The State of Western Australia v Coyne [No 2]
[2023] WASC 280
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- COYNE [No 2] [2023] WASC 280
CORAM: VANDONGEN J
HEARD: 19 MAY 2023
DELIVERED : 14 JULY 2023
PUBLISHED : 26 JULY 2023
FILE NO/S: SO 13 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAUL JERRY COYNE
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 restriction order - Whether necessary to make restriction order to ensure adequate protection of community - Whether community can be adequately protected by supervision of respondent
Legislation:
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Prisons Act 1981 (WA)
Sentence Administration Act 2003 (WA)
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | D S McDonnell |
| Respondent | : | A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
The State of Western Australia v Carter [No 5] [2023] WASC 223
The State of Western Australia v Clarke [No 2] [2023] WASC 53
The State of Western Australia v Coyne [2022] WASC 434
VANDONGEN J:
Introduction
On 1 September 2022, the State of Western Australia made an application pursuant to s 35(1) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) for a restriction order to be made in relation to Paul Jerry Coyne (Application).
I heard the Application on 19 May 2023.
On 14 July 2023 I made a continuing detention order in relation to Mr Coyne and said that I would publish my reasons for making that order at a later time. These are my reasons for making that order.
Relevant procedural history
On 12 June 2020 Mr Coyne was sentenced in the District Court of Western Australia to 3 years imprisonment for an offence of aggravated robbery, which is a 'serious offence' for the purposes of the HRSO Act.[1] While he was still serving that sentence, Mr Coyne was sentenced to 7 months imprisonment for assaulting a prison officer, and that term of imprisonment was ordered to be served concurrently. Mr Coyne was made eligible for parole. However, parole was denied at his own request, and his sentence was therefore due to expire on 11 January 2023.
[1] HRSO Act s 3, s 5(1)(a) and sch 1 div 1 subdiv 3 item 34.
The Application was made pursuant to s 35(1) of the HRSO Act, while Mr Coyne was still under custodial sentence.
On 9 December 2022 a preliminary hearing of the Application took place in accordance with s 46 of the HRSO Act. At the hearing Strk J was satisfied that there were reasonable grounds for believing that the court might find that Mr Coyne is a high risk serious offender, and she ordered that he be detained under an interim detention order pursuant to s 46(2)(c)(i) of the HRSO Act, pending the hearing of the Application. Various programming orders were also made, as well as orders requiring Mr Coyne to undergo examinations by a psychiatrist and psychologist.[2]
[2] The State of Western Australia v Coyne[2022] WASC 434 (Coyne).
The evidence
At the hearing of the Application the State tendered a three-volume book of materials (BoM). The State submitted that the documents comprising the BoM were admissible pursuant to s 84(5) of the HRSO Act as outlined below:
| Items | Provision of the HRSO Act justifying admission into evidence |
| 1, 2, 7, 27, 28, 29, 30, 34, 35, 36, 40, 41, 42, 44, 45, 46, 47, 48, 49, 52, 53, 54, 56, 58, 59, 61, 62 | s 84(5)(a) - a document relevant to the antecedents or criminal record of the respondent |
| 10, 11, 12, 13, 14, 15 | s 84(5)(a) - a document relevant to the antecedents or criminal record of the respondent s 84(5)(d) and s 7(3)(b) -any other medical, psychiatric, psychological, or other assessment relating to the respondent |
| 32, 37, 38, 51, 60 | s 84(5)(a) - a document relevant to the antecedents or criminal record of the respondent s 84(5)(c) - a document that was tendered to the court, or that informed the court, in a relevant proceeding against the respondent s 84(5)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent |
| 26, 33, 39, 43, 50, 55, 57, 63 | s 84(5)(b) - anything relevant contained in the official transcript of any relevant proceeding against the respondent |
| 79, 80 | s 84(5)(d) and s 7(3)(a) - reports prepared under s 74 for the hearing of the Application and the extent to which the respondent cooperated in the examination required by that section |
| 6, 64, 65, 69, 70, 73, 78, 81 | s 84(5)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent |
| 66, 67, 68, 71, 72, 74 | s 84(5)(d) and s 7(3)(e) - any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation program |
| 3, 4, 5, 25 | s 84(5)(d) and s 7(3)(j) - any other relevant matter (evidence of the respondent's conduct while in prison) |
| 16, 17, 18, 24 | s 84(5)(d) and s 7(3)(j) - any other relevant matter (evidence of the respondent's symptoms of psychosis) |
| 75, 76, 77 | s 84(5)(d) and s 7(3)(j) - any other relevant matter (accommodation) |
The State did not tender the documents numbered 8, 9, 19 - 23 and 31 in the BoM. Accordingly, I have not taken them into account.
Volume 3 of the BoM consists largely of reports prepared for the purposes of the Application. Those reports included:
a)Proposed High Risk Serious Offender Treatment Options Plan by Ms Tara Stagg, dated 16 May 2023;
b)Psychiatric Report by Dr Peter Wynn Owen, dated 8 May 2023;
c)Psychological Report by Dr Tara Yewers, dated 9 April 2023; and
d)Community Supervision Assessment by Ms Gabriela Serrano, dated 11 May 2023.
The psychiatric and psychological reports were prepared for the hearing of the Application under s 74 of the HRSO Act, pursuant to orders that were made by Strk J on 9 December 2022, and in accordance with s 46(2)(a) of the HRSO Act.
Volume 3 of the BoM also included a psychological report by Ms Cinzia Zuin dated 8 September 2005, which was prepared for the purposes of consideration for parole while Mr Coyne was serving a previous custodial sentence.
The State also adduced oral evidence from Ms Stagg, Dr Wynn Owen, Dr Yewers and Ms Serrano at the hearing of the Application.
All of the above evidence was admitted at the hearing without any objection. However, Mr Coyne's counsel did submit that where documentary evidence contained hearsay evidence, and the authors of those documents had not been called to give evidence at the hearing of the Application, then it was for the court to decide what weight should appropriately be given to that evidence. I will deal with this submission later in these reasons.
Mr Coyne did not adduce any evidence at the hearing of the Application.
The law
The statutory provisions and relevant legal principles that apply in the context of applications for restriction orders made pursuant to s 35 of the HRSO Act are well known and have been referred to by this court on many occasions. The central provisions and the principles that relate to their application were helpfully summarised by Tottle J in The State of Western Australia v Clarke [No 2] [2023] WASC 53 [4]:
(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.
(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.
(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.
(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.
(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.
(h) The court must make a restriction order if it finds that the offender is a high risk serious offender.
(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.
(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.
(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.
(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.
(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.
(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. (citations omitted)
I would only add that, by operation of s 35(1), the State may only apply to this court for a restriction order in relation to a 'serious offender under custodial sentence who is not a serious offender under restriction'.
A 'serious offender under custodial sentence' is a person:
(a) who is under a custodial sentence for a serious offence; or
(b)who -
(i) is under a custodial sentence for an offence or offences other than a serious offence; and
(ii) has been under that sentence at all times since being discharged from a custodial sentence for a serious offence.[3]
[3] HRSO Act s 3.
A 'serious offender under restriction' is a person 'who is subject to a restriction order or an interim supervision order'.[4]
[4] HRSO Act s 3.
If an offender is in custody, then s 35(3) of the HRSO Act provides that an application under s 35(1) cannot be made unless there is a possibility that the offender might be released from custody within the period of one year after the application is made.
Further, the onus is on the offender to satisfy the court that he or she will substantially comply with the standard conditions of a supervision order.[5]
[5] HRSO Act s 29(2).
The Issues
The Application raises the following issues:
a)Is it open to the State to apply for a restriction order in relation to Mr Coyne?
b)Is Mr Coyne a high risk serious offender, as defined by s 7(1) of the HRSO Act?
c)If Mr Coyne is a high risk serious offender, should I make a continuing detention order pursuant to s 48(1)(a) of the HRSO Act, or should I make a supervision order pursuant to s 48(1)(b)?
I will deal with each of these issues in turn.
Is it open to the State to apply for a restriction order in relation to Mr Coyne?
As I have mentioned above, the State may make an application to the Supreme Court for a restriction order in relation to a 'serious offender under custodial sentence' who is not a 'serious offender under restriction'.[6]
[6] HRSO Act s 35(1). 'Serious offender under a custodial sentence' is defined in s 3 of the HRSO Act, and is set out at [17] above.
When the Application was filed on 1 September 2022, Mr Coyne was a 'serious offender under custodial sentence'. This is because he was then in custody serving the balance of a 3-year sentence of imprisonment that had been imposed on him by the District Court of Western Australia for the offence of robbery, [7] which was committed in circumstances of aggravation, contrary to s 392 of the Criminal Code (WA).[8]
[7] Mr Coyne was due to be released on 11 January 2023 after serving the entirety of the 3-year sentence.
[8] The term 'serious offence' is defined in s 5 of the HRSO Act as, relevantly, an offence that is specified in sch 1 div 1. The offence of robbery, contrary to s 392 of the Criminal Code, is specified in sch 1 div 1 of the HRSO Act.
The Application was made at a time when it was possible that Mr Coyne would be released from custody within the period of one year. Mr Coyne was due to be released from custody upon the expiration of his finite sentence on 11 January 2023, around four months after the Application was made on 1 September 2022.
Accordingly, it was open to the State to make the Application.
Is Mr Coyne a High Risk Serious Offender?
An offender is a high risk serious offender within the meaning of s 7(1) of the HRSO Act when a court dealing with an application for a restriction order 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 to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
The State has the onus of satisfying the court of the requirements of s 7(1).[9]
[9] HRSO Act s 7(2).
In considering whether it is satisfied that it is necessary to make a restriction order in relation to an offender, the court is required by s 7(3) of the HRSO Act to have regard to the various matters that are referred to in s 7(3)(a) - (j) of the HRSO Act.
I turn now to each of those matters, beginning with s 7(3)(g): Mr Coyne's antecedents and criminal record.
Antecedents and criminal record: s 7(3)(g)
Antecedents
Mr Coyne's antecedents are referred to in the reports of Dr Wynn Owen and Dr Yewers, although both noted that details about his personal and social history is limited as a result of a lack of information, collateral or otherwise.
Mr Coyne is 39 years of age. His parents were not in a relationship when he was conceived or born, and he was raised by his mother along with his older sister. Mr Coyne has several half-siblings. At least one of his mother's partners was violent toward her. Mr Coyne later became violent toward his mother himself, and he has been convicted of two violent offences against her. Mr Coyne's mother has since passed away, though he does not know the cause of her death nor when it happened. He has not had any relationship with his father, who has now also passed away.
When Mr Coyne was sentenced in 2020 for the offence of aggravated robbery, MacLean DCJ said the following:
I accept that you have experienced steep deprivation as a very young person through no fault of your own, that that deprivation and the hardship has marked you as a person and continues to mark you …
I do accept that you have had no relationship with either your father or any positive role model. I do accept that you [have], from a very young age, continually been exposed to violence and that that endemic violence has desensitised you to violence and normalised you to witnessing and sadly undertaking acts of violence, and I say sadly undertaking acts of violence because your criminal record is replete or full of convictions for serious violent offences.
I do accept that your mother struggled to properly care for you and this resulted in a dislocated childhood, meaning that you travelled not only from different households but from different localities and from different schools, and that you managed to complete year 9 but your education was probably limited given the punctuated exposure to education versus the frequent exposure to dangerous environments and violence.
And the gap that was presented by any capable male role model was filled by other negative peers who introduced you to drugs at a very young age, and that introduction to illicit drug use has continued to shape, mould and harm you but also to expose the community to the risk of harm.
I do accept that you've had a number of very significant personal losses and that you struggled degree from those given the unacceptable manners of those people's passing -the unknown manner of the passing in one instance - and the lack of any just outcome insofar as your sister's passing went.
I do accept that those early and enduring experiences continue to mark and frame you …
As was alluded to by MacLean DCJ, two of Mr Coyne's siblings have died; his brother passed away while in custody and his sister committed suicide. His sister's death particularly affected him, and he was mute for a period after her death.
Mr Coyne claims to have had considerable freedom as a child, which he enjoyed at the time. Mr Coyne attended school until he was expelled in year 9. He described himself as having been 'a bit of a menace' at school. He was often truant and fought with teachers and other students.
Mr Coyne has said that he began using alcohol and cannabis at the age of 12. He also abused solvents in high school, but he has said that this made him 'verbally and physically aggressive towards his siblings, so they encouraged him to use cannabis instead'. He has admitted to heavy amphetamine use and has reported that 'meth … makes [him] do crazy shit'. Unsurprisingly, he has been hospitalised with drug-induced psychosis on several occasions. Mr Coyne has reported suffering from auditory hallucinations as late as January 2023.
According to Dr Wynn Owen:
Mr Coyne has completed no alcohol treatment programs or rehabilitation in prison or in the community and has on a number of occasions declined to participate in programs offered while in prison.
Overall it appears that Mr Coyne commenced polysubstance use in his teens, that intoxication has been a factor in the majority of his serious and violent offending and drug induced psychosis, with paranoid beliefs and auditory hallucinations, was a critical factor in 2012 serious violent offending.
Mr Coyne has been consistently reported to downplay the role of substance abuse in his violent offending and to overestimate his capacity to manage his substance use on release.
Mr Coyne has no history of paid employment. He has worked several jobs while in prison but has been dismissed from those jobs due to substandard performance and his belligerent attitude.
Mr Coyne said that he had his first relationship at 15 with a girl of the same age, who became pregnant. He has given differing accounts to report writers and medical staff about the number of children that he has conceived. The Statement of Material Facts from Mr Coyne's offending for which he served a 7-year imprisonment term states that he was in a de-facto relationship with the victim 'on and off' for three and a half years leading up to the offending, though it is noted that Mr Coyne was in custody for two years during that period.
Criminal record
It is sobering to appreciate that since the age of 18 years, Mr Coyne has only spent about three years in the community. For the rest of that time until now Mr Coyne has been in custody, serving sentences for a variety of criminal offences.
Mr Coyne has an extensive criminal record. He began committing offences when he was just 13 years of age and his offending behaviour has continued unabated up until the most recent offences, which were committed in 2020.
As a juvenile, Mr Coyne committed various offences, including resisting arrest, assault, assault public officer, stealing, burglary, and weapons-related offences. As an adult, he continued to commit a wide variety of offences. Many of those offences involved acts of violence and attracted terms of imprisonment.
The State helpfully provided a chronology of Mr Coyne's 'serious and other relevant offences', which is replicated below:
| Offence | Date | Notes | Court outcome date | Sentence/ outcome |
| JUVENILE | ||||
| Assault Public Officer | 5 March 1998 | Having been told he was under arrest for another matter, COYNE punched a Police officer to the shoulder. | 24 March 1998 Perth Court | 4 months YCBO |
| Assault Public Officer | 16 March 1999 | COYNE pushed a Police officer in an attempt to get away. | 21 December 1999 Katanning | 3 months YCBO |
| 3 x Common Assault | 30 December 1999 | The victim was COYNE's brother. Following an argument, COYNE head butted the victim, before putting a bread and butter knife to the victim's throat. The victim disarmed COYNE, but COYNE then punched the victim to the face. | 26 May 2000 Katanning Children's | 6 months YCBO 70 hours |
| Assault Occasioning Bodily Harm | 21 November 2001 | The victim was COYNE's sister. Following a large family altercation at COYNE's sister's premises, COYNE was told him to leave. He became aggressive and began smashing windows around the house. The victim came outside to tell him to stop. He approached her and without warning he hit her over the head with a stubbie sized bottle. Extreme force was applied. The impact caused a laceration which required medical treatment and suturing. | 18 December 2001 Katanning | 3 months detention |
| ADULT | ||||
| 1 x Assault Occasioning Bodily Harm 2 x Assault Public Officer 1 x Threat to Kill 2 x Breach of Suspended Sentence 1 x Criminal Damage 1 x On premises without lawful excuse | 28 July 2003 | The victim was COYNE's sister. The victim told COYNE to leave the house as he had been sniffing petrol. He held a 20cm knife to the victim's throat and threatened to kill her. When she went for help, COYNE also threatened the neighbours. As the victim was walking down the street, COYNE hit her over the head with a ceramic mug which caused a cut. When the police attended to arrest COYNE, he was found on the roof of a neighbour's garage and he threw a brick at the front windscreen of a police car. He then threw a brick at the side window of the car which caused a police officer to be struck with glass and threw a brick at another police officer. | 8 October 2003 Perth | Total: 4 years imprisonment |
| 30 March 2005 | Released on parole | |||
| 2 x Aggravated Assault Occasioning Bodily Harm 1 x Assault | 4 March 2007 | Following an argument resulting from COYNE's dog allegedly killing a family cat, COYNE kicked his nine-year-old brother with force once to his stomach and he was forced to the ground. COYNE then confronted his mother, who was holding a five‑month-old baby, with a shovel and struck her three to four times to the back, arm, and head. He then dropped the shovel and punched the victim four to five times to the head. The victim received a broken left arm and swelling and tenderness to her head. The five month-old baby received a glancing blow from the shovel, which resulted in a bruise and minor swelling. | 9 March 2007 Perth | Total: 12 months imprisonment |
| 7 September 2007 | Released on parole | |||
| 3 x Possessed an article with intent to injure (disable) | 23 November 2008 | When located by Police who wished to speak to him in relation to another matter, COYNE was walking along a footpath, sniffing petrol and carrying a bag from which the blade of a knife and a wooden handle could be seen. When called upon to place his hands on the Police vehicle bonnet, COYNE attempted to reach for the items. Police immediately warned him to cease his action but he refused to do so and was subdued and restrained by the use of a taser. A 18cm bladed knife and a wooden handled hammer were located in the bag. Another metal blade approximately 25 cms in length was located in COYNE's jeans. | 28 November 2008 Rockingham | $1500 fine (global) |
| Possessed a controlled weapon in a manner likely to cause fear | 31 December 2008 | COYNE was walking in the street with a machete with a 45cm blade, in plain sight of the public. COYNE's explanation was that he had the machete for self defence. | 13 February 2009 Rockingham | $400 fine |
| Unlawful Act with intent to harm (endangering life, health or safety of any person) - s 304(2)(b) Code (serious offence) Aggravated Bodily Harm | 10 July 2009 | The victim was COYNE's female partner and it was noted that a child was present at the time of the offences. COYNE became involved in an argument with the victim and he assaulted her by striking her to the mouth and head with her fist, kicking the victim, and behaving aggressively towards her. COYNE then took an axe and struck her with the blunt edge of the axe. | 23 November 2009 Albany | Total: 18 months imprisonment |
| Aggravated Unlawful Assault and thereby did Bodily Harm | 15 December 2011 | The victim was COYNE's mother. COYNE grabbed a metal stool and hit the victim, causing a laceration above her right eye. He continued to hit his mother and fractured her left hand. | 22 December 2011 Rockingham Magistrates Court | 8 months imprisonment |
| 2 x Aggravated Sexual Penetration without Consent -s 326 Code (serious offence) 1 x (serious offence) 4 x Assault Bodily Harm | 9 November 2012 | The victim was COYNE's female partner. COYNE threatened, assaulted, and intimidated the victim for several hours and she was not able to leave during the offences. He repeatedly punched her, beat her with a wrench and hit her with an electrical cord. COYNE also had the victim perform oral sex on him and engage in sexual intercourse, which the victim complied with out of fear of further violence. | 8 April 2013 Albany District Court | Total: 7 years imprisonment |
| November 2019 | Released on Post Sentence Supervision Order | |||
| Aggravated Robbery -s 392(d) Code (serious offence) | 12 January 2020 | COYNE entered a liquor store prior to opening hours and selected alcohol from the shelves. The 62‑year-old male victim, who worked at the store, entered to tell COYNE that the liquor store was not open for trading as it was too early in the morning. COYNE walked past the victim, but the victim stood in front of him and put his hands up to stop him. COYNE kicked the victim to the groin and pushed him, which forced the victim backwards into the entrance door. COYNE continued to leave the store and the victim followed him out. COYNE then struck the victim to the face using the cans of alcohol which caused his nose to bleed. The victim experienced pain and a broken nose, which caused ongoing pain and discomfort | 12 June 2020 Perth | 3 years imprisonment |
| Assault Public Officer | 19 January 2020 | Having been escorted to Albany Hospital from prison following complaints of chest pains, COYNE began acting aggressively to prison officers and medical staff, swearing, yelling and threatening to knee the officers in the head. Whilst being placed in a wheel chair, COYNE lent over and bit a prison officer on the hand. The victim was wearing gloves and the bite did not break the skin. | 10 July 2020 Perth Magistrates Court | 7 months imprisonment (concurrent) |
Mr Coyne has spent over 17 years of his adult life in prison. In that time, he has been found guilty of several prison charges for offences contrary to relevant provisions of the Prisons Act 1981 (WA) (Prisons Act). These include assaulting other prisoners, and two occasions on which he assaulted a nursing officer. He has also been found guilty on several occasions of using insulting or threatening language or behaving in an insulting or threatening manner, using a drug other than as prescribed, failing to submit a bodily sample, damaging property, and insubordination or misconduct.
The evidence relating to Mr Coyne's behaviour in custody since 2013 shows a pattern of aggressive behaviour toward prison staff, both physically and verbally, as well as frequent misconduct, insubordination and disobedience.
According to Ms Serrano's report, Mr Coyne has incurred several incident reports while in custody for his most recent offences, and even while detained under the interim detention order imposed by Strk J on 9 December 2022.
On 18 January 2020, just over one week after he was arrested for his most recent offence, and while he was being held at the Albany Regional Prison, Mr Coyne told a female prison officer that Albany was a small town and he knew her street name, saying he was 'going to fucken get [her] and [her] daughters'. He correctly named the officer's child and their occupation, and the officer believed it was a death threat. The threat was made after he was asked to do a routine task.
Later that same day, Mr Coyne was taken to hospital for treatment for chest pains. A decision was made to bring him back to the prison after he became aggressive towards hospital staff. While prison officers were trying to restrain him so that he could be put into an escort van, Mr Coyne bit one of the prison officers on the hand. It was this incident that led to Mr Coyne being charged with assaulting a public officer, and being sentenced on 10 July 2020 to a concurrent term of 7 months imprisonment.
Ms Serrano's report also refers to a significant number of other incidents in which Mr Coyne has assaulted other prisoners, and one occasion on which he assaulted a female prison nurse by using his open palm to hit her on the buttock. The other incidents involve what might be described as belligerent behaviour, but they also involve the possession of prohibited items and substances.[10]
[10] According to Ms Serrano, on 6 March 2023 Mr Coyne was found in possession of a suspected alcoholic brew. Mr Coyne has been charged with an offence contrary to the Prisons Act, but it is not clear based on the evidence before me whether that charge has been proved.
The last incident recorded by Ms Serrano was on 25 March 2023, where it is alleged that Mr Coyne was involved in a fight with another prisoner.
Reports prepared under s 74 of the HRSO Act, and the extent to which Mr Coyne cooperated in the examination required by that section: s 7(3)(a)
As I have already mentioned, on 9 December 2022 Strk J made orders pursuant to s 46(2)(a) of the HRSO Act requiring Mr Coyne to undergo examination by a psychiatrist and psychologist. The orders required Mr Coyne to be examined by Dr Peter Wynn Owen, a consultant forensic psychiatrist, and Dr Tara Yewers, a counselling psychologist, and for each to provide a report in accordance with s 74 of the HRSO Act.
Both Dr Wynn Owen and Dr Yewers provided reports, which formed part of Volume 3 of the BoM. Both also gave oral evidence at the hearing of the Application, and were cross-examined by Mr Coyne's counsel.
Psychiatric Report
Dr Wynn Owen is a medical practitioner who has worked in a broad range of health settings. He has experience in forensic psychiatry and, in addition to a private forensic psychiatric practice, he has a part‑time consultant appointment with the Western Australian State Forensic Mental Health Service.
He has undertaken accredited training in risk assessment of violent and sexually violent individuals in clinical and custodial settings. Dr Wynn Owen has also provided reports and expert testimony to Western Australian courts for more than 19 years, including in proceedings brought under the Dangerous Sexual Offenders Act 2006 (WA) (repealed) and, subsequently, the HRSO Act.
Dr Wynn Owen prepared his report based upon a brief interaction with Mr Coyne at Casuarina Prison, as well as communications with Ms Serrano. He was also provided with a copy of the BoM, and the decision of Strk J in Coyne.
Before providing a summary of Dr Wynn Owen's report, it is necessary to say something about the extent to which Mr Coyne cooperated with the required examination.
According to Dr Wynn Owen, Mr Coyne presented for the first interview in the official visits area at Casuarina Prison. However, while he was polite during introductions and clarification of the purpose of the interview, Mr Coyne said that he did not wish to proceed with the examination. He told Dr Wynn Owen that his experience was that the assessment would focus on his past, which in his view was irrelevant. He also said that as he had completed the imposed sentence it was not right to detain him beyond that term. He then stood and indicated that he was leaving.
Before leaving, Mr Coyne was asked whether he would remain if questioning were to focus on his current situation and on his future. However, he declined and told Dr Wynn Owen that there was no point in returning for a second scheduled interview because he would not attend.
After Mr Coyne terminated the interview Dr Wynn Owen contacted Mr Coyne's lawyer, Ms Fedele. He told her what had occurred with the hope that she might be able to encourage Mr Coyne to participate in a second interview. However, Mr Coyne did not attend the second interview. When Dr Wynn Owen attended for the second interview, he was told by prison officers that Mr Coyne had attended but had indicated that he did not wish to participate before returning to his unit.
As Mr Coyne refused to participate in an assessment, Dr Wynn Owen noted in his report that it was not possible:
a.to undertake detailed psychiatric assessment;
b.to question him about the personal and situational context and circumstances of offending;
c.to ascertain his current attitudes to past offending and victims of past offending;
d.to enquire into his current understanding of his risks for reoffending in future;
e.to ask about his past and current sexual and violent attitudes and ideation;
f.to discuss his experience of and learning from past criminogenic interventions;
g.to clarify his understanding of and willingness to comply with Supervision Order conditions;
h.to establish his willingness and consider his motivation to engagement in any future criminogenic intervention;
i.to ascertain his current social network and circumstances; and
j.to discuss his plans for the future
As a result, Dr Wynn Owen said that '[t]hese significant limitations should be taken into account when considering the overall findings of this report'.
Notwithstanding Mr Coyne's refusal to participate in assessment interviews, Dr Wynn Owen was still able to provide the court with a written report and oral evidence regarding Mr Coyne's pattern of offending, risk factors, and treatment recommendations. In that report, Dr Wynn Owen set out a summary of Mr Coyne's background, including his personal, social and occupational history, his criminal history, his medical and psychiatric history, his previous use of alcohol and illicit substances, his behaviour in prison, and his previous engagement in criminogenic programs.
Although a mental state examination was not able to be completed given the short time that Dr Wynn Owen was able to spend with Mr Coyne, he was prepared to conclude that Mr Coyne was suffering from a substance use disorder that was in enforced remission, and from an antisocial personality disorder.
Dr Wynn Owen carried out a risk assessment utilising several risk assessment tools, namely the Violence Risk Appraisal Guide (VRAG‑R), the Historical, Clinical and Risk Management 20 (HCR‑20 V3), the Risk for Sexual Violence Protocol (RSVP) and Static‑99R. He noted in his report that '[r]eoffending risk cannot be accurately predicted however the most reliable indicator of future behaviour is past behaviour, particularly if there is an established and enduring pattern of behaviour or pattern of behaviours'.
As Mr Coyne is an indigenous Australian, Dr Wynn Owen drew attention to the following matters:
The risk assessment tools used in this risk assessment (Static-99R (2016); VRAG-R; HCR-20 V3; RSVP) were not developed specifically for use with indigenous Australian offenders. With limited or absent validation research within that specific population the results should be considered critically however it should be noted that the core factors of offending history, antisocial behaviours and personality disorder, presence or absence of mental illness and substance abuse have been consistently shown to have high relevance across all cultures. However, it should also be noted that indigenous Australian offenders tend to attract consistently higher scores on risk assessment tools than non-indigenous offenders and the contribution of inter-generational trauma, social disadvantage and systemic racism should be taken into consideration when assessing risk assessment tool scores/findings.
In relation to VRAG-R, Dr Wynne Owen said that:
Mr Coyne's score on the VRAG-R was in the highest risk category (known as Bin 9). Offenders with the same score as Mr Coyne on release had a 76% likelihood of committing a new violent offence within 5 years of release and an 87% likelihood of committing a new violent offence within 12 years. This means, for example, that of 100 prisoners with the same score as Mr Coyne at release 76 would be convicted of a new violent offence within 5 years. This likelihood estimate is a group estimate and as such is not specific to Mr Coyne, it should be considered in association with any dynamic risk and/or protective factors present.
In relation to Static-99R, he found that Mr Coyne's score was in the 'Above Average Risk' range, but again urged caution, noting that '[a]s with VRAG-R above the Static-99R score is a group likelihood, dynamic factors should also be considered when considering Mr Coyne's specific likelihood of reoffending'.
The HCR-20 is a Structured Professional Guideline which serves as an assessment, monitoring and management tool. It considers the presence of a range of historical and dynamic risk factors for future violence. Using this tool, Dr Wynn Owen identified the presence of several risk factors, and provided a summary formulation of violence risk, which was in the following terms:
Mr Coyne was raised by his mother and her relatives as his father left his mother before he was born. He witnessed domestic violence towards his mother by her partners, and at times lived with a variety of other family members. He appears to have formed no significant adult attachments or had any prosocial role models. His relationship with his mother was volatile and his behaviour toward her was at times extremely violent. Violence toward others started at a young age and his family victims included his sister and his younger brother as well as his mother.
He commenced substance abuse (petrol sniffing, alcohol, cannabis) at a young age which contributed to the failure to develop emotional self-management and accentuation of impulsivity and aggression when intoxicated.
Early normalisation of violence (and in particular violence towards women), evolving violent and aggressive attitudes and substance abuse resulted in a cycle of violence leading to imprisonment, release, return to substance abuse and further violence which has been sustained.
Eventually ongoing polysubstance use resulted in psychosis, manifesting as auditory hallucinations and persecutory paranoid thinking. These symptoms have been intermittently recurrent since first appearing in 2010.
Mr Coyne has never worked and his life experience as an adult is prison, he has not developed skills and resources to manage in the community, institutionalisation further contributes to his risk on return to the community.
Mr Coyne's current violence risk is related to antisocial personality with associated antisocial including violent attitudes and substance use in the context of an institutionalised offender with limited coping resources, low frustration tolerance, poor problem solving and a lack of pro-social peers. Challenge and conflict are potential triggers to violent behaviour, particularly if Mr Coyne is intoxicated.
Acute mental illness will elevate an already high risk of violent offending.
Against this background, Dr Wynn Owen concluded that Mr Coyne's violent behaviour is most likely to be associated with conflict, substance abuse and intoxication, as well as poor management of negative emotions. In light of his past offending, violence is most likely to occur in the context of a domestic relationship. However, violence could also be triggered by a family dispute, or could even be an impulsive act when Mr Coyne feels thwarted or feels that his needs are not being met. It is of some concern that Dr Wynn Owen considered:
The violence is likely to involve the use of weapons and to result in significant physical and psychological harm to the victim with both immediate and long-term adverse consequences.
Dr Wynn Owen provided the following summary:
On the basis of the clinical assessment and application of the risk assessment tools VRAG-R, Static 99R, RSVP and HCR-20 it is my opinion that Mr Coyne presents a high risk of committing a serious violence offence in the future if not subject to a restriction order.
This opinion is based on his history of violent offending, high VRAG-R score, the present of Antisocial Personality Disorder and a range of dynamic risk factors identified by the HCR-20 including substance abuse, violent attitudes, major mental illness and unwillingness to participate in treatment.
As Mr Coyne has engaged in no treatment in this term of imprisonment his risk of serious offending if released now is the same as when released in November 2019 shortly prior to his index offending.
Dr Wynn Owen also gave oral evidence at the hearing, including the following:
Thank you, Doctor. If I can ask you to turn to page 935, please. In paragraph 191 you address recent problems with insight, and this is within your assessment using the ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ HCR-20 tool. And the final sentence of paragraph 191 reads:
Mr Coyne has continued to decline treatment programs to address violent offending and substance use, suggesting he does not see a need for such treatment to reduce his likelihood of future violent offending.
Now, Doctor, what is the significance of that to management of his risk in the future?‑‑‑There's two parts. One is that treatment programs of this sort have been clearly shown at a group level that if people complete a treatment program, they're less likely to reoffend. So there is relevance to their violent offending and substance use, and, if they have a history of violent offending, if they do these two courses, they are more -they are less likely to reoffend in the future. The other problem that it presents -so risk is unchanged, essentially, if somebody doesn't address the issues there. The other problem with not necessarily having insight into and understanding of the situation or context -emotional context of your offending and not seeing yourself as a risk in the future is that you do not necessarily see the importance of supervision and monitoring, so your attitudes towards and compliance with supervision and monitoring are very different to somebody who is understanding and motivated. So realises that there are certain problems within themselves or issues within themselves that need external assistance to manage. So this is of concern. I wasn't able to question Mr Coyne's insight, however. The brief conversation we had when I initially suggested we might address the past, Mr Coyne was quite clear that the past was not of relevance. And quite quickly in that first interview things sort of deteriorated from there, and Mr Coyne explained that that had been his experience with other assessing professionals, a man can change and that I shouldn't follow that path. So I wasn't able to ask specific questions of Mr Coyne about his current insight.
Okay. So going on from that, Doctor, given that attitude to treatment and that attitude to -or that refusal to discuss the past criminogenic factors ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ and also given his prison behaviour ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ of late, Doctor, in your opinion, how likely is it that Mr Coyne is going to comply with directions given to him via CCO if he's released on a supervision order?‑‑‑It's as likely as his previous compliance with conditions in the community, which is very -very poor. So it's unlikely that he will fully comply with conditions of a CCO.
Thank you.
Vandongen J: Why do you say that Dr Wynn Owen?‑‑‑Because past behaviour is absolutely the best indicator of future behaviour, and that behaviour patterns from the past that have been repeated are even more likely to be repeated in the future. So we're not looking at just one instance of not complying with conditions or not complying with the rules and regulations of the prison environment. We're looking at long‑term almost consistent pattern of that behaviour from adolescence through to the Mr Coyne that we see now. All of that, of course, is historical. I was not able to question Mr Coyne about his willingness to comply or his interests in complying or his understanding of why he should. So this is entirely based on that pattern of behaviour in the past, your Honour.
Mr McDonnell: Are there recent indicators that have bolstered your opinion in that regard?‑‑‑Well, certainly Mr Coyne's behaviour in the prison environment, both in relation to his aggressive behaviours and in relation to such things as being found to be manufacturing alcohol as recently as March of this year, suggests ongoing non-compliance with supervision.
When asked to clarify his opinion that Mr Coyne presents a high risk of committing a serious violent offence in the future if not subject to a restriction order, Dr Wynn Owen confirmed that he also presents as an average or moderate risk of committing a future sexual offence. Specifically, he said:
so I don't believe on the basis of that one [sexual] offence one can predict that a future serious offence would be a sexual offence, notwithstanding that many sexual offences are serious… It seems much more likely to me, on the pattern of very high frequency of past violent behaviour with a relatively high number of serious violent offences, particularly when you take into account the relatively short time that Mr Coyne has had in the community free to commit those offences -around three years in the last 17 to 20 -it seems much more likely, with a high frequency of general violent offending, that there is going to be also the very high risk of serious offending as a component of that violent offending.
At the end of his examination in chief, I asked Dr Wynn Owen some further questions. He gave the following evidence which, in my view, crystalised his opinions, having regard to some of the limitations to the assessment he had carried out:
Is it -and I don't want to over simplify it, but are you saying that in the absence of a track record of treatment which has seen gains being made in terms of reduction of risk, in the absence of being able to understand his current position cognitively, ADHD and those types of things, you fall back on the history and the history is a pattern of violent offending?
Yes, the pattern is -is of not learning from previous mistakes, it's of no problem solving, it's of not being able to control impulses in a way that suggests, because of the seriousness and the nature -and the proximity of those affected, in terms of immediate family, multiple times, that there may be some underlying conditions that are making it more likely that those types of things occur because it's fairly unique even in my experience, and I have seen a lot of violent offending histories, that may be making it more difficult and that may also be contributing to his resistance to treatment. I don't think I can say that he is failing treatment, it's more that he has resisted it. The one program he has engaged in, he really didn't have an opportunity to gain from that and he has not been engaged in anything else, so I don't know his capacity. I'm recommending that should he be offered treatment, a group program would be inappropriate treatment, if he is willing to engage in it, because I don't think we have trialed group therapy enough yet, but I do believe that there may be some other barriers to this than just Mr Coyne's conscious resistance to this legislation to assessment and so on.
In cross-examination, Dr Wynn Owen confirmed that when he gave his opinion that Mr Coyne presents a high risk of committing a serious violent offence, that he used the word 'serious' to specifically refer to an offence that is defined as a 'serious offence' under the HRSO Act.
Dr Wynn Owen also agreed that other than his most recent serious offence, the aggravated robbery, all of Mr Coyne's previous serious offences have been committed against intimate partners or family members. He said that it was possible, based on past behaviour being the best indicator of likely future behaviour, that the risk Mr Coyne presents is more in respect of his associations and family than the general public.
In relation to the risk of sexual offending, Dr Wynn Owen agreed that Mr Coyne's previous sexual offences were committed against his partner at the time. However, he did not necessarily agree that this meant that Mr Coyne did not present as a risk to females in general.
Dr Wynn Owen accepted that his assessment was based predominantly on collateral material, and that he did not have the opportunity of interviewing Mr Coyne or of speaking with the authors of any of the reports contained in the BoM. He noted, however, that he could see a degree of consistency in the reporting about Mr Coyne, including the onset of substance abuse behaviour. He said that it was the consistency in the reporting, rather than the absolute detail of one or other specific event, that indicated the high likelihood that there was a pattern in Mr Coyne's behaviour.
Questions were asked in cross-examination about Mr Coyne's engagement with treatment options in the past. Dr Wynn Owen largely confirmed what was evident in the materials about Mr Coyne's history, namely that there had been minimal engagement. He also noted that Mr Coyne had recently requested to do a violent offender program, commenting that it was entirely appropriate that Mr Coyne should be assisted to complete that program. Of course, as Dr Wynn Owen said, it is up to Mr Coyne whether he follows through with the request because it is his decision as to whether he receives effective treatment.
Dr Wynn Owen was cross-examined about the limitations to his report. When asked whether his risk assessment using the VRAG‑R assessment tool was compromised because it was based only on collateral information, Dr Wynn Owen gave the following evidence:
And that that would have been compromised or is that really just about historical factors?---No, the risk tool that you will see has not been used here, which I felt was compromised, is the PCL-R because I wasn't able to interview Mr Coyne, and PCL-R expects understanding of the interaction of an individual over a period of time and the quality of that interaction to be able to make comment, particularly on the interpersonal and affective facets and factors. I felt that too many of those had been omitted to then complete a PCL-R at all.
That's the psychopathy report?---That's the - - -
The psychopathy assessment?--- - - - Psychopathy Checklist-Revised.
Yes?---Whereas the Static-99 and the VRAG-R are based entirely on historical information.
Yes?---And, particularly, the Static relies heavily on such things as a police criminal record, which I would regard as being factual.
Yes?---And I'm required to regard as being factual - - -
Yes?--- - - - as part of this process. And, similarly, the VRAG contains a lot of factual information, and a number of scales are there around such things as non-violent crime and so on, but, again, they rely on the police criminal record.
Yes?---So the majority of that tool is -yes, it's collateral, but it is collateral that is regarded as fact.
The limitations caused by Mr Coyne's refusal to participate in the assessment process were further explained by Dr Wynn Owen in cross‑examination:
Now, because you couldn't extend your interview in the way that you had hoped because Mr Coyne's - - -?---Yes.
- - - interactions, you weren't able to consider it in association with the dynamic risk or the protective factors?---This is one of the limitations of the report.
Yes?---So Mr Coyne was not able to respond in terms of his current thinking about his past offending and his attitude towards it, his current understanding about the context of risk, his current plans to address risk. These are all sort of fairly crucial issues as well as not being able to really talk to him about what his attitude towards professional supports was, what personal supports he had currently and was hoping to have and so on. So I wasn't able to explore protective factors or risk factors specifically with Mr Coyne at all.
No, no it's not a criticism. It's not a criticism?---No, I understand.
Yes?---I'm just explaining.
Yes?---That's what -this is what I'm saying in this.
Yes?---So normally one would then -would look at the score, would understand that if it said 60/40 that 60 per cent of people may well reoffend -will reoffend, but 40 won't. How do I understand better who is in each of those? Well, it's the protective and risk factors that enable us to have a better understanding.
Yes?---As well as to help us to guide treatment intervention and to design high-risk scenario type conditions for supervision.
I'm just asking, I'm not sure if it does, but because you were not able to include those factors, does that undermine, perhaps, the score on that particular assessment or not?---Doesn't change it at all.
Okay?---It's an actuarial tool. It basically says this is the risk of the eight or nine thousand people that we have considered who left prison with the same score. They're not the same person by any means. They may have a completely different background. However, that is the risk.
Yes?---And the basis of them -there are some core historical pieces of information that have been shown to be quite consistently contributing to higher risk across the world in every Indigenous and non-Indigenous group, and they are things like past offending, severity of past offending, general criminal behaviour in addition to specific violent or sexually violent behaviour, etcetera. So the core factors of most of these actuarial tools are very similar and have been consistently applied to Canadian Indigenous populations, Australian Indigenous populations as well as sort of general other populations, African populations, etcetera. So it is a useful instrument, but as a standalone score, it is not particularly helpful to us other than to say potentially high risk, what are the dynamic factors here that vary that.
Thank you. And you've just explained that the figures come from offenders?---Yes.
So I'm just confirming that we're not talking about the general population. They are offenders, the cohort?---That's right.
And you've given -well, you've said that offenders with the same score as Mr Coyne upon release for committing a new violence within five years are 76 per cent likelihood?---Yes.
That's at paragraph 141?---And that's not a serious violent offence. So that's not a serious offence under the Act. That is any violent offence.
Yes. Yes. So we don't know whether Mr Coyne is going to be in that particular percentage. He could be in the other - - -?---Don't know whether he's going to be in the minority that don't or the majority who do. No, we don't.
That's right. Because he could very well be in the group that doesn't reoffend?---Absolutely possible, yes.
You also undertook a Static-99 test?---Yes.
And I think the name of the test -assessment tool gives us a hint that it's about historical factors?---That's right, yes.
And it's looking back?---Yes. The only things that vary are if somebody enters a relationship and they haven't previously been in a relationship for two years or more or as their age changes. Other things are not unless they are acquire new offences and have not already maxed out on the scoring in relation to either sexual offending or past court appearances.
And, similarly, the HCR-20, the Historical, Clinical - - -?---Yes.
- - - and Risk Management, certainly in respect of the factors that are historical, you didn't need to speak to -you didn't need to get any more information really from Mr Coyne, did you?---No. That's entirely based on collateral but the HCR-20 then looks at that, then looks at what's been happening recently and then what future issues might be predictable and this is where the interview itself becomes more important, both understanding the context of anything that's occurred recently, and I wasn't able to question Mr Coyne about that, and then to have specific questioning about future plans - - -
Yes?--- - - - future approaches to situations, understanding of them, wasn't to really - - -
Sorry, that's really the C and the R, the clinical and the risk management?---Correct.
Dr Wynn Owen was asked about the terms of a draft supervision order, with a view to suggesting that the risk Mr Coyne presents could be adequately managed in the community. My understanding of Dr Wynn Owen's evidence in that regard is that while there are conditions that could be imposed that might address the relevant risk, there are other issues that need to be contemplated before a supervision order might be considered appropriate. Dr Wynn Owen referred to the lack of suitable accommodation, and raised the issue of whether releasing Mr Coyne at this stage would merely set him up to fail because his pattern of offending is currently fixed and established.
Although Dr Wynn Owen accepted that there was a high level of intervention provided for in the draft conditions, which were all designed to reduce risk, and that there would be supervision and treatment, he noted that Mr Coyne would need to be both motivated to engage and compliant with the conditions, otherwise it would be of no value.
Towards the end of Dr Wynn Owen's cross-examination, he was asked questions about the necessity for Mr Coyne to participate in a violent offender program in order to address his risk of committing further violent offences, including violent serious offences. Dr Wynn Owen said that Mr Coyne needs an intensive program, and there are no intensive programs available in the community.
He confirmed that the violent offender intensive program is a prison-based program where the group live together and have daily meetings over a long period of time, and that it is this interaction and living together, as well as being face-to-face with the facilitators, that is all part of the benefit gained from the program. Dr Wynn Owen said that, looking at Mr Coyne's history and the frequency of his offending, it was absolutely critical that he undertakes that sort of intensive treatment. He also said that an intensive program with a high proportion of fellow indigenous offenders would be the best on balance, but he could not guarantee that this might occur.
Psychological Report
Dr Yewers examined Mr Coyne on 24 March 2023 in an appointment lasting around two hours. She stated in her report that Mr Coyne initially presented as 'ostensibly genial'. However, she described him as providing a narrative that was vague, tangential, and rambling. She said that he was difficult to redirect and that he often declined to elaborate or clarify his statements. He refused to discuss topics relating to his offending, past relationships, and sexual history. He said that questions in relation to his past offending were an 'invasion of his privacy' that 'did not warrant discussion'.
Mr Coyne ultimately terminated the interview with Dr Yewers when the subject matter shifted to discussion of the past. He also informed Dr Yewers that he did not want to continue the assessment later. Although Ms Serrano tried to make phone contact with Mr Coyne in an effort to provide him with the opportunity to complete the assessment, he declined to speak with her.
In her report, Dr Yewers set out details relating to Mr Coyne's family background, his relationships and sexual history, his education and employment, his issues surrounding alcohol and substance use, his emotional management, and his physical and psychological health. She also described his criminal history, his offence-specific treatment and intervention together with his account of that treatment history, his prison, parole and community supervision behaviour, and his release plans.
According to Dr Yewers, Mr Coyne is a 37-year-old man with an extensive criminal history that includes violent and sexual offences. His earlier circumstances include exposure to violence, an unstable and itinerant living situation, an introduction to drugs at a young age, family and peers who were a negative influence, disengagement from schooling, and early criminal behaviour. In his adult life, Mr Coyne has persistently misused alcohol and drugs, he has been unemployed, he has continued to behave in a criminal way, and he has been incarcerated for lengthy periods. She noted that:
Violence and aggression have long featured in Mr Coyne's behavioural repertoire, with his first violent offence committed when he was 13 years old. His violence has persisted into his adult years, and he has continued to accumulate violent criminal convictions. His violent and aggressive behaviour has also manifested in the prison setting. Notable in several of Mr Coyne's convictions is violence that was excessive, sustained, and directed at vulnerable persons, including his young brother, his mother (who was holding a baby), and his girlfriend. Mr Coyne's use of weapons exacerbated the level of violence and worsened injuries he inflicted.
Dr Yewers is of the view that drug and alcohol intoxication, emotional dysregulation, reactivity and impulsivity, antisocial attitudes that manifest as a disregard for lawful behaviour, callousness, hostility, and an indifference to others' welfare and wellbeing, are all implicated in Mr Coyne's violence. She also says that his mental illness is relevant, noting that he has been acutely psychotic on some of the occasions that he perpetrated violence, and that his auditory hallucinations and paranoia are direct contributors to his behaviour.
Dr Yewers says that it is difficult to reach a clear view about Mr Coyne's sexual offending because of the lack of collateral information and because he has refused to discuss this or indeed any other offence. She opines that the sexual offending did not appear to have been driven by sexual deviancy, although this cannot be completely ruled out. However, in her view, his sexual offending appears to have been driven by the same sort of factors that drive his violent behaviour.
In her report, Dr Yewers also mentioned that Mr Coyne has had very limited treatment for his criminogenic needs. Further, she noted that:
Mr Coyne stated in the current assessment that he would be willing to undertake a [violent offender treatment program] in the future, reasoning that it would look favourable, and he may learn from it. Notwithstanding, he does not appear to have intrinsic motivation to undertake treatment or address his criminogenic issues. Given his behaviour in the current assessment, particularly his hostility and reluctance to discuss matters that are relevant to his offending, it is likely that he has responsivity issues that will affect both his engagement and capacity to benefit from treatment.
In relation to Mr Coyne's plans should he be released into the community, Dr Yewers said that none of his plans are 'currently developed to a stage where he could enact them if released'. She also said:
In terms of risk and risk management, Mr Coyne made varying comments, such as he has changed and his offending is only of historical relevance, which indicate that he is heedless and uninformed both about the presence of risk and how he might moderate it.
Dr Yewers assessed Mr Coyne using the Violence Risk Scale (VRS), Violence Risk Scale - Sexual Offender Version (VRS-SO), Psychopathy Checklist - Revised (PCL-R) and Static-99R tests, noting that she has exercised caution in using those instruments as they have not been normed for use with an indigenous Australian population. The use of those tools in assessing the risk of Mr Coyne committing a serious offence was not challenged in cross-examination.
Dr Yewers provided the following summary of her conclusions arising out of her use of those tools:
To summarise, Mr Coyne's VRS score, that included consideration of both static and dynamic violence risk factors, placed him in the 'high' risk level for a future violent offence.
Mr Coyne's Static-99R score placed him in the Risk Level Iva Category (above average risk) for recidivism based on static risk factors at the time of his release in 2017 to his current Order. Dynamic factors, as measured by the VRS-SO, placed Mr Coyne in the Risk Level Ivb Category (well above average risk). When Mr Coyne's Static-99R and VRS-SO dynamic scores are combined, he falls into the Risk Level Ivb Category (well above average risk) for future sexual reoffence.
The VRS-SO risk assessment was limited by a paucity of information available about Mr Coyne's sexual behaviour/functioning in either collateral documentation or via self-report. Currently, there is no compelling evidence that sexual deviance is relevant to Mr Coyne's sexual offending, however some uncertainty remains due to the lack of information. It is noteworthy that the factors relevant to his sexual offending mirror those that characterise his violent offences.
Mr Coyne's PCL-R score fell in the 'high' range, indicating a likeness to the construct of psychopathy. PCL-R scores are moderately correlated with general, violent, and sexual recidivism, noting that its relationship with sexual recidivism is strongest when combined with sexual deviance.
The risk scales administered in the current assessment have been applied with cognisance of the dearth of research around the applicability of the normative data to Indigenous Australians. However, the dynamic factors assessed by the VRS and VRS-SO are related to and predictive of risk. The presence of a high number of these for Mr Coyne suggests that his estimated risk of recidivism, at this time, is a fair representation. (emphasis in original)
Based on her assessment, Dr Yewers formed the view that the most likely risk scenario for Mr Coyne to commit a violent offence is that he relapses to drug and alcohol use, which may occur via contact with antisocial family or peers. Under these circumstances:
If Mr Coyne is affronted or angered, it could rapidly escalate to a dis-regulated state. He is likely to target the individual who he perceives to have upset, thwarted, or challenged him, regardless of the individual's vulnerability (e.g., by age, stature, or gender). Mr Coyne may physically assault the victim by punching, striking, or kicking him/her. A sexual assault is also a possibility particularly if the victim is a partner. He is equally likely to use a weapon which he may be carrying or could be improvised from an everyday object. If he is under the influence of substances or acutely psychotic, his agitation, reactivity and unpredictability will be exacerbated. In this state, his recklessness and disregard for others will also increase. His violence may be sustained and excessive.
The severity and extent of the violence perpetrated will be affected by the level of Mr Coyne's dysregulation, vulnerability of the victim, availability of avenues for the victim to escape, presence of bystanders to intervene, and use of a weapon.
Dr Yewers provided the following summary and recommendations:[11]
Mr Coyne is a 37-year-old man with a significant criminal history, including violent and sexual offences. Four of his convictions meet the threshold for a 'serious offence' under s 5 of the HRSO Act. Mr Coyne is currently assessed as 'high' risk for violent recidivism and 'well above average' risk for sexual reoffence. He has undertaken very limited treatment and his criminogenic needs related to violence have not been addressed at all. He has numerously declined to engage in recommended treatment programs, and he was removed from a Pathways program partway through. Some of the chronic factors that underlie Mr Coyne's behaviour, namely antisocial personality and the affective/interpersonal features of psychopathy, also impact on his amenability and responsivity to treatment (and supervision).
There are currently no identifiable factors that would substantially moderate Mr Coyne's risk. He has a high density of outstanding treatment needs, low insight into his risk, lacks a comprehensive risk management plan, and has no concrete and actionable plans for reintegration into the community. Further, Mr Coyne's attitude and behaviour during the current assessment indicate that he is likely to be difficult to engage productively in the supervision process should he be released to the community.
[11] BoM Vol 3 980.
Finally, Dr Yewers expressed an opinion that Mr Coyne currently presents with a high risk of committing a 'serious offence' if not subject to a restriction order for the purposes of s 48 of the HRSO Act.
In her evidence at the hearing of the Application, Dr Yewers was asked to elaborate on specific topics in her report. One of the topics was Mr Coyne's refusal to discuss his past. Dr Yewers gave the following evidence about that issue:
Mr McDonnell: And indeed, throughout your report, you've referred to Mr Coyne's refusal to discuss criminogenic areas, citing them as 'irrelevant'. Doctor, in your opinion, what impact is that likely to have on effectively supervising him in the community on a supervision order?
Dr Yewers: I think it's important that he is able to discuss criminogenic relevant -criminogenically relevant areas and they're issues that will be raised and need to be managed within supervision. It also speaks to his ability to self-manage as well if he doesn't acknowledge, you know, that there are areas that require change. Yes. He -it's more difficult for him to have plans in place to mitigate those.
Dr Yewers was also asked about the chronic factors underlying Mr Coyne's behaviour:
Mr McDonnell: Thank you, Doctor. Page 980 please. You note in paragraph 155, in the last sentence of that paragraph, that:
Some of the chronic factors that underly Mr Coyne's behaviour, namely, antisocial personality, and the effective interpersonal features of the psychopathy also impact on his amenability and responsivity to treatment and supervision.
Can I ask you, Doctor, to explain how these things impact on the effectiveness of treatment and supervision?
Dr Yewers: So the antisocial characteristics -they're likely to manifest in hostility, antiauthoritarian attitudes, antisocial attitudes -those will play out both in treatment and supervision. We also know -research has told us that the factor one -a factor that interpersonal features of psychopathy will also represent responsivity issues in treatment in that people who are high on that factor tend to have [a] weaker working relationship with treatment providers and tend to make less progress in treatment and that -that will also play out within the supervision setting as well. So for Mr -Mr Coyne, there are responsivity issues around both treatment and supervision.
In cross-examination, Dr Yewers confirmed that her opinion (that Mr Coyne was at high risk of committing a serious violent offence) was based on the definition of the term 'serious offence' that appears in the HRSO Act.
Counsel for Mr Coyne questioned Dr Yewers about whether her assessment that Mr Coyne posed a high risk of committing a serious offence was limited to a risk of committing offences with respect to family members, or other people with whom he has a close association. Although she agreed that a lot of his offending appeared to be targeted at those people within his 'social realm', Dr Yewers expressed the view that his risk is more general, noting that his last serious offence was a robbery involving a complete stranger and that he had recently assaulted a prison officer. Consequently, Dr Yewers said that she would be managing him in a manner that catered for the possibility that he could be violent within the general community.
Dr Yewers accepted that while it would be challenging to engage Mr Coyne meaningfully in treatment, in her interview with him he said that he was willing to attempt treatment, and it was an opportunity that should be pursued. However, she said that whether Mr Coyne's stated willingness to engage in treatment represented a change in attitude depends on him engaging and overcoming his existing barriers to treatment.
When asked questions about the conditions set out in a draft supervision order, and whether they may effectively moderate Mr Coyne's risk in the community, Dr Yewers said that such conditions likewise rely upon Mr Coyne's engagement. Ultimately, she said that Mr Coyne has to make a decision about whether he will engage in the process.
I accept the conclusions reached by both Dr Wynn Owen and Dr Yewers. In particular, I accept their opinions that Mr Coyne presents as a high risk of committing a serious offence in the future if not subject to a restriction order. Their expert reports, together with the evidence they both gave before me at the hearing of the Application, cogently explained the reasoning processes they each employed in reaching those conclusions, which I accept.
While both experts were cross-examined by Mr Coyne's counsel, their conclusions were not the subject of any serious challenge. In any event, their independent conclusions are, in my view, supported by other findings made later in these reasons in relation to Mr Coyne's propensity to act violently and to commit violent serious offences, the patterns of his offending, and his obvious and considerable unmet treatment needs.
Their conclusions are also supported by Mr Coyne's behaviour in the lead-up to the Application, specifically his refusal to properly engage, or engage at all, with the assessments that this court ordered should be completed prior to the hearing of the Application, or with the assessments undertaken by Ms Serrano.[12] Mr Coyne's level of engagement supports an inference that he lacks insight into, and motivation to address, the various issues that have driven his past offending behaviour. Against the background of a significant criminal history which includes a substantial number of violent offences, a lack of relevant insight and motivation to change logically increases the risk that Mr Coyne may commit a serious offence of a violent nature were he to be released without restriction.
[12] Ms Serrano's assessments are dealt with later in these reasons.
I have taken into account the significant limitations identified by Dr Wynn Owen with respect to his report due to Mr Coyne refusing to participate in any assessment interviews. In particular, I acknowledge that Dr Wynn Owen was unable to make any assessment of Mr Coyne's past and current awareness, or his attitudes to treatment and supervision. He was also unable to assess Mr Coyne's future plans and skills.
Clearly, Mr Coyne's current mental state is significantly relevant to the risk that he may commit a serious offence in the future. However, due to Mr Coyne's refusal to speak to Dr Wynn Owen his mental state could not be assessed to the extent that would enable the identification of, or exclusion of, current mental illness. An assessment of Mr Coyne's frontal lobe function could also not be undertaken, despite his history suggesting the existence of possible neurodevelopmental issues and substance misuse.
Dr Wynn Owen also suggested that some of Mr Coyne's behaviour patterns indicated the possible presence of attention deficit hyperactivity disorder, and that further exploration of this at interview may have provided some clarification. Due to Mr Coyne's attitude, that was not possible.
However, unlike Dr Wynn Owen, Dr Yewers was able to interview Mr Coyne. Further, Dr Yewers did not identify any relevant limitations to her opinions and none were suggested to her in cross-examination. In fact, during cross-examination, Dr Yewers gave the following evidence:
The reason I ask is, of course, you had a better opportunity to speak to Mr Coyne, he sat with you a little bit longer - - -?---Yes.
- - - but a lot of your - - -?---Almost two hours, I believe.
Yes, it was. I know that it was a significant amount of time. So in respect of your findings, you were able to make those findings independently and didn't have to perhaps rely quite so heavily on collateral information?---No. I was able to use both sources - - -
Yes?--- - - - of information which is -which is ideal - - -
Ideal. Yes. Thank you?--- - - - and in any assessment it's important to have multiple sources of information. So both an interview and as well as the collateral information that we receive in the book of materials.
Accordingly, while Dr Wynn Owen quite properly drew attention to the fact that there were significant limitations to the conclusions reached in his report due to Mr Coyne's refusal to take part in an interview, I note that his conclusions were consistent with those reached by Dr Yewers.
It is also interesting to observe that the opinions of Dr Wynn Owen and Dr Yewers were consistent with the conclusions reached in a Treatment Assessment Report prepared on 7 April 2021, which formed part of the BoM.[13]
[13] The Treatment Assessment Report is discussed later in these reasons.
In addition to the incomplete Pathways program in 2015, Mr Coyne refused to participate in a Cognitive Skills program in 2010, Violent Offender Treatment programs in 2015 and 2021, and Pathways programs for addiction in 2018 and 2022.
Regarding a related issue, namely Mr Coyne's response to past supervision orders, Ms Serrano said in her report that his compliance with those orders has been 'unsatisfactory'. I agree.
Ms Serrano's assessment is summarised by the following table from her report:
| Order | Start Date | Expiry Date | Termination Type |
| Post Sentence Supervision Order | 9 November 2019 | 9 November 2021 | Cancelled - Re-offended |
| Community Based Order | 22 May 2009 | 21 May 2010 | Cancelled - Omission[15] |
| Parole Order | 7 September 2007 | 2 April 2008 | Cancelled - Omission |
| Parole Order | 30 May 2005 | 31 March 2007 | Cancelled - Re-offended |
| Community Based Order | 3 September 2002 | 2 September 2003 | Cancelled - Omission |
| Monitored Bail | 12 July 2002 | 5 August 2002 | Cancelled - Omission |
[15] I have taken 'omission' to refer to non-compliance with the conditions of the relevant order.
It is significant to note that on 9 November 2019 Mr Coyne was released from prison subject to a Post Sentence Supervision Order (PSSO) made under the Sentence Administration Act 2003 (WA). Mr Coyne committed an aggravated robbery, his most recent 'serious offence,' after only 2 months of being subject to that PSSO.
In Coyne, a decision published in December 2022, Strk J observed that 'the respondent appears to have significant treatment needs which have not been addressed to date'.[16] Against that background it is important to record that her Honour also made the following concluding observation in her reasons for decision:
given that the respondent has expressed willingness to engage in treatment and rehabilitation programs,[17] it is important that he be given the opportunity to participate in the same while subject to an interim detention order. To the extent that it is necessary for the respondent to be assessed as to his suitability, that assessment ought be attended to with priority. The respondent ought now be referred to the forensic psychological intervention team for assessment. It will be most unfortunate if the restriction order hearing were to proceed in May 2023 with the respondent having expressed willingness to engage in treatment but not having received treatment by reason of there being a lack of treatment options available to him.[18]
[16] Coyne[29].
[17] It appears this willingness to engage in treatment and rehabilitation programs was expressed through Mr Coyne's counsel: Coyne [29].
[18] Coyne [54].
However, despite these concerns being raised over six months ago, Mr Coyne has not engaged in any further intervention, programmatic or otherwise.
It is not entirely clear to me why this has occurred, particularly in light of Strk J's prescient warning. According to Ms Serrano's report, a referral was made to the FPIT on 20 April 2023. However, as at May 2023, Mr Coyne remained waitlisted despite a male psychologist[19] having been identified as suitable.
[19] The manager of the FPIT, Ms Gail Della Torre, advised Ms Serrano that Mr Coyne's file has alerts that identify predatory behaviour and that he is a threat to female staff.
It is unfortunate that Mr Coyne has not received treatment while he has been subject to the interim detention order.
In any event, I accept that it is doubtful he would have engaged in such treatment even if it had been offered to him. In that regard I note again that he refused to participate in an assessment interview in April 2023 with Dr Wynn Owen and failed to fully participate in assessment interviews in March 2023 with Dr Yewers. Further, although Mr Coyne initially engaged with Ms Serrano in appointments that occurred over the telephone and in person in March 2023 to discuss potential community supervision plans, he then effectively refused to speak to her in late March and mid-April 2023.
This conduct also needs to be considered against the background that I have described of Mr Coyne's largely negative attitude to rehabilitation.
The risk that the respondent would commit a serious offence if not subject to a restriction order: s 7(3)(h)
As I have already noted, both Dr Yewers and Dr Wynn Owen are of the opinion that Mr Coyne presents a high risk of committing a serious offence. I accept those opinions.
In particular, I accept Dr Yewers' conclusion that:
Mr Coyne is currently assessed as 'high' risk for violent recidivism and 'well above average' risk for sexual reoffence. He has undertaken very limited treatment and his criminogenic needs related to violence have not been addressed at all. He has numerously declined to engage in recommended treatment programs, and he was removed from the Pathways program partway through. Some of the chronic factors that underlie Mr Coyne's behaviour, namely antisocial personality and the affective/interpersonal features of psychopathy, also impact on his amenability and responsivity to treatment (and supervision).
I also accept Dr Wynn Owen's opinion that if Mr Coyne were to be released from custody, he presents a high risk of committing a serious violent offence in the future, based on:
his history of violent offending, high VR AG -our score, the presence of antisocial personality disorder and a range of dynamic risk factors identified by the HCR -20 including substance abuse, violent attitudes, major mental illness and unwillingness to participate in treatment.
As Mr Coyne has engaged in no treatment in this term of imprisonment his risk of serious offending if released now is the same as when released in November 2019 shortly prior to index serious offending.[20]
[20] The reference to 'index serious offending' is a reference to the offence of aggravated robbery committed on 12 January 2020.
In accepting those opinions, I have taken into account the limitations inherent in Dr Wynn Owen's assessment due to Mr Coyne's substantial refusal to engage in the assessment process, as identified by Dr Wynn Owen.
I have also taken into account the fact that the risk assessment tools used by both Dr Wynn Owen and Dr Yewers in reaching their conclusions about Mr Coyne were not developed specifically for use with indigenous Australian offenders. Further, I am aware that limited validation research within that specific population exists, such that any results obtained from using those tools should be considered critically.
I have critically considered the expert opinions relied on by the State. However, even if I put those opinions to one side and consider only the other evidence before me and the matters to which I must have regard for the purposes of s 7(3) of the HRSO Act, I am satisfied to a high degree of probability that there is a very real and substantial risk that Mr Coyne will commit a violent offence in the event that he is released from custody without restriction. Considering Mr Coyne's history of committing violent offences (including violent serious offences), and having regard to the fact that alcohol and drugs have been a significant contributing factor in his offending, and to the fact that he has used physical violence while armed with weapons on many occasions, I am of the view that Mr Coyne presents a high risk of committing a violent serious offence if not subject to a restriction order.
The need to protect members of the community from that risk: s 7(3)(i)
I am satisfied that there is a real need to protect the community from the risk that Mr Coyne will commit a serious offence if released from custody without restriction. I believe there is a significant need to protect members of the community from that risk.
Once again, bearing in mind the limitations inherent in the assessments carried out by Dr Yewers and Dr Wynn Owen (which were caused by Mr Coyne's decision not to engage in the assessment process), the likely risk scenarios postulated by both those experts demonstrate a clear need to protect members of the community from the risk that Mr Coyne will commit a serious offence.
Dr Yewers says that the most likely risk scenario for Mr Coyne to commit a violent offence is that he relapses to drug and alcohol use, possibly due to coming into contact with antisocial family or peers. In those circumstances, if Mr Coyne is affronted or angered, he may rapidly escalate to a dysregulated state. Dr Yewers is of the view that Mr Coyne is then:
likely to target the individual who he perceives to have upset, thwarted, or challenged him, regardless of the individual's vulnerability (e.g., by age, stature, or gender). Mr Coyne may physically assault the victim by punching, striking, or kicking him/her. A sexual assault is also a possibility particularly if the victim is a partner. He is equally likely to use a weapon which he may be carrying or could be improvised from an everyday object. If he is under the influence of substances or acutely psychotic, his agitation, reactivity and unpredictability will be exacerbated. In this state, his recklessness and disregard for others will also increase. His violence may be sustained and excessive.
The severity and extent of the violence perpetrated will be affected by the level of Mr Coyne's dysregulation, vulnerability of the victim, availability of avenues for the victim to escape, presence of bystanders to intervene, and use of a weapon.
Similarly, Dr Wynn Owen believes that violent behaviour on the part of Mr Coyne is most likely to be associated with conflict, substance abuse and intoxication, and poor management of negative emotions. He says that based on past offending, violence is most likely to occur in the context of a domestic relationship. However, this could also be triggered by a family dispute, or when he feels thwarted, or perceives that his needs are not being met.
Like Dr Yewers, Dr Wynn Owen is also of the view that violence is likely to involve the use of weapons and will result in significant personal and psychological harm to any victim with both immediate and long-term adverse consequences. He also says while the imminence of serious violent offending based on past offending cannot be predicted with any accuracy, 'the higher the frequency of violent offending per se the higher the likelihood of serious offending'. Dr Wynn Owen expressed the view that, if released unsupervised, violent offending would probably occur within months.
As the State submitted, even in the absence of expert opinions of the sort provided by Dr Yewers and Dr Wynn Owen, the need to protect the community from the risk that Mr Coyne will commit a serious offence is self-evident. Mr Coyne has a long history of committing offences of violence. Further, he has accumulated several convictions in which weapons have played a prominent role, including when perpetrating violence. The evidence before me establishes that he has used or been in possession of various weapons over time, including a machete, knives, a hammer, an axe, a wrench, a shovel, a glass bottle, and a metal stool. It also establishes that his use of weapons over time has caused serious injuries to the victims of his offences.
He has also behaved poorly whilst in custody since at least 2013. As I have outlined above, he has been found guilty of a number of offences under the Prisons Act, and has been involved in other incidents in which he has used or threatened to use violence.
Any other relevant matter: s 7(3)(j)
In my view there are no other relevant matters that have not already been dealt with.
Conclusion as to whether the respondent is a high risk serious offender
Mr Coyne has an extensive criminal record which demonstrates a long-term pattern of committing violent offences, including violent serious offences. It is notable that he has continued to be violent even when in custody as a sentenced prisoner.
Mr Coyne also has significant unmet treatment needs as he has undertaken very limited treatment, having repeatedly declined to engage in treatment programs.
I have already found that there is a high risk that Mr Coyne will commit a violent serious offence if he is released from custody without restriction. The nature of the serious offence that I find he is likely to commit is one in which he uses violence in the context of a domestic relationship, or a family dispute, or where it is directed towards a person who has upset, thwarted or challenged him, regardless of their age, physical capabilities or gender. Violence is likely to involve a physical assault, including by use of a weapon. If Mr Coyne is under the influence of alcohol or drugs, including to the extent that it causes psychosis, his recklessness and disregard for others is likely to increase, leading to a sustained and excessive use of violence.
As Dr Yewers noted in her report:
The severity and extent of the violence perpetrated will be affected by the level of Mr Coyne's dysregulation, vulnerability of the victim, availability of avenues for the victim to escape, presence of bystanders to intervene, and use of a weapon.
In my view, the high risk that Mr Coyne will commit a serious offence is properly to be regarded as 'an unacceptable risk'.
Mr Coyne has now completed his sentence and he would otherwise be entitled to be at liberty, having been punished for the offences that he committed in late 2022 and then again in early 2023. However, I am satisfied that it is necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that I have found exists.
Having had regard to all the matters in s 7(3), I am 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 Mr Coyne to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. It follows that Mr Coyne is a high risk serious offender for the purposes of s 7(1).
Continuing detention order or supervision order?
Having found that Mr Coyne is a high risk serious offender, and bearing in mind as a paramount consideration the need to ensure adequate protection of the community, I am satisfied that I should make a continuing detention order in relation to Mr Coyne.
The effect of s 48(1) of the HRSO Act is that upon finding Mr Coyne to be a high risk serious offender I must either make a continuing detention order or a supervision order. However, s 48(1)(b) provides that the power to make a supervision order is subject to the operation of s 29.
Section 29 of the HRSO provides that a court cannot, relevantly, make a supervision order 'unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made', and that the onus of so satisfying the court is on the offender.
As I have already observed, Mr Coyne did not give or adduce any evidence at the hearing of the Application. Mr Coyne's counsel did make several submissions about his future intentions, which included submissions that he did not want to re-offend or return to prison. She also said that Mr Coyne's instructions were that he was willing to comply with a supervision order. However, she frankly and properly accepted that there was little evidence before me that would enable Mr Coyne to discharge his onus of proof.
I am not satisfied on the balance of probabilities that Mr Coyne would substantially comply with the standard conditions of a supervision order. There are a number of reasons why I have reached that conclusion, which I set out below. I adopt the approach identified by Derrick J in The State of Western Australia v Carter [No 5] [2023] WASC 223 [43]:
[The court] must be satisfied that the offender 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 objects of a supervision order and the Act, specifically the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence. Further, in determining if it is satisfied that the offender will substantially comply with each standard condition of the supervision order, the court must have regard not only to the constraints that will be imposed upon the offender by the other standard conditions, but also to the constraints that will be imposed upon the offender by all the other 'non-standard' conditions of the supervision order. (citations omitted)
Firstly, on 9 December 2022 Strk J made an order that Mr Coyne undergo examinations by Dr Wynn Owen and by Dr Yewers for the purposes of preparing reports as required by s 46(2)(a) and s 74 of the HRSO Act. As discussed, Mr Coyne did not participate in the interviews with Dr Wynn Owen and terminated his only interview with Dr Yewers after two hours.
Mr Coyne's unwillingness to participate gives rise to real concerns about whether he would substantially comply with the standard conditions of a supervision order.
Mr Coyne displayed similar attitudes when interacting with Ms Serrano in the lead up to the hearing of the Application. As I have previously noted, although Ms Serrano managed to speak with Mr Coyne over the telephone in early March 2023, and he engaged with her in a generally acceptable manner in mid-March 2023 during an in-person official visit, he subsequently declined telephone contact with her on 29 March 2023. Further, on 19 April 2023, when Ms Serrano attended for a second in-person official visit, he displayed a belligerent attitude and terminated the interview when she confirmed that his past offending would be discussed.
Mr Coyne's behaviour after the preliminary hearing, in connection with a process in respect of which he must have understood cooperation was in his best interests, significantly undermines the prospect that he would satisfactorily report to and receive visits from a community corrections officer.[21] It also undermines the prospect that he would be under the supervision of a community corrections officer and comply with their reasonable directions,[22] including directions concerned with ensuring that he receives appropriate treatment designed to reduce his risk of committing a violent serious offence.
[21] HRSO Act s 29(2)(b).
[22] HRSO Act s 30(2)(d).
Secondly, Mr Coyne has a significant history of poor compliance with community supervision. Not only has he failed to comply with community-based orders and parole conditions in the recent past, including by failing to attend supervision and community work, he has also reoffended during a parole order. Further, he had only been in the community for two months under the PSSO when he re-offended in January 2020.
Thirdly, his behaviour while in prison serving his most recent term of imprisonment has been poor. It demonstrates that he finds it difficult to comply with directions given to him by persons in authority, although I do note that in July 2022 his behaviour and demeanour had improved marginally. As Dr Wynn Owen said in his report:
Overall there is a pattern of consistent misconduct, disobeying rules, aggressive and violent behaviour throughout the period for which [individual management plans] and incident report information is available. Although the behaviour fluctuates it has been ongoing.
Fourthly, since 2010 Mr Coyne has failed to complete any programming intervention while in custody despite being offered several opportunities.[23] This means that his various identified treatment needs, including his tendency to use violence, have not been met.
[23] I note that Mr Coyne partially completed a Pathways program in 2015 but had to withdraw due to mental health issues.
Fifthly, Mr Coyne has declined to engage with the High Risk Serious Offender Supported Accommodation Program, contracted to Uniting WA, because all houses available in that program are located in Perth. However, there is currently no other suitable accommodation available for Mr Coyne. If the court is to have any confidence that Mr Coyne will substantially comply with the standard conditions of a supervision order, it is necessary that he have suitable accommodation.
It is also the case that Mr Coyne appears to have limited community support and, despite telling Ms Serrano that he has potential employment in Albany with his cousin, the details about that potential employment are unclear.
Sixthly, although Mr Coyne's counsel submitted that he is a changed man who wants to remain offence-free in the community, there is little or no evidence to support that contention. Given my finding that he presents a high risk of committing a violent serious offence if released into the community, and having regard to the other factors to which I have referred, Mr Coyne has failed to satisfy me that he would not commit a serious offence during the period of the order.
In her report Dr Yewers provided an eloquent summary of almost all the reasons why I am of the view that Mr Coyne has not established, on the balance of probabilities, that he would substantially comply with a supervision order:
[Mr Coyne] has undertaken very limited treatment and his criminogenic needs related to violence have not been addressed at all. He has numerously declined to engage in recommended treatment programs, and he was removed from a Pathways program part way through. Some of the chronic factors that underlie Mr Coyne's behaviour, namely antisocial personality and the affective/interpersonal features of psychopathy, also impact on his amenability and responsivity to treatment (and supervision).
There are currently no identifiable factors that would substantially moderate Mr Coyne's risk. He has a high density of outstanding treatment needs, low insight into his risk, lacks a comprehensive risk management plan, and has no concrete and actionable plans for reintegration into the community. Further, Mr Coyne's attitude and behaviour during the current assessment indicate that he is likely to be difficult to engage productively in the supervision process should he be released to the community.
Having reached the conclusion that Mr Coyne has failed to discharge his onus of proving, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order, the only order that I can make is a continuing detention order.
For these reasons a continuing detention order was made in relation to Mr Coyne on 14 July 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Research Associate to the Hon Justice Vandongen
26 JULY 2023
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