The State of Western Australia v Casey

[2021] WASC 421

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CASEY [2021] WASC 421

CORAM:   QUINLAN CJ

HEARD:   26 NOVEMBER 2021

DELIVERED          :   26 NOVEMBER 2021

PUBLISHED           :   26 NOVEMBER 2021

FILE NO/S:   SO 11 of 2021

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

DEMPSEY COLIN CASEY

Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim supervision order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46 made

Category:    B

Representation:

Counsel:

Applicant	:	D S McDonnell
Respondent	:	T J McCulloch

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid WA

Cases referred to in decision:

The State of Western Australia v PAS [2020] WASC 405

The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 26 November 2021 and has been edited from the transcript.)

Introduction

1. On 14 October 2021, the State of Western Australia applied for a restriction order in respect of Dempsey Colin Casey under the High Risk Serious Offenders Act 2020 (WA) (the Act).

2. Mr Casey is presently subject to a term of imprisonment that will end on 12 January 2022. He will be released from prison on that day.

3. The preliminary hearing of the application was listed before me today.

4. The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that Mr Casey is a high risk serious offender within the meaning of that Act (see s 46(1) of the Act).

5. If I am so satisfied the State also seeks an interim supervision order pending the hearing of the restriction order application. It does not seek an order that Mr Casey be detained in custody.

The law

1. As noted above, pursuant to s 46(1) of the 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 Mr Casey is a high risk serious offender.

2. 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 person to ensure adequate protection from the community against an unacceptable risk that the person will commit a serious offence. A 'serious offence' within the meaning of the Act, relevantly, includes aggravated armed robbery.

3. I do not have to 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. 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.[1]

   [1] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

1. In support of its application, the State relies upon the affidavit of Meagan Elizabeth Hemsley affirmed on 14 October 2021, which contains Mr Casey's criminal history and several previous reports in relation to him, including a pre‑sentence report, psychological reports and program completion reports. The most recent psychological report available is dated 26 May 2017 which was prepared prior to Mr Casey's most recent sentence. The most up‑to‑date evidence available is an Individual Management Plan prepared by Karnet Prison Farm dated 23 December 2020. There are no psychiatric reports on the material available to me.

2. The State also relies upon an affidavit of Ms Heather Applin (senior community corrections officer) affirmed on 22 November 2021.

3. The evidence reveals that Mr Casey has a history of violent offending.

4. The offending for which he was most recently sentenced involved one count of aggravated armed robbery and three counts of armed robbery. On 7, 10 and 12 January 2017, Mr Casey entered four different stores armed with a knife, thrust the knife towards staff and customers and stole money and mobile phones. Mr Casey was affected by methylamphetamine at the time. He was sentenced on 14 June 2017 to a total effective term of 5 years imprisonment. The sentence was backdated to 12 January 2017, hence his date of release on 12 January 2022.

5. Mr Casey's other offending includes armed robbery (in 2013), aggravated burglary, unlawful assault in circumstances of aggravation, aggravated assault occasioning bodily harm, stealing, indecent assault and unlawful wounding.

6. Mr Casey is now 40 years old. He was born in Geraldton and is reported to be the youngest of five children. He was, from an early age, exposed to domestic violence and substance abuse, and was raised in foster care, residing with multiple families.

7. Mr Casey completed year 11 of school. He has held some labouring and semi‑skilled jobs since leaving school, but his work appears to have been short‑term and inconsistent.

8. Mr Casey has a long-term partner. They have been together for over 20 years and have five children between the ages of 5 and 14 years. The reports that are in evidence indicate that Mr Casey's relationship has, at times, had problems with domestic violence, accommodation issues and financial issues. Nevertheless, his partner remains supportive of him.

9. Mr Casey clearly has a substance abuse problem. He started using drugs and alcohol around the age of 16 when he left school and home and has been using methylamphetamine since around the age of 17 years. The reports also indicate that Mr Casey has a history of depression and has previously been prescribed antidepressant medication.

10. Mr Casey's risk of reoffending was formally assessed by Ms Tanina Oliveri in 2017 at the time of his most recent sentencing. In her report dated 28 May 2017, Ms Oliveri assessed Mr Casey as a high risk of future violence if he did not address his treatment needs. Ms Oliveri recommended treatment to address his violence, substance misuse, emotional regulation, stress resilience, coping skills, chronic depression, negative antisocial and self‑defeating attitudes, disregard of the law and others, relationship problem‑solving and conflict resolution skills, impulsivity decision‑making and consequential thinking.

11. Ms Oliveri also stated that, upon Mr Casey's release, he will need stable and consistent accommodation, to abstain from substances, to disassociate from antisocial people, to access prosocial support and to engage in fulltime employment, and that urinalysis will also be essential. The report stated that any intervention will be of little benefit unless Mr Casey is internally motivated to make and sustain positive change.

12. During his current term of imprisonment, Mr Casey completed the Pathways Program on 25 March 2020 and participated in several voluntary training programs. He was recommended for the Violent Offending Treatment Program, although a parole review report from November 2020 stated that he did not wish to transfer from minimum security to complete it as he completed the program previously.

13. The Pathways Program Completion Report provides some cause for optimism in relation to Mr Casey's attitude to the future. The report states that:

    (a)Mr Casey has been willing to acknowledge and address his treatment needs;

    (b)he is reported to have made a decision to abstain from using illicit drugs and made treatment gains, including an improved ability to utilise mental self‑control skills, using positive thinking, improved communication and stress management skills and improved victim empathy;

    (c)Mr Casey's reoffending prevention goal is to get a satisfying job and to get to know different people who will help him to make changes in his lifestyle, and his relapse prevention goal is to support his family and be a better person in the community; and

    (d)Mr Casey intends to gain employment on a mine or gain certification for working at heights and work in scaffolding.

Assessment

1. I am satisfied that there are reasonable grounds to believe that a court might find Mr Casey to be a high risk serious offender.

2. Mr Casey has a significant history of violent offending and has most recently committed serious offences within the meaning of the Act.

3. Those violent offences were committed while Mr Casey was under the influence of methylamphetamine. The use of drugs is clearly a significant factor in Mr Casey's criminal history.

4. While Mr Casey has evidently made treatment gains regarding his issues with illicit substance abuse, it cannot be said that he is out of the woods yet. In particular, his newfound resolve to abstain from illicit drugs (while commendable) is easier said than done. As Mr Casey himself stated (as recorded in the Pathways Program Completion Report), his high risk situations include the influence of family and friends who use alcohol and drugs, especially if he encounters stressful situations and struggles to cope.

5. The most recent up‑to‑date risk assessment places Mr Casey as being at a high risk of reoffending. Whether that risk has come down will depend upon whether Mr Casey's treatment gains can be sustained when he is placed in those potential stressful situations. There are reasonable grounds to believe that, without the kind of supervision assistance that a restriction order would be expected to provide, Mr Casey could lapse into illicit drug use and, as a consequence, further violent offending.

6. For these reasons, I am satisfied there are reasonable grounds to believe that a court might find Mr Casey to be a high risk serious offender.

7. For that reason, I make orders for the hearing of a restriction order application and for Mr Casey to be assessed by a psychiatrist and qualified psychologist for the purpose of preparing reports to be used in the hearing.

Interim supervision order

1. As I said, in the meantime, the State submits that I should make an interim supervision order. Mr Casey will be released from custody on 12 January 2022. I am advised that the Prisoners Review Board is considering whether to make a post sentence supervision order in relation to Mr Casey, and that that decision will be made on 8 December 2021. Mr Casey submits that I should await the outcome of that decision before determining whether he should be subject to the more stringent requirements of an interim supervision order, pending the determination of the restriction order application.

2. Without expressing any view as to whether or not a post sentence supervision order would be adequate protection of the community in all of the circumstances, it is, in my view, desirable to have access to whatever decision is made by the Prisoners Review Board before making that decision.

3. For that reason, I will make an order adjourning the application for an interim supervision order to 16 December 2021.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

AK

Principal Associate to the Honourable Chief Justice Quinlan

26 NOVEMBER 2021