The State of Western Australia v Dempster [No 3]

[2023] WASC 94

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DEMPSTER [No 3] [2023] WASC 94

CORAM:   MCGRATH J

HEARD:   21 MARCH 2023

DELIVERED          :   21 MARCH 2023

PUBLISHED           :   24 MARCH 2023

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 offender -  Contravention proceedings - Application for interim supervision order pending determination of contravention proceedings - Whether exceptional circumstances exist - Whether there will be substantial compliance with standard conditions of the supervision order - Need to ensure adequate protection of the community

Legislation:

High Risk Serious Offenders Act 2020 (WA), s 53, s 56

Result:

Offender detained pending determination of contravention proceedings

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):

Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4

The State of Western Australia v Dempster [2022] WASC 135

The State of Western Australia v Dempster [No 2] [2022] WASC 187

MCGRATH J:

1. The State has filed an application under s 55 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) commencing contravention proceedings in respect of the respondent breaching his interim supervision order. In support of the application the State has filed an affidavit of Mr McDonnell, counsel, affirmed 21 March 2023.

2. The issue that I must decide is whether the respondent may be released on an interim supervision order pending the determination of the new contravention proceedings.  Counsel for the respondent submitted that given the absence of suitable accommodation, the interim detention of the respondent is not opposed.  I find the concession of the respondent was properly made and that the respondent must be subject to interim detention pending the determination of the contravention proceedings for the following reasons.

Procedural history

1. On January 2022, the State of Western Australia sought a restriction order in respect of the respondent under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The State contends that the respondent is a high risk serious offender and that it is necessary that he be detained in custody for an indefinite term for control, care or treatment. In the alternative, the State submitted that should the respondent be released, then he be subject to a supervision order under the HRSO Act.

2. On 22 April 2022, Derrick J heard the preliminary hearing and determined that there were reasonable grounds for believing the Court might, in accordance with s 7 of the HRSO Act, find that Mr Dempster is a high risk serious offender.[1]  On 26 May 2022, Derrick J ordered that the respondent be released pursuant to an interim supervision order pending the determination of this restriction order application.[2]

   [1] The State of Western Australia v Dempster [2022] WASC 135.

   [2] The State of Western Australia v Dempster[No 2] [2022] WASC 187.

3. On 9 November 2022, this restriction application was heard before me. The contention of the applicant at the hearing was that a supervision order under the HRSO Act would adequately manage the risk of the respondent reoffending.[3]  The respondent's position was that whilst accepting that the evidence supported the making of a supervision order, the length of the supervision order should be only for a three-year period and that a number of the conditions sought to be imposed under the supervision order were not necessary.  I reserved my decision.

   [3] Applicant's written submissions, [4].

4. On 11 November 2022, the respondent was charged with one charge of common assault contrary to s 313(1)(b) of the Criminal Code and three charges of contravening a condition of the interim supervision order contrary to s 80(1) of the HRSO Act. The respondent was remanded in custody to reappear on 22 March 2023 for a hearing in respect to the common assault charge and one contravention charge. The respondent pleaded guilty to the other two contravention charges. The learned Magistrate adjourned sentencing until the determination of the further two charges.

5. On 21 March 2023, the State commenced the contravention proceedings in respect of the interim supervision order.

6. On 22 March 2022, the respondent was convicted of the common assault charge and the contravention charge. The learned Magistrate imposed a term of immediate imprisonment of 6 months and 1 day in respect of the assault charge and a 1 month term of imprisonment for two of the contravention charges. The learned magistrate imposed no penalty in respect to the fourth contravention charge pursuant to s 11 of the Sentencing Act.  The terms of imprisonment were ordered to be served concurrently and backdated to 13 November 2022.  Therefore, the total effective term of immediate imprisonment was 6 months and 1 day, with the respondent's release date being 13 May 2023.

7. The restriction application and the contravention application are now listed for a hearing on 24 May 2023.

8. Therefore, the State is applying for a contravention application in respect of an interim supervision order. However, no finding has been made yet that the respondent is a high risk serious offender. The contravention of the interim supervision order is highly relevant to the determination of the restriction order application. I will consider the contraventions as part of the evidence that informs whether the respondent is declared a high risk serious offender and if so, whether he is detained or released on a supervision order in respect to the restriction order application. I will, further at the restriction order hearing, determine whether the respondent has contravened the interim supervision order in the contravention proceedings and therefore, make the appropriate order under s 55 of the HRSO.

Relevant legislative provisions

1. Section 56 of the HRSO Act relevantly provides that:

   (1)This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect of the offender are pending (the pending proceedings)

   (2)The court may at any time in the pending proceedings -

   (a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or

   (b)if the offender is not detained in custody, order the offender to be detained in custody.

   (3)The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -

   (a)releasing the offender is justified by exceptional circumstances; and

   (b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).

2. Therefore, I must be satisfied on the balance on probabilities of both matters specified in s 56(3) before I can order the respondent's release.

3. The term 'exceptional circumstances' used in s 56(3) is not defined in the HRSO Act. The term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special or an exception to the general trend of cases.

4. The standard conditions of the supervision order referred to in s 56(3)(b) are those set out in s 30(2), which provides:

   A supervision order in relation to an offender must require that the offender -

   (a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and

   (b)report to, and receive visits from, a community corrections officer as directed by the court; and

   (c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and

   (d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and

   (e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

   (f)not commit a serious offence during the period of the order; and

   (g)be subject to electronic monitoring under section 31.

5. As to the phrase 'substantially comply', this was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[4] in the context of contravention proceedings.  I apply the reasoning of Fiannaca J.

   [4] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4, [52].

6. The relevant questions to be decided are therefore as follows:

   1.Is the respondent's release justified by exceptional circumstances?

   2.If released, will the respondent substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?

The contraventions

1. The conduct upon which the applicant relies in support of the contention that the respondent has contravened the supervision order comprises the criminal convictions which I have outlined.

Assessment of the application

1. I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.

Are there exceptional circumstances?

1. The initial question for my determination is whether exceptional circumstances exist for the purposes of s 56(2) of the HRSO Act. Counsel for the respondent did not submit that there were any exceptional circumstances. I find that there are no exceptional circumstances within the meaning of s 56(3) of the HRSO Act.

Will the respondent substantially comply with the standard conditions of the supervision order?

1. I now turn to the question posed by s 56(3) as to whether the respondent has satisfied me on the balance of probabilities that if he is released, he will substantially comply with the standard conditions of the supervision order, including any amendments made to the standard conditions of the supervision order.

2. As to whether the respondent will substantially comply with the standard conditions of the order, the onus is on the respondent to establish that he will do so on the balance of probabilities.

3. When the contraventions are viewed together, and in light of other evidence that the State relies upon, there appears to be good reasons for the authorities to be concerned about their ability to manage the respondent in the community.  The respondent has been convicted of three contravention offences whilst subject to the interim supervision order.  The contraventions comprised the consumption of alcohol, failing to adhere to a curfew and by committing an offence of violence.  The respondent was convicted of assaulting another person whilst heavily intoxicated.  The assault involved the respondent pushing his hand to the face of the victim.

4. Further, the accommodation that the respondent has been residing in is considered by the authorities to be no longer suitable.  Ms Hasson, clinical psychologist, in her supplementary report dated 30 November 2022 stated that the accommodation is no longer stable and supportive.  Alcohol is being consumed at the premises and women and children are now visiting.  The respondent does not have his own bedroom in the small one bedroom apartment.  Ms Hasson stated that the respondent would be unable to avoid or disengage from antisocial individuals and family members under the influence of alcohol and illicit substances.  Given the curfew requirement, the respondent is unable to leave the premises should intoxicated and anti-social individuals visit. 

5. Dr Wojnarowska in a supplementary report dated 2 December 2022, in considering whether the respondent's accommodation is suitable, stated that she was unable to express an opinion because she has not interviewed the respondent.

Conclusion

1. Therefore, the respondent will be detained in custody pending the determination of the contravention proceedings.

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

CB

Associate to the Honourable Justice McGrath

24 MARCH 2023