The State of Western Australia v Hart - [2022] WASC 63

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HART [2022] WASC 63
CORAM:   HALL J
HEARD:   18 FEBRUARY 2022
DELIVERED          :   18 FEBRUARY 2022
PUBLISHED           :   25 FEBRUARY 2022
FILE NO/S:   SO 21 of 2007
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

DARREN MORTON HART
Accused

Catchwords:

High Risk Serious Offenders Act 2020 - Restriction order application - preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Pre‑existing supervision order due to expire - Whether an order should be made extending the effect of the existing order until a final hearing of the restriction order application is made

Legislation:

Nil

Result:

Orders made pursuant to s 46(2)

Existing supervision order extended until determination of proceedings

Category: B

Representation:

Counsel:

Applicant	:	Mr D S McDonnell
Accused	:	Mr D J McKenzie

Solicitors:

Applicant	:	State Solicitor's Office
Accused	:	David McKenzie Legal Pty Ltd

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

State of Western Australia v Hart [2008] WASC 43

HALL J:

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

Introduction

On 22 December 2021, the State of Western Australia applied for a restriction order in respect of the respondent, Darren Morton Hart, under the High Risk Serious Offenders Act 2020 ('the Act'). The preliminary hearing of the application came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the Act: see s 46(1).
The State seeks orders pursuant to the Act, including orders that:
(a)a restriction order be imposed under s 48;
(b) the respondent undergo examination by a psychiatrist and qualified psychologist for the purpose of preparing reports; and
(c) that the current supervision order be extended pursuant to s 58(3) until the final determination of the application.
The respondent was the subject of a continuing detention order under the Dangerous Sexual Offenders Act 2006 from 2008 to 2009. In 2009, the continuing detention order was rescinded and a 10‑year supervision order was made. As a result of time spent in custody for unrelated matters, the length of that order was extended. It is now due to expire on 9 March 2022. The effect of the present application will be to extend that order for a further period. The State can file an application for a restriction order in respect of an offender who is the subject of a supervision order which is due to expire within one year: see s 26 of the Act.
The respondent's counsel accepts that the requirements of s 46 are met and, for the reasons that follow, I am satisfied that the concession is appropriately made.
I am also satisfied that it is desirable for the protection of the community that the existing supervision order be extended in effect until final determination of the application. The respondent, through his counsel, has also accepted that that is an appropriate course.

The law

The main purpose of a preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to in order to ensure adequate protection of the community against an unacceptable risk the person will commit a serious offence.
A 'serious offence' within the meaning of the Act is defined in s 5 and schedule 1. It relevantly includes sexual penetration without consent.
I do not have to be satisfied that a restriction order will be made. It is sufficient, at this stage of the proceedings, if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. Further, a belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

The evidence

In support of its application, the State relies upon the affidavit of Daniel Sean McDonnell, affirmed on 22 December 2021, which annexes the respondent's criminal history dating back to 1985, and several previous reports in relation to him. Those reports include psychological and psychiatric reports. The most recent report is dated 12 April 2021.
The respondent is now aged 51 years of age. He has a long history of offending. His offending has included offences of assault, sexual assault, burglary, aggravated sexual penetration without consent, deprivation of liberty and threats to kill. He has also been convicted of a number of offences of failing to comply with the supervision order.
The most recent serious offending occurred in 1997. Murray J described that offending in his judgment ordering a detention order in the State of Western Australia v Hart [2008] WASC 43, at [18] to [20], where he said:
All the offences were committed against the same complainant, a young woman in the early hours of the morning. In the vicinity of her home, she was accosted by the respondent, taken to a nearby bush area, violently forced to the ground and suffered threats to kill and the removal of her clothing. The penetrations to both vagina and anus were so savage that they caused injury and bleeding. She was punched and beaten and suffered a number of injuries not only to the vagina and anus, but also to her head and body. Apparently, the victim was targeted by the respondent who, at that time, was living in the next door unit.
It was evident to the sentencing judge that he had engaged in sexual offender treatment, which had obviously failed, although it had been thought to be successful. He clearly still had a tendency to violence of a serious kind and required anger management and sexual offender treatment. Although there was no psychiatric disorder as such, he was said to have presented the diagnostic criteria for what is called sexual sadism.
It was not surprising that on 26 November 1997, the respondent was sentenced by Yeats DCJ to an aggregate term of 16 years' imprisonment with eligibility for parole. That sentence was made up of 4 years' imprisonment for the deprivation of liberty, 12 years' imprisonment cumulative for one of the offences of sexual assault. A further six such offences were also punished by 12‑year sentences, but they were ordered to be served concurrently. Two rather lesser such offences received sentences of 5 years' imprisonment, concurrent. The threats to kill resulted in terms of 4 years' imprisonment, concurrent.
In a psychiatric report dated 2 April 2009, Dr Bryan Tanney stated that the respondent was a serious danger to the community and that there had been minimal deterioration in his risk management over the previous year. Although recommendations for his risk management in custody were not implemented, the respondent's attitude and behaviour also contributed to that disappointing outcome.[1]
[1] Supplementary affidavit of Daniel Sean McDonnell affirmed on 31 January 2022, Annexure AG (Psychiatric Report of Dr Bryan Tanney dated 2 April 2009).
Dr Tanney went on to say that a further period of detention was considered to be required at that time to afford suitable protection for the community from the respondent's ongoing unacceptable risk of sexual reoffending and to deliver a program leading to the possibility of eventual community supervision.[2]
[2] Supplementary affidavit of Daniel Sean McDonnell affirmed on 31 January 2022, Annexure AG (Psychiatric Report of Dr Bryan Tanney dated 2 April 2009).
In a psychiatric report dated 19 April 2010, Dr Gosia Wojnarowska stated that the respondent presented with significant treatment needs but his risk of offending - although elevated and indeed high - could, in her opinion, be managed in the community if adequate resources were allocated.[3]
[3] Supplementary affidavit of Daniel Sean McDonnell affirmed on 31 January 2022, Annexure B (Psychiatric Report of Dr Gosia Wojnarowska dated 19 April 2010).
The respondent participated in an intensive sex offender program and the completion report dated 29 March 2010 assessed him as having a high risk of sexual and violent reoffending. He was also identified as being in the high range in relation to psychopathy. The respondent's completion of the program represented what was considered to be a considerable achievement, as he was able to identify a number of ongoing treatment needs. He had commenced further intervention, but progress had been undermined by his preoccupation at that time with release. He was not deemed to have addressed his offending to a degree that his risk was considered to be manageable at that stage.[4]
[4] Affidavit of Daniel Sean McDonnell affirmed on 22 December 2021, Annexure AK (Offender Services Treatment Completion Report dated 29 March 2010).
In a psychological report dated 23 November 2017, Mr Steve Jobson stated that the respondent had an underlying passive/aggressive personality pattern. This was characterised by a mix of compliance followed by resentment and opposition. These characteristics typically cause the person concerned to act out in impulsive and erratic ways, and the person usually has a belief that they have been 'hard done by'. The respondent had minimal motivation and commitment to address his personality disorder characteristics.
Mr Jobson also found the presence of a moderate to large number of criminogenic risk factors; that noncompliance displayed by the respondent reflected a possible need to exert some level of perceived control in his life; that his anger and defiance and his attitude towards women suggested some degree of objectification and possessiveness; and that there was a minimal association between the contravention offences and further sexual offending imminently or in the near future. I should note that that report was prepared in connection with breaches of the supervision order, and that was why there was a reference to contravention offences.[5]
[5] Affidavit of Daniel Sean McDonnell affirmed on 22 December 2021, annexure AN (Psychological Report of Mr Steve Jobson dated 23 November 2017).
In a psychiatric report dated 4 September 2018, Dr Peter Wynn Owen stated that the respondent was assessed as a well above average risk of committing another sexual offence. Offenders with that assessment had a 27 per cent likelihood of committing a new sexual offence within five years of release, indicating that of 100 offenders released with that score, 27 would reoffend and 73 would not. [6]
[6] Affidavit of Daniel Sean McDonnell affirmed on 22 December 2021, annexure AQ (Psychiatric Report of Dr Peter Wynn Owen dated 24 September 2018).
Dr Wynn Owen noted that the respondent had spent a considerable period of time in the community since his release on a supervision order in 2009. He had not committed a further sexual offence and this had an impact on the likelihood of reoffending. His risk factors at that time were problems with stress or coping, problems with substance abuse and problems with supervision. Dr Wynn-Owen concluded:
On review of the current supervision conditions, I can recommend no additional or varied conditions that will further address the future risk of committing a serious sexual offence. I strongly support continuation of individual counselling to address risk, including awareness of risk situations, assistance with avoiding alcohol and other drugs, day to day problem solving, abstinence from alcohol and other drugs is essential.[7]
[7] Affidavit of Daniel Sean McDonnell affirmed on 22 December 2021, annexure AQ (Psychiatric Report of Dr Peter Wynn Owen dated 24 September 2018).
A dangerous sex offender treatment report dated 11 September 2018 was prepared by Tania Wilson-Brown. Ms Wilson-Brown stated that the respondent had been motivated to maintain a relatively pro-social life, including mutually satisfying relationships with women. He had outstanding treatment needs which included his limited attentiveness to specific high-risk situations, which he (the respondent) described as being contained to associating with unfamiliar people who might engage in substance abuse or crime, which he then 'gets caught up in'.[8]
[8] Affidavit of Daniel Sean McDonnell affirmed on 22 December 2021, annexure D (Dangerous Sex Offender Treatment Report of Ms Tania Wilson-Brown dated 11 September 2018).
Several other outstanding treatment needs were identified at that time including problem‑solving skills; risk management; refusal to review his substance use; relapse prevention plans; a need for increased motivation to gain employment; a need to address emotional regulation; increasing his prosocial support network; and facilitating appropriate contact with women.[9]
[9] Affidavit of Daniel Sean McDonnell affirmed on 22 December 2021, annexure D (Dangerous Sex Offender Treatment Report of Ms Tania Wilson-Brown dated 11 September 2018).
A high risk serious offender update report was prepared on 12 April 2021. The author of that report assessed the respondent using the Static-99 tool as being a well-above-average risk of being charged or convicted of another sexual offence, with his score being higher than 99% of routine samples of sexual offenders. The STABLE-2007 tool, which consists of 13 items related to psychological interpersonal and sexual functioning, was also used: it placed the respondent in a moderate density range of criminogenic needs. Out of 100 individuals convicted of a sexual offence, 77 would have a lower score, 19 would have a higher score and five would have the same score. [10]
[10] Affidavit of Daniel Sean McDonnell affirmed on 22 December 2021, annexure E (High Risk Serious Offender Update Report prepared by Hannah Raggett dated 12 April 2021).
The update report again identified a number of areas as being of concern. They included: significant social influences; capacity for relationship stability; social rejection and loneliness; poor cognitive problem solving; negative emotionality and hostility; sex drive and preoccupation; using sex as a coping mechanism; deviant sexual interests; and cooperation with supervision.[11]
[11] Affidavit of Daniel Sean McDonnell affirmed on 22 December 2021, annexure E (High Risk Serious Offender Update Report prepared by Hannah Raggett dated 12 April 2021).
There have been some efforts towards rehabilitation and the respondent completed an intensive sex offender treatment program, as noted earlier, in 2010. Since that time, he has been engaging in individual counselling sessions with a psychologist to manage stressful situations and provide maintenance counselling to enhance his relapse prevention skills. That relationship has been a constructive and meaningful one and fostered some treatment gains, including an understanding of the factors contributing to offending.[12]
[12] Supplementary affidavit of Daniel Sean McDonnell affirmed on 31 January 2022, annexure E (High Risk Serious Offender Update Report prepared by Hannah Raggett dated 12 April 2021).
The treating psychologist reported that the respondent's problem‑solving skills have remained relatively rudimentary and he has primarily relied on avoidance strategies. He has readjusted to the community and maintained a support network consisting of a housemate, extended family and a partner. This is believed to have provided him with some social structure and a sense of inclusion and acceptance.[13]
[13] Supplementary affidavit of Daniel Sean McDonnell affirmed on 31 January 2022, annexure E (High Risk Serious Offender Update Report prepared by Hannah Raggett dated 12 April 2021).
The respondent is reported to have encountered antisocial lifestyles through some of these connections, including exposure to substance misuse. He has demonstrated a capacity to manage those circumstances by implementing refusal skills or removing himself from such situations. Despite demonstrating a capacity to implement help seeking behaviours, he has not developed a prosocial personal support network.[14] He has completed a period of 10 years of community supervision and maintained stable accommodation throughout much of that time.[15]
[14] It would appear that the members of his social support network as referred to in [27] are not always considered to promote prosocial values.
[15] Supplementary affidavit of Daniel Sean McDonnell affirmed on 31 January 2022, annexure E (High Risk Serious Offender Update Report prepared by Hannah Raggett dated 12 April 2021).
The respondent has completed a period of 10 years of community supervision and maintained stable accommodation throughout much of that time. He has made limited progress, however, towards obtaining employment, though he has maintained contact with a job network provider and engaged with Work for the Dole.
As to the risk of re-offending, in the high risk offender update report dated 12 April 2021 the author reported that the respondent associates with friends and family who were involved in antisocial lifestyles or have a history of involvement with the criminal justice system. There has been conflict between the respondent, his family, friends and his current partner. The author also noted that the most significant destabilising factor appeared to be his current relationship with a partner with whom he has a baby daughter. The author referred to that relationship as being marked by mistrust, jealousy, instability and conflict. A cycle of conflict has developed which is characterised by the respondent attempting to avoid situations or create distance, and the partner has reportedly responded to this by persisting to confront him.[16]
[16] Supplementary affidavit of Daniel Sean McDonnell affirmed on 31 January 2022, annexure E (High Risk Serious Offender Update Report prepared by Hannah Raggett dated 12 April 2021).
The respondent has expressed a fear that persistent recurrence of this cycle could result in him responding physically. He has managed this by seeking professional support from his CCO, police, and his psychologist. This is said to illustrate his capacity to implement help-seeking skills, but it also shows his reliance on professional support. The author of the report considered that were he to maintain his relationship with his partner, and were the conflict to persist, his underdeveloped problem‑solving strategies could be overwhelmed and he may resort to maladaptive ways of responding. This could include the use of physical violence.[17]
[17] Supplementary affidavit of Daniel Sean McDonnell affirmed on 31 January 2022, annexure E (High Risk Serious Offender Update Report prepared by Hannah Raggett dated 12 April 2021).

Assessment

I am satisfied that there are reasonable grounds to believe that a court might find the respondent to be a high risk serious offender. The respondent has a significant history of violent and sexual offending. Whist the last serious offending was in 1997 and the respondent has been in the community for many years without offending of that nature reoccurring, the risk of reoffending remains present. The nature of the risk, if realised, is such that adequate community protection would require a high degree of assurance that the risk is properly managed.
On the basis of the respondent's offending history and the previous assessments of his reoffending risk, there are reasonable grounds to believe that a court might find that he is a high risk serious offender. I will therefore make the orders sought by the State for the hearing of the restriction order application.

Interim supervision order

The State also submits that I should make an order effectively extending, on an interim basis, the existing supervision order until determination of the proceedings, pursuant to s 58(3) of the Act.
The respondent is the subject of pending proceedings and his existing supervision order is due to expire on 9 March 2022. Given the respondent's risk of serious offending, the likely nature of such offending if it occurred, and his reliance on existing supports and supervision provided to him under the supervision order, I am satisfied that the need to ensure adequate protection of the community requires that the supervision order which presently exists be extended on the same terms until determination of the proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
25 FEBRUARY 2022