The State of Western Australia v Blurton
[2022] WASC 439
•15 DECEMBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BLURTON [2022] WASC 439
CORAM: STRK J
HEARD: 9 DECEMBER 2022
DELIVERED : 9 DECEMBER 2022
PUBLISHED : 15 DECEMBER 2022
FILE NO/S: SO 16 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KENNETH PAUL BLURTON
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)
Result:
Orders pursuant to s 46(2) made
Preliminary hearing adjourned part heard
Category: B
Representation:
Counsel:
| Applicant | : | D McDonnell |
| Respondent | : | A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182
The State of Western Australia v Hansen [2022] WASC 391
The State of Western Australia v Narrier [2021] WASC 250
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
Table of Contents
Introduction
The law
The evidence
Background and offending history
Reports and assessments
Rehabilitation attempts and behaviour in prison
Proposed accommodation
Post-sentence supervision order
Disposition
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
Preliminary hearing otherwise adjourned part heard
STRK J:
Introduction
On 8 November 2022, the State of Western Australia applied for a restriction order in respect of Kenneth Paul Blurton under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
The preliminary hearing of the application came before me on 9 December 2022.
The main purpose of the preliminary hearing is for the court to decide whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act. The State submitted that there were sufficient facts and circumstances for the court to be satisfied of the same. The State further pressed for an order that the respondent be detained in custody, alternatively that he be released on an interim supervision order, until the determination of the proceeding.
At the hearing of the application, counsel for the respondent did not make submissions in opposition to the court finding that there exist reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act.
On the materials filed, I was satisfied that the requirements of s 46 had been met, and on 9 December 2022 I made orders programming the hearing of the restriction order application. I otherwise adjourned the preliminary hearing part heard to 16 December 2022.
My reasons are as follows.
The law
Pursuant to s 46 of the HRSO Act, the main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[1]
[1] HRSO Act s 7(1).
A 'serious offence' within the meaning of the HRSO Act, relevant to the respondent, includes robbery (Criminal Code s 392) and assault with intent to rob (Criminal Code s 393).[2]
[2] HRSO Act s 5, read with sch 1 div 1 subdiv 3.
The nature of the test to be applied under s 46(1) of the HRSO Act is well‑established.[3] The court need not be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible, and belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[3] See, for example, The State of Western Australia v Hansen [2022] WASC 391 [10]; The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21]; The State of Western Australia v Winder [2021] WASC 65 [16]. The High Court recently upheld the constitutional validity of the HRSO Act insofar as it applies to the offences of robbery and assault with intent to rob in Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182.
The evidence
In support of its application, the State relied upon the affidavit of James Francis Bennett deposed to on 8 November 2022. Mr Bennett's affidavit contained details of Mr Blurton's criminal history, as well as several reports in relation to him. Those reports included reports which recorded the respondent's involvement in programs while in prison, psychological and psychiatric reports, pre-sentence reports, a treatment assessment report, a parole review report, an individual management plan, a neuropsychological assessment, and a summary of Parole Board and Prisoners Review Board outcomes.
In addition to Mr Bennett's affidavit, I received an affidavit from a team leader of the Community Offender Monitoring Unit, Aimee Goode, affirmed on 30 November 2022, as well as an affidavit of Martyn James Clancy-Lowe sworn on 1 December 2022. Both of these affidavits addressed the respondent's proposed accommodation upon his release, which I address below.
I also received various documents prepared by the Department of Justice, including:
(a)the post-sentence supervision order made by the Prisoners Review Board on 23 November 2022; and
(b)a post-sentence supervision order report written by Melissa Madrigali on 3 November 2022.
I note that the post-sentence supervision order has a start date of 17 December 2022 and it will expire on 16 December 2023.
Background and offending history
The respondent is 44 years of age and has a significant history of offending dating back to his childhood.[4] As an adult, he has convictions for violent offences (including aggravated assault with intent to rob, aggravated robbery (both armed and not), grievous bodily harm, unlawful assault causing bodily harm, and common assault), as well as for property offences (including burglary (both aggravated and not), stealing, stealing a motor vehicle and criminal damage). He has also been convicted of offences relating to supervision (namely, breaches of bail, suspended sentence and intensive supervision orders); offences of a public nature (namely, disorderly conduct and giving a false name and/or address); offences relating to the possession of weapons and drugs; and driving-relating offences.
[4] Affidavit of JF Bennett, annexure A.
His criminal history includes four convictions for serious offences within the meaning of the HRSO Act, being two convictions for aggravated armed robbery in 2005 and convictions for aggravated robbery and aggravated assault with intent to rob in 2019.
The circumstances of the 2005 offences were as follows.[5] At about 10 pm on 8 January 2005, the respondent went into a home in the company of another male. The homeowners were elderly and two elderly guests were also present. One of the offenders was armed with a broomstick, the other with a metal pole. They gained entry by forcing open a flyscreen and climbing in an open window in the main bedroom, at which point they stole jewellery and clothes. One offender went into the rear of the house armed with the broomstick and aggressively pointed it to the occupants, demanding money. One of the occupants defended himself with a chair and the offender struck him with the broomstick on the arm and hand, before stealing a handbag and fleeing. The respondent pleaded guilty to aggravated armed robbery, for which he was sentenced to 5 years imprisonment. He also pleaded guilty to aggravated burglary (which is not a serious offence under the HRSO Act), for which he was sentenced to 3 years imprisonment.[6]
[5] Affidavit of JF Bennett, annexures J - M.
[6] Affidavit of JF Bennett, annexure M.
On 10 January 2005, the victim, who was 59 years old, was withdrawing money from an ATM when the respondent approached him. The respondent struck the victim to the back of the head with a large clay brick, which knocked the victim to the ground and resulted in a fractured skull and bleeding on the brain. While the victim lay unconscious, the respondent took his wallet from inside his jacket pocket and left the scene. The respondent pleaded guilty to aggravated armed robbery and was sentenced to 6 years imprisonment.[7]
[7] Affidavit of JF Bennett, annexure M.
The circumstances of the respondent's most recent serious offences were as follows.[8] At around 7 am on 15 September 2019, the respondent and another male drove to an underground carpark at Burswood Casino. The respondent alighted from the vehicle and ran towards the victim, who was 21 years old and going to work. The respondent shouldered the victim with substantial force, causing her to fall to the ground and suffer bruising and grazing to her knees and shoulders, and pulled her handbag from her shoulder. The respondent ran back to the vehicle and he and the co-offender drove away.
[8] Affidavit of JF Bennett, annexure E.
On the same day, the respondent and the co-offender drove to the Belmont Village Shopping Centre car park. They watched the victim walk from the shopping centre into a takeaway restaurant. After the victim had left the restaurant and was walking across the car park, one of the offenders ran directly at her, knocking her to the ground with force. While she was on the ground, the respondent pulled at the victim's handbag, as well as taking hold of her bra strap, causing both the bag strap and bra strap to break. During the incident, the victim screamed loudly and held onto her bag, resulting in by-standers coming to her assistance and the co-offenders fleeing. As a result of the attempted robbery, the victim sustained injuries to her elbow and minor bruising to her upper arm, and her mobile phone was damaged.
The respondent pleaded guilty to aggravated robbery (Criminal Code s 392(d)) and aggravated assault with intent to rob (Criminal Code s 393(d)).[9] He was sentenced to 2 years and 2 months imprisonment and 12 months imprisonment respectively, to be served cumulatively. He will have completed that sentence on 17 December 2022.[10]
Reports and assessments
[9] Affidavit of JF Bennett, annexure F.
[10] Affidavit of JF Bennett, annexure B.
A treatment assessment report dated 8 March 2021 gives an insight into the respondent's background.[11] It noted that his juvenile offending occurred in the context of entrenched substance use and that his upbringing was characterised by instability, grief and loss, substance use, violence and abuse.[12] He lived with his parents, who were both dependent on alcohol, until the age of seven, and afterwards with his maternal grandparents, who provided a relatively stable home. When the respondent was 10, his grandparents died suddenly and in quick succession. The respondent was then placed in the care of various relatives and foster homes, but frequently absconded and offended. As a teenager he was exposed to substance use and domestic violence at his various placements, resulting in a significant amount of time spent in juvenile detention.
[11] Affidavit of JF Bennett, annexure AB.
[12] Affidavit of JF Bennett, annexure AB (section 3).
The treatment assessment report dated 8 March 2021 recorded that the respondent's adult offending has occurred in the context of entrenched polysubstance use and potential institutionalisation. In relation to the former, the treatment assessment report recorded that in interview, the respondent claimed to have abstained from substance use for over 12 months while incarcerated, which claim was supported by urinalysis testing.[13] The author of the report also identified substance use and poor impulse control as treatment needs.[14]
[13] Affidavit of JF Bennett, annexure AB (section 3).
[14] Affidavit of JF Bennett, annexure AB (section 4).
The report recorded that two risk assessment tools were used in assessing the respondent, namely:
(a)the Level of Service / Risk, Need, Responsivity assessment tool, which indicated that the respondent had a 'very high risk of generalist offending';[15] and
(b)the Violence Risk Scale assessment, which indicated that:[16]
Mr Blurton presents a high risk of violent reoffending. Mr Blurton's dynamic risk factors include his attitudes regarding violence, use of interpersonal aggression, lack of emotional control, violence during institutionalisation and poor impulse control.
[15] Affidavit of JF Bennett, annexure AB (section 3).
[16] Affidavit of JF Bennett, annexure AB (section 4).
On 21 April 2020, a psychiatric report was prepared by Dr Kelly Palmer for the purposes of sentencing the respondent for his convictions for aggravated robbery and aggravated assault with intent to rob.[17] Dr Palmer noted that as a child, the respondent suffered two head injuries, the first from being hit by a car at aged 12, and the second from being hit with an iron bar in his mid‑teens, which may have increased his propensity for impulsivity and poor decision making.[18] Dr Palmer diagnosed the respondent with Polysubstance Dependence (alcohol, heroin, cannabis), Methamphetamine Abuse and Antisocial Personality Disorder, and opined as follows:[19]
[26]Mr Blurton's offending history and illicit substance use became a problem during his childhood from age 10. Mr Blurton grew up in a negative environment consisting of unstable accommodation and caregivers, early parental separation, violence, neglect, drug use, normalised criminal behaviour, school inattendance and poor academic performance. He is highly institutionalised and lacks skills to manage life outside of prison. He does not have an employment history. He is physically and emotionally dependent on multiple substances including alcohol, heroin, cannabis and methamphetamine. He has an Antisocial Personality Disorder.
[27]Mr Blurton has a history of recidivism and remains at high risk of reoffending. He remains at significant risk of reoffending in a violent manner, particularly in situations when under stress or threat from others, or as a means to obtain cash or goods to exchange for illicit substances.
[28]Mr Blurton's offending on this occasion was influenced primarily by his antisocial personality structure characterised by poor decision-making and lack of empathy and consequential thinking, whilst disinhibited by use of alcohol and illicit substances.
[17] Affidavit of JF Bennett, annexure AA.
[18] Affidavit of JF Bennett, annexure AA (par 10).
[19] Affidavit of JF Bennett, annexure AA (pars 25 - 28).
A neuropsychological assessment was prepared by Karen van Eden on 11 August 2021 for the purpose of consideration by the Prisoners Review Board.[20] Ms van Eden considered that the respondent's level of general intellectual ability was in the extremely low range (below the 2nd percentile), and that he functions at the level of a mild intellectual disability, which was likely due to the brain injury at aged 12 and his early onset drug use.[21] Most relevant to this application, Ms van Eden reported that:
36.Mr Blurton's results indicated impaired new learning and verbal memory at the level of encoding. Functionally, he would be expected to appear amnestic. Mr Blurton also demonstrated concrete thinking, impulsivity, mental inflexibility, difficulty understanding social norms and rules, language difficulties, and poor planning ability. These deficits would most certainly impact his functioning in activities of daily living and lead to poor judgement and decision making.
37.Mr Blurton's history of polysubstance abuse in the community places him at ongoing risk of cognitive decline and reoffending. His recreational activities reportedly primarily involved drug abuse and pursuits to fund it.
38.Given Mr Blurton's neuropsychological profile, level of cognitive impairment and antisocial personality structure, it is expected that he would have significantly limited skills in the community. In my opinion, he is at increased risk of reoffending and violent behaviour unless adequately and appropriately supported in the community in the short and long term. It will be equally important for Mr Blurton to remain drug and alcohol free and it is considered that he will need consistent and substantial assistance to do so.
…
42. Mr Blurton will need substantial support to reintegrate and adjust to living in the community and would benefit from regular input from a culturally competent support worker. He will need assistance to organise and manage things like appropriate (supported) housing, filling in forms, keeping appointments, budgeting and, most importantly, remaining substance free.
[20] Affidavit of JF Bennett, annexure AE.
[21] Affidavit of JF Bennett, annexure AE (pars 31 and 35).
The respondent's possible cognitive issues and the need for, but lack of, support for him while in the community was also noted in previous reports, including in a psychological report prepared by Jane Sampson on 13 April 2020,[22] and a pre-sentence report prepared by Amber Webster dated 21 April 2020 for the purposes of sentencing in relation to the index offences.[23]
[22] Affidavit of JF Bennett, annexure Y.
[23] Affidavit of JF Bennett, annexure Z.
As at 9 December 2022, the respondent's assessment status and whether support might be available for him via the National Disability Insurance Scheme was unknown.[24]
Rehabilitation attempts and behaviour in prison
[24] Affidavit of ASE Goode par 12; ts 3, 7 (9 December 2022).
With respect to the respondent's behaviour in prison, it was noted in an individual management plan dated 12 May 2021 that the respondent was polite and respectful in his dealings with prison officers, responded well to authority, appeared to interact well with other prisoners, and he had not been the subject of any administrative sanctions during his current sentence.[25] No more recent prison records were before the court.
[25] Affidavit of JF Bennett, annexure AD.
During his current term of imprisonment, the respondent participated in a Violent Offending Intensive Treatment program, being a 310 hour group treatment program for high risk male offenders which the respondent completed in March 2019.[26] The completion report noted that although the respondent was motivated to complete the program, the facilitators observed that he had an overall lack of understanding of program content; an inability to stay on task; poor attention span; short-term memory difficulties; difficulty with information recall; a limited understanding of program concepts; and a limited ability to link concepts, information, or to self-reflect.
[26] Affidavit of JF Bennett, annexure X.
The respondent was also assessed as suitable for other violent and addictions offending programs, but none became available during his current term of incarceration.[27]
[27] Post-sentence Supervision Order Report dated 3 December 2022
In 2015, the respondent completed the Think First program.[28] In the program completion report, the respondent's participation was described as follows:
Mr Blurton displayed a wide range of behaviours during the course. At times he appeared positive and involved, while on many occasions he presented as disinterested and voiced negative opinions about the course. As a result, it was sometimes difficult to gauge the depth of his understanding.
Mr Blurton appeared to make minor gains in the areas of Ability to Recognise that Problems Exist, Social Perspective Taking and Motivation to Change.
[28] Affidavit of JF Bennett, annexure W.
In earlier terms of imprisonment, the respondent completed programs, such as the Skills Training For Aggression Control program (1997 and 1999), a Male Group Addiction program (1999 and 2001), a Managing Anger and Substance Use program (2003), and the Cognitive Skills Reasoning and Rehabilitation program (2004).[29]
Proposed accommodation
[29] State's submissions pars 40 - 41; affidavit of JF Bennett, annexure T, annexure U.
In relation to the proposed accommodation of the respondent upon his release, I note as follows. The respondent advised the Community Offending Monitoring Unit that he proposed to live with his partner in Kensington.[30] While the post-sentence supervision order states that the respondent's proposed address is in Wilson, I understand that the respondent's partner left the Wilson address in January 2021,[31] and her current bail conditions require her to reside at the Kensington address.[32] The proposed interim supervision order filed by the State included a condition that the respondent reside at the Kensington address.
[30] Affidavit of ASE Goode par 7.
[31] Affidavit of MJ Clancy-Lowe par 20.
[32] Affidavit of MJ Clancy-Lowe par 10.
During a telephone call with a senior community corrections officer on 15 November 2022, the respondent's partner expressed her knowledge of the respondent's criminal history, confirmed her willingness for the respondent to reside with her, and acknowledged her understanding that the respondent might be subject to stringent conditions including electronic monitoring.[33]
[33] Affidavit of ASE Goode pars 8 and 11.
The respondent's partner also reported that she resides at the proposed address with her son and she denied any drug or alcohol use in the home.[34]
[34] Affidavit of ASE Goode par 9.
The respondent's partner is on bail for charges of drug possession (cannabis), gaining benefit by fraud, breach of a violent restraining order, aggravated common assault and obstruction.[35] She also has past convictions for possession of a prohibited drug, aggravated common assault and criminal damage.[36]
[35] Affidavit of ASE Goode par 9; affidavit of MJ Clancy-Lowe par 9.
[36] Affidavit of MJ Clancy-Lowe par 7, annexure A.
Police records further indicate that in the past year, there had been five incidents involving assault complaints and seven occasions requiring police attendance relating to family violence matters at the Kensington address.[37]
[37] Affidavit of MJ Clancy-Lowe pars 13 - 14.
The respondent did not provide any alternative accommodation options.[38] As noted above, as at 9 December 2022 the respondent's assessment status and whether there might be available support for him via the National Disability Insurance Scheme was unknown.[39]
Post-sentence supervision order
[38] Affidavit of ASE Goode par 10.
[39] Affidavit of ASE Goode par 12; ts 3, 7 (9 December 2022).
On 23 November 2022, the Prisoners Review Board issued a post‑sentence supervision order pursuant to pt 5A of the Sentence Administration Act 2003 (WA) with respect to the respondent. The order starts on 17 December 2022 (being the date he completes his current sentence) and ends on 16 December 2023.
The Prisoners Review Board determined that the post-sentence supervision order was appropriate due to the respondent's unmet treatment needs (violent offending and addiction offending) as evidenced by the nature of his current offences and his criminal history; his cognitive impairments and substantial support he will require to reintegrate and adjust to living in the community; his extensive criminal history of violence, which suggests a high risk of reoffending; and his lack of sufficient protective strategies in place to reduce the risk to the safety of the community or to support his rehabilitation. The Board was of the opinion that further monitoring and supervision would assist the respondent to build support networks and successfully reintegrate into the community, while reducing the risk of him committing a serious offence and thereby reducing the risk his release poses to the safety of the community.
The post-sentence supervision order report also noted that in terms of community supervision, the respondent has a poor history of compliance. The respondent was last afforded the opportunity of parole in 2004, which was cancelled due to re-offending.[40]
[40] Post-sentence supervision order report dated 3 December 2022.
Disposition
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
I was and am satisfied that there are reasonable grounds to believe that a court might find the respondent to be a high risk serious offender, a conclusion which was not opposed by the respondent at the hearing. My reasons for so concluding are as follows.
While not all of the respondent's past offending has involved 'serious offences' within the meaning of the HRSO Act, I accept the State's submission that much of his offending supports the potential for a finding that he has a propensity to commit property offences which are often violent and directed towards vulnerable individuals, particularly when he engages in substance abuse.[41] I gave particular weight to the respondent's neuropsychological assessment, noting those passages of the report reproduced at [26] above.
[41] State's submissions par 39.
On the basis of the respondent's offending history, and his unmet treatment and support needs, I was and am satisfied that there are reasonable grounds to believe that a court might find that the respondent is a high risk serious offender. I therefore made orders programming the hearing of the restriction order application, which is to be heard on 5 May 2023.
Preliminary hearing otherwise adjourned part heard
The preliminary hearing was otherwise adjourned part heard to 16 December 2022 for two reasons.
First, to the extent possible, I wished to receive information as to the respondent's assessment status and whether support might be available for the respondent via the National Disability Insurance Scheme if he were released on 17 December 2022 subject to an interim supervision order or the post-sentence supervision order. I considered such information to be relevant to the assessment of:
(a)whether an interim detention order ought be made;
(b)the extent to which the court can be satisfied not only that the respondent will adhere to the conditions of an interim supervision order, but also that adherence to the conditions of an interim supervision order will ensure the adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community; and
(c)whether the requirements of community protection would be met by the release of the respondent subject to the post‑sentence supervision order.[42]
[42] Given the non-prescriptive wording of both s 46(2)(c)(i) and s 58(5), I proceed on the basis that it is open to the court to make neither an interim detention order nor an interim supervision order pending the determination of the restriction order application: see The State of Western Australia v Narrier [2021] WASC 250 [59].
Secondly, I was cognisant that if the respondent were made subject to an interim supervision order until the determination of the restriction order application pursuant to s 58(5) of the HRSO Act, the post‑sentence supervision order would be cancelled by operation of s 74J(3) of the Sentence Administration Act. Information as to whether the respondent is eligible to receive support via the National Disability Insurance Scheme may be relevant to the respondent's position at the preliminary hearing, particularly as to whether he seeks the imposition of an interim supervision order as an alternative to interim detention (if release subject to the post‑sentence supervision order was not favourably considered).
In the circumstances, I ordered that any available information as to the respondent's status and the availability of support via the National Disability Insurance Scheme be filed and served by the State prior to 16 December 2022. In the interim, counsel for the respondent indicated that she would seek instructions from the respondent.
The court was also informed that the earliest a substantive report might be prepared by the Department of Justice as to the respondent's circumstances for release on the conditions proposed by and filed by the State under either a post-sentence supervision order made under the Sentence Administration Act, or an interim supervision order made under the HRSO Act, was 16 January 2023.[43]
[43] ts 9 (9 December 2022).
Without predetermining the outcome of the adjourned preliminary hearing, at the suggestion of the State, the court requested of the Department of Justice that a report be prepared by 16 January 2023 as to the respondent's circumstances for release on the conditions proposed by and filed by the State under either a post-sentence supervision order made under the Sentence Administration Act, or an interim supervision order made under the HRSO Act. The court requested that such assessment include an assessment of the proposed residential address and confirmation of the respondent's status and any available support via the National Disability Insurance Scheme.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk
15 DECEMBER 2022
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