The State of Western Australia v Goodall [No 2]
[2022] WASC 146
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GOODALL [No 2] [2022] WASC 146
CORAM: ALLANSON J
HEARD: 4 APRIL 2022 & 19 APRIL 2022
DELIVERED : 29 APRIL 2022
PUBLISHED : 29 APRIL 2022
FILE NO/S: SO 2 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ADAM RONALD JOHN GOODALL
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Where respondent has history of serious violent offending - Whether respondent high risk serious offender under Act - Turns on facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | F Allen |
| Respondent | : | S D Freitag SC |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
GBT v The State of Western Australia [2019] WASCA 40
Italiano v The State of Western Australia [2009] WASCA 116
Palmer v Dolman [2005] NSWCA 361
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217
ALLANSON J:
Introduction
The State of Western Australia has applied for a restriction order pursuant to s 48 of the High Risk Serious Offenders Act 2020 (WA) in relation to the respondent, Adam Goodall.
Mr Goodall was released from custody on 31 March 2021, subject to a post sentence supervision order which commenced on 11 April 2021. At a preliminary hearing on 23 April 2021, Quinlan CJ made orders pursuant to s 46 of the Act for the hearing of this application.
The State's application was heard on 4 April and 19 April 2022. Mr Goodall remained in the community awaiting the hearing.
In these reasons, references to legislation, unless specified otherwise, are to the provisions of the High Risk Serious Offenders Act.
Restriction Orders
By s 48(1), if the court finds that Mr Goodall is a high risk serious offender, the court must make a restriction order in relation to him. A restriction order may be either a continuing detention order or supervision order.
Mr Goodall is a high risk serious offender if the court finds that it 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 him to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[1]
[1] Section 7(1).
The court must have regard to the following matters set out in s 7(3):
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
The matters set out in pars (h) and (i) are conclusions or findings based on the preceding paragraphs, and any other relevant matters.
The term 'serious offence' is defined in s 5. Relevantly to this application, it includes an offence specified in sch 1, div 1, and offences committed by Mr Goodall in Victoria that would have constituted serious offences for the purposes of the Act if they had occurred in Western Australia.[2]
[2] High Risk Serious Offenders Act s 5(4).
The court cannot make a supervision order, and thus must make a detention order, unless it is satisfied, on the balance of probabilities, that Mr Goodall will substantially comply with the standard conditions of the order. The onus of proving that he will substantially comply is on Mr Goodall.[3]
[3] Section 29(1) and (2).
The evidence
In an application for a restriction order, the court must hear admissible evidence called by the State and, if an offender elects to give or call evidence, that evidence.[4] The rules of evidence apply, but are modified to permit the court to 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 s 7(3) relating to the offender.[5]
[4] Section 84(2).
[5] Section 84(4) ‑ (5).
The State relied on the documents in a Book of Materials which included:
(1)Mr Goodall's criminal records in Western Australia, New South Wales and Victoria;
(2)records relating to his periods of imprisonment between July 2007 and April 2021;
(3)documents relating to convictions for serious offences for which Mr Goodall was sentenced in the Children's Court in 1990 and 1991;
(4)documents, including transcript and reports prepared for the purposes of sentencing, in relation to offences committed in 1992 (aggravated robbery, and criminal damage by fire)[6]; two offences of armed robbery committed in 2010; two offences of aggravated armed assault with intent to rob, aggravated burglary, and grievous bodily harm with intent committed in 2013;
(5)documents relating to convictions for aggravated burglary and burglary for which Mr Goodall was sentenced in 2008 and 2015;
(6)reports relating to programs undertaken while imprisoned between 2015 and 2019;
(7)a psychological report prepared for the Prisoners Review Board for the purposes of consideration of parole, together with a parole addendum report, in 2020;
(8)a Post‑Sentence Supervision Order made 31 March 2021 and two reports, prepared 19 May 2021 and 21 June 2021, summarising Mr Goodall's progress on the order;
(9)two psychological reports prepared in 2010 (by Ms Mary‑Anne Martin) and 2019 (by Ms Amanda Thompson) ;
(10)a Community Supervision Assessment, dated 3 August 2021, and an updated report, dated 4 February 2022, prepared by Ms Trudy Hill, a senior Community Corrections Officer;
(11)reports of Dr Natalie Pyszora, psychiatrist, dated 23 July 2021, and Ms Julie Hasson, psychologist, dated 18 July 2021, prepared for the purposes of s 74 of the Act.
[6] Committed as a juvenile.
The State also relied on:
(1)a Treatment Plan, prepared by Ms Sarah Ballantyne, senior counselling psychologist, dated 4 August 2021;
(2)a report of Garry Duggan, clinical psychologist, who was the psychological counsellor for Mr Goodall from 16 May 2021 until 15 November 2021.
Dr Pyszora, Ms Hasson and Ms Hill testified at the hearing.
Mr Goodall did not give evidence or adduce other evidence. He did, however, address the court by way of a submission.
The court is required to assess the present level of risk, and what restrictions (if any) are now required to ensure the adequate protection of the community against an unacceptable risk. The fact that a document or report is admissible for the purposes of proceedings under the Act does not require the court to find it is acceptable and cogent evidence for the purposes of s 7(1). Where a document or report was prepared many years ago, additional evidence may be required to relate the report to any present level of risk, and to whether and how that risk may be managed.
Antecedents and criminal record
Because they inform other relevant factors, it is convenient to begin with Mr Goodall's antecedents and criminal record.
Personal history
Mr Goodall's personal history is summarised by both Dr Pyszora and Ms Hasson in their reports. There is some inconsistency in accounts from different sources. Mr Goodall told Dr Pyszora he was unsure which memories were truly his, and which had been formed from what he was later told. Potentially important facts, including whether he was sexually abused in the home as a child, are inconsistently reported.
Mr Goodall was born on 28 February 1977 and is currently 45 years old. His parents separated when he was about two years old and both remarried. Mr Goodall has nine sisters and two brothers.
When Mr Goodall was about six or seven years old, his mother was sentenced to imprisonment for supply of heroin. During this period he was looked after by friends of his mother.[7]
[7] Book of Materials 970.
Mr Goodall's mother re‑married when Mr Goodall was aged eight or nine. Mr Goodall may have been physically abused by his mother's second husband, and his older sister sexually abused. Mr Goodall's recollection is that, at the age of nine, he witnessed his stepfather sexually abusing his sister. When he reported it to his mother, she did not believe him, and his stepfather beat him. It was then agreed he would go and live with his father.
Around this time his mother was convicted of possession of heroin with intent and sentenced to be imprisoned for 36 months.[8]
[8] Book of Materials 970.
Mr Goodall reported physical abuse from his father when he lived with him.
Mr Goodall was made a ward of the state at the age of nine and spent time in foster care and living on the streets where he said he endured emotional, physical, and sexual abuse.
When he was 12, Mr Goodall was placed in Parkerville Children's Home. Most of his education was completed in juvenile facilities.
Mr Goodall reported suffering significant abuse, including sexual abuse, while at Parkerville.
Mr Goodall went to the eastern states at the age of 18 or 19. He served prison sentences in New South Wales. He was also involved in a vehicle accident in which he suffered injuries which resulted in chronic pain. Mr Goodall reported that he developed a heroin habit after being treated with opiate based analgesia for the chronic pain.
From New South Wales, Mr Goodall went to Victoria where he was again imprisoned, on this occasion for very serious offending.
Mr Goodall has spent most of his adult life in prison: by the age of 33 he had spent a total of 14 years in prison. He has had little opportunity for employment in the community, but while imprisoned has completed certificates from various TAFE institutes.
Substance abuse
Mr Goodall's reporting on this issue is inconsistent.[9] He reported using heroin intravenously from 18 or 19 years of age until he was 24. It is unlikely that his use ceased then, because between 2013 and 2018, while in prison, Mr Goodall was on a methadone program.
[9] See Book of Materials 976 ff.
Mr Goodall has also used cannabis, perhaps starting as early as age 9, and amphetamines. In 2020, Mr Goodall's parole was revoked as a result of methamphetamine use while on parole.
While awaiting the hearing of this application, Mr Goodall was subject to urinalysis for drug screening. On two occasions in December 2021, Mr Goodall provided samples that tested positive to heroin. He initially told his community corrections supervisor that he had obtained a bag of pills three weeks earlier from an unknown person, but later admitted he was using heroin.[10]
[10] See Annexure A to the affidavit of Michelle Rose McGrath sworn 5 December 2021 at 4 ‑ 5.
On 9 July 2021, Mr Goodall was charged with possession of cannabis. He was convicted and fined on 29 October 2021.
Mr Goodall has also been convicted of offences, committed on 5 August 2021, of possessing cannabis and methylamphetamine, and of driving with a prescribed illicit drug in his oral fluid.
Mr Goodall also returned two positive urinalysis results to cannabis in August and December 2021.
Health
Mr Goodall has several ongoing health conditions, including hypertension and hepatitis C. In prison, he was treated for elevated blood pressure.
Mr Goodall reported to Dr Pyszora that he has been tested for bowel cancer. There was no evidence before the court as to the result of that test.
Mental health
The evidence regarding Mr Goodall's mental health is inconsistent.
In 2010, a psychiatric report prepared for a sentencing hearing reported significant anxiety symptoms, and traits consistent with borderline personality disorder.[11] The psychiatrist, Dr Febbo, was of the opinion that Mr Goodall also met the criteria for a diagnosis of bipolar 2 disorder, paranoid personality disorder, and antisocial personality disorder.
[11] Book of Materials 981.
A presentence psychological report in 2015 questioned whether Mr Goodall suffered from bipolar disorder, and whether his problems were personality or trauma based.[12]
[12] Book of Materials 983.
The most recent psychiatric evidence, in the report of Dr Pyszora, records significant and persistent symptoms of post‑traumatic stress disorder, as a result of multiple traumas in his childhood.[13] Dr Pyszora noted that Mr Goodall fulfils criteria for complex PTSD, with additional difficulties in emotional regulation, negative alterations in the perception of self, and relationship disturbances.[14]
[13] Book of Materials 1003.
[14] Book of Materials 1003.
Dr Pyszora also found that Mr Goodall, since the age of 15 years, has displayed behaviours including failure to conform to social norms, irritability and aggressiveness, and reckless disregard for the safety of others. On that basis, Mr Goodall met the criteria for a diagnosis of antisocial personality disorder.[15]
[15] Book of Materials 1004.
Dr Pyszora diagnosed a substance use disorder which, in her report, she described as in sustained remission. Having regard to the positive tests returned for heroin in December 2021, and Mr Goodall being again on a methadone program, Dr Pyszora would now describe his substance use disorder as on maintenance therapy.[16]
Criminal history
[16] ts 76.
Mr Goodall's first recorded appearances in the Children's Court are in 1986, aged nine. His record of offending as a child includes offences of violence and animal cruelty. In 1992, aged 15, Mr Goodall was convicted of robbery and armed robbery. The following year he was convicted of arson and stealing with violence. There are very many other offences, with convictions recorded every year between 1988 and 1995, and sentences of detention imposed in each year between 1992 and 1995.
Mr Goodall then went to New South Wales where he again accumulated many convictions and was sentenced to terms of imprisonment. The record of offending in New South Wales ends in 2001. There is little information before the court as to the nature of the offences committed in New South Wales.
In April 2002, Mr Goodall was convicted in Victoria for offences of armed robbery intentionally causing serious injury, false imprisonment, and robbery, and sentenced to imprisonment for a total of eight years and six months with a non‑parole period of six years.[17] Mr Goodall seriously assaulted a police officer by punching and kicking the officer to the head and torso, and stole the officer's service revolver. The assault was committed after Mr Goodall was pulled over by the police while driving. Later the same day, Mr Goodall and a co‑offender committed offences of robbery and false imprisonment at a rural property, while armed with firearms.
[17] Book of Materials 34.
Mr Goodall returned to Western Australia where his record of offending resumed in 2007.
On 22 April 2008, Mr Goodall was convicted in the District Court of offences including burglary, drug offences and possession of unlicensed ammunition, and was sentenced to imprisonment for 24 months.
In interviews for the purposes of these proceedings, Mr Goodall said that he sold drugs to get money to buy heroin.
On 4 October 2010, Mr Goodall was convicted in the Supreme Court of aggravated armed robbery.
The offences were committed on 8 March 2010. Mr Goodall and a co‑offender stole drugs and cash from a pharmacy while armed with knives. On 27 September 2010, Mr Goodall, after attending counselling sessions, made a statement to police in which he admitted his role in the offence. He attributed his actions to wanting to obtain drugs for his wife to relieve her pain. He also attributed his participation to urging by his co‑accused.[18]
[18] Book of Materials 531 ‑ 538.
Sentencing was adjourned and Mr Goodall was placed on a presentence order. Mr Goodall committed further offences while on the presentence order. On 28 March 2011, he was sentenced to imprisonment for two years.
On 4 June 2015, Mr Goodall was again convicted in the Supreme Court. On this occasion he was sentenced to imprisonment for seven years and four months for offences of aggravated armed assault with intent to rob, aggravated burglary, and doing grievous bodily harm with intent.
The offences were committed on 4 August 2013. Mr Goodall had been released from his previous sentence of imprisonment in March that year.
The offences were committed at the victim's home. Mr Goodall went there in company with two co‑offenders, one was his mother. There is substantial inconsistency in the accounts of what occurred.
In a presentence report dated 24 February 2015, Mr Goodall is reported to have described the offences as 'a drug deal that went wrong'. He admitted causing significant injury to the victim but denied that he intended to harm or rob him. Mr Goodall said that he was merely defending himself when the victim attacked him:
Mr Goodall did admit he went into the kitchen and grabbed a bottle smashing it and 'accidently' cutting the victim's throat, attributing blame on the victim and insisting he struggled and caused the injury to his face and throat …[19]
[19] Book of Materials 827.
In sentencing, the sentencing judge referred to the 'admitted facts' that Mr Goodall and two co‑offenders formed an intention of going to the house of the victim and robbing him, believing he had a large quantity of money in his house. The serious attack on the victim, including the cutting of his neck with a broken bottle, occurred while the victim was restrained with handcuffs that had been brought to the house for that purpose. The offenders searched the victim's house for money, while ignoring the victim's requests to ring for an ambulance.[20]
[20] Book of Materials 851 ‑ 853.
Mr Goodall told Dr Pyszora that he went to the victim's house as he believed the victim had threatened Mr Goodall's stepson in relation to a deal over a stolen trailer. He went to the victim's house to get the money back, but smashed a window and attacked the victim. Mr Goodall said that he later found out his stepson had lied about the fact that the victim had threatened and assaulted him.[21]
[21] Book of Materials 992.
Mr Goodall told Ms Hasson that
he was under the impression the victim, [L], had hurt [Mr Goodall's] step‑son. Mr Goodall recounted a story whereby the victim had wanted to financially benefit from a 'scam' his stepson was conducting. Mr Goodall stated that when he got to the front door of the victim's house 'I lost my shit'. Mr Goodall stated that he is always hypervigilant about being threatened and harmed by others and that he thought the crutches that he saw the victim holding was a weapon. Mr Goodall stated that he attacked the victim because he 'wanted him to admit what he had done'. Mr Goodall acknowledged much of the violence however minimised the seriousness and his level of culpability by referring to the victim as having 'cut his face', as if this occurred by accident …
Mr Goodall stated that he ceased talking to his stepson after the offence when he realised that the stepson had lied about this man hurting him …[22]
[22] Book of Materials 1030.
Mr Goodall was released on parole on 12 March 2020. His parole was breached due to positive urinalysis for methamphetamine on 2 April and 9 April 2020. At the time of breach, Mr Goodall had not engaged in a mental health plan or substance abuse counselling as directed. His parole was cancelled on 26 October 2020.
Mr Goodall was released on 11 April 2021 on a post sentence supervision order. While subject to that order, Mr Goodall has been convicted of possession of prohibited drugs, contrary to the Misuse of Drugs Act 1971 and an offence under the Road Traffic Act 1974, including driving without authority.
The post sentence supervision order expired on 10 April 2022. I did not make an interim supervision order for the short period between the expiry of the post sentence supervision order and the completion of the hearing on 19 April 2022.
Mr Goodall is currently charged with offences of burglary, attempted burglary, and stealing. He intends to plead not guilty to those charges, and I do not take them into account for the purpose of these proceedings.
The offences of robbery, assault with intent to rob and grievous bodily harm with intent, for which Mr Goodall was convicted in 2010 and 2015, are serious offences under the Act. The offences for which he was imprisoned in Victoria are also serious offences, as defined in s 5(4).
Mr Goodall's record of offending as a child includes serious offences of robbery and arson.
The section 74 reports
By s 74:
(1)A qualified expert providing a report in relation to a subject under this section must -
(a)examine the subject; and
(b)prepare an independent report.
(2)The report must indicate -
(a)the reporter's assessment of the level of the risk that, without a restriction order, the subject will commit a serious offence; and
(b)the reasons for the reporter's assessment.
(3)The reporter must have regard to any report or information given under section 76(1).
(4)The reporter must prepare the report even if the subject does not cooperate, or does not cooperate fully, in the examination.
The Act does not require the court to accept or give any particular weight to the report of qualified experts; the court alone is responsible for deciding whether or not the offender is a serious danger to the community and, if so, whether to make a continuing detention order or a supervision order.
But the Act gives an important role to psychiatric and psychological opinion. The experts are expressly required to evaluate and express their opinions on the level of risk.[23] Parliament has legislated on the basis that the specified health professionals have the expertise to examine an offender and assess the risk that offender presents if not subject to restriction. Because offenders against whom orders are sought have often served long sentences of imprisonment, the s 74 reports may be the only contemporary evidence directly addressing the present level of risk.
[23] GBT v The State of Western Australia [2019] WASCA 40 [97]; Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217 [38] ‑ [39]; Italiano v The State of Western Australia [2009] WASCA 116 [56]. The statutory scheme of the High Risk Serious Offenders Act does not relevantly differ from the earlier Act considered in those cases.
The s 74 reports are but part of the evidence on which the assessment of risk must be made. The court's consideration of the other factors, such as propensity and patterns of offending, is informed by the expert reports, but also requires judgment based on the evidence about the relevant offences.
Dr Pyszora
Dr Pyszora is a medical practitioner and specialist psychiatrist, with specialist accreditation and experience in Forensic Psychiatry. She works for the WA Department of Health as a forensic psychiatrist and medical advisor. She has extensive experience in risk assessment using the structured judgment tools she used in assessing Mr Goodall.
Dr Pyszora interviewed Mr Goodall on 7 July 2021 and 14 July 2021 for a total of five and a half hours. She interviewed Mr Goodall's mother by telephone on 9 July 2021. Dr Pyszora reviewed the information in the Book of Materials. She had telephone conversations with Gary Duggan, the psychologist then treating Mr Goodall, on 14 July 2021. On 19 July 2021, Dr Pyszora spoke to Trudy Hill, a community corrections officer. Dr Pyszora had a meeting with Ms Hill, Sarah Ballantyne, senior consulting psychologist, and Mr Duggan on 16 July 2021.
I have referred already to Dr Pyszora's diagnoses in relation to Mr Goodall's mental health.
Dr Pyszora assessed Mr Goodall using the HCR-20: v 3. That tool is used for a structured assessment having regard to historical risk factors, clinical risk factors, and risk management factors. In her evidence at trial, Dr Pyszora said of the relationship between those factors:
… it's actually the historical items that account for the, what we call, predictive validity of that tool. The clinical and the future risk management items are dynamic variables that are useful in terms of monitoring change and thinking about intervention targets, but the clinical items don't account for much of that - well, any of that predictive validity. And the future items account for slightly less of the predictive validity. So those historical items, which largely align to antisocial personality disorder, criminogenic factors, they're the ones that carry that predictive validity of the further violent offending.[24]
[24] ts 73.
Mr Goodall has a significant history of violence, including the use of weapons, and other antisocial behaviour. He has a substance use disorder. Dr Pyszora diagnosed both complex PTSD, with associated emotional dysregulation, and antisocial personality disorder. Mr Goodall has a history of major traumatic experience including physical abuse and neglect in the family, and later physical, sexual and emotional abuse. Dr Pyszora identified the history of trauma as a major risk factor in his previous violence.
Dr Pyszora's assessment of the second component, clinical risk factors, noted Mr Goodall's good insight into factors affecting his violence, and the need for ongoing treatment. He continues to have symptoms of complex PTSD. Mr Goodall reported emotional and behavioural stability. He was generally compliant with supervision, although there were lapses. His engagement with a treating psychologist has now ended.
The third component of the HCR-20 assessment relates to risk management factors. Dr Pyszora's assessment has, to some extent, been overtaken by events since she interviewed Mr Goodall and reported in July 2021. He has now returned positive urinalysis for both cannabis and heroin, and his substance abuse disorder is now being managed by a methadone program rather than being in remission. He has ceased weekly psychological therapy.
Dr Pyszora expressed a general difficultly in forming an opinion in relation to the dynamic factors in the HCR‑20 assessment. In her evidence at trial, she referred to the time that has lapsed since she examined Mr Goodall, 'so it's difficult to determine what's his current level of insight, has he got any thoughts about reoffending, what's his current mental state in terms of symptoms of PTSD, is he actually experiencing any instability'.[25]
[25] ts 63.
Dr Pyszora said that Mr Goodall has outstanding psychological treatment needs in relation to his emotional regulation, coping strategies, ongoing therapy for his substance misuse, and to assist him in understanding more around his interpersonal relationships. She also considered that he had outstanding treatment needs in relation to PTSD.[26]
[26] ts 65.
At the time of Dr Pyszora's assessment, Mr Goodall was anticipating a compensation payment which he would use to change his living situation and enable him to privately fund psychological treatment. Mr Goodall's plans have not yet been realised. This application has proceeded on the basis that there will be a compensation payment, although there is scant evidence about his claim, and there is no evidence about a possible time within which a settlement might occur.
Dr Pyszora assessed Mr Goodall as presenting with a high risk of committing a serious offence if not subject to a restriction order that required him to undergo urinalysis, psychological therapy, and regular supervision. She identified the risk as occurring in a situation where Mr Goodall relapsed into illicit drug use, his mental health destabilised, he experienced emotional dysregulation in the context of relationship problems or significant stress, and he ceased psychological treatment. Dr Pyszora identified a particular risk in Mr Goodall offending to assist others, including family members, or by taking on a 'rescuer role'. Regular supervision would enable early non‑compliance (for example, further drug use) to be identified and addressed, and stressors to be discussed in supervision and therapy.
Dr Pyszora identified Mr Goodall's complex PTSD as a significant risk factor requiring continued treatment. It is, in her opinion, likely to be a lifelong condition.[27]
[27] ts 71.
Dr Pyszora also assessed Mr Goodall for psychopathy. He scored well below the threshold.
The substance of Dr Pyszora's report and evidence, including her assessment of the level of risk that Mr Goodall would re‑offend, was not challenged.
Ms Hasson
Ms Hasson is a qualified psychologist as defined in the Act. She is a former employee of the Department of Corrections, and regularly gives evidence in proceedings under the Act.
Ms Hasson assessed Mr Goodall using the same tools as those used by Dr Pyszora. Her evidence was largely consistent with that of Dr Pyszora. Her factual conclusions and opinions were not challenged.
Ms Hasson concluded that Mr Goodall's past offending was persistent and habitual, and his risk of re‑offending (although not necessarily serious offending) is chronic. He is, however, likely to engage in offending (for example, home burglary) which could lead him to behave in an aggressive and violent manner to any person trying to stop him, or not being compliant.
Mr Hasson also assessed a risk of Mr Goodall becoming angry and committing an assault in response to a real or perceived slight.
In her assessment, Mr Goodall has a high risk of re‑offending, if not subject to a restriction order, and the likely scenarios for future offending are of offending that is serious and violent. While Mr Goodall appears to have some insight and understanding of the external risk factors to his re‑offending violently, that insight needs to be (and to date has not been) accompanied by behavioural change:
[W]ithout corresponding behavioural change [that insight] is not sufficient to moderate or mitigate risk. Mr Goodall recognises his problem areas, but he does not yet have the experience to overcome them and as such his ability to manage these risks will be inconsistent, lapses will occur such as that which has already happened since being in the community subject to a PSSO. Behavioural change requires ongoing therapeutic input and above all time.[28]
[28] Book of Materials 1046 ‑ 1047.
To some extent, the evidence of both experts identified a dilemma. Mr Goodall has responded well while subject to supervision under a post sentence supervision order, and appears to have some insight into the factors contributing to his risk of violence, and his mental health issues. He is strongly motivated not to return to prison. He has, however, clearly expressed the view that any increased restrictions and obligations would be intrusive and emotionally destabilising. Supervision which he perceives as intrusive could result in conflict and trigger adverse behaviour.
Mr Goodall has expressed his intention to continue therapy in the future, while not subject to an order, but those plans depend upon his receiving a compensation payout for the childhood abuse and using it for that purpose. While a settlement may include a component for future treatment, it is still necessary that Mr Goodall set aside sufficient funds for private treatment, and continue with that treatment. His stated intention to continue therapy must be considered together with his reported reason for discontinuing treatment with Mr Duggan: that he found psychological intervention was ineffective. I also take into account his expressed desire to live outside the metropolitan area, which may make access to psychological services more difficult, particularly for someone who is not authorised to drive a motor vehicle.
Other medical, psychiatric, psychological, or other assessment
I have had regard to all of the reports and assessments contained in the Book of Materials. Much of it is repetitive, with each author having regard to, and often summarising, the earlier reports. None of the authors of that material was called.
The earlier reports are not always consistent. The most obvious example is the earlier diagnosis of bipolar disorder, which has since been questioned and with which Dr Pyszora does not agree.
The people who carried out assessments or wrote reports were not considering the questions the court now has to address. With the extension of the legislation beyond sexual offenders, the court must consider the risk of serious offences as defined, which include but are not confined to violent offences.
I have, as a result, had particular regard to those factors identified in the earlier assessments which were considered significant by the authors of the two s 74 reports. Those reports provide very full summaries of earlier reports, and relate that material to Mr Goodall's present position, and the more specific risk relating to serious offending.
Information regarding propensity to commit serious offences in the future
Section 7(3)(c) requires the court to have regard to information regarding Mr Goodall's propensity to commit serious offences in the future.
The word 'propensity' is used in s 7(3) in its ordinary meaning in the context of the criminal law. In proceedings under the Dangerous Sexual Offenders Act 2006, and serious sexual offences, Murray AJA said that propensity is:
an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.[29]
[29] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178].
Mr Goodall has a history of traumatic experiences, violent offending, and substance use. The expert opinion, which was not challenged in this regard, was that he suffers from a mental illness (complex PTSD) and has antisocial personality disorder. Those matters, taken together, support a finding of propensity to offend and to use violence in his offending. Were that violence to be expressed in the course of other offending, including stealing or burglaries where there is a risk of confrontation with a victim, the offences would be serious offences as defined in the Act.
Although Mr Goodall has one conviction for arson when he was 16 years old, there is no other conviction of that kind and nothing which would suggest a propensity to commit a serious offence of that nature. Neither expert included arson in their assessment of likely future serious offending.
Is there any pattern of offending behaviour
It is difficult to identify any pattern in Mr Goodall's offending, at least in the serious offending.
The offences in Victoria involved serious violence in a confrontation with police. There is nothing similar in Western Australia.
Mr Goodall committed serious offences as an adult in Western Australia on two occasions. The offences were factually quite different. On one of these occasions, Mr Goodall used extreme violence; on the other he was armed and the victims were threatened but they were not physically harmed.
There is a common factor (and this includes the juvenile offending) in that Mr Goodall, in each of his serious offences, was in company and may have been influenced by his co‑offenders. There is also a history of carrying weapons.
Efforts by Mr Goodall to address the cause or causes of his offending behaviour, including participation in rehabilitation programs
Mr Goodall participated in the Pathways program[30] while in prison in 2016, but did not complete it. He then participated again and completed the program in 2017.
[30] A group program designed to address alcohol and other drug use and offending behaviour.
Mr Goodall also completed a violent offending treatment program in Casuarina prison in 2019. During the program, he was referred to specialist psychological services for individual counselling.
The program facilitators assessed that Mr Goodall made positive changes in relation to emotional management and in the area of interpersonal relationships.
Most importantly, Mr Goodall received individual counselling through 20 individual sessions with a psychologist between December 2018 and August 2019. In her report of 4 September 2019, the psychologist stated:
Mr Goodall engaged willingly and meaningfully throughout intervention, and appeared to benefit from consolidating and building upon his insights derived from his prior engagement in counselling, and the concepts learned through his participation in programmatic interventions. Overall, he impressed as committed to making prosocial lifestyle changes.[31]
[31] Book of Materials 961.
In her report, Ms Hasson considered the material relating to the programs in which Mr Goodall has participated. I agree with her summary:
Overall, he has participated well and made many treatment gains however some treatment needs remain and require ongoing focus. These include assistance to remain abstinent from illicit drug use and to manage prescription medication use, emotional regulation, distress tolerance, coping, problem solving, adjustment to living in the community, and the expression and inhibition of angry and aggressive impulses.[32]
[32] Book of Materials 1047.
Although Mr Goodall appeared to have made progress, his initial release on parole ended when he breached parole conditions by using methamphetamine. The Prisoners Review Board also expressed concerns about Mr Goodall's alleged links during his parole with members of Outlaw Motorcycle Gangs - something he denies.
On his release in 2021, Mr Goodall was subject to a post sentence supervision order. He was referred for individual psychological counselling and attending weekly between 16 May and 15 November 2021 with a clinical psychologist, Mr Gary Duggan. Mr Duggan prepared a report dated 20 December 2021. He reported that Mr Goodall expressed insecurity and vulnerability about the extent to which disclosures made in treatment would remain confidential and could affect his assessment as a high risk serious offender. Mr Goodall also said that he was aware of what psychologists could offer, and found the skills from the programs in which he had participated 'to be ineffective for him to address his underlying issues'.[33]
[33] Exhibit 3, Psychological Intervention End of Treatment Report.
Ms Hill gave evidence about Mr Goodall's period of supervision. With no disrespect to Ms Hill, her evidence was of limited value because she ceased to be his supervising officer in October 2021 - that is after approximately three months. Since then she has had one telephone conversation with him.
One significant matter in Ms Hill's evidence was to put the positive urinalysis results in context. Mr Goodall was tested almost weekly throughout the period of post sentence supervision, more than 40 occasions. He was compliant with a regular testing regime.
Consideration
The nature of the findings the court is required to make do not permit direct evidence. The court must infer, from all of the admissible evidence, whether it is satisfied to a high degree of probability that it is necessary to make the restriction order. As in other areas where conclusions are to be drawn from circumstantial evidence, the standard of proof is applied on all of the facts found and at the final stage of the reasoning process.[34]
[34] See, for example, Palmer v Dolman [2005] NSWCA 361 [41]; ts 71.
The presence of complex PTSD and an antisocial personality disorder are critical factors, both of which are related to Mr Goodall's risk of further serious offending. Another important factor is his substance abuse, which is not yet resolved.
The assessment by each expert that Mr Goodall presents a high risk of committing further serious offences, should he not continue to receive treatment, was not challenged. Essentially, Mr Goodall argued that psychological treatment can and should be sourced privately, and that, following settlement of his claim, he will have the resources to pay for private treatment.
Assuming that Mr Goodall will engage and persist with private treatment, the second important component in managing the risk of serious re‑offending is supervision.
Dr Pyszora expressed her conclusion on the likelihood of future violent offending in this way:
238.The likelihood of any violence depends on the successful management of Mr Goodall's risk factors and his response to ongoing treatment and rehabilitation in the community. In circumstances where he remains free of illicit drugs, continues with psychological therapy, maintains stable pro‑social interpersonal relationships and removes himself from antisocial relationships, continues to develop adaptive coping strategies for anger and emotional dysregulation, and lives independently in a property without any financial stress, he is unlikely to engage in further violence or other serious offending.
239.However, in a situation where he relapses into illicit drug use, his mental health de‑stabilises so that he becomes intensely angry again, he experiences emotional dysregulation in the context of relationship problems with an attachment figure (family or intimate partner), and he disengages from psychological treatment, he would present a risk of serious violence or other serious offending. If he experiences significant stress, including if a close family member is unwell or the victim of some harm, this will destabilise his emotional regulation further. This scenario is more likely to occur if he were not subject to current conditions mandating urinalysis, psychological therapy, and regular supervision by his SCCO, as any early noncompliance can be identified and addressed, and current stressors discussed in supervision and therapy.
Since Dr Pyszora expressed that opinion, Mr Goodall has relapsed into illicit drug use, although he is again managing that problem. He ceased psychological treatment. He has expressed the intention to procure private treatment, but there is no evidence that he has done anything concrete about it. He has again offended, although not in a serious way.
I am satisfied on the evidence that the risk of Mr Goodall re‑offending if not subject to supervision is high. That assessment by the two experts was not challenged. The expert evidence went further with each witness expressing the opinion that the risk of serious offending, as defined, was high. Should Mr Goodall re‑offend, it is more likely to be an offence directed towards property - stealing, perhaps in the context of a burglary - but the risk of violence being employed in such an offence is also high. I accept the evidence of Ms Hasson that Mr Goodall has shown a level of awareness and insight, but there has not yet been a demonstrated behavioural change. I am satisfied that the need for supervision remains to manage the risk continuing factors.
Counsel for Mr Goodall stressed that the predictive factors relied upon by the experts were based on historical factors which generally could not change. He submitted that, despite those factors, Mr Goodall had not committed a serious offence since 2013. But, Mr Goodall has been subject to some sort of restraint - either imprisonment or post sentence supervision - throughout that period.
The intention of an order under the Act is protective. Supervision in the community may assist Mr Goodall when events occur which could affect his emotional stability, or otherwise (for example, should he again use illicit drugs) put him at risk of again offending. The harm that would be suffered by individual victims, and thus by the community more generally, is severe should Mr Goodall again offend in the way in which he has in the past. I am satisfied that, without supervision, the risk of further serious offending is not presently acceptable.
Should it be a detention order or supervision order
Both Dr Pyszora and Ms Hasson considered that Mr Goodall could be properly managed on a supervision order. The evidence as a whole does not support a finding that continued detention is necessary for the adequate protection of the community. The State did not press for continued detention.
Until 10 April 2022, Mr Goodall was subject to the restrictions imposed by a post sentence supervision order under pt 5A of the Sentence Administration Act 2003 (WA). He demonstrated that he could comply with restrictions, some of which are similar to the standard conditions of a supervision order. Although he strongly opposes being required to comply with further restrictions and obligations, Mr Goodall is strongly motivated to not return to prison.
Overall, I am satisfied that it is more likely that Mr Goodall has sufficient insight, as well as a strong desire to remain at liberty, that he would substantially comply with the conditions of a supervision order.
Duration of order
The two experts proposed that an order should remain in place for between two and five years, during which time Mr Goodall should continue with therapeutic intervention for his PTSD, and to assist dealing with other criminogenic factors. As I understood the evidence, the period of two to three years is necessary for Mr Goodall to make sufficient gains in therapy. A longer period may enable assessment of his ability to self‑manage as restrictions were relaxed.[35]
[35] ts 95 - 96.
In making an assessment of the period necessary, I keep two factors in mind. First, Mr Goodall has been in the community under supervision for approximately a year. Second, during the last year of a supervision order the State may apply under s 36 for a further order on the basis of current information about his performance on supervision and the progress of treatment.
I am satisfied that an order should be for a period of two years.
Conditions
The proposed supervision order contains the seven standard conditions required by s 30 and 24 additional conditions. Dr Pyszora and Ms Hasson did not question the suitability of the conditions and I would make the order in those terms.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TB
Associate to the Honourable Justice Allanson
29 APRIL 2022
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