The State of Western Australia v Hart
[2021] WASC 205
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HART [2021] WASC 205
CORAM: QUINLAN CJ
HEARD: 24 JUNE 2021
DELIVERED : 24 JUNE 2021
PUBLISHED : 24 JUNE 2021
FILE NO/S: SO 4 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ASHLEY CRAIG HART
Respondent
Catchwords:
Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim supervision order is desirable – Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)
Result:
Orders pursuant to s 46(2) made
Interim supervision order granted
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | David McKenzie Legal Pty Ltd |
Cases referred to in decision:
The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Ratcliff [2021] WASC 31
The State of Western Australia v Winder [2021] WASC 65
QUINLAN CJ:
(This judgment was delivered extemporaneously on 24 June 2021 and has been edited from the transcript.)
Introduction
On 18 June 2021, the State of Western Australia applied for a restriction order in respect of Ashley Craig Hart under the High Risk Serious Offenders Act 2020 (WA) (the Act).
The preliminary hearing of the application came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that Mr Hart is a high risk serious offender within the meaning of that Act (see s 46(1) of the Act) and if so, whether I should impose an interim supervision order pursuant to s 58(5) of the Act.
Mr Hart, through his counsel, accepts that I can be satisfied in accordance with s 46 of the Act and that I should also make a supervision order under s 58(5). I accept those concessions as being properly made and can briefly give my reasons for the orders I make.
The law
A 'high risk serious offender' is a person in relation to whom the Court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the person to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act, relevantly, includes aggravated armed robbery.
While the definition of 'high risk serious offender' sets a relatively high bar for the imposition of a restriction order (in the sense of requiring proof to a high degree of probability), s 46(1) of the Act sets a low threshold for the purposes of a preliminary hearing. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[1]
[1] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
The evidence
The State has filed and relies upon an affidavit of Fleur Marie Allen affirmed on 16 June 2021 which contains Mr Hart's criminal history and several previous reports in relation to him (including psychological and psychiatric reports).
The most recent report is the Parole Assessment Report dated 8 May 2019, so that even that report is somewhat out of date. It is notable that the most recent psychological and psychiatric reports are from 2002 and 2003, which was the year in which Mr Hart was sentenced. It is those reports that were referred to in the most recent Parole Assessment Report.
In relation to the evidence, it is apparent that Mr Hart had, prior to his most recent terms of imprisonment being imposed, a significant criminal history. The offending for which he is currently serving sentences occurred in 2002. That offending included four counts of aggravated burglary, four counts of deprivation of liberty, six counts of aggravated indecent assault, one count of unlawful wounding, one count of indecent dealing of a child under 13 years, four counts of sexual penetration of a child under 13 years, six counts of aggravated sexual penetration, one count of attempted aggravated sexual penetration and one count of aggravated armed robbery.
The offending, as this summary demonstrates, was particularly serious. It was offending against strangers in their own homes, with Mr Hart having forced his entry into the dwelling, usually at night or in the early hours of the morning. The offending was indiscriminate, in that at least one of the victims was a child, at only 12 years of age, while the ages of other victims were 20, 30 and 68 years.
That offending, being as grave as it was, resulted in an initial total effective sentence of 34 years imprisonment. That total effective sentence was reduced on appeal to 28 years imprisonment. The sentence was ordered, both at first instance and on appeal, to commence from 28 October 2002.
As a consequence of the operation of the transitional provisions following amendments to the Sentencing Act 1995 and the introduction of the Sentence Administration Act 2003, Mr Hart is now due for release on 26 June 2021.
There are a number of reports annexed to Ms Allen's affidavit, in the form of pre-sentence reports, psychological reports and treatment reports. Those reports are relevant to Mr Hart's risk of reoffending and his potential danger to the community.
By way of background to Mr Hart's history, he was one of eight children. He was placed into a foster home at approximately the age of seven due to his parents' problem with alcohol abuse, and his foster father was physically abusive towards him. He left his foster family when he was around 14 years old and lived on the streets and spent a considerable portion of his teenage years in juvenile detention.
He had a relationship with a long-term de facto partner which commenced when he was 17 years old. They raised four children together and separated in 2002. That relationship was characterised by domestic violence, during which Mr Hart commenced amphetamine use.
Mr Hart has suffered with drug and alcohol abuse since a young age and began using marijuana at the age of 14 years, which ultimately escalated to his use of amphetamines. The use of amphetamines played a role in the commission of the serious offences for which he was imprisoned in 2003.
Since his imprisonment in 2003, Mr Hart has completed two rehabilitative programs: the Pathways Program in 2012 and the Intensive Sex Offending Treatment Program in 2017.
The Pathways Program Completion Report dated 13 June 2012 stated that Mr Hart's participation level was high throughout the program and he had been a positive role model to others. The report stated that Mr Hart would benefit from the PEP program and any work related education and 'any cultural, cognitive, or communication programs upon release would reinforce his current learning'.
It is apparent from Ms Allen's affidavit that Mr Hart has completed a large number of accredited educational and vocational certificates, including general education, land conservation and restoration, horticulture, business, visual arts, furniture making, asset maintenance and leadership development.
The Intensive Sex Offender Treatment Program Completion Report dated 11 May 2017 stated that Mr Hart had been assessed using the Static-99R risk assessment tool, which placed him in the medium‑high risk category for being charged or convicted of another sexual offence. The report identified that Mr Hart's treatment needs were 'in the area of emotional and behavioural self-regulation and relationship problems and included poor coping by way of substance abuse, negative peer associations, anti-authoritarian attitudes, intimacy deficits, trust issues and a pre-occupation with sex'. In the most recent report, the Parole Assessment report dated 8 May 2019, the report stated:
Despite having completed the Pathways Program and the Intensive Sex Offender Treatment Program, there appear to be outstanding treatment needs. Mr Hart suggests his sexually violent offending was related to his substance abuse and breakdown of his intimate relationship.
Assessment
On the basis of these materials, I am satisfied that there are reasonable grounds to believe that a court might find Mr Hart to be a high risk serious offender.
My reasons are as follows.
Mr Hart has a history of serious sexual offending. Although those offences were committed a long time ago (essentially during a single crime spree in 2002 after the breakdown of his de facto relationship), the offences themselves were particularly grave and serious.
The most recent reports available indicate that Mr Hart may still pose a risk to the community and requires further rehabilitative treatment.
I recognise that these reports are quite old, with even the most recent report being from 2019. Indeed, one perhaps surprising aspect of the material provided in support of the application is the relatively small number of interventions that have appeared to have occurred in the 18 plus years that Mr Hart has been in prison, consisting of the Pathways Program and the Intensive Sex Offender Treatment Program, which was completed over four years ago.
I am satisfied, on the basis of Mr Hart's unmet treatment needs, that there are reasonable grounds to believe a court might find he is a high risk serious offender. I will therefore make orders for the hearing of the restriction order application.
Interim supervision order
In the meantime, the State seeks an order that I make an interim supervision order pending the restriction order application, pursuant to s 58(5) of the Act.
Mr Hart's counsel accepts it is desirable that I should do so. I am satisfied that I should do so.
In order to make such an interim supervision order, s 58(2) of the Act requires that I be satisfied that there is a pending proceeding,[2] the offender to whom the pending proceedings relate must not be in custody,[3] and the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under this section.[4]
[2] Section 58(2)(a).
[3] Section 58(2)(b).
[4] Section 58(2)(c).
In relation to those criteria, these are, of course, pending proceedings within the meaning of s 58(2)(a).
In relation to s 58(2)(b), while Mr Hart is currently in custody, he will be released from custody on 26 June 2021. Previous decisions of judges of this Court have concluded that, on its proper construction, s 58(2)(b) (and its predecessor, s 27A(2) of the Dangerous Sexual Offenders Act 2006) applies in relation to a person who would not be in custody on a specified future date from which the order is to take effect.[5]
[5] The State of Western Australia v CA [2020] WASC 164 [30] - [33] (Fiannaca J); The State of Western Australia v Ratcliff [2021] WASC 31 [42] - [43] (Derrick J).
While the provisions are somewhat ambiguous, I am satisfied that I should follow those decisions and agree that an order can be made from the specified date, which is the date of Mr Hart's release on 26 June 2021.
That leaves the question of whether it is desirable to make an interim supervision order (s 58(2)(c)).
I am satisfied that it is desirable to make an interim supervision order. Mr Hart has already been made subject to a Post Sentence Supervision Order (PSSO) under the Sentence Administration Act 2003. An interim supervision order under the Act would provide similar restrictions to that in the PSSO, but with somewhat greater restrictions in terms of Mr Hart's access to high risk situations. An interim supervision order under the Act would also enable Mr Hart to be immediately returned to this Court in the event of any contravention of the order.
In the circumstances of the present case, I am satisfied that it is desirable that Mr Hart be subject to the more strenuous supervision imposed by a supervision order.
Mr Hart has been in custody for a very long period of time. The world has changed considerably since Mr Hart was last at liberty. He has, for example, been in custody since well before the advent of the smartphone. He will no doubt find adjustment to life in the community difficult. It is in his interests and, most significantly, in the interests of the community that he has as much support and structure as possible to live a pro-social life upon his release.
Orders
For those reasons, I am satisfied that an interim supervision order should be made, and I make an order that he be subject to supervision in the terms of the proposed orders filed by the State.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
24 JUNE 2021
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