The State of Western Australia v Blurton [No 2]

[2022] WASC 455

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BLURTON [No 2] [2022] WASC 455

CORAM:   STRK J

HEARD:   16 DECEMBER 2022

DELIVERED          :   16 DECEMBER 2022

PUBLISHED           :   21 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 interim detention order is desirable - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)

Result:

Interim detention order made

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):

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182

The State of Western Australia v Blurton [2022] WASC 439

The State of Western Australia v Narrier [2021] WASC 250

STRK J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

1. 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 first came before me on 9 December 2022. After considering the materials filed and after hearing counsel, I was satisfied that there were reasonable grounds for believing that the court might find the respondent to be high risk serious offender within the meaning of the HRSO Act. I otherwise adjourned the preliminary hearing part-heard to 16 December 2022. My reasons for so concluding and for adjourning the hearing part-heard have since been published: The State of Western Australia v Blurton [2022] WASC 439. I do not intend to repeat here what was said in those reasons. These reasons should be understood with and as if they incorporate the earlier reasons.

2. The question that remains is whether it is necessary to make an order pursuant to s 46(2)(c)(i) of the HRSO Act that the respondent be detained in custody until the determination of the restriction order application, or an order pursuant to s 58(5) of the HRSO Act that the respondent be placed on an interim supervision order until the determination of the restriction order application.  I proceed on the basis that it is open to the court, given the non‑prescriptive wording of both s 46(2)(c)(i) and s 58(5), to make neither an interim detention order nor an interim supervision order pending the determination of the restriction order application.[1]

   [1] The State of Western Australia v Narrier [2021] WASC 250 [59].

3. The State pressed for an interim detention order to be made pending determination of the restriction order application.  In the alternative, the State sought that the respondent be placed on an interim supervision order.  In the end, the alternative was not pursued in light of the respondent's position in relation to the same, which I discuss below.

4. At the hearings on 9 December 2022 and 16 December 2022, counsel for the respondent submitted that the post-sentence supervision order would be sufficient to both supervise and treat the respondent, and to provide protection to the community.[2] In this regard, counsel for the respondent submitted that the post-sentence supervision order, which contemplates urinalysis, breath testing, a prohibition from entering licensed premises, mental health treatment, programs and counselling, will adequately address the factors that inform the respondent's risk of reoffending. An interim supervision order was not promoted on behalf of the respondent in the alternative to him being released subject to the post-sentence supervision order or made subject to an interim detention order in light of the operation of s 74J(3) of the Sentence Administration Act 2003 (WA).[3]

   [2] ts 4 - 5 (9 December 2022); ts 19 (16 December 2022).

   [3] ts 5 (9 December 2022); ts 22 - 23 (16 December 2022).

5. On the materials filed and having given careful consideration to the submissions made, I am satisfied that it is desirable for the protection of the community that an interim detention order be imposed pending the final determination of the restriction order application.

6. My reasons for so concluding are as follows.

7. I am satisfied on the basis of the materials before me that there are reasonably strong prospects of the applicant satisfying the court that the respondent is a high risk serious offender.  While not all of the respondent's past offending has involved 'serious offences' within the meaning of the HRSO Act, I proceed on the basis 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.  I placed particular weight on the  neuropsychological assessment prepared by Karen van Eden on 11 August 2021 for the purpose of the Prisoners Review Board.[4]

   [4] Affidavit of JF Bennett, annexure AE; as discussed in The State of Western Australia v Blurton [26].

8. I accept that a detention order ought be one of last resort.[5] Unfortunately, the materials suggest that the respondent is 'at increased risk of reoffending and violent behaviour unless adequately and appropriately supported in the community in the short and long term'.[6] The respondent's possible cognitive issues and the need for, but lack of, support for him while in the community have been noted in previous reports, including in the neuropsychological assessment prepared by Karen van Eden on 11 August 2021 2020, and a pre-sentence report prepared by Amber Webster dated 21 April 2020 for the purposes of sentencing in relation to the index offences.[7]

   [5] See, for example, Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182[217], [229] - [234] (Edelman J); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [14].

   [6] Affidavit of JF Bennett, annexure AE; as discussed in The State of Western Australia v Blurton [26].

   [7] As discussed in The State of Western Australia v Blurton [26] - [27].

9. While the Prisoners Review Board may amend a post‑sentence supervision order at any time before the end of the order period,[8] I have considered the post‑sentence supervision order in its current terms.  I accept that there are some aspects of the post‑sentence supervision order that may afford a measure of protection to the community upon the respondent's release.  For example, under the post‑sentence supervision order the respondent can be referred to the local Department of Justice community drug services team for substance abuse counselling sessions, and urinalysis testing can be utilised to monitor his abstinence from illicit substances.[9]  He may also be referred to a Department of Justice psychologist for counselling to assist with improving his cognitive thinking skills, pro‑criminal behaviours, and consequential thinking skills.[10]

   [8] Sentence Administration Act s 74I(1).

   [9] Post-sentence Supervision Order Report dated 3 December 2022.

   [10] Post-sentence Supervision Order Report dated 3 December 2022.

10. However, on balance, I am not satisfied that the conditions of the post‑sentence supervision order adequately meet the requirements of community protection, as they do not appear adequate to meet the supervision and support needs of the respondent immediately upon his release. 

11. I am cognisant that the respondent will have stable (albeit not ideal) accommodation. I accept that reliable accommodation is necessary for supervision and structure, and that available accommodation for the respondent is unlikely ever to be perfect. However, I am particularly influenced by the fact that the post‑sentence supervision order does not allow for a curfew condition or electronic monitoring. The materials before me consistently suggest that the respondent will need significant support and structure to mitigate the risk he poses to the community. Indeed, the post‑sentence supervision order report recorded that 'a curfew between 8pm ‑ 8am would be considered a viable option to mitigate risk of further offending given his offences took place in the early hours of the morning and late evenings'. Regardless of the time of day that his offending took place, the materials suggest that a curfew is appropriate and would provide the respondent with necessary structure and thereby mitigate against the risk of reoffending. Further, in light of the risk the respondent poses and the type of offending he has to date engaged in, electronic monitoring is appropriate. As noted, the respondent resists the imposition of an interim supervision order in light of the operation of s 74J(3) of the Sentence Administration Act.

12. I have also weighed in the balance that the respondent has been convicted of offences relating to supervision (namely, breaches of bail, suspended sentence and intensive supervision orders).  The respondent's response to supervision to date appears to be poor, although I note that the last time he was afforded the opportunity of parole was in 2004.

13. On the basis of the evidence before me, it appears that the high risk that the respondent might ultimately be found to pose to the community will only be mitigated with supervision and treatment in conjunction with significant community support and assistance for the respondent. On the information available at the preliminary hearing, I am not satisfied that the appointment of a community corrections officer in accordance with the post-sentence supervision order will provide the level of support and assistance necessary to appropriately address the risk posed.

14. From my review of the materials, particularly the reports referred to at [8] above, it is clear that the respondent's need for support upon his release is not a matter that has suddenly arisen. It would have been far preferable for the court to have been informed at the preliminary hearing of the support, if any, available to the respondent upon his release. However, as at 16 December 2022, the respondent's assessment status and whether support might be available for him via the National Disability Insurance Scheme is unknown.[11]

    [11] ts 18 (16 December 2022).

15. I am cognisant of the undesirability of depriving the respondent of his liberty prior to the restriction order application being finally determined, bearing in mind that the application may ultimately be refused.  However, in all of the circumstances, I am not satisfied that a post-sentence supervision order would provide sufficient protection from the community absent significant support for him while in the community.

16. For these reasons, I will make an interim detention order pending the determination of the application. 

17. I do not vacate order 9 of the orders made on 9 December 2022. That is, the court maintains its request 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 requests that such assessment include an assessment of the respondent's proposed residential address and confirmation of the respondent's status and any available support via the National Disability Insurance Scheme.

18. Further, it is particularly appropriate in this case that there be liberty to apply in relation to an interim supervision order application in the event that the issues identified above can be addressed.

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

21 DECEMBER 2022