The State of Western Australia v Hapke

[2022] WASC 66

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HAPKE [2022] WASC 66

CORAM:   HALL J

HEARD:   18 FEBRUARY 2022

DELIVERED          :   18 FEBRUARY 2022

PUBLISHED           :   25 FEBRUARY 2022

FILE NO/S:   SO 19 of 2021

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

JASON GUY HAPKE

Accused

Catchwords:

High Risk Serious Offenders Act 2020 - Restriction order application - Preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Whether an interim supervision order should be made pending determination of the application

Legislation:

High Risk Serious Offenders Act 2020

Result:

Orders made pursuant to s 46(2)
Interim supervision order made

Category:    B

Representation:

Counsel:

Applicant	:	Ms F M Allen
Accused	:	Mr T J McCulloch

Solicitors:

Applicant	:	State Solicitor's Office
Accused	:	Legal Aid (WA)

Case(s) referred to in decision(s):

Nil

HALL J:

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

Introduction

1. On 25 November 2021, the State of Western Australia applied for a restriction order in respect of the respondent, Jason Guy Hapke, under the High Risk Serious Offenders Act 2020 (‘the Act’).  The preliminary hearing of the application came before me today. 

2. The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the court might find the respondent is a high risk serious offender within the meaning of the Act: see s 46(1).

3. The State seeks orders pursuant to the Act, including orders that:

   (a)        a restriction order be imposed under s 48;

   (b)the respondent undergo examination by a psychiatrist or qualified psychologist for the purpose of preparing reports; and

   (a)the respondent be subject to an interim supervision order under the Act until final determination of the application.

4. The respondent’s counsel accepts that the requirements of s 46 are met.  For reasons that follow, I am satisfied that that concession is appropriately made. 

5. I am also satisfied that it is desirable for the protection of the community that an interim supervision order be imposed. The respondent, through his counsel, has suggested that adequate protection could be provided by a post‑sentence supervision order (PSSO), which will be in place, but in my view, the additional protection of an interim supervision order is appropriate and necessary.  

The law

1. The main purpose of a preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds to believing that the court might find that the respondent is a high risk serious offender. 

2. A ‘high risk serious offender’ is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.

3. A serious offence within the meaning of the Act, is defined in s 5 and Schedule 1. It relevantly includes armed robbery and causing grievous bodily harm.

4. I do not have to be satisfied that a restriction order will be made.  It is sufficient at this stage of proceedings if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible.  Further, belief is an inclination of mind toward assenting to rather than rejecting a proposition.  For there to be reasonable grounds for belief, requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

The evidence 

1. In support of its application, the State relies on the affidavit of James Francis Bennett, affirmed on 25 November 2021, which annexes the respondent’s criminal history dating back to 1993, and several previous reports in relation to him. Those reports include psychologists’ reports, treatment reports and an individual management plan. The most recent report is the individual management plan which is dated 24 August last year. 

2. The State also relies on the affidavit of Heather Applin, affirmed on 9 February 2022.  This affidavit relates to the respondent’s proposed accommodation upon release.  Ms Applin states that the respondent plans to reside with his partner and her mother.  Contact with his partner has confirmed her willingness to accommodate the respondent. Both she and her mother are aware of the respondent’s past offending and are supportive of him. 

3. The respondent is now 43 years of age.  He has a long history of offending.  His offending has included offences of stealing, burglary, assaults, robbery and aggravated grievous bodily harm. He has committed three robbery offences.  He has received several significant terms of imprisonment.  His offending commenced at age 14, and his most recent offence occurred in 2017 when he was age 38. 

4. The most recent offence was one of doing grievous bodily harm to his previous partner.  The offence was aggravated because he was in a family and domestic relationship with that victim. That offence occurred five weeks after his release from a previous sentence of imprisonment.  He and his partner of that time had been together for four years.  Police had been called on other occasions for violence, and the victim had previously been taken to hospital.  After an argument, the respondent picked up a broom and poked her with hit, before striking her twice to the head.  One blow resulted in the partner suffering a broken jaw.  On 17 October 2018, the respondent was sentenced to four years imprisonment. He is due for release, having served the full term, on 26 February 2022. 

5. In a psychological report prepared for sentencing in 2018, Ms Claire Lynn noted that the respondent had associated with drug using and antisocial peers from his early adolescence.  He commenced using alcohol and cannabis at 13 and amphetamines at 14. He maintained drug use, even during periods of imprisonment, and was on a methadone program prior to his last release.  Ms Lynn assessed the respondent as having a high risk of violent reoffending, due largely to his personality traits, attitudes, and peer associations, substance abuse, lack of insight and a tendency to cognitive distortions. She recommended participation in programs for violence and substance use.[1]

   [1] Affidavit of James Francis Bennett affirmed on 25 November 2021, annexure K (Psychological Report of Ms Claire Lynn dated 19 September 2018.

6. The respondent has, at various times in the past while in prison, participated in programs. These have included a violent offender treatment program in 2005, a Think First program in 2007, a Moving on from Dependencies program in 2010, a violence treatment program in 2014, a Pathways program in 2015, a further Pathways program in 2020, and a Stopping Family Violence program in 2021.[2] 

   [2] See, e.g., affidavit of James Francis Bennett affirmed on 25 November 2021, annexures L (Violent Offending Treatment Program Completion Report dated 16 November 2005), M (Think First Program Completion Report dated 24 September 2007) and R (Stopping Family Violence Program Completion Report dated 12 October 2018).

7. The efficacy of some of the earlier programs must be doubted, given that the respondent continued to offend.  The completion reports do, however, indicate that he generally participated well and appeared to gain some understanding of the causes of his offending behaviour.  In a parole review report of 29 November 2019, the author stated that:[3]

   Based on the current assessment, Mr Hapke presents a very high risk of general reoffending and a high risk of reoffending violently.  Mr Hapke has completed seven programs during his periods of incarceration, most recently completing a Pathways program in 2015 and a violent offender program in 2013. It is recommended that Mr Hapke complete a Pathways program to assist his treatments needs regarding his pro-criminal attitudes, impulsivity and substance abuse. As Mr Hapke’s offence occurred within a domestic context and he has a history of intimate partner violence, it is recommended he complete the Stopping Family Violence program to address his treatment needs of emotional management and communication skills, specifically regarding his use of interpersonal aggression and to assist him with developing victim empathy.  This program will additionally help Mr Hapke, as he will develop a domestic violence relapse prevention plan to assist him to not reoffend upon his release to the community.

   [3] Affidavit of James Francis Bennett affirmed on 25 November 2021, annexure R (Stopping Family Violence Program Completion Report dated 12 October 2018).

8. It is to the respondent’s credit that he did do the recommended programs.  The treatment report for the Stopping Family Violence program concluded that:[4]

   If paroled, Mr Hapke would benefit from support from his CCO to further refine his safety plan, to account for risks involved in future relationships or with contact with the victim, especially given that they share a child.  Mr Hapke would benefit from assistance from his CCO to build on his understanding and application of skills in the areas of antisocial cognitions and emotion management, relationship skills, victim impact and perspective-taking.[5]

   This suggests that, whilst the risk of reoffending remains, it may be capable of being managed with support and supervision. 

   [4] Affidavit of James Francis Bennett affirmed on 25 November 2021, annexure R (Stopping Family Violence Program Completion Report dated 12 October 2018).

   [5] Affidavit of James Francis Bennett affirmed on 25 November 2021, annexure R (Stopping Family Violence Program Completion Report dated 12 October 2018).

Assessment

1. I am satisfied that there are reasonable grounds to believe that a court might find the respondent to be a high-risk serious offender.

2. The respondent has a significant history of violent offending.  He has previously been assessed as being at high risk of reoffending in a violent manner. Some of the factors contributing to that risk, such as personality type, are unlikely to have changed. However, the respondent has undertaken programs that may have benefit him in controlling his anger and drug use. 

3. On the basis of the respondent’s offending history and the previous assessments of his reoffending risks, 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. 

Interim Supervision Order

1. The State further submits I should make an interim supervision order, pursuant to s 58(5) of the Act. In that regard, the State submits that, despite the respondent’s participation and completion of treatment programmes, the minimisation of his violent behaviour and his past history of reoffending when released does not engender confidence that he will be able to successfully implement the gains from those programmes on release if he is not subject to some form of supervision when released in the community.

2. The Prisoners Review Board has decided to impose a PSSO. That order does require the respondent to report for supervision by a community corrections officer; abstain from illicit drugs or alcohol; attend programs and counselling as directed; reside at a nominated address; and not approach the previous victim.  Most of those requirements are also included in the supervision order.

3. However, the proposed supervision order has additional requirements, including: a curfew; a requirement not to be in possession of weapons; disclosure of offending to persons with whom the respondent forms a relationship; police access to telephones and computers; and the possibility of implementing GPS tracking.  These additional conditions mean that a supervision order provides, in my view, a greater degree of protection, and that that greater degree is appropriate in the circumstances.

4. The respondent is the subject of a pending proceeding. Whilst he is currently in custody, his current sentence is due to expire on 26 February 2022.  Given the respondent’s high risk of serious offending and the likely nature of such offending, the need to ensure adequate protection of the community pending determination of the proceedings requires, in my view, that an interim supervision order be made in the terms of the proposed draft.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JS

Associate to the Honourable Justice Hall

25 FEBRUARY 2022