The State of Western Australia v Bunwarrie [No 2]

[2022] WASC 375

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BUNWARRIE [No 2] [2022] WASC 375

CORAM:   DERRICK J

HEARD:   2 NOVEMBER 2022

DELIVERED          :   2 NOVEMBER 2022

PUBLISHED           :   3 NOVEMBER 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 - Finding that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Whether an interim detention order or an interim supervision order should be made pending determination of the restriction order application

Legislation:

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

Result:

Interim detention order made

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):

Garlett v The State of Western Australia [2022] HCA 30

The State of Western Australia v Bunwarrie [2022] WASC 348

The State of Western Australia v Latimer [2006] WASC 235

The State of Western Australia v Patrick [No 5] [2022] WASC 61

DERRICK J:

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

Introduction

1. On 21 October 2022 I heard the State of Western Australia's (State) application for orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the High Risk Serious Offenders Act 2020 (WA) (Act) (preliminary hearing). I made the orders sought. I published reasons for my decision (primary reasons).[1]

   [1] The State of Western Australia v Bunwarrie [2022] WASC 348.

2. At the preliminary hearing I adjourned to today's date, for the reasons stated in the primary reasons, 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 (application).  It is now necessary for me to deal with the application.

3. Save to the extent that is necessary, I will not repeat what I said in the primary reasons.  These reasons should be read in conjunction with the primary reasons.

Additional information

1. Since the preliminary hearing the State has provided some further information in relation to the respondent's accommodation situation both by way of email and by way of oral submissions during today's hearing.  The information is accepted as accurate by the respondent.  The information is as follows:[2]

   [2] Email from Ms Fleur Allen of the State Solicitor's Office (SSO) to the court dated 1 November 2022 sent at 8.35 am; Email from Ms Fleur Allen of the SSO to the court dated 1 November 2022 sent at 12.24 pm; Email from Ms Fleur Allen of the SSO to the court dated 1 November 2022 sent at 2.49 pm; Email from Ms Fleur Allen of the SSO to the court dated 2 November 2022 sent at 9.12 am.

   1.Ms Bethwyn Miller, an Acting Team Leader employed by the Department of Justice and based at the Community Offender Monitoring Unit (COMU), has been in contact with Ms Jessie Stewart who lives at an address in the Perth metropolitan area (proposed address);

   2.Ms Stewart is the respondent's aunty (her sister is the respondent's mother).  She is wheelchair bound following a serious accident in 2020.  She has National Disability Insurance Scheme workers attend the proposed address twice per week;

   3.The proposed address is a two bedroom Department of Housing unit.  Ms Stewart is the tenant;

   4.Ms Stewart has informed Ms Miller that she currently lives at the proposed address with her 30-year-old nephew, her son and her daughter-in-law;

   5.Ms Stewart has informed Ms Miller that no children live at the proposed address;

   6.Ms Stewart has informed Ms Miller that she is aware of the respondent's offending behaviour and that she is willing for him to live with her at the proposed address;

   7.Ms Stewart has informed Ms Miller that if the respondent lives with her at the proposed address he will be required to sleep in the lounge room;

   8.Ms Stewart informed Ms Miller that no alcohol or drug use occurs at the proposed address;

   9.Ms Miller made Ms Stewart aware of the possibility that the respondent would be subject to electronic (GPS) monitoring and Ms Stewart did not express any concerns about this possibility;

   10.The police have advised that none of the respondent's victims live in the vicinity of the proposed address; and

   11.The police have advised that there is a significant history of domestic violence incidents occurring at the proposed address involving Ms Stewart as the victim.  Since January 2022 seven domestic violence incidents requiring police attendance have occurred at the proposed address.  The offender in the first six of these incidents is currently serving a term of imprisonment.  The seventh incident, which occurred on 12 October 2022, involved a male referred to in the police incident report as the offender's partner and did not result in the laying of charges.

2. Accordingly, unlike the position that existed at the time of the preliminary hearing, the respondent now has available to him accommodation in the community.

Question for determination

1. The question for my determination in dealing with the application 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. If I make no further order the respondent will be released on the conditions of the post-sentence supervision order made in relation to him by the Prisoners Review Board on 12 October 2022 pursuant to s 74D of the Sentence Administration Act 2003 (WA) (PSSO). The PSSO is to come into effect on 10 November 2022.

2. The answer to the question specified in the previous paragraph depends on my assessment of what is required to ensure adequate protection of the community pending the determination of the restriction order application.  In making this assessment I must bear in mind not only that the scheme of the Act requires that the court do no more than is necessary to achieve adequate protection of the community[3] but also that the court has not yet found the respondent to be a high risk serious offender.  In making this assessment I also need to be conscious of the fact that the restriction order application is not going to be heard until 3 April 2023.  The delay between now and the hearing of the restriction order application does weigh against the making of an interim detention order or an interim supervision order.

   [3] The State of Western Australia v Latimer [2006] WASC 235 [24]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [2022] HCA 30[85], [229] - [230].

Parties' submissions

1. The State does not press for the making of an interim detention order pending the determination of the restriction order application.  The State submits that although the application is finely balanced, when account is taken of the need to make the order that is least invasive of the respondent's right to be at liberty while ensuring adequate protection of the community, the making of an interim supervision order containing a total of 45 conditions will ensure adequate protection of the community.  The proposed 45 conditions are set out in a draft interim supervision order filed by the State (draft order).  The State submits that the conditions of the PSSO, which are less extensive than the conditions contained in the draft order, are not adequate to manage the risk of the respondent committing a 'serious offence'.   

2. In submitting that the making of an interim supervision order will ensure adequate protection of the community, the State acknowledges that the respondent has untreated risk factors and that the primary consideration is the protection of the community.  However, the State contends that one of the most critical requirements to the management of the respondent's risk in the community, specifically the availability to him of suitable and stable accommodation, is now met.  The State submits that the proposed address is suitable accommodation for the respondent and that Ms Stewart and the other family members living at the house will provide a support network for the respondent.

3. The State further submits that the conditions set out in the draft order are extensive, address the respondent's risk factors, and will result in the respondent having the benefit of the close monitoring and support of the COMU and the police.

4. In response to a question from me, counsel for the State advised that despite the position the State was taking on the application, it had not formed a final view as to whether it would, at the hearing of the restriction order application and in the event that the court finds the respondent to be a high risk serious offender, contend that adequate protection of the community could be ensured by a supervision order as opposed to a continuing detention order.  Counsel advised that the State will wait to receive the formal risk assessments of the experts appointed to provide reports for the purpose of the restriction order application before adopting a final position in relation to this issue.

5. The respondent submits that he should be released on an interim supervision order containing the conditions set out in the draft order pending the determination of the restriction order application.  The respondent submits that releasing him on an interim supervision order containing the conditions set out in the draft order will ensure adequate protection of the community.  The respondent, as I indicated in the primary reasons, does not attempt to contend that it would be appropriate for him to be released into the community subject only to the conditions of the PSSO.

6. The respondent, in submitting that he should be released on an interim supervision order emphasises the prosocial influence that his aunty, Ms Stewart, will have on him.  He asserts that he is willing to engage while subject to an interim supervision order in any treatment that is offered to him.  In support of this assertion he points to the fact that an assessment of him undertaken by prison authorities in September 2021 records that he was interested to know more about future treatment assessments and program availability, especially sex offender treatment programs, and that he appeared keen to address his offending behaviour.[4]

   [4] Exhibit 1, Annexure AJ, 203.

7. The respondent points to the fact that he has, since being imprisoned for the index offence, abstained from using illicit substances in the prison environment.

8. The respondent asserts that if he is released on an interim supervision order he will know that any contravention of the order will impact adversely on his prospects of being released on a supervision order if he is ultimately found to be a high risk serious offender.  He asserts that his knowledge in this respect will be a significant deterrent to him not complying with an interim supervision order.

9. The respondent further asserts that he has not had the opportunity to participate in treatment programs addressing his treatment needs (for example, the Intensive Sex Offending Program and the Pathways Program) since being imprisoned for the index offence, and that if he is made the subject of an interim detention order the possibility of such programs being made available to him prior to the hearing of the restriction order application is remote.  In other words, the respondent asserts that his current position in relation to his non-addressing of his treatment needs is unlikely to change prior to the hearing of the restriction order application.

Analysis and decision

1. The conditions set out in the draft order are extensive.  The conditions include the standard conditions specified in s 30(2) of the Act, a condition that the respondent live at the proposed address, a curfew condition, conditions prohibiting the respondent from consuming alcohol and illicit drugs and conditions limiting his unsupervised contact with female adults and children.  In short, the conditions set out in the draft order are aimed directly at the respondent's risk factors. 

2. It is no small thing to order the detention of a person who has served his full sentence and who has not yet been found to be a high risk serious offender.  I am very conscious of the need to do no more than is necessary to achieve adequate protection of the community.  I am also very conscious of the position adopted by the State in relation to the application to which weight does need to be given.  Nonetheless, and despite the availability to the respondent of accommodation at the proposed address, ultimately I have come to the conclusion that it is necessary to make an interim detention order pending the determination of the restriction order application to ensure adequate protection of the community.  I have come to this conclusion taking into account the following matters in combination with each other:

   1.My assessment of the likelihood of the respondent being found to be a high risk serious offender.  My assessment, based on the material before me, is that it is more than likely that the respondent will be found to be a high risk serious offender;

   2.The apparently high (well above average) risk of the respondent committing further opportunistic and impulsive sexual offences that are 'serious offences' (including sexual penetration offences) against females, both adults and children;

   3.The significant psychological and/or physical harm likely to be caused to the victim of any 'serious' sexual offence committed by the respondent;

   4.The respondent's past poor performance while subject to supervision in the community which is an indication that he is, despite the availability to him of accomodation, unlikely to comply for any substantial period of time with the conditions set out in the draft order;

   5.The respondent's poor behaviour in prison (which has included behaviour directed at female prison staff) while serving his sentence for the index offence which is a further indication that he is, despite the availability to him of accommodation, unlikely to comply for any substantial period of time with the conditions set out in the draft order; and

   6.The respondent's significant outstanding treatment needs, most notably his problems with alcohol and cannabis use, his hostility towards females and his sense of entitlement with respect to his interactions with females.

3. In relation to the last of the above matters, the fact that the respondent has not in any way addressed his problems with alcohol and cannabis leaves me with little confidence that he would, if released, comply with the conditions contained in the draft order directed at preventing him from using alcohol and illicit drugs.  This is of particular concern given that the respondent's high risk of committing 'serious' sexual offences is directly linked to his use of alcohol and/or cannabis.

4. Obviously, my decision to make an interim detention order cannot in any way be seen as binding the judge who ultimately hears the restriction order application.  If the judge who ultimately hears the restriction order application does decide that the respondent is a high risk serious offender, it will of course be open to the judge to decide, on the basis of the more extensive material that will be before them as a result of the orders that I made at the preliminary hearing, that the protection of the community can be ensured by the making of a supervision order in respect of the respondent.

Recommendation

1. In my opinion it is essential that between now and the hearing of the restriction order application every effort is made to facilitate the respondent's participation in programs relevant to his treatment needs.  This should occur even if it is unlikely that the respondent will have completed a program prior to the hearing of the restriction order application.  He should at least be given the opportunity to commence any appropriate programs between now and the hearing of the restriction order application. 

Order

1. For the reasons I have given, I will order pursuant to s 46(2)(c)(i) of the Act that the respondent is to be detained in custody until the final determination of the restriction order application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JP

Research Associate to the Honourable Justice Derrick

3 NOVEMBER 2022