The State of Western Australia v Corbett [No 7]
[2019] WASC 318
•6 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CORBETT [No 7] [2019] WASC 318
CORAM: HALL J
HEARD: 28 AUGUST 2019
DELIVERED : 6 SEPTEMBER 2019
FILE NO/S: DSO 3 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
TYRONE KINGSLEY CORBETT
Respondent
Catchwords:
Dangerous sexual offenders - Contravention of supervision order - Whether to release respondent under s 24A - Exceptional circumstances - Whether respondent will substantially comply with standard conditions
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 24A
Result:
Application for release refused
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Ms M R Barone SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
Corbett v The State of Western Australia [No 6] [2019] WASC 37
Director of Public Prosecutions for Western Australia v Corbett [No 3] [2014] WASC 442
Director of Public Prosecutions for Western Australia v Corbett [No 4] [2015] WASC 485
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
McGarry v Director of Public Prosecutions (WA) [No 5] [2013] WASC 41
The State of Western Australia v A [No 2] [2019] WASC 202
The State of Western Australia v Corbett [No 5] [2017] WASC 115
HALL J:
Summary
Tyrone Kingsley Corbett is the subject of pending proceedings for alleged contraventions of a supervision order under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). He was arrested on 9 August 2019 and is presently detained in custody. The hearing of the contravention application is set down for 16 January 2020.
Mr Corbett has applied for an order releasing him until the hearing, pursuant to s 24A of the Act. Such an order cannot be made unless the court is satisfied on the balance of probabilities that release is justified by exceptional circumstances and that the person will substantially comply with the standard conditions of the supervision order. The onus of proof as to substantial compliance with the standard conditions is on the person applying for release.
Though Mr Corbett applies for release under s 24A, he is the respondent in the contravention proceedings. For the avoidance of confusion, I will refer to Mr Corbett as the respondent and the State as the applicant in these reasons.
Mr Corbett says that if not released he will lose his accommodation in the community and this amounts to exceptional circumstances. He also says that he has substantially complied with the standard conditions of the supervision order to date and that the alleged contraventions (some of which are disputed) are not of such seriousness as to make release inappropriate.
The State opposes release because, it is submitted, the available evidence does not support a conclusion that Mr Corbett would substantially comply with the standard conditions of his supervision order if released. The State relies on the nature of the alleged contraventions and also other evidence as to Mr Corbett's behaviour and attitude to compliance.
For the reasons that follow, I accept that the loss of accommodation can be an exceptional circumstance and may well amount to one in the present circumstances. However, I am not satisfied on the balance of probabilities that if released Mr Corbett would substantially comply with the standard conditions of the supervision order. Accordingly, the application for release must be refused.
History of proceedings
On 25 November 2014, the respondent was detained on a continuing detention order under the DSO Act, which was imposed following contravention proceedings for a breach of a previous supervision order. That detention order was first reviewed in 2015, which resulted in a finding that the detention order could not be rescinded at that time.[1]
[1] See Director of Public Prosecutions for Western Australia v Corbett [No 3] [2014] WASC 442, Director of Public Prosecutions for Western Australia v Corbett [No 4] [2015] WASC 485.
A second review took place in late 2016 and early 2017. The detention order was again affirmed, however the State accepted that the appropriate course would have been to release the respondent on a new supervision order had appropriate accommodation been available. Ultimately, exhaustive efforts to secure accommodation were unsuccessful and the continuing detention order was affirmed.[2]
[2] See The State of Western Australia v Corbett [No 5] [2017] WASC 115.
In late 2018 the respondent became aware that suitable accommodation was available and made an application under s 30 of the DSO Act for an exceptional circumstances review, which I granted on 18 December 2018. On 8 February 2019, after hearing the review, I rescinded the detention order and made a new supervision order.[3]
[3] See Corbett v The State of Western Australia [No 6] [2019] WASC 37.
On 9 August 2019, the respondent was arrested on a warrant due to an alleged breach of the latest supervision order. The State then filed an application seeking orders that the supervision order be rescinded and a continuing detention order be made, or in the alternative that the supervision order be amended. The State also sought an order under s 22(2)(b) that the respondent be detained in custody whilst these proceedings are pending.
The respondent first appeared after his arrest on 9 August 2019. The proceedings were then adjourned to 26 August 2019 to allow time for urinalysis results to be produced and to ascertain which expert would be responsible for preparing the reports necessary for the contravention hearing.
On 23 August 2019, the State filed an application to amend their contravention application. I granted this application on 26 August 2019 and the matter was adjourned for two days to allow sufficient time for the respondent to prepare an affidavit in response to affidavits filed by the State.
On 28 August 2019, I made orders relating to the preparation of reports and the listing of the contravention application for hearing on 16 January 2020. I also heard an application by the respondent for his release until the hearing pursuant to s 24A. The application was supported by an affidavit, which the respondent orally adopted by affirmation (there being difficulties in him executing the document in prison). After hearing submissions I reserved my decision. The respondent continues to be held on an interim detention order unless a release order is made.
Legislative framework
Section 22 of the DSO Act relevantly provides:
22.DPP may seek orders
(2) In relation to a person to whom this section applies, the DPP may apply for —
(a) an order under section 23; and
(b) an order for the person to be detained in custody while proceedings on the application for an order under section 23 are pending.
Section 23 of the DSO Act relevantly provides:
23.Court may make order
(1) If, on the hearing of an application under section 22, the court is satisfied, on the balance of probabilities, that the person to whom the application relates has contravened or is contravening a condition of a supervision order, the court must —
(a) rescind the supervision order and make a continuing detention order in relation to the person; or
(b) subject to subsection (1B), make an order amending the conditions of the supervision order, or extending the period for which the person is to be subject to the supervision order, or both; or
(c) subject to subsection (1B), make an order affirming the supervision order without amendment or extension.
(1A) If, on the hearing of an application under section 22, the court is satisfied, on the balance of probabilities, that the person to whom the application relates is likely to contravene a condition of a supervision order, the court must —
(a)rescind the supervision order and make a continuing detention order in relation to the person; or
(b) subject to subsection (1B), make an order —
(i) amending the conditions of the supervision order; or
(ii) both amending the conditions of, and extending the period for which the person is to be subject to, the supervision order.
(1B) A court cannot make an order under subsection (1)(b) or (c) or (1A)(b) unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions or amended standard conditions of the supervision order.
(1C) The onus of proof as to the matter described in subsection (1B) is on the person to whom the application relates.
(2) In deciding which order to make under subsection (1) or (1A), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 24A of the DSO Act relevantly provides:
24A.Orders made during contravention proceedings
(1) This section applies if a person who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 22 in respect of the person are pending (the pending proceedings).
(2) The court may at any time in the pending proceedings —
(a) if the person is detained in custody, order the person to be released, subject to subsection (3); or
(b) if the person is not detained in custody, order the person to be detained in custody.
(3) The court cannot order the person to be released unless it is satisfied, on the balance of probabilities —
(a) that releasing the person is justified by exceptional circumstances; and
(b) that the person will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (5)(b).
(3A) The onus of proof as to the matter described in subsection (3)(b) is on the person.
(4A) For the purposes of subsection (3), in considering whether releasing the person is justified by exceptional circumstances the court may, as it thinks fit, receive and take into account information put before it, whether or not that information would normally be admissible in a court of law.
(4) In making a decision under subsections (2) and (3), the paramount consideration is to be the need to ensure adequate protection of the community.
(5) If the court releases the person —
(a) the person remains subject to the supervision order; and
(b) the court, before the pending proceedings are determined, may make an interim order amending the supervision order to include any requirements the court considers appropriate to ensure adequate protection of the community; and
(c) the court may order the person to reappear before the court at any adjourned hearing of the pending proceedings; and
(d) if it is alleged that the person has further breached the supervision order or breached an order made under paragraph (c), the court may issue a warrant to have the person arrested and brought before the court.
The relevant questions to be decided are therefore as follows:
(1)Is the respondent's release justified by exceptional circumstances?
(2)If released, will the respondent substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?
Both limbs of s 24A(3) must be met before a release order could be made. It would not be sufficient if exceptional circumstances were established but the court was not satisfied that the person would substantially comply with the standard conditions. As to the second of these tests, the onus is on the respondent to establish on the balance of probabilities that he will substantially comply with the standard conditions.
The word 'exceptional' means of the nature of, or forming an exception, unusual or out of the ordinary: Shorter Oxford English Dictionary. I referred to that definition when considering the use of the phrase 'exceptional circumstances' in the context of another section of the Act (s 30) in McGarry.[4] A similar definition has been referred to by Derrick J in The State of Western Australia v A [No 2],[5] a case involving an application for release under s 24A. In an oral decision in relation to Warren John Ricky Ugle made on 29 January 2016 I accepted that the risk of loss of accommodation by a person facing contravention proceedings was capable of constituting exceptional circumstances, depending on the facts of the particular case.
[4] McGarry v Director of Public Prosecutions (WA) [No 5] [2013] WASC 41 [19].
[5] [2019] WASC 202 [18].
As to the phrase 'substantially comply' this was considered by Fiannaca J in Hart in the context of contravention proceedings. Although his Honour was dealing with s 23(1B), his conclusions are applicable to s 24A(3), with one caveat which I will refer to shortly. His Honour said:[6]
[6] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
In summary, in light of the authorities I have reviewed, I consider that the appropriate approach to what is required under s 23(1B) is as follows:
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non‑compliance and the factors set out at [50] above.
The caveat is that the present application is not the final contravention hearing and the information presently available is limited and, in some respects, in dispute. It is not possible at this stage to make a prediction as to what the outcome of the contravention proceedings will be. It is entirely possible that when reports and other evidence become available some of the events may take on a different light. I can only make an assessment based on the information presently to hand.
As to 'the standard conditions of the supervision order', this means the conditions which under s 18(1) must be included in a supervision order.[7] Those conditions include reporting to a community corrections officer, notifying the officer of any change of residence, name or employment, being under supervision of an officer and complying with any reasonable directions of the officer, remaining in the State, not committing a sexual offence and being subject to electronic monitoring.
[7] see s 3.
Information provided by the parties
The State has provided the following documents:
(1)An affidavit of Ms Kimberley Comery sworn 9 August 2019;
(2)A second affidavit of Ms Comery of the same date;
(3)An affidavit of Mr Brent Meertens, counsel for the State, affirmed on 8 August 2019;
(4)Two written lawful instructions issued by corrections officers to the respondent dated 5 March 2019;
(5)An intake questionnaire dated 9 August 2019; and
(6)A statement of particulars setting out the matters on which the State will rely at the contravention hearing.
The respondent has provided an affidavit which was affirmed in court on 28 August 2019.[8]
[8] Exhibit 1 – Affidavit of Mr Corbett affirmed 28 August 2019.
The State's materials refer to six contraventions since the respondent's release on 5 March 2019. Three of those alleged contraventions have been the subject of charges under s 40A of the Act to which he has pleaded guilty. A further alleged contravention is the subject of a pending charge. The State also alleges two further contraventions which are not the subject of separate criminal charges.
There is unlikely to be any dispute as to the facts of those contraventions to which the respondent has already pleaded guilty, which are as follows.
The first was a failure by the respondent to properly record his attendance at the Dog Swamp Shopping Centre on 27 March 2019 in his diary, in breach of condition 43 of the supervision order. Condition 43 requires the respondent to '[m]aintain a daily diary of [his] movements, activities and associations if and as directed by the CCO, and present this daily diary to the CCO or any police officer on request.'
The second and third contraventions relate to the respondent meeting with his aunt and uncle at a residence on 20 May 2019, and a subsequent failure to record that meeting in his diary in breach of conditions 41 and 43. Condition 41 prohibits the respondent from entering or remaining in a residence where any female is present without approval. The respondent had also been issued with a written lawful instruction on 5 March 2019 containing instructions on how he was to complete the diary, including the address of any residential premises he attended and the names of any people he travelled with. He signed this instruction acknowledging that he understood it.
The two alleged contraventions that are not the subject of criminal charges are as follows.
First, police located the respondent in the presence of an adult female outside the Royal Perth Hospital on 11 March 2019. The respondent did not record that meeting in his diary and, when challenged about the lack of entries in the diary at a supervision session on 12 March 2019, he falsely asserted that he had not left home for three days. The failure to record the meeting was in breach of condition 43. A discretion was exercised not to prefer a criminal charge and a warning letter issued to the respondent.
Second, the State alleges that the respondent failed to engage with UnitingCare West (UCW), contrary to a written lawful instruction issued on 5 March 2019. The particulars of this contravention state that the respondent failed to attend an appointment on 20 June 2019.
The alleged contravention that is the subject of a charge that is pending in the Magistrates Court arises from events on 7 August 2019. On that day police attended at the respondent's residence to monitor his compliance with the supervision order. Prior to opening the front door the respondent sprayed deodorant in the living area. After a discussion police located a glass smoking implement with traces of cannabis near the rear sliding door. The respondent admitted knowing the implement was there however denied ownership of it, claiming that it had been left there by a friend. When police searched the yard they found two adult males hiding behind a wall, one of whom was in possession of a small quantity of cannabis and appeared to be intoxicated. The respondent was charged with breaching condition 40, which provides that he is not to remain in the presence of any person affected by illicit substances, or who he ought to know was so affected.
The State's materials also detail conduct which does not constitute contraventions, but which the State says is nevertheless relevant to the question of the respondent's future compliance. This conduct is said to include the following: indicating he does not like filling in his diary, indicating that he does not like his CCO knowing where he is or who he is with, expressing frustration at his conditions and UCW rental agreement, saying that his CCO wanted him back in prison, 'closing down' during discussions relating to sex, use of pornography, frequently requesting a change to his CCO, saying that his CCO is a 'military man' and needed to leave that behind when dealing with him, raising his voice when asked to undergo urinalysis twice in one week, reluctance to provide information, using derogatory language about SOMS (the Sex Offender Management Squad of WA Police) and the supervision order, saying he will 'go out with a bang', failure to answer the door to UCW and not being truthful about his presence in the house, becoming abusive when his new CCO suggested that he walk to Dog Swamp Shopping Centre on the right side of the road so as not to travel close to an exclusion zone, saying 'you don't want a bloke to live, it's fucked, I'll give you something to breach me for, this is fucked' upon being asked to undergo urinalysis, his belief that three women were chasing him, stating that he does not wish to work with his UCW mentor, swearing at UCW staff and an affirmative answer in his intake questionnaire as to whether he normally uses drugs (referring to the use of cannabis 'every couple of months').
In Ms Comery's first affidavit she states that whilst the respondent has engaged appropriately with his supervising officer, the police and UCW on some occasions, he has been unable to maintain appropriate engagement when challenged. She concludes that the respondent's non‑compliance, lack of appropriate engagement, refusal to provide information and placing of himself in high‑risk situations, have resulted in concerns being held for the risk his behaviour poses to the community and the ability of the monitoring authorities to manage that risk.
In his affidavit the respondent claims to have had a number of corrections officers assigned to him and that he had a difficult relationship with one of them in particular. As to the alleged contravention regarding meeting an adult female at Royal Perth Hospital, he says that the woman he met was his former partner and that he was helping her to get to the hospital to visit a family member. He says that he did eventually tell his corrections officer about the meeting. As to the breaches of the diary condition, he says that he does not like writing and finds this condition very difficult. As to the failure to engage with UCW, he says that he has found them to be intrusive, rather than being supportive. Whilst he agrees that there have been times when he has sworn or been abusive when dealing with the officers supervising him, he says this is due to frustration and what he perceives to be an inflexible approach by those officers.
Respondent's submissions
The respondent intends to enter a plea of not guilty in the Magistrates Court to the charge relating to the 7 August 2019 incident. The effect of this is that the contravention proceedings will be delayed until a hearing in the Magistrates Court is completed. That has two consequences for the respondent. First, the delay will prolong the period that he will be held in custody if an order for his release is not made. Secondly, his accommodation in the community will only be held for him for a short time and will then be re‑allocated. There is a strong likelihood that other accommodation will be difficult, if not impossible, to find in the event the respondent is found suitable for release on a new or amended supervision order.
Further, counsel for the respondent says that there is a real prospect of acquittal with regard to the Magistrates Court charge.[9] The relevant condition (condition 40) of the supervision order reads: 'Not remain in the presence of any person affected by illicit substances, or reasonably ought to know to be affected by illicit substances'. The respondent submits that this condition ought to be read with condition 42 which says: 'Not to remain in any place where prohibited drugs are being consumed or if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place.' It is suggested that there is a real issue as to whether drugs were used in the part of the premises where the respondent was located and, even if he was, whether he complied by withdrawing himself from that part of the premises.
[9] ts 717.
In relation to the contraventions to which Mr Corbett has already pleaded guilty, there is no dispute as to the facts, however counsel for the respondent sought to explain the surrounding circumstances. As to his failures to record in his diary, the respondent finds the diary condition particularly difficult to adhere to, because expressing himself through writing is not something he is familiar with, nor has it been part of his life. He denies any intention to conceal or deceive the authorities.
As to his meeting with his aunt, the respondent says that this occurred because they were all going to the Federal Court in relation to native title meetings and that he attended in order to help his aunt and uncle carry their bags.
As to having been located in the presence of a female at Royal Perth Hospital, the respondent accepts that he met with his former partner who was in Perth and wanted assistance to get to the hospital. It is submitted on his behalf that any attempt by him to deny the meeting was doomed to failure given that he knew that the police had seen him and had likely reported the meeting to his corrections officer. This, it is said, puts the conduct into a less serious light.
As to the failure to engage with UnitingCare West, this contravention is in dispute. The respondent does not dispute that he failed to attend an appointment with UCW, but says that this does not constitute a failure to 'engage'.
In addition, the respondent submits that none of these contraventions have been serious or sexual in nature. They do not, it is said, increase the risk of further serious sexual offending. Although the respondent finds the conditions of the supervision order frustrating he is said to be generally compliant. In support of this the respondent says that despite being frustrated at being required to undergo multiple urinalysis tests in one week, he complied and despite being frustrated at being asked to travel to the shopping centre on the right side of the road so as to avoid travelling close to an exclusion zone, he did so.
Ultimately, the respondent submits that the loss of his accommodation, combined with the delays associated with his criminal matter, constitute exceptional circumstances justifying release under s 24A. Further, it is submitted that the allegations, when seen in the light of his explanations in his affidavit, support a conclusion that he has been, and will be, substantially compliant with the standard conditions of his supervision order.
State's submissions
Counsel for the State conceded that loss of accommodation was capable of being an exceptional circumstance, however that is not the only requirement which the respondent must satisfy under s 24A. The State says that the combined effect of the respondent's performance on his previous supervision order, his performance on the current supervision order and his other conduct and behaviours is that the court cannot be satisfied that the respondent will substantially comply with standard conditions if released.
In relation to the criminal charge currently before the Magistrates Court, the State says that the evidence is that the respondent had knowledge of drug consumption occurring in his house. This inference can be drawn from the fact that he sprayed deodorant in the living room area in an attempt to disguise the fact that cannabis smoke was in the house. This shows not only non‑compliance with the conditions, but an attempt to conceal that non‑compliance.
In relation to the respondent having been located at Royal Perth Hospital with his former partner, the State notes that when challenged about this by his corrections officer the respondent said that he had not been out of the house for three days, which included the day he was located at the hospital. The State says this is of particular concern because it is a deliberate lie and that honest self‑reporting is important to the proper supervision and management of a dangerous sex offender in the community.
In relation to the respondent's failure to engage with UnitingCare West, the State says that 'engage' should be construed such that a failure to attend an appointment is a failure to engage. Further, the State says that this is not the only conduct which goes to a failure to engage, highlighting a failure to answer the door to UCW on 9 July 2019 and subsequently falsely saying on the phone that he wasn't home, before eventually opening the door. He also failed to answer questions once he did so, and appeared angry.
The State says that the respondent's contraventions, together with his lack of appropriate engagement or co‑operation in supervision sessions, belligerent attitude, refusal to provide information and placing himself in high‑risk situations have given rise to a concern on the part of the authorities as to their ability to identify, respond to and manage the respondent's risk of sexual reoffending. Reference was made to a report prepared by Dr Ben Bannister for the purposes of the review proceedings earlier this year, which states that the most likely risk scenario for the respondent is that he fails to comply because he underestimates [sic overestimates] his capacity to manage challenging situations.
Ultimately, the State submits that in all the circumstances the court could not have any confidence that the respondent will substantially comply with the conditions of his supervision order in the future.
Conclusion
I accept that it is inevitable that the respondent will lose his accommodation if he is not released. That loss needs to be seen in the light of the fact that history has shown that accommodation that is suitable for the respondent is extremely difficult to find. The likelihood is that if he loses this accommodation and is then found suitable for release on a new or amended supervision order after the contravention application is heard he may be unable to be released due to the unavailability of any alternative accommodation. In these circumstances I am satisfied that there are exceptional circumstances justifying release. However, that is only part of the requirements set out in s 24A(3).
As to the whether the respondent will substantially comply with the standard conditions of the order, the onus is on him to establish this on the balance of probabilities. Taken individually many of the alleged contraventions are minor. However, when the alleged contraventions are viewed together and in the light of other conduct that the State relies on, there appears to be good reasons for the authorities to be concerned as to their ability to manage the respondent. There is evidence of non‑compliance, aggressive resistance to authority, oppositional behaviour and deceit. Despite the explanations for this given by the respondent in his affidavit, much of it is undisputed. Nor can I accept that the alleged breaches do not relate to any risk of further serious sexual offending. Being in company with adult females without permission and being in the presence of people using cannabis have the potential to increase risk. It is not to the point that the risk was not realised on these occasions. The purpose of the conditions is to minimise risk by ensuring that any conduct that has the potential to make offending more likely is prevented or at least caught and stopped at an early stage. On the presently available information I am not satisfied that the respondent would substantially comply with the standard conditions if released. In particular I am not satisfied that he would substantially comply with the conditions regarding supervision by a community corrections officer and compliance with all reasonable directions issued by such an officer.
The application for release is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AL
Associate to the Honourable Justice Hall5 SEPTEMBER 2019
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