The State of Western Australia v Bentley [No 5]
[2021] WASC 270
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BENTLEY [No 5] [2021] WASC 270
CORAM: MCGRATH J
HEARD: 28 JULY 2021
DELIVERED : 11 AUGUST 2021
FILE NO/S: SO 3 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CHRISTOPHER JOHN BENTLEY
Accused
Catchwords:
Criminal law - High risk serious offender - Contravention proceedings - Application for interim release pending determination of contravention proceedings - 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:
High Risk Serious Offenders Act 2020 (WA) s 53, s 56
Result:
Application for release refused
Respondent detained in custody
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Accused | : | Mr A G Elliott |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Accused | : | Mr A G Elliott |
Case(s) referred to in decision(s):
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 [2018] WASC 30
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
The State of Western Australia v Bentley [No 4] [2020] WASC 102
MCGRATH J:
Introduction
On 27 July 2021, the State of Western Australia filed an application under s 55 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) commencing contravention proceedings against Mr Bentley.[1] In support of the application the State filed an affidavit of Mr Meertens sworn 27 July 2021. The State seeks orders that Mr Bentley's supervision order be rescinded and that a continuing detention order be made. In the alternative, the State seeks an order that Mr Bentley be subject to a supervision order on amended terms. The State further applies for an order that Mr Bentley be detained in custody while these proceedings are pending.
[1] Application for Contravention Proceedings filed 27 July 2021.
On 28 July 2021, Mr Bentley was brought before the court under s 53 of the HRSO Act. At that time counsel for Mr Bentley requested that the hearing in respect of the application for the interim release order be heard. Therefore, oral submissions were received. I did not receive written submissions. The material upon which Mr Bentley relies, apart from the oral submissions, is an affidavit of Ms Miller, affirmed 10 June 2021, which was drafted for Magistrates Court proceedings. The State relies upon the affidavit of Mr Meertens, counsel, and an affidavit of Ms Serrano, Senior Community Corrections Officer, affirmed 26 July 2021.
For the following reasons, I have determined that Mr Bentley will be detained in custody on an interim detention order pending the determination of the contravention proceedings.
Procedural history
On 7 September 2017, the State made an application for Mr Bentley to be declared a dangerous sexual offender under the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). On 22 January 2018, Jenkins J heard the div 1 hearing and made orders under div 1 of the DSO Act.[2]
[2] 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 DSO Act. Mr Bentley was released to the community subject to a supervision order of 5 years' duration with 53 conditions made under s 17(1)(b) of the DSO Act (the supervision order).[3]
[3] 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 DSO Act. The contravention involved Mr Bentley attending an address in Mount Lawley with a female without the 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 a community corrections officer. The State commenced contravention proceedings and sought an order under s 23 of the DSO 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.[4]
[4] The State of Western Australia v Bentley [No 2] [2019] WASC 95.
On 28 May 2019, Mr Bentley returned a positive urinalysis for amphetamine and methylamphetamine. 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 a community corrections officer.
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.[5] Consequently, Mr Bentley was arrested and refused bail and therefore remanded in custody.
[5] Prosecution Notice, charge number PE 26332/2019.
On 18 June 2019, the State filed a contravention application under the DSO 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.[6]
[6] 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 DSO Act.[7] On 14 August 2019, Mr Bentley came before me to be sentenced for that offence.[8] 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.
[7] Prosecution Notice, charge number PE 26332/2019; ts 3 (14/08/2019).
[8] 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 between 6 May 2019 and 9 August 2019, Mr Bentley contravened the amended supervision order by procuring his partner to delete data from his mobile phone without prior permission from a community corrections officer or the WA Police.[9] Condition 20 provides that Mr Bentley must not delete any data from any computer or electronic storage device without prior permission from a community corrections officer or WA Police. Subsequent to the contravention hearing, the State withdrew the second contravention allegation relying only on the one contravention.[10]
[9] Applicant's Outline of Submissions for Contravention Hearing dated 29 January 2020.
[10] Applicant's Supplementary Outline of Submissions for Contravention Hearing dated 10 February 2020.
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 DSO Act. On 3 December 2019, Corboy J made orders that Mr Bentley be released subject to the amended supervision order.[11]
[11] The State of Western Australia v Bentley [No 3] [2019] WASC 474.
On 30 and 31 January 2020, I heard the contravention proceedings. On 1 April 2020, I released Mr Bentley on an amended 5‑year supervision order with 58 conditions pursuant to s 17(1)(b) of the DSO Act.[12]
[12] The State of Western Australia v Bentley [No 4] [2020] WASC 102.
The allegation that is now before the court is that Mr Bentley has contravened the supervision order that I imposed on 1 April 2020.
Relevant legislative provisions
Section 56 of the HRSO Act provides that the section applies to a person who is subject to a supervision order in respect of whom proceedings on an application under s 53 are pending.
Section 56(2) of the HRSO Act provides as follows:
The court may at any time in the pending proceedings -
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
Section 56(3) of the HRSO Act provides as follows:
The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
Therefore, I must be satisfied on the balance on probabilities of both matters specified in s 56(3) before I can order Mr Bentley's release.
The term 'exceptional circumstances' used in s 56(3) is not defined in the HRSO Act. The term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special or an exception to the general trend of cases.
The standard conditions of the supervision order referred to in s 56(3)(b) are those set out in s 30(2) which provides:
A supervision order in relation to an offender must require that the offender -
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender'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 offender'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 and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); 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 serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
As to the phrase 'substantially comply' this was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[13] in the context of contravention proceedings. I apply the reasoning of Fiannaca J.
[13] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
The relevant questions to be decided are therefore as follows:
1.Is Mr Bentley's release justified by exceptional circumstances?
2.If released, will Mr Bentley substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?
The alleged contraventions
The alleged conduct upon which the applicant relies in support of the contention that Mr Bentley has contravened the supervision order comprises both criminal charges (including convictions and pending charges) and conduct. From the respective affidavits filed it appears that the State relies upon the following charges and conduct.
Convictions
On 11 August 2020, on his own plea of guilty, Mr Bentley was convicted of one count of providing a false statement under oath or declaration contrary to s 169 of the Criminal Code (charge number PE 18458/2020). This offence related to Mr Bentley admitting during the contravention proceedings conducted on 30 and 31 January 2020 that he made a false statement in a signed and sworn affidavit about the manner in which he had consumed methylamphetamine. For this offence Mr Bentley was sentenced to a term of 9 months' imprisonment suspended for 9 months.
On 16 September 2020, Mr Bentley pleaded guilty in the Magistrates Court to one count of contravening condition 7 of his supervision order by failing to carry his hand-held Global Positioning System (GPS) transmitter, resulting in him not being monitored via GPS monitoring for 14 minutes on 12 September 2020 (charge number MH 4043/2020). He received a $1500 fine for this offence.
On 8 July 2021, Mr Bentley was convicted of two offences on his own pleas of guilty.
The first was one charge of contravening condition 30 of his supervision order contrary to s 80(1) of the HRSO Act by returning a positive urinalysis test for methylamphetamine on 27 April 2021 (charge number PE 19204/2021). On 8 July 2021, Mr Bentley was sentenced for this offence and received a $2000 fine.
The second charge was one count of breaching his suspended imprisonment order by reoffending contrary to s 78(1) of the Sentencing Act 1995 (WA) (charge number PE 29078/2021). The conduct the subject of the reoffending was the contravention of condition 30 of his supervision order. The charge was committed to the District Court for sentencing and Mr Bentley was granted bail. The matter is listed in the District Court for hearing on 3 September 2021.
Pending charges
Mr Bentley has the following pending charges.
On 27 January 2021, Mr Bentley was charged with one count that on 20 November 2020 he contravened a requirement of his supervision order by returning a positive urinalysis test for morphine contrary to s 80(1) of the HRSO Act (charge number PE 4290/2021). Mr Bentley pleaded not guilty to this charge on 19 March 2021 and was granted bail. This charge is listed for hearing in the Magistrates Court on 28 September 2021.
There is a further pending charge in relation to this conduct, being charge number PE 19125/2021, which alleges a contravention of the supervision order by consuming morphine contrary to s 80(1) of the HRSO Act.
On 5 May 2021, Mr Bentley was charged with one count that on 16 April 2021 he used a prohibited drug, namely methylamphetamine, contrary to s 6(2) of the Misuse of Drugs Act (charge number PE 19206/2021). Further, Mr Bentley was charged that on the same date he used a prohibited drug, namely amphetamine, contrary to s 6(2) of the Misuse of Drugs Act (charge number PE 19205/2021). As a consequence of these charges, Mr Bentley was also charged with one count of contravening a requirement of his supervision order contrary to s 80(1) of the HRSO Act (charge number PE 19203/2021).
In respect of these charges Mr Bentley was in custody between 27 January 2021 to 5 February 2021 and between 5 May to 8 July 2021.[14]
Alleged conduct of Mr Bentley
[14] Affidavit of Ms Serrano affirmed 26 July 2021 [15].
The affidavit of Ms Gabriela Serrano, affirmed 26 July 2021, deposes to the following alleged breaches by Mr Bentley of his supervision order, for which he was issued warnings by Community Corrections.
On three occasions between 8 and 12 April 2020 and 24 February 2021, Mr Bentley failed to maintain his daily diary of his movements, activities and associations as directed by a community corrections officer, contrary to condition 40 of the supervision order. Mr Bentley was issued two separate written warnings for these contraventions.
On 1 October 2020, Mr Bentley entered a geographical exclusion zone in place for reduction of reoffending at a local park for a period of 35 seconds contrary to condition 7 of the supervision order. Mr Bentley was issued a verbal warning for this contravention.
On two occasions, being on 7 July 2020 and 4 August 2020, Mr Bentley failed to carry his hand-held GPS transmitter resulting in him not being monitored via GPS monitoring for a period of 5 seconds on 7 July, and 8 minutes on 4 August. Mr Bentley was issued a verbal warning for the first occasion and a written warning for the second.
Ms Serrano deposes that the authorities have ongoing concerns regarding Mr Bentley's methylamphetamine use, anti-social peer associations, deceitful behaviour and demonstrated hostility towards supervision.[15]
[15] Affidavit of Ms Serrano affirmed 26 July 2021 [18].
Assessment of the application
I now turn to the assessment of whether Mr Bentley should be detained in custody until the determination of the contravention proceedings.
Are there exceptional circumstances?
The initial question for my determination is whether exceptional circumstances exist for the purposes of s 56(2) of the HRSO Act. Counsel for Mr Bentley submitted that the exceptional circumstances comprise the fact that the breaches are explicable, infrequent, and do not involve sexual offending, and that therefore, the community is not at risk.[16] Further, counsel also relied upon the fact that Mr Bentley was in a relationship with Ms Miller as another factor that warranted a finding that exceptional circumstances existed.[17]
[16] ts 569 (28/07/2021).
[17] ts 572 (28/07/2021).
I observe that the affidavit of Ms Miller refers to her health issues and the support given to her by Mr Bentley. Counsel did not refer to that factor in support of a finding that exceptional circumstances exist. I will take that factor into account in combination with the other factors relied upon by Mr Bentley.
I find that the factors relied upon by Mr Bentley, either separately or in combination, are not sufficiently unusual or out of the ordinary or special to justify the conclusion that it amounts to an exceptional circumstance within the meaning of s 56(3) of the HRSO Act.
Will Mr Bentley substantially comply with the standard conditions of the supervision order?
I now turn to the question posed by s 56(3) as to whether Mr Bentley has satisfied me on the balance of probabilities that if he is released he will substantially comply with the standard conditions of the supervision order including any amendments made to the standard conditions.
With respect to the issue of whether Mr Bentley will substantially comply with the standard conditions of a supervision order if released pending the determination of the contravention application, it was submitted on his behalf, in substance, that his contraventions were not of such a serious nature and further it could not be found that there was an increased risk of him committing further breaches of the supervision order or committing further serious sexual offences.
As to whether Mr Bentley will substantially comply with the standard conditions of the order, the onus is on Mr Bentley to establish that he will do so on the balance of probabilities.
Taken individually many of the alleged contraventions are not serious. However, when the alleged contraventions are viewed together and in light of other conduct that the State relies upon, there appears to be good reasons for the authorities to be concerned about their ability to manage Mr Bentley in the community.
There is evidence of non-compliance, aggressive resistance to authority, oppositional behaviour and dishonesty. No good explanation has been given for the unacceptable behaviour of Mr Bentley. Counsel for Mr Bentley submitted that Mr Bentley, whilst having an anti‑authoritarian personality trait, has met substantially his obligations which are very onerous. I accept that submission. However, there is a continuing non-compliance, resistance to authority and criminal charges. I have concerns regarding Mr Bentley's future compliance.
I accept that the alleged breaches do not involve directly any sexual conduct. However, the purpose of the conditions are to minimise risk by ensuring that any conduct that has the potential to make reoffending more likely is prevented or at least monitored at an early stage.
I observe that Dr Wynn Owen expressly stated in previous hearings that the use of methylamphetamine was a high-risk factor in respect of Mr Bentley reoffending by committing sexual offences.
On the basis of the information that I have at the time of hearing this application, I am not satisfied that Mr Bentley would substantially comply with the standard conditions if released. In particular, I am not satisfied that Mr Bentley would substantially comply with the conditions regarding supervision by a community corrections officer and compliance with all reasonable directions issued by such an officer.
Conclusion
The application for release is therefore refused and Mr Bentley will be detained in custody pending the determination of the contravention proceedings.
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 McGrath
11 AUGUST 2021
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