The State of Western Australia v Dragon - [2021] WASC 425

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DRAGON [2021] WASC 425
CORAM:   QUINLAN CJ
HEARD:   26 NOVEMBER 2021
DELIVERED          :   29 NOVEMBER 2021
PUBLISHED           :   29 NOVEMBER 2021
FILE NO/S:   SO 12 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

BRADLEY PEN DRAGON
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim detention order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Order made under s 46
Interim detention order made

Category: B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	T J McCulloch

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid WA

Cases referred to in decision:

The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 29 November 2021 and has been edited from the transcript.)

Introduction

On 18 October 2021, the State of Western Australia applied for a restriction order in respect of Bradley Pen Dragon under the High Risk Serious Offenders Act 2020 (WA) (the Act).
Mr Dragon is presently subject to a term of imprisonment which will expire on 16 December 2021.
The preliminary hearing of the application was listed before me on 26 November 2021.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that Mr Dragon is a high risk serious offender within the meaning of that Act (see s 46(1) of the Act).
If I am so satisfied the State seeks interim orders pursuant to s 46(2) of the Act, including orders that Mr Dragon undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application. The State also submits that I should impose an interim detention order, or alternatively, an interim supervision order, pending the hearing of the restriction order application.
Counsel for Mr Dragon conceded the threshold issue as to whether there are reasonable grounds for believing that the Court might find that Mr Dragon is a high risk serious offender. He did, however, oppose the making of an interim detention order. While acknowledging the difficulties associated with Mr Dragon's lack of proposed residence upon release, Mr Dragon submitted that I should make an interim supervision order.
For the reasons that follow, I am satisfied that there are reasonable grounds for believing that the Court might find that Mr Dragon is a high risk serious offender. I also find that it is necessary for the adequate protection of the community that Mr Dragon be subject to an interim detention order pending the determination of the restriction order application.

The law

As noted above, pursuant to s 46(1) of the Act, the main purpose of the preliminary hearing is to decide whether the Court is satisfied that there are reasonable grounds for believing that the Court might find that Mr Dragon 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 person to ensure adequate protection from the community against an unacceptable risk that the person will commit a serious offence. A 'serious offence' within the meaning of the Act, relevantly, includes an offence against the law of the Commonwealth of a sexual nature with a penalty of 7 years or more. This includes an offence against s 474.19[1] of the Criminal Code Act 1995 (Cth), being accessing child pornography material using a carriage service.
[1] As at 14 November 2018.
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 an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting 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.[2]
[2] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

In support of its application, the State relies upon the following:
(a)an affidavit of Brent Douglas Meertens affirmed on 15 October 2021, containing Mr Dragon's criminal history and several previous reports in relation to him, including pre‑sentence reports, psychological reports and program completion reports;
(b)an affidavit of Heather Applin (senior community corrections officer) affirmed 22 November 2021;
(c)an email containing information provided by Aimee Goode from the Community Offender Monitoring Unit (COMU) dated 25 November 2021 (Exhibit 1); and
(d)an affidavit of Nadine Minnock (acting team leader of COMU) affirmed on 26 November 2021.
Ms Minnock's affidavit was filed following the hearing before me on 26 November 2021. When I reserved my decision, I advised the parties that should they wish to place further material before the Court in relation to Mr Dragon's proposed accommodation, I would hear from the parties before reaching my decision today. No party objected to my having regard to the affidavit of Ms Minnock.
Mr Dragon is 61 years old.
Mr Dragon has a long history of offending, spanning many decades commencing in New South Wales. His offending in that State includes many counts of stealing, and breaking and entering and stealing. He also has convictions for stealing and unlawful use of a motor vehicle in Queensland from 1982.
Mr Dragon was first convicted of sexual offences in Thailand committed in 1993. According to what limited official information that is available in relation to that offending, in 1994 Mr Dragon was sentence to 2 years 6 months imprisonment for sacrilege against religion, possession of pornography and possession of an offensive weapon. In 1996, he was sentenced to 1 year of imprisonment, later reduced to 8 months, for possession of pornographic photographs.
In 1997, Mr Dragon was found guilty of having sexual intercourse with girls under 15 years of age on four occasions and committing indecent acts on children under 15 years of age on four occasions. That offending was particularly prolonged and depraved, and involved a number of girls of very young ages. Mr Dragon spent approximately 13 years in prison in Thailand until his release in June 2006.
When Mr Dragon returned to Australia, and ultimately settled in Western Australia, his offending continued.
In 2007, he committed a number of offences of possession of child pornography and images of bestiality. The images of child sexual abuse were contained on several storage devices. He was convicted of those offences on 15 January 2008 and was sentenced to terms of conditional suspended imprisonment.
Mr Dragon breached the conditions of his suspended terms of imprisonment shortly after, on 5 February 2008, by again being found to be in possession of child pornography.
Following his release from prison, Mr Dragon was convicted of offences involving his being in possession of replica weapons on separate occasions in May and June 2009. At the same times, Mr Dragon was again found to be in possession of child pornography. On 27 August 2010, he was convicted of eight separate counts of possessing child pornography, over three separate occasions. He was sentenced to a total effective sentence of 34 months imprisonment.
On 7 August 2012, Mr Dragon committed an aggravated assault with intent to rob. The circumstances of that offence were that Mr Dragon was in Mount Lawley, near the Mercy Hospital. The victim walked from the hospital to her car, which was parked in a carpark on the roadside.
The victim unlocked the vehicle and placed her 11‑month‑old baby into a child seat in the centre of the back seat, she then placed a pram in the boot before getting into the driver's seat and preparing to drive away. Before the victim could drive away, Mr Dragon opened the rear passenger door and climbed in. He reached over the baby seat and placed an arm around the driver's seat headrest and the victim's throat to restrain her.
Mr Dragon was holding a kitchen knife with a blade approximately 20 cm long. The victim fought back. She managed to wrench the knife from Mr Dragon and she threw it away. Mr Dragon ran from the scene. As a consequence of the offence the victim received cuts to fingers on her right hand caused by the knife.
Mr Dragon was sentenced to 5 years imprisonment. The sentence expired on 6 August 2017.
Upon his release Mr Dragon moved to backpackers' accommodation. Two days after his release, Mr Dragon attended another backpackers' location that had internet access, where he spent approximately 4.5 hours on the internet. During that time he accessed child pornography depicting children between the ages of 2 and 16 years.
He returned to that location on 12 August 2017 and spent approximately 6 hours on the internet. He again accessed child pornography accessing over 700 images. A representative sample of the images was described by the sentencing judge. Needless to say the material accessed by Mr Dragon was vile and depraved.
For this offending, Mr Dragon was convicted of two counts of using a carriage service for child pornography material contrary to s 474.19 of the Criminal Code Act 1995 (Cth) and was sentenced to a total effective term of 4 years 4 months imprisonment, backdated to 17 August 2017.
There are a number of pre‑sentence reports, psychological and program reports included in Mr Meertens' affidavit. Those reports date back to 2007. The most recent treatment report (an Intensive Sex Offender Treatment Program Completion Report dated 8 August 2016) dated from prior to Mr Dragon's most recent sentence and the psychological reports are dated from 2010 and 2012. The only material prepared during his current term of imprisonment that is before me is a Level of Service Risk Need Responsivity prepared at Acacia Prison on 12 November 2019.
While some of the reports were prepared some time ago, they nevertheless, reveal a consistent picture of a disordered and persistent interest in child sexual abuse on Mr Dragon's part. He apparently sees nothing wrong with his interest in child pornography. A report from Ms Mary-Ann Martin psychologist, dated 7 July 2010, for example said:
Based on his Static-99 risk level and a structured professional judgement approach, overall Mr Dragon appears to present a high risk for sexual re offending. He is very likely to engage in further internet child pornography offending because, as he has indicated, he has not 'reached a plateau' where he has lost interest and needs to move on to other activities, whether they are legal or illegal. He does not see that there is anything wrong with his child internet pornography behaviour and he has anti-authoritarian views towards anyone trying to stop him doing those activities.
As to his personality make‑up, Ms Julie Hasson, forensic psychologist, said in her report of 14 November 2012:
Mr Dragon's profile reveals significant elevations on the Schizoid and Antisocial subscales. Schizoid personality features are characterised by a long standing pattern of detachment from social relationships. A person with schizoid personality disorder often has difficulty expressing emotions and does so typically in a very restricted range, especially when communicating with others. A person with this disorder may appear to lack a desire for intimacy, and will avoid close relationships with others. They may often prefer to spend time with themselves rather than socialise or be in a group of people. In laypeople's terms, a person with schizoid personality disorder might be thought of as the typical 'loner'.
As would be expected, the antisocial subscale identifies those individuals who persistently disregard rules, the law and authority beginning in early childhood. Other characteristics include manipulating, exploiting and violating the rights of others. Substance abuse, lying, stealing and fighting as well as a lack of guilt and remorse are all common traits consistent with such a personality type. Mr Dragon's background and indeed even his present behaviour (chronic unstable, antisocial and socially deviant lifestyle) evidence all of these traits. His personality style contributes to his offending behaviour from a young age.
The Intensive Sex Offender Treatment Program Completion Report dated 8 August 2016 provides a further, somewhat more recent insight into Mr Dragon's sexual deviancy:
Throughout the program Mr Dragon was dogmatic in his views endorsing child sexual abuse, and purported society needed to change its views intimating law reform in the future would and should decriminalise sexual contact with children. An integrated approach utilising the stages of change model and motivational interviewing techniques to assist with facilitating a change in Mr Dragon was used by facilitators. However, he remained fixed in his views on the benefits of sexual offending against children such as the victims feeling loved and being provided with money (in reference to the child prostitute being paid). He noted negative outcomes included his own lowered self-esteem due to the consequences of 'conforming' to societal norms. Furthermore, he appeared to ignore exploring negative consequences of imprisonment. He reiterated his disinterest in the program preferring to be in education or painting … Although he completed all work as required, his input (verbal and written) was focused on his grievances about the Australian government and society, facilitators and other staff rather than on his personal development.
A week after completing the program Mr Dragon was found, while engaging in education, to be in possession of inappropriate material; clip art images of young girls posing, list of phone numbers for prostitutes, and a list of in excess of 130 pornography sites – some child/teen, (e.g. were found on his education work/files, as well as information about countries that have 'no police – anything goes here' (TOMS Incident I12577436 8/12/2015). Such behaviour is considered further evidence of Mr Dragon's lack of motivation to change his behaviour.
The report also documents the entrenched nature of Mr Dragon's views:
Despite being sanctioned/imprisoned on a number of occasions this has not acted as a deterrent demonstrating entrenched sexual pre occupation whereby he appears to have a sexual compulsion towards children. Despite his imprisonment in Thailand, he considered his sexual attraction and experiences with underage girls as 'a viable interest, orientation and practice' and reportedly became less inhibited in his behaviour. Mr Dragon informed that he felt that he was 'able to control his sexual impulses without intervention' (Lynn 2007; p5). However his actions would suggest otherwise. During his prison terms in WA incidents (refer TOMS incidents) have been recorded whereby he has been found to have inappropriate material on numerous occasions: April 2008 – images of children in various stages of undress; April 2015 – images of naked adult females and children not undressed; December 2015 images, telephone numbers and web addresses for prostitutes and child pornography sites. The images/material located in 2008 and December 2015 were found amongst Mr Dragon's education material.
…
Despite treatment including didactic instruction to assist in developing understanding of consent and healthy sexuality, Mr Dragon remained uninterested in altering his sexual interests or recognising that they pose a problem. His plans for the future appeared to be oriented towards enabling him to continue his interests with likeminded people, possibly travelling to countries with vulnerable children that lack the resources to monitor such behaviour, enabling him to continue an illicit sexual lifestyle.
The reports summary and recommendations including the following:
From the outset and throughout treatment Mr Dragon's readiness and motivation to engage was questionable rather his input was more suggestive of being pre contemplative stage of change. His personality disorder/personality structure presented as a considerable barrier to treatment. Mr Dragon presented as generally hostile and oppositional. He appeared to use the program to express his grievances with the Australian government and society which he seemed fixated on. Mr Dragon's ongoing negative emotionality remained under-regulated throughout treatment. He frequently expressed strong beliefs supportive of sexual contact with children/offending attempting to impress this as providing a positive experience and portraying this as a natural behaviour.
…
In conclusion Mr Dragon poses a high risk of sexual reoffending and continues to present with significant outstanding treatment needs. Throughout treatment he showed lack of insight into his deviant sexual behaviour, lacked motivation for change and presented with problematic personality disorder/structure. As such he made limited gains while in the program.
While it is light on detail, the Level of Service Risk Need Responsivity report dated 12 November 2019 does not suggest that anything has changed during Mr Dragon's recent term of imprisonment. If anything, it is more ominous:
Mr Dragon demonstrated a lack of understanding regarding the exploitation of children, their abuse, and the market which supports that exploitation and abuse. Mr Dragon's repeat offending displays his deviant behaviours. Notes in TOMS highlights that Mr Dragon was getting increasingly more frustrated with systemic issues and was having thoughts of killing others (officers and prisoners). Mr Dragon reported that he does not follow the values, rules and laws of Australian society and government.

Assessment

I am satisfied that there are reasonable grounds to believe that a court might find Mr Dragon to be a high risk serious offender.
My reasons are as follows.
Mr Dragon has a significant history of sexual offending against children and has also previously committed a violent offence. The evidence supports the conclusion that he has a deeply entrenched sexual interest in children, which he regards as natural. It is clear from the reports that are available that Mr Dragon has made very few, if any, treatment gains when treatment is attempted. The most up‑to‑date reports, albeit from some years ago, indicate that Mr Dragon is at a high risk of sexually reoffending.
I will therefore make orders for the hearing of the restriction order application and for Mr Dragon to be examined by a psychiatrist and qualified psychologist for the purposes of preparing reports to be used at that hearing.

Interim detention order

In the meantime, the State submits that I should make an interim detention order pending the determination of the restriction order application, or in the alternative, an interim supervision order.
To order that a person be detained in custody pending the determination of an application under the Act is clearly a serious step to take. It is one not to be taken lightly, and it must be necessary for the adequate protection of the community.
In the present case I am satisfied that the adequate protection of the community requires that Mr Dragon be detained in custody pending the application.
Three considerations, in particular, compel that conclusion.

First, Mr Dragon's risk of reoffending has, in the past, been assessed as high and there is no evidence to suggest that he has made any progress in addressing the underlying causes of his offending. The potential victims of any reoffending by Mr Dragon would likely be vulnerable children.
Secondly, as Mr Dragon's most recent offending vividly demonstrates, he has a history of offending very shortly after his release from custody. On the last occasion it was within a matter of days. There is a real risk that the speed within which Mr Dragon has reoffended may be repeated. If that occurs, any supervision in the community would be of little effect.
Thirdly, Mr Dragon has no proposed accommodation upon his release. Ms Applin stated in her affidavit that
[Mr Dragon] advised it was his intention to stay in a hotel in the Perth area following his release from prison whilst he attempted to secure a private rental property. [Mr Dragon] stated he has funds for an initial period in a hotel on a short-term basis and would then be reliant upon Centrelink payments.
[Mr Dragon] identified if released to the community he would locate available hotel accommodation within his budget, as such he is unable to provide a potential address prior to his release and comment relating to the workings of the Global Positioning System equipment is unable to be made.
[Mr Dragon] reported he is not engaged with any service provider to assist in obtaining accommodation. Uniting WA has confirmed they are not engaged with him, as such unable to provide accommodation support.
The information provided by Ms Goode from COMU dated 25 November 2021 (Exhibit 1) stated:
Given the time of year as well, it may be difficult for him to obtain hotel/caravan accommodation and the likelihood of families residing in these types of accommodation is higher, which is also a concern given his risk to children. From a GPS perspective management in hotels/caravan's can occur, however again it may not be clear if he is in his room or others, which given his history of offending is concerning. The capabilities of the Global Positioning System vary depending on a number of technical factors.
Ms Goode continued:
We would likely direct Mr Dragon if he is placed on an ISO to take up residence at one of the emergency accommodation motels as these have been screened by COMU and disclosed to Department of Communities, Child Protection and Family Support and Police to not relocate any families or children there if a HRSO is there. This will mean of the 4 metropolitan emergency accommodation motels only 1 HRSO can be placed there and therefore it impacts the entire cohort of HRSOs in the event there is any safety issues and emergency relocation is required.
Finally, Ms Minnock's affidavit clarified COMU's position in relation to the accommodation option referred to by Ms Goode. She deposed:
The Emergency accommodation motels identified by the Community Offender Monitoring Unit are short term crisis accommodation which have been assessed for use in emergency situations.
It is not considered a viable accommodation option for [Mr Dragon], and the same issues apply as we previously raised in relation to concerns with residing at these locations in relation to GPS, namely the capabilities of the Global Positioning System vary depending on a number of location and environmental factors.
One of these factors is interference caused by very high-density accommodation which can produce signal drift and/or intermittent signal. During curfew hours (set by the Risk Management Team) a zone is put in place to confirm if the offender is within range of a base unit or beacon (depending on the specific device used i.e. track 1 or track 2). It is not possible to say with the close proximity of other units/hotel rooms/caravans if the offender is in another area, only that he is within range of the base unit or beacon and therefore compliant with curfew.
In all of the circumstances, I am satisfied that the lack of any proposed safe accommodation for Mr Dragon presents a significant impediment to the effective supervision of Mr Dragon in the community at this time. Without being able to identify the suitability of any proposed accommodation, there is no effective way for me to determine whether children would be at risk at any location that Mr Dragon might reside.
Nor in any event, am I satisfied, in the absence of further evidence, that Mr Dragon would meaningfully comply with the conditions of an interim supervision order. Indeed, as I have noted above, Mr Dragon has reported that he does not follow the values, rules and laws of Australian society. In those circumstances, he is hardly likely to follow the directions of a community corrections officer.
For these reasons, I order that Mr Dragon be subject to an interim detention order until the completion of the restriction order hearing.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
29 NOVEMBER 2021