The State of Western Australia v CA [No 4]
[2024] WASC 28
•8 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CA [No 4] [2024] WASC 28
CORAM: MCGRATH J
HEARD: 7 FEBRUARY 2024
DELIVERED : 8 FEBRUARY 2024
FILE NO/S: SO 5 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CA
Respondent
Catchwords:
Criminal law - High risk serious offender - Contravention proceedings - Application for interim detention pending determination of contravention proceedings - Whether exceptional circumstances exist - Whether there will be substantial compliance with standard conditions of the supervision order - Need to ensure adequate protection of the community
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 53, s 56
Result:
Offender detained pending determination of contravention proceedings
Category: B
Representation:
Counsel:
| Applicant | : | Mr D S McDonnell |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
The State of Western Australia v CA [2021] WASC 164
The State of Western Australia v CA [No 2] [2021] WASC 491
The State of Western Australia v CA [No 3] [2023] WASC 144
MCGRATH J:
The State has filed an application under s 55 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) commencing contravention proceedings in respect of the respondent. In support of the application the State has filed an affidavit of Mr McDonnell, counsel, affirmed 6 February 2024 and an affidavit of Ms Glover, Senior Community Corrections Officer, affirmed 2 February 2024.
The issue that I must decide is whether the respondent may be released on an interim supervision order pending the determination of the new contravention proceedings. Counsel for the respondent submitted that given the circumstances, the interim detention of the respondent was not opposed. I find the concession of the respondent was properly made and that he must be subject to interim detention pending the determination of the contravention proceedings for the following reasons.
Procedural history
On 15 April 2020, the State filed an application for orders under s 14 and s 18 of the Dangerous Sexual Offenders Act2006 (WA) (DSO Act). On 8 May 2020, Fiannaca J heard the preliminary hearing and determined that there were reasonable grounds for believing that a court might find that the respondent is a high risk serious offender pursuant to s 7 of the DSO Act.[1] His Honour made an interim supervision order (ISO) pursuant to s 27A releasing the respondent into the community pending the final determination of the application.
[1] The State of Western Australia v CA [2021] WASC 164.
Whilst subject to the ISO, the respondent committed two breaches contrary to s 80 of the HRSO Act. One breach involved undisclosed consensual sexual intercourse with an adult female. Consequently, his parole was suspended on 2 July 2021. The respondent returned to custody.
On 15 October 2021, Fiannaca J heard the final hearing and determined that the respondent was a high risk serious offender and that he should be released on a supervision order.[2] Therefore, the respondent commenced living in the community subject to the stringent conditions of the supervision order.
[2] The State of Western Australia v CA[No 2] [2021] WASC 491.
Between 15 October 2021 and 13 March 2022, the respondent was charged with offences of contravening his supervision order contrary to s 80 of the HRSO Act. The contraventions comprised the removal of his GPS monitoring device on 13 March 2022, causing damage to the device, and further being involved in a road traffic collision some 23 km outside of his designated inclusion zone, and returning a positive urinalysis test to amphetamines.[3] On 9 May 2022, the respondent was sentenced to a total effective sentence of 12 months immediate imprisonment. The respondent was made eligible for parole.
[3] The State of Western Australia v CA[No 3] [2023] WASC 144.
Subsequently, the State commenced contravention proceedings.
On 3 March 2023, Fiannaca J determined the contravention proceedings. His Honour ordered that the respondent be released pursuant to an amended supervision order.[4] On 28 March 2023, the respondent was released from custody.
[4] The State of Western Australia v CA [No 3] [2023] WASC 144.
The alleged contraventions
The conduct upon which the applicant relies in support of the contention that the respondent has contravened the supervision order comprises four criminal convictions for breaches of the supervision order contrary to s 80 of the HRSO Act, and one further charge of breaching the supervision order which is awaiting determination. The applicant has also particularised aspects of the respondent's conduct whilst subject to the supervision order but which conduct is not the subject of criminal charges.
On 6 April 2023, the respondent provided a sample for urinalysis which tested positive to amphetamine and methylamphetamine.[5] The respondent pleaded guilty to one charge of contravening his supervision order and a $750 fine was imposed.
[5] Affidavit of Mr McDonnell, 129 - 138.
On 10 November 2023, the respondent provided a sample for urinalysis which tested positive to amphetamine and methylamphetamine.[6] The respondent pleaded guilty to one charge of contravening his supervision order and a $3,600 fine was imposed.
[6] Affidavit of Mr McDonnell, 139 - 142.
On 20 December 2023, the respondent provided a sample for urinalysis which tested positive to amphetamine and methylamphetamine.[7] The respondent pleaded guilty to one charge of contravening the supervision order and a $750 fine was imposed.
[7] Affidavit of Mr McDonnell, 143 - 146.
On 17 January 2024, the respondent failed to comply with a written lawful instruction not to have any visitors to his accommodation, including his room.[8] The respondent did so by inviting his intimate partner to the accommodation. The respondent pleaded guilty to one charge of contravening his supervision order and a $350 fine was imposed.
[8] Affidavit of Mr McDonnell, 147 - 150.
On 24 January 2024, the respondent was charged with breaching a lawful instruction not to have any visitors to his accommodation, including his room, by having his intimate partner at the accommodation.[9] That charge remains pending and the respondent has been remanded in custody to reappear in the Magistrates Court on 8 February 2024 .
[9] Affidavit of Mr McDonnell, 151 - 154.
Relevant legislative provisions
Section 56 of the HRSO Act provides that the section applies to a person who is subject to a supervision order in respect of whom proceedings on an application under s 53 are pending.
Section 56(2) of the HRSO Act provides as follows:
The court may at any time in the pending proceedings -
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
Section 56(3) of the HRSO Act provides as follows:
The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
Therefore, I must be satisfied on the balance of probabilities of both matters specified in s 56(3) before I can order the respondent's release.
The term 'exceptional circumstances' used in s 56(3) is not defined in the HRSO Act. The term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special or an exception to the general trend of cases.
The standard conditions of the supervision order referred to in s 56(3)(b) are those set out in s 30(2), which provides:
A supervision order in relation to an offender must require that the offender -
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
As to the phrase 'substantially comply', this was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart in the context of contravention proceedings.[10] I apply the reasoning of Fiannaca J.
[10] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4, [52].
The relevant questions to be decided are therefore as follows:
1.Is the respondent's release justified by exceptional circumstances?
2.If released, will the respondent substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?
Assessment of the application
I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.
Exceptional circumstances
The initial question for my determination is whether exceptional circumstances exist for the purposes of s 56(2) of the HRSO Act. Counsel for the respondent did not submit that there were any exceptional circumstances. I find that there are no exceptional circumstances within the meaning of s 56(3) of the HRSO Act.
Whether the respondent will substantially comply with the standard conditions of the supervision order
I now turn to the question posed by s 56(3) as to whether the respondent has satisfied me on the balance of probabilities that if released, he will substantially comply with the standard conditions of the supervision order, including any amendments made to the standard conditions of the supervision order.
As to whether the respondent will substantially comply with the standard conditions of the order, the onus is on the respondent to establish that he will do so on the balance of probabilities.
When the alleged contraventions are viewed together, and in light of other evidence that the State relies upon, there appears to be good reasons for the authorities to be concerned about their ability to manage the respondent in the community.
The respondent has a criminal history that includes convictions for serious offences comprising sexual offending and violent offending. Dr Yewers, Consultant Psychologist, identified alcohol and illicit substance use as a contributor to the respondent's past offending, expressing the opinion that the most likely risk scenario for the respondent committing a future sexual or violent offence is a relapse into alcohol or illicit drug abuse with the victim most likely being an intimate partner.[11]
[11] Report of Dr Yewers dated 1 January 2023, [194].
A significant difficulty that arises is that the respondent no longer has suitable accommodation. Ms Glover deposes that the respondent was asked to leave his accommodation by his father. The emergency accommodation the respondent was given is also no longer available due to his disruptive behaviour at the motel.[12] The only alternative accommodation proposed by the respondent was with his intimate partner of approximately one month who has young children, including a six and seven year old.
[12] Affidavit of Ms Glover, [9] - [11].
The intimate partner's accommodation has been assessed as not being suitable for the following reasons.
First, Ms Glover deposes that there is risk to an intimate partner of the respondent, given his ongoing use of illicit drugs and erratic behaviour.
Second, there is a risk to the children due to the erratic behaviour. Ms Glover deposes that on 22 December 2022, the two children were left in a car in remote bushland whilst the respondent and the intimate partner went pig shooting together.[13]
[13] Affidavit of Ms Glover, [17].
Third, the respondent's intimate partner has engaged in erratic behaviour. That behaviour is outlined by Ms Glover and includes threatening behaviour to the authorities. She has recently been charged with eight criminal offences, including assaulting a public officer, threats, criminal damage, possessing drug paraphernalia and breach of protective bail conditions.
Fourth, Ms Glover deposes that the respondent has continued to display a combative attitude during supervision, challenging decisions.[14] The respondent's father has reported to the police his concerns that the respondent and his intimate partner intend to remove the GPS bracelet and leave the State.[15]
[14] Affidavit of Ms Glover, [25].
[15] Affidavit of Ms Glover, [22].
On the basis of the information that I have at the time of hearing this application, I am not satisfied that the respondent would substantially comply with the standard conditions if released. In particular, I am not satisfied that the respondent would substantially comply with the conditions regarding supervision by a community corrections officer and with all reasonable directions issued by such an officer. In any event, the respondent no longer has suitable accommodation due to his own behaviour.
Conclusion
Therefore, the respondent will be detained in custody pending the determination of the contravention proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
8 FEBRUARY 2024
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