The State of Western Australia v Bentley [No 6]
[2021] WASC 486
•25 JANUARY 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BENTLEY [No 6] [2021] WASC 486
CORAM: HILL J
HEARD: 13 & 14 DECEMBER 2021
DELIVERED : 14 DECEMBER 2021
PUBLISHED : 25 JANUARY 2022
FILE NO/S: SO 3 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CHRISTOPHER JOHN BENTLEY
Respondent
Catchwords:
Criminal Law - High risk serious offender - Contravention of supervision order - Application to rescind supervision order - Released on supervision order on amended conditions
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order amended
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr A G Elliott |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Huron Legal Pty Ltd |
Case referred to in decision:
State of Western Australia v Narkle [No 6] [2018] WASC 51
HILL J:
The respondent, Mr Bentley, is subject to a supervision order made on 1 April 2020 under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The State applies for an order pursuant to s 55 of the HRSO Act that Mr Bentley's supervision order be rescinded and for a continuing detention order to be made.
The State contends that Mr Bentley contravened the supervision order on eight separate occasions. In relation to two of these contraventions, Mr Bentley has pleaded guilty to an offence under s 80(1) of the HRSO Act. At the contravention hearing, the State relied on six further alleged contraventions which have not been the subject of formal charges under the HRSO Act.
At the conclusion of the hearing, I ordered that, pursuant to s 55(1)(b) of the HRSO Act, Mr Bentley should be released into the community subject to an amended supervision order. At the time of these orders, I said that I would subsequently publish reasons for my decision. These are those reasons.
Procedural background
On 11 September 2017, the State filed an application for Mr Bentley to be declared a dangerous sexual offender under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). On 4 May 2018, McGrath J declared that Mr Bentley was a dangerous sexual offender under div 2 of the DSO Act. His Honour released Mr Bentley into the community subject to a supervision order of five years' duration with 53 conditions made pursuant to s 17(1)(b) of the DSO Act (First Supervision Order).
On 25 July 2018, Mr Bentley was arrested and charged with an offence of contravening a condition of the First Supervision Order contrary to s 40A of the DSO Act. On that occasion, Mr Bentley attended an address in Mount Lawley with a female without the prior approval of a Community Corrections Officer (CCO). This contravened 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 CCO.
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 First Supervision Order be amended.
This application was heard by Corboy J on 11 December 2018 and 13 February 2019. On 13 February 2019, Corboy J ordered that Mr Bentley be released on an amended supervision order with 56 conditions (Second Supervision Order).
On 28 May 2019, Mr Bentley returned a positive urinalysis test 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 with an offence 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 Second Supervision Order. Mr Bentley was arrested and remanded in custody. On 14 August 2019, Mr Bentley pleaded guilty to this charge and was fined $500. In imposing this sentence, the sentencing judge took into account the fact that Mr Bentley had spent 76 days in custody.
On 18 June 2019, the State filed a contravention application under the DSO Act seeking an order that the Second Supervision Order be rescinded and that a continuing detention order be made, or alternatively, that the Second Supervision Order be further amended. The contravention proceedings were originally listed for hearing on 26 September 2019 but were adjourned on that date as the State proposed to allege there had been a further contravention. Ultimately, this was not pursued by the State. On 3 December 2019, Corboy J ordered that Mr Bentley be released pending the hearing of the contravention proceedings.
On 30 and 31 January 2020, McGrath J heard the contravention proceedings. On 1 April 2020, McGrath J ordered that Mr Bentley be subject to an amended supervision order of five years' duration commencing 1 April 2020 pursuant to s 17(1)(b) of the DSO Act. The amended supervision order had 58 conditions (Third Supervision Order). Relevantly, these conditions included that:
(a)the respondent be under the supervision of a CCO, which includes complying with any reasonable direction of the officer (including a direction for the purposes of s 19A or 19B) [which corresponds to s 31 or 32 of the HRSO Act] (condition 4);
(b)the respondent be subject to electronic monitoring under s 19A (condition 7);
(c)the respondent 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 the respondent by a person duly authorised under the Medicines and Poisons Act 2014 (WA), and the respondent's use is in accordance with the instructions of the prescriber (condition 30);
(d)the respondent maintain a daily diary of his movements, activities and associations as directed by the CCO, and present this diary to the CCO or any Police Officer upon request (condition 40);
(e)the respondent 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 (condition 42); and
(f)the respondent is to provide a valid sample for the testing described in condition 42 (condition 43).
The State contends that between April 2020 and April 2021, Mr Bentley contravened the Third Supervision Order on eight separate occasions. On 27 July 2021, the State filed a contravention application under the HRSO Act seeking an order that the Third Supervision Order be rescinded and a continuing detention order be made.
Relevant legislative provisions
Section 53 of the HRSO Act specifies the circumstances in which the applicant may apply for an order under s 55. This includes where an offender is charged with an offence under s 80(1) of the HRSO Act. It is not in dispute that the respondent falls within the terms of this section.
Section 55 of the Act relevantly provides as follows:
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender 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 offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order -
(i)amending the conditions of the supervision order; or
(ii)amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.
(3)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
A 'continuing detention order' is, pursuant to s 26(1) of the HRSO Act, an order that 'the offender be detained in custody for an indefinite term for control, care, or treatment'. A 'supervision order' is, pursuant to s 27(1) of the HRSO Act, an order that 'the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30'. If a court makes a supervision order, there are conditions that the court is required to impose (s 30(2) of the HRSO Act) and conditions that may be imposed (s 30(3), s 30(5) and s 30(6) of the HRSO Act).
Section 29 of the HRSO Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, the offender will substantially comply with the standard conditions of the order. The onus of proof is on the respondent pursuant to s 29(2) of the HRSO Act. The standard conditions of a supervision order are those set out in s 30(2) of the HRSO Act and include conditions as to reporting, notification of changes of circumstances, supervision by a CCO, not leaving the State of Western Australia without permission, not committing a serious offence and being subject to electronic monitoring.
The words 'will substantially comply with' in s 29(2) of the HRSO Act are identical to those that appeared in provisions of the DSO Act and bear the same meaning. These words should be given their ordinary meaning, consistent with the purposes of the HRSO Act and the general conditions of a supervision order, as well as the overall object of the HRSO Act which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the offender will commit a serious offence.
Even if the court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions set out in s 30(2), this will not necessarily mean that a supervision order should be amended, extended or affirmed. This is because, by reason of s 55(3), the paramount consideration in deciding whether to make an order under s 55(1), is the need to ensure adequate protection of the community. Accordingly, even if the court is satisfied that an offender will substantially comply with the standard conditions of a supervision order, there may be circumstances in which, despite such a finding, the court is not satisfied that releasing the offender on a supervision order will ensure adequate protection of the community.
The evidence
The State tendered two volumes of documents for the purposes of the application: one filed on 9 November 2021[1] and the other on 23 November 2021.[2] These books of materials contained relevant information on Mr Bentley's prior supervision orders, evidence in respect of the alleged contraventions, his conduct since he has been in custody, previous reports prepared on him as well as reports which had been prepared for this hearing. The reports prepared for the hearing were the reports of Dr Peter Wynn Owen, a consultant forensic psychiatrist, a treatment progress report of Ms Catherine Korda, a senior forensic psychologist with the Department of Justice, and a performance report prepared by Ms Gabriela Serrano, a senior CCO with the Community Offender Monitoring Unit (COMU).
[1] Exhibit 1A.
[2] Exhibit 1B.
At the hearing, each of Dr Wynn Owen, Ms Korda and Ms Serrano gave evidence. Ms Jodii Nichols, a senior CCO with COMU, and Mr Anthony Brooks, an electronic monitoring officer with COMU gave evidence in relation to two of the alleged contraventions by Mr Bentley.
Contraventions of Third Supervision Order
In the book of materials filed for the purposes of the hearing, the State provided particulars of the eight matters on which it relies as being contraventions of the Third Supervision Order. These matters comprise both convictions on criminal charges as well as conduct of Mr Bentley which is said to contravene various conditions of the Third Supervision Order.
At the commencement of the hearing, the respondent admitted contraventions one and two, the offences on which Mr Bentley has been convicted on his plea of guilty. In relation to the remaining contraventions, the respondent admitted the facts alleged in the particulars of each contravention but did not concede that these matters were a contravention of the Third Supervision Order.[3] This position altered over the course of the hearing. Prior to closing submissions, counsel for the respondent informed the court that contraventions 3, 4, 5 and 8 were not disputed.[4] That is, only contraventions 6 and 7 require factual findings to be made.
[3] ts 590 - 591.
[4] ts 715.
Ultimately, given the nature of these alleged contraventions, it is my view that little turns on these additional alleged contraventions which, on the facts alleged, were not significant contraventions. Given the admitted contraventions of the supervision order, there is no dispute that the court has jurisdiction under s 53 of the HRSO Act to make orders under s 55.
Contravention one
On 16 September 2020, Mr Bentley pleaded guilty in the Magistrates Court to one count of contravening a requirement of the Third Supervision Order by failing to carry his hand-held Global Positioning System (GPS) transmitter (charge number MH 4043/2020). This resulted in him not being monitored via GPS monitoring for 14 minutes on 12 September 2020. He received a $1,500 fine for this offence.
Contravention two
On 8 July 2021, Mr Bentley pleaded guilty to one charge of contravening condition 30 of the Third 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). He received a $2,000 fine for this offence.
The urinalysis results were a positive reading to methylamphetamine with a concentration of 524 mcg/l which exceeded the threshold for methylamphetamine of 150 mcg/l.
Contravention three
On 8 April 2020, Mr Bentley attended 28 Centaurus Street, Rockingham but did not record this in his daily diary. The State contended this was a contravention of condition 40 of the Third Supervision Order (that he maintain a daily diary of his movements).
Mr Bentley was issued a written warning for this contravention.
Contravention four
On 12 April 2020, Mr Bentley attended 307 Great Eastern Highway, Midland (where the Midland Centrepoint Shopping Centre is located) but failed to record this visit in his daily diary. The State contended this was a contravention of condition 40 of the Third Supervision Order (that he maintain a daily diary of his movements).
Mr Bentley was issued a written warning for this contravention.
Contravention five
On 4 August 2020, Mr Bentley failed to carry his hand-held GPS transmitter resulting in him not being monitored via GPS monitoring for 8 minutes. The State contended this was a contravention of conditions 4 (that the respondent be under the supervision of a CCO, including complying with any reasonable direction) and 7 (the respondent be subject to electronic monitoring) of the Third Supervision Order, as well as the written lawful direction issued on 23 June 2020 which directed the respondent to keep his personal carried unit with him whenever he was not at home.
Mr Bentley was issued a written warning for this contravention.
Contravention six
On 16 September 2020, the respondent was issued with a written lawful direction by Ms Nichols, who was then the senior CCO responsible for Mr Bentley. The fourth of these directions directed Mr Bentley not to enter a number of geographical exclusion zones at any time unless otherwise directed by a CCO. The exclusion zones included an area described as 'Kids Park and BBQ', the area of which was depicted in a map attached to the direction.[5]
[5] Exhibit 1B, p 394 - 395; Exhibit 4.
The State alleged that on 1 October 2020, Mr Bentley entered a designated exclusion zone described as 'Kids Park and BBQ' for a period of 36 seconds. The State alleged that this was a contravention of conditions 4 (that the respondent be under the supervision of a CCO, including complying with any reasonable direction) and 7 (the respondent be subject to electronic monitoring) of the Third Supervision Order, as well as the written lawful direction issued on 16 September 2020.
Mr Bentley was issued a verbal warning for this alleged contravention.
Mr Bentley did not accept he contravened the Third Supervision Order in the manner alleged by the State. The State called two witnesses in relation to this contravention: namely, Mr Brooks and Ms Nichols.
Mr Brooks is an electronic monitoring officer employed by COMU. His role includes investigating and responding to electronic monitoring alerts from the electronic monitoring system. On 1 October 2020 at approximately 6:50pm, he was at work when he heard and saw an alert generated by an exclusion zone violation.[6] He immediately clicked on the alert on his computer screen which read 'Exclusion zone violation. Kids park and barbecue'. This brought up the respondent's monitoring profile and a map of where the respondent was currently located.[7]
[6] ts 639.
[7] ts 640.
Mr Brooks requested a data upload from the system, in order to refresh the system. He recalled it took between one minute and two minutes to upload.[8] By the time the data upload occurred, the respondent had moved out of the exclusion zone. Mr Brooks' evidence was that the respondent moved out of the exclusion zone within 36 seconds.[9] When asked what he specifically saw on his computer screen, Mr Brooks gave evidence that small triangles were shown on the map of the area, which were the signal points of the GPS system. These triangles depicted where the respondent had come from and where he was walking to.[10] Mr Brooks' recollection was that these triangles showed that Mr Bentley had been walking on Queen Parade in a north easterly direction, he entered a path at the north west corner of the exclusion zone and then exited the park on Bluemanna Drive.[11]
[8] ts 641.
[9] ts 642.
[10] ts 644.
[11] ts 646.
Mr Brooks did not contact Mr Bentley about the alert because by the time the data upload had occurred, Mr Bentley had moved out of the exclusion zone. He contacted the COMU team leader on duty to report the event and did a case note on the reporting system.[12] Mr Brooks' evidence was that on entering the exclusion zone, the monitoring device on Mr Bentley would have flashed and vibrated.[13]
[12] ts 647; Exhibit 1A, pp 184 - 185.
[13] ts 648.
Under cross-examination, Mr Brooks agreed that the exclusion area did not include the pathways along the street boundaries of the park on Queen Parade and Bluemanna Drive.[14]
[14] ts 657.
Ms Nichols is a senior CCO with COMU, who was previously Mr Bentley's CCO. Ms Nichols' evidence was that when there was an alleged violation of an exclusion zone, a screenshot was retained by the Department of Justice.[15] On 14 December 2021, Ms Nichols produced a copy of the screenshot to the court.[16] The screenshot depicts that Mr Bentley walked south west on the footpath on Regent Drive, which turns into Queen Parade. This path is adjacent to the exclusion zone. The screenshot depicts two red arrows on the path in the exclusion zone of the Kids Park and BBQ as well as a green arrow on the path on Bluemanna Drive. The State contended this screenshot depicted that Mr Bentley entered the path within the exclusion area of the Kids Park and BBQ before exiting the exclusion zone on this same path on Bluemanna Drive. Mr Bentley then walked north on Bluemanna Drive to the intersection with Queen Parade and continued walking on Queen Parade in a south west direction.[17]
[15] ts 669 - 670.
[16] Exhibit 5.
[17] Exhibit 5.
On 2 October 2020, Ms Nichols contacted Mr Bentley in relation to the incident. Her evidence was that Mr Bentley denied entering the exclusion zone and said that he and his partner were out the previous evening walking their dog. They took a different route on this occasion and walked on the footpath adjacent to the exclusion zone. When he was walking on this path, he heard a beep from his transmitter. Mr Bentley agreed he did not contact COMU about this. At the conclusion of this conversation, Ms Nichols gave Mr Bentley a verbal warning.[18]
[18] ts 675 - 676; Exhibit 1B, p 389 [11].
On the basis of the evidence before the court, and in particular exhibit 5, I am satisfied on the balance of probabilities that Mr Bentley entered the exclusion zone entitled 'Kids Park and BBQ' for a brief period of approximately 36 seconds when he walked on the path between Queen Parade and Bluemanna Drive in the south west corner of the exclusion zone.
I find that this conduct was a breach of the direction he had been given on 16 September 2020, which was, in turn, a breach of condition 4 of the Third Supervision Order. I find his conduct was not a breach of condition 7 of the Third Supervision Order. In fact, the only reason the State was aware there had been a breach of the direction and condition 4 was because Mr Bentley was subject to electronic monitoring.
In reaching these conclusions, I do not consider it is necessary for the State to prove that Mr Bentley intended to breach the condition of the Third Supervision Order. Nothing in s 55 of the HRSO Act requires the court to be satisfied that a person intended to or deliberately contravened the order. In this regard, it is my view that there is no change to the position that existed under the DSO Act.[19]
Contravention seven
[19] State of Western Australia v Narkle [No 6] [2018] WASC 51[40] - [42].
On 3 December 2019, Mr Bentley was issued with a written lawful instruction in relation to daily diary recording. The instruction required him to:
(a)maintain a daily diary of his 'movements, activities and associations, including the following information:
·The address of any property (residential, commercial, industrial) attended;
·Purpose of attendance at the address;
·Duration of stay at this address (i.e. time of arrival and departure);
·The names of any individuals with whom you travel;
·Name and surname (if known) of any person you have an interaction with; excluding interactions required for commercial transactions;'
·Present his diary to his CCO at each supervision session.
On 24 February 2021, Mr Bentley stopped at a truck resting bay for approximately 10 minutes on the Kwinana Freeway on his way home from a supervision session. Mr Bentley did not record this in his daily diary. The State contended his failure to record this stop was a contravention of condition 40 of the Third Supervision Order (the respondent maintain a daily diary of his movements, activities and associations as directed by the CCO).
Mr Bentley was issued a written warning for this contravention.
The State contended that stopping at the truck resting bay was an activity that Mr Bentley was required to record in his diary. It was not in dispute that Mr Bentley had not recorded this in his daily diary. Counsel for Mr Bentley submitted that on a fair reading of the written lawful direction, the direction did not require Mr Bentley to record he had stopped for a short time during his car trip back to his residence or the reason for this. He contended this construction was supported by the written lawful instruction that was issued on 24 February 2021 which amended the previous direction and referred to travel with no stops and 'continuous travel without stopping'.
Whether Mr Bentley's conduct in stopping for approximately 10 minutes at a truck resting bay constituted a contravention of the written lawful direction turns on the proper construction of the direction dated 3 December 2019. The State contended that this conduct was an 'activity'. The ordinary and natural meaning of 'activity' is 'the state of action; doing' or 'a specific deed or action'[20] or 'the state of being actively occupied; brisk or vigorous action' or 'something which a person, animal, or group chooses to do'.[21]
[20] Macquarie Dictionary.
[21] Oxford English Dictionary.
In this case, the activity or action that Mr Bentley was engaged in was driving from his supervision session at COMU to his residential address. This action or activity was recorded in his diary. I do not consider the direction dated 3 December 2019 required him to record whether this action or activity was a continuous journey or whether he stopped along the way. The truck resting bay is not a residential, commercial or industrial property. For this reason, in my view, Mr Bentley was only required to record the stop if, while stopped at the truck resting bay, he had an interaction with another person. There is no evidence that this occurred.
In these circumstances, I am not satisfied that the State has established on the balance of probabilities that Mr Bentley contravened the Third Supervision Order by failing to record this stop.
Contravention eight
On 23 April 2021, Mr Bentley provided a sample for urinalysis which was not a valid sample. The creatinine level in the sample was 1.6 mmol when the accepted level is 1.8 mmol. The State contended this was a contravention of condition 43 of the Third Supervision Order (the respondent provide a valid sample for the testing).
Mr Bentley was required to attend to provide a further sample for urinalysis on 27 April 2021 which resulted in the charges referred to in contravention two. No further action was taken in relation to the invalid sample.
Assessment of contraventions
Mr Bentley has pleaded guilty to contravening the Third Supervision Order by contravening the order on two occasions and has not disputed that he contravened it on four additional occasions. In my view, the State has proved on the balance of probabilities that Mr Bentley contravened the Third Supervision Order on a further occasion, making a total of seven separate contraventions.
These contraventions fall into four categories: first, contraventions associated with illicit drug use (contraventions two and eight); second, failing to carry his electronic monitoring system (contraventions one and five); third, failing to record visits in his daily diary (contraventions three and four); and fourth, entering an exclusion zone in breach of a written direction (contravention six).
In my view, the most serious of the contraventions is the first of these categories. While there are a number of additional contraventions, I consider these are fleeting or relatively minor contraventions.
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. In addition, I must be satisfied that the community will be adequately protected by the supervision order.
I set out below a summary of the evidence of the witnesses at the contravention hearing and then turn to consider the basis upon which the State contends Mr Bentley must be detained.
Dr Wynn Owen
For the purpose of the contravention proceedings, Dr Wynn Owen assessed Mr Bentley and provided a written report dated 21 November 2021 pursuant to s 74 of the HRSO Act. Dr Wynn Owen also gave oral evidence at the hearing before me.
Dr Wynn Owen noted in his report that Mr Bentley attended and was fully compliant with the assessment process although, at the time, he had recently declined to attend meetings with the departmental psychologist and his CCO. When asked by Dr Wynn Owen about this, Mr Bentley replied 'You're not the enemy'.[22] Mr Bentley told Dr Wynn Owen that he had found his interactions with COMU to be increasingly stressful since the change of his senior CCO and expressed the view that 'there was an underlying agenda to catch him out'. Mr Bentley acknowledged his reaction to supervision could be interpreted as hostile and that after being returned to custody, he recognised he needed to change the way he interacted with his senior CCO which he did on release between 8 and 28 July 2021. Mr Bentley told Dr Wynn Owen he intended to maintain this when he was next released.[23]
[22] Exhibit 1B, p 520.
[23] Exhibit 1B, p 521.
Dr Wynn Owen noted that Mr Bentley had reported a number of positive changes including that 'I see a future' and 'for the first time in my life I have a life'. The positive changes included his relationship with his partner, Ms M, and having an ongoing project in renovating his boat.[24]
[24] Exhibit 1B, p 521 - 522.
Dr Wynn Owen expressed the opinion that the Risk for Sexual Violence Protocol (RSVP) static risk factors in relation to Mr Bentley are unchanged from his previous assessments.[25] Dr Wynn Owen explained that this was because the assessment was, other than age, based on historical facts. Until Mr Bentley was over 60 (which will occur shortly), his assessment was unlikely to change. When Mr Bentley turns 60, his score will reduce by two points which will take him to the bottom of the 'above-average' range. Offenders with this score have a 20% likelihood of committing a sexual offence within five years.[26]
[25] Exhibit 1B, p 524.
[26] ts 600 - 601.
In Dr Wynn Owen's view, the most significant risk factor for Mr Bentley offending in the future was a return to frequent methamphetamine use, in the context of acute and chronic stressors. In this regard, Dr Wynn Owen noted that the testing regime which was a condition of the Third Supervision Order had detected Mr Bentley's drug use when it occurred. The results of the testing regime suggested Mr Bentley had not returned to regular or frequent drug use.[27]
[27] Exhibit 1B, p 528.
In his oral evidence, Dr Wynn Owen confirmed that he had interviewed Mr Bentley previously in relation to proceedings under both the DSO Act and the HRSO Act: first in relation to the initial application and subsequently, in relation to two separate contravention proceedings. Dr Wynn Owen explained that he had seen two main differences in Mr Bentley over this time. First, Mr Bentley had maintained his personal relationship with his partner, Ms M. This was important as males in relationships are less likely to commit both generalist offences as well as sexual offences.[28] Second, Mr Bentley had taken up a hobby (renovating a boat) which took up a significant amount of his time. This was a prosocial, future-focussed activity which took the place of employment. Dr Wynn Owen explained that Mr Bentley's work on the boat required a structured and methodical approach to the work that needed to be done, required Mr Bentley to learn a number of skills, and brought Mr Bentley into contact with a number of different people which was prosocial. In addition, it required Mr Bentley to manage his time and use his time productively.[29]
[28] ts 599.
[29] ts 599 - 600.
Dr Wynn Owen considered that Mr Bentley's risk of offending could be adequately managed on a supervision order. His view was that:[30]
The supervision order has been effective and - as have previous - his previous periods of time on the supervision order demonstrated that, when Mr Bentley uses substances, he is caught out. Now, for me, that's a very high-risk situation and when it has occurred, the regular testing has found positives and then the system has responded. So the supervision order is doing what it should do.
[30] ts 604.
Dr Wynn Owen's evidence was that while Mr Bentley had an anti-authoritarian tendency as part of his personality, this was not inconsistent with his ability to comply with the requirements of a supervision order. In this regard, Dr Wynn Owen emphasised that Mr Bentley had demonstrated an ability to manage this by attending all of his supervision appointments, even when he knew he would test positive for methylamphetamine and he would be arrested for contravening his supervision order.[31]
[31] ts 611 - 612.
Dr Wynn Owen made a number of recommendations in relation to Mr Bentley, including that Mr Bentley participate in private psychotherapy to assist him in managing his stress.[32]
Ms Korda
[32] ts 604.
Ms Korda is a senior forensic psychologist with the Department of Justice, who prepared a treatment progress report of Mr Bentley for the contravention hearing. For the purposes of this report, Ms Korda interviewed Mr Bentley on 5 and 12 November 2021.[33] Ms Korda also gave evidence at the contravention hearing.
[33] Exhibit 1B, p 489.
Between December 2019 and December 2020, Mr Bentley attended 16 individual sessions with Ms Ballantyne, a senior counselling psychologist at East Perth Adult Community Corrections, and then a further session in July 2021. Ms Korda explained the limitations on what had been achieved in the initial sessions with Ms Ballantyne due to Mr Bentley's reluctance to discuss personal issues. This was because he was aware of the limits of confidentiality associated with any disclosures he made. Despite this, Ms Korda reported that Mr Bentley had made progress in adjusting to community living and engaging in meaningful activities.[34]
[34] Exhibit 1B, p 490 - 491.
Due to the limitations in Mr Bentley's engagement with his psychologist, he had not addressed the dynamic risk factors that had led to his offending. As a result, he had a primary outstanding treatment issue of emotional management, which had previously contributed to his methamphetamine use. Ms Korda expressed the opinion that Mr Bentley's engagement with a community based psychological service through the Better Access initiative was the most appropriate option to address his outstanding treatment needs.[35]
Ms Serrano
[35] Exhibit 1B, p 494 - 497.
Ms Serrano, a senior CCO, prepared a performance report in relation to Mr Bentley for the purposes of the contravention hearing[36] and gave oral evidence at the hearing.
[36] Exhibit 1B, p 498 - 514.
Prior to being detained in custody as a consequence of his contravention of the Third Supervision Order, Mr Bentley had reported for all weekly supervision sessions as directed. Ms Serrano expressed the opinion that Mr Bentley's engagement with supervision was generally acceptable although it was varied, particularly when he was frustrated by the requirements of the Third Supervision Order.[37] Ms Serrano stated that Mr Bentley continued to display behaviours consistent with his established pattern of antisocial behaviours and had a tendency to challenge authority.[38]
[37] Exhibit 1B, p 503.
[38] Exhibit 1B, p 503.
In her written report, Ms Serrano confirmed that since being detained in custody, Mr Bentley had not had any prison incidents or charges. Ms Serrano did not recommend any changes to the conditions of the Third Supervision Order, a number of which addressed the management of Mr Bentley's risk to the community.
Ms Serrano confirmed that in the three week period between 8 July 2021 and 28 July 2021, there was a reduction in the hostility exhibited by Mr Bentley towards her. Ms Serrano explained that this was not unusual and was consistent with an overall fluctuation in hostility displayed by Mr Bentley.[39]
[39] ts 686 - 687.
State's submissions
The State submitted that, for a number of reasons, Mr Bentley would not be able to satisfy the court that he would substantially comply with the standard conditions of any supervision order. For this reason, the State contended that the Third Supervision Order should be revoked and a continuing detention order made. The State also relied on the number of contraventions of the Third Supervision Order as evidence that Mr Bentley would not be able to satisfy the court that he would substantially comply with the reasonable directions of his CCO.
First, the State submitted that two of the contraventions, namely the use of methylamphetamine (contravention two) and the provision of a diluted sample (contravention eight), were so serious in themselves that they warranted a recission of the Third Supervision Order and the making of a continuing detention order.[40]
[40] ts 727.
Second, the State contends that Mr Bentley has an 'anti-authoritarian attitude and a hostility or animosity towards the authorities'.[41]
[41] ts 595.
Third, this was the second occasion on which Mr Bentley has used methylamphetamine while subject to a supervision order. The State contended that unless the court was satisfied that Mr Bentley would abstain from using methylamphetamine if he was released on a supervision order, Mr Bentley could not be released on a supervision order.[42]
[42] ts 595 - 596.
Respondent's submissions
Counsel for Mr Bentley submitted that notwithstanding the number of contraventions of the supervision order that had occurred, Mr Bentley should be released on a supervision order. In this regard, he emphasised that the purpose of the HRSO Act was to prevent Mr Bentley from committing serious offences that affect members of the community in a direct way.[43] While Mr Bentley had contravened his supervision order on two occasions by using methylamphetamine, Mr Bentley had not committed any serious or indictable offence since his initial release on a supervision order in May 2018.
[43] ts 745.
Disposition
For the following reasons, I was and am satisfied on the balance of probabilities that Mr Bentley will substantially comply with the standard conditions of the Third Supervision Order and that the community will be adequately protected by the conditions of this order.
First, the primary risk associated with Mr Bentley's previous offending is the sustained use of methylamphetamine. I accept the evidence of Dr Wynn Owen that this risk factor can be managed in the community on a supervision order containing appropriate conditions, such as urinalysis and requiring him to abstain from methylamphetamine use. Mr Bentley has been subject to very regular urinalysis which, for the most part, evidences Mr Bentley's abstinence from illicit drug use.
Second, Mr Bentley continues to have a strong and supportive relationship with his partner, Ms M. As Dr Wynn Owen noted, this is a significant factor in his favour as it is a protective and prosocial factor that reduces Mr Bentley's risk of future offending.
Third, the work that Mr Bentley is doing on his boat has a number of protective and prosocial effects. It keeps him occupied for long periods of time, it requires him to interact with different members of the community, he is required to manage his time and is learning new skills.
Fourth, Mr Bentley has repeatedly expressed a strong desire not to return to custody and that he is committed to do what is required to ensure that this occurs. This commitment is evidenced by the reduction in the hostility that he has expressed on occasions to those officers of COMU who are responsible for managing him as well as his behaviour while detained in custody prior to the contravention hearing.
I accept the evidence of Dr Wynn Owen that each of these matters is a significant positive change that has occurred since Mr Bentley was first placed on a supervision order.
Finally, while I accept there has been a relatively significant number of contraventions, these contraventions are (with the exception of contraventions two and eight) relatively minor. I do not consider the nature or number of these contraventions are evidence that Mr Bentley will not substantially comply with the standard conditions of the supervision order. Based on his performance on the supervision order to date, his behaviour in custody and the expert opinion of Dr Wynn Owen, which I accept, I am satisfied on the balance of probabilities that Mr Bentley will substantially comply with the standard conditions of a supervision order.
Taking into account all of the material before the court and, in particular, the evidence of Dr Wynn Owen and Ms Korda, it was and is my view that the risks of Mr Bentley committing a serious offence can be managed in the community.
Amendment of the Third Supervision Order
At the hearing, counsel for Mr Bentley submitted that a number of the conditions of the Third Supervision Order (such as the condition requiring Mr Bentley to remove himself if a person is having alcohol in his presence) were, in effect, 'boilerplate provisions' which did not specifically address the risk factors that contributed to Mr Bentley's previous offending.
In my view, a number of the conditions of the Third Supervision Order are conditions that are regularly sought by the State and, in the case of Mr Bentley, have little relevance to the risks of re-offending that have been identified in his case. As a consequence, it was and is my view that these conditions should be removed or amended.
Accordingly, at the conclusion of the hearing, I ordered that Mr Bentley be released on the Third Supervision Order subject to certain amendments to the conditions of that order. The amended terms of the supervision order are set out in the Annexure to these reasons.
Finally, as explained by Ms Korda, the sessions that Mr Bentley attended with the senior counselling psychologist did not address his outstanding treatment needs. In my view, it is critically important that Mr Bentley engage with a community based psychological service through the Better Access initiative to address these. I consider this is required to give Mr Bentley the greatest prospect of success in completing the remaining period of the Third Supervision Order without contravention.
Annexure A
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FD
Associate to the Honourable Justice Hill
25 JANUARY 2022
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