The State of Western Australia v Clarke [No 2]
[2023] WASC 53
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CLARKE [No 2] [2023] WASC 53
CORAM: TOTTLE J
HEARD: 15 FEBRUARY 2023
DELIVERED : 28 FEBRUARY 2023
PUBLISHED : 1 MARCH 2023
FILE NO/S: SO 2 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JOHNATHON LEON MARTIN CLARKE
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to a restriction order - Whether necessary to make a restriction order to ensure the adequate protection of the community - Whether community can be adequately protected by supervision of the respondent
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 321, s 326, s 329
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr D S McDonnell |
| Respondent | : | Ms A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888
The State of Western Australia v Clarke [2022] WASC 137
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Patrick [No 5] [2022] WASC 61
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330
TOTTLE J:
Introduction
In 2017 the respondent was sentenced to a total effective term of imprisonment of five years and four months in respect of one offence of aggravated sexual penetration without consent and one offence of aggravated assault occasioning bodily harm. Although eligible to do so the respondent did not apply for parole.
The State applied for a restriction order under the High Risk Serious Offenders Act 2020 (WA) (the Act) in respect of the respondent. On 22 April 2022 a judge of this court made an interim detention order. The effect of this order is that following the completion of his sentence on 3 June 2022 the respondent remained in custody pending the final determination of this application for a restriction order.[1]
[1] The respondent was sentenced on 27 July 2017 and the sentence was backdated to 4 February 2017.
I have concluded that the respondent is a high risk serious offender and that a continuing detention order should be made in respect of him. My reasons for reaching these conclusions are set out below.
The statutory framework and relevant principles
The statutory framework and the relevant principles have been the subject of frequent exposition in decisions of this court and were recently considered by the High Court in Garlett v The State of Western Australia.[2] The central provisions and the principles applicable to their application are as follows:
[2] Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888.
(a)The objects of the Act are twofold: first, to ensure the adequate protection of the community and of victims of serious offences and, secondly, to provide for the continuing control, care or treatment of high risk serious offenders.[3]
[3] High Risk Serious Offender Act 2020 (WA) (the Act) s 8. The term 'community' is defined to include any community and is not limited to the community of Western Australia or Australia, see the Act s 4.
(b)The powers conferred by the Act are not to be exercised for the purpose of imposing additional punishment on an offender. The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection for the community.[4]
[4] The State of Western Australia v Latimer [2006] WASC 235 [24]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [85], [229] - [230].
(c)The Act provides for the community to be protected by making restriction orders in respect of high risk serious offenders. There are two types of restriction orders: a continuing detention order, the effect of which is to detain an offender in custody after he has served his sentence; and, a supervision order, the effect of which is to release the offender into the community subject to compliance with conditions designed to monitor and control an offender's behaviour. Thus, the community may be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced or by control continuing to be exercised over the offender in the community.
(d)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 to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[5]
[5] The Act s 7(1).
(e)An offence is a serious offence if, among other offences, it is specified in sch 1 div 1 of the Act or it is specified in sch 1 div 2 of the Act and is committed in the circumstances indicated in relation to that offence in div 2.[6]
[6] The Act s 5(1).
(f)For the purpose of considering whether the court is satisfied that an offender is a high risk serious offender the court must have regard to each of the matters specified in s 7(3) of the Act.
(g)The State carries the onus of satisfying the court that an offender is a high risk serious offender.[7]
[7] The Act s 7(2).
(h)The court must make a restriction order if it finds that the offender is a high risk serious offender.[8]
[8] The Act s 48(1).
(i)The expression 'high degree of probability' connotes a standard of proof that is higher than the civil standard but less than the criminal standard and is otherwise incapable of further definition.[9]
(j)The court must assess the level of risk that the offender will commit a serious offence or serious offences of the nature identified in the evidentiary materials supporting the application.[10]
(k)The requirements that the risk be 'unacceptable' and that the restriction order be 'necessary' to ensure 'adequate' protection of the community direct attention to whether the identified risk to the community can be tolerated. That assessment must be made in light of the whole of the burden which would be placed upon the liberty of the offender by the making of a restriction order, including the imposition of any standard supervision order conditions. In this respect the Act does not envisage the possibility that a restriction order will be made to prevent the commission of a serious offence unless the risk of further re‑offending involves a real threat of harm to the community. The evaluative exercise the court must undertake involves balancing the level of the risk that the offender will commit a serious offence together with the magnitude of the harm associated with that risk against the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed.[11]
(l)The court may assess the level of risk that an offender will commit a serious offence at less than 50% yet still find that to be an unacceptable risk.[12]
(m)In deciding whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure the adequate protection of the community.[13]
(n)Section 29 of the Act limits the power of the court to make a supervision order rather than a continuing detention order. The section provides the court cannot make a supervision order unless it is satisfied on the balance of probabilities that a respondent will substantially comply with the 'standard conditions' of a supervision order. There are seven standard conditions specified in s 30(2). They include a condition to the effect that the offender will not commit a serious offence during the period of the order.
[9] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28], [34]; The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [2020] WASC 330 [47].
[10] Garlett v The State of Western Australia [220]. I note that in Garlett v The State of Western Australia Edelman J stated that the application must specify the serious offence within sch 1 of the Act which the State alleges there is an unacceptable risk that the offender will commit but that is not an express statutory requirement. None of the other members of the High Court identified this as a requirement.
[11] Garlett v The State of Western Australia [84], [226] - [227].
[12] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
[13] The Act s 48(2).
The evidence
The evidence comprised a book of materials containing relevant information on the respondent's prior offending, his conduct in prison, previous reports and decisions and reports prepared for this application. Reports were prepared for this application by:
(a)Ms Julie Hasson, a forensic psychologist;
(b)Dr Peter Wynn Owen, a forensic psychiatrist;
(c)Ms Tara Stagg, a high risk serious offender planning manager; and
(d)Mr Luke Carmichael, a senior community corrections officer.
Each of the report writers gave evidence and was cross‑examined.
The respondent did not give evidence on his own behalf.
The respondent is a high risk serious offender
I will begin by addressing the considerations to which regard must be had - the s 7(3) considerations. It is helpful to begin with the respondent's antecedents and offending history.
Antecedents and offending history - s 7(3)(g)
Personal antecedents
The respondent was born in Wyndham, Western Australia on 27 August 1977 and is 45 years old. He is an Aboriginal man raised in the Oombulgurri Community in the East Kimberley region. The respondent is the eldest of two siblings from his parents' union. His parents separated when he was five years of age after which he lived with his mother and her new partner. The respondent had several half and step‑siblings. The respondent maintains a relationship with his sister but both his parents and his half and step-siblings have died.
Prior to its closure in 2011 the Oombulgurri Community was affected by high levels of alcohol abuse, child neglect and suicides. The respondent grew up in an environment in which violence, including sexual violence, and substance abuse were normal. The respondent was a victim of violence at the hands of his immediate and extended family members. The respondent was neglected and often left unaccompanied without food. Child protective services moved the respondent into his grandparents' care, a move which the respondent described in positive terms. Ms Hasson's description of the respondent's childhood as 'chaotic, dysfunctional and deprived' is apt.
The respondent attended primary school in the Oombulgurri Community and high school in Wyndham. There are conflicting accounts as to whether the respondent completed year 12 or left after year 10. The respondent described his experience at high school as mixed. The respondent had friends and enjoyed sports but was the victim of bullying, got into fights and was suspended. The respondent stated that he was scouted to play sport professionally but ultimately was not successful in that endeavour. He attributed his failure to alcohol and drug abuse.
The respondent attended TAFE where he studied a variety of subjects but attained no qualifications. The respondent has been unable to maintain employment and attributed this to several factors: alcohol and substance abuse, movement between communities and his partners' jealousy of his work.
The respondent has been involved in three significant intimate relationships. The respondent has three sons from two relationships. His sons are approximately 20, 15 and 11 years of age. The two youngest are the product of his relationship with his most recent partner, DAK, who was the victim of several of the offences committed by the respondent. This relationship lasted 10 years. The respondent's youngest two sons live with DAK and her new partner in Derby.
All of the respondent's previous intimate relationships have been adversely affected by his substance abuse and violent behaviour. Jealousy, infidelity and poor communication have all been features of the respondent's intimate relationships.
A lifetime violence restraining order is in place protecting DAK.
Most of the respondent's offences were linked to intoxication. While in the community the respondent consumed alcohol on most days.
The respondent is in good health (though I note that in his report Mr Carmichael refers to the respondent having a shoulder injury) and is not prescribed any medication. The respondent has no formal history of mental illnesses however there was a history of attempted suicide while the respondent was in juvenile detention.
English is not the respondent's first language. Ms Fedele, who appeared on the respondent's behalf, informed me that English was the respondent's sixth language.
It is also material to record that the respondent has no experience of living in the community in the metropolitan area of Perth. His only experience of life in Perth was a visit when a child. The only occasions on which the respondent has lived within the metropolitan area are when he has been incarcerated in prison. Apart from the time spent in prison in other areas of Western Australia the respondent has lived in the Kimberley.
Offending history
The respondent has an extensive and serious criminal history commencing as a juvenile with generalist offences which escalated to sexual and violent offences. The respondent committed his first offence in 1989 when he was 12 years old. Since that time the respondent has continued to offend. The only significant breaks in offending have occurred when the respondent was incarcerated.
The respondent committed the index offences approximately six months after he had been released from prison. One of the index offences, aggravated sexual penetration without consent, was a serious offence within the meaning of the Act.[14] The facts of the index offences were as follows.[15]
[14] Criminal Code Act Compilation Act 1913 (WA) s 326. See the Act sch 1 div 1 subdiv 3 item 22.
[15] The account of the serious offences committed by the respondent primarily reproduces the account provided by Derrick J in his reasons for making the interim detention order in The State of Western Australia v Clarke [2022] WASC 137.
At 7.00 am on 4 February 2017 the respondent and the victim, DAK, returned to the hostel room in which they lived. The respondent struck the victim several times with his fists. The respondent attempted to strangle the victim and bit her around the face and head. The respondent then demanded that the victim take off her clothes and have sex with him. The victim took off her clothes. The respondent demanded that the victim perform oral sex on him. The victim complied with this demand. As the victim performed oral sex on the respondent he continued to punch her to the face and head. Eventually the victim broke free and opened the door to find her and the respondent's 7‑year‑old son standing at the door. The respondent grabbed the victim by the hair and pulled her back into the room as she asked her son to find help. The victim sustained extensive swelling, bruising, lacerations and puncture wounds as a result of the offence.
In March 2014 the respondent committed one offence of unlawful and indecent assault and one offence of indecently dealing with a child who he knew to be his lineal relative or de facto child. The offence of indecently dealing with a child who is a lineal relative or de facto child is a serious offence within the meaning of the Act.[16] The respondent was 36 years old at the time of committing the offences. The two female victims were 16 years old and 14 years old, with the 14‑year‑old being the daughter of DAK. The indecent assault offence involved the respondent rubbing the 16-year-old victim's breasts while she was asleep until she woke up. The indecent dealing offence, which was committed 10 minutes after the indecent assault offence, involved the respondent laying on top of the victim who was lying on her stomach and placing one of his hands on her buttocks until she woke up and started yelling which caused him to run away.
[16] Criminal Code Act Compilation Act 1913 (WA) s 329. See the Act sch 1 div 1 subdiv 3 item 25.
In 2004 the respondent, when he was approximately 27 years old, was convicted of one offence of indecently dealing with a child under the age of 16 and three offences of indecent assault. The offence of indecently dealing with a child under the age of 16 is a serious offence within the meaning of the Act.[17] The victims of the offences were the younger sister and niece of the respondent's partner at the time. The indecent dealing offence involved the respondent exposing his penis to the 14-year-old victim while she was in the shower. Two of the three indecent assault offences involved the respondent getting into the shower with the 16-year-old victim, touching her on her vagina and on one occasion trying to make her bend over. The other indecent assault offence involved the respondent laying on top of the victim while telling her to take her pants off.
[17] Criminal Code Act Compilation Act 1913 (WA) s 321. See the Act sch 1 div 1 subdiv 3 item 17.
In 1995 the respondent was convicted of one offence of aggravated sexual penetration without consent. The offence is a serious offence within the meaning of the Act.[18] The respondent and his co-offenders committed the offence against a 31-year-old female. The respondent and his co-offenders kicked and punched the victim until she was unconscious. They then each had sexual intercourse with her.
[18] Criminal Code Act Compilation Act 1913 (WA) s 326. See the Act sch 1 div 1 subdiv 3 item 22.
The respondent's history of violent and other sexual offending as an adult is as follows:
(a)1998 unlawful wounding: the respondent stabbed the victim (who was his girlfriend at the time) in her back with a knife during an argument resulting in a 4 cm laceration above her kidney. The offence occurred 18 months after the respondent had been released from prison and three months after he had completed a term of parole.
(b)1999 common assault: the offence occurred seven months after the respondent had been released from prison. The respondent approached the male victim who was seated against a wall of the shire offices and punched him hitting his bottom lip and then hit his left upper cheek below his left eye.
(c)2003 assault occasioning bodily harm: the victim was the respondent's de facto partner. The respondent was arguing with the victim, became angry and punched the victim to the mouth with a clenched fist causing a split top lip and the loss of one of her teeth. The respondent was intoxicated at the time.
(d)2004 assault occasioning bodily harm, common assault: the male victims were sitting in a lounge room eating. The respondent went into the house of one of the victims and threw several punches at one of the victims hitting him in the face and body. He then kicked the same victim three or four times in the head and body leaving him lying and bleeding on the floor. The victim suffered bruising and swelling about his face, eyes and body. He was bedridden from the assault and unable to walk, maintain balance or talk properly. The respondent then punched the other victim twice in the face causing a small cut to his nose and under his left eye as well as swelling and bruising to his face area.
(e)2007 common assault: the victim was female and 40 cm shorter than the respondent. The victim was standing at the register at Coles. The respondent approached the victim and whispered in her ear. The victim attempted to push him away. The respondent, without provocation struck the victim to the side of the face with a full force open hand. The victim suffered a split lip and minor swelling.
(f)2008 assault occasioning bodily harm: this offence was committed three and a half months after the respondent was released from prison. The respondent and the victim, DAK, had been drinking at a friend's house. The respondent became angry and struck the victim while walking home out of jealousy. The victim was bleeding from the nose and suffered bruising and swelling.
(g)2010 aggravated unlawful assault: this offence was committed three months after the respondent was released from prison. The respondent and the victim, DAK, had a heated argument. The victim went home and locked the bedroom door. The respondent hit the door with his fists and kicked the door. The victim went to the window and called for help. The respondent walked to the window and threw a cup of tea he had just made at the victim, splashing her face and neck. The victim was treated for minor blistering. This offence constituted a breach of protective bail conditions which included not to contact or attempt to contact the victim by any means.
(h)2010 aggravated assault occasioning bodily harm: the victim, DAK, had consumed alcohol with the respondent and others. They returned to their home and slept in separate rooms. The respondent entered the victim's room and had a verbal dispute. The respondent pushed the victim causing her to fall onto the bed. The respondent lay down beside her and put her in a headlock. The respondent bit the victim on her nose and her left cheek which led to bleeding, scrapes and bruising. The respondent breached all protective conditions by being in contact with the victim.
(i)2012 aggravated assault occasioning bodily harm: this offence was committed six months after the respondent had been released from prison. The victim, DAK, and the respondent had two other children and was six months pregnant. The respondent and the victim had been drinking and were involved in an argument. The respondent struck the victim in the face with the back of his open hand causing bruising. The respondent then punched the victim with a clenched fist causing bruising and a small cut.
(j)2012 indecent assault: in June 2012 the respondent committed an offence of indecent assault. The female victim was aged 16. The offence involved the respondent lying next to the victim while she was asleep and attempting to pull down her shorts until she was awoken by his conduct and alerted a nearby relative.
In addition to the sexual and violent offending detailed above the respondent has convictions for stealing, burglary, disorderly and nuisance behaviour, failure to comply with reporting obligations, breaches of suspended imprisonment, community based orders, bail, and violence restraining orders, giving false information and driving without a licence.
Prison behaviour 4 February 2017 - 18 July 2022
Prison records disclose that the respondent has given the prison authorities cause for concern while he has been in custody. The respondent has received formal disciplinary charges,[19] with the records further detailing numerous incidents of a non‑critical nature,[20] reports of fighting,[21] and reports of the respondent having displayed predatory behaviour to a female member of staff.[22] Substance use tests produced negative results.[23]
Reports prepared as required by s 74 of the Act - s 7(3)(a)
Reports of Ms Hasson and Dr Wynn Owen
[19] Exhibit 1, p 48 - 123.
[20] Exhibit 1, p 30 - 129.
[21] Exhibit 1, p 48 - 50.
[22] Exhibit 1, p 76 - 77, 79.
[23] Exhibit 1, p 271 - 272.
Ms Hasson interviewed and assessed the respondent on 30 August 2022. Ms Hasson considered that the respondent was cooperative, his mood was in the normal range and that he did not appear to be engaging in impression management.
Dr Wynn Owen interviewed and assessed the respondent on 1 September 2022. Dr Wynn Owen observed the respondent to be alert and that his mood was stable. Dr Wynn Owen considered that the respondent's affect was superficial and that he showed no emotional variation in any of the topics discussed during the interview.
Both Ms Hasson and Dr Wynn Owen expressed the view that they did not consider the respondent to have any medical illnesses or obvious cognitive impairments.
Psychiatric Diagnosis
Dr Wynn Owen diagnosed the respondent with Substance Use Disorder (predominately alcohol), describing it as severe and noting it was in enforced remission due to his placement in a controlled environment.[24] In cross‑examination Dr Wynn Owen accepted that alcohol and cannabis were available in prison and that the respondent had not misused these substances in prison showed a level of self‑control. Dr Wynn Owen also diagnosed the respondent with the presence of Antisocial Personality Disorder and observed the respondent satisfied the following diagnostic criteria: failure to conform to social norms with respect to lawful behaviours; failure to plan ahead; irritability or aggressiveness; consistent irresponsibility as indicated by repeated failure to sustain consistent work behaviour and lack of remorse as indicated by being indifferent to or rationalising having hurt or mistreated others.
Risk of sexual reoffending
[24] Exhibit 1, p 746; ts 47.
Ms Hasson and Dr Wynn Owen both assessed the respondent's risk of sexual reoffending using a Structured Professional Judgment approach combining actuarial measures and a forensic psychological assessment and formulation. Both Ms Hasson and Dr Wynn Owen used the Static‑99R instrument, the Risk for Sexual Violence Protocol (RSVP) and the PCL-R (a tool used to assess psychopathy). In addition, Ms Hasson assessed the respondent using a set of guidelines for the assessment and management of risk for intimate partner violence known as SARA‑V3 (SARA).
Static-99R is an internationally recognised risk assessment measure that combines 10 static (unchanging) risk factors that have been shown to be associated with increased risk of re-offending. Both Ms Hasson and Dr Wynn Owen referred to the need to use the Static‑99R instrument, in particular, with caution. Although I will refer to the results obtained by each of Ms Hasson and Dr Wynn Owen on the application of the Static‑99R instrument I do not attach significant weight to those results viewed in isolation. I attach much greater weight to the clinical impressions formed by each expert as recorded in the summaries given by each of them in the concluding sections of their reports.
Ms Hasson assessed the respondent as having a Static-99R score of eight, placing him at risk level IVb (Well Above Average Risk) for being charged or convicted of another sexual offence.
Ms Hasson explained that for offenders with a Static-99R score of eight, the sexual recidivism rates are as follows:
•At the five-year mark in a routine sample the rate is 31.0% with a confidence interval between 27.0% and 35.4%.
•At the 10-year mark the rate is 40.9% with a confidence interval between 33.7% and 48.6%.
•The 20-year projected estimate average is a rate of 50.3%.
In the sample group identified as 'high-risk/high need' (based on offenders identified as potential Dangerous Offenders or subject to indeterminate sentence) the sexual recidivism are as follows:
•At the five-year mark the rate is 36.3% with a confidence interval of 28.8% to 44.5%.
•At the 10-year mark the rate is 48.5% with a confidence interval between 37.1% and 60.0%.
•The 20-year projected estimate rate is 58.0%.
Ms Hasson reported that based on the Static-99R score the respondent was assessed as a high risk of reoffending, with his score being higher than 99.1% of routine samples of sexual offenders.
Dr Wynn Owen assessed the respondent as having a Static‑99R score of seven placing him in the same cohort as he was placed by Ms Hasson, that is risk level IVb, the 'Well Above Average Risk' category.[25] Dr Wynn Owen included percentage estimates of reoffending in his reports that (reflecting the different Static‑99R scores) differed from those given by Ms Hasson in her report but in the overall scheme of the evidence the differences were not material.
[25] ts 37.
Ms Hasson and Dr Wynn Owen assessed the respondent using the PCL‑R but neither found that the respondent fitted the construct of psychopathy.
Ms Hasson and Dr Wynn Owen employed the RSVP framework to determine the presence of the respondent's risk factors and formulate the most likely risk scenarios and recommended strategies. The RSVP framework involves looking at 22 individual risk factors over five domains, the domains being: sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Relevantly:
(a)Within the domain of sexual violence history Ms Hasson and Dr Wynn Owen considered the following risk factors to be present: chronicity of sexual violence, diversity of sexual violence, physical coercion in sexual violence and psychological coercion in sexual violence.
(b)Within the domain of psychological adjustment Ms Hasson and Dr Wynn Owen considered that the following risk factors were present: extreme minimisation/denial of sexual violence, attitudes supporting or condoning sexual violence, problems with stress/coping and problems resulting from child abuse. Both Dr Wynn Owen and Ms Hasson noted that although the respondent denied any specific physical or sexual abuse as a child the collateral history indicated that the respondent had been neglected as a consequence of parental alcohol abuse and that exposure to violence and neglect can lead to distorted 'internal working models of relationships'.[26] Ms Hasson considered that the respondent displayed problems with self‑awareness.
(c)Within the domain of mental disorder Ms Hasson considered that the risk factor of sexual deviance may be present although the respondent denied being sexually attracted to adolescent girls. Both Dr Wynn Owen and Ms Hasson considered that the risk factor of problems with substance abuse was present. Ms Hasson considered that violent ideation was also present as a risk factor.
(d)Within the domain of social adjustment Ms Hasson and Dr Wynn Owen considered that the risk factors of problems with intimate relationships, problems with non‑intimate relationships, problems with employment and non‑sexual criminal activity were present.
(e)Within the domain of manageability Ms Hasson and Dr Wynn Owen considered that the risk factors of problems with planning, problems with treatment and problems with supervision were present.
Risk of violent reoffending
[26] Exhibit 1, p 723.
As noted earlier, Ms Hasson assessed the respondent by reference to the SARA guidelines. The SARA assessment identifies four main risk areas: criminal history; psychosocial adjustment; spousal assault history and alleged/most recent offence and other considerations.
The respondent's score on the SARA was 34 placing him in the high-risk category for reoffending against a future intimate partner or family member. Ms Hasson identified the following risk items relevant to the respondent: a history of past physical assault - strangers, acquaintances and family members, past sexual assault and sexual jealousy, past use of weapons, frequency and severity of assault behaviour, escalation in severity of assault, attitudes that support or condone spousal assault, extreme minimisation and denial of spousal assault history, past violation of non‑contact orders, conditional release and community supervision, history of relationship problems, employment problems, substance abuse/dependence, victim of and/or witness to family violence as a child or adolescent, and personality disorder with anger, impulsivity or behavioural instability.
Risk scenarios
Ms Hasson identified three risk scenarios in which the respondent might reoffend by committing a sexual offence. The scenarios are as follows:
(a)The respondent would return to the community, form a relationship with an adult female and relapse into substance use. If relationship conflict would occur involving jealousy or trust issues, the respondent might perpetrate physical and sexual violence against his partner.
(b)The respondent might touch and/or expose himself to an adolescent female known to him to gain sexual gratification. The respondent would likely be intoxicated.
(c)The respondent might sexually penetrate an adult female which may be an acquaintance or a stranger, likely leading to some physical violence resulting in injury.
Ms Hasson observed that the respondent has engaged in intimate partner violence within weeks of establishing relationships. Alcohol, attitudes and beliefs regarding females, sexual arousal and desires to satisfy sexual urges and sexual entitlement are risk factors displayed by the respondent.
Ms Hasson observed that the frequency of potential future sexual offending would likely continue until the respondent is reported and that it is unlikely that such offending would cease by his own volition.
Dr Wynn Owen identified the following two risk scenarios that might lead the respondent to future sexual offending:
(a)The respondent, while intoxicated with alcohol and arguing with an intimate partner, might be physically violent to the partner with serious injury and associated sexual assault, probably a form of sexual penetration.
(b)The respondent might groom or entice a young female (16 years or younger) with marijuana or other gifts which would lead to an attempt to engage in sexual contact with the victim that would progress beyond intimate touching if no resistance were offered.
Dr Wynn Owen observed that the physical violence associated with sexual offending might result in serious injury or death and that there would be opportunistic sexual assault of a female not known to the respondent.
Dr Wynn Owen stated that the new offending could occur within a very short term of release (between two and 12 months) and that a return to alcohol and being in an intimate relationship are indicators of imminent risk.
Conclusions
In Ms Hasson's concluding analysis of the respondent's offending, she expressed these views:[27]
[27] Exhibit 1, p 727 - 729.
Analysis of Offending
140. Mr Clarke's sexual offending behaviour appears to occur in the context of disinhibition related to alcohol and other substance abuse (cannabis), the presence of antisocial personality disorder, hostile attitudes towards women, intimacy deficits, general deficits in self-regulation, offence supportive beliefs (e.g., justification, rationalisation, minimisation of the sexual offence, feelings of entitlement, relationship insecurity, social difficulties and empathy deficits). In addition, Mr Clarke appears to engage in physical and sexual violence to attenuate dysphoric emotions suggesting that his coping skills are maladaptive and limited.
141. Individuals like Mr Clarke with a similar offending profile are versatile criminals who engage in many different types of crime over time; sexual offending reflects only one manifestation of an underlying antisocial condition.
142. Intimate partner sexual violence (IPSV) generally occurs in the context of other forms of violence and is often part of a larger pattern of coercive control in a relationship. IPSV is considered a tactic of domestic violence and not a separate phenomenon. In many instances intimate partner sexual violence is often limited to emotional coercion, however when it becomes physically violent, the victim typically suffers injury. Domestic violence and sexual assault can occur in the same incident: it is both a form of domestic violence and a form of sexual assault. In general, IPSV is characterised by deliberate intimidation or coercion and may either be pressure to perform sexual acts that the victim is not comfortable with, or to engage in acts at a time that they do not wish to do so. Coercive control is a key concept in domestic violence research and describes a particular relationship dynamic that is typically understood as the most damaging form of violence between partners – one characterised by the use of multiple strategies of threat and violence to control the behaviours of one's partner including behaviours such as sexual coercion, sexual degradation and sexual assault. Intimate partner sexual violence as perpetrated Mr Clarke against DAK appears to be a continuation of other violence in their relationship as compared to a sexual assault as an expression of sadistic sexual arousal. Mr Clarke's sexual offending behaviour toward his partner does not appear to be motivated by a pattern of deviant sexual interests. Rather, his behaviour can be better explained by the dynamic process involved in his sexual offending which considers his cognitions (attitudes, values, beliefs, cognitive distortions), his personal history and the contextual cues that facilitate offending.
143. Social learning theory is one of the most popular explanatory perspectives in the domestic violence literature. Often conceptualised as the ''cycle of violence'' or ''intergenerational transmission theory'' when applied to the family, the theory states that people model behaviour that they have been exposed to as children. Violence is learned through role models provided by the family (parents, siblings, relatives, and boyfriends/girlfriends), either directly or indirectly (i.e., witnessing violence), is reinforced in childhood, and continues in adulthood as a coping response to stress or as a method of conflict resolution. During childhood and adolescence, observations of how parents and significant others behave in intimate relationships provide an initial learning of behavioural alternatives which are ''appropriate'' for these relationships. Children infer rules or principles through repeated exposure to a particular style of parenting. If the family of origin handled stresses and frustrations with anger and aggression, the child who has grown up in such an environment is at greater risk for exhibiting those same behaviours, witnessed or experienced, as an adult. The family not only exposes individuals to violence and techniques of violence, but the family also teaches approval for the use of violence. Children learn that violence is acceptable within the home and is an effective method for solving problems or changing the behaviour of others. Transmission of violent behaviour occurs through processes of modelling, failure to learn appropriate ways to manage conflict, and reinforcement for violent behaviour. Normal coping mechanisms may not be learned or may become impaired, leading to violence as the ultimate resource. The environment in which Mr Clarke was raised exposed him to violence and it is likely some of his behaviours are "learned" and others relate to his attachment style.
144. It is well known in the sex offending literature that problems in non-intimate relationships such as failing to establish or maintain a positive social support network can increase negative affectivity and contribute to feelings of social alienation, loneliness, negative peer relationships, family problems, poor social skills, social incompetence and social anxiety. Repeat sexual offenders are more likely to have deficits in "socioaffective" functioning than non-repeat offenders. Lack of social and emotional support has been linked to the severity (i.e., sadism and severe aggression) of sexual offending.
145. Distal risk factors associated with Mr Clarke's offending both sexual and violent include fractured family relationships, communication and attachment difficulties, intimacy deficits, antisocial personality traits, impulsivity, poor problem solving and deficits in planning and coping skills, insufficient support, lifestyle instability and substance abuse. Lack of engagement in meaningful employment, activities or hobbies contribute to him being able to spend significant amounts of time in unstructured activity which often involves spending time drinking and using drugs in the company of others, including his partner which has been seen to lead to arguments and aggression. On other occasions this environment has meant that Mr Clarke has been in the presence of vulnerable females (young, intoxicated or without adequate adult supervision) and these circumstances have allowed an offence to occur.
146. Mr Clarke has limited insight into his offending behaviour. He recognises that alcohol misuse is a problem however he is unaware of how alcohol contributes to violent or sexual offending as he does not understand the dynamics of his own offending therefore he is unable to identify high risk situations or strategies to manage and mitigate risk. There remains some degree of externalisation for his offending behaviour. Mr Clarke displays limited empathy or remorse and does not appear to have much awareness of the impact of his behaviour on his victims.
147. Reduced recidivism is associated with high-quality release plans that support accommodation, positive social connections, employment or hobbies, and prosocial, personally meaningful goals. A gradual decline in risk is linked to an individual developing increasingly effective, prosocial ways of achieving a satisfying life. There is little evidence yet to suggest that declining age has in anyway begun to impact on Mr Clarke's level of sexual arousal. He remains a high risk for both contact and non-contact offending with the latter more likely to occur prior to any hands on or contact offending primarily due to opportunity and the nature and type of supervision and monitoring in place should he be released to the community on a restriction order.
148. Despite a range of different sanctions being imposed on Mr Clarke by the justice system as well as access to treatment programs and counselling in the past, which he has variably declined to avail himself of or failed to benefit from, Mr Clarke has continued to offend. His offending behaviour has been maintained by the presence of antisocial personality traits and cognitions and procriminal attitudes, values and beliefs, emotional and behavioural dysregulation and anger management issues, impaired relationships with others, the long term effects of imprisonment and involvement in the justice system, and exposure to destabilisers.
149. Whilst acknowledging his offences, Mr Clarke accepts limited responsibility for his behaviour and does not seem to comprehend how serious and concerning his offending is nor the risk he poses to others. Aside from perhaps the victim of his first sexual offence Mr Clarke displayed limited awareness of the impact of his behaviour on his victims and despite an expression of empathy toward that one victim, he generally presents as callous, emotional and indifferent to others' experiences. There is little evidence of any remorse particularly associated with his sexual offending as he does not view his actions as wrong.
150. Issues highlighted during the current assessment include Mr Clarke's difficulties in acquiring stable accommodation upon release from prison and establishing a comfortable, secure environment and lifestyle. Mr Clarke does not seem to have made any measurable, observable plans for release aside from indicating he would like to live in Broome and that he is on a waitlist for Homeswest. He informed he will undertake any work available and indicates he does not anticipate any problems with working despite having a very limited work history. Mr Clarke stated that he is keen to play community sport if released. He was unable to articulate any relapse prevention strategies nor identity high risk situations. Mr Clarke planned to abstain from alcohol use and to attend counselling if required.
Summary and Recommendations
151. Based on the current assessment Mr Clarke presents as a high risk of serious reoffending, if not subject to a Restriction Order – Continuing Detention or a Community Supervision Order under the High Risk Serious Offender Act 2020.
152. Mr Clarke has not addressed his treatment needs in the domains of sexual violence, intimate partner violence or substance abuse. His treatment needs are significant and require intensive intervention in all domains. Mr Clarke has limited insight and understanding of internal and external risk triggers or cues to reoffending in a sexual or violent manner. He does not have a relapse prevention plan nor has he developed or identified proven risk management strategies to moderate or mitigate risk.
153. It is my opinion that Mr Clarke would be unable to manage his risk of reoffending if he were to be released to the community. A combination of group based and individual treatment are the recommended treatment modalities ideally to be commenced in custody prior to release.
Dr Wynn Owen also assessed the respondent as presenting a high risk of future serious offending.
In Dr Wynn Owen's concluding analysis of the respondent's offending, he expressed these views:[28]
[28] Exhibit 1, p 753 - 755.
187.SUMMARY
188. Mr Clarke is a 45 year old indigenous Australian man who was raised in regional and remote Western Australia. His parents drank alcohol to excess, he witnessed them engage in domestic violence, and he was beaten. The poor environment resulted in he and his siblings being placed with his grandparents at a young age. His father and mother separated when he was approximately 5 years old. He continued to be exposed to anti‑social adult behaviour, including alcohol fuelled violence, while living with his Grandparents although he describes his grandmother as a loving, caring pro-social role model. Through his childhood and adolescence it appears he lived between Wyndham and Oombulgurri. He reports good school attendance and loving school however collateral history indicates that he was bullied and was regularly involved in fights at school, starting in primary school. Mr Clarke continued in school until year 10 although from the age of 12 he was also engaging in criminal behaviour. He started to use alcohol and cannabis at age 16 with peers and his alcohol use rapidly became problematic. At 17 he and 2 other male offenders assaulted and raped a woman who died just 3 weeks after the incident. Since that time Mr Clarke has spent more of his life in prison than he has in the community. Alcohol intoxication is a significant factor in his adult offending, sexual and violent. Two patterns of offending are apparent. Mr Clarke becomes jealous when intoxicated while in intimate relationships, the anger as a result of this jealousy frequently results in arguments that lead to violence and sexual violence towards his intimate partner. Mr Clarke exhibits attitudes which condone sexual contact with girls aged 14 to 16 years and when his partner is unavailable Mr Clarke has taken advantage of peri-parental relationships of trust. In that context he has tried to exchange marijuana and possibly other gifts for sexual favours with these underage girls. Mr Clarke does not appear to exhibit sexual deviance however is not apparently willing or able to disclose normal adult sexual function, behaviour and thinking when assessed. This area of his offending risk requires further exploration.
189. Mr Clarke has participated in some past treatment programs designed to reduce the risk of future violent and sexual offending however has subsequently re-offended. He has significant outstanding treatment needs in relation to sexual offending, violent offending, intimate relationships, emotional and behavioural self-management and substance use however during this term of imprisonment has rejected all treatment programs offered. Mr Clarke's currently reported motivation for treatment appears directly linked to seeking release however there is no apparent shift in his recognition of the need for treatment.
190.OPINION
191. It is my opinion, based on clinical assessment, Static-99R score and RSVP risk factor review that Mr Clarke presents a high risk of future serious offending if not subject to an HRSOA Restriction Order. The most significant risks for future serious offending are, in the context of Mr Clarke's personality and attitudes condoning sexual violence, poor self-management, alcohol use and commencement of a new intimate relationship.
192. RECOMMENDATIONS
i. Mr Clarke has outstanding treatment needs in relation to sexual and violent offending. He demonstrates language and cognitive capacity to function in a group setting. I am of the opinion that he will benefit from participation in an intensive sex offender treatment program and a violent offender intensive program. I recommend that he is reassessed for suitability for these programs noting that his risk of violent offending, as well as of sexual offending, is high.
ii. Mr Clarke has Substance Use Disorder, in particular he demonstrates features of an alcohol dependence syndrome. He has rapidly returned to problem substance use on each release from prison. I am of the opinion that he will benefit from participation in a "Pathways" intensive group program to address problem substance use. I recommend that he be reassessed for participation in this program.
iii. Mr Clarke clearly has problems communicating and being understood in the context of an intimate relationship and deficits in his understanding of the responsibilities and obligations of such a relationship. Intervention to improve his understanding and communication in this area, and his negative and hostile attitudes towards women, can potentially reduce the likelihood of future intimate partner violence and sexual violence. This treatment area of need could be addressed in individual counselling.
iv. Any learning from programs will require repetition and reinforcement and ongoing application to real world situations if Mr Clarke's risk of reoffending is to be reduced in the long term. I recommend allocation of a psychologist to support Mr Clarke through the recommended programs and then to work more intensively with him once the programs are completed.
v. A Supervision Order, if made, should be tailored to address Mr Clarke's high risk scenarios with particular emphasis on supporting and monitoring complete abstinence from substance use and close monitoring of his access to and contact with women. Contact with females under 18 should be prohibited unless with the prior permission of a supervising Community Corrections Officer (noting that Mr Clarke remains a Reportable Offender).
vi. A Supervision Order, if made, should be of 10 years duration. Mr Clarke's risk of future offending will decline with offence free time in the community however as a Well Above Average Risk offender (per Static-99R score on release) however his likelihood of future offending will not be in the average risk category until 10 years have elapsed, based on data analysis available to date.
Addressing the unmet treatment needs
In the passages from their reports that I have set out above, Ms Hasson and Dr Wynn Owen identified the respondent's unmet treatment needs. In their oral evidence they elaborated on how those needs should be addressed. The effect of their evidence was that 'in an ideal world' the respondent should be provided with individual psychological counselling - one on one counselling. The most effective therapeutic relationship is established with face-to-face counselling but if face‑to‑face counselling is not available counselling by remote means (telehealth) was better than no counselling. They considered that the respondent should undertake the Intensive Sex Offender Treatment program and that individual counselling should be suspended for the duration of that program but resume on its completion with a view to reinforce the gains made on the program. The respondent should then undertake the Pathways intensive group program to address his substance misuse difficulties. Further the respondent should participate in the 'Not Our Way' program to reduce the potential for the respondent to engage in intimate partner violence.
Any other medical, psychiatric, psychological or other assessment relating to the person - s 7(3)(b)
Proposed HRSO Management Plan
Ms Stagg prepared a proposed High Risk Serious Offender Management Plan dated 29 September 2022 to assist with the identification of relevant supervision, management and intervention strategies should the respondent be made subject to a restriction order.
Ms Stagg reported that given the respondent's desire to reside in Broome, community-based treatment options in the Kimberley region had been explored. She reported that the respondent would be unable to access departmental face‑to‑face individual psychological intervention due to the lack of psychologists servicing regional locations but she had been advised that the respondent might be considered suitable to access psychological intervention through telehealth.
Ms Stagg reported that the Department of Justice does not provide intensive sex offending or violent offending programs in community and there are no group‑based programs scheduled for the Kimberley region. One‑on‑one individual Family & Domestic Violence counselling through Anglicare is available, however, the service is limited to addressing intimate partner violence.
Ms Stagg's evidence was to the effect that her inquiries suggested that if a continuing detention order was made the respondent might be able to secure a place on an Intensive Sexual Offender Treatment program expected to commence on 22 May 2023 at Bunbury Regional Prison. The benefit of the respondent participating in this program in Bunbury is that five out of the 10 offenders scheduled to participate are of Aboriginal descent.[29]
[29] ts 74.
Ms Stagg explained that the Intensive Sexual Offender Treatment program takes approximately six months to complete. If the respondent was to undertake the program commencing on 22 May 2023 he would be assessed after completion of the program for his suitability to undertake the Pathways program but would not be eligible to participate in the Pathways program if the date of his first annual review fell within the period within which the Pathways program was to run.[30] In other words an offender is not eligible to participate in the program if there is a possibility that he may not be able to complete it because, relevantly, on review the continuing detention order may be rescinded.
[30] ts 75.
The practical effect of Ms Stagg's evidence is that it is unlikely that the respondent would be able to complete the Pathways program before the date of his first annual review and impossible for him to complete all three programs (the third being the 'Not Our Way' program) before the first annual review.
Ms Stagg's evidence was that if a continuing detention order was made the respondent would be put on a waiting list for individual psychological counselling. There were currently 29 offenders on the waiting list.[31] Ms Stagg explained that once individual psychological counselling was commenced, although it would be suspended for the duration of the Intensive Sex Offenders Treatment program, it would resume thereafter without the respondent having to go back on the waiting list.[32]
Community Supervision Assessment Report
[31] ts 76.
[32] ts 78.
Mr Carmichael prepared a Community Supervision Assessment dated 19 September 2022 which provided a helpful summary of the respondent's history, expert reports and the issues to be addressed in the event that the court should make a supervision order. Mr Carmichael prepared a further Updated Community Supervision Assessment dated 7 February 2023.
Much of Mr Carmichael's report was concerned with the inquiries he had made to establish whether, if released on a supervision order, suitable accommodation was available in Broome. No suitable accommodation in Broome would be available. It is unnecessary to recount the detail of the inquiries made by Mr Carmichael.
It is clear from Mr Carmichael's report that the respondent's strong preference was that he be permitted to live in the Kimberley. Given the respondent's personal history and his cultural ties to his country this preference is entirely understandable. It explains the respondent's reported reluctance to engage with Uniting WA to take advantage of its specialist re-entry service and access the HRSO Supported Accommodation Program under which accommodation is provided in the Perth metropolitan area. The respondent has no family or social support in Perth and no experience of living in the community in Perth.
The respondent has now engaged with Uniting WA but there are two obstacles to accommodation being provided. The first is that the respondent had not completed the minimum engagement period of six months which is a pre-condition of his being offered accommodation. Secondly, no accommodation is presently available (and there are other offenders on the waiting list ahead of the respondent).
For the sake of completeness I record that on 29 December 2020 the respondent registered his application with the Department of Communities - Housing for a one bedroom, 'singles' property in Derby. Mr Carmichael was advised on 18 August 2022 that the Department of Communities is currently housing persons who applied for properties of the nature sought by the respondent in 2011. Thus, it is most unlikely that the respondent would succeed in obtaining accommodation in Derby.
As to employment, Mr Carmichael noted that the respondent's intention was to claim Disability Support Pension for a shoulder injury. Mr Carmichael stated that the respondent has no specific employment plans and has no prior significant gainful employment history other than brief periods in Community Development Employment programs and Work for the Dole prior to his most recent offence.
Propensity to commit serious offences in the future - s 7(3)(c)
In this context propensity means that the offender has an inclination or tendency, or a disposition to commit serious offences either generally, in a particular way, or upon a particular type of victim.[33]
[33] Director of Public Prosecutions (WA) v GTR [178].
That the respondent has a propensity to commit serious offences of a sexual or violent nature, against intimate partners and adolescent females is evident from his offending history viewed in the context of the analysis of the respondent's personal and psychological history provided by each of Ms Hasson and Dr Wynn Owen.
Whether there is a pattern of offending behaviour - s 7(3)(d)
The respondent's offending is often linked to the consumption of alcohol and relationship instability. Frequently his victims have been intimate partners or adolescent females with some connection to his intimate partner at the time. The offences against intimate partners have been committed in the context of relationship conflicts which have degenerated into violence. The offending conduct in respect of adolescent females has been characterised by taking advantage of the opportunities for offending provided by the respondent's then current domestic situation coupled with a sense of sexual entitlement.
Efforts to address offending behaviour - s 7(3)(e)
The respondent's participation in courses to address the causes of his offending behaviour were summarised in the Proposed HRSO Treatment Options Report.[34] It is convenient to reproduce the summary of the outcomes of programmatic interventions prior to the respondent's latest custodial sentence.[35]
[34] Exhibit 1, p 697 - 701.
[35] Exhibit 1, p 698 - 699.
Aboriginal Sex Offender Treatment Program 26.02.1996 - 23.05.1996
The Completion Report identified Mr Clarke was an active participant in the program but did note that at the commencement of the program he was unable to demonstrate comprehension of the seriousness of the offence or consequences to the victim, despite the victim succumbing to injuries sustained during the offence. The report does however acknowledge that throughout the course of the program, Mr Clarke developed empathy for the victim and expressed what appeared to be genuine remorse, identify high risk situations and strategies to avoid reoffending. It was noted alcohol consumption would require ongoing monitoring as a risk mitigation tool in the community. No further information was available.
Kimberly Offender Program 16.11.1998 - 11.12.1998
The Individual Report outlines Mr Clarke attended all 12 sessions and records him as an attentive and positive participant who received a Certificate of Completion at the cessation of the program. The report outlines areas addressed for Mr Clarke included the effects of alcohol in Aboriginal communities, values and beliefs, and acknowledgement of ill consequences of alcohol abuse in the Kimberly region. During the program, Mr Clarke identified future goals and his high risk situations were identified as being alcohol, company of friends, self will and other girls (no further context was provided in the report with respect to this). No further information was available.
Kimberly Offender Program 31.07.2000 -11.08.2000
The Completion Report outlines Mr Clarke participated well in the program, working well with concepts, and encouraging other participants. No further information was available.
Sex Offending Medium Treatment program 26.04.2006 - 24.08.2006
The Treatment Completion Report described Mr Clarke as a quietly spoken participant. Initial treatment needs were identified to include victim empathy and minimisation of the seriousness of the offence. Through the course of the program facilitators acknowledged Mr Clarke demonstrated considerable cognitive distortions and objectification of both victims. The report notes he made treatment gains with increased acceptance for responsibility of the offence and a greater understanding of factors underlying his offending. At the completion of the program, despite Mr Clarke being able to express empathy at a cognitive level, facilitators assessed this as limited and therefore victim empathy remained an outstanding area of treatment need. No further information was available.
Cognitive Brief Intervention - 02.11.2009 - 27.11.2009
This report states Mr Clarke attended 2 sessions before being transferred from Casuarina Prison to Broome Prison. No further information was available.
In 2014 a Treatment Assessment Report dated 15 December 2014 recommended that the respondent engage in the Indigenous Sex Offender Treatment program. The respondent declined to participate in this program.[36] Attempts were made to identify the respondent's substance abuse treatment needs but the respondent declined to participate due to his application for parole being refused.
[36] Exhibit 1, p 689 - 690.
In 2017 a Treatment Assessment Report dated 20 December 2017 recommended Violent Offender ('Not Our Way' - Aboriginal Mem's Family and Domestic Violence program), Sex Offender (Indigenous Sex Offender program) and addictions treatment programs (Indigenous High Intensity Substance Abuse program) to address the respondent's significant treatment needs.[37] The respondent declined to participate in the violence or sex offending programs and at the time the substance abuse program was not available and therefore not offered.
[37] Exhibit 1, p 656.
In 2019 the respondent's Individual Management Plan dated 23 January 2019 recommended the Indigenous specific treatment programs Not Our Way (to address his violent offending), an Indigenous Sex Offender Treatment program (Good Roads) and a high intensity Indigenous Addictions Offending program. The respondent declined to participate in the violent or sexual offending programs and the substance abuse program was not available.[38]
[38] Exhibit 1, p 694.
I infer the respondent declined to participate in any programs while serving his most recent sentence because he was unaware of the possibility that he might be the subject of a restriction order application and was under the (unrealistic) impression that he would be released without supervision. I accept, however, that a contributory reason for the respondent not participating in these programs was that he did not think they were necessary for him.[39] In this respect I note Ms Hasson observed that the respondent was ambivalent about the need to engage in sexual offending, violent offending or family violence treatment programs though he indicated a preparedness to undertake alcohol and substance abuse counselling with a service in Broome. It must be emphasised that Ms Hasson concluded that the respondent's treatment needs are intensive and are unlikely to be met in the community.[40]
Whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(f)
[39] Exhibit 1, p 699.
[40] Exhibit 1, p 717.
The fact that the respondent reoffended after the programmatic interventions in 1996, 1998, 2000 and 2006 suggests that the programs had little positive effect.
Ms Hasson observed that the respondent could not recall the content of the sex offender treatment programs he completed in 2006 and 1996.[41] As previously recorded, the respondent has not completed any rehabilitative programs since 2006 and has continued to refuse recommended treatment programs on various grounds, most recently in 2019 on the basis that he does not need them.
[41] Exhibit 1, p 717.
Dr Wynn Owen observed that the respondent 'has significant outstanding treatment needs in relation to sexual offending, violent offending, intimate relationships, emotional and behavioural self‑management and substance use however during this term of imprisonment has rejected all treatment programs offered'.[42] Dr Wynn Owen noted that the respondent's current motivation for treatment appears to be directly linked to seeking release but that there is no apparent shift in recognising the need for treatment.
[42] Exhibit 1, p 753.
As recorded earlier Dr Wynn Owen and Ms Hasson recommended that the respondent undertake group based intensive treatment programs targeting substance abuse and intimate partner violence - such programs being unavailable in the community.
The risk that a serious offence will be committed if a continuing detention or supervision order is not made - s 7(3)(h)
Having regard to the respondent's offending history, his unmet treatment needs and, conformably with the opinions expressed by Ms Hasson and Dr Wynn Owen, I conclude that in the event that a restriction order is not made there is a high degree of risk that the respondent will commit a serious offence. The serious offence is likely to be one involving sexual violence towards an intimate partner or offending of a serious sexual nature towards an adolescent female.
The need to protect members of the community from that risk - s 7(3)(i)
The need to protect members of the community from the risk that the respondent will commit a serious offence if not the subject of a restriction order is readily apparent. The risk of serious reoffending by the respondent carries with it the risk of very serious harm being suffered by the victims of such reoffending and the community needs to be protected from the risk of that harm. That the respondent is likely to commit a serious offence in a domestic setting against victims with whom he has established some relationship of some degree of trust makes it extremely difficult to protect members of the community from the risk of serious offending presented by the respondent.
Any other relevant matters - s 7(3)(j)
There are no matters of material relevance which have not been canvassed elsewhere in these reasons.
Reasons for concluding the respondent is a high risk serious offender
In my assessment the evidence adduced by the State on this application is cogent and taken in its totality satisfies me to a high degree of probability that it is necessary to make a restriction order to ensure the adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
In coming to that conclusion the aspects of the evidence to which I attach particular importance are as follows:
(a)The respondent's offending history. The index offences, in particular, are very disturbing because they demonstrate a capacity for sexual violence undiminished by age, past therapeutic interventions or indeed, past punishment.
(b)The present inability of the respondent to develop an understanding of the causes of his offending behaviour, its effects on his victims and his need for therapeutic help.
(c)The analysis provided by each of Ms Hasson and Dr Wynn Owen in the passages of their respective reports the full text of which I have reproduced at [50] and [52]. The opinions expressed by Ms Hasson and Dr Wynn Owen must be read in full and understood in the context of their respective reports as a whole. Thus, I will not attempt a summary of their opinions.
(d)Related to (b) and (c), the respondent's unmet treatment needs and his past reluctance to undertake further treatment and the readiness with which the respondent has resorted to alcohol to manage stress when he is in the community.
(e)The very material risk that the respondent will cause victims to suffer severe physical injury or death and the psychological damage inflicted by the respondent not only on the direct victims of his offending but also on those, such as his young son, and others who witness his offending.
In reaching the conclusion that it is necessary to make a restriction order to provide adequate protection to the community against the unacceptable risk that the respondent will commit a serious offence I have reflected on the burden which would be placed on the respondent by making a restriction order. That burden would be very considerable even if a supervision order was made because the effect of such an order would be to restrict the respondent to living in metropolitan Perth, an environment with which he has no connection, and would deprive him of his connection with his country in the Kimberley. Of course, the burden imposed by a continuing detention order is even heavier.
Continuing detention order or supervision order
I turn now to my evaluation of the considerations bearing upon whether the respondent should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order.
In evaluating the considerations I have borne in mind that I should choose the order that is least invasive or destructive of the respondent's right to liberty, whilst ensuring an adequate degree of protection for the community.
The respondent's unmet treatment needs are such that I am not persuaded that if released on a supervision order he would substantially comply with the standard conditions - in particular I am not persuaded that he would not commit a serious offence during the period of the order. The risks of releasing the respondent on a supervision order without having his treatment needs met are addressed in the reports of Ms Hasson and Dr Wynn Owen but put shortly it is highly likely that the respondent would resume serious offending within a relatively short period of some months.
My concerns about the respondent's unmet treatment needs are exacerbated by the fact that the respondent has not engaged in any treatment programs since 2006 and is prone to both minimise his offending and not to accept responsibility for it. My concerns about the respondent's unmet treatment needs and the risk he presents of committing a serious offence unless (at least some) of those treatment needs are addressed are so significant that I am firmly of the view that a supervision order would not afford adequate protection of the community.
In the light of the conclusion I have just expressed it is unnecessary to discuss the issue of accommodation but I will make some brief observations.
First, as Hall J (as his Honour then was) observed in The State of Western Australia v Corbett [No 5]:[43]
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that the supervision order is presently a viable option.
[43] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].
Secondly, there is no suitable accommodation available to the respondent in either Broome or the Perth metropolitan area. This absence of any suitable accommodation is a separate basis for concluding that it is necessary to make a continuing detention order.
Thirdly (and these remarks are not directly relevant to the respondent's present circumstances but may be acutely relevant in the future) in Garlett v State of Western Australia Edelman J commented on the disproportionate effect the Act has on Indigenous Australians. His Honour observed:[44]
Another significant issue may be the disproportionate effect that the HRSO Act has on Indigenous Australians for reasons that do not bear upon any of the purposes of the HRSO Act. That effect might be manifest in relation to Indigenous Australians who do not have permanent or fixed accommodation. As the Australian Law Reform Commission has observed, "Aboriginal and Torres Strait Islander peoples are … disproportionately represented in the homeless population … accounting for 28% of homeless people [in 2011]". Those persons might be deprived of the possibility of a supervision order, and subjected to a continuing detention order, only because they are unable to prove, as required by ss 29(1), 30(2)(a), and 30(2)(c), that they will advise a community corrections officer of their address and every change in their place of residence during the period of the order. (footnotes omitted)
[44] Garlett v State of Western Australia [273].
In the case of Aboriginal offenders from the Kimberley the absence of suitable accommodation for offenders who are subject to the Act exacerbates the disadvantage of which Edelman J spoke. The evidence discloses that the only accommodation made available under the Uniting WA HRSO Supported Accommodation Program is within the metropolitan area of Perth. The absence of any structured accommodation program offering accommodation options for high risk serious offenders in the Kimberley means that Aboriginal offenders from the Kimberley who are the subject of supervision orders are likely to have no alternative other than to live in metropolitan Perth, removed from their country and culture. Not only is that a significant disadvantage but it is a factor that is likely to undermine the effective operation of the Act in relation to such offenders. And, it increases the (already significant) risk that offenders who might otherwise be placed on supervision orders will be the subject of continuing detention orders simply because of the absence of suitable accommodation.
Care and treatment requirements
The purpose of a continuing detention order is not merely to control a serious offender but to provide care and treatment for him - this is a statutory requirement and not merely a matter of policy. I have referred to the respondent's unmet treatment needs in earlier paragraphs of these reasons. The treatment required by the respondent includes:
(a)Participation in a Sex Offender Intensive Treatment program.
(b)Participation in a Violent Offender Intensive program.
(c)Participation in a Pathways program for intensive substance use intervention.
(d)Individual psychological counselling to address obligations and responsibilities of a relationship and negative and hostile attitudes towards women.
It is imperative both that the psychological counselling starts as soon as possible and that the respondent be assessed for the programs at an early date to give him the best prospect of participation before the date for the first annual review of the continuing detention order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
1 MARCH 2023
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