The State of Western Australia v Ciavalini
[2024] WASC 438
•25 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CIAVALINI [2024] WASC 438
CORAM: FORRESTER J
HEARD: 25 OCTOBER 2024
DELIVERED : 25 OCTOBER 2024
PUBLISHED : 25 NOVEMBER 2024
FILE NO/S: SO 11 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DANIEL CIAVALINI
Respondent
Catchwords:
Criminal law - High risk serious offender - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Whether an interim supervision order is desirable - Turns on own facts
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders made pursuant to s 46(2) of the High Risk Serious Offenders Act 2020 (WA)
Interim Supervision Order made
Category: B
Representation:
Counsel:
| Applicant | : | Ms F Allen |
| Respondent | : | Ms F Veltman |
Solicitors:
| Applicant | : | State Solicitor for Western Australia |
| Respondent | : | Carlo Primerano & Associates |
Case(s) referred to in decision(s):
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
FORRESTER J:
(This judgment was delivered extemporaneously on 25 October 2024 and has been edited from the transcript).
On 22 March 2022, the respondent was sentenced to a term of 2 years' imprisonment for the charge of aggravated stalking. Taking into account time in custody, the respondent's term of imprisonment is to expire on 25 December 2024.
On 12 September 2024, the State of Western Australia applied for a restriction order in respect of the respondent pursuant to the High Risk Serious Offenders Act 2020 (WA) (the Act). The preliminary hearing of the application came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the Act. The law in relation to that issue is well settled[1] and there is no issue that the court has jurisdiction in this case to make an order if the threshold is met.
[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 respondent's counsel, while accepting it was a matter for the court, conceded that the requirements of the Act in that respect were met. In my view, that concession was properly made. I am satisfied that the requirements of s 46 of the Act are met.
For the reasons that follow, I will therefore make orders for the hearing of a restriction order application. I will also order that upon the conclusion of his custodial sentence, the respondent be released from custody on an interim supervision order pending the determination of that application. For the protection of the community, this order will require the respondent be subject to strict conditions, which I will detail shortly.
The evidence
In support of the application, the State relied upon an affidavit of Tse Chee Loo affirmed on 12 September 2024, and an affidavit of Heather Applin affirmed on 1 October 2024. Ms Loo's affidavit contains the respondent's criminal history, as well as several reports and assessments in relation to him. These include both a psychological and a psychiatric report, as well as program completion reports, a treatment assessment report, and a Victim‑Offender Mediation Unit report.
I have considered all of the evidence and need not set it out in detail. Relevant features of it include the following.
The respondent is now 46 years old. He has a lengthy criminal history, which almost exclusively comprises convictions for stalking and related breaches of Family Violence Restraining Orders (FVROs).
Of particular relevance to this application are the respondent's convictions for a series of offences defined as 'serious offences' within the meaning of the Act.[2] They constitute five counts of stalking, three of them under circumstances of aggravation, committed over a twenty‑year period from 2002 to 2022.
[2] High Risk Serious Offenders Act 2020 (WA) s 5 (Act).
The respondent is presently serving a two‑year term of imprisonment for the last of these offences. His sentence expires on 25 December 2024. On 22 March 2023, a serial family violence offender declaration was made in respect of the respondent.
The specifics of the respondent's serious offending include the following.
Stalking: Criminal Code (WA), s 338E(1)(b) - the 2002 offence
Between 9 and 17 June 2002, the respondent made numerous telephone calls and sent multiple text messages to his ex‑girlfriend, who had ended her relationship with the respondent on 15 May 2002.[3]
[3] Affidavit of Tse Chee Loo affirmed 12 September 2024, Annexure J (Loo Affidavit).
On one day alone, 14 June 2002, the respondent sent the victim 42 text messages, some of which were threatening. In addition, he called the victim's workplace, before attending in person and being asked to leave by management. The respondent was aware that the complainant was afraid of him and of him being potentially violent towards her.[4]
Stalking: Criminal Code, s 338E(2) - the 2017 offence
[4] Loo Affidavit, Annexure J.
In October 2016, the respondent began a relationship with LD. Approximately two months later, LD attempted to end the relationship. On 9 March 2017, the respondent followed her to a shopping centre and filmed her. When she questioned why he was doing this, he answered, '[b]ecause you're a selfish bitch'.
That same day, the respondent followed the victim to her home, and filmed himself approaching her, who was recorded repeatedly asking the respondent to stay away from her. The respondent returned to the victim's home that evening, where he took a photo of her in her living room.
Less than two weeks later, on 21 March 2017, the respondent used his mobile phone to call the victim 84 times. The next day, 22 March, he called her 120 times.
On the morning of 23 March 2017, the respondent showed up unannounced at a shopping centre, where he had a verbal argument with LD who again told him to leave her alone. Throughout that day he attended her house at least three times uninvited, and called her mobile phone 266 times.
On the last occasion, the respondent and the victim engaged in a verbal argument and the respondent attempted to rip the victim's clothes off. As a result she suffered abrasions to the inside of her right arm and the front of her right shoulder. The respondent also threw a piece of a vacuum cleaner at the back of the victim's neck. The respondent then left the premises and returned home, where he was arrested shortly afterwards.[5]
[5] Loo Affidavit, Annexure T.
In addition to being charged with stalking, the respondent was also charged with common assault in circumstances of aggravation. On 16 May 2017, the respondent was sentenced to a one‑year suspended imprisonment order for the stalking.
The respondent breached that order, and a violence restraining order for the protection of LD, just 12 days later, and again on 1 June 2017. In November 2017, he repeatedly breached a FVRO made for the protection of LD's two young children by being within an area prohibited by the order.
The respondent also breached restraining orders in November 2018 by attending at LD's house and approaching her at a shopping centre, and in August 2019 by attending LD's house.
Aggravated stalking: Criminal Code, s 338E(1)(a) - the 2020 offence
On 18 February 2020, the respondent was served with a FVRO protecting LD, as well as her three children.
Between 19 and 22 February 2020, the respondent called LD's mobile continuously, leaving messages threatening to harm himself and destroy property if she did not pick up.
On 22 February 2020, while police were at LD's home, the respondent called her over 30 times. The next day, when the respondent was arrested, they found 511 outgoing calls to the victim's phone, as well as other devices showing the respondent had sent abusive messages to LD prior to the service of the FVRO.
For this offending, the respondent was sentenced to 10 months' imprisonment.
Aggravated stalking: Criminal Code s 338E(1)(a) – the 2021 offence
The victim of this offence was once again LD. On 1 October 2021, LD reported to police that the respondent had been calling her, in breach of the FVRO. Police seized his mobile phone and found in excess of 17,000 communications over the previous 239 days, using the WhatsApp messaging application. During one 24‑hour period, the respondent had attempted to contact the victim more than 450 times. Some of the texts were abusive and threatening.[6]
[6] Loo Affidavit, Annexure AR.
On 19 November 2021, the respondent was sentenced to a term of 13 months' imprisonment. He was released from prison for this offence on 1 November 2022. At the time, he was still subject to a FVRO for the protection of LD.
Aggravated stalking: Criminal Code, s 338E(1)(a) – the 2022 offence
The respondent's most recent offending, and that for which he is currently imprisoned, relates to events that occurred between 1 November and 25 December 2022, immediately upon his release on 1 November 2022. The victim was again LD.
At 11.14 am on 1 November 2022, he made his first communication with the victim via Instagram. Over the coming weeks, the respondent sent the victim 3,062 text messages and phoned her over 400 times. On 25 December 2022 alone, the respondent made over 350 calls and sent 113 messages to LD. Some of these messages contained explicit material or abusive content.[7]
Other offending
[7] Loo Affidavit, Annexure G.
The respondent has also committed a serious of other offences which, while not serious offences for the purposes of the Act, are relevant when determining the orders I should make today.
These include 75 breaches of FVROs dating back to 2017, as well as two breaches of police orders and a breach of bail conditions.
These offences suggest both a disregard for court orders and a capacity for obsessive behaviour on the respondent's part.
Risk assessment and treatment
Reports
The respondent has undergone a series of evaluations over the years, including psychological, psychiatric and other assessments.
The most recent of these reports provided to me is a Treatment Assessment Report prepared in October 2023 during the respondent's current period of incarceration at Acacia Prison.[8] The respondent completed several sessions of recommended one‑on‑one psychological counselling sessions in 2022, but recalled limited aspects of his treatment.
[8] Loo Affidavit, Annexure AY.
This report concludes that the respondent presents as having a high risk of general reoffending, and a medium risk of violent reoffending. It also states that the respondent has demonstrated 'limited insight into his violent offending and minimised his offending', and has shown 'limited victim empathy', going so far as to partially blame the victim for his offending. This is demonstrated by the respondent's recurring breaches of court orders and persistent offending against the same victim.
The respondent is taking prescription anti‑depressant medication but does not believe he needs to use it on his release.
The author concludes that the respondent would benefit from further treatment around family and domestic violence.
Also before me is a psychiatric report prepared by Dr Siva Bala and dated 14 June 2020.[9]
[9] Loo Affidavit, Annexure AW.
Dr Bala recognised that the respondent had long‑standing self‑esteem issues arising from his childhood. This has manifested as a fixation on intimate relations, and an inability to cope with their ending, resulting in the respondent obsessively pursuing a number of previous partners until legal sanctions were imposed against him.
While this was not a consequence of any underlying mental illness, Dr Bala did diagnose the respondent with an adjustment disorder in the context of his period of incarceration, and noted that he might be developing a depressive order.
Dr Bala identified the respondent as being at significant risk of reoffending in a similar manner. This assessment proved prescient given he did so immediately upon his release from incarceration in 2022. Dr Bala recommended that the respondent receive individual psychotherapy to address unresolved issues and improve coping skills.
I have also considered a psychological report relating to the respondent dated 15 April 2018 prepared by Ms Tanina Oliveri.[10]
[10] Loo Affidavit, Annexure AV.
Ms Oliveri reported that the respondent described quickly becoming attached to women if they showed him attention or interest, and that all of his intimate relationships had been marred by frequent arguments, financial strain, and his inability to meet what he believed to be too high expectations upon him. He said he constantly felt like a failure and a disappointment as a partner, he felt devastated and rejected when his partners ended relationships and he could not accept the relationships had ended and would constantly try to reconcile. He admitted he has almost no friends. He does not appear to have any substance use issues. There is some evidence that he has speech and learning difficulties.
Ms Oliveri concluded that the respondent 'lacked insight and self‑awareness', and that he viewed himself as a victim while minimising his behaviour.
Ms Oliveri employed the MCMI‑III diagnostic assessment to evaluate the respondent, and noted that he displayed a tendency to exaggerate his problems and devalue himself, which is commonly seen in those attempting to obtain the sympathy of others, when the respondent has completed the tool while experiencing emotional turmoil and/or is crying out for help, which Ms Oliveri felt were all likely. This was typical of an individual 'overly dependent on others for direction, security and affection'.
Ms Oliveri concluded that Mr Ciavalini had outstanding treatment needs relating to domestic violence, relationship skills, emotional regulation, stress resilience and coping skills, depression and anxiety, negative and self‑defeating attitudes, and impulse control. She assessed that he has many factors known to correlate with increased recidivism for future family violence.
Programs
The respondent commenced the Families Without Fear Program, in November and December 2017, but did not complete it due to his further offending. His engagement was limited, and he demonstrated little insight into the program content during his time in the program. His treatment needs were assessed as developing assertive communication and conflict resolution skills, emotional management, empathetic reasoning and insight into his attitudes and beliefs that are conducive to violent behaviour.[11]
[11] Loo Affidavit, Annexure AU.
In 2021, the respondent completed the Connect and Respect Program. He remained reserved throughout, and presented with difficulty following the sessions. Concerns were held for his level of comprehension of group content. When it was confirmed that he had learning difficulties and cognitive delays, the sessions were moderated, but it appeared that those issues posed a substantial barrier to the respondent's ability to develop an understanding of program content. He was assessed as having made limited gains in the area of attitude and understanding the use of violent behaviours in relationships and no gains in relation to victim empathy or perspective taking.
At the conclusion of the program, facilitators concluded that his treatment needs of responsibility taking, victim empathy and perspective taking, emotional literacy and regulation, assertive communication and understanding the long-term impacts of family violence remained outstanding.[12]
Plan for release
[12] Loo Affidavit, Annexure AX.
The respondent proposes to reside in his previous address - a property owned by his mother. His mother has minimised the impact of the respondent's offending on the victim and apportioned blame to the victim, suggesting she may not act as a protective factor for the respondent. The accommodation is also within the vicinity of the victim's residence in that it is an adjacent suburb.
My assessment
I am satisfied, on the evidence before me, that there are reasonable grounds to believe that the court might find the respondent to be a high risk serious offender. He has an extensive history of committing stalking offences, undeterred by any form of court order and shows a blatant disregard for those orders which are intended to protect his victims.
On the basis of his offending history and his psychological profile, I am satisfied that there are reasonable grounds to believe that the court might find that he is a real risk of committing further stalking offences if released in the absence of restriction. Stalking is a serious offence within the meaning of the Act.
I will therefore make orders for the hearing of the restriction order application.
Interim detention order or interim supervision order?
The State submits that I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act until the conclusion of the hearing of an application for a restriction order.
In the present case, the evidence reveals that the respondent has accommodation available to him should he be released into the community. This is the same accommodation where he previously lived, being an address owned by his mother who lives opposite.
The applicant expresses concern that an interim supervision order would see the respondent released to live in accommodation where he previously committed a series of stalking offences, and dozens of breaches of court orders. In particular, the concern is expressed that it is in the adjacent suburb to the complainant's premises. However, I have formed the view that his accommodation has no connection to his past offending. While his mother is not a protective factor, she does not appear to facilitate his offending.
In the circumstances, I do not consider that the accommodation is such as to preclude a release on a supervision order.
The most significant problem is the possibility that the respondent will call the previous victim of his offending, bearing in mind that while there is a physically violent incident in the history, the primary means of stalking the victim has been by electronic device.
It is not clear whether the victim continues to have the same phone number or whether the respondent has any present means to contact her.
However, in my view the conditions of a supervision order can be such as to prevent the respondent committing a stalking offence against the previous victim using an electronic device. I propose to impose extremely strict conditions in that regard. Strict conditions will also be placed in relation to the respondent's relationships and disclosure in relation to any such relationship.
Otherwise, the Affidavit of Heather Applin provided by the State suggests that GPS monitoring will be available and a proper exclusion zone can be put in place.[13]
[13] Affidavit of Heather Applin affirmed 1 October 2024.
In my view, it is appropriate to order that the respondent be released on an interim supervision order subject to strict conditions, including a set of protective conditions provided by the Victim Offender Mediation Unit.
I will make a detention order in terms of the minute of proposed orders that, from 25 December 2024 until 2 January 2025, the respondent be detained on an interim detention order pursuant to s 46 of the Act. From 2 January 2025, he is to be released on the interim supervision order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
25 NOVEMBER 2024
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