The State of Western Australia v Colbung - [2022] WASC 103

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- COLBUNG [2022] WASC 103
CORAM:   QUINLAN CJ
HEARD:   25 MARCH 2022
DELIVERED          :   25 MARCH 2022
PUBLISHED           :   25 MARCH 2022
FILE NO/S:   SO 3 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

SHANNON SHAWN COLBUNG
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim supervision order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46(2) made

Category: B

Representation:

Counsel:

Applicant	:	F M Allen with A N Kildea
Respondent	:	E A Hamilton

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	T & L Lawyers

Cases referred to in decision:

Nil

QUINLAN CJ:

(This judgment was delivered extemporaneously on 25 March 2022 and has been edited from the transcript.)

Introduction

On 28 January 2022, the State of Western Australia applied for a restriction order in respect of Shannon Shawn Colbung under the High Risk Serious Offenders Act 2020 (WA) (the Act).
Mr Colbung is currently in custody, serving a sentence of 10 months imprisonment for the offence of assault occasioning bodily harm. That term of imprisonment will expire on 15 May 2022.
The preliminary hearing of the restriction order application came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that Mr Colbung is a high risk serious offender within the meaning of the Act.
The State seeks orders pursuant to s 46(2) of the Act, including orders that:
(a)Mr Colbung undergo an examination by a psychiatrist and by a psychologist for the purpose of preparing reports; and
(b)that he be subject to an interim detention order, or in the alternative, an interim supervision order, until the final determination of the application.
Mr Colbung accepted, through his counsel, that the requirements of s 46 were met and, for the reasons I will give, I accept that concession was properly made.
Mr Colbung sought to adjourn the question as to whether he should be made subject to an interim detention order or an interim supervision order, so as to enable him to prepare submissions that the community can be adequately protected pending the determination of the restriction order application by an interim supervision order. The State did not oppose such an adjournment and I will allow it.

The law

As I have said, 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 Mr Colbung is a high risk serious offender.
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 in relation to the offender, in order to ensure the adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
I do not have to be satisfied that a restriction order will be made. It is sufficient 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. Belief is an inclination of mind towards assenting 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.
A 'serious offence' within the meaning of the Act, relevantly, includes wilfully lighting a fire under such circumstances as to be likely to injure a person or damage property contrary to s 32 of the Bush Fires Act 1954 (WA). On 12 August 2020 Mr Colbung was convicted of an offence against s 32 of the Bush Fires Act and sentenced to a term of 18 months imprisonment (backdated to 16 January 2020). While that sentence has come to an end, the sentence of 10 months imprisonment that he is currently serving was made cumulative upon the sentence for the offence under the Bush Fires Act. For that reason, Mr Colbung is a 'serious offender under custodial sentence' within the mean of the Act and thus able to the subject of a restriction order application.

The evidence

The evidence before me in support of the application consisted of an affidavit of James Francis Bennett, affirmed on 28 January 2022, which contains Mr Colbung's criminal history and several previous reports in relation to him. The State also relies upon an affidavit of Heather Applin, affirmed on 22 March 2022. I also have before me a copy of Mr Colbung's Individual Management Plan from the Albany Regional Prison.
Mr Colbung is now 37 years old. He has a long history of offending, including violent offending, and has spent a large part of his adult life in prison.
Mr Colbung presents with a complex set of medical and social problems. He has an acquired brain injury, in addition to a long history of substance abuse and mental health issues. He has, from time to time, been on antipsychotic medication, with good effect, but has demonstrated great difficulty in regularly taking the medication. Beyond that medication, Mr Colbung's criminogenic needs appear to have remained largely unaddressed.
Mr Colbung's history of offending includes convictions for five 'serious offences' within the meaning of the Act: grievous bodily harm; wilfully lighting a fire under such circumstances as to be likely to endanger a person or damage property; assault with intent to cause grievous bodily harm; two convictions for sexual penetration of a child under 16. Four of those offences were committed between 12 and 20 years ago. The most recent 'serious offence', within the meaning of the Act, was that committed two years ago. In addition Mr Colbung has been convicted for, amongst other things, a series of less serious violent offences.
The evidence reveals that the pattern of this offending regularly involves entirely random acts of violence against persons previously known or unknown to Mr Colbung and often arise in circumstances that would take the victim completely by surprise; that is, the acts are entirely unprovoked. Those convictions include offences of: indecent assault; assault occasioning bodily harm; assault a public officer; common assault; and threats to kill.
As noted above, his most recent 'serious offence' was committed on 16 January 2020. The day prior, Mr Colbung got into an argument with his neighbour. He had previously enjoyed a cordial relationship with that neighbour, but at the time the argument was heated and Mr Colbung said to the neighbour 'I will get you in the morning'. The next day, the neighbour's partner smelt smoke and saw Mr Colbung standing by a fire in the long grass on their property. The fire was extinguished by emergency services and no property was in fact damaged, although given the nature of the properties, there was a real risk of damage to a nearby shed and there were some neighbouring residential properties next to that shed.
At the time, Mr Colbung was not complying with his antipsychotic medication and his mother, with whom he lived, had moved out for a time to gain some respite. It appears that at some point prior to the offending, she had called out the police due to Mr Colbung's aggressive behaviour. At the time of the fire, Mr Colbung's medication had run out and his mother, who would normally collect it for him was not there to do so.
While no serious harm resulted as a consequence of that offence, Mr Colbung's other offending demonstrates that he has a capacity to commit acts of significant personal violence on others that do cause serious harm.
On 4 May 2011, for example, Mr Colbung was convicted for an offence of grievous bodily harm. The facts of that offence were that on 27 October 2010 at about 4.05 pm, Mr Colbung was standing outside of the home of the 85‑year‑old victim. The victim was unknown to Mr Colbung. Mr Colbung punched the victim to the side of the head with a clenched fist. The blow caused him to fall to the ground, where he then stomped on his head with a booted foot a number of times before kicking him in the face.
More recently, Mr Colbung has been convicted and sentenced for biting a police office (in 2017) and (in 2019) attacking a person unknown to him by biting him on the finger causing bruising and broken skin. On that occasion, Mr Colbung's jaw had to be pried open by a witness before he would let go of the victim.
The offence for which he is currently serving a term of imprisonment involved Mr Colbung attacking a person unknown to him, by striking him in the face with a clenched fist, fracturing his nose and eye socket causing bleeding, bruising and swelling to the face.
Returning to Mr Colbung's cognitive, mental health and substance abuse problems, there is extensive documentation in the material before me of cognitive impairment resulting from Mr Colbung being in a serious car accident when he was approximately 17 years old. Mr Colbung suffered a closed head injury with left frontal lobe contusions, as well as serious injuries to his back.
In 2011, when Mr Colbung was 26 years old, Dr Mark Hall, psychiatrist, diagnosed Mr Colbung with a personality change due to his brain injury, antisocial personality disorder and alcohol abuse disorder. Dr Hall said:
Mr Colbung presents as a young cognitively impaired male with issues in relation to impulse control, irritability, paranoia and agitation, complicated by alcohol and other substance abuse, as well as negative aspects of his social environment. There was evidence of both neurological compromise and emerging antisocial personality traits prior to his motor vehicle accident at age 16, after which a brain injury further negatively impacted upon his behaviour and general functioning.
The use of alcohol and illicit substances increases the likelihood of Mr Colbung engaging in violent and/or sexually inappropriate behaviour. During the current assessment, there was little in the way of a subjective account of the offending from Mr Colbung, other than to minimise it. In particular, he declined on this occasion to discuss his use of alcohol or other substances around the time of the offending.
Mr Colbung's cognitive impairments present a challenge to addressing his behaviour through programmatic interventions. From a medical and psychiatric point of view, it is highly recommended that Mr Colbung continues to take antipsychotic medication in depot form, long-acting injectable, so as to provide some moderating influence on his emotions and behaviour.
Mr Colbung will continue to be managed by the prison medical service in conjunction with the mental health team whilst in custody. Whilst Mr Colbung has historically been managed in the community by his general practitioner, I respectfully submit my opinion that Mr Colbung should be referred to community-based mental health services at the time of his release.
That was over 10 years ago.
Other than his periodic return to prison, nothing meaningful appears to have happened since. There is no further psychiatric or psychological report in the material before me. The closest the material comes to providing some indication of his current mental state is a second‑hand report, from November 2020, that the Clinical Nurse at Albany Regional Prison advised that she had known Mr Colbung for a number of years and had seen a recent decline in his physical and mental health.
The recent reports, including a presentence report prepared during his current period of imprisonment, confirm that, prior to his incarceration, Mr Colbung continued to use cannabis daily, continued to drink alcohol and continued to use methylamphetamine.
In recent years there has been a consistent, somewhat fatalistic, theme in the reports to the effect that, as Mr Colbung's cognitive impairments make his treatment needs difficult to address, they have simply not been addressed.
On 30 May 2018, for example, a Parole Assessment Report said:
Mr Colbung has not been treatment assessed for program intervention, or undertaken any voluntary courses during his current sentence. Departmental records reveal that Mr Colbung has been treatment assessed for interventions during previous terms of imprisonment, namely, addictions, offending pathways, high-intensity and violent offender intensive program, but was found unsuitable for participation due to his cognitive impairments.
A 2011 Psychiatric Report recognised that Mr Colbung's 'cognitive impairments present a challenge in addressing his behaviour through programmatic interventions'.
As an alternative it was recommended that Mr Colbung continue with antipsychotic medication as this appears to have had a positive influence on reducing his emotions and negative behaviours albeit he has a history of noncompliance with his medication and at the time of the current offences, the efficacy of his medication was compromised by alcohol use.
Further, Mr Colbung's identified treatment needs are unlikely to be adequately addressed given his proposal to return to the family home in Mount Barker, WA where there is a lack of specialist service provision. Departmental records indicate that generally Mr Colbung has been unable to benefit from psychological counselling or other support programmes offered in the Great Southern, including substance abuse and anger management counselling.
Mr Colbung acknowledged that he has ongoing issues with alcohol and drug misuse and that this together with his negative peers influences can cause him to get into trouble with the law. He expressed a willingness to attend substance abuse counselling to address his alcohol abuse issues and whilst substance use counselling is available in Mount Barker via Palmerston, this is again likely to be something of a challenge for Mr Colbung given his cognitive impairment.
Two years later, on 2 November 2020, the Parole Assessment Report was more blunt:
Mr Colbung has not been treatment assessed and as such has not participated in any recommended or voluntary programs during his period of imprisonment.
During previous terms of imprisonment in 2015 and 2011, Mr Colbung was deemed suitable for addiction and violent offender treatment programs, however, he was deemed ineligible to participate due to his cognitive impairment.
Three weeks later, on 25 November 2020, a referral request for individual psychological treatment for Mr Colbung was declined. In a now familiar refrain, the report reads:
Referral comments:
The referrer requests individual psychological intervention to meet Mr Colbung's criminogenic treatment needs. Programs were deemed not appropriate for Mr Colbung given evidence of cognitive impairment and acquired brain injury which would impact on his ability to engage in group based intervention. An NDIS application is reported to be in progress.
Referral outcome:
Declined.
Declined reason:
Insufficient time.
Declined comments:
Mr Colbung's maximum sentence date is 15/07/2021. He currently resides in Albany Regional Prison. Individual work with Mr Colbung would require both his transfer to a metropolitan based prison and a longer period of time to be available to the treating clinician in order to make substantial gains given responsivity difficulties he would have given cognitive difficulties outlined in the referral document.
That was one year and four months ago.
If any further steps have been taken to address Mr Colbung's outstanding criminogenic treatment needs since that time, the materials before me do not reveal them.
I turn to my assessment.

Assessment

I am satisfied there are reasonable grounds to believe that a Court might find that Mr Colbung is a high risk serious offender.
While not all of Mr Colbung's past offending has involved 'serious offences' within the meaning of the Act, much of that offending supports the potential finding that Mr Colbung has a propensity for unprovoked random acts of violence that are more likely to occur when he is consuming illicit substances, drinking alcohol or not following the regime for his antipsychotic medication.
It is not difficult to see that, if repeated, the kind of random violence committed by Mr Colbung could well fall within the category of 'serious offences', including grievous bodily harm (for which he has a prior conviction), and causing bodily harm with intent.
For so long as Mr Colbung's identified treatment needs continue to remain unaddressed, I am satisfied there are reasonable grounds to believe that he will return to the kind of spontaneous violent offending that has seen him repeatedly imprisoned in the past.
Mr Colbung's ongoing problems with substance abuse, his cognitive impairments and his pattern of unprovoked violent offending satisfy me that there are reasonable grounds to believe that a court might find that he is a high risk serious offender.
I will therefore make orders for the hearing of the application in terms of the State's minute of proposed orders for the review of Mr Colbung.

Further orders

Pending the determination of the application, the State seeks an order for an interim detention order. Mr Colbung's counsel requested an adjournment to 22 April 2022 in relation to the question of imposition of an interim supervision order or interim detention order.
The State does not oppose that course of action.
I am satisfied that it is appropriate to adjourn the matter to 22 April 2022 for that purpose.
As will be apparent from the reasons that I have given, Mr Colbung presents as a complex case which requires some innovative way of addressing his criminogenic needs. A way that has thus far not been attempted.
It is in the interests of the community safety, and in Mr Colbung's interests, that those matters continue to be explored. I will therefore adjourn the balance of the application to 22 April 2022.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Principal Associate to the Honourable Chief Justice Quinlan
25 MARCH 2022