The State of Western Australia v Cox Aka Roe
[2020] WASC 344
•24 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- COX AKA ROE [2020] WASC 344
CORAM: ALLANSON J
HEARD: 15 SEPTEMBER 2020
DELIVERED : 15 SEPTEMBER 2020
PUBLISHED : 24 SEPTEMBER 2020
FILE NO/S: HRSO 1 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PHILLIP JOHN COX AKA ROE
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act - Preliminary hearing - Whether reasonable grounds for belief that an order might be made - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 3, s 7, s 35, s 43, s 46, s 84
Result:
Orders made
Representation:
Counsel:
| Applicant | : | B Meertens |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Tony Hager |
Case(s) referred to in decision(s):
Nil
ALLANSON J:
These reasons were given orally on the completion of the hearing and have been edited from the transcript.
Introduction
The operative provisions of the High Risk Serious Offenders Act 2020 (WA) were proclaimed to come into operation on 26 August 2020. Unless otherwise stated in these reasons all references to legislation are to the High Risk Serious Offenders Act.
On 26 August 2020, the State of Western Australia filed an application for a restriction order in relation to the respondent, pursuant to s 35 and s 46 of the Act.
The respondent was due for release, having completed serving his sentence of imprisonment on 31 August 2020. Such was the State's determination to bring this matter on before the respondent was released that the application was purportedly served on him before the Act came into operation, and the Director of Public Prosecutions advised the registry of this court that the preliminary hearing must be held while the respondent was under a custodial sentence.
The application came before me on 27 August 2020. I declined to proceed with it on that day as the applicant had not been served in accordance with the Act, and was unrepresented. The Act does not require that the preliminary hearing be held before the completion of the respondent's sentence.
The hearing on 27 August 2020 was treated as a directions hearing and the matter was adjourned for hearing today.
The preliminary hearing
The Act provides for the making of restriction orders for the continuing detention or supervision of offenders after the completion of their sentence. The State may apply to the Supreme Court for a restriction order in relation to a 'serious offender'.
After a restriction order application is made, the court must fix a day for the matter to come before the court for a preliminary hearing.[1] 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 the respondent is a high risk serious offender.[2] The decision on a preliminary hearing is the first step in a process which might lead to the indefinite detention of a citizen following the conclusion of a sentence of imprisonment, on the grounds that it is necessary to make such an order to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
[1] Section 43.
[2] Section 46(1).
The Act is not confined to sexual offences (as was the Dangerous Sexual Offenders Act 2004 (WA) which it replaces). It includes offences of violence, but not all offences of violence.
And not all serious offences are violent offences. Many offences which might be described as violent offences are not serious offences prescribed in sch 1 of the Act. The present case has a clear illustration of the difference.
The respondent has an extensive criminal record from 1996, after he reached the age of 18. He was first sentenced to imprisonment in 1998 and has been sentenced to imprisonment on several occasions since. The respondent was convicted of his first serious offence in 2007, and including that occasion, he has been convicted three times for serious offences.
In 2007, the respondent pleaded guilty and was sentenced to imprisonment for 1 year and 8 months for one count of grievous bodily harm, in circumstances of aggravation. The respondent was confronted by his then partner after he left a club with another woman. There was an altercation and the respondent pushed his partner with sufficient force that she collided with her vehicle and broke her arm.
In 2009, the respondent pleaded guilty to one count of grievous bodily harm and one count of assault occasioning bodily harm. The respondent punched the victim twice to his head with a clenched fist, the second blow knocking him backwards causing him to strike the back of his head on a concrete driveway. The blow also caused the victim to lose two front teeth, and I believe it was that which was regarded as the grievous bodily harm. In the same incident, the respondent struck and caused bodily harm to another person. The offences apparently occurred in the context of a feud between two families in the country town from which the respondent comes, and while the respondent was drunk. He was sentenced to imprisonment for 2 years for the offence of grievous bodily harm, and 1 year for the offence of bodily harm.
The third serious offence was committed in 2016. In August 2017, the respondent was sentenced to imprisonment for 4 years for the offence of criminal damage by fire. The sentencing judge found that there was no premeditation but that the respondent and a co‑offender fled after lighting the fire on the patio of the victim's home, knowing that someone had barricaded himself in the house. The respondent was aged 39 at the time of this offence.
The respondent has been sentenced to terms of imprisonment on nine other occasions.
In a preliminary hearing, a judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made ‑ that is, a judge might be satisfied to a high degree of probability that it is necessary to make an order for continuing detention or supervision of the respondent to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. To say that something might occur is to say that it is possible.
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. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. That is the threshold that must be crossed before ordering that the respondent be examined by a psychiatrist and qualified psychologist whose reports will form the primary evidence on the application for a restriction order.
The evidence
If there is to be a reasonable ground based on the existence of facts, I need to look at the evidence. Section 46, read with s 84 and s 7, provides for the evidence on which the court may act in a restriction order proceeding. Although s 84(3) refers to the court acting on admissible evidence, s 84(4) and s 84(5) modify the rules of evidence to allow the court to receive into evidence material including 'any document relevant to the antecedents' of the offender; and any medical, psychiatric, psychological or other assessment relating to the offender; and any information indicating whether or not the offender has a propensity to commit serious offences in the future.
Relying on those sections, the State has adduced:
(1)statements of material facts for offences committed between 1996 and 2017, none of which are for serious offences as set out in sch 1;
(2)the sentencing remarks and transcripts of proceedings on the sentencing for each of the three serious offences for which the respondent was convicted.
I have also in evidence before me:
(1)Offender Program Reports dated 24 July 1997 and 25 July 1998;
(2)an Indigenous Men Managing Anger and Substance Use Treatment Completion Report dated 2 February 2005;
(3)a Pre-Sentence Report dated 7 March 2007 (for the first of the serious offences);
(4)a Parole Assessment Report dated 9 August 2007;
(5)a Pre-sentence Report dated 2 September 2009 (for the second of the serious offences);
(6)a Pathways Program Completion report dated 9 September 2010;
(7)a Parole Assessment Report dated 7 October 2010;
(8)a Pre-sentence Report dated 9 April 2013;
(9)a Parole Assessment Report dated 28 October 2013;
(10)a Pathways Program Completion Report dated 17 March 2014;
(11)a Parole Review Report dated 28 March 2014;
(12)a Psychological Report by a Ms Zuin dated 28 July 2015;
(13)a Parole Assessment Report dated 4 November 2015;
(14)a Bail Assessment Report dated 20 January 2017;
(15)a Pre-sentence Report dated 22 August 2017 (for the third serious offence) ;
(16)a Treatment Assessment Program Report dated 13 September 2017;
(17)a Violent Offending Treatment Program Non-Completion Report dated 11 April 2019;
(18)an Individual Management Plan dated 21 February 2020;
(19)a Post-Sentence Supervision Order Report dated 3 June 2020.
I have read and considered all of that material. It is difficult to deal with that material in some ways because, apart from the psychological report of Ms Zuin, the qualifications of the persons to express the opinions stated in those reports is not apparent on the face of the reports. Nonetheless, I have to take into account that the Act declares that material is admissible evidence to which I should have regard.
It is also difficult, in looking at that material, particularly to the extent that it makes predictions about future behaviour of the respondent, to discriminate in the opinions expressed between the risk that the respondent will offend in the future and the risk that he will commit a serious offence, the two not being the same. None of the reports to which the State refers distinguishes between offences which are serious in the general sense, and offences which are serious offences as set out in sch 1 of the Act.
Nevertheless, as was properly conceded by Mr Hager for the purposes of today's hearing, there is sufficient material before the court to form the belief ‑ particularly in the light of the fact that there will be further reports prepared for the purposes of the hearing ‑ that a judge might find that the respondent is a high risk serious offender.
That is the threshold that needs to be met, and, on the basis of all of the material to which I have referred, I am satisfied that it has been, and I do believe that such an order might be made. Whether such an order will be made, of course, depends on the whole of the evidence which will be before the court in March of 2021.
Addendum
In the course of the hearing, I commented that the Act does not define 'serious offender'. On reflection, I believe that the Act distinguishes (and defines) three classes of offender: a serious offender under custodial sentence and a serious offender under restriction (both of which are defined in s 3), and a high risk serious offender (defined in s 7). A definition of serious offender is unnecessary.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson24 SEPTEMBER 2020
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