The State of Western Australia v Hapke [No 2]
[2022] WASC 333
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HAPKE [No 2] [2022] WASC 333
CORAM: FORRESTER J
HEARD: 23 SEPTEMBER 2022
DELIVERED : 4 OCTOBER 2022
FILE NO/S: SO 19 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JASON GUY HAPKE
Accused
Catchwords:
Catchwords: Criminal Law – High risk serious offender – Application for restriction order – Whether the respondent is a high risk serious offender – Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order – Whether necessary to make restriction order to ensure adequate protection of community – Whether community can be adequately protected by imposition of supervision order - Whether the respondent will substantially comply with standard conditions of a supervision order
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision Order made
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Accused | : | T Hager & T J McCulloch |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Accused | : | Legal Aid (WA) |
Cases referred to in decision:
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Director of Public Prosecutions v Williams [2007] WASCA 206
Garlett v The State of Western Australia [2022] HCA 30
Hapke v The State of Western Australia [2006] WASCA 188
The Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
The Director of Public Prosecutions v Decke [2009] WASC 312
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v GTR [2008] WASCA 187
The State of Western Australia v Hapke [2022] WASC 66
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v ZSJ [2020] WASC 330
FORRESTER J:
Introduction
This is an application by the State for a restriction order to be made in respect of the respondent, Jason Guy Hapke, pursuant to the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
On 18 February 2022, a preliminary hearing pursuant to s 46 of the HRSO Act was held before Hall J.[1] Hall J was satisfied that there were reasonable grounds to believe that the court might find the respondent to be a high risk serious offender. His Honour ordered that the application for a restriction order be heard on 23 September 2022, and ordered that the respondent be made subject to an interim supervision order pursuant to s 58(5) of the HRSO Act.
[1] The State of Western Australia v Hapke [2022] WASC 66.
On the application for a restriction order, the matters I must decide are:
(1)whether the respondent is a high risk serious offender, within the meaning of s 7 of the HRSO Act; and
(2)if so, whether to make an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order)[2] or that he be released into the community subject to conditions that the court considers appropriate (supervision order).[3]
[2] HRSO Act s 26.
[3] HRSO Act s 27.
The application
When the application was made on 25 November 2021, the respondent was serving a term of imprisonment of 4 years' imprisonment for the offence of doing grievous bodily harm in circumstances of aggravation (the index offence).
The offence of unlawfully doing grievous bodily harm is a serious offence under the HRSO Act,[4] and the respondent's sentence expired on 26 February 2022.
[4] HRSO Act s 5 and Schedule 1 Subdivision 3 Item 14.
Accordingly, the respondent was, at the time the application was made, 'a serious offender under custodial sentence'[5] who was not a serious offender under restriction within the meaning of s 35 of the HRSO Act.
[5] HRSO Act s 3, s 5.
Evidence relied upon at the hearing
The State produced a Book of Materials comprised of three volumes, containing the criminal history of the respondent and detailed evidence relating to it, including transcripts and witness statements, the respondent's custodial history, program completion reports relating to the various programs undertaking by the respondent while in custody, parole and other assessment reports, WA Police Incident Reports, and reports prepared for this hearing, specifically:
(1) the report of Dr Tara Yewers, Counselling Psychologist, dated 12 August 2022;
(2)the report of Dr Natalie Pyszora, Consultant Forensic Psychiatrist, dated 9 August 2022;
(3)Community Supervision Assessment Report of Rhonda Sutherland, a Senior Community Corrections Officer 29 August 2022; and
(4)Proposed HRSO Treatment Options Report by a HRSO Planning Manager, Valerie Thatcher, dated 24 August 2022.
The State also called:
(1)Dr Natalie Pyszora;
(2) Dr Tara Yewers; and
(3) Ms Rhonda Sutherland.
In the case of each of the witnesses called, the State relied upon their reports as forming the majority of their evidence in chief, supplemented by evidence as to the necessity for particular conditions to be included in any supervision order which might be made in relation to the respondent.
Index offence
The circumstances of the index offence were determined by Glancy DCJ at the sentencing of the respondent on 17 October 2018.[6]
[6] Book of Materials for the Restriction Order Hearing Volume 1 filed 25 July 2022, 538 - 540 (Book of Materials Vol 1).
The respondent and the victim had known each other since childhood, and as at 2 June 2017, had been in a relationship for about four years, with all but five weeks or so being while the respondent was in custody. The respondent had been living with the victim for about a month at the date of the offence, having been released from custody in late April 2017. During this time, the police had been called to the unit on a number of occasions, and the victim had been taken to hospital by ambulance on some of those occasions, as a result of violence towards her by the respondent.[7]
[7] As to the detail of these incidents, the State filed 5 incident reports - Book of Materials for the Restriction Order Hearing Volume 3 filed 30 August 2022, 975 - 996 (Book of Materials Vol 3).
On 2 June 2017, the respondent and victim had been arguing on and off throughout the day, largely revolving around the respondent's relationship, or perceived relationship, with another woman. The other woman was then a friend of the victim's (and was at the time of sentencing the respondent's partner).
At some point after 5.00 pm, the argument between the respondent and the victim escalated and he became physically violent towards her. In the course of that altercation, the victim accidentally cut the respondent's leg with a pair of children's scissors. This resulted in him becoming more angry.[8]
[8] The cut did not require any medical assistance and healed on its own.
At 7.25 pm the victim called 000. This enraged the respondent and he picked up a broom which was lying nearby and poked her with it before striking her with it twice about her head whilst she was on the phone to the police. One of the blows with the broom broke her jaw, an injury which was likely to cause permanent injury to her health. The other blow delivered to her head caused the broom to break.
The respondent fled the scene in his car without rendering any assistance to the victim. When questioned by police, he initially told them he didn't know how the victim had been injured.
The respondent was convicted after trial. After his conviction he continued to deny responsibility for his conduct, claiming he acted in self-defence.[9] He portrayed himself as the victim, and claimed she attacked him and he had to restrain her. He minimised the level of violence used and appeared to have a distorted perception of events.[10]
[9] Book of Materials Vol 1, 254 [10].
[10] Book of Materials Vol 1, 254 [10].
Her Honour found that the offence occurred because the respondent was angry with the victim for discussing what she thought was an affair he was having and for calling the police and also perhaps for cutting his leg.[11]
[11] Book of Materials Vol 1, 280.
Offending history
The respondent has an extensive criminal history, having had contact with the criminal justice system from a young age. Many of the offences, but not all, were serious offences within the meaning of the HRSO Act. The most significant offending is summarised below.
As a 14 year-old, he was dealt with for attempted robbery after he and a co-offender attempted to pull a woman's handbag from her shoulder, causing her to fall into a wall. At the age of 16, he confronted police who were chasing him with a flick knife, saying, 'Fuck off or I'll kill you.' Following a violent struggle, he was arrested, and ultimately sentenced to 4 months' detention.
On 9 April 1998, he was dealt with on indictment for 2 offences of stealing a motor vehicle and driving it in a manner which was reckless or dangerous. He received a total effective sentence of 2 years' imprisonment on that occasion.[12]
[12] Book of Materials Vol 1, 5.
On 22 October 1998, the respondent was dealt with on indictment for the offence of stealing a motor vehicle and was sentenced to a further 3 years' imprisonment.[13]
[13] Book of Materials Vol 1, 4.
On 2 December 2003, the respondent was sentenced by Templeman J for 3 counts of stealing a motor vehicle and three counts of aggravated burglary. He received a term of imprisonment of 4 years' imprisonment for this offending.[14] For some reason, these convictions do not appear on the respondent's criminal record.[15]
[14] This offending and sentence were considered in sentencing by Jenkins J in sentencing on 11 August 2004 see Book of Materials for the Restriction Order Hearing Volume 2 filed 25 July 2022, 723 - 731 (Book of Materials Vol 2).
[15] Book of Materials Vol 1, 3.
On 11 August 2004, the respondent was sentenced in the Supreme Court for the offences of aggravated armed robbery and stealing a motor vehicle, for which he was sentenced to a total effective sentence of 5 years and 10 months' imprisonment.
Jenkins J found the facts, in essence, to be that in September 2002, the respondent and two others planned to, and did, rob the Nedlands branch of the ANZ branch. The respondent stole a car to facilitate the robbery and drove it to the bank. The respondent and one of his co-offenders, wearing clothes to disguise their identities, entered the bank. The respondent was armed with a sawn-off double-barrelled shotgun and personally demanded the tellers fill his bag with money. The co-offender was armed with a pistol and threatened a teller with it. Outside, a bystander was threatened with the pistol to move so they could escape. The co-offenders took the majority of the $8,600 stolen, leaving the respondent with several hundred dollars.[16]
[16] Book of Materials Vol 2, 712 - 715.
In his police interview following his apprehension for these offences on 7 October 2002, the respondent admitted committing a burglary on a firearms store, during which he stole 13 guns and ammunition, which he intended to sell. This property was later recovered by the police.[17] He was convicted for this offence on 30 January 2004 and sentenced to 1 month imprisonment.[18]
[17] Book of Materials Vol 2, 791 - 802.
[18] Book of Materials Vol 1, 3.
While the respondent was awaiting trial for those matters, he committed the offences of escaping lawful custody and stealing a motor vehicle with violence while in company. On 10 June 2004, he and other prisoners were in the Supreme Court detention area. They overpowered a guard and stole a set of keys, enabling them to escape. In company with others the respondent approached the driver of a car in a nearby street in a threatening manner and he and 6 others took the car and drove off. The respondent stole a watch and cash from the car. Later, he was in the car when it was seen by police and there was a pursuit before the car was stopped and the respondent apprehended.[19]
[19] Book of Materials Vol 2, 913.
On 8 November 2004, the respondent was sentenced to a term of 2 years' imprisonment cumulative on the sentence he was then serving. He was not made eligible for parole.[20] The sentence was later reduced to 12 months' imprisonment on appeal.[21]
[20] Book of Materials Vol 2, 915.
[21] Hapke v The State of Western Australia [2006] WASCA 188 [120] (Robert-Smith JA) [125] (Murray AJA) [1] (Steytler P).
On 12 November 2004, the respondent pleaded guilty to an armed robbery in company and stealing a motor vehicle.[22] On 17 December 2004, Miller J sentenced the respondent to 5 years and 4 months' imprisonment, partly cumulative on the sentence he was then serving.[23]
[22] Book of Materials Vol 2, 868.
[23] Book of Materials Vol 2, 881 - 906.
The facts of this offending were that on 15 July 2002 a co-offender stole a red Holden Commodore. The next day, the respondent and two others, knowing the car to be stolen, went to the Osborne Park branch of BankWest. The respondent and another male went into the bank wearing black clothing, balaclavas and gloves. One had a heavy hammer and one had a double-barrelled shotgun. The staff were threatened with the firearm by one while the other smashed the tellers' protective glass with the hammer and removed money from the drawers. A female teller was forced from the safe room and money was taken from the safe. A female teller was grabbed by the hair and dragged to another part of the bank. The third offender then entered and told them to leave and they all escaped. Approximately $37,140 was stolen, which was divided between the three.[24]
[24] Book of Materials Vol 2, 900.
Less than a month after his release from 10 years in custody, on 26 October 2012 the respondent committed offences of armed robbery in company and attempted armed robbery in company. The armed robbery in company was committed upon a Marmion pharmacy at approximately 3.00 pm. The respondent was armed with a replica handgun and his co-offender held a tyre lever. They displayed their weapons in a threatening manner and demanded pseudoephedrine and money, which they were given by a staff member. At one point the respondent went to the back of the store and pointed his handgun at the head of another staff member, and yelled at her, 'What are you doing back here? Put your hands up.' The respondent and co-offender took more money before leaving with a total of $5,546 in cash and about 20 boxes of medication.[25]
[25] Book of Materials Vol 2, 648 - 649.
After committing that offence, the respondent and co-offender ran to their car. As they did so, the co-offender, still armed with the tyre iron, approached an unmarked police car which was parked nearby, and tried to open the passenger door. On finding it was locked, he smashed the passenger window with the tyre iron and told the plain clothes officer sitting inside to get out of the car. Meanwhile, the respondent pointed the replica handgun at the officer and demanded he get out of the car. The officer in the car drew his firearm, and another officer also approached and told the respondent to drop the gun. Despite repeated demands for him to drop the gun, the respondent failed to do so, and he instead ran away, only to be apprehended a short time later.[26]
[26] Book of Materials Vol 2, 649.
On 2 May 2013, Heenan J sentenced the respondent to a term of 4 years and 6 months' imprisonment for these offences.[27]
[27] Book of Materials Vol 1, 1; Book of Materials Vol 2 646 - 670.
On 20 February 2015, the respondent committed the offence of possession of stolen or unlawfully obtained property, for which he received a fine of $300.[28]
[28] Book of Materials Vol 1, 1.
The index offence was committed on 2 June 2017.
Statutory framework and legal principles
The objects of the HRSO Act are:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b) to provide for continuing control, care or treatment of high risk serious offenders.[29]
[29] HRSO Act s 8.
The term 'high risk serious offender' is defined in s 7(1) of the HRSO Act as follows:
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.
A 'restriction order' means a continuing detention order or a supervision order.[30] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[31] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[32]
[30] HRSO Act s 3.
[31] HRSO Act s 3, s 26(1).
[32] HRSO Act s 3, s 27(1).
Relevantly, an offence is a 'serious offence' if it is an offence listed in sch 1 div 1 of the HRSO Act.[33]
[33] HRSO Act s 5.
The State has the onus of satisfying the court in accordance with s 7(1).[34]
[34] HRSO Act s 7(2).
When considering whether it is satisfied that a person is a high risk serious offender, the court must have regard to:
(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.[35]
[35] HRSO Act s 7(3).
In considering whether it is satisfied as required by s 7(1), the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[36]
[36] HRSO Act s 7(4).
I am satisfied that the jurisprudence established in respect of the Dangerous Sexual Offences Act 1995 (WA) is relevant in construing and applying the HRSO Act, with necessary adaptation.[37]
[37] The State of Western Australia v ZSJ [2020] WASC 330 [31].
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[38]
[38] Garlett v The State of Western Australia [2022] HCA 30 [55] - [56].
If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make a continuing detention order or, except as provided in s 29, a supervision order. In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[39]
[39] HRSO s 48(2).
The words 'high degree of probability' import more than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt they are otherwise not capable of further definition.[40] The court is required to identify what it is that constitutes the risk and what makes it unacceptable, thereafter considering whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.[41]
[40] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28] - [34].
[41] The State of Western Australia v GTR [2008] WASCA 187 [34].
The meaning of 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams in the following terms:
In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.[42]
[42] Director of Public Prosecutions v Williams [2007] WASCA 206 [63].
In Garlett v The State of Western Australia the court said:
Whether or not a risk that an offender will commit a "serious offence" is "unacceptable" is a question which requires the court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is "necessary" to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.[43]
[43] Garlett v The State of Western Australia [2022] HCA 30 [73].
In The State of Western Australia v Garlett,[44] Corboy J considered that s 7(1) of the HRSO Act (in conjunction with s 48) requires the court to assess two separate matters. The first is whether a risk that an offender will commit a serious offence is unacceptable. The second is, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence. His Honour stated:
…the court should choose, as between a continuing detention order and a supervision order, the order that is 'least invasive or destructive' of a person's right to be at liberty while ensuring an adequate degree of protection of the community. That constraint also applies in determining the non-standard conditions (if any) of a supervision order. Moreover, as Hall J pointed out in Director of Public Prosecutions v Decke,[45] '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order'. [46]
[44] The State of Western Australia v Garlett [2021] WASC 387.
[45] The Director of Public Prosecutions v Decke [2009] WASC 312 [14].
[46] The State of Western Australia v Garlett [2021] WASC 387 [143].
I adopt, without repeating here, the observations of Corboy J in The State of Western Australia v West[47] and Beech J in Director of Public Prosecutions (WA) v DAL [No 2].[48]
[47] The State of Western Australia v West [2013] WASC 14 [52].
[48] The Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33].
The court cannot make a supervision order in relation to an offender unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[49]
[49] HRSO Act s 29.
In determining whether an offender 'will substantially comply with the standard conditions of the order', it is, in my view, appropriate to take the approach set out by Fiannaca J in Director of Public Prosecutions v Hart.[50]
[50] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [20] - [52].
Family background and relationships
The respondent is the eldest of two children born to his parents. His parents separated when he was about 5 years old. After the separation, the respondent had regular contact with his father on school holidays which appear to have been a positive experience. The respondent's mother had two further children from a subsequent long-term relationship.[51]
[51] Book of Materials Vol 2, 639.
When he was about 10 years old, the respondent's grandfather died. The respondent had shared a special relationship with his grandfather. The respondent's mother and her de facto separated a short time later. The respondent felt the loss of these two men from his life keenly, as his life changed dramatically after that.[52]
[52] Book of Materials Vol 2, 639.
The respondent's mother began drinking excessively and she was violent when she had been drinking. She engaged in a number of ill-fated relationships which the respondent considered to be very damaging for the family from a social, emotional and financial perspective and he said that, over time, there was an 'erosion of family values'.[53]
[53] Book of Materials Vol 2, 639.
When the respondent was 14 years of age, his mother suffered severe injuries in a motorbike collision and subsequently she was 'lost', and 'dull and moody'. The respondent said it was 'not nice to be home' and subsequently avoided being there.[54]
[54] Book of Materials Vol 2, 639.
His mother's partner at the time was violent and aggressive towards him and on one occasion assaulted him. He perceived that his mother sided with her partner on this occasion. His uncles, however, threatened the partner not to do so again.[55] The respondent ultimately left home at 17 years of age.[56]
[55] Book of Materials Vol 3, 1008 [57] - [58].
[56] Book of Materials Vol 2, 639 - 640.
The respondent had little contact with his father after approximately 2003, which he attributes to his offending behaviour.[57] His grandmother died shortly before his release in 2012, which resulted in him feeling overwhelmed by grief.[58]
[57] Book of Materials Vol 2, 640.
[58] Book of Materials Vol 2, 641.
Prior to the index offence, the respondent had two significant relationships other than that with the victim of the index offence. He denied violence towards the victim but admitted to arguing with her over infidelity and 'jealousy issues'.[59] However, he felt reliant on the victim's support given the time he had spent in custody and his limited experience living in the community.[60]
[59] Book of Materials Vol 1, 253 [4].
[60] Book of Materials Vol 1, 253 [4].
The victim of the index offence gave birth to a son on 16 January 2018. The child is the biological child of the respondent. He desires to maintain a relationship with this child, subject to the lifetime restraining order which protects the child's mother. He proposes to seek Family Court orders in the future when he can afford it and 'emotionally handle it'.[61]
[61] Book of Materials Vol 3, 1047 [29].
The respondent is now in an intimate relationship with the woman with whom he had developed a relationship at the time of the index offence, and has been living with her and her mother since his release from prison in February 2022. He has described the relationship as 'great and surprisingly comforting.'[62]
[62] Book of Materials Vol 3, 1013 [88].
The respondent now has daily contact with his mother and brothers and describes the relationships as 'good', saying he is particularly close to his mother. He has also recently had contact with his biological father for the first time in about 15 years.[63]
[63] Book of Materials Vol 3, 1046 [25].
Education and employment
The respondent had no issues with primary school and had a reasonable attendance record. He has reasonable literacy and numeracy skills,[64] but admits struggling on occasion.[65] Initially he had a positive experience at school, but he began associating with an older peer group who were a bad influence and he was expelled for selling cannabis in year 10.[66]
[64] Book of Materials Vol 2, 640.
[65] Book of Materials Vol 3, 1010 [74].
[66] Book of Materials Vol 2, 640.
The respondent has a limited employment history[67] and is presently on Centrelink benefits.[68] He has expressed reluctance to seek employment until he ceases his daily methadone dosage and starts on a monthly injection of buprenorphine.[69]
[67] Book of Materials Vol 2, 640.
[68] Book of Materials Vol 3, 1010 [77].
[69] Book of Materials Vol 3, 1088.
Substance abuse
The respondent began smoking cannabis when he was 12 years old. By the time he was 14 years old he was injecting amphetamines, after being introduced to them by someone at a party. The respondent found the effects to be so good that he quickly formed a daily habit.[70]
[70] Book of Materials Vol 2, 640.
The respondent first used heroin at 16 years of age.[71]
[71] Book of Materials Vol 3, 1009 [67].
The respondent had several periods of drug abstinence when subjected to urinalysis and when he was employed and avoiding negative peers, but these were short lived, and he relapsed into serious drug use in 2001, which then involved heroin. He also became addicted to Valium after sustaining a severe hand injury. Other contributing factors were the end of a positive intimate relationship, the loss of valued employment and the erosion of savings. He used prescription medication and illicit drugs to cope with his negative feelings during this time. It was in this period that the majority of his armed robbery offences were committed.[72]
[72] Book of Materials Vol 2, 640 - 641.
The respondent admitted using drugs on a regular basis throughout his subsequent 10 years in custody, although there were some periods of abstinence.[73]
[73] Book of Materials Vol 2, 641; Book of Materials Vol 3, 1009 [69].
After his release in 2012, the respondent relapsed into illicit substance abuse, injecting heroin and amphetamines[74] and smoking cannabis.[75]
[74] Book of Materials Vol 3 1010 [70].
[75] Book of Materials Vol 2, 641.
While in custody serving the 2013 sentence, the respondent commenced the Methadone program and remained on it prior to his 2017 offence. He claims to have not used any illicit drug other than cannabis since commencing taking methadone.[76]
[76] Book of Materials Vol 3, 1010 [71].
In late 2021, the respondent was found to have committed a prison offence by receiving contraband during a social visit. While the respondent was seen to have orally taken the contraband item, subsequent inspections and urinalysis were unable to ascertain its exact nature.[77]
[77] Book of Materials Vol 3, 1024 [147] - [149].
The respondent produced negative results on the four occasions he was subjected to urinalysis between 2018 and 2022.[78]
[78] Book of Materials Vol 3, 1061 [84].
Alcohol has never been an issue for the respondent as an adult. At one point the respondent claimed to have never been intoxicated.[79] However, he later told a psychologist he used to binge-drink alcohol at parties when he was about 14.[80]
[79] Book of Materials Vol 3, 1009 [64].
[80] Book of Materials Vol 3, 1048 [36].
Medical and Psychiatric History
The respondent has no significant medical conditions, but reports numerous ailments, including back, knee and ankle pain, as well as daily headaches. He is prescribed Lyrica for nerve pain due to an old hand injury sustained in 2001. He describes periodically experiencing bleeding welts on his tongue with simultaneous pain in his throat and stomach. He claims this resolves when he is using drugs and that in the past this has led to relapse. He has recently observed the welts on his tongue to have re-emerged as his methadone dose has reduced.[81]
[81] Book of Materials Vol 3, 1051 [46] - [48].
He does not have a history of significant mental illness.
Previous Reports
Julie Hasson - 20 February 2013
A psychological report dated 20 February 2013 was prepared by Forensic Psychologist Julie Hasson[82] for the purposes of the respondent's sentencing on 2 May 2013.
[82] Book of Materials Vol 2, 638 - 645.
Ms Hasson found no evidence of cognitive impairment or mental health concerns in the respondent. She reported that, on release in 2012, the respondent had felt 'immature and foolish' compared with his younger siblings, and realised that he had wasted much of his life. This prompted a wave of negative thoughts and feelings that he was unable to cope with. His mother was depressed at the death of her mother and the environment at her house was 'sad and depressing'. The respondent sought the company of his ex-girlfriend and resumed illicit drug use. The armed robbery on the pharmacy was committed to pay for drugs.[83]
[83] Book of Materials Vol 2, 641.
The respondent was administered the Millon Clinical Mutiaxial Inventory, 3rd edition (MCMI-III), which is a 175-item standardised measure which assesses personality traits and emotional adjustment, as well as the presence of clinically concerning features.[84]
[84] Book of Materials Vol 2, 642.
Ms Hasson found that the respondent responded to the assessment in a manner which 'over-emphasised personal and emotional difficulties which often reflects a "cry for help".' His response style was 'negatively biased to such a degree that his profile was only just valid' and caution in interpreting results was therefore required.[85]
[85] Book of Materials Vol 2, 642.
Most scales were elevated on the respondent's profile suggesting significant personality pathology. Individuals with similar profiles would likely experience severe social, emotional, interpersonal and intrapersonal difficulties across all aspects of their lives. His profile also suggested that he was highly anxious and problematic drug use was noted.[86]
[86] Book of Materials Vol 2, 642 - 643.
Ms Hasson recommended ongoing individual counselling. She formed the view that it was likely that he was institutionalised and socially, emotionally and morally immature, but appeared to want to make positive changes in his life.
Ms Hasson used the Violence Risk Appraisal Guide (VRAG) to assess the respondent's risk of violent recidivism. This is an actuarial tool that gives the probability that an offender will commit a new violent offence within a specified period of community access and allows a comparison of risk with others.[87] The VRAG used 12 personal characteristics or variables which have been selected based on their unique contribution to the prediction of violent recidivism. The respondent's category of risk using the VRAG suggested he was at moderate to high risk of re-offending if he did not address the criminogenic factors associated with his offending.[88]
[87] Book of Materials Vol 2, 643 - 644.
[88] Book of Materials Vol 2, 644.
The primary criminogenic factors seemed to Ms Hasson to be negative peer associations, poor judgement and decision making, impulsivity, lack of structure, boredom and illicit drug use.[89]
[89] Book of Materials Vol 2, 644.
Ms Hasson formed the view that the respondent had retained much of what he had learned in the various programs in which he had participated, but was unable to apply the principles in the community on release. She recommended intensive and long term drug counselling and supervision and monitoring in the community.[90]
Claire Lynn - 19 September 2018
[90] Book of Materials Vol 2, 644.
A psychological report dated 19 September 2018 was prepared by Forensic Psychologist Claire Lynn for the purposes of the respondent's 2018 sentencing.[91]
[91] Book of Materials Vol 1, 251 - 256.
Ms Lynn also administered the MCMI-III to the respondent. Drug and alcohol dependency were indicated. The respondent reported symptoms consistent with anxiety and, to a lesser extent, depression, which his profile suggested were likely of a chronic nature and to have impacted his interpersonal functioning over time. She said:
Those scoring in the manner revealed tend to feel isolated although they want some involvement with others. Social fears predominate while like scoring individuals feel inferior and under threat of negative judgement and rejection. Their fears prompt them to interact with others in a distant and indifferent manner to protect themselves, thereby sabotaging the closeness and involvement that they desire. This ensures disappointment, frustration and a tendency to feel rejected and victimized by others. As such their interpersonal behaviour tends to maintain fear, anxiety and low moods.[92]
[92] Book of Materials Vol 1, 254 [8].
Ms Lynn assessed the respondent's risk of future violence using the VRS, a violence risk assessment tool designed to integrate risk, need, responsivity and treatment change factors relevant to violent offenders. It contains both static and dynamic factors and is used to assess an offender's level of violence risk, identify treatment targets linked to violence and to evaluate readiness for change.[93] It defines violence as 'any act against a person(s) which resulted in either physical harm or significant psychological harm.'[94]
[93] Book of Materials Vol 1, 256 (Appendix B).
[94] Violence Risk Scale, Wong, S & Gordon, A, 2000 as cited in Book of Materials, Vol 1, 256.
Ms Lynn found that the main criminogenic factors were antisocial cognitions, poor emotional and social functioning, substance abuse, readiness to use impulsive and antisocial options, negative peers and lack of positive and pro-social supports. In her view, the respondent had demonstrated poor responsivity to treatment targeting general violence, substance abuse, emotional management and problem solving. He required ongoing support in future attempts to transition him into the community.[95]
[95] Book of Materials Vol 1, 255 [13].
Programs
In 2004, the respondent completed the Breaking Out Program which focusses on emotional management, the link between thoughts, feelings and behaviour and their relationship with substance abuse, as well as the nature of dependency and tolerance.[96]
[96] Book of Materials Vol 2, 643.
On 26 October 2005, the respondent completed the Violent Offender Treatment Program, which was of approximately six months in duration.[97] In theory, the program aims to reduce violent offending by developing pro-social behaviours, attitudes and beliefs.[98]
[97] Book of Materials Vol 2, 920.
[98] Book of Materials Vol 2, 643.
The respondent was reported to be a keen group member who demonstrated sincerity in his endeavours to change his offending behaviour.[99] He was reported to have made a number of treatment gains, including developing resilience and capacity to cope with being challenged. However, he still displayed a tendency to portray himself as a victim of circumstances and was inclined to become fatalistic and perceive situations as hopeless and uncontrollable, and it was at those times he was likely to relapse into drug use and criminal behaviour.[100] It was noted that he would need to make a plausible effort in order to retain and build on those gains.[101]
[99] Book of Materials Vol 2, 921.
[100] Book of Materials Vol 2, 926.
[101] Book of Materials Vol 2, 921, 927.
The respondent completed the Think First Program in September 2007.[102] This program is designed to assist offenders to develop thinking skills, enhance judgment, develop consequential thinking and problem solving abilities.[103] The respondent was shown to have made gains in the areas of Ability to Solve Problems, Self Management, Motivation to Change and Motivation to Participate in the Program, as well as managing provocation.[104]
[102] Book of Materials Vol 2, 928.
[103] Book of Materials Vol 2, 643.
[104] Book of Materials Vol 2, 930.
In July 2010, the respondent completed the Moving on from Dependencies Program, which aimed to assist participants to understand the stages of change in relation to drug use, develop a relapse prevention plan and acquire a range of skills to maintain a drug free lifestyle.[105]
[105] Book of Materials Vol 2, 931.
The respondent's participation in the program was noted to be 'excellent'. He was consistently motivated and a regular contributor to group discussion, and was noted to proffer 'insightful, intelligent and mature comments'.[106] He evidenced an excellent ability to resist pressure to engage in drug use during role play and displayed a noteworthy assertiveness in the scenario.[107] He also appeared to gain substantially from the preparation and presentation of his plan for release.[108] However, his ability to handle stressful situations and uncomfortable emotions while readjusting to society coupled with initiating significant lifestyle changes was foreshadowed to require additional extended support, particularly in complying with his parole conditions, seeking employment, accommodation, remaining focussed on his goals and low emotional states.[109] There was no evidence that the respondent's treatment gains were consolidated with follow-up or support.[110]
[106] Book of Materials Vol 2, 931.
[107] Book of Materials Vol 2, 932.
[108] Book of Materials Vol 2, 932.
[109] Book of Materials Vol 2, 932.
[110] Book of Materials Vol 2, 643.
The respondent commenced the Violent Offender Treatment Program again in 2013, completing it in March 2014. Again, the respondent was found to be an enthusiastic, involved member of the group.[111] He showed several strengths and made gains throughout the program, including in his ability to identify and acknowledge emotions and physical cues, an ability to apply program concepts, and the generation of multiple alternative actions and behaviours in the Effective Decision Making process.[112] His concerns were generally around his drug use and the potential for this to hinder his ability to apply strategies in the future.
[111] Book of Materials Vol 2, 934.
[112] Book of Materials Vol 2, 935.
The respondent's offence cycle included situational factors in the build up, including being under the influence of multiple drugs, grieving for the loss of a family member, isolation from family (as his pre-release expectations did not match reality post release) and the impact of past beliefs on a desire to maintain control and comfort.[113] It was recommended he have ongoing individual counselling.[114]
[113] Book of Materials Vol 2, 938.
[114] Book of Materials Vol 2, 935.
The respondent also completed the Pathways Program again on 9 November 2015.[115] In the course of the program the respondent appeared to have started to develop a pro-social identity. He increased recognition of his high risk exposures and developed realistic goals for his release, including the continued use of methadone. He had arranged employment and displayed a willingness to confirm to social norms. It was suggested the respondent's increased awareness and tools acquired during the program may have a protective influence on him.[116] As the skills he developed remained untested in the community, ongoing assistance, monitoring and support post-release was recommended.[117]
[115] Book of Materials Vol 2, 939.
[116] Book of Materials Vol 2, 940.
[117] Book of Materials Vol 2, 942 - 943.
The Treatment Assessment Report, dated 20 August 2019, records that the respondent's VRS-SV/VRS score indicated a high risk of violently reoffending. The respondent presented with treatment needs for all dynamic factors and was pre-contemplative across all dynamic factors. He demonstrated significant deficits in the areas of violent lifestyle, interpersonal aggression, emotional management and violence during incarceration.[118] It was recommended the respondent participate in a further Pathways Program and the Stopping Family Violence Program.[119]
[118] Book of Materials Vol 2, 947.
[119] Book of Materials Vol 2 947 - 948.
The Parole Review Report, dated 29 November 2019, recommended that parole be adjourned to enable the respondent to complete the Pathways program.[120] It records that the respondent presented a very high risk for general reoffending and a high risk of reoffending violently.[121]
[120] Book of Materials Vol 2, 955.
[121] Book of Materials Vol 2, 956.
The respondent completed the Pathways Program on 29 April 2020. The respondent's resort to aggression was seen as being due to his limited ability to regulate emotions such as anger and frustration, exacerbated in the absence of more adaptive communication styles. The reporter states:
[He] retains risks in his antisocial beliefs and cognitive distortions supportive of gender dynamics in a relationship and his rigidity about being right and enforcing his prerogative which often leads to his engagement in instrumental aggressive behaviours. Furthermore, his distorted thinking favourable of justification and blaming practices perpetuates his risk of aggressive and violent behaviours in addition to limited responsibility taking. Mr Hapke's risk of relapse is perpetuated through his limited emotional recognition and regulation, which are reinforced by his beliefs of entitlement regarding emotional expression.[122]
[122] Book of Materials Vol 2, 959.
The respondent also participated in the Stopping Family Violence Program, completing it on 24 December 2020. Despite attention to addressing the respondent's beliefs and rationalisations linked to offending, his self-victimisation remained prominent.[123] The facilitators expressed some doubt as to whether the respondent will be able to apply his emerging emotional management skills in the community without support.[124]
[123] Book of Materials Vol 2, 970.
[124] Book of Materials Vol 2, 971 - 972.
In the case of all of the respondent's identified treatment needs, support and ongoing assistance of his Community Corrections Officer (CCO) was identified as important to achieving greater gains in all areas.[125]
[125] Book of Materials Vol 2, 973.
Reports prepared for the purposes of the restriction order hearing
Report of Dr Natalie Pyszora, Consultant Forensic Psychiatrist, dated 9 August 2022
Dr Natalie Pyszora is a forensic psychiatrist who prepared a report pursuant to s 74 of the HRSO Act.
Dr Pyszora summarised the lengthy history of the respondent, including much of the information referred to above.
Dr Pyszora interviewed the respondent for a total of 6.5 hours on 29 July 2022. The information he provided was consistent with that provided to previous experts.
The respondent denied being institutionalised and said that during periods in prison he has mentally 'always remained on the outside' so he does not feel he has had to readjust on release. He acknowledged he now has to 'step up and give myself a chance'.[126]
[126] Book of Materials Vol 3, 1026 [158].
However, the respondent also said he feels judged and held back by the criminal justice system and that the interim supervision order is 'unjust'. He considers that he does not need the extra incentive to improve, as he is focussed on his son and his health. He does not consider he has any outstanding treatment needs.[127]
[127] Book of Materials Vol 3, 1026 [159].
In 2005, the respondent reported issues with gambling, both in the community and subsequently in prison.[128] At present, his gambling is not seen to be problematic, although should be monitored.[129]
[128] Book of Materials Vol 3, 1014 [100].
[129] Book of Materials Vol 3, 1028 [171].
The respondent is currently undertaking the Connect and Respect course with Communicare. He is also engaged in individual psychological therapy through the Department of Justice.[130]
[130] Book of Materials Vol 3, 1026 [162].
Dr Pyszora considered that the respondent fulfils the criteria for a diagnosis of antisocial personality disorder. She also diagnosed him with substance use disorder, which has been severe in the past, although he is now in sustained remission on methadone maintenance therapy.[131]
[131] Book of Materials Vol 3, 1027 - 1028 [167] - [171].
In Dr Psyszora's opinion, the respondent's traumatic experiences arising from his mother's drinking and the assault by her partner caused him to lose trust in his mother. It is likely that conflict resolution involving violence was modelled and normalised for the respondent by that stage and these experiences disrupted the respondent's development of prosocial attitudes and problem-solving skills.[132]
[132] Book of Materials Vol 3, 1028 [173].
Dr Pyszora stated that it is known that adolescence is a developmental period marked by increased impulsive behaviour due to imbalanced neurodevelopmental maturations, and these factors are thought to make adolescents more susceptible to rewards (eg drug use and peer reinforcement) and less capable to restrain reward seeking behaviours due to immature inhibitory control. It is also thought that impulsive behaviour is increased in adolescents when social and motivational goals are prominent, as they were in the respondent's case.[133]
[133] Book of Materials Vol 3, 1028 [174].
However, sensation seeking and other aspects of impulsivity are known to peak in adolescence or young adulthood. It is notable that the respondent committed his last armed robberies at the age of 33 years, well after the end of the adolescent maturation period.[134]
[134] Book of Materials Vol 3, 1028 - 1029 [175].
Dr Pyszora stated that it is known that symptoms of antisocial personality disorder will often improve as an individual gets older, particularly by the fourth decade. This tends to be particularly evident with respect to engaging in criminal behaviour, but there may also be a decrease in the full spectrum of antisocial behaviours and substance use. However, at the age of 38 the respondent still displayed impulsive and violent behaviour when emotionally dysregulated, demonstrated by the offence against his partner.[135]
[135] Book of Materials Vol 3, 1029 [177].
Dr Pyszora observed that, while the respondent has completed numerous treatment programs for his criminogenic risk factors during his previous sentences, he has had little time in the community to apply the skills learned, and has received no individual treatment which might have assisted him. This makes his recent engagement with the Department of Justice psychologist and the community program positive developments.[136]
[136] Book of Materials Vol 3, 1029 [178].
It is also positive that the respondent has been able to remain offence free while on bail in 2018 and for the further period since his release in February 2022. Dr Pyszora considered the high intensity support and supervision the respondent has received while on the Interim Supervision Order and the personal and practical support in his personal relationships have been important in assisting the respondent to begin meaningful rehabilitation in the community.[137]
[137] Book of Materials Vol 3, 1029 [179].
The PCL-R[138] standardised rating scale allows the reliable identification of traits of psychopathy. While it is not designed to be a risk assessment instrument, it has been reliably associated with general, violent and sexual recidivism and is considered to be an important consideration in assessing risk.[139] The respondent scored well below the threshold for psychopathy, although his scoring was consistent with his diagnosis of antisocial personality disorder.[140]
[138] Hare Psychopathy Checklist-Revised; Hare, 2003 as cited in Book of Materials Vol 3, 1030.
[139] Book of Materials Vol 3, 1030 [180].
[140] Book of Materials Vol 3, 1030 [182].
The VRAG-R (a revision of the original Violence Risk Appraisal Guide) estimates the likelihood that a released offender will commit at least one violent or hands-on sexual offence in a defined period of opportunity. The respondent's score placed him at the 91st percentile and in the highest of the nine available categories for re-offending risk. For persons within this risk category, 76% of them will commit a further violent offence and 87% will violently reoffend within 12 years. The expected rate of recidivism is reduced by 10% for each violent offence-free year at risk.[141]
[141] Book of Materials Vol 3, 1031 [186].
Structured Professional Judgment (SPJ) has become the principal method for carrying out risk assessments. In this method, assessors use all available information to assess aggravating and mitigating factors to categorise individuals as low, moderate or high risk. It focuses on the prevention and management of future violence, rather than an exact probability of likely future violence.[142]
[142] Book of Materials Vol 3, 1032 [189].
The HCR-20v3, a set of clinical guidelines, provides an SPJ approach to violence risk assessment, measuring both static and dynamic factors that are associated with violent recidivism and includes a Historical scale, a Clinical scale and a Risk Management scale. It is the most commonly used and valued set of clinical guidelines for violence risk assessment and management in community, correctional and forensic mental health settings throughout the world.[143]
[143] Book of Materials Vol 3, 1032 [190] - [191].
The respondent had a number of historical risk factors, including a history of problems with previous violence, other antisocial behaviour, problems with relationships, employment, substance use, personality, traumatic experiences, violent attitudes and treatment or supervision response.[144]
[144] Book of Materials Vol 3, 1032-1034 [192] - [201].
Regarding clinical risk factors, the respondent presented with recent problems with insight. The risk factors of recent problems with instability and treatment or supervision response were both partially present for the respondent, largely on the basis of conflict during sessions with his Senior Community Corrections Officer (SCCO).[145]
[145] Book of Materials Vol 3, 1034-1035 [205] - [206].
The risk management factor of future problems with personal support was partially present for the respondent, as was the factor of future problems with treatment or supervision response. While it is positive that he has managed periods in the community since 2018 without reoffending, it is not known how he will cope if he ceases methadone treatment (as he intends) and his sensitivity to any perceived criticism within therapy or supervision may create challenges. Future problems with stress or coping are also present as a risk management factor.[146]
[146] Book of Materials Vol 3, 1035-1036 [210] - [215].
Another SPJ risk assessment tool is the Spousal Assault Risk Assessment Guide - Version 3 (SARA-V3; Kropp & Hart, 2015). It is comprised of three domains including risk factors as they relate to the Nature of intimate partner violence (N domain factors), Perpetrator risk factors (P domain factors) and Victim Vulnerability Factors (V domain factors).[147]
[147] Book of Materials Vol 3, 1036 [217] - [218].
In relation to N domain factors, the respondent has only one prior conviction for intimate partner violence, being the index offence. The offence was undoubtedly serious. The respondent's account differs markedly from that of the victim, and the findings of the sentencing judge. Previous episodes of intimate partner violence were difficult to assess from the available information. The respondent continues to minimise and justify his violence.[148]
[148] Book of Materials Vol 3, 1037 [219] - [222].
The respondent has several P domain factors, including intimate relationship problems, personality disorder, substance use problems, non-intimate relationship problems, general anti-social conduct (including non-intimate partner violence) and history of trauma.[149]
[149] Book of Materials Vol 3, 1037 [223].
The victim of the index offences appears to have been vulnerable due to her drug use and personal and emotional vulnerabilities, and had previously been the victim of intimate partner violence. While V domain factors will need to be monitored for the respondent's current relationship (and any future one) the present partner does not seem to have any specific vulnerabilities and there are no current indications of imminent risk to either his present partner or the victim of the index offence.[150]
[150] Book of Materials Vol 3, 1038 [229] - [230].
Dr Pyszora considered that if the respondent is under severe financial stress, including as a result of relapse into severe drug dependency, and/or he begins associating with antisocial peers involved in planning robberies, the respondent may perpetrate further armed robberies. She had regard to his tendency to be a 'follower' in previous offending, and his vulnerability to being influenced by others. Further, his identity as provider for intimate partners could potentially create a vulnerability for further acquisitive crime. However, there is no imminent risk of offending such as armed robberies if his risk factors are managed.[151]
[151] Book of Materials Vol 3, 1039 [234] - [235].
Any future intimate partner violence may involve serious physical violence, including the use of readily available weapons and strangulation or choking. The use of weapons and strangulation/choking increase the risk of serious (even fatal) outcomes. The violence would occur in the context of discharge of anger and emotional tension caused by interpersonal conflict with the victim.[152] The respondent also has a tendency to idealise his intimate relationships and sees his role as one of protector and provider. When this view is challenged, he may resort to violence.[153]
[152] Book of Materials Vol 3, 1039 [236].
[153] Book of Materials Vol 3, 1039 [238].
The respondent is likely to present a chronic risk of future intimate partner violence until his relationship management skills, coping skills and emotional regulation improve.[154] However, Dr Pyszora does not consider the respondent to pose a risk of further violence towards the victim of the index offence unless they resume a relationship.[155]
[154] Book of Materials Vol 3, 1039 [239].
[155] Book of Materials Vol 3, 1040 [240].
The risk of intimate partner violence is not imminent while the respondent is subject to supervision and treatment. However, warning signs of potential escalation of violence will include reports of the respondent feeling trapped in the relationship, of being taken advantage of, being resentful, feeling the need to control his partner without success and verbal argument.[156]
[156] Book of Materials Vol 3, 1040 [241].
Dr Pyszora is of the view that the respondent has outstanding criminogenic treatment needs including residual antisocial cognitions, potential to re-engage with antisocial companions, family and relationship stressors, substance abuse, lack of employment, relative lack of education and lack of pro-social leisure or recreation activities outside of his current intimate relationship.[157] While the respondent has some protective dynamic risk factors in place at this point, he may pose a high risk of committing a serious offence if they were to change and he were not subject to a restriction order.[158]
[157] Book of Materials Vol 3, 1040 [242].
[158] Book of Materials Vol 3, 1040 [243].
Dr Pyszora was of the view that the respondent requires monitoring strategies to ensure early detection of warning signs and escalating risk. These include regular review by the SCCO, regular and random drug testing, SCCO contact with key family members and supports and home visits by the police.[159]
[159] Book of Materials Vol 3, 1040 [245].
The respondent also requires ongoing treatment to address his outstanding criminogenic needs. This will involve individual psychological therapy and structure, supervision, and support through contact with his SCCO.[160] Employment and engagement in prosocial supports will also reduce risk.[161]
[160] Book of Materials Vol 3, 1040 [246].
[161] Book of Materials Vol 3, 1040 [248].
There should also be supervision strategies including electronic monitoring, review of electronic devices and prohibition of association with people using substances.[162] Victim safety planning in relation to armed robbery offending will depend on general management of the risk of serious reoffending.[163]
[162] Book of Materials Vol 3, 1041 [250].
[163] Book of Materials Vol 3, 1041 [251].
In oral evidence, Dr Pyszora said that she had been consulted by the respondent’s SCCO in relation to the proposed conditions of any supervision order. Dr Pyszora agreed that a condition limiting the respondent’s use to alcohol was appropriate, as he had previously demonstrated a willingness to substitute one substance for another (such as Subutex for heroin, when in prison) and she understood that there were concerns on the part of Dr Yewers about alcohol misuse.[164] She supported an expansion of the category of licensed premises the respondent could attend beyond cafes and restaurants, but not to nightclubs.[165]
[164] Transcript of Restriction Hearing, 24 - 25.
[165] Transcript of Restriction Hearing, 31.
Dr Pyszora also supported a condition which enabled potential partners to be interviewed by a CCO and informed, where appropriate, of the respondent’s criminal history. Dr Pyszora said that the importance of that condition was around the ability to monitor the respondent's intimate relationships. While she also supported monitoring the respondent's associations, that was on the basis that much of the respondent's offending occurred with others. In those circumstances it is not necessary to empower the authorities to inform those other than intimate partners of confidential information about the respondent.[166]
[166] Transcript of Restriction Hearing, 26, 30.
When asked, Dr Pyszora acknowledged that this might be a potential barrier to the respondent forming prosocial relationships, but noted that this was not a matter about which the respondent had expressed concerns during her interview with him.[167]
Report of Dr Tara Yewers, Counselling Psychologist, dated 12 August 2022
[167] Transcript of Restriction Hearing, 23 - 24.
Dr Tara Yewers is a clinical and forensic psychologist who examined the respondent and prepared a report under s 74 of the HRSO Act.
According to Dr Yewers, the respondent expressed reticence about consenting to his assessment. At times he communicated umbrage and acrimony about his Interim Supervision Oder and the prospect of being made subject to a restriction order.[168]
[168] Book of Materials Vol 3, 1045 [20].
Dr Yewers reported that the respondent indicated he was avoiding antisocial peers but had chosen not to develop prosocial friendships because his Interim Supervision Order would make any such friends 'vulnerable to having their door kicked in if I'm sitting on their lounge' in relation to visits by police. He says he gets his support from family.[169]
[169] Book of Materials Vol 3, 1046 [24].
The respondent has had some contact with people who have a history of, or connection to, drug use but the respondent has resisted becoming involved. His partner does not use alcohol and drugs and he described the relationship as based on mutual respect, trust, communication and safety.[170] However, the respondent's SCCO reported some potential concerns.[171]
[170] Book of Materials Vol 3, 1047 - 1048 [30].
[171] Book of Materials Vol 3, 1048 [31].
The respondent told Dr Yewers that he wanted to reduce his methadone dosage but he cannot do so in the way he wanted due to the interim supervision order.[172]
[172] Book of Materials Vol 3, 1049 [39].
The respondent described his current mood as 'stable' but said that it markedly deteriorated when he visited the East Perth Adult Community Corrections Centre.[173] While he has previously experienced anxiety related to overthinking and rumination, the respondent claimed that he no longer dwells on issues and his pets keep him grounded.[174]
[173] Book of Materials Vol 3, 1051 [45].
[174] Book of Materials Vol 3, 1051 [45].
When asked about the treatment programs he has undertaken, the respondent said that they provided him with the tools to manage his emotions and thinking, and to provide him with the skills to allow him to respond calmly instead of reacting. The programs also gave him a better understanding of the impact on him of his drug use.[175]
[175] Book of Materials Vol 3, 1061 [81] - [82].
The respondent occupies himself around the house. He has not yet obtained employment and did not consider himself to be ready to do so yet. He expressed reluctance to obtain employment while he was on his current methadone dosage.[176] His SCCO told Dr Yewers of the respondent's attendances at the TAB, which he did not himself reveal to Dr Yewers.[177]
[176] Book of Materials Vol 3, 1049 [39].
[177] Book of Materials Vol 3, 1063 - 1064 [94].
The respondent told Dr Yewers that there is no risk of him committing any further robbery offences and that he can 'walk away' from other violence as long as he remains abstinent from drugs. He is motivated to stay out of custody and would comply with an order under the HRSO Act or any other order he is made subject to, although Dr Yewers says he then said, 'if this order isn't dismissed then I might break…remember I'm institutionalised, it'll break me.'[178]
[178] Book of Materials Vol 3, [96].
Dr Yewers observed that the respondent has completed multiple programs aimed at addressing his offending, violence and drug use. His participation has been variable with gains broadly reported to be in the areas of awareness and/or knowledge. However, it was noted by program facilitators that he may experience challenges in applying his treatment gains in the community setting, which was borne out in the pattern which has emerged following the respondent's release from custody on previous occasions.[179]
[179] Book of Materials Vol 3, 1065 [101].
Mr Summerton reported to Dr Yewers that the unresolved status of the HRSO application is likely to be slowing the development of a therapeutic relationship and affecting the respondent's engagement, as does the respondent's propensity for rumination, egocentrism and sensitivity to others' appraisals of him. The respondent in turn expressed the view that the frequency of his psychological sessions (weekly) was too great,[180] although Ms Sunderland reported that they are presently being held fortnightly while the respondent is engaged with the Connect and Respect program.[181]
[180] Book of Materials Vol 3, 1063 [91] - [92].
[181] Book of Materials Vol 3, 1086.
Dr Yewers notes that the respondent plans to cease his Methadone treatment, but has no plans to manage risk or relapse. His engagement with his SCCO is being impacted by his resistance to the high degree of scrutiny of the interim supervision order. Further, the benefits he is likely to achieve from his community based treatment are likely to be largely dependent on the respondent's willingness to engage at a meaningful level.[182]
[182] Book of Materials Vol 3, 1065 [104].
The respondent's risk of violent recidivism was assessed using the VRS.
The static factors associated with the respondent's risk of violence are: young age at first violent conviction, high number of juvenile convictions, prior release failures, evidence of violence throughout his lifespan and an unstable upbringing.[183]
[183] Book of Materials Vol 3, 1067 [109].
The VRS contains 20 dynamic variables. The highest rating is 3, which indicates that the risk factor is present, significant and related to violence recidivism risk. A rating of '2' indicates the presence of the risk factor to a less substantial degree. Items rated '2' and '3' are considered criminogenic and are intended to be targeted in treatment. Items rated as '0' are unrelated to violence and do not require treatment. Items rated as '1' are less positive that a '0' rating and represent lower risk areas that only require monitoring or low intensity treatment.[184]
[184] Book of Materials Vol 3, 1066 [107].
The respondent received the highest rating for criminal attitudes, work ethic, criminal peers, weapon use, insight into violence, substance abuse, stability of relationships with significant others, impulsivity, and cognitive distortions. The factors of violent lifestyle, interpersonal aggression, emotional control, violence cycle and compliance with community supervision were all rated '2'.[185]
[185] Book of Materials Vol 3, 1067 - 1072 [110] - [130].
The risk factors of criminal personality, violence during institutionalisation, mental disorder, community support, released back into high risk situations, and security level of anticipated release institution were all rated '0' or '1'.[186]
[186] Book of Materials Vol 3, 1067 - 1072 [110] - [130].
The respondent's total VRS score was 52, placing him in the high risk level for any violent recidivism. Of those who scored in this range, 39.5% of offenders reoffended within 4.4 years.[187]
[187] Book of Materials Vol 3, 1072 [131].
Dr Yewers also used the PCL-R and determined that the respondent's score fell in the 'medium' range for psychopathy. His scores indicate the presence of a number of the features of psychopathy and a moderate likeness to the construct of psychopathy. Dr Yewers observed:
…the lifestyle and antisocial aspects of psychopathy dominate his presentation and reflect the presence of impulsivity, a need for stimulation, inadequate behavioural controls, irresponsibility, criminality from an early age, and serious violations of conditional release…notable features…include grandiosity, lack of remorse, failure to accept responsibility for his actions and, to a lesser degree, callousness.[188]
[188] Book of Materials Vol 3, 1073 - 1074 [136].
Dr Yewers also assessed the respondent's risk using the SARA-V3, the results of which were consistent with those reported by Dr Pyszora.[189]
[189] Book of Materials Vol 3, 1074 - 1075 [138] - [140].
A risk scenario for the respondent is that he will engage in violence for instrumental reasons to achieve a particular outcome, likely monetary gain. In this case, he is likely to use a weapon to ensure victim compliance and that he achieves his desired outcome. He is likely to offend in company. His decision to offend may be impulsive. Drug intoxication and lethality of weapons will increase the risk of harm to victims.[190]
[190] Book of Materials Vol 3, 1075 [145].
Dr Yewers stated that the likelihood of this scenario occurring will be increased if the respondent is associating with antisocial peers and using substances. The probability of it occurring is likely to be decreased in the context of a prosocial way of life including non-criminal peers, employment and abstinence from illicit drug use.[191]
[191] Book of Materials Vol 3, 1075 [146].
Dr Yewers also identified a further risk scenario for the respondent, involving hostile/reactive violence in the context of an intimate relationship. The respondent might engage in violence due to difficulties arising which the respondent does not have the skills to navigate, and the risk could be heightened by stressors external to the relationship, such as financial pressure. The violence is likely to occur in a surge of anger, and the harm may range from mild to severe, and will be exacerbated by victim vulnerability, drug intoxication and the use of a weapon.[192]
[192] Book of Materials Vol 3, 1076 [147].
In Dr Yewers' opinion, this presently appears to be the most likely scenario for violence for the respondent, due to his enduring distorted thinking about the index offence, continued instances of emotional volatility/dysregulation, and the fact that he has not developed the skills needed to negotiate and resolve conflict.[193]
[193] Book of Materials Vol 3, 1076 [148].
Dr Yewers formed the view the respondent currently presents with a high risk of committing a 'serious offence' in the future if not subject to a restriction order, saying:
This is based on the seriousness of the violent crimes that Mr Hapke has committed; his pattern of being unable to establish a non-criminal, non-violent way of life in the community; that he continues to present with significant risk factors; he has yet to enact prosocial protective factors that will counterbalance persisting risk; and, at this stage, due to underdeveloped risk management plans, he requires support and supervision to manage the risk.[194]
[194] Book of Materials Vol 3, 1076 [151].
In her oral evidence, Dr Yewers was firmly of the view that the respondent should not presently be permitted to consume alcohol, and that he should engage in further treatment before being allowed to do so. He should not be permitted to become intoxicated, in her view. This is because of the disinhibiting effect of alcohol combined with the particular psychological makeup of the respondent, who has continuing treatment needs in relation to his impulsivity, emotional dysregulation, and problem solving and coping skills.[195]
[195] Transcript of Restriction Hearing, 35 - 37.
In Dr Yewers' opinion, a Supervision Order of no more than 5 years should be sufficient. She recommended:
(1)intervention targeting the criminogenic factors which have been identified as being relevant to the respondent's risk with a focus on the practical application of skills;
(2)monitoring and oversight, particularly around his intimate relationship, drug use, and peer associations, with sensitivity to the respondent's ability to self-manage;
(3)the provision of support to assist him to reintegrate into the community and establish a prosocial lifestyle;
(4)support to engage in meaningful activity, ideally employment;
(5)encouragement to establish and develop prosocial supports.[196]
Report of Rhonda Sunderland, Senior Community Corrections Officer dated 29 August 2022
[196] Book of Materials Vol 3, 1076 [152].
The Senior Community Corrections Officer (SCCO), Ms Sunderland, described the respondent's compliance with his interim supervision order to date as 'sound'.[197] She reported that the respondent generally presents as polite but that he is difficult to engage in meaningful risk-relevant discussion, minimises his past criminal and violent behaviour and is reticent to be accountable. On 15 June 2022, he responded to a query of the SCCO in an aggressive and intimidating manner which resulted in the termination of the appointment. The respondent allegedly made comments to Ms Sunderland that she was 'only partly human' and if he were to be 'pushed over the edge' it would be her fault. He apologised a few days later.[198] According to Dr Yewers, Ms Sunderland told her that the respondent explained his conduct as being due to external family issues.[199]
[197] Book of Materials Vol 3, 1084.
[198] Book of Materials Vol 3, 1084.
[199] Book of Materials Vol 3, 1062 [87].
Ms Sunderland noted that the respondent displayed a general lack of empathy for his victims, and particularly the victim of the index offence.[200]
[200] Book of Materials Vol 3, 1080.
Ms Sunderland reported that the respondent has previously been subject to three separate periods of community supervision (monitored bail in 1997 and 1998 and parole in 2000-2001), during which he exhibited poor compliance with conditions. While he completed a period of parole in 2001, he returned two positive urinalysis results for substances including methylamphetamine, opiates and morphine and a dilute sample. His parole was suspended due to alleged reoffending, but the charges were later dismissed.[201]
[201] Book of Materials Vol 3, 1083.
A post-sentence supervision order (PSSO) was imposed on his release from custody.[202] However, the imposition of the interim supervision order resulted in the automatic cancellation of the PSSO.
[202] Book of Materials Vol 3, 1084.
On 1 July 2022, the respondent contravened a term of his interim supervision order by driving through an exclusion zone. He was convicted of an offence under s 80(1) of the HRSO Act and fined $600.[203] He also had a number of other non-compliance issues, but the respondent received written warnings, they did not relate to the standard conditions and did not increase his risk.[204] However, Ms Sunderland said in evidence that as a result of non-compliance in relation to his devices, it was considered appropriate to add further conditions to any supervision order.[205]
[203] Book of Materials Vol 3, 997.
[204] Book of Materials Vol 3, 1087.
[205] Transcript of Proceedings dated 23 September 2022, 53 (Transcript of Restriction Hearing).
Ms Sunderland reported that the respondent generally only engages in insubstantial discussions and is regularly avoidant and dismissive when questioned about relevant topics (such as his relationship with his current partner, peer association and his gambling habits). Attempts to undertake safety planning have been relatively unsuccessful given his belief that he will not reoffend in a like manner. He prefers to self-manage his emotions rather than seek guidance from a medical professional. However, he noted that, if a restriction order is imposed, that may result in depression for which he would seek treatment.[206]
[206] Book of Materials Vol 3, 1084 - 1085.
Ms Sunderland noted that some of the peers with whom the respondent is associating have prior convictions, including for drug offences and offences involving violence. While the respondent claims to have prosocial peers, he wishes to obtain employment before associating with them, so he feels more on a level with them.[207]
[207] Book of Materials Vol 3, 1085.
In oral evidence, Ms Sunderland said that one person had been contacted by COMU and disclosures were made to them about the respondent’s conditions.[208] I was later informed by the State as to the reasons for that, which enabled the authorities to be satisfied that the person was sufficiently protected in the company of the respondent.
[208] Transcript of Restriction Hearing, 50.
GPS data has shown that the respondent spends up to three hours at the TAB. In June 2022, he attended the TAB on 17 occasions for a total of 29 hours. In July 2022, he went 11 times and spent 17 hours at the TAB.[209]
[209] Book of Materials Vol 3, 1085.
Ms Sunderland noted that the proposed conditions included an expansion of the sorts of premises which the respondent was permitted to enter without CCO approval to include cafes and restaurants (under the interim order, the respondent has been barred from all licensed premises).[210] While she agreed that the respondent would likely be permitted to attend other licensed premises such as sporting venues, she acknowledged that the respondent would generally need to provide up to two weeks’ notice, which would enable the Case Management Team to assess the matter. She also agreed that permission could only be sought during regular business hours and spontaneous approval was unlikely to be able to be given.[211]
[210] Transcript of Restriction Hearing, 52.
[211] Transcript of Restriction Hearing, 54 - 55.
The respondent is engaged with North Metro Community Alcohol and Drug Service[212] for his methadone treatment, is undertaking fortnightly individual psychological sessions with Mr Summerton of the Forensic Psychological Intervention Team,[213] and commenced the Communicare Respect and Connect domestic violence program in July 2022, with satisfactory engagement to date.[214]
[212] Book of Materials Vol 3, 1086.
[213] Changed from weekly when the respondent commenced the Respect and Connect program.
[214] Book of Materials Vol 3, 1063 [90].
The respondent has been directed to attend urinalysis testing on 32 occasions. On 22 April 2022, his sample returned a low creatinine level. On 5 July 2022, he provided an extremely dilute sample, and a further sample later that day also had a low creatinine level. A further sample provided on 5 August 2022 was void due to the low creatinine level. On this occasion he received a written warning.[215]
[215] Book of Materials Vol 3, 1086.
The respondent resides with his partner and her mother.
Dr Sunderland recommended conditions be included regarding:
(1)Reporting of relationships;
(2) Monitoring of movements and associations;
(3) Review of electronic devices;
(4) Conditions regarding substance use and limiting alcohol use;
(5) Curfew;
(6)Prohibiting possession of weapons; and
(7)Interagency liaison and risk management.[216]
[216] Book of Materials Vol 3, 1091 - 1092.
The respondent described his relationship with the SCCO to Dr Yewers as 'testy' and explained that he is having difficulty with the intensity of the supervision, does not like speaking about his personal life and feels as if he is being treated as a child. He is discontent with restrictions resulting from the order such as the amount of time it takes to charge his GPS, and that he cannot swim, or have a social drink.[217]
[217] Book of Materials Vol 3, 1062 [88].
The proposed High Risk Serious Offender Treatment Options Report does not recommend any additional particular treatment other than that presently being received by the respondent. Any further recommendations may arise out of the Completion Report of the Connect and Respect program.[218]
[218] Book of Materials Vol 3, 1098 - 1101.
Is the respondent a high risk serious offender?
The respondent concedes that he is a high risk serious offender.[219] Notwithstanding his concession, it is necessary that I be satisfied to the required standard 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.
Section 7 of the HRSO Act
[219] Respondent's Written Submissions for Restriction Order Hearing on 23 September 2022 dated 20 September 2022 [54] (Respondent's Submissions).
As is required by s 7(a), (b) and (g), I have had regard to the reports prepared under s 74 for the hearing of the State's application, including the extent to which the respondent cooperated with the examinations of the experts, the materials produced by the State, and the respondent's antecedents and criminal history.
The respondent has been diagnosed with anti-social personality disorder and substance use disorder. While there are signs that, as the respondent grows older, his attitude towards committing criminal offences such as armed robberies are changing, in other respects his attitude suggests that he remains a high risk of violent re-offending. This is particularly evident in his continued victim stance and denial in relation to the index offence, and his lack of control over his aggression and impulsivity when tested. The conclusion that the respondent is a high risk of violent re-offending is supported by the consistent results of the various risk assessments which have been applied in the case of the respondent.
Given the respondent's risk scenario includes the use of a weapon, the risk of the respondent committing a violent offence which constitutes a 'serious offence' is increased.
While the respondent's substance use disorder is presently controlled by a methadone regime, the respondent's commitment to that regime is fragile, and he wishes to cease it. While it appears he intends to move to a monthly buprenorphine injection, his plan to avoid relapse is vague. Should he relapse into drug use, the risk that the respondent will commit a serious armed robbery is, in my view, very high.
It is a positive sign that the respondent has remained drug free since his release in February, but in light of the respondent's history, at this stage it is difficult, if not impossible, to have confidence that in the absence of the interim supervision order the respondent would have done so.
When considering the factors in s 7(c) and (d), I have formed the view that the offender does have a significant propensity[220] to commit serious offences, and that follows a pattern of relapse into drug use followed by a serious offence of armed robbery or, alternatively, the loss of control followed by a serious assault upon a vulnerable victim, likely using a weapon.
[220] As that term was understood by Murray AJA in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [178].
The respondent does not concede that he has a propensity to commit serious violent offences against an intimate partner.[221] In my view, the history of the respondent's relationship with the victim of the index offence as outlined in the sentencing proceedings and the findings of the experts suggest that the respondent does have such a tendency, although it has not been as strongly expressed as his tendency to commit serious armed robbery offences.
[221] Respondent's submissions [37].
In considering s 7(e) and (f), I note that, while the respondent has availed himself of many programs in custody, and his completion reports generally speak positively of the treatment gains achieved by him, he has not had any real opportunity to put any of the tools or skills developed in those programs into practice in the community in any meaningful way. It is also the case that the respondent has a number of outstanding issues which he needs to address if he is to remain offence free.
In almost every assessment of the respondent's achievements during the programs he has undertaken, it has been recommended that the respondent receive additional support and treatment in the community to reinforce and retain the gains made. It is apparent from the respondent's reoffending in 2013 and 2017 that such support is critical if the respondent is to put the skills he has learned into practice in the community and thereby reduce his risk of re-offending.
The combination of these factors leads me to the view that the respondent is a very significant risk not only of committing a violent offence, but a serious violent offence. While the exact nature of the offending the respondent is at risk of committing is variable, including armed robbery and intimate partner violence, common features of the likely offending include violent threats in a dynamic and stressful situation, which increases the risk of impulsive and aggressive response on the part of the respondent, and the use of a weapon, which increases the likely seriousness of the outcome. If the respondent is intoxicated by illicit substances, both the risk of occurrence and seriousness of outcome are considerably enhanced.
In relation to s 7(j), there is a clear need to protect members of the community from the risk I have found exists.
Is the risk that the respondent will commit a serious offence unacceptable?
In my view, at this stage of the offender's period post-release, he remains a high risk of committing a 'serious offence' within the meaning of the HRSO Act. The type of offence which he is likely to commit is at the upper end of the range of seriousness, being high level armed robberies, and serious injuries to vulnerable victims using weapons. The combination of risk and likely offence type leads me to be satisfied to a high degree of probability that the risk that the respondent will commit a serious offence is unacceptable.
Is it necessary to make a restriction order to ensure adequate community protection against the risk that the respondent will commit a serious offence?
I have also formed the view that it is necessary to make a restriction order to ensure adequate protection of the community against this unacceptable risk. The alternative is for the respondent to be released into the community without support and supervision. The inappropriateness of such an outcome in this case is manifest.
Accordingly, I am satisfied that the offender is a high risk serious offender.
Continuing detention order or supervision order?
The State has conceded that a supervision order would be appropriate to ensure the adequate protection of the community, provided the respondent can satisfy the court, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of the order.[222]
[222] Applicant's Written Submissions for Restriction Order Hearing on 23 September 2022 dated 20 September 2022, [3].
The respondent submits that he has demonstrated consistent compliance with the standard conditions of his order and, notwithstanding the non-compliance issues outlined above, he has established to the necessary standard that he will do so in the future.[223]
[223] See Respondent's Submissions [50] - [53].
I accept the respondent's submission and the State's concession. In my view, the respondent has demonstrated a commitment to remaining offence free in the community and it is now necessary and appropriate to give him the opportunity to make good on that commitment in a longer term manner.
In her oral evidence, Dr Yewers was firmly of the view that the respondent should not presently be permitted to consume alcohol, and that he should engage in further treatment before being allowed to do so. He should not be permitted to become intoxicated, in her view. This is because of the disinhibiting effect of alcohol combined with the particular psychological makeup of the respondent, who has continuing treatment needs in relation to his impulsivity, emotional dysregulation, and problem solving and coping skills.[224]
[224] Transcript of Restriction Hearing, 35 - 37.
However, he also requires continuing support to establish supportive and prosocial networks and attitudes in the community, to obtain employment, to maintain his abstinence from substances in a long term and sustainable way, and to develop emotional resilience and impulse control when confronted with the kinds of challenges he will inevitably face.
While the intensity of the supervision (and, at times, the support) is an irritant to the respondent, it is essential that he be closely monitored while he adjusts to the reality of living in the community. The intensity of the scrutiny can be moderated over time as the respondent develops better coping strategies and entrenches the gains he has made in treatment, provided, of course, that he remains offence free.
In my view, the conditions regarding attending licensed premises which were originally proposed were too restrictive. All of the reports and programs recommend that the respondent develop prosocial networks, yet this proposed condition prevents the respondent attending a significant proportion of the venues where such networks might be developed. The concern is that the respondent will become intoxicated. To deal with this, the condition that he not consume alcohol will be maintained, with his CCO able to vary that as time goes on.
I do, however, propose to limit the respondent's attendance at licensed venues such as the TAB and the casino, having regard to his current gambling habits.
In relation to all of the proposed conditions, it is necessary for the supervising authorities to bear in mind, when making directions and setting limits (such as the curfew) that the obligation is also on them to ensure that, within the scope of the supervision order, the CCO only impose those directions and limits that are necessary to adequately protect the community. Those directions and limits which are imposed should be consistently reviewed for their appropriateness and necessity. The onus should not be on the respondent to request the moderation of any directions or limits before they will be moderated.
In my view the appropriate length of the order is one of four years. The terms and conditions of the order will be as set out in Schedule A.
Conclusion
I am 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 respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. Accordingly, the respondent is a high risk serious offender within the meaning of the HRSO Act.
I am satisfied that a supervision order with appropriate conditions will adequately protect the community against the risk identified, and that a continuing detention order is not necessary to do so.
I am also satisfied that the respondent has established, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
In my view, the appropriate term of the order is four years. Having regard to the fact that the respondent is already on an interim supervision order, I propose to abridge the 21 days set by s 27(3) of the HRSO Act such that the supervision order is to commence on 4 October 2022.
SCHEDULE A
IN THE SUPREME COURT OF WESTERN AUSTRALIA
SO 19 of 2021
IN THE MATTER of the High Risk Serious Offenders Act 2020
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
JASON GUY HAPKE Respondent
_________________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE FORRESTER
ON 4 OCTOBER 2022
_________________________________________________________________________
Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 4 years from 4 October 2022, on the following conditions:
You, JASON GUY HAPKE, must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer at East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth within 48 hours of release to the Order and advise the Officer of your current name and address;
Report to and receive visits from, a Community Corrections Officer as directed by the court;
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Take up residence at [address redacted], and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you; Reporting to a CCO and supervision by a CCO;
Reporting to a CCO and supervision by a CCO
Report to, and receive visits from, CCO at times and at places as directed by the CCO and comply with the lawful orders and directions of a CCO;
Disclose to the CCO the name and details of any paid or unpaid employment, education, training or volunteer work in work in which you intend to commence;
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, counsellor, medical practitioner and/or support service nominated by a CCO, as directed by a CCO, including any programs designed to address your offending behaviour;
Reporting to WA Police
Report to WA Police at times and at locations as directed by a CCO or WA Police;
If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order;
Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020; Disclosure/Exchange of Information
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any partners and potential partners and, where appropriate, to disclose to them confidential information including your offence history;
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice;
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Prevention of high-risk situations
Not to consume, or use alcohol without prior approval of a CCO;
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Provide a valid sample pursuant to condition 24;
Not to go inside, or remain at any licensed TAB, Casino or nightclub unless permitted or required to do so for the following reasons:
(a)For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;
(b)For a purpose, and for a duration, approved in advance by a CCO;
(c)On an order of a CCO or Police Officer.
Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drugs, unless the identity of such person is approved in advance by a CCO;
Not remain in any place where, to your knowledge, prohibited drugs are being consumed or, remove the persons consuming prohibited drugs from your residence, unless the identity of such person is approved in advance by a CCO;
Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a license to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article;
Not to associate with Mr Matthew Pilling, Mr Bradley Nicolaides, Ms Katrina Ripper, Mr Robert Hill and Ms Duyckers;
Report at your next contact with your CCO, the formation of any social association (of more than four contacts by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a social association (of more than four contacts via any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Advise a CCO of every computer or telecommunication device in your possession and upon request, permit a CCO or WA Police to access any computer and/or telecommunication electronic device, at any location nominated by the CCO or WA Police for the purpose of ascertaining your associations;
Not allow any person other than a CCO or WA Police access to any computer and or telecommunication device referred to in condition 33, without prior CCO approval;
Enable device locking or password access of your computer and telecommunication devices. Not provide or disclose such passwords or other means used to access any computer and/or telecommunication devices referred to in condition 33, or any online communication accounts, to any person other than a CCO or Police Officer;
Upon request, permit a CCO or WA Police at any location nominated by them, to access any telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO; and
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data and information including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer and/or telecommunication devices, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
_______________________________
THE HON JUSTICE FORRESTER
I have received a copy of this Order. I have had it explained to me and understand the effect of this Order and what may happen if I contravene it.
Signed by the Respondent _________________________________
JASON GUY HAPKE
In the presence of: _________________________________
Name and address: _________________________________
_________________________________
Date: _________________________________
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
4 OCTOBER 2022
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