The State of Western Australia v Gorham [No 3]
[2023] WASC 463
•1 DECEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GORHAM [No 3] [2023] WASC 463
CORAM: DERRICK J
HEARD: 1 DECEMBER 2023
DELIVERED : 1 DECEMBER 2023
FILE NO/S: SO 18 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
STEWART SINCLAIR GORHAM
Respondent
Catchwords:
Dangerous sexual offender - High risk serious offender- Periodic review - Whether respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | D S McDonnell |
| Respondent | : | T Hager |
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 Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297
Garlett v The State of Western Australia [2022] HCA 30
GBT v The State of Western Australia [2019] WASCA 40
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Gorham [No 2] [2022] WASC 351
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narkle [2019] WASC 404
The State of Western Australia v Newland [2018] WASC 344
The State of Western Australia v Patrick [No 4] [2020] WASC 48
The State of Western Australia v Patrick [No 5] [2022] WASC 61
The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359
The State of Western Australia v Rao [2019] WASC 93
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330
DERRICK J:
Introduction
On 3 May 2023 the State of Western Australia (State) applied, pursuant to s 64 of the High Risk Serious Offenders Act 2020 (WA) (Act), for the detention of Stewart Sinclair Gorham (respondent) under a continuing detention order to be reviewed as soon as practicable after 26 October 2023 (application).
The hearing of the application took place before me on 1 December 2023.
For the reasons set out below, I have decided that the respondent remains a high risk serious offender and that the continuing detention order must be affirmed.
Background to the application
On 23 November 2021 the State applied pursuant to s 35(1) of the Act for a restriction order to be made in respect of the respondent.
On 18 October 2022 Archer J heard the restriction order application.
On 26 October 2022 Archer J found that the respondent was a high risk serious offender and pursuant to s 48(1)(a) of the Act made a continuing detention order in relation to him.[1]
[1] The State of Western Australia v Gorham [No 2] [2022] WASC 351.
Archer J summarised her reasons for finding that the respondent was a high risk serious offender in the following terms: [2]
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.
[2] The State of Western Australia v Gorham [No 2] [73] - [77].
In concluding that it was necessary to make a continuing detention order in relation to the respondent to ensure adequate protection of the community, Archer J said the following (footnotes omitted):[3]
[3] The State of Western Australia v Gorham [No 2] [79] - [83].
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.
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), 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.
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.
Archer J went on to state that even if the respondent had satisfied her that he would substantially comply with the standard conditions of a supervision order she would still have made a continuing detention order because she was 'positively satisfied that the community would not be adequately protected by a supervision order'.[4] In this context her Honour noted that the opinion evidence of both of the expert witnesses who had given evidence before her, which evidence her Honour accepted, was that 'the respondent cannot be managed in the community'.[5]
[4] The State of Western Australia v Gorham [No 2] [84].
[5] The State of Western Australia v Gorham [No 2] [84].
It is worth noting that Archer J's findings and conclusions were arrived at against a backdrop of evidence establishing that the respondent had told the expert psychiatric witness who assessed him for the purposes of the restriction order application and who gave evidence before her Honour, that he was a danger to the community, that if he was released from prison he would sexually assault and kill the first male that he came across in the prison car park, and that he wanted to remain in prison because he did not want to rape or kill any innocent people.[6]
[6] Exhibit 1, vol 1, 109 - 110. The evidence before Archer J also established that the respondent had made not dissimilar statements to the expert psychological witness who assessed him for the purposes of the restriction order application and who gave evidence before her Honour: exhibit 1, vol 1, 134 and 137 - 138.
Length of time in custody
The respondent has been incarcerated since 21 February 2004 and has been detained under the provisions of the Act since 21 February 2022.
Evidence on the application
At the hearing of the application the State tendered without objection a Book of Materials comprising two volumes.[7] Volume 1 is dated 21 August 2023. Volume 2 is dated 8 November 2023.
[7] Exhibit 1.
Volume 1 of the Book of Materials contains a variety of materials relating to the respondent. The materials include the respondent's criminal record, his prison records, documents relating to his prior offences and reports prepared for the purposes of the restriction order application determined by Archer J.
Volume 2 of the Book of Materials contains the following reports prepared specifically for the purposes of the hearing of the application:
1.A letter from Ms Chantelle Place, Acting Manager of the Department of Justice's (Department) Forensic Psychological Assessment Team (FPAT) dated 4 September 2023;[8]
2.A psychiatric report prepared by Dr Gosia Wojnarowska, Forensic Consultant Psychiatrist, dated 31 October 2023;[9] and
3.A Community Supervision Assessment Report prepared by Ms Julie Dabala, a Senior Community Corrections Officer (CCO) within the Department's Community Offender Monitoring Unit (COMU), dated 7 November 2023.[10]
[8] Exhibit 1, vol 2, 148.
[9] Exhibit 1, vol 2, 150. Dr Wojnarowska is a 'qualified expert' as defined in s 3 of the Act. Her report was prepared and obtained pursuant to s 67(1) of the Act in accordance with s 74 of the Act.
[10] Exhibit 1, vol 2, 440.
At the hearing of the application the State called Dr Wojnarowska and Ms Dabala to give brief supplementary oral evidence. Neither was cross-examined.
The respondent did not give or adduce evidence on the application.
Dr Wojnarowska assessed the respondent for the purposes of, and gave evidence at, the hearing of the restriction order application.
Relevant statutory provisions and applicable legal principles
I turn now to dealing in more detail with the provisions of the Act by reference to which the application must be determined as well as with the legal principles that are applicable to the determination of the application.
In relation to the applicable legal principles, in The State of Western Australia v ZSJ,[11] a case in which the State made an application under div 2 of the DSO Act but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):
As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General. The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'. He went on to say:
'In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].'
Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the Act], with appropriate adaptation in cases involving non-sexual offences.
[11] The State of Western Australia v ZSJ [2020] WASC 330 [30] - [31].
I respectfully agree with Fiannaca J's observations. In my opinion and having full regard to the recent decision of the High Court in Garlett v The State of Western Australia[12] which addressed the constitutional validity of aspects of the Act, the case law decided under the DSO Act in relation to applications for review of continuing detention orders remains (with appropriate adaptation in cases involving non-sexual offences) relevant to the determination of such applications under the provisions of the Act. Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application will include cases that have been concerned with proceedings under the DSO Act.
[12] Garlett v The State of Western Australia [2022] HCA 30 [55], [103], [104], [106].
Section 63 of the Act provides:
The purpose of this Part is to ensure that an offender's detention under a continuing detention order is regularly reviewed.[13]
[13] The respondent is an 'offender' for the purposes of the relevant provisions of the Act: Act, definition of 'offender' and 'serious offender under restriction' in s 3.
Section 64 of the Act provides for the making by the State of an application for an offender's detention under a continuing detention order to be reviewed.
Section 66 of the Act provides for the hearing by the court of an application by the State for the review of an offender's detention under a continuing detention order.
Section 68 of the Act provides:
Review of detention under continuing detention order
(1)On a review under section 66 of an offender's detention -
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must -
(i) affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
(2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure the adequate protection of the community.
The definition of the term 'high risk serious offender' is contained in s 7(1) of the Act. Section 7(1) is in the following terms:
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.
The term 'restriction order' is defined in s 3 of the Act to mean 'a continuing detention order' or 'a supervision order'. A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'.[14] A 'supervision order' is 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate in accordance with s 30'.[15]
[14] Act, s 3 and s 26(1).
[15] Act, s 3 and s 27(1).
As to the term 'serious offence' used in s 7(1), s 3 and s 5(1) of the Act provide that a 'serious offence' is an offence that is 'specified in Schedule 1 Division 1' of the Act, or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Section 5(2) of the Act provides that an offence is a 'serious offence' if it was 'an offence under a written law that has been repealed and the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence' under s 5(1). Section 5(3) of the Act provides that an offence is a 'serious offence' if it is an 'attempt…to commit an offence that is a serious offence' under s 5(1) or s 5(2).[16]
[16] Any further references to a 'serious offence' or to 'serious offences' should be read as references to a serious offence or serious offences as defined in the Act.
It follows from the definition of 'high risk serious offender' contained in s 7(1) that a finding under s 68(1)(b) that an offender 'remains a high risk serious offender', that is, a finding that it remains 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, necessarily entails a finding that if the offender is not subject to a restriction order the community will not be adequately protected against an unacceptable risk that the offender will commit a serious offence.[17]
[17] The State of Western Australia v Rao [2019] WASC 93 [28] - [29]; The State of Western Australia v ZSJ [44].
If the court finds that an offender 'remains a high risk serious offender' it is not invested with a residual discretion to decline to make a restriction order.[18] In these circumstances the question for the court is whether a continuing detention order or a supervision order should be made.[19]
[18] Garlett v The State of Western Australia [72].
[19] Act, s 68(1)(b).
By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 68(1)(b) that the offender remains a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[20]
[20] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28]; The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [47].
The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk.[21] It is the necessity 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 that must be proved by acceptable and cogent evidence and to a high degree of probability.
[21] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
Whether or not a risk that the offender will commit a serious offence is 'unacceptable' is a question that requires the court's judgment as to the likelihood of the offender committing the serious offence and the nature and extent of the harm that will be caused if the offender commits the serious offence.[22] Further, whether a restriction order is 'necessary' to ensure adequate protection of the community against the 'unacceptable risk' requires consideration of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.[23] Accordingly, the court is required to perform an evaluative exercise by considering whether, having regard to the likelihood of the offender offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the offender has already been punished for the offences they have committed, it is necessary in the interests of the community to ensure that they are subject to further control or detention.[24] In addition, although the requirement of an evaluation under s 7(1) depends upon the offender having been convicted of a serious offence, s 7(1) and s 68 do not envisage the possibility that a finding that an offender remains a high risk serious offender might be made to prevent the commission of a serious offence, whether of the same kind or another kind, unless the risk of further offending involves a real threat of harm to the community.[25]
[22] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [2018] WASC 344[12]; GBT v The State of Western Australia [2019] WASCA 40[21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45]; Garlett v The State of Western Australia [73], [226].
[23] Garlett v The State of Western Australia [73], [227]. As Quinlan CJ recognised in The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21] there may be rare situations in which a court will find that it is not necessary to make a restriction order notwithstanding a finding that the offender poses an 'unacceptable risk', for example, where other external restraints (such as a post-sentence supervision order under the Sentence Administration Act 2003 (WA)) are sufficient to ensure adequate protection of the community from the risk.
[24] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63]; GBT v The State of Western Australia [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45]; Garlett v The State of Western Australia [73], [226] - [228], [279].
[25] Garlett v The State of Western Australia [84].
By reason of s 68(2), if the court finds that the offender remains a high risk serious offender it is the need to ensure 'adequate' protection of the community that is to be the paramount consideration for the court in deciding whether to affirm the continuing detention order or to make a supervision order. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot be assumed that the most assured preventative action is detention and that therefore the protection of the community will always favour such an order.[26] In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 68(2) of the Act:[27]
In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. 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 care and treatment. 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. 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. 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.
[26] Director of Public Prosecutions for Western Australia v Williams [63] - [64]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21]; The State of Western Australia v West [No 6] [26]; The State of Western Australia v ZSJ [51]; Garlett v The State of Western Australia [106].
[27] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]. Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13] and The State of Western Australia v West [No 6] [26].
The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection of the community.[28]
[28] The State of Western Australia v Latimer [2006] WASC 235 [24]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [85], [229] - [230].
Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.
Section 7(3) of the Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1). The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act. The matters are as follows:
(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.
Although s 7(3)(g) provides that a court must have regard to the offender's criminal record in deciding whether the person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that they will commit a serious offence in the future if they are not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed. Nonetheless, past behaviour is often a good indicator of future conduct.
By s 68(1)(b)(ii) of the Act, the power of the court to rescind the continuing detention order and make a supervision order is expressed to be subject to s 29. Section 29 relevantly provides:
(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.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition that under s 30(2) of the Act must be included in the order. Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.
Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions set out in s 30(2) of the Act before the court can make a supervision order in relation to them.[29]
[29] Garlett v The State of Western Australia [102], [231].
For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[30] Further, in determining if it is satisfied that the offender will substantially comply with each standard condition of the supervision order, the court must have regard not only to the constraints that will be imposed upon the offender by the other standard conditions, but also to the constraints that will be imposed upon the offender by all the other 'non-standard' conditions of the supervision order.[31]
[30] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] - [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] - [111].
[31] The State of Western Australia v ACJ [2021] WASC 219 [416]; Garlett v The State of Western Australia [103] - [104], [233].
As to the purpose of a review hearing under the Act, the following statements made by Hall J in The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5][32] in relation to the review process provided for under the DSO Act are apposite (footnotes omitted):
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending, rather it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be better managed in the community, then the continuing need for detention must be considered.
The risk of reoffending may change over time. It may be affected by age, health or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of the prison authorities to facilitate change by offering programs and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, merely a welfare check, rather they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.
[32] The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359 [7] ‑ [11].
Matters specified in s 7(3) of the Act
As I have indicated, in deciding if the respondent remains a high risk serious offender I must have regard to the matters specified in s 7(3) of the Act. I therefore turn to addressing the matters specified in s 7(3) of the Act.
The respondent's history of offending - s 7(3)(g)
The respondent has a long record of offending. Whenever he has been released from serving prison terms he has generally failed to comply with conditions of parole orders and/or reoffended within a very short time of being released.
As an adult the respondent has been convicted of 17 serious offences as defined in the Act. His serious offences and other offences that are of most relevance to the application are as follows.
November 1988 offences
On 12 April 1989 the respondent was sentenced by the Melbourne County Court to 18 months detention at a Youth Training Centre for one offence of intentionally causing serious injury, one offence of intentionally causing injury, one offence of abduction, two offences of arson, one offence of threatening to kill, one offence of assault with intent to rape, one offence of burglary, one offence of sexual penetration of a person between the ages of 16 and 18. The intentionally causing serious injury offence, the abduction offence, the arson offences and the sexual penetration of a person between the ages of 16 and 18 are serious offences as defined in the Act.
The facts of the offences were as follows.
In November 1988 the respondent was 19 years old.
On 11 November 1988 the respondent met the first victim who was 16 years old. The first victim was with friends. The respondent was also with some friends at the time. The respondent agreed to purchase some alcohol and the two groups decided to drink together at a vacant house.
Once at the house, the respondent began talking about burning the house down. He told the first victim not to tell anyone or he would bash him. The respondent then headbutted the first victim between 15 and 20 times to the face and threw him against the window, smashing the window. The first victim suffered a broken nose from the attack. The first victim then ran off with his friends. It was the respondent's conduct in attacking the first victim that constituted the first of his offences of intentionally causing serious injury.
The respondent and his friends remained at the home. One of the respondent's friends set a curtain on fire. The respondent and his friends then left the house but later returned. They went back inside the house and noticed that the previous fire had gone out. They then put a lamp shade on the floor near a heater and the respondent set fire to the lamp shade with a lighter. The respondent and his friends watched the lamp shade burn for a few minutes before leaving. It was the respondent's friend's conduct is setting the curtain on fire and the respondent's conduct in setting fire to the lampshade that constituted his two arson offences.
After leaving the house the respondent found the second victim, a 16-year-old male. The second victim and a friend were skateboarding late at night. The respondent stopped them and offered them a drink of Jim Beam. They initially declined but accepted after being asked a second time.
The respondent then enticed the second victim into the bushes by saying that he was an undercover police officer. The respondent told the second victim to be quiet and pushed him to the ground. The respondent then banged the second victim's head on the ground several times and applied a lit cigarette to his face on four occasions. The respondent told the second victim that if he tried to escape he would kill him. The respondent also told the second victim to take his clothes off. The second victim refused to take his clothes off. In response the respondent strangled the second victim which resulted in the second victim undressing.
After the second victim started undressing the respondent pulled the rest of his clothes off and performed fellatio on him. He told the second victim that he wanted him to do the same and moved his hands to his jeans. At this point the second victim managed to escape but became entangled in a barbed wire fence. The respondent caught the second victim and dragged him across the ground before the second victim again managed to escape.
It was the respondent's conduct against the second victim that constituted his two intentionally cause injury offences, his abduction offence, his threat to kill offence, his assault with intent to rape offence and his sexual penetration offence.
September 1990 offences
On 14 June 1991 the respondent was sentenced to a total of 5 years and 6 months imprisonment for one offence of disabling another with the intention of committing an indictable offence and one offence of aggravated sexual assault. The aggravated sexual assault offence is a serious offence as defined in the Act. The facts of the offences were as follows.
On 29 September 1999 the 30-year-old respondent lured the 17‑year‑old male victim to a park by saying that he had some wine. At the time the victim was staying in the same hostel as the respondent.
After sitting in the park and drinking for a while the respondent suggested to the victim that they go to a nearby toilet block to smoke cannabis. As they walked towards the toilet block the respondent hit the victim to the back of the head. As the victim attempted to get up the respondent punched him several times to the head knocking him unconscious.
After rendering the victim unconscious the respondent put the victim on his stomach, removed the victim's pants, held down the victim's wrists and anally penetrated the victim. While this was occurring the victim regained consciousness. The respondent punched the victim again rendering him unconscious.
When the victim next regained consciousness he was lying on his back. The respondent once again punched the victim rendering him unconscious for a third time.
January 1999 offence
On 22 September 1999 the respondent was sentenced to a total of 7 years and 6 months imprisonment for one offence of unlawfully doing grievous bodily harm. The offence is a serious offence as defined in the Act. The facts of the offence were as follows.
The respondent and the victim met while living at an alcohol rehabilitation centre. The victim was a 30-year-old male.
On 19 January 1999 the respondent and the victim walked to a bottle shop and the respondent gave the victim money to buy alcohol. The victim bought two flagons of sherry.
After buying the flagons of sherry the respondent and the victim hid them at a nearby location. They then returned to the rehabilitation centre. Later they returned to where they had hidden the alcohol. They started to drink the alcohol.
After a period of time the respondent attacked the victim. The respondent's attack resulted in the victim sustaining a fractured jaw and becoming unconscious.
The respondent later told police that the victim had 'become cheeky' and that in retaliation he punched and kicked him to the face. The respondent stated that he was hoping to kill him.
February 2004 offences
On 13 October 2006 the respondent was sentenced to a total effective sentence of 14 years imprisonment for one offence of assault with intent to commit an offence, one offence of deprivation of liberty, three offences of indecently dealing with a child under the age of 13, seven offences of sexually penetrating a child under the age of 13 and two offences of making a threat to kill. The deprivation of liberty, indecent dealing and sexual penetration offences are serious offences as defined in the Act. The facts of the offences were as follows.
At the time of committing the offences the respondent was 34 years old. The victim was a 12-year-old boy.
On 21 February 2004 the victim and his friends were riding their bikes when the respondent engaged them in conversation and offered them money to take him to a liquor store. The victim and his friends agreed to the respondent's request. They walked the respondent to a liquor store.
Once at the liquor store the respondent purchased alcohol and gave some to the victim and his friends. The respondent then offered the group money to take him home. The respondent claimed that he did not know where he lived.
The respondent, the victim and the victim's friends all walked to an oval. Once at the oval the respondent told the victim's friends to wait and gave them a false address. The respondent then walked off with the victim, taking him to his house.
Once at his house the respondent told the victim to put his bike somewhere where it could not be seen from the street and asked the victim to come inside the house. Once the victim was inside the house the respondent locked the door.
The respondent took the victim into the bedroom and told him to get on the bed. The respondent then left the room and returned with a knife. The respondent told the victim to undress and get in the shower. The victim complied with the respondent's demands. While the victim was in the shower the respondent washed the victim with soap, touching the victim's buttocks and penis.
The respondent then dried the victim and took him into the bedroom. The respondent told the victim that he had fallen into his web. The victim was scared and began shaking. The respondent punched the victim to the chest twice, winding him and causing him to curl up. The victim was unable to breathe.
The respondent asked the victim what he thought he was going to do. The victim responded by saying that the respondent was going to rape him. The respondent told the victim that he was correct before pulling hard on the victim's penis and holding the knife to the victim's penis.
The respondent asked the victim if he wanted to lose his penis or if he wanted to die. The victim remained silent.
The respondent kissed the victim for several minutes, putting his tongue inside the victim's mouth.
The respondent told the victim to get on his hands and knees, before holding the knife to the victim and inflicting two small cuts. The respondent told the victim that he would kill him and dump his body if he yelled out. The respondent told the victim that he had already killed two people and that they were buried in the backyard.
The respondent 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 to go to the toilet. On each occasion the respondent withdrew his penis to enable the victim to go to the toilet.
In total the respondent penetrated the victim's anus with his penis on five separate occasions which caused the victim pain and his anus to bleed.
After the final act of penetration the victim asked the respondent if he could go. The respondent said that he could but that first he had to return to the bedroom. Once the victim was back in the bedroom the respondent made the victim lie on his back on the bed and inserted his penis into the victim's mouth. He told the victim to suck his penis. The victim complied and the respondent ejaculated. The respondent then performed fellatio on the victim.
The victim began to cry and asked if he could leave. The respondent said that he could and unlocked the padlock on the back door.
It is to be noted that the respondent committed the offences approximately one month after he had been released from prison (having served his sentence for his above referred to grievous bodily harm offence).
January 2005 offences
On 25 October 2006 the respondent was sentenced to a total of 4 years imprisonment for one offence of deprivation of liberty, two offences of indecent assault and one offence of sexual penetration without consent. The sentence was ordered to be served cumulatively on the 14-year sentence imposed on 13 October 2006.
The deprivation of liberty and sexual penetration without consent offences are serious offences as defined in the Act.
The facts of the offences were as follows.
The victim was a 20-year-old male.
The respondent and the victim were prisoners at Hakea Prison.
The respondent befriended the victim by offering him protection and assisting him in drafting a letter to obtain bail.
The respondent invited the victim to his cell. Once the victim had arrived at the respondent's cell the respondent asked his cell mates to leave. The victim got up to leave as well but the respondent stopped him from doing so. The respondent shut the cell door and put a sheet over the door and a sock in the viewing hole.
The respondent began to play with the victim's penis. The victim asked the respondent to stop but the respondent continued to masturbate him. The victim was too scared to resist because he was much smaller than the respondent.
Eventually the respondent stopped masturbating the victim. However, he then performed fellatio on the victim.
The respondent rolled the victim over and masturbated over the victim before ejaculating over the victim's back.
The respondent told the victim not to tell anyone what had occurred otherwise he would rape him. The respondent continued to harass the victim after the incident. As a result the victim locked himself in his cell. Ultimately the victim reported what had occurred to a fellow prisoner.
The respondent's personal circumstances and antecedents - s 7(3)(g)
The respondent was born on 21 September 1969. He is therefore now 54 years old.
In The State of Western Australia v Gorham [No 2][33] Archer J made reference to the respondent's personal circumstances in the following terms which I adopt:
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.
[33] The State of Western Australia v Gorham [No 2] [42] - [46].
The respondent's father is deceased. He has weekly telephone contact with his 80-year-old mother. He has no contact with any other family members. He has never been involved in a consensual relationship and has no children.
The respondent has committed multiple acts of self-harm over the years. His acts of self-harm have included, but by no means have been limited to, cutting off his left ear lobe and extracting his own teeth.
The respondent has a history of substance abuse.
Past psychiatric assessments of the respondent have established that he does not have a treatable mental illness.
The respondent's prison behaviour since the first review - s 7(3)(j)
The respondent is currently imprisoned at Casuarina Prison. He resides in the prison's Special Handling Unit (SHU) due to his persistent threats to self-harm and to perpetrate violence. He has resided in the SHU for the last 17 years.
The respondent is employed as a cleaner in the SHU.
The respondent does not receive any social visits.
The respondent has not engaged in any acts of self-harm since he was declared a high risk serious offender.
In May 2023 the respondent was subjected to random urinalysis testing. The testing produced negative results for illicit substances.
Since being declared a high risk serious offender the respondent has not incurred any prison charges or adverse behaviour reports.
Efforts by offender to address causes of offending behaviour including participation in rehabilitation programmes - s 7(3)(e) and s 7(3)(f) [34]
[34] Psychiatric report prepared by Dr Wojnarowska (exhibit 1, vol 2, 158); Letter written by Ms Place (exhibit 1, vol 2, 148 - 149).
The respondent has over a long period of time expressed a desire to remain incarcerated, specifically in Casuarina Prison's SHU, until his death. He has proffered as a partial explanation for his commission of his two most recent sets of offences (the offences committed in the community in February 2004 and the offences committed in prison in January 2005) his desire to ensure that he remains in custody.
In 2003, while he was serving his sentence for the grievous bodily harm offence for which he was sentenced in September 1999, the respondent participated in the Intensive Sex Offender Treatment Programme (ISOTP). His behaviour during the ISOTP was described as problematic with specific reference being made to his personality factors, domination of peers, bullying of vulnerable participants, egocentricity, dishonesty and limited self-disclosure. He was reported to have demonstrated superficial engagement in problem identification and to have failed to develop a realistic relapse prevention plan.
In 2006 and 2011 Treatment Assessment Reports were prepared in relation to the respondent. The reports recommended that the respondent participate in the Think First Programme, the Pathways Programme, the ISOTP and the Violent Offender Treatment Programme. However, the respondent consistently refused to participate in any of these programmes. He also refused to engage in individual psychological counselling. He confirmed that he would, if required, sign a waiver as a means of formalising his refusal to participate in programmes or other interventions.
The latest Initial Management Plan for the respondent was prepared in May 2023. During the course of the preparation of the plan the respondent once again confirmed that he would not engage in treatment programmes.
In short, the respondent has not participated in any form of treatment since 2003.
Reports prepared under s 74 and extent to which respondent cooperated in examination - s 7(3)(a)
Dr Wojnarowska's evidence
Report
Dr Wojnarowska's report reveals the following.
Dr Wojnarowska interviewed the respondent on 22 September 2023.
The respondent was pleasant and cooperative in the interview process. He appeared relaxed. He engaged on a superficial level reiterating history that he has previously provided to other professionals.
In interviewing the respondent Dr Wojnarowska detected no evidence of cognitive impairment. His judgment appeared intact. He appeared to have a normal IQ.
The respondent told Dr Wojnarowska that his offences were the result of his hatred of males. He denied that he had committed his offences for sexual gratification (although when Dr Wojnarowska interviewed the respondent for the purposes of the restriction order application he admitted he would become sexually aroused while physically inflicting pain on a male or while fantasising about doing so).
The respondent described himself as an angry and violent person who would have no inhibitions about killing and who would feel no remorse about engaging in such conduct.
The respondent confirmed to Dr Wojnarowska that he committed his most recent offences (the offences committed against another prisoner) for two reasons. First, because he wanted to secure a conviction for sexual assault. Second, because he wanted to 'punish' another male and to feel the sexual arousal associated with inflicting pain on another person.
The respondent told Dr Wojnarowska that he does not want to engage in any form of therapy and that he fears that this would be perceived as a sign that he was 'getting better, being ready to be released'. He expressed the belief that no intervention will ever eliminate his desire to rape and kill people.
The respondent told Dr Wojnarowska that the closest he had come to killing a victim was when he had committed the last of his offences in the community. He stated that it remains his unfulfilled desire to kill a human being and to be imprisoned indefinitely.
The respondent told Dr Wojnarowska that he was now at an even higher risk of killing someone than he was during the previous year. He said:
I wouldn't even make [it] to the gate before someone is dead. There are a lot of people going in and out, majority of them are my type, middle‑aged Caucasian male. I would then welcome police shooting me.
The respondent told Dr Wojnarowska that he hated being in the community because he hurt people and he knows that it is wrong to do so. He stated that it was easy for him to manipulate other men and that he would have no problem with inflicting pain, hurting people, raping or killing another person. He stated that he would also have no problem with prolonging the violence he was inflicting and that he frequently fantasised about cutting a victim's throat. He denied that his intent would ever be to gain sexual pleasure and asserted that his offending was about anger, dominance, pain, degrading people, power and control.
During his interview with Dr Wojnarowska the respondent was adamant that he continued to be a danger to the community. He stated that he did not want to kill or rape any more innocent people and that 'there should be another way for [him] to stay in prison'.
The respondent told Dr Wojnarowska that he has no intention of living in the community and that he wishes to remain in the high security setting of the SHU.
The respondent reported an ongoing preoccupation with violence but asserted that he had been able to manage this because he was abstaining from substances and was being housed in the SHU. However, he also reported that any destabilisation of his environment such as a change to his placement would trigger his violent fantasies. He indicated that if he was transferred from the SHU to the mainstream prison population he would have 'nothing to lose' and that he would not hesitate to kill a person.
The respondent told Dr Wojnarowska that if he was released into the community on an order he would not comply with the order.
In Dr Wojnarowska's opinion the respondent meets the criteria for the following psychiatric diagnoses:
1.Sexual Sadism Disorder, characterised by the respondent's paraphilic sexual interests, specifically his interest in the physical or psychological suffering of another;
2.Substance Use Disorder, currently in remission due to being in a controlled environment; and
3.Antisocial Personality Disorder Cluster B with psychopathic and narcissistic personality traits.
Dr Wojnarowska assessed the respondent's risk of future offending by using the Static‑99R risk assessment tool, the Hare Psychopathy Checklist‑Revised (Hare 1991 and 2002) (PCL‑R), the Risk for Sexual Violence Protocol (RSVP) risk assessment tool and the HCR‑20v3 (HCR-20) risk assessment tool.
The respondent's Static‑99R score was 9. This score places him in the '(IVb) Well Above Average Risk' category. This means that the respondent's overall risk of committing further sexual offences within five years is between 42.2% and 45%. This is seven times higher than that of a typical sexual offender.
Dr Wojnarowska makes the point that Static‑99R does not measure all relevant risk factors and that the respondent's recidivism risk is higher than that indicated by Static-99R.
The PCL-R assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The score obtained is an important component of other risk assessment tools including Structured Clinical Guides which use both static and dynamic risk factors.
The respondent's score on the PCL-R was 26 which reaches the threshold for psychopathy. The respondent 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.
In making use of the RSVP and the HCR-20, Dr Wojnarowska identified numerous risk factors for the respondent including chronicity of violence, escalation of sexual violence, sexual deviance, psychopathic personality disorder, problems with supervision, problems with treatment, and violent ideation or intent.
Dr Wojnarowska notes that sexual deviance is a highly relevant factor because its presence is associated strongly and specifically with the risk of sexual violence and is also a causal factor that predisposes a person to engage in sexual offending. She asserts that sexual deviance is strongly present in the respondent's case.
Dr Wojnarowska considers that there are no protective factors present in the respondent's case.
In Dr Wojnarowska's opinion the most likely scenario for future offending by the respondent is that he will look for a victim within minutes of being released from prison. She notes in this context that the respondent provided to her a scenario whereby he would hide in a prison car park waiting for the first opportunity to attack a vulnerable male (someone who is smaller and visibly less physically able than him) walking to his car. He stated this could be a prison officer or member of the general public. He stated he would attack the person from behind and bash his head on the concrete. He stated that once the victim was subdued he would anally rape the victim and if he had sufficient time would then kill the victim. He stated he would wait for the police to shoot him during the confrontation.
The respondent further told Dr Wojnarowska that if he was unable to offend within the vicinity of the prison, he would seek a homeless youth, possibly on the streets in Northbridge or in the Perth Central Business District.
In Dr Wojnarowska's opinion the respondent, given his historically high sexual drive and limited sexual outlets, is likely to commit a sexual offence against a young, vulnerable Caucasian male irrespective of their age, although his preference would be to offend against a male between the ages of 12 and 16.
According to Dr Wojnarowska there has been no change in the respondent's history or presentation since her assessment of him in 2022.
In Dr Wojnarowska's opinion the respondent is likely to resort to alcohol and drug use when in the community or a less restrictive setting to prison.
Dr Wojnarowska's opinion is that given the respondent's risk of reoffending according to Static 99-R and the fact that he possesses two most important factors that are causally related to future offending, specifically sexual deviance (sadism) and psychopathy, there are no conditions of a supervision order 'that could negate to any degree' the risk that he poses to the community. She considers that even if the respondent was subject to a restriction order 'his offending is likely to be imminent'.
In Dr Wojnarowska's opinion given that the respondent refuses any form of treatment and given his attitude generally there in nothing to be gained by mandating that he engage in treatment.
Dr Wojnarowska summarises her opinion in the following terms:
I am unable to provide the court with any recommendations that would assist in managing [the respondent] 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.
Given that the respondent refuses to engage in any form of psychological treatment, Dr Wojnarowska recommends that 'the level of vigilance around him remains high and that [the] regime as implemented by SHU staff continues'.
Oral evidence
In her oral evidence Dr Wojnarowska maintained the material views and opinions expressed by her in her report.
Dr Wojnarowska expressed the opinion that the risk of the respondent committing a serious offence comprised of a violent sexual offence if he is not subject to a restriction order is 'extreme' and the risk of him committing such an offence if he is released into the community on a supervision order is 'very high'. She expressed the further opinion that there are no measures that can be implemented in the community that will reduce the respondent's risk of committing a serious offence to an acceptable level.
Dr Wojnarowska stated that when she interviewed the respondent, he told her that he experiences the urge to kill a human being but that he did not want to kill a child and would not kill a female. He indicated to her that the reason that the victim of his 2004 offences survived was because he was a child. He told her that he 'hates' Caucasian males.
Dr Wojnarowska expressed the view that any male, particularly males who are around middle-age, are at an extreme risk of violence from the respondent.
Dr Wojnarowska stated that in her view if the respondent is moved from the SHU he will commit an offence of rape or murder if he has the opportunity to do so for two reasons. First, to ensure that he is returned to the SHU. Second, to fulfill his desire to kill a human being.
Other assessments of the respondent undertaken specifically for the purposes of the application - s 7(3)(b)
Ms Dabala's evidence
Supervision Assessment Report
Ms Dabala's report reveals the following.
Ms Dabala interviewed the respondent in the SHU on 25 October 2023. The respondent was pleasant and cooperative in the interview process.
The respondent told Ms Dabala that he does not want to be released from prison at any point in the future. He stated that he has 'done his time in society', that he is 'broken' and that he lacks empathy.
The respondent told Ms Dabala that if the court decides that he can be released into the community he will commit a serious offence against another prisoner to prevent his release. Ms Dabala asked the respondent whether his offence would be violent or sexual in nature. The respondent told her that the offence would be both sexual and violent. He explained that the physical resistance of the victim would contribute to his sexual arousal.
The respondent told Ms Dabala that he was confident that he would not offend against another child or teenage victim in the future. The respondent added, nonchalantly in Ms Dabala's view, that he must have developed a little empathy in relation to child victims.
The respondent told Ms Dabala that he copes well with the SHU regime and that while he does not thrive he exists and has adapted to the routine after many years. He stated that he enjoys reading books and that he exercises for a number of hours each day.
Ms Dabala raised with the respondent the possibility of referring him to Uniting WA's High Risk Serious Offender Supported Accommodation Programme to take account of the possibility that he may change his attitude towards being released from prison. The respondent declined the referral.
The respondent expressed the view that the Act was a blessing in disguise because it provided him with assurance that he is unlikely to be released into the community at any time in the near future.
The respondent reported to Ms Dabala that he had not had thoughts of self-harm in the past 12 months.
The respondent accepted that he should remain in the SHU in order to protect mainstream prisoners from the serious harm that he intends to cause them if the opportunity for him to do so arises.
In light of Dr Wojnarowska's opinion that there are no supervision order conditions that could be imposed that would ensure adequate protection of the community from the risk that the respondent presents, Ms Dabala does not propose any supervision order conditions for the court's consideration.
In Ms Dabala's evaluation the regime implemented for the care and control of the respondent under the continuing detention order made by Archer J is effective. She therefore recommends that the regime is continued.
Ms Dabala does not recommend that the respondent engage in any treatment during in the event that the continuing detention order is affirmed. She does not do so given the risk that he poses to other prisoners and staff and his refusal to agree to participate in any counselling and/or programmes.
Oral evidence
In her oral evidence Ms Dabala did not substantively add to the material aspects of her report.
Propensity to commit serious offences in the future - s 7(3)(c)
A person has a propensity to commit serious offences in the future if they have an inclination, tendency or disposition to commit serious offences generally, or in a particular way, or upon a particular type of victim.[35]
[35] Director of Public Prosecutions (WA) v GTR [178].
Taking into account the respondent's history of offending and the statements that he has made over the years to various professionals and most recently to Dr Wojnarowska in relation to his intention to further offend if he is released, I am satisfied that he has a propensity to commit violent sexual offences against boys and adult males including sexual penetration offences. It follows that I am satisfied that the respondent does have a propensity (that is, an inclination, tendency or disposition) to commit offences amounting to serious offences as defined in s 5(1) of the Act in the future.
Pattern of offending behaviour - s 7(3)(d)
A 'pattern', as it pertains to behaviour, is a recurrent way of acting by an individual towards a given object or in a given situation.
There is a pattern to much of the respondent's offending. The pattern is that the respondent commits non-consensual sexual acts against boys and vulnerable adult males, the acts being accompanied by significant violence or threats of violence to overcome or prevent any resistance being offered by the victim.
Risk of committing serious offences if not subject to a restriction order - s 7(3)(h)
Dr Wojnarowska is of the opinion that the respondent is at an extremely high risk of committing violent sexual offences that are serious offences as defined in the Act if he is not subject to a restriction order; that is, to a continuing detention order or a supervision order.
In her evidence Dr Wojnarowska clearly explained her reasons for arriving at her conclusion in relation to the respondent's risk of reoffending. There were no flaws in her reasoning process. Further, her evidence in this regard was not challenged.
I accept Dr Wojnarowska's evidence as to the respondent's risk of committing violent sexual offences that are serious offences as defined in the Act if he is not subject to a restriction order.
On the basis of Dr Wojnarowska's evidence, and having regard to the offences that the respondent has in the past committed and my above stated finding in relation to his propensity to commit offences, I am satisfied of the following matters:
1.The respondent is at an extremely high risk of committing further violent sexual offences that are serious offences as defined in the Act if he is not subject to a continuing detention order or a supervision order; and
2.The serious offences that the respondent is at an extremely high risk of committing if he is not subject to a continuing detention order or a supervision order include, but are not limited to, indecently dealing with a child under the age of 13 contrary to s 320(4) of the Criminal Code (WA), sexual penetration of a child under the age of 13 contrary to s 320(2) of the Code, indecently dealing with a child between the ages of 13 and 16 contrary to s 321(4) of the Code, sexually penetrating a child between the ages of 13 and 16 contrary to s 321(2) of the Code, aggravated indecent assault contrary to s 324 of the Code, sexual penetration without consent contrary to s 325 of the Code and aggravated sexual penetration without consent contrary to s 326 of the Code.
The need to protect the community - s 7(3)(i)
There is an obvious need to protect the community from the risk that the respondent presents. The type of serious offences that the respondent is at risk of committing are obviously of such a nature as to be likely to cause very significant physical and psychological harm to victims.
Analysis and decision
Relevant questions
Given the terms of s 68(1) of the Act, the questions that I must answer in order to determine the outcome of the application are as follows:
1.Does the respondent remain a high risk serious offender within the meaning of s 7(1) of the Act? and
2.If the respondent does remain a high risk serious offender, should the continuing detention order be affirmed or should the continuing detention order be rescinded and a supervision order made?
Parties' submissions - summary
The State submits that I should find that the respondent remains a high risk serious offender. The State submits that the respondent has failed to discharge his burden of proving that he would, if released on a supervision order, substantially comply with the standard conditions specified in s 30(2) of the Act. The State submits that releasing the respondent on a supervision order will not ensure adequate protection of the community. Accordingly, the State submits, if I find that the respondent remains a high risk serious offender I should make a continuing detention order in respect of him.
The respondent does not attempt to argue that I should not find that he remains a high risk serious offender. The respondent concedes that the available evidence is sufficient to establish that he remains a high risk serious offender.
The respondent does not attempt to argue that he has discharged his burden of proving that he will substantially comply with the standard conditions of a supervision order or that the community will be adequately protected from the risk that he poses by releasing him on a supervision order. The respondent concedes that it is necessary to make a continuing detention order in relation to him to ensure adequate protection of the community. Indeed, the respondent positively contends for this outcome.
The fact that the respondent takes the position that he has does not absolve me from the responsibility of determining the relevant questions for myself on the basis of the evidence before me.
Does the respondent remain a high risk serious offender?
In determining the question whether the respondent remains a high risk serious offender it is important to bear in mind the following observations of the plurality in Garlett v The State of Western Australia[36] as to the purpose of the Act (citations omitted):
The purpose of a legislative regime, such as… [the Act], is discernibly distinct from the imposition of retribution or deterrence pursued by the criminal law. To the extent that detention or supervised release is part of the legislative regime, the character of the curtailment of the liberty of the individual offender under the regime can be seen to be protective rather than punitive because any curtailment of liberty must be supported by the risk evaluation contemplated by s 7 of the [Act]. In that evaluation, considerations of retribution and deterrence, central to sentencing by way of punishment under the common law, have no part to play. In addition, any curtailment of liberty must be no greater than is necessary adequately to protect the community from the demonstrated unacceptable risk of harm to the community…
[36] Garlett v The State of Western Australia [55].
I have already stated my finding that the respondent is at an extremely high risk of committing violent sexual offences that are serious offences as defined in the Act if he is not subject to a continuing detention order or a supervision order. I have also already stated my finding as to the types of violent sexual serious offences that the respondent is at an extremely high risk of committing if he is not subject to a continuing detention order or a supervision order. On the basis of these findings and having regard to all other matters specified in s 7(3) of the Act to which I have referred, I am satisfied to a high degree of probability that the risk that the respondent will commit a serious offence is unacceptable and that it is necessary to make a continuing detention order or a supervision order in relation to the respondent to ensure adequate protection of the community against the risk. I am so satisfied notwithstanding that the respondent has already been punished for the offences he has committed. It follows that I find that the respondent remains a high risk serious offender.
Continuing detention order or supervision order?
The question that remains for my determination is whether the respondent should be detained pursuant to a continuing detention order, or whether he should be released into the community on a supervision order.
As I have previously indicated, by s 29(1) and s 29(2) of the Act I cannot make a supervision order unless the respondent has satisfied me on the balance of probabilities that he will substantially comply with the standard conditions of the order.
The respondent is a sexually deviant sadist with psychopathic and narcissistic traits. He has refused over many years to engage in any form of intervention for his disorders and treatment needs.
The respondent has in the past repeatedly failed to comply with conditions of parole orders. He has reoffended while subject to parole orders. He has demonstrated an incapacity or unwillingness to make any attempt to control his impulses to engage in violent sexual behaviour.
The respondent has stated without reservation that if he is released into the community on a supervision order he will not comply with the conditions of the order.
The respondent has repeatedly asserted that if he is released from prison he will commit a very serious violent sexual offence against a juvenile or adult male at the first opportunity that arises. The respondent has also asserted that he will, if he has the time, proceed to kill his victim. Given the respondent's history of offending and his proffered explanation for committing the most recent of his offences, I do not doubt the genuineness of his expressions of intention in this regard.
Dr Wojnarowska's opinion is that there are no conditions that could be imposed as part of a supervision order that would ensure adequate protection of the community from the risk that the respondent poses. Although Dr Wojnarowska's expression of opinion on this point is not determinative of the question whether the respondent should be released into the community on a supervision order, this being a question that it is ultimately my responsibility alone to determine, her opinion is obviously deserving of some weight.[37]
[37] Director of Public Prosecutions (WA) v GTR [62].
Taking into account the above referred to matters in combination with each other, I am not satisfied on the balance of probabilities that if the respondent is released on a supervision order he will substantially comply with any of the standard conditions specified in s 30(2) of the Act. That is, I am not satisfied that the respondent will comply with the standard conditions specified in s 30(2) of the Act in a manner and to an extent that will ensure adequate protection of the community from the unacceptable risk of the respondent committing a serious offence of the type that I have identified.
It necessarily follows that I am also not satisfied that the need to ensure adequate protection of the community can be met by releasing the respondent on supervision order. Indeed, taking into account the matters referred to above in combination with each other, I am positively satisfied that there are no conditions that could be imposed as part of a supervision order that would ensure adequate protection of the community from the risk that the respondent currently poses.
In my opinion the serious offences that the respondent is at an extremely high risk of committing have a sufficiently high degree of seriousness and a sufficiently high magnitude of harm to justify a restriction order in the form of a continuing detention order.[38]
[38] Garlett v The State of Western Australia [282].
I will therefore affirm the continuing detention order made by Archer J on 26 October 2022.
The future
In light of the respondent's entrenched oppositional attitude to addressing his various disorders and treatment needs there are no recommendations that I can usefully make in relation to his future treatment. However, I endorse the view expressed by Dr Wojnarowska to the effect that it is necessary for prison authorities to maintain a high degree of vigilance in the management of the respondent within the prison environment.
Order
Pursuant to s 68(1)(b)(i) of the Act I affirm the continuing detention order made by Archer J on 26 October 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
1 DECEMBER 2023
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