The State of Western Australia v Clarke

[2022] WASC 137

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CLARKE [2022] WASC 137

CORAM:   DERRICK J

HEARD:   22 APRIL 2022

DELIVERED          :   22 APRIL 2022

PUBLISHED           :   27 APRIL 2022

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 - Restriction order application - Preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Whether an interim detention order or an interim supervision order should be made pending determination of restriction order application - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)

Result:

Orders made pursuant to s 46(2)

Interim 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):

The State of Western Australia v Lynch [2022] WASC 104

The State of Western Australia v Ugle [2022] WASC 91

DERRICK J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction

1. On 10 January 2022 the State of Western Australia applied for orders to be made in relation to Jonathon Leon Martin Clarke (the respondent) as follows:

   1.A restriction order under s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (the Act) (the application for this order being made pursuant to s 35(1) of the Act);[1]

   2.Orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act requiring, among other things, that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used on the hearing of the restriction order application; and

   3.An order pursuant to s 46(2)(c)(i) of the Act that the respondent be subject to an interim detention order under the final determination of the restriction order application, or alternatively an order pursuant to s 58(5) of the Act that the respondent be subject to an interim supervision order until the final determination of the application.

   [1] The respondent is an 'offender' for the purposes of the Act and a 'serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act: see the definition of 'offender' in s 3 of the Act, paragraph (b) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act. Given that the respondent is to be released on 3 June 2022 the application was, as required by s 35(3) of the Act, made within a period of one year of the date on which the respondent is to be released from custody.

2. I have today heard the State's application for the orders pursuant to s 46(2) of the Act. Accordingly, the hearing that has taken place before me is a preliminary hearing conducted pursuant to s 46(1) of the Act.

3. The respondent concedes that the requirements of s 46(1) are met and therefore does not oppose the application for orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Nonetheless, it is, of course, still necessary for me to examine the evidence and to satisfy myself that the orders sought should be made.

4. The State contends that if I find that the requirements of s 46(1) are met the respondent should be detained in custody until the determination of the restriction order application. In the alternative, the State submits that if I find that the requirements of s 46(1) are met the respondent should be released on an interim supervision order pending the determination of the restriction order application.

5. The respondent opposes the application for an order that he be detained in custody until the determination of the restriction order application. The respondent submits that he should be released on an interim supervision order pending the determination of the restriction order application. The respondent makes this submission notwithstanding that on 23 March 2022 the Prisoners Review Board (the Board) made a post-sentence supervision order (the PSSO) in relation to him pursuant to s 74D of the Sentence Administration Act 2003 (WA) (SA Act). That is, the respondent does not seek to argue that the conditions of the PSSO render it unnecessary to make an interim supervision order in respect of him.

The law[2]

[2] My statement of the applicable law reproduces what has been written by other judges of this court in numerous recent decisions: see by way of example only, The State of Western Australia v Ugle [2022] WASC 91 [5] - [8] (Hall J) and The State of Western Australia v Lynch [2022] WASC 104 [7] - [10] (Quinlan CJ).

1. Section 46(1) of the Act provides that 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 within the meaning of the Act.

2. A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[3]

   [3] Act, s 7(1).

3. A 'serious offence' within the meaning of the Act is defined in s 5 and sch 1. Relevantly for present purposes, a 'serious offence' includes the offence of indecently dealing with a child under the age of 16, the offence of indecently dealing with a child who is a lineal relative or a de facto child, the offence of sexual penetration without consent and the offence of aggravated sexual penetration without consent.

4. I do not have to be satisfied that a restriction order will be made.  It is sufficient at this stage of proceedings if there are reasonable grounds for believing that an order might be made.  To say that something might occur is to say that it is possible.  Further, a belief is an inclination of mind towards accenting to rather than rejecting a proposition.  For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

The evidence

1. In support of the application the State relies on an affidavit affirmed by Daniel Sean McDonnell on 10 January 2022.  Mr McDonnell is a lawyer employed by the State's solicitor.  Annexed to Mr McDonnell's affidavit are a number of documents including the respondent's criminal record and reports that have been prepared in relation to him. 

2. The State also relies upon an affidavit affirmed by Ms Heather Applin on 5 April 2022 and an affidavit sworn by Mr Martyn James Clancy-Rowe on 19 April 2022.  Ms Applin is a Senior Community Corrections Officer employed by the Department of Justice (the Department) and is based at the Community Offender Monitoring Unit.  Mr Clancy-Rowe is employed by the Western Australian Police Force as the Executive Manager of the Sex Offender Registry.  The affidavits of Ms Applin and Mr Clancy-Rowe relate to the respondent's proposed accommodation on release.

The respondent's background and personal circumstances

1. The respondent is 44 years old.

2. The respondent was raised in the Oombulgurri Community.  He had a dysfunctional childhood.  He was subjected to physical violence.  He was exposed to alcohol abuse and domestic violence engaged in by his parents and relatives.  He was also exposed to sexual violence.  Nonetheless he managed to attend school until year 12. 

3. The respondent has for much of his life used illicit substances and consumed alcohol to excess.  The vast majority of the respondent's offending has occurred in the context of excessive alcohol consumption. 

4. The respondent has over the years been involved in a number of significant intimate relationships.  His most recent significant intimate relationship spanned approximately 10 years and produced two children.  The respondent committed his most recent sexual offence against his partner in this relationship.

The respondent's criminal record

1. The respondent has a lengthy and significant criminal record. 

2. The respondent's first conviction was for an offence of stealing.  He committed the offence in 1989 when he was 13 years old.  Since that time the respondent has continued to offend unabated with the only significant breaks in his offending having occurred when he is incarcerated.  

3. The respondent has a number of prior convictions for offences of violence.  Most of these offences have been committed in a domestic setting against his intimate partners.

4. The respondent was convicted of his first sexual offence, an offence of sexual penetration without consent, in 1995 when he was 17 years old.  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. 

5. 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 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.  The three indecent assault offences involved the respondent getting into the shower with the 16-year-old victim and touching her on her vagina, getting into the shower with the victim and trying to make her bend over, and laying on top of the victim while telling her to take her pants off.

6. In 2012 the respondent was convicted of 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. 

7. In 2014 the respondent was convicted of 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 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 the respondent's long‑term partner.  The indecent assault offence involved the respondent rubbing the 16-year-old victim's breasts while she was asleep and 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.

8. In 2017 the respondent was convicted of one offence of aggravated sexual penetration without consent and one offence of aggravated assault occasioning bodily harm (the index offences).  The respondent was just short of his 40^th birthday at the time of committing the index offences.  He committed the index offences approximately six months after he had been released from prison.  He was sentenced for the index offences to a total of 5 years and 4 months imprisonment.  It is for the index offences that the respondent is currently imprisoned.  His sentence expiry date is 3 June 2022.

9. The facts of the index offences were as follows.

10. The victim was the respondent's partner (and the mother of his two children).  At 7.00 am on 4 December 2017 the respondent and the victim 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 4‑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. 

Participation in programs and recent assessments

1. In 2006 the respondent, while in prison, completed the Indigenous Sex Offender Medium Program.  The available materials indicate that on the completion of this program the respondent demonstrated insight into the relationship between his alcohol use and his offending in intimate relationships.  However the available records also reveal that the respondent demonstrated only a limited ability to see the victim's point of view, engaged in victim blaming and minimised his use of violence. 

2. In 2014 the respondent completed another sex offender treatment program while in prison.  The available materials do not include the Program Completion Report relating to the respondent's participation in this program.

3. A psychological report dated 30 June 2017 was prepared for the purpose of the respondent's sentencing for the index offences.  The report reveals that the psychologist, on making use of two well recognised risk assessment tools, assessed the respondent as being in the 'Well Above Average' risk category for sexual reoffending and identified his risk factors to include a lack of significant social influences, poor capacity for relationship stability, hostility towards females, social rejection, lack of concern for others, impulsivity, poor problem solving and negative emotionality. 

4. The psychologist considered that it was imperative that the respondent abstain from all substances in order to minimise his risk of reoffending.  She recommended substance abuse intervention for the respondent.

5. The psychologist noted in her report that the respondent's response to participating in specialist sex offender treatment in the past had obviously been limited.  She recommended, given the respondent's high level of risk, that he be given intensive specialist treatment.

6. A pre-sentence report dated 14 July 2017 was also prepared for the purpose of the respondent's sentencing for the index offences.  The writer of the report stated that although the respondent accepted some responsibility for his offending he 'displayed limited insight into his behaviour [and] limited victim empathy'.  According to the report the respondent attributed his history of offending to alcohol and cannabis use and said that he committed the index offences because he was angry and jealous. 

7. In December 2017 community corrections officers from the Department of Corrective Services undertook an assessment of the respondent's treatment needs.  The Treatment Assessment Report prepared as a result of the assessment reveals that during the assessment the respondent scored 'very high' on the Violent Risk Scale.  The report also reveals that the officers who conducted the assessment recommended that the respondent engage in various programs to address his violent offending, sexual offending and substance abuse.  Despite these recommendations the respondent has not engaged in any such programs while serving his current sentence.  He has refused to do so.

8. On 26 March 2020 the respondent was, at his own request, denied release on parole.  The respondent requested not to be released on parole due to his desire to be released without conditions. 

9. The respondent's counsel has informed me that the respondent's instructions are that the reason he did not want to be released on parole is that he viewed parole as requiring him to be subject to conditions and supervision that did not have a rehabilitative focus.  Counsel informed me that the respondent holds a different view with respect to an interim supervision order because under such an order he will be afforded the opportunity to participate in programs and 'rehabilitative conditions'.

10. I do not accept that the respondent's instructions to his counsel reflect the truth of the situation.  In my view the respondent's assertion that he did not want to be released on parole because he considered parole lacked a rehabilitative focus is inconsistent with his refusal, while he has been in custody, to participate in any programs directed at addressing his treatment needs.

Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?

1. The respondent has a significant history of sexual offending against underage and adult females with a number of his sexual offences being 'serious offences' within the meaning of the Act.

2. Although the respondent's individual sexual offences against underage females might be said not to be at the upper end of the range of seriousness, when the offences are viewed collectively they reveal a tendency on his part to commit opportunistic crimes of a sexual nature against young girls in vulnerable situations.

3. The index offences fall into a different category in that they were committed by the respondent against his adult partner of many years and involved significant violence and aggression.  Having said this, the violence and aggression exhibited by the respondent in committing the index offences is consistent with his history of committing offences of violence against his intimate partners.

4. The respondent has engaged in sex offender treatment in the past.  Clearly his engagement in such treatment has, to date, not had a positive effect on him.  In more recent times he has demonstrated an unwillingness to engage in any such treatment.

5. The respondent has unmet treatment needs all of which contribute to his risk of reoffending.  His unmet treatment needs relate to, among other things, his alcohol and illicit substance use, his deficient social and emotional functioning, his lack of insight into the seriousness of his offending, his lack of victim empathy, his cognitive distortions, his aggression, his inappropriate sexual attitudes and his inappropriate sexual activity with underage females.  Further, the most recent risk assessments of the respondent point to him being at a well above average risk of committing sexual offences and at a very high risk of committing violent offences.  While I acknowledge that these risk assessments were undertaken approximately four years ago, there is nothing before me to indicate that they no longer remain an accurate reflection of the respondent's risk levels.

6. Taking into account all the above referred to matters I am satisfied that there are reasonable grounds for believing that a court might find that the respondent is a high risk serious offender.  I will therefore make orders for the hearing of the restriction order application.

The respondent's proposed accomodation

1. If the respondent is released upon the expiry of his current sentence he proposes to live with his former sister-in-law and her partner at 24A Barnett Way, Derby (the Barnett address).  The Barnett address is the only place of residence proposed by the respondent.

2. The affidavits of Ms Applin and Mr Clancy-Lowe reveal the following matters relevant to the applicant's proposal to live at the Barnett address:

   1.The victim of the index offences, who is also the victim of several other violent offences committed by the respondent and who has a lifetime of violence restraining order against the respondent, currently lives in the Mowanjum Community which is 10 km from the Barnett address;

   2.The respondent has nine previous convictions for breaching various protective orders, including four breaches of three separate violence restraining orders protecting the victim of the index offences (in 2010, 2011, 2012 and 2016), two breaches of police orders protecting the victim of the index offences (in 2014 and 2015) and two breaches of protective bail conditions protecting the victim of the index offences (both in 2010);

   4.Testing of the Global Positioning System (GPS) has not at this point in time occurred in Derby with the result that the capabilities and limitations of GPS in Derby are not known;

   5.The security company that assists Adult Community Corrections (ACC) in the management of offenders subject to electronic monitoring are unable to provide a service to the Derby area;

   6.The closest ACC centre to Derby is in Broome which is over two hours away by car from Derby; and

   7.There are 23 convicted child sex offenders currently residing within the Derby town site;

   8.The respondent's former sister-in-law has seven grandchildren who visit the property twice a week;  

   9.The respondent's former sister-in-law has only demonstrated a limited knowledge of the respondent's criminal history prior to confirming her willingness for him to reside with her in the short term;

   10.Barnett Way has most of the anti-social behaviour related incidents within the Derby town site, with 121 incidents having occurred in the last year; and

   11.Several other victims of the respondent's prior offences live in the vicinity of the Barnett address;

1. In relation to the viability of the Barnett address as a place of residence for the respondent, it is submitted by the respondent, in substance, that although the address is not ideal it will never be possible to eliminate all risks associated with any address particularly where the address is in a remote or semi-remote community.  It is submitted that anti-social behaviour in regional townships is not novel and that the information contained in the affidavits of Ms Applin and Mr Clancy-Lowe does not reveal either the seriousness of the anti-social behaviour or the precise location in Barnett Way in which the behaviour commonly occurs.  It is submitted that the risks posed by the respondent if he is released to live at the Barnett address could be mitigated if he was subject to electronic monitoring and a curfew.  It is submitted that the State's application for the interim detention order can be adjourned so as to enable the Court to ascertain why there has been no testing of the GPS in Derby, to permit such testing to occur, and to permit inquiries to be made in relation to whether there is any security company, other than the security company currently used by ACC, that could assist in the management of the respondent in Derby if he is subject to electronic monitoring.

2. Given the above referred to matters revealed by the affidavits of Ms Applin and Mr Clancy-Lowe, it is clear that as things currently stand the Barnett address is not a suitable address for the respondent to be released to.

Interim detention order

1. The question that remains is whether I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act, an interim supervision order pursuant to s 58(5) of the Act or no further order at all in which case the respondent will be released on the conditions of the PSSO. The answer to this question depends on my assessment of what is required to ensure adequate protection of the community pending the determination of the restriction order application. In making this assessment I must bear in mind that the scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.

2. As I have already indicated, the State submits that an interim detention order needs to be made to ensure adequate protection of the community.  In support of this submission to State points to a number of factors including the respondent's refusal to engage in treatment while in custody, his most recent risk assessments, his tendency to reoffend soon after release from prison, the concerns about his proposed accommodation, his refusal to be released on parole because he does not want to be subject to conditions, his multiple convictions for breaching orders put in place for the protection of the victim of the index offences, his outstanding treatment needs and his specific risk factors.  The State submits that in light of all of these factors it would still not be appropriate to release the respondent on an interim supervision order even if electronic monitoring was available in the Derby area.

3. Notwithstanding its primary submission, the State has provided a draft interim supervision order (the draft order) containing a significant number of stringent conditions which it contends should be made to ensure adequate protection of the community if I do not accept its primary submission that an interim detention order is required.

4. The respondent, as I have already indicated, submits that the appropriate course at this point in time is to adjourn the State's application for an interim detention order to allow for further inquiries to be made in relation to the feasibility of implementing electronic monitoring at the Barnett address.  The respondent submits that if further inquiries reveal that electronic monitoring can be implemented at the Barnett address, releasing him on an interim supervision order in the terms of the draft order on the basis that he is to live at the Barnet address will ensure adequate protection of the community including the victim of the index offences.

1. The respondent has a lengthy record of serious offending.  He committed the index offences only a short time after he had been released from prison.  The most recent assessments of his risk of reoffending are that he is at a well above average risk of committing further sexual offences and at a very high risk of committing further violent offences.  Although these assessments were undertaken some time ago there is nothing to suggest that they no longer reflect the respondent's current levels of risk.  The respondent has refused to engage in treatment while serving his sentence for the index offences.  He has declined to be considered for release on parole because he does not want to be subject to conditions.  He has a significant history of breaching orders put in place for the protection of the victim of the index offences.   He has many outstanding treatment needs.  His proposed accommodation in the community is unsuitable. 

2. Taking all of the matters to which I have just referred into account, I am not satisfied that the conditions of the PSSO will ensure adequate protection of the community or that releasing the respondent on an interim supervision order containing the stringent conditions set out in the draft order will ensure adequate protection of the community.  I note that I would remain of this view even if further inquiries revealed that the respondent could be subject to electronic monitoring while living at the Barnett address.  More specifically, even if further inquiries revealed that the respondent could be subject to electronic monitoring at the Barnett address I would still not be satisfied that the address was suitable (that is, would still not be satisfied that releasing the respondent on an interim supervision order requiring him to live at the address would ensure adequate protection of the community) given the proximity of the residence of the victim of the index offences to the Barnett address, the respondent's significant history of breaching orders put in place for the protection of the victim of the index offences, the distance between the closest ACC centre and the Barnett address, the extent of the anti-social behaviour (of whatever type) that apparently occurs in Barnett Way and the fact that several other victims of the respondent's prior offences live in the vicinity of the Barnett address.

3. It follows that I am satisfied that to ensure adequate protection of the community the respondent should be detained in custody on an interim detention order pending the determination of the restriction order application.  I will therefore make an interim detention order. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

LK

Associate

27 APRIL 2022