The State of Western Australia v Dempster
[2022] WASC 135
•27 APRIL 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DEMPSTER [2022] WASC 135
CORAM: DERRICK J
HEARD: 22 APRIL 2022
DELIVERED : 22 APRIL 2022
PUBLISHED : 27 APRIL 2022
FILE NO/S: SO 1 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JACK JAMES DEMPSTER
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Restriction order application - Preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Turns on own facts
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)
Result:
Orders made pursuant to s 46(2)
Application for interim detention order adjourned
Category: B
Representation:
Counsel:
| Applicant | : | Mr D S McDonnell |
| Respondent | : | Ms A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Lynch [2022] WASC 104
The State of Western Australia v Ugle [2022] WASC 91
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
On 10 January 2022 the State of Western Australia made an application for orders to be made in relation to Jack James Dempster (the respondent) as follows:
1.A restriction order under s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (the Act) (the application for this order being made pursuant to s 35(1) of the Act);[1]
2.Orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act requiring, among other things, that the respondent undergo examination by a psychiatrist and qualified psychologist for the purposes of preparing reports; and
3.An order pursuant to s 46(2)(c)(i) of the Act that the respondent be subject to an interim detention order until the final determination of the restriction order application, or alternatively an order pursuant to s 58(5) of the Act that the respondent be subject to an interim supervision order until the final determination of the application.
[1] The respondent is an 'offender' for the purposes of the Act and a 'serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act: see the definition of 'offender' in s 3 of the Act, par (b) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act. Given that the respondent is to be released on 8 May 2022, the application was, as required by s 35(3) of the Act, made within a period of 1 year of the date on which the respondent is to be released from custody.
I have today heard the State's application for the orders pursuant to s 46(2) of the Act. Accordingly, the hearing that has taken place before me is a preliminary hearing conducted pursuant to s 46(1) of the Act.
The respondent concedes that the requirements of s 46(1) are met and therefore does not oppose the application for the orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Nonetheless it is, of course, still necessary for me to examine the evidence and to satisfy myself that the orders should be made.
The State contends that if I find that the requirements of s 46(1) are met the respondent should be detained in custody until the determination of the restriction order application. In the alternative, the State contends that if I find that the requirements of s 46(1) are met the respondent should be released on an interim supervision order pending the determination of the restriction order application.
The respondent opposes the application for an order that he be detained in custody until the determination of the restriction order application. The respondent submits that he should be released on an interim supervision order pending the determination of the restriction order application.
The law[2]
[2] My statement of the applicable law reproduces what has been written by other judges of this court in numerous recent decisions: see by way of example only, The State of Western Australia v Ugle [2022] WASC 91 [5] - [8] (Hall J) and The State of Western Australia v Lynch [2022] WASC 104 [7] - [10] (Quinlan CJ).
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 find that the respondent 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 to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act is defined in s 5 and sch 1. Relevantly for present purposes, a 'serious offence' includes the offence of aggravated indecent assault contrary to s 324 of the Criminal Code (WA) (Code), the offence of robbery contrary to s 392 of the Code and the offence of doing an act with an intent to harm the result of which is that the life, health and safety of any person was likely to be endangered contrary to s 304(2)(b) of the Code.
I do not have to be satisfied that a restriction order will be made. It is sufficient at this stage of proceedings if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. Further, a belief is an inclination of mind towards accenting to rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
The evidence
In support of the application the State relies on an affidavit affirmed on 10 January 2022 by Daniel Sean McDonnell. Mr McDonnell is a legal practitioner employed by the State's solicitor. Mr McDonnell's affidavit has annexed to it a number of documents including the respondent's criminal record and reports that have been prepared in relation to him.
The State also relies upon an affidavit affirmed by Ms Heather Applin on 13 April 2022 and an affidavit sworn by Mr Martyn James Clancy-Lowe on 19 April 2022. Ms Applin is a Senior Community Corrections Officer employed by the Department of Justice (the Department) and based at the Community Offender Monitoring Unit. Mr Clancy-Lowe is employed by the Western Australian Police Force as the Executive Manager of the Sex Offender Registry. The affidavits of Ms Applin and Mr Clancy-Lowe relate to the respondent's proposed accommodation on release.
The respondent's background and personal circumstances
The respondent is a 37-year-old Indigenous man.
The respondent was for the most part raised by his grandmother. The respondent's father died when he was very young. The respondent's mother died in around 2018.
The respondent was subjected to regular physical abuse as a child. He was exposed to substance abuse by his relatives from a young age.
The respondent's education was limited. He dropped out of school in year 9. Nonetheless, he has reasonable literacy and numeracy skills.
The respondent has engaged in periods of employment. He has in the past worked as a house painter and as a roustabout. At the time of being sentenced for his most recent 'serious offence' the respondent had been in a relationship for approximately 7 years.
The respondent has a long term entrenched substance abuse problem. He commenced to use alcohol and illicit substances in his early teenage years and has continued to do so ever since. There is a clear connection between the respondent's use of alcohol and illicit substances and his offending. The respondent's use of alcohol and illicit substances clearly impacts on his emotional regulation and consequential thinking and therefore increases the risk of him committing offences.
The respondent's criminal record
The respondent has a very lengthy criminal record. He committed his first offence in 1997 when he was 13 years old. He has continued to offend on a regular basis ever since with the only significant breaks in his offending occurring when he has been incarcerated. Indeed, since 2003 the longest period of time for which the respondent has remained out of prison is three months.
The respondent was sentenced to the first of his terms of imprisonment as an adult in 2003. He has been sentenced to a number of terms of imprisonment since that time. He has consistently failed to comply with the obligations of community-based dispositions.
The respondent's more serious convictions as a juvenile and an adult for violence related offences include multiple convictions for offences of assault occasioning bodily harm, multiple offences of assaulting a public officer, an offence of aggravated robbery, two offences of unlawful wounding and most recently an offence of doing an act with intent to harm as a result of which the life, health or safety of another was endangered (the index offence). The respondent's prior offences demonstrate that he has a propensity to engage in significant violence.
The facts of the respondent's 'serious offence' of aggravated robbery provide a reasonable illustration of the type of violence that the respondent has, over the years, routinely inflicted on others including police officers. The facts were that on 4 March 2011 the respondent followed the male victim as he was walking along the road. The respondent eventually walked in front of the victim to prevent the victim passing him. The respondent then asked the victim why the victim was ignoring him to which the victim responded that he did know the respondent. The respondent then punched the victim to the head twice causing the victim to fall to the ground. While the victim was on the ground the respondent attempted to take the victim's wallet and did take the victim's earphones.
The respondent also has a number of convictions for sexually related offences, specifically aggravated indecent assault, indecent assault and performing indecent acts. The respondent's aggravated indecent assault offence, which he committed in May 2005, was comprised of him touching the breasts of a 14-year-old girl. The respondent's first indecent act offence and indecent assault offence were both committed on 10 April 2007. The indecent act offence involved the respondent approaching a female in a store, removing his penis and stroking his penis until it became semi-erect. The indecent assault offence involved the respondent exposing his erect penis to a 51-year-old female, attempting to grab the female which resulted in them falling to the floor and then putting his fingers into the female's mouth before she was able to run away. Finally, the respondent's second indecent act offence, which was committed by him on 25 April 2007, involved him exposing his penis to an 8-year-old girl.
The respondent has not committed any further sexual offence since 2007. However, in April 2017 he was convicted of an offence contrary to s 557K(6)(b) of the Code of being a child sex offender who, without reasonable excuse, was in or near a place where children were regularly present.
On 12 August 2018 the respondent was sentenced to a total of 4 years imprisonment for the index offence. The commencement date of the sentence was backdated to 8 June 2018. The expiry date of the sentence is 7 June 2022.
The facts of the index offence were as follows.
The victim was the respondent's partner. The respondent was subject to protective bail conditions at the time which prevented him from having contact with the victim.
The respondent, the victim and the victim's sister had been consuming alcohol together. The respondent began to physically abuse the victim. The respondent stomped on the victim's foot twice. The victim walked away.
The respondent then hit the victim in the back with a chair. The victim fell forwards onto the kitchen table. The victim told the respondent that she was going to leave him. The respondent said that he would kill the victim and himself. The respondent pulled the victim into the dining room by her jumper and punched her in the head repeatedly with his fists. The respondent then took a large steak knife from the kitchen and stabbed the victim in the head approximately 4 times. The respondent then hit the victim in the head with a glass bottle a few times. The respondent then left the premises and did not render assistance to the victim. Nor did he contact emergency services.
It is worth noting that the respondent committed the index offence while subject to a suspended imprisonment order imposed for other offences.
Recent participation in programs and recent assessments
A neuropsychological report dated 10 January 2019 was prepared for the purpose of the respondent's sentencing for the index offence. The author of the report stated that in talking about the index offence the respondent impressed as tending to minimise the seriousness of the offence and to rationalise his behaviour. She supported the undertaking of a review of the respondent's suitability for re-engagement in offender treatment programs for anger management, domestic violence and substance abuse.
A pre-sentence report (PSR) dated 15 January 2019 was also prepared for the purpose of the respondent's sentencing for the index offence. The author of the report expressed the view that the respondent's significant criminal record and continual disregard for personal and general deterrence demonstrates both a 'poor suitability' for further community supervision and a higher probability of reoffending particularly if he returns to illicit substance use. She stated that the respondent had been offered a number of opportunities to engage with services both in the community and in custody that would support him in developing coping strategies and improving his emotional regulation skills, but that he had chosen not to take advantage of these opportunities. She expressed the view that he had made very few gains in addressing his offending behaviour.
On 13 December 2019 the respondent's treatment needs were assessed by officers from the Department. The respondent refused to participate in a treatment assessment interview. The assessment was therefore undertaken and completed by reference to departmental records and past assessments of the respondent.
The Level of Service/Risk, Need, Responsivity (LS/RNR) and Violent Risk Scale (VRS) were used by the assessors to assess the respondent's treatment needs and risk of reoffending. The use of the LS/RNR revealed that the respondent had a very high risk/need rating. The use of the VRS revealed that the respondent was at a high risk of committing further violent offences. The assessors recommended that the respondent engage in the Pathways Programme to address his needs relating to the link between his substance use and his offending behaviour.
On 6 May 2020 the respondent was at his own request refused release on parole.
On 13 July 2020 the respondent completed the Connect & Respect Program. In their Program Completion Report dated 5 August 2020, the program facilitators reported that the respondent had identified and acknowledged the use of alcohol and other drugs as a contributing factor to his offending behaviour. They reported that the respondent had displayed empathy and remorse for his actions and for the victim of the index offence. They reported that the respondent wanted to 'turn his life around'. They reported that the respondent had stated that he had been using all sorts of abuse in his relationship with his partner because he did not know any better but that this did not excuse his behaviour. The assessors expressed the view that the respondent's ability to regulate his emotions and communicate with others in a healthy manner required further development. They concluded that the respondent would require continued treatment centred programs while out of prison to ensure that he was not prone to reoffending.
On 28 August 2021 the respondent completed the Pathways Program. In their Program Completion Report dated 7 October 2021, the facilitators of the program, under the heading 'Summary and Recommendations', said the following:
… During the program, [the respondent] demonstrated a positive and engaged manner and was respectful to both participants and facilitators. The respondent presented with outstanding treatment needs in the areas of substance use and offending behaviour, consequential thinking, conflict resolution, problem solving, cognitive skills and living a balanced lifestyle, pro-social involvement, and emotional regulation. [The respondent] displayed a willingness to learn and gain skills to aid in changing his thoughts, attitudes and displayed using these skills at times, within the prison. Through the program [the respondent] was afforded the opportunity to address these needs and gain skills and strategies to manage these high risk areas… Although [the respondent] did display some treatment gains and displayed a willingness to embrace and implement these skills, there was still some deeply embedded cognitive distortions and victim stance cognitions, which he needs support to continue to work on. In addition, the deeply entrenched nature of substance use and antisocial associations within his family and peer associations still pose a high risk for [the respondent]…[The respondent] stated he is concerned his skills are not robust enough to withstand peer pressure from family members to engage in illicit substance use and criminal conduct and also stated he wanted to drink moderately, despite recognising alcohol always results in negative consequences.
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
The respondent has a number of convictions for sexual offences one of these offences being a 'serious offence' for the purposes of the Act. However, given the time that has elapsed since the respondent committed the last of his sexual offences and the relatively short time frame within which all of the offences were committed (approximately 2 years), I am not persuaded on the material before me that there are reasonable grounds to believe that the court, by reason of the respondent's commission of the sexual offences, might find that he is a high risk serious offender.
The respondent has a lengthy criminal record containing a significant number of convictions for serious offences of violence. Although the majority of the respondent's past offences of violence are not 'serious offences' within the meaning of the Act, the number and nature of the offences reveals that he does have a propensity for unprovoked and significant acts of violence that are more likely to occur when he is consuming illicit substances and drinking alcohol. It is not difficult to see that, if repeated, the types of acts of violence committed by the respondent could well fall within the category of 'serious offences'.
The respondent has a significant number of treatment needs particularly in relation to alcohol and substance abuse and emotional regulation. Obviously the respondent's entrenched substance use problem and association with negative peers and family members still present as very significant risk factors for him notwithstanding that he has during his current term of imprisonment taken some steps to address these issues. As the respondent himself recognised during the Pathways Program, he still wants to consume alcohol and doubts his ability to withstand pressure from family members to engage in illicit substance use and criminal behaviour.
The most recent assessment of the respondent's risk of reoffending is that he is at a high risk of committing further violent offences.
Taking into account all of the matters referred to in the preceding three paragraphs, I am satisfied that there are reasonable grounds to believe that a court might find that the respondent is a high risk serious offender. I will therefore make orders for the hearing of the restriction order application.
The respondent's proposed accommodation
If the respondent is released upon the expiry of his current sentence he proposes to live with his sister at 1/290 Hay Street, Kalgoorlie (Hay Street address).
Adjournment of application for interim detention order
The question that remains is whether I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act, an interim supervision order pursuant to s 58(5) of the Act or no further order at all. The answer to this question depends on my assessment of what is required to ensure adequate protection of the community pending the determination of the restriction order application. In making this assessment I must bear in mind that the scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.
As I have already indicated, the State submits that an interim detention order needs to be made to ensure adequate protection of the community. In making this submission the State contends, in reliance on the contents of the affidavits of Ms Applin and Mr Clancy-Lowe, that the Hay Street address is not a suitable residence for the respondent to be released to. However, the State has also made clear that if suitable accommodation can be found for the respondent it will not oppose him being released on an interim supervision order.
The respondent contends that the Hay Street address is a suitable address for him to be released to on an interim supervision order. I have heard submissions from the respondent's counsel in support of this contention.
During the course of her submissions the respondent's counsel informed me, in substance, that if I am not satisfied of the appropriateness of the Hay Street address there are two other possible viable accommodation options available to the respondent about which further information will be able to be obtained if the State's application for an interim detention order is adjourned for a period of time and to a date which is before the respondent's sentence expiry date.
The State does not oppose an adjournment of its application for an interim detention order to allow further inquiries to be made in relation to the respondent's two other possible accommodation options.
In my view I should, before deciding if the respondent can be released on an interim supervision order, have the benefit of information relating to all possible accommodation options for the respondent. This is not to say that I will ultimately decide that the Hay Street address is not an address to which the respondent can properly be released to on an interim supervision order. I reserve my position in this regard noting that I am yet to hear the State's full submission in reply to the respondent's submissions that the Hay Street address is suitable. However, in my view if there are any 'more suitable' accommodation options then I should be made aware of them before determining the State's application.
In these circumstances I will adjourn the State's application for an interim detention order to 24 May 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LK
Associate
27 APRIL 2022
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