The State of Western Australia v De-Abreu

[2023] WASC 84

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DE-ABREU [2023] WASC 84

CORAM:   VANDONGEN J

HEARD:   24 FEBRUARY 2023

DELIVERED          :   23 MARCH 2023

FILE NO/S:   SO 1 of 2023

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

JADE DE-ABREU

Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act - Preliminary hearing - Whether reasonable grounds for belief that court might find respondent is a high risk serious offender - Whether detention order or interim supervision order should be made pending determination of whether respondent is a high risk serious offender - Turns on own facts

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Rules of the Supreme Court 1971 (WA)
Sentence Administration Act 2003 (WA)

Result:

Interim detention order made

Category:    B

Representation:

Counsel:

Applicant	:	Mr B Meertens & Mr D McDonnell
Respondent	:	In person

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Not applicable

Case(s) referred to in decision(s):

Cobiac v Liddy (1969) HCA 26; 119 CLR 257

De-Abreu v The State of Western Australia [2020] WASCA 145

Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160

R v Vallett (1951) 1 All ER 231

The State of Western Australia v Hansen [2022] WASC 391

The State of Western Australia v Meehan [2023] WASC 6

The State of Western Australia v Narrier [2021] WASC 250

The State of Western Australia v Ryan [2020] WASC 352

Wroblewski v The Queen (1999) 105 A Crim R 129

VANDONGEN J:

Introduction

1. On 31 January 2023, the State of Western Australia applied under s 35(1) of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) for a restriction order to be imposed in relation to the respondent, Mr Jade De-Abreu, pursuant to s 48. The State also applied for various orders pursuant to s 46(2) of the HRSO Act, including an order that the respondent be detained in custody until the application for a restriction order is finally determined.

2. Following the filing of the restriction order application this Court was required to fix a day for the matter to come before the Court for a preliminary hearing.[1] 

   [1] HRSO Act, s 43(1).

3. On 7 February 2023, the respondent appeared in person before Fiannaca J and an order was made that the preliminary hearing take place on 17 February 2023.  When he appeared on 7 February the respondent informed the court that although he had taken steps to secure legal representation, he did not yet have a lawyer.  It was made clear to the respondent by Fiannaca J that it was important that he obtain legal representation for the preliminary hearing.  It was also pointed out to him in clear terms that it was open to the court to make a decision on the basis of documents that had been lodged with the court.[2]

   [2] HRSO Act, s 83(3). This section also enables the court to make a decision 'on the papers', without the offender or any witnesses appearing and without the offender consenting to, or being heard on, the making of such a decision.

4. On 17 February 2023 the respondent appeared before me.  On this occasion he was represented by Mr T Stephenson, who informed me that he appeared on a grant of Legal Aid.

5. Because he had only just received the grant of aid and had not yet had the opportunity to read the documents that had been lodged with the court, or to meet with the respondent, Mr Stephenson made an application to adjourn the preliminary hearing.  I was informed by Mr Stephenson that the application was made on instructions from the respondent and on the understanding that the period of any adjournment that could be granted was limited because the respondent was otherwise due to be released from custody on 25 February 2023, the date that his sentence was due to expire.  The preliminary hearing had to be conducted and concluded before that date because the State had applied for an order that the respondent be detained on an interim basis, pending the final determination of the restriction order application.

6. After some concerns were raised with me directly by the respondent about the application to adjourn the hearing, and after he indicated that he wished to dispense with Mr Stephenson's services (at least on a temporary basis), I adjourned the hearing for a short period of time to allow Mr Stephenson to speak to the respondent in order to clarify whether he was in fact instructed to act for the respondent.

7. Upon the resumption of the hearing Mr Stephenson informed me that he continued to be instructed by the respondent to act on his behalf, and that he wished to maintain the application to adjourn the preliminary hearing.   

8. Given that Mr Stephenson had not had sufficient time to prepare for the preliminary hearing and needed to take instructions from the respondent personally, I adjourned the preliminary hearing to 24 February 2023.  I made it clear that the preliminary hearing would take place on 24 February 2023, and that I would be making a decision on that day. 

9. On 24 February 2023 Mr Stephenson appeared and advised that the respondent had terminated his services and that he had returned the grant of legal aid.   

10. The preliminary hearing then proceeded.  Mr Meertens represented the State and the respondent represented himself.

11. At the conclusion of the preliminary hearing I announced that I was satisfied that there were reasonable grounds for believing that the Court might ultimately find that the respondent is a high risk serious offender within the meaning of s 7 of the HRSO Act.

12. I then made orders pursuant to s 46(2)(a) and (d) of the HRSO Act requiring the preparation of reports pursuant to s 74, and fixing 24 July 2023 as the date for the hearing of the restriction order application. I also made an order pursuant to s 46(2)(b) requiring the preparation of reports pursuant to s 75, and ordered that the respondent be detained in custody until the final determination of the State's application for a restriction order pursuant to s 46(2)(c)(i).

13. Following are my reasons for concluding that there were reasonable grounds for believing that the Court might ultimately find that the respondent is a high risk serious offender within the meaning of s 7 of the HRSO Act, and for making the above orders.

Relevant Legal Framework

1. Pursuant to s 35(1) of the HRSO Act, the State may apply 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.'

2. A 'restriction order' is a continuing detention order or a supervision order.[3]  A 'continuing detention order' is an order that an offender be detained in custody indefinitely for control, care or treatment.[4] A 'supervision order' is an order that, when not in custody, an offender is subject to conditions imposed by a court in accordance with s 30 of the HRSO Act.[5]

   [3] HRSO Act, s 3.

   [4] HRSO Act, s 26(1).

   [5] HRSO Act, s 27(1).

3. Relevantly, if an offender is in custody an application for a restriction order 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.[6]

   [6] HRSO Act, s 35(3).

4. After an application for a restriction order is made the court must fix a day for the matter to come before the court for a preliminary hearing.[7] 

   [7] HRSO Act, s 43(1).

5. Section 46 of the HRSO Act provides that the main purpose of a preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, in accordance with s 7, find that the offender is a 'high risk serious offender'. A 'high risk serious offender' is a person in relation to whom the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the person will commit a 'serious offence'. [8]

   [8] HRSO Act, s 7(1).

6. For the purposes of this preliminary hearing, it is sufficient to note that an offence is a 'serious offence' for the purposes of the HRSO Act if it is specified in sch 1 div 1 of that Act.[9] Relevantly, those offences include: sexual penetration without consent contrary to s 325 of the Criminal Code (WA) (the Code) (including the aggravated form of that offence in s 326 of the Code); aggravated indecent assault contrary to s 324 of the Code; aggravated sexual coercion contrary to s 328 of the Code; deprivation of liberty contrary to s 333 of the Code; and sexual offence against a child of or over 13 and under 16 contrary to s 321 of the Code.

   [9] HRSO Act, s 5(1).

7. The test to be applied under s 46(1) of the HRSO Act is well-established.[10]  I do not have to be satisfied that a restriction order will be made.  It is sufficient if there are reasonable grounds for believing that such an order might be made.  To say that something might occur is to say that it is possible, and belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief, facts must exist which are sufficient to induce that state of mind in a reasonable person.

   [10] The State of Western Australia v Hansen [2022] WASC 391 [10].

8. A decision about whether there are reasonable grounds to believe that the court might find that a respondent is a high risk serious offender must be based on the evidence that is properly admitted at the preliminary hearing. This requires attention to be given to s 37(1), s 45 and s 83(4) of the HRSO Act, which I refer to later in these reasons.

The evidence

1. When the State filed the application for a restriction order to be imposed under s 48 of the HRSO Act, an affidavit of Brent Douglas Meertens, affirmed 31 January 2023 (First Meertens Affidavit), was filed at the same time.  Attached to the First Meertens Affidavit were copies of a large number of documents.  However, at the preliminary hearing counsel for the State informed me that he only intended to rely on some of those documents, which were identified in the following way:

   Affidavit of Brent Douglas Meertens

   1.Convictions for sexual and violent offences in his criminal history - Annexures 'A' and 'B'.  Particularly his index offending, other serious offending and offences against the person;

   a)Index Offending

   i.District Court Indictment 588 of 2014 - Annexure 'D'

   ii.Transcript of State Prosecutor's opening address - Annexure 'H' at pp 50-62

   iii.Sentencing Remarks of Eaton DJC on 13/08/2015 - Annexure 'I' pp 126-143

   b)Prior Serious Offending

   i.District Court Indictment 588 of 2008 - Annexure 'J'

   ii.Transcript of arraignment and prosecution material facts - Annexure 'L' at p 151-154

   iii.Sentencing transcript - Annexure 'N' at pp 178‑189

   c)Further Relevant Offending

   i.District Court Indictment 438 of 2005 - Annexure 'O'

   ii.Transcript of sentencing proceedings on 27/03/2006 - Annexure 'Q'

   iii.Complaint and Prosecution Notices relating to other offences dealt with summarily - Annexures 'R'; 'T'; 'U'; 'V'; 'X'; 'Y'; 'AA'; 'AC'; 'AE'; 'AF'; 'AH'; 'AJ' and 'AK'

   2.Sentencing Summary - Annexure 'C'

   i.Shows MAX date on p 29

   3.Risk Assessment and Treatment

   i.Report of Dr Mark Hall - Annexure 'AN' at pp 261-263

   ii.Extended PSR - Annexure 'AO' p 266

   iii.Psychological report of Mr David Summerton - Annexure 'AP' at pp 272-274

   iv.State Parole Assessment - Annexure 'AQ' at pp 275-277

   v.Report of Dr Pascu - Annexure 'AR' at pp 281‑283

   vi.Pre-Sentence Report - Annexure 'AS' at p 286

   vii.Treatment Assessment Report - Annexure 'AT' pp 290 - 291

   viii.Individual Management Plan - Annexure 'AU' at pp 292-294

   ix.Parole Assessment - Annexure 'AV' at pp 298‑300

   x.Treatment Assessment Report - Annexure 'AW' at pp 301-304

   xi.Individual Management Plan - Annexure 'AX' at pp 306-307

   xiii.PSSO Report - Annexure 'AY' at pp 310-313

   4.Supplementary Affidavit of Brent Douglas Meertens

   i.Report of Dr Adam Brett - Annexure 'BM1' at pp 8-11

   ii.PSSO - Annexure 'BM2' at pp 13-15

   iii.History of Board Secretariat Decision Slips - Annexure 'BM3' at pp 17-19

   5.Affidavit of Stacey Madden pp 1 - 3

2. After the State identified the evidence that it intended to rely on, I raised with counsel a number of issues concerning the admissibility of that evidence, having particular regard to sections 37(1), 45 and 83(4) of the HRSO Act. I raised those concerns because the respondent was unrepresented and he had informed me, in a general way, that he objected to the evidence on which the State intended to rely.

3. I then heard from the respondent.  He spoke at considerable length and covered many topics over the course of about two hours. It is unnecessary for me to set out in detail the numerous points that were sought to be made by the respondent because in the end, very little of what he did say addressed the issues that needed to be determined at the preliminary hearing. 

4. As I have already said, the respondent advised me that he objected to the State's evidence.  He appeared to suggest that he had been denied procedural fairness and had not been given sufficient time to respond to the State's application.  He asserted that he wanted to 'go back and comply with' the orders that were made by Fiannaca J on 7 February 2023, and to file an affidavit in response to the evidence relied on by the State.[11]

   [11] Transcript, 69.

5. In my view, the respondent was afforded every opportunity to prepare for and, if he wished to do so, adduce evidence at the preliminary hearing. 

6. I am aware, of course, that offenders who are in custody can face real difficulties in preparing for and appearing in person at court hearings, including difficulties associated with preparing documents.  However, as outlined above, when the respondent appeared before me on 17 February 2023 he was represented by counsel.  The preliminary hearing was then adjourned, at the respondent's request, to 24 February 2023 for the specific purpose of enabling him to give instructions to counsel so that counsel could then appear on his behalf at the preliminary hearing. 

7. It follows that the respondent had the opportunity to take advantage of the adjournment to provide instructions to counsel, and to prepare for the preliminary hearing, free from many of the difficulties that he might otherwise have encountered by representing himself as a sentenced prisoner.  The respondent, for his own reasons, decided not to take up that opportunity.

8. Even without the assistance of counsel, the respondent had more than enough time to produce any evidence he wished to rely on at this preliminary hearing.  He had, in total, over 2 weeks to prepare for the preliminary hearing. 

9. I pause here to note that it was open to the court to decide whether it was 'satisfied', as described in s 46(1) of the HRSO Act, on the basis of a consideration of the documents that had been lodged with the court. Such a decision could have been made without any appearance by, and without hearing from, the respondent. It was also open to the court to have adopted this procedure without the respondent's consent.[12]

   [12] HRSO Act, s 83(3).

10. Although he did not produce any evidence in any formal way at the preliminary hearing the respondent did make extensive and detailed oral assertions about a very wide range of matters without any objection from the State.  He referred to a large volume of documents that he had with him when he appeared by video-link, all of which appeared to have been carefully arranged and annotated.  It was plain that the respondent was very familiar with those documents and he was well able to explain them to me. 

11. Doing my best to summarise what he said at the preliminary hearing, the respondent:

    ·complained about the fact that the State had delayed making the restriction order application;

    ·complained about the conduct of various government departments, including the Department of Corrective Services, the State Solicitor's Office, the Prisoners Review Board, and the police;

    ·disagreed with any suggestion that he needed to be assessed and monitored in the community;

    ·made extensive comments about the credibility of the victims of his offences, and about whether his convictions were just and correct; he likewise made various complaints about the lawyers who had acted for him in those cases, and the police who were involved in investigating his crimes;

    ·informed me that he had written to a wide range of people, including various politicians, the Legislative Council, and the Corruption and Crime Commission, about his convictions and other matters, and that he had asked for a Royal Commission to be held into his case;

    ·told me he had kept extensive diaries, that he suggested contained important information about his cases; and

    ·submitted that the HRSO Act 'may well be in breach of our Australian Constitution and well as our WA Constitution', and made further reference to the International Covenant on Civil and Political Rights.[13]

    [13] Transcript, 101.

12. As I have said, this is by no means a comprehensive summary of all that was said by the respondent. However, it is unnecessary for me to set out what he said in any further detail. Having listened carefully to the respondent, I ultimately formed the view that what he said was of little relevance to the question of whether I should be satisfied that there are reasonable grounds for believing that the Court might find that the respondent is a 'high risk serious offender' in accordance with s 7(1) of the HRSO Act.

13. The respondent did make reference to a Post Sentence Supervision Order that had been made by the Prisoners Review Board on 27 January 2023 (PSSO).[14]  A copy of the PSSO was annexed to a supplementary affidavit affirmed by Mr Meertens on 22 February 2023, which the State sought to rely on at the preliminary hearing (Second Meertens Affidavit).

    [14] Transcript, 73.

14. The respondent told me that he was happy to comply with the 'standard orders' that were set out in the PSSO, but he described the additional orders as 'barbaric and unrealistic given the circumstances'.[15]  He went on to say that they were:

    '…formatted in such a way that you are more than likely to breach it, yeah, without even trying, but also take into consideration there's a long history of me dealing with people such as this that can't be trusted.  And I think they've done it all in bad faith'.[16]

    [15] Transcript, 105.

    [16] Transcript, 105.

15. The 'standard orders' of the PSSO that were referred to by the respondent were orders made by the Prisoners Review Board under s 74F of the Sentence Administration Act 2003 (WA) (SA Act). In the respondent's case, were he to be released those orders would have required him to report within 72 hours of being released, to notify a community corrections officer of any change of address, and to comply with s 76 of the SA Act.

16. The PSSO includes further orders that were made by the Prisoners Review Board under s 74G of the SA Act in the following terms:

1. These are the orders that the respondent described as 'barbaric and unrealistic'. 

2. The respondent's assertions about the conditions set out in the PSSO were, in my view, relevant to the questions I was required to decide at the preliminary hearing.  I will deal with this aspect of the respondent's submissions later in these reasons.

3. As I have already noted, I sought submissions from counsel for the State about the admissibility of the evidence that the State wished to rely on, having particular regard to sections 37(1), 45 and 83(4) of the HRSO Act.

1. Section 37 of the HRSO Act provides as follows:

   37.    Provisions relating to restriction order applications

   (1)A restriction order application must be accompanied by any affidavits to be relied on by the State for the purpose of seeking an order or orders under section 46.

   (2)Within 7 days after making a restriction order application, the State must give the offender a copy of the application and any affidavits accompanying it.

   (3)At the time of, or after, making a restriction order application, the State may apply to the Supreme Court for a summons or warrant if the offender -

   (a)is not in custody; or

   (b)may not be in custody at the time of the preliminary hearing.

   (4)If the State applies under subsection (3), the Supreme Court may issue, in the form approved under section 89 -

   (a)a summons requiring the offender to appear before the Supreme Court for the preliminary hearing; or

   (b)a warrant directed to all police officers for the offender to be arrested and brought before the Supreme Court for the preliminary hearing.

2. Section 45 of the HRSO Act provides as follows:

   An affidavit for use in a preliminary hearing must be confined to the evidence the person making it could give orally except that it may contain statements based on information and belief if the person making the affidavit states the source of the information and the grounds for the belief.

3. Section 83 of the HRSO Act is in the following terms:

   83.     Deciding certain matters on the papers

   (1)In this section -

   relevant proceeding means a judicial proceeding for -

   (a)a serious offence; or

   (b)another offence that the court considers relevant, having regard to the matter for decision before the court.

   (2)This section applies to how the court may decide -

   (a)whether it is satisfied, as described in section 46(1), that there are reasonable grounds for the belief described in that subsection; or

   (b)whether it is satisfied as required by section 50.

   (3)The court may decide entirely or partly from a consideration of documents lodged with the court, without the offender or witnesses appearing and without the offender consenting to, or being heard on, the making of the decision.

   (4)In making its decision, the court may receive in evidence -

   (a)any document relevant to the antecedents or criminal record of the offender; or

   (b)anything relevant contained in the official transcript of any relevant proceeding against the offender; or

   (c)any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the offender; or

   (d)any relevant material of the kind mentioned in section 7(3) relating to the offender.

4. I deal first with the question of whether, and to what extent, the evidence that the State sought to rely on was admissible by reference to s 45 and s 83 of the HRSO Act, before turning to deal with any issues of admissibility that arise under s 37.

5. The starting point is to note that evidence may be adduced at a preliminary hearing in affidavit form. This contrasts with hearings in relation to other applications that may be made under the HRSO Act, including final hearings relating to restriction order applications, where the ordinary rules of evidence apply, subject to some express modifications.[17]

   [17] HRSO Act, s 84(4) and (5).

6. Section 45 sets out the requirements in relation to the contents of affidavits that are sought to be used at a preliminary hearing, whether the affidavits are sought to be used by the State or by an offender. The first thing to observe about s 45 is that it imposes limits on the evidence that can be adduced by affidavit at a preliminary hearing. The text of s 45 makes it clear that, subject to certain exceptions, those limits must be observed before affidavit evidence can be used at a preliminary hearing. 

7. Although the starting point in s 45 is that the evidence 'must be confined to the evidence the person making it could give orally', it can also be seen that an affidavit 'may contain statements based on information and belief if the person making the affidavit states the source of the information and the grounds for the belief.' The evident purpose of s 45 is to enable the parties to a restriction order application to rely on evidence at a preliminary hearing that would otherwise be inadmissible by reason of the rule against hearsay.

8. Section 45 is expressed in broadly similar terms to those used in Order 37 rule 6 of the Rules of the Supreme Court 1971 (WA), which applies in the context of certain civil proceedings. However, attention must be paid to the actual words used in s 45.

9. The proper operation of s 45 of the HRSO Act is relevant in the circumstances of this case because the State appeared to be of the view that it could file an affidavit for use at a preliminary hearing that, to a large extent, merely attached various documents as annexures. Although those documents had not been authored by the maker of the affidavit, and accordingly the maker of the affidavit could not have given oral evidence of the contents of the documents, the State initially approached the hearing on the basis that it was able to rely on those documents as evidence of the truth of their contents.

10. In my view, and subject to what is set out later in these reasons, there is nothing in the HRSO Act that permits this approach.

11. The exception in s 45 to the mandatory requirement that an affidavit 'must be confined to the evidence the person making it could give orally', only applies where a 'statement' in the affidavit is based on information and belief, and where the person making the affidavit states the source of the information and the grounds for the belief.

12. Significantly, this means that it is not open to a party at a preliminary hearing to merely annex a multitude of documents to an affidavit, with a view to then inviting the court to take them into account as evidence of the truth of their contents, in the absence of a relevant statement that has actually been made in the affidavit.

13. As the list of documents referred to at [22] demonstrates, the State did wish to rely on the truth of the contents of at least parts of the documents annexed to the First Meertens Affidavit.  However, with some minor exceptions, none of the statements that were made in that affidavit amounted to evidence of the truth of the various assertions that were made in any of those documents. 

14. Having reached this point it is important to note that s 45 is not the only provision in the HRSO Act that is concerned with the admissibility of evidence at a preliminary hearing. As can be seen from s 83(2) and (4), in making a decision at a preliminary hearing the court may receive in evidence the various things referred to in s 83(4)(a) to (d).

15. After I raised issues relating to the admissibility of the evidence that the State wished to rely on, by 24 February 2023 the State had then decided to limit the evidence in the First Meertens Affidavit that it wanted the court to receive. The State also sought to rely on s 83(4) of the HRSO Act to justify the admission of much of that evidence.

16. In my view each of the documents that were annexed to the First Meertens Affidavit and referred to in the above list were admissible as evidence of the truth of their contents pursuant to s 83(4), for the following reasons:

Annexure	Description	Provision of the HRSO Act justifying admission into evidence
A	Respondent's Western Australia criminal history	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent
B	Chronology of respondent's serious and relevant offending	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent
C	Sentence Summary from Casuarina Prison	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent
D	District Court Indictment 588 of 2014	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent
H	Transcript of State Prosecutor's opening address in District Court Indictment 588 of 2014	s 83(4)(b) - anything relevant contained in the official transcript of any relevant proceeding against the respondent
I	Transcript of proceedings on 13 August 2015 in relation to District Court Indictment 588 of 2014	s 83(4)(b) - anything relevant contained in the official transcript of any relevant proceeding against the respondent
J	District Court Indictment 588 of 2008	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent
L	Transcript of proceedings on 24 November 2008 in relation to District Court Indictment 588 of 2008	s 83(4)(b) - anything relevant contained in the official transcript of any relevant proceeding against the respondent
N	Transcript of proceedings on 19 February 2009 in relation to District Court Indictment 588 of 2008	s 83(4)(b) - anything relevant contained in the official transcript of any relevant proceeding against the respondent
O	District Court Indictment 439 of 2005	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent
Q	Transcript of proceedings on 27 March 2006 in relation to District Court Indictment 439 of 2005	s 83(4)(b) - anything relevant contained in the official transcript of any relevant proceeding against the respondent
R - AK	Complaint and Prosecution Notices relating to offences dealt with summarily	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent
AN	Report of Dr Hall dated 14 December 2008	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(c) - a document that was tendered to the court, or that informed the court, in a relevant proceeding against the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent
AO	Extended Pre-Sentence Report of C McNally dated 15 January 2009	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(c) - a document that was tendered to the court, or that informed the court, in a relevant proceeding against the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent

AP	Psychological report of D Summerton dated 21 January 2009	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(c) - a document that was tendered to the court, or that informed the court, in a relevant proceeding against the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent
AQ	State Parole Assessment of I Naim dated 20 May 2009	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent
AR	Report of Dr Pascu dated 18 November 2013	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(c) - a document that was tendered to the court, or that informed the court, in a relevant proceeding against the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent
AS	Pre-Sentence Report of S Lovelock dated 4 June 2015	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(c) - a document that was tendered to the court, or that informed the court, in a relevant proceeding against the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent

AT	Treatment Assessment Report of B Bannister dated 13 October 2015	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent
AU	Individual Management Plan of T Head dated 14 August 2020	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent
AV	Parole Assessment Report of K Swan dated 19 May 2021	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent
AW	Treatment Assessment Report of M Maji dated 2 March 2022	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent
AX	Individual Management Plan of G Schroder dated 17 August 2022	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent
AY	PSSO Report of E Nissen dated 9 January 2023	s 83(4)(a) - a document relevant to the antecedents or criminal record of the respondent s 83(4)(d) and s 7(3)(b) - any other medical, psychiatric, psychological, or other assessment relating to the respondent

1. There is one further issue concerning the admissibility of the evidence that the State wished to rely on. This is concerned with the operation of s 37 of the HRSO Act and, in particular, the express requirement in s 37(1) that a restriction order application must be accompanied by any affidavits to be relied on by the State for the purpose of seeking an order or orders under s 46.[18] 

   [18] Section 46 of the HRSO Act sets out the main purpose of a preliminary hearing, and the consequences of a court being satisfied that there are reasonable grounds for believing that a court might find that an offender is a high risk serious offender in accordance with s 7.

2. In my view, there is no question that the First Meertens Affidavit 'accompanied' the restriction order application that was filed in this Court.  That affidavit was filed with the Court contemporaneously with the restriction order application.  However, there is a question about whether the State should be permitted to rely on affidavits that did not accompany the restriction order application, having regard to s 37(1) of the Act. This is because the State sought to rely on two affidavits that were filed after the restriction order application had been filed, namely a further affidavit that was affirmed by Mr Meertens on 22 February 2023 (Second Meertens Affidavit), and an affidavit of Stacey Madden that was affirmed on 23 February 2023 (Madden Affidavit).  It was not suggested that either of these affidavits 'accompanied' the restriction order application.

3. Although there is, to my mind, a question about whether the State is permitted to rely on affidavit evidence that does not accompany a restriction order application, I am of the view that this is an issue that does not need to be determined in the circumstances of this case, for the following reasons.

4. Firstly, during the hearing of this matter counsel for the State indicated that he did not rely on the Madden Affidavit for anything other than 'to explore accommodation options'.[19] He later clarified this to mean that the State only relied on that affidavit in relation to a question about whether, if I was satisfied as described in s 46(1), I was also satisfied that I should exercise my discretion to make an interim supervision order pending the final determination of the restriction order application.

   [19] Transcript, 64.

5. In the light of the State's position, I have not taken into account to the contents of the Madden Affidavit in deciding whether there were reasonable grounds for believing that a court might find that the respondent was a high risk serious offender in accordance with s 46(1).

6. Further, for the reasons set out below, I have concluded that an order under s 46(2)(c)(i) should be made, namely, that the respondent be detained in custody pending the final determination of the restriction order application. I have not taken the contents of the Madden Affidavit into account in arriving at that conclusion.

7. Secondly, although the Second Meertens Affidavit does include various statements of fact, the evidence that was actually relied upon by the State were the three annexures to that affidavit: a psychiatric report of Dr Adam Brett dated 3 June 2015; a copy of the PSSO; and a History of Board Secretarial Decision Slips - Corrective Services, Department of Justice (Annexures). In making the decision described in s 46(1) of the HRSO Act I have received those documents in evidence pursuant to s 83(4), but otherwise I have not taken into account any other evidence in the Second Meertens Affidavit.

8. In my view the Annexures are admissible in accordance with s 83(4) for the following reasons.

9. Dr Brett's report clearly relates to the respondent.  Attached to the First Meertens Affidavit is an official transcript of the remarks that were made in the District Court of Western Australia by Eaton DCJ on 13 August 2015 when he sentenced the respondent in relation to various sexual and other offences committed in April and August 2013.[20] I received the contents of that transcript into evidence pursuant to s 83(4)(b).

   [20] First Meertens Affidavit, Annexure 'I'.

10. The proceedings before Eaton DCJ were a 'relevant proceeding' for the purposes of s 83(1)(a) and (4)(b) because they were judicial proceedings for a 'serious offence'. A 'serious offence' means, relevantly, an offence specified in schedule 1 division 1 of the HRSO Act, which includes an offence of sexual penetration without consent. The transcript of those proceedings makes reference to a number of convictions that had been entered, including for an offence of sexual penetration without consent.[21]

    [21] Transcript, 882.

11. Section 83(4)(c) enables me to receive in evidence 'any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding' against the respondent. Based on what was said by Eaton DCJ on 13 August 2015,[22] Dr Brett's report dated 3 June 2015 was tendered to the District Court, or at least informed that court, when the respondent was sentenced on 13 August 2015. 

    [22] Transcript, 886 - 887.

12. On that basis I received the report of Dr Adam Brett in evidence.[23]

    [23] In my view, it was also open to receive Dr Brett's report in evidence pursuant to s 83(4)(d) and s 7(3)(b) of the HRSO Act, as evidence of 'any other medical, psychiatric, psychological, or other assessment relating to the offender'.

13. The State also sought to introduce into evidence a copy of the PSSO.[24] I have received this document in evidence pursuant to s 83(4)(a) of the HRSO Act as a 'document relevant to the antecedents or criminal record of the offender'.

    [24] Second Meertens Affidavit, Annexure 'BM 2'.

14. The word 'antecedents' is not defined in the HRSO Act. The ordinary meaning of the word 'antecedent' is 'a thing or circumstance preceding another in time or order; often also implying a causal relation to something which follows'.[25] 

    [25] Shorter Oxford English Dictionary.

15. It has been observed, albeit in a different context, that 'antecedents' is a word referring primarily to an offender's previous history and past record.[26] Given that s 83(4)(a) also specifically refers to documents relevant to an offender's 'criminal history', the word 'antecedents' when used in that provision must relate to something other than an offender's prior convictions. Lord Goddard CJ, in yet another context, said that 'the word antecedents is as wide as can be conceived':[27]  R v Vallett (1951) 1 All ER 231; 34 Cr App R 251, 254.

    [26] Cobiac v Liddy (1969) HCA 26; 119 CLR 257, 276 - 277 (Windeyer J).

    [27] Both Cobiac v Liddy and R v Vallett were referred to by Malcolm CJ in Wroblewski v The Queen (1999) 105 A Crim R 129, 130.

1. In my view, having regard to the main purpose of a preliminary hearing under the HRSO Act, the word 'antecedents' in s 83(4)(a) should be given a broad meaning. An offender's 'antecedents' for the purposes of s 83(4)(a) include all information relating to the offender's history that is relevant to the Court's decision about whether it is satisfied as described in s 46(1).

2. The PSSO was issued on 27 January 2023.  Accordingly, it necessarily formed part of the respondent's history.  Further there is information that is contained in the order itself (including information about the respondent's conduct while in prison, and information suggesting that he had unmet treatment needs at the time the PSSO was made) that forms part of the respondent's past history. 

3. I also note that the PSSO contains brief assessments made by the Prisoners Review Board about whether the respondent was a risk to the safety of the victims of his offending, whether he had unmet treatment needs, and whether he was able or willing to comply with directions (based on his poor prison conduct). Accordingly, it was open to me to receive the PSSO in evidence at the preliminary hearing pursuant to s 83(4)(d), when read with s 7(3)(b), as constituting an 'assessment relating to the [respondent]'.

4. The final document that the State wished to rely on for the purposes of the preliminary hearing comprised a three-page document entitled 'History of Board Secretariat Decision Slips - Offender'.[28] I have received this document in evidence for essentially the same reasons set out above in relation to the PSSO. It is a document that is relevant to the respondent's antecedents. It contains information relating to previous considerations by the Prisoners Review Board about whether the respondent should be released on parole, and it is admissible pursuant to s 83(4)(a).

Disposition

[28] Second Meertens Affidavit, Annexure 'BM 3'.

1. Pursuant to s 46(1), a court conducting a preliminary hearing is required to first decide whether it is satisfied that there are reasonable grounds for believing that the court might, in accordance with s 7 of the HRSO Act, find that the respondent is a high risk serious offender. If the court is so satisfied then it is required to make orders pursuant to s 46(2)(a) and (d), and may at its discretion make orders pursuant to s 46(2)(b) and (c).

2. For the following reasons I am satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender. 

3. The respondent is 54 years of age.  He has a very long history of offending, which commenced in 1990.  Although he began by committing relatively minor traffic offences, from about 1996 both the nature and frequency of his offending began to change.  While continuing to commit traffic related offences, he graduated into committing offences of violence.  These included assaults, assault occasioning bodily harm, breaching violence restraining orders, and pursuing another to intimidate. 

4. Without intending to provide a comprehensive summary of the respondent's criminal history, I note that on 25 August 1999 he was convicted of breaching a violence restraining order, assault, and damage, and was sentence to a 12-month conditional release order.  Those offences occurred in circumstances in which he approached his former de facto partner, verbally abused her, kicked her in the lower left leg, and then kicked the left rear door of her car causing a large dent.

5. Between 25 August 1999 and 31 March 2005 the respondent was convicted of four further offences involving physical violence and damage to property.

6. On 27 March 2006 the respondent was convicted of a serious offence of assault occasioning bodily harm.  The offence occurred at the respondent's unit when he violently assaulted a female following an argument after they had taken drugs together.  In proceedings that took place in the District Court in 2015, Eaton DCJ said that this offence bore a 'disturbing similarity' to offences that he later committed in 2013.[29]  I respectfully agree with those observations.

   [29] Transcript, The State of Western Australia v Jade Joe Manuel De-Abreu, District Court of Western Australia, 13 August 2015, 890.

7. Although the respondent's criminal history records that he was sentenced in the District Court to pay a fine of $250, the transcript of the sentencing proceedings reveals that this penalty was arrived at after taking into account the respondent's time in custody on remand for that charge.[30]

   [30] Transcript, The State of Western Australia v Jade De-Abreu, District Court of Western Australia, 27 March 2006, 46 - 47, 53.

8. On 8 May 2007 the respondent was convicted of an offence of pursuing another to intimidate.  The respondent drove his car into a car park and parked behind the victim's car, following the victim when she went into a chemist.  He continued to follow her when she left the store and began to move towards her vehicle.  The victim was extremely afraid, got into her car, and drove out of the car park with the respondent following behind her.

9. On 19 February 2009 the respondent was convicted after pleading guilty to three serious offences of sexual penetration of a child of or over 13 and under 16, contrary to s 321(2) of the Code. On three separate occasions over the course of about four weeks, when the complainant was 14 years of age and the respondent was 39 years of age, he sexually penetrated the complainant by inserting his penis into her mouth. The sentencing judge found that on each occasion the respondent supplied drugs to the complainant either to lure her into a relationship or to make her more compliant to the sexual conduct. He was sentenced to three years imprisonment and was made eligible for parole.

10. When he was released from prison, the respondent continued to commit traffic offences. He also committed dishonesty offences, including stealing and using false number plates. On four separate occasions in 2012, he was convicted of offences of failing to comply with reporting obligations imposed on him pursuant to s 63 of the Community Protection (Offender Reporting) Act 2004 (WA). Although there does not appear to be any direct evidence in relation to those matters before the court, I infer that the respondent was subject to the reporting obligations imposed under that Act because he had been convicted of offences of sexual penetration of a child of or over 13 and under 16 years of age.

11. In late 2012 the respondent was convicted of an offence of being armed so as to cause fear, after he had a verbal altercation with a female.  When the victim asked if the female needed assistance, the respondent became abusive, produced a knife and held it towards the victim in a threatening manner.  The victim contacted the police who later found the respondent sitting on a bench at an intersection nearby in possession of the knife.

12. On 13 August 2015, following a trial in the District Court, the respondent was sentenced by Eaton DCJ to a total effective sentence of 10 years' imprisonment, with an order made that he be eligible for parole.  After a successful appeal, that sentence was adjusted to a total effective sentence of nine years and six months imprisonment.

13. The respondent was charged on indictment with 13 counts.  Prior to trial he pleaded guilty to count 13, which alleged that he unlawfully assaulted the complainant and thereby did her bodily harm.  However, the respondent pleaded not guilty to the remaining 12 counts on the indictment and proceeded to trial.  At the conclusion of the trial, the respondent was convicted of count 3 and counts 5 to 12, but was acquitted of counts 1, 2 and 4. 

14. The offence that was the subject of count 3 on the indictment was an offence of assault occasioning bodily harm.  The respondent was found to have bitten a female complainant on her back and upper thigh when they were wrestling on a bed after they had spent time together using drugs.

15. Counts 5 to 13 all concerned a different female complainant.  The respondent engaged in very violent and aggressive behaviour and forced the complainant to engage in a range of sexual activity without her consent.  The details of the respondent's offending was referred to at length by the Court of Appeal in De-Abreu v The State of Western Australia[2020] WASCA 145, and do not need to be repeated here.

16. When the respondent was sentenced on 13 August 2015, Eaton DCJ observed that the facts giving rise to what were, at that time, his more recent offences, tended to 'demonstrate a propensity on [the respondent's] part to react quickly in an angry and violent way in a very short period of time for what are often quite trivial provocations.'[31] 

    [31] First Meertens Affidavit, 135.

17. The respondent continues to deny that he committed these offences. 

18. In my view, the respondent's criminal history alone constitutes reasonable grounds for believing that a court might find that he is a high risk serious offender. Over a period of just under 30 years the respondent has regularly committed criminal offences, including offences of violence. Since 2009 he has also committed serious offences, as defined in s 5 of the HRSO Act, which resulted in him being required to serve significant terms of imprisonment.

19. It would be open to a court to conclude, based on the respondent's criminal history alone, that he has a propensity to commit offences of violence and, as a result, that it is necessary to make a restriction order to ensure the adequate protection of the community against an unacceptable risk that he will commit a serious offence.

20. In addition to the respondent's criminal history, there are further grounds to believe that the court might find that he is a high risk serious offender.

21. Firstly, the respondent has been the subject of a significant number of incidents and charges since he went into custody in 2013.  He has behaved in an insulting, indecent and threatening manner towards prison officers and other prisoners.[32]  There is also evidence that particular staff are not rostered on shift with the respondent due to concerns for their safety.[33]  Further, he is not permitted to be alone with female staff at the prison.[34]  

    [32] First Meertens Affidavit, Annexure 'AY': Post Sentence Supervision Order Report dated 9 January 2023 of E Nissen (PSSO Report), 312.

    [33] PSSO Report, 312.

    [34] PSSO Report, 312.

22. The Post Sentence Supervision Order Report dated 9 January 2023 records that the respondent's aggressive behaviour extends beyond prison officers to library staff, report writers and reintegration staff, as well as to other prisoners.[35]

    [35] PSSO Report, 312.

23. I do note, however, that in a recent Individual Management Plan dated 17 August 2022, the respondent was described as being 'generally polite and courteous when interacting with staff' and that 'he is getting along well with the other prisoners and his cell and personal hygiene are at an acceptable level.'[36]  Further, the plan suggests that he is 'regarded as an above average worker, completing all tasks without prompting and to a high standard.'[37]

    [36] First Meertens Affidavit, Annexure 'AX': Individual Management Plan dated 17 August 2022 of G Schroder, 305.

    [37] First Meertens Affidavit, Annexure 'AX': Individual Management Plan dated 17 August 2022 of G Schroder, 305.

24. Secondly, he has been variously described in reports relied on by the State as an angry, aggressive, violent, and threatening person, who has refused to take part in assessments or engage with efforts at treatments, and who has no insight into his offending or any victim empathy.[38]  He has also been referred to as someone who has taken no responsibility for his offending, and someone who tends to blame other people who have been involved in his case.[39]

    [38] First Meertens Affidavit, Annexure 'AV' (Parole Assessment Report of K Swan dated 19 May 2021), 297 - 299; Annexure 'AW' (Treatment Assessment Report of M Manji dated 2 March 2022), 301 - 304; Annexure 'AY' (Post Sentence Supervision Order Report of E Nissen dated 9 January 2023), 310 - 313.

    [39] First Meertens Affidavit, Annexure 'AN' (Report of Dr Hall dated 14 December 2008) 261 - 263; Annexure 'AO' (Extended Pre-Sentence Report of C McNally dated 15 January 2009), 266;  Annexure 'AP' (Report of Mr D Summerton dated 21 January 2009), 272 - 274; Annexure 'AQ' (State Parole Assessment of I Naim dated 20 May 2009) 275 - 277; Annexure 'AR' (Report of Dr Pascu dated 18 November 2013) 281 - 283.

25. Thirdly, the respondent has made threats to the writers of some of the reports that have been received in evidence.  The Extended Pre-Sentence Report dated 15 January 2009 records that the respondent threatened to 'look the writer up' upon his release.[40]  The Treatment Assessment Report dated 13 October 2015 states that the respondent told the writer that he would ensure that they would 'never fucking work in [their] job again' if he did not feel that they were acting with integrity.[41]  In a report dated 18 November 2012, Dr Pascu also reported that the respondent made 'vague threats towards people trying to make his life difficult.'[42]

    [40] First Meertens Affidavit: Annexure 'AO', 266.

    [41] First Meertens Affidavit: Annexure 'AT', 290.

    [42] First Meertens Affidavit: Annexure 'AR', 282.

26. Fourthly, the respondent has made threats to contact the victim or victims of his most recent offending. In the Post Sentence Supervision Order Report dated 9 January 2023 there is evidence that on 31 October 2016, when he participated in an interview with the Victim-offender Mediation Unit (VMU) in relation to his application for parole at that time, the respondent threatened on multiple occasions to 'immediately upon release, make attempts to “hunt down” [the victim]' because he 'needs to “interrogate” her in relation to her lies and “force” her into admitting that she was coerced into making those false allegations, and further “force” her into identifying who it was who coerced her.'[43]

    [43] First Meertens Affidavit, Annexure 'AY' (Post Sentence Supervision Order Report of E Nissen dated 9 January 2023), 311.

27. When he was interviewed again by VMU in January 2021, despite initially denying any intention to contact the victims, he became aggressive when he was reminded of what he had said in 2016.[44]  The respondent also refused to elaborate on the subject and raised his hand in a threatening motion toward the writer of the VMU report.[45]

    [44] First Meertens Affidavit, Annexure 'AY', 311.

    [45] First Meertens Affidavit, Annexure 'AY', 311.

28. Evidently, despite the passage of time, there is a real risk that the respondent still intends to make contact with a victim of his most recent offences with a view to behaving in an intimidating manner.  There is also a real and not fancible risk that the respondent will behave in a threatening manner towards people generally, especially when challenged.

29. Fifthly, the respondent has refused to engage in any treatment programs whilst he has been serving his most recent term of imprisonment.  Further, due to his threatening behaviour towards staff at Casuarina Prison, he has not received any assistance in creating a viable post-release plan.[46]

    [46] First Meertens Affidavit, Annexure 'AY', 311 - 312.

30. Finally, I had regard to part of an assessment carried out by Dr Brett in 2015.[47]  Although Dr Brett confirmed that his assessment had 'significant limitations and had questionable validity',[48] due in large part to the respondent's lack of cooperation in the process, he did conclude that the respondent had 'significant risk factors for violent and sexual reoffending.'[49]  He also opined that there was 'little doubt that [the respondent] has significant personality pathology [and] … a high likelihood that he also has an underlying mood disturbance with possible psychosis.'[50]

    [47] Second Meertens Affidavit, Annexure 'BM 1' (Report of Dr Brett dated 3 June 2015).

    [48] Second Meertens Affidavit, Annexure 'BM 1', 11.

    [49] Second Meertens Affidavit, Annexure 'BM 1', 11.

    [50] Second Meertens Affidavit, Annexure 'BM 1', 11.

31. For these reasons, and in the light of all of the evidence before me, I am satisfied that there were reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.

32. I have considered what orders should be made as a consequence of that conclusion. 

33. Section 46(2)(a) of the HRSO Act provides that I must make an order that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used at the hearing of the restriction order application.  Accordingly, I made such an order at the conclusion of the preliminary hearing on 24 February 2023.

34. Although s 46(2)(b) of the HRSO Act is not expressed in mandatory terms, unless such an order is made it is difficult to see what purpose would be achieved by an order made under s 46(2)(a). Accordingly, I also made such an order at the hearing.

35. The State submitted that I should also make an order pursuant to s 46(2)(c)(i) of the HRSO Act.

36. On 24 February 2023 the respondent was in custody and, given that he was due to be released the following day, in the ordinary course of events he would otherwise have been released before the restriction order application was finally decided. Accordingly, the preconditions to the operation of s 46(2)(c)(i) existed in this case. The question then was whether it was appropriate for me to make an order that the respondent be detained in custody until the restriction order is finally decided.

37. As I have already noted, on 27 January 2023 the Prisoners Review Board issued the PSSO under the relevant provisions of the SA Act. According to s 74D of that Act, the Prisoners Review Board must make a PSSO if it considers it necessary for the prevention of harm to the community from further offending by the prisoner.

38. Against that background, one possible alternative to an order that the respondent be detained until the restriction order application is determined was to make an order under s 58(5) of the HRSO Act. Such an order would have provided that the respondent be subject to stated conditions that I considered appropriate, with those conditions having effect from the date he was due to be released from custody.[51] 

    [51] This is commonly referred to as an 'interim supervision order', noting that s 30 of the HRSO Act would apply to any such order as if it were a supervision order: HRSO Act, s 58(6). The State of Western Australia v Narrier [2021] WASC 250 [63] - [64].

39. Another option that might have been open was to make no order.[52]  That would have meant that the respondent would be released from custody on 25 February 2023, but that he would then be subject only to the PSSO.

    [52] The State of Western Australia v Narrier [2021] WASC 250 [59]; The State of Western Australia v Meehan [2023] WASC 6 [114].

40. Notwithstanding the potential availability of these options, I reached the view at the conclusion of the preliminary hearing that I should exercise my discretion in favour of making an order that the respondent be detained in custody until the restriction order is finally determined.

41. The relevant principles that guide a court's discretion in deciding whether to make an order that an offender be detained in custody until a restriction order application is finally decided, or to make an interim supervision order (or, I infer, to make no order), were identified by Smith J in The State of Western Australia v Ryan[2020] WASC 352 [21]:[53]

    Firstly there is the relative strength of the applicant's case that the respondent represents an unacceptable risk to the community and may commit an offence before the application can be finally heard.

    Secondly, I need to consider the extent to which the court can be confident that any such risk will be sufficiently minimised by the respondent's adherence to the supervisory conditions and other requirements of his personal undertaking.

    The final consideration is fundamental to the system of justice and is the undesirability of depriving the respondent of his liberty prior to the application being finally determined. In the event that the court ultimately dismisses the application or alternatively makes a supervision order, any interim detention of the respondent will have been unnecessary and possibly damaging to the long‑term interest that that community has in him maximising the chances of future rehabilitation.[54]

    [53] Her Honour adopted what was said by Blaxell J in Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160 [62] ‑ [64].

    [54] These principles have been consistently applied by this court.  For a recent example, see The State of Western Australia v Meehan [2023] WASC 6 [119].

1. In relation to the first of those factors, having regard to the evidence adduced and the reasons that I have already given, I am satisfied that there are strong prospects that a court will find that the respondent is a high risk serious offender. 

2. I am also satisfied that, if released, the respondent may commit a serious offence before the State's restriction order application can be heard.  The respondent has demonstrated that he has a propensity to commit violent offences, he has made numerous threats to a wide range of people, and he has previously indicated that he intends seeking out and making contact with at least one of the victims of his offending for the purpose of forcing her to admit that she has made false allegations about him.

3. In relation to the second factor, I am not satisfied that he would comply with the terms of any appropriate supervision order. I have not had the benefit of a formal and up-to-date risk assessment prepared by a psychiatrist or psychologist. However, there are several reasons why I concluded that it was necessary to make an order pursuant to s 46(2)(c)(i) that the respondent be detained until the final determination of the restriction order application:

   (a)The respondent has an extensive criminal history, which includes very serious and violent offences. 

   (b)The respondent's criminal history also reveals that he has displayed a persistent disregard for lawful orders, having accrued a number of convictions for breaching bail, breaching violence restraining orders, breaching a term of suspended imprisonment, and failing to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA).

   (c)The respondent has demonstrated an inability or unwillingness to engage in any treatment or rehabilitation program, and he lacks insight into his behaviours.  Further, due to his threatening behaviour towards prison staff no viable post-release plan has been created.[55]

   (d)The respondent's behaviour while in prison indicates that he is very likely to experience difficulties in complying with the conditions of an interim supervision order, particularly where they require him to interact with persons in authority.[56]

   (e)The respondent has previously failed to comply with conditions of home detention, despite having been given warnings.

   (f)An assessment carried out for the purposes of determining whether a PSSO should be made concluded that as the respondent:[57]

   … is likely to show questionable adherence to any Order imposed, electronic monitoring may allow for the clear demonstration of curfew compliance and encourage compliance.  [The respondent's] presentation and attitudes however present concerns in relation to his ability to comply with electronic monitoring, should it be imposed. 

   In that regard I note that if I were to make an interim supervision order, s 58(6) of the HRSO Act when read with s 30 makes it clear that I would be required to make an order that included a condition that the respondent be subject to electronic monitoring.

   [55] First Meertens Affidavit, Annexure 'AY' (Post Sentence Supervision Order Report of E Nissen dated 9 January 2023), 311 - 312.

   [56] First Meertens Affidavit, Annexure 'AV' (Parole Assessment Report of K Swan dated 19 May 2021), 299 - 300.

   [57] First Meertens Affidavit, Annexure 'AY' (Post Sentence Supervision Order Report of E Nissen dated 9 January 2023), 313.

4. As I have already noted, during the hearing the respondent said that he believed that the additional conditions imposed under the PSSO were 'barbaric and unrealistic'.  He also said that they were formatted in such a way that 'you are more than likely to breach it … without even trying.'[58]  In my view, given the conditions that are ordinarily imposed (and are required to be imposed) in the context of interim supervision orders, the respondent's observations added to my concerns about whether he would, or could, comply with such an order were it to be made. 

   [58] Transcript, 105.

5. I am acutely aware that it would be undesirable for an order to be made that the respondent be detained pending the final determination of the restriction order application if the application is ultimately unsuccessful, or a supervision order is made. However, in my view there are strong prospects that the court will find that the respondent is a high risk serious offender. It must be borne in mind, however, that this is a view reached at a preliminary hearing and that it will ultimately be a matter for the court hearing the restriction order application to decide whether the respondent is in fact a high risk serious offender based on the evidence before that court. If the court does decide that the respondent is a high risk serious offender, it will also be for that court to determine whether an order should be made under s 48(1)(a) or (b).

6. Based on the evidence that was before me, and appreciating that this was a preliminary hearing, the prospects that a supervision order may ultimately be made were sufficiently high for me to conclude that it would be desirable for the respondent to be detained until the final determination of the restriction order application. 

Orders

1. For the above reasons, I made the following orders at the conclusion of the hearing on 24 February 2023:

   (1)Pursuant to s 46(2)(c)(i) of the High Risk Serious Offenders Act 2020 (WA) the respondent be detained in custody until the final determination of the restriction order application filed on 31 January 2023.

   (2)The restriction order application pursuant to s 48 of the High Risk Serious Offenders Act 2020 (WA) is to be heard on 24 July 2023.

   (3)The respondent is to undergo examinations by two qualified experts, namely one psychiatrist, Dr Peter Wynn Owen, and one psychologist, Dr Dylan Galloghly, for the purposes of preparing reports as required by s 46(2)(a) and s 74 of the High Risk Serious Offenders Act 2020 (WA) that are to be used on the hearing of the restriction order application.

   (4)The reports of the experts are to be provided to the applicant at least 42 days prior to the hearing of the restriction order application.

   (5)Any report authored by the Department of Justice, including any Proposed Management Plan or Community Supervision Assessment Report, be provided to the applicant at least 35 days prior to the date of the hearing of the restriction order application.

   (6)The experts named in order 3 liaise with the Department of Justice as to a Management Plan (if appropriate) for the respondent to be supervised in the community.

   (7)Pursuant to s 122 of the Criminal Investigation Act 2006 (WA), the experts named in order 3 may be supplied with and may view any audio-visual recordings of interviews with the respondent, or transcripts of the same, for the purpose of preparing their reports.

   (8)There be liberty to the parties to apply generally.

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

RH

Associate to the Judge

22 MARCH 2023