The State of Western Australia v CJC

[2023] WASC 52

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CJC [2023] WASC 52

CORAM:   QUINLAN CJ

HEARD:   24 FEBRUARY 2023

DELIVERED          :   24 FEBRUARY 2023

FILE NO/S:   SO 2 of 2023

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

CJC

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 detention order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46(2) made
Interim detention order made

Category:    B

Representation:

Counsel:

Applicant	:	D S McDonnell
Respondent	:	E A Hamilton

Solicitors:

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

Cases referred to in decision:

The State of Western Australia v CA [2020] WASC 164

The State of Western Australia v Cox Aka Roe, SO 10 of 2020, 27 August 2020

The State of Western Australia v OJD, SO 11 of 2020, 4 September 2020

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

The State of Western Australia v Ratcliff [2021] WASC 31

The State of Western Australia v Roworth [2021] WASC 309

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

QUINLAN CJ:

Summary

1. On 10 February 2023, the State of Western Australia applied for a restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (the Act).

2. The preliminary hearing of the application came before me today.

3. The main purpose of the preliminary hearing was for me to decide whether 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 (see s 46(1) of the Act).

4. The respondent's counsel accepted that the requirements of s 46(1) were met. In the circumstances, I am satisfied that the requirements of s 46(1) are met. For that reason I made orders for the respondent to be reviewed by a psychiatrist and psychologist for the purpose of the hearing of the restriction order application.

5. The respondent is a sentenced prisoner, in relation to a number of sexual offences he committed between 2006 and 2008. His current term of imprisonment expires on 1 March 2023. The respondent is, however, currently facing charges for further offences, which have been committed to the District Court of Western Australia. Those charges relate to offences alleged to have been committed in 2009 against three victims, including one of his children. Two of the children were victims of the respondent's previous offending. The respondent has pleaded not guilty to those charges. It is sufficient to observe that those charges involve allegations of the utmost depravity.

6. The respondent has not applied for bail in relation to those charges and so, the parties accepted, will remain in custody on remand unless, and until, he is granted bail. In the meantime, however, the State sought an interim detention order under the Act, in the event that the respondent was granted bail in relation to the pending charges.

7. The respondent's counsel foreshadowed that she would apply for an interim supervision order under the Act, and sought an adjournment to be able to make that application, having only recently been instructed in relation to the restriction order application. She had initially proposed to make the application for an interim supervision order prior to applying for bail on the pending charges. However, by reason of the quirks of the Act discussed below, she accepted that it would be necessary to seek a grant of bail before seeking the interim supervision order. In that context, she did not oppose the making of an interim detention order to a fixed date, upon which the respondent might pursue the application for an interim supervision order.

8. In all of the circumstances, I made further orders adjourning the preliminary hearing to 24 March 2023, at which time the respondent may pursue any application for an interim supervision order pursuant to s 58 of the Act. I also ordered that the respondent be detained in custody until 24 March 2023, pursuant to s 46(2)(c)(i) of the Act.

9. My reasons for making those orders are as follows.

The Court might find that the respondent is a high risk serious offender

1. Pursuant to s 46 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 the respondent is a high risk serious offender. The law in that regard is well settled and I need not repeat it.[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).

2. The respondent is 58 years old and has a long history of offending. His offending has included sexual penetration of a child under 13 years old, indecent dealings with a child who is a lineal relative, indecent dealing with a child under 13 years, indecent dealing with a child under 14 years, failing to protect a child from harm, assault occasioning bodily harm, breaking and entering, stealing, possession of stolen property, breach of bail, breach of a probation order, false pretences, driving a vehicle without due care and attention, unlawful use of a motor vehicle and other traffic offences.

3. The respondent's offending history includes convictions for seven serious offences within the meaning of the Act, between 2006 and 2008, for which he is currently serving a term of 11 years of imprisonment. Those offences included one count of sexual penetration of a child under 13 years old under s 320(2) of the Criminal Code, two counts of indecently dealing with a child who is a lineal or de-facto relative under s 329(4) of the Criminal Code, and four counts of indecently dealing with a child under 13 years s 320(4) of the Criminal Code.

4. As is apparent from the nature of a number of the respondent's convictions, many of the respondent's victims are his own children. The respondent has 13 children from three unions, all of whom appear to have been neglected or abused in some form. All seven of his youngest children were taken into State care and, in 2010, the respondent and his wife (the mother of those seven children) were convicted of failing to protect one of those children, their five year old son, from harm. In total, at least 12 of his children were taken into care. As Staude DCJ aptly put it, in sentencing the respondent to his current term of imprisonment, he appears 'incapable of normal parental love'. That is an understatement.

5. The circumstances of the offending for which the respondent is currently imprisoned included offences against another of his children, this time one of his daughters, who was then approximately seven years old. Those offences involved at least attempted sexual penetration of his daughter's vagina and anus with his penis. The convictions for those particular acts were convictions of indecent dealing, notwithstanding that, as a matter of fact, they were tantamount to penetration or attempted penetration.

6. The respondent was also convicted of sexual penetration and indecent dealing with another child, who was a friend of the family. The respondent engaged in cunnilingus with that victim, who was no more than nine years old at the time, and rubbed his penis on her vagina.

7. The third victim in this series of offences was an 11 year old girl. The offences committed by the respondent against her consisted of indecently touching her on a number of occasions.

8. In addition to these offences, the respondent has other convictions for indecently dealing with children, in Queensland, dating back to 1982 and 1983 and a conviction, in 1993, for assaulting his two year old son.

9. As I noted above, the respondent has pending charges alleged to have been committed in 2009. The alleged victims of those charges are the daughter who was the victim of the charges referred to above, the girl against whom the respondent committed the offences of sexual penetration and indecent dealing, and that girl's brother.

10. The respondent is in complete denial of his offending and the abuse of his children and others. He consistently denies any wrongdoing and maintains his innocence of all of the charges for which he has been convicted.

11. A psychological report prepared by Mr Steve Jobson on 30 March 2012 reported that the respondent 'presented as a highly guarded man who was reluctant to give any but the most innocuous information to the interviewer.' The respondent declined to complete a psychometric personality assessment.

12. In 2014, during his current term of imprisonment, the respondent completed the Sex Offending Deniers Program, a 110‑hour treatment program, designed for individuals who categorically deny committing sexual offences for which they have been convicted.

13. According to the program completion report dated 23 February 2015:

    Issues to address included viewing self as low risk to reoffend, poor coping and problem solving, behavioural and emotional dysregulation, lack of communication and relationship skills, and maladaptive attachment.

    In treatment [the respondent] was observed to gain limited understanding of these factors and was also generally unable to acknowledge they had detrimentally impacted upon him throughout his life …

    During treatment, despite his reluctance to explore difficulties in his life, [the respondent] articulated some understanding of risk factors. However, his fluctuating views in relation to them are of concern with him often denying experiencing any problems, thus denying having any risk factors to address.

14. The authors of that report refer, on a number of occasions, to the possibility, as yet untested, that the respondent has cognitive deficits. The report recommended further exploration of the respondent's intellectual capacity. It does not appear that that has happened. It should. Cognitive deficits may well serve to provide some explanation for the depravity and sheer lack of empathy evident in the respondent's offending.

15. In February 2021, the respondent was refused parole. The respondent was refused parole, among other reasons, due to unmet treatment needs in relation to his sexual offending and limited gains in the Sex Offenders Deniers Program.

16. An Individual Psychological Treatment Assessment Report was completed for the respondent on 14 September 2022. The respondent was interviewed to assess his willingness to engage in individual intervention with respect to his identified outstanding treatment needs and the potential for being declared a high risk serious offender. The respondent failed to attend two appointments and required an officer to physically locate him and direct him to attend the appointment. The respondent refused further counselling and was not forthcoming with the interviewer. The respondent did not then appear to be motivated towards release. The report noted the respondent made negative comments about his family and that he had no social connections in the community.

17. A Post Sentence Supervision Order Report dated 12 January 2023, also noted that the respondent continues to deny his offending and refuses to take responsibility.

18. Having regard to all of the available information, I am satisfied that there are reasonable grounds to believe that the court might find the respondent to be a high risk serious offender. Insofar as it has been possible to assess his risks, which possibility has been limited by his refusal to meaningfully participate in assessment, the respondent has been described as in the Medium‑High category of risk of reoffending.

19. Beyond that, the criminogenic factors underlying the respondent's offending – and the steps necessary to prevent its repetition – remain largely a mystery. The only useful treatment report, from the Sex Offending Deniers Program, is eight years old and, as the extract above reveals, does not inspire confidence that the respondent even appreciates that he is at risk of reoffending.

20. On the basis of the respondent's offending history and his unmet treatment needs, I am therefore satisfied that there are reasonable grounds to believe that a court might find that he is a high-risk serious offender.

Interim detention order

1. As I noted at the beginning of these reasons, the respondent's counsel foreshadowed that she would apply for an interim supervision order under the Act, and sought an adjournment to be able to make that application.

2. The State did not oppose an adjournment for that purpose but submitted that I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act in the meantime, until the date of the resumed hearing. Counsel for the State submitted that, while the respondent was presently in custody, he would no longer be a sentenced prisoner after 1 March 2023 and that there was at least the possibility that the respondent would make an application for bail before I could otherwise determine the question of any interim orders under the Act.

3. Counsel for the respondent initially proposed that she would pursue the application for an interim supervision order prior to applying for bail in relation to the pending charges. In that regard, I expressed the following provisional view that such a course may be prevented by the terms of s 58 of the Act.

4. Section 58 provides that the power to make an interim supervision order in pending proceedings under the Act only applies if 'the offender to whom the pending proceedings relate is not in custody' (s 58(2)(b)). In The State of Western Australia v CA,[2] Fiannaca J interpreted the equivalent provision in the Dangerous Sexual Offenders Act 2006 (DSO Act), to apply to the situation in which the offender will not be in custody on a specified future date before the application for the div 2 order is finally determined. An application for a div 2 order under the DSO Act was the equivalent of an application for a restriction order under the Act.

   [2] The State of Western Australia v CA [2020] WASC 164 (CA).

5. While expressing some doubt about the correctness of that interpretation, a number of judges of the Court, including myself, have not been satisfied that the decision in CA is clearly wrong and have followed and applied it in the context of s 58(2)(b) of the Act.[3] In those cases, the Court has made orders for an interim supervision order to take effect on the specified date in the order, being the date upon which the offender was to be released.

   [3] The State of Western Australia v Cox Aka Roe, SO 10 of 2020, 27 August 2020, ts 50 (Allanson J); The State of Western Australia v OJD, SO 11 of 2020, 4 September 2020, ts 29 (Hill J); The State of Western Australia v Ratcliff [2021] WASC 31 [42] –[43] (Derrick J); The State of Western Australia v Roworth [2021] WASC 309 [56] (Quinlan CJ).

6. To construe s 58(2)(b) as applying in circumstances in which the offender is in custody and might be released on an unspecified date, being the date of a successful bail application would go beyond the interpretation given to the provision in CA and the cases that have followed it. In my preliminary view, it is an interpretation that could not be supported by the text of the statute.

7. In light of this preliminary view, counsel for the respondent indicated that she would seek an application for bail in relation to the pending charges before pursuing any application for an interim supervision order under the Act. She sought an adjournment for four weeks to enable that to occur. I granted that adjournment, and adjourned the preliminary hearing to 24 March 2023.

8. In the interim I ordered that the respondent be detained in custody until 24 March 2023, pursuant to s 46(2)(c)(i) of the Act. There are two reasons that I made that order.

9. First, it serves to preserve the status quo pending consideration of whether it is appropriate to make an interim supervision order. The detention the subject of the order will expire the day after the adjourned date of 24 March 2023 (unless renewed on that date). In the event that it is appropriate to make an interim supervision order it therefore would be open, applying CA, to order that such an order take effect the following day.

10. Secondly, and in any event, as I expressed at the hearing today, my provisional view is that amongst other matters the respondent's proposed accommodation upon release would not provide sufficient protection for the community pending the hearing of the application for a restriction order. The available evidence is to the effect that the respondent proposes to live in a disused bus on an industrial property in a regional town. The town forms part of the region where the respondent's offending occurred and in an area where, it appears, a number of his family members may still reside. The property at which the respondent proposes to reside is owned by a friend of the respondent who has a number of criminal convictions and who, according to the Officer in Charge of the local police station, has a history of violent outbursts. The location was also one that may be affected by monitoring difficulties associated with the absence of local community corrections staff in the event that the integrity of electronic monitoring is compromised.

11. All of these issues, and the respondent's risk generally, would need to be carefully addressed before I could be satisfied that, to ensure adequate protection of the community, it was desirable to make an interim supervision order.

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

KT

Associate to the Honourable Chief Justice Quinlan

24 FEBRUARY 2023