The State of Western Australia v Gorham [No 2]
[2022] WASC 351
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GORHAM [No 2] [2022] WASC 351
CORAM: ARCHER J
HEARD: 18 OCTOBER 2022
DELIVERED : 26 OCTOBER 2022
FILE NO/S: SO 18 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
STEWART SINCLAIR GORHAM
Respondent
Catchwords:
High risk serious offender - Whether a continuing detention order should be made
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | S Auburn |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393, 13
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Italiano v The State of Western Australia [2009] WASCA 116
Kim v Witton (1995) 59 FCR 258
The State of Western Australia v A [2018] WASC 250
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Gorham [2022] WASC 62
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Misko [No 6] [2018] WASC 389
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v ZSJ [2020] WASC 330
ARCHER J:
Introduction
On 23 November 2021, the State of Western Australia applied for orders under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The State contended that the respondent was a serious danger to the community and sought an order that he be detained in custody for an indefinite term or, if released, be made subject to a supervision order. The State is entitled to bring the application under s 35(1) of the HRSO Act. The court's power to make those orders is regulated by, among other things, s 48 of the HRSO Act.
As required by s 43 of the HRSO Act, a preliminary hearing was held on 18 February 2022. Justice Hall was satisfied that there were reasonable grounds for believing that the court might find that the offender is a high risk serious offender and listed the State's application for hearing.[1]
[1] The State of Western Australia v Gorham [2022] WASC 62.
In determining the State's application, the first question is whether the respondent is a high risk serious offender. If he is, I must decide whether he should be released on a supervision order or be made subject to a continuing detention order. As I will explain, I have decided that the respondent should be made subject to a continuing detention order.
Evidence
The State relied on five volumes of material[2] that contained relevant information. The materials included:
(1)a psychiatric report by a psychiatrist, Dr Wojnarowska;
(2)a psychological risk assessment report by a psychologist, Dr Galloghly; and
(3)a community supervision assessment report from a senior community corrections officer, Ms Cashmore.
[2] Book of Materials, Exhibit A (BOM).
Dr Wojnarowska, Dr Galloghly, and Ms Cashmore gave oral evidence in the hearing. The respondent did not give evidence.
Legal principles[3]
Statutory framework
[3] This section reproduces, or draws from, what I have written in earlier decisions.
The HRSO Act operates in substantially the same way as the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). For this reason, the principles established by the case law decided under the DSO Act apply to the HRSO Act.[4]
[4] The State of Western Australia v ZSJ [2020] WASC 330 [5] and [30] ‑ [31] (see also [32] ‑ [63]) and The State of Western Australia v Narrier [No 6] [2020] WASC 349 [4] and [29] ‑ [30].
Under s 35 of the HRSO Act, the State may seek a 'restriction order' in relation to a 'serious offender under custodial sentence' who is not a 'serious offender under restriction'.[5]
[5] Each phrase is defined in s 3 of the HRSO Act.
A restriction order is a 'continuing detention order' or a 'supervision order'.[6]
[6] These terms are defined in s 26 and s 27 of the HRSO Act respectively.
At the time the application was made, the respondent was a serious offender under custodial sentence.[7] He was not already the subject of a continuing detention order or a supervision order, and was therefore not a serious offender under restriction.
[7] His sentence was due to expire on 21 February 2022.
Section 43 of the HRSO Act requires there to be a preliminary hearing of an application made under s 35.[8] The 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 the offender is a 'high risk serious offender'.[9] If a court is so satisfied, it must order reports and set a date for the hearing of the application.[10]
[8] In the DSO Act, this requirement was in s 11(1).
[9] HRSO Act s 46(1). The phrase 'high risk serious offender' is defined in s 7 of the HRSO Act.
[10] HRSO Act s 46(2).
Section 48 of the HRSO Act provides:
48.Restriction orders
(1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must –
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
Accordingly, the first question I must answer is whether I find that the respondent is a high risk serious offender.
High risk serious offender - necessary to make restriction order
Section 7(1) of the HRSO Act provides:
7.Term used: high risk serious offender
(1)An offender is a high risk serious offender if the court dealing with an application under this Act 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 the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
With one qualification, this raises materially the same considerations as applied under the DSO Act in determining whether a person was a 'serious danger to the community'.[11]
[11] ZSJ [42] - [47].
The qualification is that s 7(1) of the HRSO Act expressly requires that the Court be satisfied that 'it is necessary to make a restriction order' before an offender can be found to be a 'high risk serious offender', whereas s 7 of the DSO Act did not.[12] In doing so, s 7(1) of the HRSO Act makes it clear that an offender who presents an unacceptable risk will not be a 'high risk serious offender' unless it is necessary to make a restriction order to adequately protect the community. In TheState of Western Australia v D'Rozario [No 3],[13] Quinlan CJ gave the following examples of when that might occur:
… it may be that, in the circumstances of a particular case, other external restraints on an offender (such as a post‑sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').
[12] See the discussion in The State of Western Australia v Garlett [2021] WASC 387.
[13] TheState of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21].
Determining whether a restriction order is necessary requires a balancing exercise.
On the one hand, the court is required to have regard to, among other things, the risk the offender would commit a serious offence (with serious consequences for the victim) if the offender was not made the subject of a restriction order and the likelihood of the risk materialising. On the other hand, the court is required to have regard to the serious consequences for the offender (either detention, without having committed an unpunished offence, or being subject to an onerous supervision order) if an order is made.[14]
[14] In relation to the regime under the DSO Act, see Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA, as his Honour then was).
The court must then decide whether the risk of the offender committing a serious offence is so unacceptable that, notwithstanding that the offender has already been punished for the offences he or she has committed, it is necessary that he or she is subject to further control or detention to ensure the adequate protection of the community.[15]
[15] In relation to the regime under DSO Act, see Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] (Wheeler JA), and expressly approved by Steytler P and Buss JA, as his Honour then was, in Director of Public Prosecutions (WA) vGTR [2008] WASCA 187; (2008) 38 WAR 307 [26].
The State bears the onus of satisfying the court that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent would commit a serious offence.[16] It must do this by acceptable and cogent evidence and to a high degree of probability.[17]
[16] HRSO Act s 7(2). And, in relation to the equivalent provision in the DSO Act, see Director of Public Prosecutions (WA) vPindan [No 3] [2017] WASC 107 [41] and [43].
[17] HRSO Act s 7(1).
The expression 'high degree of probability' sets a higher standard than the standard of the balance of probabilities, but a lesser standard than the standard of beyond reasonable doubt.[18] However, this does not mean that the risk must be greater than 50%. The court must identify 'what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.[19]
[18] In relation to the equivalent provision in the DSO Act, see GTR [28] (Steytler P and Buss JA, as his Honour then was).
[19] In relation to the equivalent provision in the DSO Act, see GTR [34] (Steytler P and Buss JA, as his Honour then was).
A 'serious offence' is defined in s 5 of the HRSO Act.
In deciding whether to find a person is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3) of the HRSO Act:
(3)In considering whether it is satisfied as required by subsection (1), the court must have regard to the following –
(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.
Section 7(3) of the HRSO Act is relevantly identical to s 7(3) of the DSO Act.
Precondition to a supervision order - compliance with standard conditions
If I find that the respondent is a high risk serious offender, I must make a continuing detention order or a supervision order.
Due to s 29 of the HRSO Act, I will only have a choice if the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions.
Section 29 of the HRSO Act states:
29.Limitation on power to make or amend supervision order
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
Section 23(1B) and (1C) of the DSO Act were in similar terms to s 29(1) and (2) of the HRSO Act.
There are seven standard conditions for a supervision order. They are set out in s 30(2) of the HRSO Act:[20]
[20] See the definition of 'standard condition' in s 3 of the HRSO Act.
30.Conditions of supervision order
…
(2)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.
(3)A supervision order in relation to an offender may require the offender not to make public any statement, information or opinion relating directly or indirectly to any victim of a serious offence committed by the offender.
(4)When considering whether to impose a requirement under subsection (3) the court must have regard to -
(a)the gravity and nature of the offender's offences; and
(b)the likely impact on the victims of the offender providing or making available any statement, information or opinion; and
(c)the public interest generally.
(5)A supervision order may contain any other terms that the court thinks appropriate -
(a)to ensure adequate protection of the community; or
(b)for the rehabilitation, care or treatment of the offender subject to the order; or
(c)to ensure adequate protection of victims of serious offences committed by the offender subject to the order.
(6)Without limiting subsection (5), a supervision order may provide that -
(a)for the period specified in the order the offender is subject to a curfew under section 32; and
(b)the photograph and locality of the offender must not be published under the Community Protection (Offender Reporting) Act2004 section 85G.
The effect of s 29 is that I must make a continuing detention order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
'Substantially comply' with the standard conditions
The meaning of the phrase 'substantially comply' was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[21] in relation to the provisions of the DSO Act. His Honour's observations, which I gratefully adopt, apply equally to the provisions of the HRSO Act.
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non‑compliance and the factors set out at [50] above.
[21] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
In the above extract at (5), his Honour observed that the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order. Elsewhere in the judgment, his Honour made a number of other useful observations in relation to the assessment of prior contraventions, to the following effect:
(1)self‑evidently from the statutory scheme, the fact that the respondent has contravened the conditions of a supervision order will not necessarily result in a continuing detention order;[22]
(2)given the onerous nature of supervision orders, missteps are to be expected;[23] and
(3)the frequency or regularity of contraventions might inform the question of whether the person will substantially comply.[24]
[22] Hart [21].
[23] Hart [51].
[24] Hart [36].
A critical point made by Fiannaca J, as set out in (6) of the extract, is that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
Factors relevant to the assessment
In (7) of the extract, Fiannaca J identified the factors that are relevant to the assessment of whether the respondent will substantially comply with the standard conditions. His Honour said that they would include the respondent's history of compliance and non‑compliance and the factors he had set out in his judgment in paragraph 50.
In paragraph 50, Fiannaca J identified, in effect, the following factors:[25]
[25] The first four factors his Honour drew from Kim v Witton (1995) 59 FCR 258. The next four factors were from The State of Western Australia v A [2018] WASC 250 [123]. The last factor was from The State of Western Australia v Misko [No 6] [2018] WASC 389 [196].
(1)the offender's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
(2)his capacity to comply with the conditions;
(3)what measures there are in place to ensure he would substantially comply;
(4)the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the [HRSO] Act;
(5)the respondent's motivation to remain offence free and in the community;
(6)any willing participation in a sex offender treatment program;
(7)abstinence from drugs;
(8)conduct while in prison; and
(9)demonstrated gains in treatment, self‑management and life skills.
Detention or supervision?
If the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions, I must then decide whether to make a supervision order or a continuing detention order.
In deciding between these options, the paramount consideration is the need to ensure adequate protection of the community.[26] However, it 'cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order'.[27] Nor does it mean that other considerations are excluded.[28]
[26] HRSO Act s 48(2).
[27] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14]. See also The State of Western Australia v West [2013] WASC 14 [52].
[28] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Williams [57].
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but rather for the ultimate purpose of protecting the community.[29] The court should choose the order that is the 'least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[30]
[29] See, in relation to the DSO Act, GTR [97] (Murray AJA).
[30] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; and Decke. See also Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [22].
In Director of Public Prosecutions (WA) v DAL [No 2],[31] Beech J[32] summarised the principles to be applied in considering whether a supervision order would adequately protect the community, in relation to relevantly identical provisions in the now repealed DSO Act. Putting his Honour's observations in list form, and omitting citations, his Honour said:
1.The use of the word 'adequate' indicates that a qualitative assessment is required.
2.In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his [or her] care and treatment.
3.The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released.
4.The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
5.If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[31] DAL [No 2] [33], citing Williams [57] and [86]; Griffiths [20], [103] and [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].
[32] As his Honour then was.
Issues
The issues are:
(1)Is the offender a high risk serious offender?
(2)If so, has he proved on the balance of probabilities that he will substantially comply with the standard conditions?
(3)If so, should I make a continuing detention order or a supervision order?
High risk serious offender?
The respondent conceded through his counsel that he was a high risk serious offender.[33] Nevertheless, I am required to determine whether I am so satisfied, in accordance with the legal framework, and having regard to the s 7(3) factors.
Antecedents and criminal record - s 7(3)(g) factor
[33] ts 12.
In her report, Dr Wojnarowska summarised the respondent's account of his personal history.[34]
[34] BOM pages 1718 - 1719 [51] - [57].
The respondent described his mother as a good person but said that his father was violent towards him. He claimed that at the age of 10 he was removed from his family because he had burned down a house and attempted to kill a man he had met on the street. He was transferred to a boarding school in an attempt to manage his behaviour. However, once there, he stabbed the principal who he said was behaving in a sexual manner towards him. He was then sent to a youth training centre where he remained until the age of 18.
The respondent said he had been introduced to heroin at the age of 13 by his father. After that time, he continued to use various drugs.
He said he had been sexually abused from the age of 14.
The respondent reported to Dr Wojnarowska with some pride that he had only spent 100 days in the community over the last 33 years.
He said he had had a few short term jobs in the community as a cleaner and in warehouses.
Dr Wojnarowska summarised the respondent's history of offending. She noted that not all of the respondent's offending involved 'serious offences' within the meaning of the definition in the HRSO Act. Accordingly, she identified and focussed on the serious offences. In the below extract, the 'serious offences' are in italics. Dr Wojnarowska said:[35]
[35] BOM pages 1712 - 1715 [11] - [24].
OFFENDING HISTORY
11 - 12 November 1988: Melbourne County Court: Cause Serious injury intentionally, 2x Arson, Abduction, Cause injury intentionally, Threaten to kill, Assault with intent to rape and Sexual penetration of a person between 16 and 18: Total sentence 18 months Youth Training Centre for all offences
These offences were committed in succession, one after one another. Mr Gorham met the first victim, age 16, who was with his friends and requested that Mr Gorham purchase some alcohol for them. Mr Gorham was in a company of his friends at the time. He bought some drinks and the two groups decided to drink together at a vacant house. Once at the home, he began talking about burning the house down and told the victim not to tell anyone or he would 'bash him'. He then headbutted the victim between 15 and 20 times to the face and threw him against the window, smashing the window. He sustained a broken nose from the attack. The victim then ran off with his friends (cause serious injury intentionally).
Mr Gorham and one of his friends remained at the home. The friend then set alight a curtain (arson). They then left the house to look for their friends but returned later not finding them. Once inside, they noticed the previous fire was extinguished and decided to put a lamp shade on the floor near a heater. Mr Gorham then set fire to it with a lighter, watched it burn for a few minutes and then left (arson).
After leaving the house, Mr Gorham found the second victim, age 16. The victim and a friend were skateboarding late at night. Mr Gorham stopped them and offered some alcohol. They initially declined but accepted after being asked a second time. Mr Gorham then enticed the victim into the bushes, stating that he was an undercover policeman. He told him to be quiet and pushed him to the ground (abduction). He then banged the victim's head several times on the ground and applied a lit cigarette to his face on four occasions (cause injury intentionally). He told the victim that if he tried to escape that he would kill him and that nobody would think it was murder because he was a policeman (threaten to kill). He then told the victim to take his clothes [off] and when he refused, Mr Gorham began to strangle the victim, forcing him to undress (assault with intent to rape). He pulled the remainder of the victim's clothes off and performed fellatio upon him (sexual penetration). He told the victim that he wanted him to do the same to him but the victim managed to get free and ran. The victim was caught in a barbed wire fence and Mr Gorham dragged him across the ground. The victim then managed to escape.
29 September 1990: Perth Supreme Court: Disabling to commit an indictable offence and Aggravated sexual assault; Head sentence 5 years 6 months imprisonment
The victim in this matter was a boy age 17. The victim and Mr Gorham were both staying in the same hostel. Mr Gorham tapped on his window and asked him to come outside. He lured the victim to the park by offering wine. They both sat in the park drinking when Mr Gorham told the victim that he would protect him and that he was being paid by the managers of the hostel to teach him how to live on the streets. After a while, Mr Gorham suggested that they go to smoke some cannabis in a nearby toilet block. The victim complied and as they were walking towards the toilets, Mr Gorham hit the victim to the back of the head, knocking him to the ground. The victim attempted to get up, but he was punched several times to the head, knocking him unconscious (disabling). When the victim came back round, he was laying on his stomach with his pants off. Mr Gorham was anally penetrating him with his penis whilst holding down his wrists (aggravated sexual assault). Mr Gorham punched the victim again, again knocking him out. When the victim came back round again, he was laying on his back and was punched again causing him to become unconscious.
19 January 1999: Perth Supreme Court: Grievous bodily harm; 7 years and 6 months imprisonment
Whilst living at an alcohol rehabilitation centre, Mr Gorham befriended the victim, age 30. They walked to a bottle shop and Mr Gorham gave the victim some money to buy alcohol. The victim purchased two bottles of sherry and they hid them nearby. They returned to the rehabilitation centre and later returned to the where they hid the sherry. They began drinking and Mr Gorham attacked the victim, resulting in the victim sustaining a fractured jaw and becoming unconscious. Mr Gorham later told police that the victim had become 'cheeky' and that in retaliation he punched and kicked him to the face. He stated that he was hoping to kill him. It was noted that the victim when found by police and ambulance had his pants pulled down to his pubic area.
21 February 2004: Perth District Court: Deprivation of liberty, 3x Indecent dealings with a child under 13, Assault with intent to commission a crime, 2x Threaten to kill, [7 counts of] Sexual penetration of a child under 13; 11 years imprisonment
The victim in this matter was a boy age 12. The victim and his friends were riding their bikes when Mr Gorham engaged them in a conversation. Mr Gorham offered them money to take him to a liquor store. They agreed and walked him to a store. Once at the store, Mr Gorham purchased some alcohol and gave some to the group. He then offered the group money to take him home, claiming that he did not know where he lived. They all walked to an oval where Mr Gorham told the victim's friends to wait, giving them a false address. He then walked off with the victim, taking him to his home.
Once at the address, Mr Gorham told the victim to put his bike where it could not be seen from the street. He then asked the victim to come inside the house, the victim complied, and Mr Gorham locked the door inside (deprivation). He took the victim into a bedroom and told him to get on the bed. He left the room and returned with a knife, telling the victim to undress. The victim complied. He then told the victim to shower, again the victim complied. Whilst in the shower, he washed the victim with soap, touching his buttocks and penis (indecent dealings). He then dried the victim and took him into the bedroom. He told the victim that he fell into his web. The victim was scared and began shaking. Mr Gorham then punched him in the chest twice, winding him and causing him to curl up, unable to breathe (assault with intent). He asked the victim what he thought he was going to do, and the victim stated that Mr Gorham was going to rape him. Mr Gorham stated that was correct before pulling hard on the victim's penis and holding the knife to the victim's penis (indecent dealings). He then asked the victim if he wanted to lose his penis or if he wanted to die. The victim remained silent (threaten to kill).
Mr Gorham then kissed him on the mouth for several minutes, putting his tongue inside his mouth (indecent dealing). Mr Gorham told the victim to get on his hands and knees, before holding the knife to him, cutting his chest with two small cuts. He then told the victim that he would kill him and dump his body if he yelled out. He told him that he had already killed two people and that they were buried in the backyard (threaten to kill). He then took off his shorts, exposing his erect penis and put the knife on the bed. He put lubricant on his penis and on the victim's buttocks. He then penetrated the victim's anus with his penis. On more than one occasion the victim stated that he needed the toilet, and Mr Gorham withdrew his penis on each occasion to enable him to do so. In total he penetrated his anus on five separate occasions. This caused the victim pain and his anus to bleed (penetration). After the final penetration, the victim asked if he could go and Mr Gorham told him that he could but first he had to go back into the bedroom. He made the victim lie on his back on the bed and inserted his penis into his mouth, telling him to suck. The victim complied and Mr Gorham ejaculated (penetration). Mr Gorham then performed fellatio upon the victim (penetration). The victim began to cry and asked if he could leave. Mr Gorham said he could and unlocked the padlock on the back door.
15 January 2005: Perth District Court: Deprivation of liberty, 2x Indecent assault and Sexual penetration without consent: Head sentence 4 years imprisonment
The victim in this matter was a man age 20. Both Mr Gorham and the victim were prisoners at Hakea Prison, staying in the protective custody unit. He befriended the victim by offering him protection and assisting him in drafting a letter to obtain bail. He requested that the victim come to his cell and asked the two cell mates to leave. The victim got up to leave too but Mr Gorham stopped him. He shut the cell door and put a sheet over the door and a sock in the viewing hole (deprivation). He then pulled the victim's pants off and started playing with his penis (indecent assault). The victim asked him to stop but he continued to masturbate him. The victim was too scared to resist as he was much smaller. He then commenced performing fellatio on the victim until he ejaculated (sexual penetration). He then rolled him over and he masturbated over the victim, until he ejaculated over his back (indecent assault). Mr Gorham told the victim not to tell anyone otherwise he would rape him. He continued to harass the victim after this incident, resulting in him locking himself in his cell and reporting it to a fellow prisoner.
Dr Wojnarowska said that the respondent told her that, when he committed his last offence in the community, he was the closest to killing the victim because it remains his unfulfilled desire to kill a human being and to be imprisoned indefinitely.[36]
[36] BOM page 1715 [27].
Dr Wojnarowska said that the factors associated with the respondent's offending was his '[d]eviant/sadistic sexual interest and strong psychopathic traits with substance use being a contributing factor further lowering his inhibitions'.[37]
Reports - s 7(3)(a) and (b) factors
[37] BOM page 1715 [28].
Each of the reports was comprehensive. Where opinions were expressed, the foundation and reasoning was properly exposed.
The respondent did not challenge the expertise or veracity of any of the witnesses. Nor did he challenge the validity of any of the opinions expressed.
I accept the evidence and opinions of the report writers.
Dr Wojnarowska
Dr Wojnarowska is a forensic psychiatrist with considerable experience in this area. She interviewed the respondent and prepared a report. She also gave brief oral evidence.
Dr Wojnarowska said that the respondent fulfills the criteria for Sexual Sadism Disorder. He also fulfills the criteria for Substance Use Disorder currently in remission due to a controlled environment.[38] In addition:[39]
… Mr Gorham fulfills the criteria for Antisocial Personality Disorder (F60.2) Cluster B, with psychopathic and narcissistic personality traits. This is evident by Mr Gorham's pattern of disregard for, and violation of, the rights of others, criminality, impulsivity, and a failure to learn from experience. Cluster B includes antisocial, borderline, histrionic, and narcissistic personality disorders. Individuals with these disorders often appear dramatic, emotional, or erratic. There is a documented failure to conform to social norms with respect to lawful behaviours, as indicated by repeatedly performing acts that are grounds for arrest; irritability and aggressiveness, as indicated by repeated physical fights or assaults; reckless disregard for safety of self or others; lack of remorse, as indicated by being indifferent to or rationalizing having hurt or mistreated another.
[38] BOM page 1722 [77] - [78].
[39] BOM page 1723 [79].
Dr Wojnarowska assessed the respondent using the Hare Psychopathy Checklist (PCL‑R).[40] She said:[41]
Psychopathy traits are mostly stable over the lifespan. His overall score of 26 reached the threshold for psychopathy with equal distribution between facet 1 and 2. Mr Gorham presented with a number of traits reflective of psychopathy, including lack of remorse and empathy, shallow affect, parasitic lifestyle, promiscuous sexual behaviour, early behavioural problems, lack of long-term goals, juvenile delinquency, revocation of conditional release and criminal versatility. Mr Gorham's overall PCL-R score fell at the 62nd percentile, meaning that 38% of offenders had a higher score than him. He scored more highly on items reflective of the lifestyle and behavioural features of psychopathy, specifically, at the 76th percentile, in contrast to Factor 1 where he fell at the 48th percentile.
[40] Hare RD, PCL‑R (1991 & 2002).
[41] BOM page 1724 [87].
Dr Wojnarowska evaluated the respondent's risk of reoffending using forensic tools.
Dr Wojnarowska gave her opinion in relation to the likely nature of any future offending by the respondent. She wrote:[42]
The most likely scenario would be Mr Gorham looking for a victim the minutes after being released from prison. He provided a scenario where he would hide in a prison parking lot waiting for a first opportunity to attack a vulnerable male: someone smaller, visibly less physically able, walking to his car. This could be a prison officer or member of the general public. He would attack him from behind and bash his head over the concrete. Once the victim is subdued, he would anally rape him and if he had a sufficient time he would kill. He would wait for the police to shoot him during the confrontation.
If not successful with offending in the vicinity of the prison, he would seek homeless youth, possibly on the streets of Northbridge or Perth CBD. Given his historically high sexual drive and limited sexual outlets he is likely to commit [a] sexual offence against [a] young, vulnerable Caucasian male, irrespective of their age, although his preference would be between 12 and 16 years old. He is not likely to assault a female. He would escalate to sexual penetration and serious physical assault of the victim as soon as possible.
Another likely future risk scenario for sexually motivated violence would be against vulnerable prisoners in the context opportunity. In this case his violence can escalate to severe physical assault on the victim.
[42] BOM page 1729 [127] - [129].
Dr Wojnarowska observed that the psychological harm to such a victim would be severe, on the extreme spectrum with a high chance of escalation to serious or life-threatening physical violence, including murder.[43]
[43] BOM page 1729 [130].
Dr Wojnarowska said that, even if subject to the restriction order, the respondent's offending is likely to be imminent (as described in the first risk scenario). She noted that he had previously offended within a short period of time after being released from custody.[44]
[44] BOM page 1730 [131].
Dr Wojnarowska said that, as evidenced by his history of both generalist and sexual offending, the frequency of the respondent's offending will increase drastically if provided with the opportunity or if he is not apprehended immediately.[45]
[45] BOM page 1730 [132].
Dr Wojnarowska said:[46]
Mr Gorham's risk is in the well above average range of sexual reoffending according to Static 99-R. In addition, he poses [the] 2 most important factors causally related to future reoffending: sexual deviance (sadism) and psychopathy. There are no conditions that could negate to any degree his risk to the community. Mr Gorham has expressed on numerous occasions his desire to remain in prison and that he would commit an extremely violent offence immediately after release to ensure he is returned to custody indefinitely.
…
I am unable to provide the court with any recommendations that would assist in managing Mr Gorham safely in the community. His risk of sexual violence is directly related to the presence of sexual deviance (sexual sadism disorder) and psychopathy. He is unwilling to address his extensive treatment needs and he has already demonstrated his willingness to commit a violent offence in order to secure indefinite imprisonment.
Dr Galloghly
[46] BOM page 1730 [133] - [134].
Dr Galloghly is a senior clinical and forensic psychologist. He too wrote a report and gave brief oral evidence.
Dr Galloghly reached conclusions similar to those reached by Dr Wojnarowska. He wrote:[47]
Mr Gorham presents as a chronic sexual and violent offender with a disturbed and aggressive underlying personality structure that likely developed from his own experience of extreme abuse. He has spent most of his life in prison and does not appear to be able to function in the community without serious offending. He has quickly reoffended on all occasions when released from custody. Mr Gorham is capable of impulsive, planned and sadistic offending.
Based on the current assessment of risk, Mr Gorham presents as an extremely high risk of serious violent and sexually violent reoffending as defined in the HRSO Act (2020). His risk is currently managed by his placement in a highly restrictive prison unit and is unlikely to be effectively contained within mainstream prison given his threats to reoffend. Likewise, Mr Gorham's risk cannot be managed in the community. His risk can currently only be effectively managed through ongoing prison placement in the SHU. …
Ms Cashmore
[47] BOM pages 1708 - 1709 [107] - [108].
Ms Cashmore wrote a report and gave brief oral evidence. Ms Cashmore said that the respondent had said that he did not want to be released, and had therefore declined to engage with the HRSO Supported Accommodation Program.[48]
Propensity and pattern - s 7(3)(c) and s 7(3)(d) factors
[48] BOM page 1735.
The respondent has a pattern of committing violent sexual offences against men and boys.
The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. It means:[49]
that the offender has 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.
[49] GTR [178] (Murray AJA). See also Griffiths [66].
I am satisfied that the respondent has a propensity to commit serious and violent sexual offences against men and boys. This is shown by his history of offending.
Addressing causes and rehabilitation (historical) - s 7(3)(e) and (f) factors
The respondent has been unwilling to participate in treatment since 2006.[50]
Risk and need to protect - s 7(3)(h) and (i) factors
[50] BOM page 1727 [115].
Both Dr Wojnarowska and Dr Galloghly are of the opinion that the respondent is at high risk of committing a serious offence if not subject to a continuing detention order or community supervision order.
In summarising Dr Wojnarowska's report, I set out her opinions as to the most likely risk scenario and the severity of the potential harm, and the imminence of the risk.
I accept the opinions of Dr Wojnarowska and Dr Galloghly. There is an obvious need to protect the community from this risk. The types of offences the respondent may commit are likely to cause significant harm and even death.
Other factors - s 7(3)(j) factor
The respondent has a history of poor compliance and of generalist and violent offending while subject to orders. He also has a history of poor engagement in offence specific treatment.[51]
Conclusion
[51] BOM page 1729 [124].
Having regard to all of those factors, there are a number of matters of concern. The following are of particular significance.
First, there is the nature of offence that the respondent would be at risk of committing. If he had enough time, he may commit murder.
Second, there is the respondent's attitude towards treatment.
Third, the respondent has repeatedly demonstrated an incapacity or unwillingness to control his violent behaviour.
Having considered all of the s 7 factors, I am satisfied to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent would commit a serious offence. Accordingly, I find that the respondent is a high risk serious offender.
Therefore, I must make a continuing detention order or a supervision order. Due to s 29 of the HRSO, I will only have a choice if the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions.
Would he substantially comply with the standard conditions?
As noted earlier, a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will 'substantially comply' with the standard conditions. The onus of proving this is on the offender.[52]
[52] HRSO Act s 29.
In this context, the most relevant of the standard conditions are those set out in s 30(2)(d) and (f) of the HRSO Act. These sub‑paragraphs relevantly impose conditions that the offender comply with any reasonable direction of a community corrections officer and not commit a serious offence during the period of the order.
Of the factors relevant to the assessment (outlined earlier[53]), the following are of particular relevance in this case.
1.In relation to the first factor (the respondent's attitude to the conditions of the supervision order and in particular whether he is likely to deliberately flout the conditions), I am satisfied that he is likely to deliberately flout the conditions.
2.In relation to the fourth factor (the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act), the breach would be likely to be a further serious violent offence. This would entirely prevent the achievement of the Act's objects.
3.In relation to the fifth factor (the respondent's motivation to remain offence free and in the community), the respondent wants to stay in jail, and is likely to re-offend in order to achieve that if released.
4.In relation to the ninth factor (demonstrated gains in treatment, self‑management and life skills), there are none.
[53] See under the heading 'Precondition to a supervision order - compliance with standard conditions'.
Having regard to all of the evidence, I am not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions. In particular, I am not satisfied he would substantially comply with any reasonable direction of a CCO or the requirement not to commit a serious offence.
As a result, I am required to make a continuing detention order.
Detention or supervision?
Even if the respondent had satisfied me that he would substantially comply with the standard conditions, I would have made a continuing detention order. Having regard to all of the evidence, I would have been left in doubt as to whether the conditions of a supervision order would have adequately protected the community. Indeed, I am positively satisfied that the community would not be adequately protected by a supervision order. I further note that both Dr Wojnarowska and Dr Galloghly, whose opinions I accept, are of the opinion that the respondent cannot be managed in the community.
Conclusion
For these reasons, I would make a continuing detention order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
25 OCTOBER 2022
11
19
0