The State of Western Australia v CJC [No 2] - [2023] WASC 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CJC [No 2] [2023] WASC 112
CORAM:   QUINLAN CJ
HEARD:   4 APRIL 2023
DELIVERED          :   4 APRIL 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 interim detention order or interim supervision order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

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

Case referred to in decision:

The State of Western Australia v CJC [2023] WASC 52

QUINLAN CJ:

(This judgment was delivered extemporaneously on 4 April 2023 and has been edited from the transcript.)

On 24 February 2023, the State of Western Australia's application for a restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (the Act) came before me for the purposes of a preliminary hearing.
On that day, I was satisfied that there were reasonable grounds to believe that a court might find that the respondent is a high risk serious offender. I therefore made orders for the hearing of the restriction order application, which is listed to be heard on 16 August 2023.[1]
[1] The State of Western Australia v CJC [2023] WASC 52 (CJC).
I otherwise adjourned the hearing of the preliminary hearing until 24 March 2023 and then to today, to hear submissions as to whether the respondent should be detained in custody pending the determination of the restriction order application (pursuant to s 46(2)(c)(i) of the Act) or should be subject to an interim supervision order (pursuant to s 58 of the Act). In the meantime I ordered that the respondent be detained in custody until today's date.
The above course was adopted because the respondent is currently facing charges for further offences, which have been committed to the District Court and, as at 24 February 2023, he had not applied for bail in relation to those offences. In that context, s 58 of the Act 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)). I concluded, at least as a preliminary view, that 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, could not be supported by the text of the statute.[2]
[2] CJC [35].
The respondent has since applied for, and was granted bail by Whitby DCJ on 23 March 2023. The State did not oppose bail, and indeed invited her Honour to grant it, on the basis that the respondent's liberty remained subject to my decision as to whether he should be placed on an interim supervision order. Indeed, in granting bail, Whitby DCJ said:
I do have some significant concerns about granting bail to the accused. They are these. Given the proposed place of residence and the prior convictions of the accused, I do consider that there is a risk of endangering the safety and welfare of members of the community, particularly children. Ordinarily home detention I would consider to be appropriate to alleviate those risks of the accused committing an offence or endangering the safety or welfare of any person, and I do not have a home detention report in relation to the proposed residence.
However, given the matter is before the Supreme Court on an application under the HRSO Act, and I am required to consider whether there are any conditions that could reasonably be imposed which would sufficiently alleviate those risks that [I] have identified. I do consider that on the HRSO application consideration will be given to, amongst other things, the proposed accommodation of the accused and the welfare and safety of the community.
Of course, the considerations relevant to the grant of bail are not the same as those that arise in relation to an interim supervision order under s 58 of the Act. I am not, for example, concerned with the strength of the case on the pending charges before the District Court. The principal consideration under the Act is to 'ensure adequate protection of the community' (s 58(2)(c)). I must address that consideration regardless of the outstanding charges against the respondent.
For the reasons that follow, in my view, the concerns expressed by Whitby DCJ as to community safety were entirely justified. In my view, it is not desirable to ensure adequate protection of the community that the respondent be released on a supervision order. While I accept that it is a serious step to take in relation to a person who has completed their sentence and in relation to whom the application for a restriction order under the Act has not yet been determined, and is not a step to be taken lightly, in my view, adequate protection of the community requires that the respondent be detained in custody until the determination of the restriction order application, unless better arrangements can be made for his supervision in the community.
I need not repeat my reasons for being satisfied that there are reasonable grounds for believing that the Court might find that the respondent is a high risk serious offender.
It is sufficient that I record the following:
(a)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]
(b)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.[4]
(c)The only treatment the respondent has received since being imprisoned over 11 years ago, was a Sex Offending Deniers Program, in 2014. The respondent was observed to gain limited understanding of the issues related to his offending and was generally unable to acknowledge that they had detrimentally impacted upon him throughout the program. That report also recommended the potential that the respondent has cognitive deficits or intellectual impairments. Regrettably, it appears that in the decade that has followed nothing has been done to address that issue.[5]
(d)A treatment report prepared in 2022 sought to identify outstanding treatment needs. The respondent failed to attend appointments, refused further counselling and was not forthcoming with the interviewer. He did not appear to be motivated towards release.[6]
(e)The criminogenic factors underlying the respondent's offending – and the steps necessary to prevent its repetition – remain largely a mystery.[7]
[3] CJC [11].
[4] CJC [19].
[5] CJC [22] ‑ [23].
[6] CJC [25].
[7] CJC [28].
The respondent's history of offending, in the face of his denial of offending and failure to meaningfully engage with any treatment, themselves give significance cause for concern for the safety of children in the community if the respondent were released. While, as his counsel submitted, the respondent's previous offending has been against children with whom he has a familial or other social relationship, the offending itself reflects such a disordered attitude to the safety and dignity of others (including, and perhaps especially, his own children) that, without specific evidence, it is difficult to see how those attitudes would be confined to those groups.
Counsel for the respondent quite properly made submissions that the apparent lack of any attention given to the respondent's cognitive and intellectual abilities mean that the opportunity to address his risk of reoffending has been lost or lessened. That may well be the case and, indeed, the material does reveal a failure by the relevant authorities to make a concerted effort to identify and address the respondent's deficits and treatment needs. That, nevertheless, simply leaves the court with no material on which I could have any degree of confidence that the respondent's risks could properly be managed.
In any event, the risk to community safety in the present case is in my view significantly amplified by the wholly inadequate living arrangements that are proposed in the event that the respondent is released.[8] On 24 February 2023, I expressed the provisional view that 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. Nothing has changed in the meantime that has caused me to alter that provisional view.
[8] See Affidavit of Stacey Madden affirmed on 20 February 2023; Affidavit of Martyn James Clancy-Jones sworn 22 February 2023.
The available evidence is to the effect that the respondent proposed to live in a disused bus on an industrial property in a regional town. It is not a designated residential property.
The town forms part of the region where the respondent's offending occurred and where, it appears, a number of his family members may still reside. The town itself is a town of some reasonable size and would inevitably be the home to a number of children. 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.
I do not place significant weight on this final matter (that is the reference to violent outbursts). It is only referred to in passing in one of the affidavits. It nevertheless appears to be the case from all of the material that the respondent has extremely limited social supports, a matter that could only add to his potential risk.
The proposed accommodation was also one that may be attended by monitoring difficulties associated with the absence of local community corrections staff in the event that the integrity of electronic monitoring is compromised. The nearest community corrections office to the location is over 50 km away and the local police station is operational between 8.00 am and 4.00 pm on weekdays only. In those circumstances the kind of supervision of the respondent's movements and behaviour necessary to have any confidence in the safety of the community is, in my view, simply not available.
For these reasons, to ensure adequate protection of the community, in my view, the appropriate order is that the respondent be detained in custody until the determination of the restriction order application, or further order. An order in those terms does not foreclose a further application for an interim supervision order in the future, were the issues I have identified above are able to be satisfactorily addressed.
For those reasons I would make the order in the following terms:
(a)pursuant to s 46(2)(c)(i) of the Act the respondent be detained in custody until the determination of the restriction order application pursuant to s 48 of the Act or until further order; and
(b)there be liberty to apply.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Principal Associate to the Honourable Chief Justice Quinlan
4 APRIL 2023