The State of Western Australia v Bunwarrie
[2022] WASC 348
•24 OCTOBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BUNWARRIE [2022] WASC 348
CORAM: DERRICK J
HEARD: 21 OCTOBER 2022
DELIVERED : 21 OCTOBER 2022
PUBLISHED : 24 OCTOBER 2022
FILE NO/S: SO 14 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
LENNOX JUNIOR BUNWARRIE
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 - Restriction order application - Preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Turns on own facts
Legislation:
Community Protection (Offender Reporting) Act 2004
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)
Result:
Orders made pursuant to s 46(2)
Application for interim detention order alternatively interim supervision order adjourned
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | K Turtley-Chappel |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Lynch [2022] WASC 104
The State of Western Australia v Ugle [2022] WASC 91
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Application
On 21 September 2022 the State of Western Australia (State) made an application for orders to be made in relation to Lennox Junior Bunwarie (respondent) as follows:
1.A restriction order under s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (Act) (the application for this order being made pursuant to s 35(1) of the Act);[1]
2.Orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act requiring, among other things, that the respondent undergo examination by a psychiatrist and a psychologist for the purpose of preparing reports to be used on the hearing of the restriction order application; and
3.An order pursuant to s 46(2)(c)(i) of the Act that the respondent be subject to an interim detention order until the final determination of the restriction order application, or alternatively an order pursuant to s 58(5) of the Act that the respondent be subject to an interim supervision order until the final determination of the application.
[1] The respondent is an 'offender' for the purposes of the Act and a 'serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act: see the definition of 'offender' in s 3 of the Act, par (b) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act.
I have today heard the State's application for the orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Accordingly, the hearing that has taken place before me is a preliminary hearing conducted pursuant to s 46(1) of the Act.
I have not proceeded to hear the State's application for an interim detention order under s 46(2)(c)(i) of the Act, or in the alternative an interim supervision order under s 58(5) of the Act. I am, for reasons that I will elaborate upon shortly, going to adjourn the hearing of the application for an interim detention order, alternatively an interim supervision order, for approximately two weeks.
The respondent concedes that the requirements of s 46(1) are met and therefore does not oppose the application for the orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Nonetheless, it is, of course, still necessary for me to examine the evidence and to satisfy myself that the orders sought should be made.
The respondent's current status
On 9 August 2021 the respondent was sentenced to a total of 2 years and 8 months imprisonment for one offence of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) (Code) (index offence) and one offence of assault with intent to facilitate the commission of an offence contrary to s 317A(a) of the Code. The expiry date of his sentence is 10 November 2022.
On 12 October 2022 the Prisoners Review Board (PRB) made a post-sentence supervision order in relation to the respondent pursuant to s 4D of the Sentence Administration Act 2003 (WA) (SA Act) to come into effect on 10 November 2022 (PSSO).
The law[2]
[2] My statement of the applicable law reproduces what has been written by other judges of this court in numerous recent decisions: see by way of example only, The State of Western Australia v Ugle [2022] WASC 91 [5] - [8] (Hall J) and The State of Western Australia v Lynch [2022] WASC 104 [7] - [10] (Quinlan CJ).
Section 46(1) of the Act provides that 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 within the meaning of the Act.
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 to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act is defined in s 5 and sch 1.
I do not have to be satisfied that a restriction order will be made. It is sufficient at this stage of proceedings 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. Further, a 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.
The evidence
In support of the application the State relies on an affidavit affirmed by Kathryn Emma Ellson on 21 September 2022.[3] Ms Ellson is a lawyer employed by the State's solicitor. Annexed to Ms Ellson's affidavit are a number of documents including the respondent's criminal record, documents relating to the respondent's prior convictions and reports that have been prepared in relation to the respondent.
[3] Exhibit 1.
The State also relies upon an affidavit affirmed by Bethwyn Miller on 13 October 2022.[4] Ms Miller is an Acting Team Leader employed by the Department of Justice (Department) and is based at the Community Offender Monitoring Unit (COMU).
[4] Exhibit 2.
Finally the State also relies in support of the application upon a report relating to the PSSO prepared by Ms Kathleen Fisher, a Community Corrections Officer (CCO) employed by the Department, dated 9 August 2022 (PSSO Report).[5]
[5] Exhibit 3.
The respondent's background and personal circumstances
The respondent is a 34-year-old Indigenous man. He was born in Port Hedland. He spent most of his childhood living in the Warralong Community which is 160 km south-east of Port Hedland. He has spent time living in the Broome region and in Perth.
The respondent had a difficult and deprived upbringing. As a child he was exposed to alcohol abuse and domestic violence.
On his 7th birthday the respondent was a passenger in a car being driven by his father when he was involved in a serious accident. His father had been drinking to celebrate the respondent's birthday. In a court ordered psychological report prepared in relation to the respondent by Ms Cinzia Zuin dated 9 August 2011[6] the possibility of the respondent having suffered frontal lobe brain damage in the accident is adverted to. However, it does not appear that this possibility has been investigated or that the respondent has ever been the subject of neurological or neurosurgical intervention.
[6] Exhibit 1, annexure X, 138.
The respondent has an entrenched and long term history of alcohol abuse. He commenced drinking alcohol when he was 14 years old and has continued to abuse alcohol ever since.
The respondent has an entrenched and long term history of cannabis use. He has used cannabis since he was 14 years old.
The reports annexed to Ms Ellson's affidavit indicate that the respondent is aware of the connection between his substance use and his criminal behaviour but that he has made no real attempt to address his substance use problem.
The respondent's criminal record[7]
[7] Exhibit 1, annexure A, 9.
The respondent has a very lengthy criminal record which includes convictions for sexual offences, violent offences committed against his partner, property related offences, drug related offences, breach of bail offences, failing to comply with police order offences, and offences involving the breaching of court imposed sanctions such as intensive supervision orders and suspended imprisonment orders by non-compliance and reoffending. Further, on two occasions in 2014, and then again in 2015, 2017 and 2019, the respondent was convicted of failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). He was fined or sentenced to suspended terms of imprisonment for these offences.
The only significant gaps in the respondent's offending have occurred during his terms of imprisonment.
The respondent's criminal record includes convictions for three 'serious offences' within the meaning of the Act, specifically sexual penetration without consent contrary to s 325 of the Code, sexual penetration of a child between the ages of 13 and 16 years contrary to s 321(2) of the Code and the index offence.
The respondent's prior sexual offences
The facts of the respondent's prior sexual offences, including his 'serious offences', and the sentences imposed for the offences, are as follows.[8]
Indecent assault - 7 October 2006
[8] Exhibit 1, annexure C, 25.
On 7 October 2006 when the respondent was 17 years old, he followed the victim (a stranger) into a shop. The respondent approached the victim and asked her for 'a quickie'. Even though the victim told the respondent to leave he approached her and touched her breast.
On 21 May 2007 the respondent was dealt with for the offence in the South Hedland Children's Court. Given the time he had spent in custody in relation to the matter no further punishment was imposed.
Sexual penetration without consent - 23 February 2007
On 23 February 2007 the respondent, who was 18 years old at the time, had been drinking alcohol. After drinking the alcohol he entered the 23-year-old victim's house. He saw the victim lying on a blanket near her 7-month-old child. He laid next to the victim. He pulled the victim's clothing down and inserted his penis into her vagina. He was interrupted by someone entering the room and desisted.
On 26 February 2007 the respondent was sentenced to 16 months imprisonment for the offence.
Sexual penetration of a child between the ages of 13 and 16 - 11 August 2010
On 11 August 2010, when the respondent was 21 years old, he entered the 14-year-old victim's bedroom and laid next to her. The respondent tried to kiss the victim and she told him to stop. The respondent penetrated the victim's vagina with his finger and was interrupted by the victim's 13-year-old cousin.
On 12 August 2011 the respondent was sentenced to 3 years imprisonment for the offence.
Unlawful and indecent assault - 17 July 2014
On 17 July 2014 the respondent approached a 16-year-old female in a supermarket. As the female attempted to walk past him the respondent touched her between the legs and ran his hand over her buttocks. The victim immediately confronted the respondent and he left.
On 25 August 2014 the respondent was sentenced to 9 months imprisonment for the offence to be served concurrently with his existing sentences.
Index offence - 23 January 2020
On 23 January 2020 the respondent was intoxicated. He followed the 7-year-old female victim into a house and took her into a bedroom. He then pushed a bed against a wall so that the victim could not escape. He took off his pants and used his fingers to touch the victim's bottom and anus.
During the course of these events the respondent punched the victim to the face to facilitate his offending. The victim's face was bruised as a result.
As a result of punching the victim the respondent was also convicted of the offence of assault with intent to facilitate the commission of an offence.
As I have already indicated, on 9 August 2021 the respondent was sentenced to a total of 2 years and 8 months imprisonment for the offences. He was sentenced to 2 years imprisonment for the index offence and 8 months imprisonment for the assault with intent offence.
The respondent was made eligible for release on parole. However, in August 2021 the respondent submitted a 'Request to Deny Parole Form' to the PRB.[9] His stated reason for requesting not to be released on parole was a lack of accommodation in the community.
[9] Exhibit 1, annexures AI and AK, 194 and 207.
The PRB considered the respondent's request on 26 August 2021 and decided no parole order would be made at that time.[10]
[10] Exhibit 1, annexures AI and AK, 194 and 207.
The respondent's prior violent offences
The facts of the respondent's prior offences of violence and the sentences imposed for the offences are as follows.
Aggravated assault occasioning bodily harm - 11 August 2010
On 11 August 2010 the respondent's 17-year-old partner found out about the sexual penetration offence that he had committed earlier on that same day. She therefore confronted the respondent about the offence. As she went to leave the respondent pushed her. She fell down. The respondent grabbed her by the hair and dragged her to the floor where he punched her several times to the face and ears.
On 30 August 2010 the respondent was fined $1500 for the offence.
Aggravated assault occasioning bodily harm - 24 June 2015
The respondent and the victim were in a relationship. On 24 June 2015 they were in Wellington Square arguing. The respondent punched the victim in the head while he was holding a lighter. The victim suffered a 3 to 4 cm laceration as a result.
On 23 December 2015 the respondent was sentenced to 12 months imprisonment suspended for 12 months for the offence.
Aggravated wounding - 26 April 2017
On 26 April 2017 the respondent was arguing with his partner (the partner who was the victim of the previously referred to offence). During the argument the respondent stabbed his partner a number of times in the head and back causing lacerations. Both had been consuming alcohol at the time.
On 26 April 2017 the respondent was sentenced to 12 months imprisonment for the offence.
Aggravated assault occasioning bodily harm - 19 December 2018
On 19 December 2018 the respondent and his partner (the same victim as in the two previously referred to offences) were arguing. During the argument the respondent punched the victim in the face, grabbed her arm and pulled her off the mattress onto the floor where he continued to hit her. The victim sustained a 2 cm cut to her forehead. The victim and the respondent had been consuming alcohol at the time.
On 11 February 2019 the respondent was sentenced to 10 months imprisonment for the offence.
Behaviour in prison[11]
[11] Exhibit 3, 2 - 3.
During his current term of imprisonment the respondent has engaged in a significant number of incidents of misconduct. His misconduct has included fighting and behaving in an abusive and threatening manner towards staff.
The respondent has been subjected to urinalysis on one occasion on 6 August 2021. The testing produced a negative result for illicit substances.
The respondent was last employed as a unit worker in March 2022. On 9 March 2022 he was recorded as being unwilling to work. He has been unemployed since this time.
Participation in programs
In July 2011 the respondent, while serving the term of imprisonment imposed on him for his offence of sexually penetrating a child between the ages of 13 and 16, completed a Cognitive Brief Intervention Program.[12] The respondent is reported to have shown a relatively good understanding of the course content despite needing occasional help to clarify subject matter, and to have demonstrated improvement in the areas of self-control, impulsivity, critical reasoning, consequences, problem solving, perspective taking and relapse prevention.
[12] Exhibit 1, annexure W, 136.
In August 2013 the respondent, while still serving the term of imprisonment imposed on him for his offence of sexually penetrating a child between the ages of 13 and 16, completed the Sex Offending Intensive Program.[13] The respondent met all program objectives, was observed to gain a greater understanding of the factors underlying his offending and demonstrated acceptance of responsibility for his behaviour. The program facilitators considered that the respondent would need further support and counselling for alcohol and drug use, relationship issues and self-esteem.
[13] Exhibit, 1 annexure Z, 159.
On 13 October 2015 the respondent, while on conditional bail for a number of offences including assault offences committed against his partner, commenced the Not Our Way Aboriginal Family Violence Program.[14] He attended a total of five out of 25 sessions. On 12 November 2015 he was removed from the program due to having missed too much program content. During the program the respondent presented as a traditional man with rigid beliefs and attitudes supporting male entitlement which reflected his traditional upbringing in a remote community. He made no treatment gains in his treatment need areas of lack of effective communication, emotional management, substance use, negative peer associations, transient lifestyle and lack of employment. His level of motivation to address his offending behaviour appeared to decline until he was removed from the program.
[14] Exhibit 1, annexure AE, 181.
Assessments of the respondent
The most recent psychological assessment of the respondent was the assessment carried out by Ms Zuin which resulted in the production of her above referred to report dated 9 August 2011.[15] Ms Zuin undertook her assessment and prepared her report for the purpose of the respondent's sentencing for his offence of sexually penetrating a child between the ages of 13 and 16. Ms Zuin concluded her report in the following terms:[16]
'Notwithstanding this [the respondent] poses a significant risk of reoffending. He has intensive treatment needs with respect to his offending behaviour and without the benefit of treatment there is a very distinct possibility that he will reoffend in a sexual manner. [The respondent] does not appear to discriminate when it comes to victim selection. He has offended against females that are both known and unknown to him and he has offended against both adult women and now a female child. However, common threads in [the respondent's] sexual offending overall include; a sense of sexual entitlement; objectification of women as sexual objects and; poor attitudes towards females in general, potentially as a result of his resentment towards his own mother for abandoning the children.'
[15] Exhibit 1, annexure X, 138.
[16] Exhibit 1, annexure X, 144.
In the most recent of the pre-sentence reports that have over the years been prepared in relation to the respondent, which is dated 8 January 2021 and was prepared for the purpose of the respondent's sentencing for the offences for which he is currently imprisoned, the writer of the report assessed the respondent to have treatment needs in the areas of sexual offending (including against children), intimate partner violence, generalist violence, pro-criminal attitudes, anti-social patterns, drug and alcohol issues and negative peer associations.[17] She noted that the respondent had stated that he did not have a particular sexual interest in children and had described his offending behaviour as opportunistic and the result of excessive alcohol and cannabis consumption. She formed the view that the respondent engaged in minimisation of his offending and lacked insight into the consequences of his behaviour for his victim.
[17] Exhibit 1, annexure AH, 190.
In November 2021 the respondent's treatment needs were assessed by the Department.[18] The Treatment Assessment Report prepared as a result of the assessment dated 24 November 2021 records the Static-99R and Stable-2007 risk assessment tools were used to assess the respondent's risk of committing further sexual offences and that the result of the assessment was that the respondent was placed in the 'well above average' risk category for sexual reoffending. The report also reveals that the Level of Service/Risk, Need, Responsivity screening tool was used to assess the respondent's risk of general reoffending and that the result of the assessment was that the respondent was at very high risk of general reoffending. The officers who carried out the assessment recommended that the respondent complete both the Intensive Sex Offending Program and the Pathways Program to address his outstanding treatment needs. However, they noted that due to the relatively short length of the respondent's sentence it might not be possible for him to complete both programs and that priority should be given to the Intensive Sex Offending Program.
[18] Exhibit 1, annexure AL, 210.
In around July 2022 the respondent was assessed by Ms Fisher for the purpose of enabling her to prepare the PSSO Report. The PSSO Report reveals the following.
The respondent reported to Ms Fisher that he will be homeless on his release. He stated that he will not return to Port Hedland because he fears retribution from the family of the victim of his most recent offences. He stated that he had numerous relatives in Perth but that he does not want to associate with any of them because they are homeless.
The respondent informed Ms Fisher that he had engaged with Reset for accommodation support. He became frustrated with Reset when he was told he would have to financially contribute to any supported accommodation.
With respect to his most recent offences, the respondent told Ms Fisher that he was under the influence of alcohol and cannabis when he committed the offences. He reported that the offending was a complete blank for him and that he does not know what made him approach the victim and offend against her. He reported that he did not know why he had offended and stated, 'I feel that my sexual reality is intense when alcohol is inside of me'. He reported that he feels sorry for the victim, that he felt 'bad inside', that he has thought about what he did and that he realises that what he did was wrong.
In the PSSO Report Ms Fisher makes the following observations in relation to the respondent's risk of committing further offences:[19]
The [respondent's] recidivist behaviours commenced in 2002 as a juvenile and there have been no real gaps in offending aside from periods of detention or imprisonment. He presents as being a high risk of committing further serious offences in the community especially against women, in anger and/or in a sexual manner which is also reflected in his prison conduct and interactions with female staff. He has sexually offended over several years against both children and adult victims that includes the use of violence. [The respondent] lacks appropriate boundaries in both his intimate relationships and social settings, which in the past has been fuelled by impulsivity and substance misuse. He lacks positive family support, gravitating towards negative peers and a cycle of antisocial attitudes/behaviours, lifestyle and offending that has become normalised. He has no protective factors in place and does not appear willing to contribute to helping himself in the community which also may reflect his expectation that Reset can accommodate him without payments.
[19] Exhibit 3, 4.
The accommodation situation
In her affidavit Ms Miller deposes to the following matters:
1.She spoke to the respondent on 5 October 2022. The respondent told her that he currently does not have accommodation in the community, that he is unable to return to Port Hedland because that is where he committed his most recent offences and there is a violence restraining order in place, and that it is not viable for him to live with family members. The respondent also told her that he wants to obtain supported accommodation in the community, that he is engaged with Reset for transitional support and that Reset has not yet been able to find accommodation for him;
2.On 12 October 2012 she spoke to a representative from Reset. The representative confirmed Reset has not yet been able to secure accommodation for the respondent. The representative advised that the respondent is reluctant to consider shared accommodation which limits his options and that the nature of the respondent's offending behaviour is also a barrier to him accessing accommodation in the community; and
3.The respondent is not eligible for ongoing accommodation services through Reset given that he is now the subject of an application under the Act. He will need to engage with the contracted accommodation service for high risk serious offenders. However, the representative from Reset has advised that they will continue to offer general transitional support to the respondent and canvass other community accommodation options in the interim if the respondent wishes to continue to engage with their service.
The PSSO conditions
The conditions of the PSSO that are additional to the standard conditions specified in s 74F of the SA Act are as follows:
1.To have no direct or indirect contact with the victim of his offences;
2.To comply with the requirements of the Community Protection (Offender Reporting) Act;
3.Not to have unsupervised contact with female children under 18 years of age;
4.To attend programs and counselling as directed;
5.Not to use or be in possession of any illicit drug including cannabis;
6.To attend random urinalysis as directed by a CCO and to provide a valid sample;
7.Not to consume alcohol;
8.Not to enter licensed premises except cafes, restaurants, sporting venues and grocery stores, but not to purchase alcohol at any venue;
9.To submit to random breath testing as required by police; and
10. To advise his CCO of his residential address and not to change his address without the prior approval of his CCO.
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
The respondent has a significant history of sexual and violent offending, often associated with alcohol and illicit drug use. He has a demonstrated propensity to commit both sexual offences and violent offences.
The respondent's problem with alcohol and illicit drugs is significant. It is reasonable to believe that if the respondent is unable to control his use of alcohol and illicit drugs he will return to the kind of sexual and violent offending that has seen him imprisoned in the past. It is therefore of major concern that the respondent has not addressed his substance abuse problem in any substantive way.
In addition to his substance abuse problem, the respondent has a myriad of other significant outstanding treatment needs (pro-criminal attitudes, violence, impulsivity, poor problem solving) not the least of which is his sense of entitlement with respect to his interactions with females.
The respondent lacks insight into the seriousness of his offending and its detrimental impact on his victims.
Although the respondent has not committed an offence of violence amounting to a 'serious offence' under the Act, it is not difficult to envisage how the respondent's demonstrated propensity to engage in violent conduct while under the influence of substances could result in him committing a 'serious offence' of violence.
The respondent's performance while subject to supervision in the community has generally been poor.
The most recent assessment of the respondent's risk level suggests that he is at a high risk of committing further sexual offences and further offences of violence.
Taking the above matters into account, I am satisfied that there are reasonable grounds for believing that a court might find that the respondent is a high risk serious offender. More specifically, I am satisfied there are reasonable grounds for believing that a court might find that the respondent is a person in relation to whom it is necessary to make a restriction order, in order to ensure adequate protection of the community against an unacceptable risk that the respondent will commit:
1.Sexual offences against females amounting to 'serious offences' including sexual penetration of a child under 13, indecently dealing with a child under 13, sexually penetrating a child between the ages of 13 and 16, indecently dealing with a child between the ages of 13 and 16, and sexual penetration without consent; and
2.Violent offences amounting to 'serious offences' including unlawfully doing grievous bodily harm contrary to s 297 of the Code and unlawfully wounding or unlawfully doing grievous bodily harm with intent to maim, disfigure or disable or to do grievous bodily harm contrary to s 294 of the Code.
I will therefore make the orders for the hearing of the restriction order application.
Application for interim detention order
The question that remains is whether I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act, an interim supervision order pursuant to s 58(5) of the Act or no further order at all in which case the respondent will be released on the conditions of the PSSO.
The respondent concedes that it would not be appropriate for him to be released into the community subject only to the conditions of the PSSO. However, he does not at this point concede that the making of an interim supervision order would be inappropriate.
As is apparent from what I have already said, at present the respondent does not have available to him any accommodation in the community. In these circumstances the respondent has applied for an adjournment of the State's application for an interim detention order, alternatively an interim supervision order, so that further inquiries can be made about possible accommodation options for him. The application for the adjournment is not opposed by the State.
The availability or otherwise of accommodation to the respondent is for obvious reasons material to the determination of the State's application for an interim detention order, alternatively an interim supervision order. I will therefore allow the adjournment application.
I will adjourn the hearing of the State's application for an interim detention order, alternatively an interim supervision order, to 2 November 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
24 OCTOBER 2022
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