The State of Western Australia v Gorham
[2022] WASC 62
•25 FEBRUARY 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GORHAM [2022] WASC 62
CORAM: HALL J
HEARD: 18 FEBRUARY 2022
DELIVERED : 18 FEBRUARY 2022
PUBLISHED : 25 FEBRUARY 2022
FILE NO/S: SO 18 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
STEWART SINCLAIR GORHAM
Accused
Catchwords:
High Risk Serious Offenders Act 2020 - 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 - Whether an interim detention order should be made pending determination of the application
Legislation:
High Risk Serious Offenders Act 2020
Result:
Orders made pursuant to s 46(2)
Interim detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Ms F M Allen |
| Accused | : | Ms A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Accused | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Nil
HALL J:
(This judgment was delivered extemporaneously on 18 February 2022 and has been edited from the transcript.)
Introduction
On 23 November 2021, the State of Western Australia applied for a restriction order in respect of the respondent, Stewart Sinclair Gorham, under the High Risk Serious Offenders Act 2020 ('the Act'). The preliminary hearing of the application came before me today.
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 the respondent is a high-risk serious offender within the meaning of the Act: see s 46(1).
The State seeks orders pursuant to the Act, including orders that:
(a) a restriction order be imposed under s 48 of the Act;
(b) the respondent undergo examination by a psychiatrist and a qualified psychologist for the purposes of preparing reports; and
(c) the respondent be subject to either an interim detention order or an interim supervision order under the Act until the final determination of the application.
The respondent's counsel accepts that the requirements of s 46 are met. For reasons that follow, I am satisfied that that concession is appropriately made.
I am also satisfied that it is desirable for the protection of the community that an interim detention order be imposed pending the final determination of the application. The respondent, through his counsel, also accepts that that is an appropriate cause.
The law
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 in relation to, in 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 schedule 1. It relevantly includes deprivation of liberty, sexual offences against children and sexual penetration without consent.
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 it is possible. Further, 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.
The evidence
In support of its application, the State relies on the affidavit of James Frances Bennett, affirmed on 23 November 2021, which contains the respondent's criminal history, dating back to 1989, and several reports in relation to him. Those reports include a pre‑sentence report, a psychological report, psychiatric reports and an individual management plan. The most recent psychiatric report is dated 25 January 2004.
The State also relies on an affidavit of Heather Applin, affirmed on 9 February 2022. That affidavit relates to the respondent's proposed accommodation upon release. Ms Applin states that the respondent has advised that he has no accommodation options and does not wish to be released.
The respondent is now 52 years of age. He has a long history of offending. His offending has included offences of abduction, arson, sexual penetration of children, theft, assault and threats to kill.
The respondent's most recent offences were for an incident in which he held a 12‑year‑old boy against his will and committed sexual offences against him, and an incident in which he held another prisoner against his will and committed sexual offences against him. The first incident resulted in charges of deprivation of liberty, indecent dealing, sexual penetration of a child, assault and threats to kill. On 13 October 2006, he was sentenced to a total of 14 years' imprisonment for those offences. The second incident resulted in charges of deprivation of liberty, sexual penetration without consent and indecent assault. On 25 October 2006, he was sentenced to four years imprisonment for those offences. His sentences are due to expire on 21 February 2022.
In a psychologist's report prepared for his sentencing in relation to the incident involving the 12‑year‑old boy, Mr Mercurio Cicchini stated that the respondent had a strong disposition to violence, both sexual and physical, as the pleasure he derives from it nullifies feelings of vulnerability and impotence. Mr Cicchini concluded that the respondent was a very high risk of sexual and violent reoffending against males.[1]
[1] Affidavit of James Francis Bennett affirmed on 23 November 2021, 92 (Mr Mercurio Cicchini, Clinical Psychologist Report dated 6 December 2004).
In a psychiatric report prepared the same year, Dr Victoria Pascu stated that the respondent had a history of substance abuse, which he tended to minimise. He was diagnosed with severe antisocial and narcissistic personality disorder. The respondent had suffered abuse as a child, and this contributed to his impulsivity, limited frustration tolerance and tendency to act out in an aggressive manner. There was, however, no evidence of an underlying psychiatric disorder that would explain his behaviour.[2]
[2] Affidavit of James Francis Bennett affirmed on 23 November 2021, 97 (Dr Victoria Pascu, Psychiatrist Report dated 15 June 2004).
In a psychiatric report prepared for the sentencing relating to the incident involving the other prisoner, Dr Steven Patchett stated that the respondent scored extremely highly on the Sex Offender Risk Appraisal Guide, and the Violence Risk Appraisal Guide, meaning he was considered an extremely high risk of committing further sexual or violent offences. He was also in the very high risk range on the Static‑99 assessment tool. Dr Patchett concluded that the respondent had severe antisocial personality disorder with narcissistic traits. There was no evidence of a psychiatric disorder.[3]
[3] Affidavit of James Francis Bennett affirmed on 23 November 2021, 103 (Dr Steven Patchett, Psychiatrist Report dated 14 September 2005).
The Individual Management Plan, dated 18 March 2021, states that the respondent has refused to participate in recommended programs during his current term of imprisonment.[4]
[4] Affidavit of James Francis Bennett affirmed on 23 November 2021, 108 (Individual Management Plan dated 18 March 2021).
In July 2021, the respondent wrote in a letter that, whilst he is remorseful for his offending, he would not be able to abstain from offending if released and wished not to be returned to society.[5]
[5] Affidavit of James Francis Bennett affirmed on 23 November 2021, 113 (Stuart Gorham letter dated 29 July 2021).
Assessment
I am satisfied that there are reasonable grounds to believe that a court might find the respondent to be a high risk serious offender.
The respondent has a significant history of violent and sexual offending. That offending has often involved victims who are children or much younger adults. Whilst his most recent offending was in 2005, the risk factors that existed at that time are likely to still persist, that is, the personality and character traits that were referred to by the experts in their reports at that time. That possibility is enhanced by the fact that the respondent has not engaged in treatment or programs in the intervening years and has recently confirmed in a letter that his own belief is that his offending risk is high.
On the basis of the respondent's offending history and the previous assessments of his reoffending risk, there are reasonable grounds to believe that a court might find that he is a high risk serious offender. I will therefore make the orders for the hearing of the restriction order application.
Interim detention order
The State submits that I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act. Alternatively, the State seeks an interim supervision order pursuant to s 58(5) of the Act.
The respondent is the subject of a pending proceeding, and whilst he is currently in custody, his current sentence is due to expire on 21 February 2022. Given the respondent's expressed belief that he would commit offences if released, the lack of suitable accommodation, the identified high risk of serious offending, and the likely nature of such offences, the need to ensure adequate protection of the community, pending determination of the proceedings, requires that an interim detention order be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
25 FEBRUARY 2022
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