The State of Western Australia v Hansen - [2022] WASC 391

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HANSEN [2022] WASC 391
CORAM:   QUINLAN CJ
HEARD:   18 NOVEMBER 2022
DELIVERED          :   18 NOVEMBER 2022
FILE NO:   SO 15 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

STEVEN LLOYD HANSEN
Respondent

Catchwords:

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

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders made under s 46
Interim supervision order made

Category: B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	A Fedele

Solicitors:

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

Cases referred to in decision:

The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 18 November 2022 and has been edited from the transcript.)

Introduction

On 26 October 2022, the State of Western Australia applied for a restriction order in respect of Mr Steven Lloyd Hansen under the High Risk Serious Offenders Act 2020 (WA) (the Act).
The preliminary hearing of the application came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that Mr Hansen is a high risk serious offender within the meaning of the Act (see s 46(1) of the Act).
While Mr Hansen's counsel was not in a position to concede that the requirements of s 46(1) of the Act were met, she did not proffer positive submissions against such a finding. In the circumstance, I am satisfied that the requirements of s 46 are met.
I am also satisfied that it is desirable for the protection of the community, that an interim supervision order be imposed pending the final determination of the application.
My reasons for those conclusions are as follows.

The law

Pursuant to s 46 of the Act, the main purpose of the preliminary hearing is to decide whether the Court is satisfied that there are reasonable grounds for believing that the Court might find that Mr Hansen is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the Court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act, relevantly, includes acts causing bodily harm with an intent to do harm.
I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible, and belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[1]
[1] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

In support of its application, the State relies upon the affidavit of Kathryn Emma Ellson affirmed 27 October 2022. Ms Ellson's affidavit contains Mr Hansen's criminal history dating back to 2002, and several reports in relation to him. Those reports include a pre‑sentence report, program completion reports, individual managements plans and three psychiatric reports.
In addition to Ms Ellson's affidavit, I received an affidavit from a senior community corrections officer, Ms Stacey Madden, affirmed 11 November 2022. Ms Madden's affidavit addresses Mr Hansen's proposed accommodation upon release. I also received an affidavit of Martin James Clancy Lowe, sworn on 18 November 2022, in relation to persons identified as residents at the proposed address by the WA Police Information Management System. I am advised from the bar table that three of the persons referred to in that affidavit do not in fact reside at the address, although the first person referred to in the affidavit does. The State did not submit that the proposed accommodation was unsuitable.
I also received a Post Sentence Supervision Order Report dated 2 November 2022, a post sentence supervision order made by the Prisoners Review Board on 16 November 2022, a Prisoner Performance Feedback Report dated 10 November 2022 and a letter from Mr Hansen's mother dated 6 November 2022.
Mr Hansen is now 37 years of age. He has a history of mental illness including antisocial personality disorder, schizoaffective disorder, and severe substance use disorder relating to his long history of substance abuse, starting from 12 to 13 years of age, including tobacco, alcohol, cannabis, amphetamines and hallucinogens. Mr Hansen also has a number of physical health conditions, including asthma, a pilonidal sinus and chronic pain, and nephrotic syndrome. He also has developmental issues as a result of physical violence and emotional neglect in childhood.
Mr Hansen has a long history of offending. His offending has included drug related offences, stealing, and offences involving violence. He has convictions for common assault, assault in circumstances of aggravation, assault occasioning bodily harm, unlawful wounding, breach of violence restraining orders, unlawful damage, deprivation of liberty, aggravated burglary, being armed in a way that causes fear, threats to injure and threats to kill.'
Mr Hansen's criminal history includes convictions for five serious offences within the meaning of the Act, in 2005, 2010 and 2017. Mr Hansen is currently serving a term of five years imprisonment for his recent offending. Those offences included two serious offences, aggravated burglary (Criminal Code, s 401(2)) and aggravated robbery (Criminal Code, s 392(d). Mr Hansen will have completed that sentence on 4 December 2022.
The circumstances of that offending were as follows.
The offences occurred on 10 November 2017. The victim was in bed at his home. He was alone in the house. A voice called the victim's name, and he saw Mr Hansen and another standing in the front yard of the house inside the security gate. The victim knew Mr Hansen and the co-offender.
When the victim opened the security screen to his front door, Mr Hansen and the co-offender barged into the house. Three other offenders entered the house. Mr Hansen told the victim he was being robbed and instructed the victim to lay face down. The victim's hands and feet were tied with an electrical cord according to Mr Hansen's directions. The victim was dragged down a hallway and left there. Mr Hansen directed a search of the house for items to steal. Various items were stolen including jewellery, clothing, electronic equipment, and the victim's cars. The property stolen was never recovered.[2] During this incident, Mr Hansen threatened to harm the victim, and kicked the victim in the face when he was on the ground, resulting in bruising and swelling to the victim's cheek.
[2] Transcript of sentencing proceedings before Justice Jenkins 17 May 2019, 5.
Following a trial, Mr Hansen was convicted of aggravated home burglary, aggravated robbery and two counts of stealing motor vehicles, along with two co-accused. Mr Hansen was sentenced to a total effective sentence of 5 years imprisonment.
The circumstances of Mr Hansen's offending on 10 November 2017 had concerning parallels with a violent home invasion committed by him in company with others in 2010.
The most recent psychological or psychiatric assessment report is one prepared by Dr Siva Bala, dated 23 April 2019. That report predates and was prepared for the sentencing hearing for Mr Hansen's current term of imprisonment. Given his clear history of psychological disorder and psychiatric illness it is surprising that there is nothing before me in relation to those matters prepared during his current term of imprisonment.
The report prepared by Dr Bala however provides some useful background. Dr Bala stated in that report:[3]
Mr Hansen presented as an obese man, dressed in prison clothes … he made good eye contact and formed a good rapport. He was polite, settled and cooperative. There were no abnormal movements. There were no abnormalities of speech. His mood was mildly low and his affect (range of emotional expression) was restricted (limited). There was no thought disorder or delusional beliefs. He admitted to intermittent voices that were telling him that his partner was cheating on him and (sic) speaking in a derogatory manner to him. He had reasonable insight into his problems. He stated that he needs to 'seek help for my drug abuse … get my family back together' and to engage in ongoing treatment for his mental health problems.
[3]Affidavit of Kathryn Emma Ellson affirmed on 27 October 2022, 245 (Psychiatric Report of Dr Siva Bala dated 23 April 2019).
Dr Bala concluded his report:[4]
The main diagnosis is that of schizoaffective disorder, which I prefer, although a diagnosis of bipolar affective disorder could also be considered. A schizoaffective disorder diagnosis describes episodes of depression or mania with psychotic symptoms such as delusions or hallucinations independent of the mood episodes. A bipolar affective disorder consist of depressive or manic episodes and psychotic symptoms only in the context of the episodes. I prefer the former diagnosis because Mr Hansen reports ongoing psychotic symptoms such as auditory hallucinations in the absence of depression or mania. However, the distinction is academic and does not make a meaningful difference in terms of offending history or treatment needs.
…
Mr Hansen has recurrent problems with significant violence in the context of substance use. Violence is used to exert dominance over others such as his intimate partners or those who owe money for drugs. He has been able to sustain intimate relationships, but there are periods of separation due to conflict. He has been unemployed for many years, has problems with substance use in the community and this is a known risk factor for violence behaviour through disinhibition and exacerbation of personality features related to violence. He has a major mental illness which is at times unstable in the community due to his poor adherence with mediation. He also has a personality marked by antisocial traits with impulsivity and aggression as a means of exerting dominance and control of the situation. He has a history of unresolved trauma in childhood and attachment difficulties. Historically, he has not engaged well with treatment or supervision at times when he is using illicit substances.
…
Mr Hansen is at high risk of future offending given the long history of offending, unstable interpersonal relationships, antisocial personality disorder, substance use, major mental illness and poor adherence with treatment in the community. My opinion is similar to Dr Brett's 2011 report and given the recurrent history of significant offending since then, I am not optimistic that any changes will occur in the community in the near future.
[4] Affidavit of Kathryn Emma Ellson affirmed on 27 October 2022, 246-249 (Psychiatric Report of Dr Siva Bala dated 23 April 2019).
During his current term of imprisonment, Mr Hansen participated in the Pathways Program, a cognitive behavioural program for offenders who have co‑occurring problems with alcohol or drug abuse and criminal conduct.
The completion report for the Pathways Program reported treatment gains but remained guarded as to the risk of re-offending which according to the treatment assessment tools indicated an overall high risk of violent offending. The report concluded:[5]
Mr Hansen attended all 50 sessions of the Pathways program and was deemed to have completed the program in March 2020. During the program, Mr Hansen was observed to be motivated in gaining opportunities throughout the program to better understand his patterns of behaviour. He was also observed to be responsive to feedback received from facilitators and was respectful in delivering feedback to others. Mr Hansen reported to facilitators that he had previously completed the Pathways Program in 2012 and VOTP in 2013, however, mentioned that he was not ready to change at the time of completing these programs he stated during the current program he considered himself ready to make changes in his life.
Overall, Mr Hansen displayed an increased awareness of both personal circumstances as well as intrapersonal processes (thoughts, emotions, beliefs and attitude) that lead to his current and past substance use and offending behaviours. Mr Hansen was considered to have made some treatment gains, however these are yet to be tested in relevant high risk or community based settings. Should Mr Hansen relapse and return to substance use his risk of reoffending would be increased.
[5] Affidavit of Kathryn Emma Ellson affirmed on 27 October 2022, 225 (Pathways Program Completion Report, dated 31 March 2020).
The guarded nature of this report and the absence of any evidence as to Mr Hansen's psychological or psychiatric condition do not inspire great confidence that his treatment needs have been properly attended to while he has been in prison.
Some more recent documents, albeit not expert assessments, however, provide some cause for optimism.
An Individual Management Plan dated 8 January 2020 notes that Mr Hansen was housed in a cottage under an earned supervision regime, and that he was compliant with unit staff requests and co‑operative within the unit and his cottage; he gained employment as a unit cleaner, and was polite toward unit staff.
More recently, the Prisoner Performance Feedback from Eastern Goldfields Regional Prison, dated 10 November 2022, speaks highly of Mr Hansen's recent gains:[6]
Mr Hansen has been employed as a Peer Support Prisoner at EGRP [Eastern Goldfields Regional Prison] since late 2019. During this time, Mr Hansen has played a vital role in maintaining the good order and security of the prison through his role as a Peer Support Worker. Through working with Mr Hansen during past terms, it is noted that he has faced his current sentence with a significant improvement in his maturity and attitude and has come a long way since his previous terms. Historically, he would be faced with charges and numerous incident reports but has managed to keep a clean record for his current term and as a result, he has been played in the highly sought after role of Peer Support Worker which also comes with a great deal of respect and responsibility in maintaining his position.
Due to significant community/family issues that have occurred in Kalgoorlie/Boulder in recent years – Mr Hansen has acted as a vital source of information in ensuring that outside issues do not come into the prison and cause unrest. Mr Hansen has put his personal opinions and family connections aside to maintain and fulfil his role impartially and to the best of his ability. He openly communicates with staff and members of the Senior Management Team to ensure that potential issues are known prior to incidents occurring. This in turn has ensured the good order and security of EGRP, and has also lessened the likelihood of prisoner assaults or other incidents occurring in which prisoners or staff may come to harm. Mr Hansen is always willing to work with staff to be able to organise mediation between prisoners who may have issues with each other.
Mr Hansen is seen to have turned over a new leaf this current term, despite multiple stressors in his personal life including numerous deaths in his family throughout his current term. He is always willing to step up-up and assist when asked and seldom says no when asked to help with any issue that may arise. Mr Hansen was transferred to Acacia Prison for a period of time to complete his VOTP course however, during this time, his nephew became terminally ill and he requested to be transferred back to EGRP to be with his family at this time. Mr Hansen also disclosed to staff that he had faced issues in Acacia Prison due to his past offending and was open about his want to complete his term without incident, which he was aware would occur should he be transferred back to Acacia. As a result, Mr Hansen remained at EGRP and was classed as ''refused to transfer'' for his VOTP course, however, it should be noted that he did attempt to transfer to complete this course.
[6] Prisoner Performance Feedback, Eastern Goldfields Regional Prison, dated 10 November 2022, 4.
In addition, the letter from Mr Hansen's mother dated 6 November 2022 provides further support for the view that Mr Hansen will, upon his release, receive significant community and family support. It is proposed that he live in a regional town, 'away from all previous influences and will have a large family support team to help guide him on the right path'. Support such as this cannot be underestimated in its importance.
I turn to my assessment.

Assessment

I am satisfied that there are reasonable grounds to believe that a court might find Mr Hansen to be a high risk serious offender.
My reasons for that conclusion are as follows.
Mr Hansen has a significant history of violent offending, and has most recently committed serious offences within the meaning of the Act in his 2017 offending. Those offences were premeditated and violent and reflect a repetition of previous offending in 2010.
While there is a paucity of recent professional assessments of Mr Hansen, his most recent risk assessment continued to place him at a high risk of reoffending. During his most recent term of imprisonment Mr Hansen has been unable to complete all required treatment programs. There is no evidence before me as to whether he has engaged in psychological counselling sessions.
The reports of Mr Hansen having 'turned over a new leaf in his current term' are certainly encouraging. Nevertheless, it remains to be seen whether he is able to remain substance free in the community. He will no doubt need support in the community to do so.
On the basis of Mr Hansen's offending history and his unmet treatment needs, I am satisfied that there are reasonable grounds to believe that a court might find that he is a high-risk serious offender. I will therefore make orders for the hearing of the restriction order application.
Turning then to the interim supervision order.

Interim supervision order

As I indicated, the State does not seek an interim detention order. The State submits that I should make an interim supervision order pursuant to s 58 of the Act. I am satisfied that I have jurisdiction to do so.
While Mr Hansen is currently in custody, he will be released on 4 December 2022. For reasons I have previously given, I am satisfied that s 58(2)(b) of the Act applies in relation to a person who would not be in custody on a specified date from which the order is to take effect.[7] The real issue in the present case is therefore whether it is desirable to ensure for the adequate protection of the community that Mr Hansen be subject to an interim supervision order.
[7] The State of Western Australia v Hart [2021] WASC 205 [32] ‑ [33] (Quinlan CJ).
I am satisfied that it is.
As I have said, there are a number of encouraging indicators in the Prisoner Performance Feedback and Pathways Program Completion Report, and Mr Hansen has the support of his immediate family and community. His family is aware of and accept his need for strict conditions.
While Mr Hansen would be subject to a post-sentence supervision order in any event upon his release, in all of the circumstances, I am not satisfied that the conditions of the post-sentence supervision order would adequately meet the requirements of community protection in the interim or indeed, Mr Hansen's own supervision needs immediately upon his release.

I am particularly influenced by two matters.
The first is that the post-sentence supervision order does not enable the use of a curfew. Whether a curfew is ultimately necessary would be a matter for the community corrections officer, but Mr Hansen's recent offences did occur night and it is important, in my view, that community corrections officers at least have the discretion to impose a curfew in relation to him, in order to ensure that they have as much scope as possible for the monitoring of his behaviour and performance while on supervision.
I should stress that a curfew should not be simply regarded as the default position. It should be used by community corrections officers if and when the circumstances suggest that it is appropriate. In particular, it would not be in Mr Hansen's interests, or in the interests of the protection of the community, were the use of a curfew to in any way impede meaningful employment or meaningful activities within the community. Those are matters which should be specifically taken into account in the management of the conditions.
As I have said, the imposition of a condition to be subject to a curfew does not require it be in place. It is however, an appropriate precaution.
The second matter that persuades me to order the imposition of an interim supervision order rather than a post-sentence supervision order is that Mr Hansen's proposed residence will be some distance from the nearest community corrections office. It is appropriate in my view to include the capacity for reporting to and receiving visits from police in the locality, who would be able to more closely monitor Mr Hansen than community corrections officers. For those reasons, it is appropriate that an interim supervision order be imposed to enable that to occur.
Therefore, in all of the circumstances, I am satisfied that it is in Mr Hansen's interests and the interests of the protection of the community that the supervision to which he is subject include the potential for these additional measures.
I will nevertheless make the conditions of the interim supervision order as simple as circumstances will allow to ensure there is a focus on treatment of his underlying conditions and practical monitoring and encouragement of his prosocial behaviour in the community.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to the Honourable Chief Justice Quinlan
18 NOVEMBER 2022