationship with Ms M is a risk and that he should not be permitted to reside with Ms M. The State contends that Ms M is anti-authoritarian and that her son has a drug problem. The State further contends that the actions of Ms M in deleting the messages on the mobile telephone and the fact that she is supportive of Mr Bentley's anti-authoritarian views is a reason for finding that Ms M is not a suitable person for Mr Bentley to have a relationship with and therefore, he should be detained.[76]
[76] Applicant's Supplementary Outline of Submissions for Contravention Hearing, [40].
Dr Wynn Owen stated that the relationship with Ms M is a very positive factor for Mr Bentley for the reason that 'it is a protective factor' against the risks.[77] Dr Wynn Owen's opinion is that the relationship with Ms M's family is a supportive network that is very positive and a significant protective factor for Mr Bentley.[78] Dr Wynn Owen expressed the opinion that Ms M's frustration with the contravention proceedings and her expression of support for the views of Mr Bentley is consistent with the close relationship between them.[79]
[77] ts 395 (30/01/2020).
[78] ts 396 (30/01/2020).
[79] ts 396 (30/01/2020).
Fifth, the State contends that the fact that Ms M's son has a drug problem is not conducive to Mr Bentley remaining abstinent from drugs. Ms M gave evidence that supports a finding that she strenuously opposes her son's drug use and that whilst she supports her son she does not intend to let him reside with her.[80] Ms M did express the view that she 'will never see [her] son on the street.'[81] I accept Ms M's testimony that she opposes illicit drug use and whilst supporting her son does not intend to allow him to reside with her and that her son is not permitted to bring illicit substances into the residence.[82]
[80] Affidavit of Ms M, [31], [35].
[81] ts 519 (31/01/2020).
[82] Affidavit of Ms M, [31], [35].
After considering the contentions of the State, I am satisfied on the balance of probabilities that Mr Bentley will substantially comply with the standard conditions of the amended supervision order. I am further satisfied that the community will be adequately protected by the provisions of the amended supervision order. I am mindful that Mr Bentley has formed a strong and supportive relationship with his partner, Ms M, and as Dr Wynn Owen observed the relationship is extremely positive for the reason that for a male, being in a relationship is a protective factor reducing the risk of future offending.
Dr Wynn Owen expressed the opinion that Mr Bentley's risk factors may be managed in the community with increased rigor in testing and psychological intervention. The increase rigor in drug testing will involve stringent personal surveillance of Mr Bentley in the community that will identify if he breaches the condition to not consume illicit substances.
Mr Bentley has formed a sound professional relationship with his psychologist and is positively engaged. That Mr Bentley has an anti‑authoritarian personality is a factor that can be managed in the community. It is untenable that Mr Bentley should be detained indefinitely for the reason of his anti-authoritarian traits. The question is whether that anti-authoritarian personality may be managed as a risk factor in the community with a comprehensive supervision order. Based upon all the material and assessments, I am of the view that the risk may be managed in the community.
Amendment of the supervision order
Mr Bentley submits that a term of the supervision order should provide that Mr Bentley is at liberty to reside with Ms M. I do not propose to make that a term of the supervision order. It is not appropriate that I do so. The supervising authorities will continue to assess the appropriateness of Mr Bentley's accommodation and living arrangements based upon the available information at the time any assessment must be made.
However, I am satisfied that the supervision order should be amended and extended pursuant to s 23(1)(b) of the Act. The amendments proposed by the State comprise a condition that Mr Bentley is not permitted to share a mobile telephone device or any other electronic device (capable of telephone calls or accessing the internet) with any other person. Further, a condition that Mr Bentley is not to access electronic devices (capable of telephone calls or accessing the internet) accessed by others without prior approval of a CCO or police officer unless in the case of an emergency.[83] The supervision order will be amended to include both proposed conditions.
[83] Exhibit 1, Report of Ms Comery, 104.
Accordingly, Mr Bentley will be subject to a supervision order for 5 years commencing on 1 April 2020 pursuant to s 17(1) of the Act. The terms of that supervision order are stated in Annexure One.
ANNEXURE ONE
IN THE SUPREME COURT OF WESTERN AUSTRALIA
DSO 3 of 2017
IN THE MATTER of the Dangerous Sexual Offenders Act 2006
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
CHRISTOPHER JOHN BENTLEY Respondent
_________________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE MCGRATH
ON 1 APRIL 2020
_________________________________________________________________________
The Court, having found pursuant to section 23(1) of the Dangerous Sexual Offenders Act 2006 (WA) that the Respondent contravened a condition of the supervision order made by the Hon Justice Corboy on 13 February 2019, orders that the supervision order be amended pursuant to section 23(1)(b) of the Dangerous Sexual Offenders Act 2006 (WA), and that the amended supervision order be for a period of 5 years, on the following conditions:
You, CHRISTOPHER JOHN BENTLEY, must:
STANDARD CONDITIONS REQUIRED BY THE ACT
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.
Report to and receive visits from, a Community Corrections Officer as directed by the court.
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a sexual offence as defined in the Evidence Act 1906 (WA) section 36A during the period of the Order.
Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
Residence
Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.
Reporting to a CCO and supervision by a CCO
Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this order.
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change employment, education, training or volunteer work without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO.
Reporting to WA Police
Report to the Officer-in-Charge of the Sex Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate.
Comply with all obligations imposed on you under the Community Protection (Offender Reporting) Act 2004 (WA).
If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.
When requested, advise WA Police of the names of all of your internet service providers, all mobile or landline telephone services used by you, and all internet user names or identities used by you.
Permit a CCO or WA Police to access upon request any computer or device capable of storing digital data (electronic storage device), at any location nominated by the CCO or WA Police, for the purpose of ascertaining your computer activities.
Provide to the CCO or WA Police upon request any passwords, or any other means used to unlock or access any computer or electronic storage device, as may be required for the access described in condition 18.
Not delete any data from any computer or electronic storage device in your possession without prior permission from the CCO or WA Police.
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your sexual offending, or their families, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim or family member), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending, or their families, within 48 hours of such contact occurring.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997 (WA).
Criminal conduct
Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis and methylamphetamine, unless the drug has been prescribed for you by a person duly authorized under the Medicines and Poisons Act 2014 (WA), and your use is in accordance with the instructions of the prescriber.
Curfew
Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006 (WA), such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Medications/Mental Health
Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO and undergo medical treatment, including anti-depressant or anti-psychotic medication, or anti-libidinal treatment, as directed by the CCO in consultation with a medical practitioner or medical practitioners.
To engage with mental health services as directed by the supervising CCO and to obey the instructions of the treating psychiatrist with regard to treatment and medication.
Comply fully with any treatment prescribed pursuant to conditions 34 and 35.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have, or intend to, cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.
Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO.
Prevention of high-risk situations
Maintain a daily diary of your movements, activities and associations as directed by the CCO, and present this diary to the CCO or any Police Officer upon request.
Not possess or consume or use or purchase alcohol.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place.
To provide a valid sample for the testing described in condition 42.
Not remain in the presence of any person who you know, or ought to know, to be affected by a prohibited drug or by alcohol.
Not remain in any place where prohibited drugs or alcohol are being consumed, or, if such place is your approved address, withdraw from that part of the residence in which any such consumption is taking place.
Not go to, enter in, or remain at any alcohol licensed premises unless permitted or required to do so for the following reasons:
a.For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
b.For a purpose, and duration, approved in advance by a CCO;
c.On the order of a CCO or a Police Officer.
Not hitch-hike, nor accept lifts in or on vehicles, from any female who is unaware of your offending history, unless the identity of such person is approved in advance by the CCO.
Not allow any female to enter or ride in or on any vehicle under your control unless the identity of such person is approved in advance by a CCO.
With the exception of public transport, not enter in or on any vehicle where a female is present, unless the identity of such person is approved in advance by a CCO.
Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by the CCO.
Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO.
Report any unsolicited interactions with females at your residential address to the CCO and the Sex Offender Management Squad at your next scheduled appointment.
Not be in possession of any pornographic material, in either hard-copy or digital form, or access or view pornography on the internet.
Not enter the premises of, or access the services of, escort agencies or sex workers, unless pre-approved by a CCO.
Report immediately to a CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Not permitted to share a mobile telephone device or any other electronic device (capable of telephone calls or accessing the internet) with any other person.
Not to access electronic devices (capable of telephone calls or accessing the internet) accessed by others without prior approval of a CCO or Police Officer unless in the case of an emergency.
| ________________________________ |
I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.
| Signed by the Respondent: | ________________________________ |
In the presence of: | ________________________________ |
| Name and address: | ________________________________ ________________________________ |
Date: | ________________________________ |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath1 APRIL 2020
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