The State of Western Australia v Hart [No 2]
[2022] WASC 321
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HART [No 2] [2022] WASC 321
CORAM: ALLANSON J
HEARD: 15 SEPTEMBER 2022
DELIVERED : 15 SEPTEMBER 2022
PUBLISHED : 16 SEPTEMBER 2022
FILE NO/S: SO 21 of 2007
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DARREN MORTON HART
Accused
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Where respondent made subject to supervision order in 2010 - Where State applies for further restriction order - Where respondent has not committed serious offence since 1996 - Where respondent's performance on supervision for 10 years satisfactory - Whether restriction order necessary to ensure adequate protection of the community - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
The application is dismissed
The interim supervision order is discharged
Category: B
Representation:
Counsel:
| Applicant | : | D S McDonnell |
| Accused | : | D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Accused | : | David McKenzie Legal Pty Ltd |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Hart [No 3] [2010] WASC 253
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Palmer v Dolman [2005] NSWCA 361
The State of Western Australia v Hart [2008] WASC 43
The State of Western Australia v Hart [No 2] [2009] WASC 121
ALLANSON J:
(These reasons were delivered orally on the completion of the hearing and have been edited from transcript.)
Introduction
I had the opportunity to consider all of the written material before the hearing today. The oral evidence which I have heard has not dissuaded me from my preliminary views but has confirmed my view of the proper disposition of this case.
In 2008, the respondent, Darren Morton Hart, was found to be a dangerous sexual offender under the Dangerous Sexual Offenders Act 2006 (WA). In 2010, he was released subject to a 10-year supervision order under that Act. On the repeal of the Dangerous Sexual Offenders Act, the supervision order continued in effect and was taken to have been made under the corresponding provisions of the High Risk Serious Offenders Act 2020 (WA).
The supervision order was extended as result of time spent in custody for offences of breaching that order and was to expire on 9 March 2022. On 22 December 2021, the State of Western Australia applied under s 36 of the High Risk Serious Offenders Act for a restriction order in respect of the respondent under the High Risk Serious Offenders Act.
Unless stated otherwise, references in these reasons to provisions of legislation are to the High Risk Serious Offenders Act.
On 18 February 2022, Hall J ordered that the supervision order be extended on the same terms until determination of these proceedings, and made orders for the hearing of this application, including that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used for the hearing.
Where the application is brought under s 36, the State must specify whether it seeks a continuing detention order or a supervision order.[1] The provisions of the Act relating to an application for a restriction order otherwise apply without modification. The court is required to have regard to the factors set out in s 7(3) of the Act. The Act does not limit the discretion of the court or modify the requirements of s 29 that the respondent must prove that he will substantially comply with the standard conditions of the order.
[1] The State has specified that it seeks a supervision order.
The evidence
The State tendered a four volume book of materials, including the reports prepared pursuant to s 74, and other material admissible by reason of s 84(5).
The respondent was in prison or detention for most of his life from the age of 15 until he was placed on the supervision order. He has now been in the community under supervision for more than 10 years. In those circumstances, the two reports prepared under s 74 are particularly relevant in relating the other, older evidence to the respondent's present position.
The State called the authors of the s 74 reports, Dr Peter Wynn Owen, consultant psychiatrist, and Ms Julie Hasson, psychologist. Their reports stood as their evidence in chief with some further supplementary evidence led with the leave of the court.
The State also called Dr Sarah Barbas, the author of a proposed Management Plan dated 31 August 2022; and Ms Suzette Oppert, the author of a Community Supervision Assessment Report dated 25 August 2022.
All reports were in the Book of Materials.
The respondent's antecedents
Personal antecedents
The respondent was born in 1970 and is now 52 years old. A detailed summary of his personal history was set out by Ms Hasson in her report and the following summary is taken from that.
The respondent is the youngest of eight children born to his parents' union.
From the age of 5, the respondent was taken into foster care due to his parents' difficulties with alcohol, intimate partner violence, and neglect of the children. The respondent remained in foster care with an Aboriginal couple from the ages of 5 to 14. He had contact with his parents during holidays. While with his parents he was exposed to antisocial behaviour, alcohol and substance abuse from both his parents and extended family, and violent and sexual behaviour.
During his time with his foster family the respondent says he was sexually abused by older male cousins. His foster parents were unaware that was happening.
The respondent reported that his behaviour changed at school when he commenced high school. He gravitated toward an older peer group and began to truant regularly. He denied engaging in any antisocial behaviour at that time.
While at high school, when he was 15, the respondent committed his first sexual offence. The victim was a female school friend. He was apprehended and sentenced to 12 months’ probation.
The respondent never returned to the care of his foster parents. He lived with his mother for a while; his father had died when the respondent was 10. During this time the respondent began drinking alcohol and smoking cannabis.
The respondent reoffended sexually within months of being placed on probation. He was sentenced to an indeterminate period of imprisonment.
From the age of 15, and until he was released on the supervision order in 2010 at age 40, most of the respondent's life was spent in prison or without a stable address. In those periods when he has not been in prison, he has generally been subject to some form of supervision, either on probation, parole, or, since 2010, a supervision order.
The respondent has a limited work history. He is, however, currently employed with the prospect of further employment when that contract ends.
Offending history
The respondent has a history of offending from the age of 15, with the first serious sexual offences committed when he was 16. The victim, an adult female, was violently assaulted in the offences.
Because of his offending, the respondent was sentenced to indeterminate detention in 1986. The respondent was released on parole but breached it with various offences of dishonesty and was returned to custody in late 1988. He remained in prison, subject to the indeterminate imprisonment sentence, and to sentences for other offences including a two-year term imposed for burglary. He was again released on parole in May 1992 but again offended and was from time to time returned to prison.
Apart from the serious sexual offences, the respondent has convictions for offences of common assault, and several offences of breaking and entering committed before his imprisonment in 1996.
In 1997, when the respondent was 26, he was convicted of further serious offences - nine offences of aggravated sexual penetration without consent and one of deprivation of liberty, as well as an offence of threat to kill. He was sentenced to imprisonment for 16 years. The offences were committed in a single attack on an adult female victim, and the violence used was extreme.
The restriction orders made in relation to the respondent
Following his conviction in 1997, the respondent was not released on parole but, under the statutory scheme for calculating sentences that applied at the time, his sentence expired on 14 September 2007. Before the sentence expired, the State applied for orders under the Dangerous Sexual Offenders Act.
On 20 March 2008, Murray J declared the respondent a dangerous sexual offender and made him subject to a continuing detention order.[2]
[2] The State of Western Australia v Hart [2008] WASC 43.
At the first annual review hearing in 2009, Hasluck J declined to rescind the continuing detention order.[3]
[3] The State of Western Australia v Hart [No 2] [2009] WASC 121.
At the second annual review hearing in 2010, McKechnie J rescinded the continuing detention order and ordered that the respondent be the subject of a supervision order for a period of ten years.[4]
The respondent's conduct while under supervision
[4] Director of Public Prosecutions (WA) v Hart [No 3] [2010] WASC 253.
Where an offender has been on supervision for a substantial time, their conduct while on that order is a most relevant consideration.
While on the supervision order imposed in 2010, the applicant was convicted of many contraventions of his supervision order. For some of those offences he was fined; on 12 February 2018, he was sentenced to imprisonment for 12 months for six contraventions of the order.
Since his release, he has been fined for further breaches in 2019, 2020, and 2021. The respondent also had convictions for earlier breaches each year between 2012 and 2016.
There are also many recorded occasions when the respondent was warned for an apparent breach, or when no action was taken. His compliance with the supervision order has, however, been regarded as generally satisfactory.[5] None of the contraventions involved sexual offending, and except for the offence of breach of bail, and perhaps cannabis use, none involved conduct that would be an offence but for the conditions of the supervision order.
[5] Book of Materials 4-1259.
In 2019, the Director of Public Prosecutions for Western Australia applied to this court for orders under s 23 of the Dangerous Sexual Offenders Act. Under that section, where a person is charged with contravening a supervision order, the court may rescind the supervision order and order continuing detention, amend or extend the supervision order, or affirm the supervision order without amendment or extension.
On an extensive review of the evidence, Fiannaca J concluded that the respondent would substantially comply with the conditions of a supervision order, and continuation of the supervision order, with amendment, would ensure adequate protection of the community. His Honour found (in summary):
(1)While the respondent has been found in 2008 to lack insight into his offending and its causes and was not prepared to participate in treatment, his attitude has since changed. He had undergone an intensive sex offender treatment program and participated in individual counselling. By 2010, it was considered that he could be managed in the community under a supervision order.
(2)Although the respondent had numerous contraventions of the supervision order over the following seven years, he had maintained the gains he had achieved in respect of accepting responsibility for, and insight into, his offending and had made further progress. The changes had been assessed as enduring.
(3)In particular, the respondent no longer harboured deviant interest in violent sexual contact and had insight into the role that deviance had played in his violent offending and the harm caused to his victims. He also had insight into the role that anger played in his offending and had 'demonstrated a capacity to negotiate difficult relationships, and potentially feelings of rejection, without relapsing into violent behaviour or thinking'.
(4)The respondent now had a positive view towards the supervision order and the way in which it would benefit him as well as the community. Overall, he had engaged well in counselling and continued to improve.
(5)The respondent had not committed any criminal offence, other than the offences of contravening the supervision order and a breach of bail.[6]
[6] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [214]-[226].
Fiannaca J’s considered view of the evidence is persuasive. The same evidence was before the court on this application, supplemented by more recent reports.
The expert reports
There is a large volume of material before the court, covering the offences, the respondent's period in prison, the earlier applications under the Dangerous Sexual Offenders Act, and the respondent's conduct while under supervision. While the whole of the record of the offending and the various assessments of the respondent over many years is relevant, the reports prepared for the purpose of this hearing are not only contemporary but demonstrate the extent to which the risk of re-offending has changed.
Dr Wynn Owen
Dr Wynn Owen’s evidence is particularly relevant because of the extent of his engagement with the respondent over the years. It was not continuous engagement, but he has seen the respondent at different periods during his journey.
Dr Wynn Owen first saw the respondent in October 2007, when he prepared a report for the purposes of the first application under the Dangerous Sexual Offenders Act. On that occasion, Dr Wynn Owen reported:
[The respondent's] STATIC-99 score indicates a High Risk of sexual reoffending. [The respondent's] denial, rationalisation and/or minimisation of his offences and his unwillingness to participate in treatment suggest a lack of insight increasing risk, as, without insight he cannot address his offending behaviour. Of note also is the escalation in [the respondent's] violent offending behaviour over time, also the report that he may have diversified to present a risk to males.[7]
[7] Book of Materials V1-456.
Dr Wynn Owen prepared a report for this hearing, dated 25 August 2022. On this occasion, Dr Wynn Owen commented:
It is of note that Mr Hart’s attitudes toward and engagement with treatment shifted significantly over time, although an initially reluctant participant in the 2010 [Intensive Sex Offender Treatment Program] he sustained gains made in the program in his transition to individual counselling and release to a Supervision Order. His engagement with individual counselling while on the Order was consistently positive and sustained improvements were noted.
When comparing Mr Hart’s presentation, demeanour and understanding of his offending and risks between assessments in 2007 and 2018 this author found a marked positive difference. This improvement was again apparent when re-interviewed for 2022 HRSO proceedings.[8]
[8] V4-1249 [54]-[55].
Dr Wynn Owen assessed the respondent, using both an actuarial tool (STATIC-99R) and a structured clinical judgment framework (the Risk for Sexual Violence Protocol). The historical factors leading to a high STATIC-99R score are reduced by the period that the respondent has spent in the community, offence free,[9] and are also balanced by sustained improvements in dynamic risk factors. Dr Wynn Owen referred to:
(1)the respondent does not currently display attitudes that support or condone sexual violence, and now shows awareness of the beliefs and cognitive distortions that enabled his past offending;[10]
(2)the respondent still at times has difficulty in regulating his emotional state and reactions to others, but now demonstrates a range of mature coping strategies;[11]
(3)while the risk factor of problems resulting from child abuse is present, that factor is more robustly associated with child sexual offending, and the respondent has not displayed that conduct;[12]
(4)the risk factor relating to substance abuse has moderated;[13]
(5)the risk factor of problems with intimate relationships is no longer present, and the risk regarding non-intimate relationships has moderated;[14]
(6)the risk factors associated with planning and problems with treatment are not currently evident;[15]
(7)while risk factors from problems with supervision were evidenced by the breaches of the supervision order, Dr Wynn Owen did not categorise those as 'serious problems with supervision' and considered that the respondent had overall compliance with supervision and that supervision had been effective[16]
[9] Book of Materials V4-1252 [86].
[10] V4-1253 [95].
[11] V4-1254 [96].
[12] V4-1254 [97].
[13] V4-1254 [99].
[14] V4-1254-1255 [101]-[102].
[15] V4-1255[104].
[16] V4-1255 [105].
In his summary, Dr Wynn Owen referred to the respondent's developing awareness of the cognitive distortions and attitudes which enabled or facilitated his past offending, the development of skills to cope with stressors, his ability to abstain from alcohol and other substance abuse, his improved communication and relationship skills, and his positive engagement with treatment and supervision.[17]
[17] V4-1256 [118].
Significantly, the respondent had shown himself able to manage the stress of dealing with the Department of Child Protection, and also Family Court processes, without violence, sexual violence, or pathological coping (such as substance abuse).[18]
[18] V4-1248 [51].
Dr Wynn Owen assessed the current risk, if not subject to a restriction order, as 'moderate or average risk of further serious sexual offending'. He could not reliably estimate the contribution of the supervision order to preventing further serious offending but said it 'clearly has a significant role'.[19] There was, however, evidence of a higher degree of self-management of risk than when the respondent was first released.
[19] V4-1257 [119].
Dr Wynn Owen observed that it was unfortunate that the respondent had not been given the opportunity to demonstrate a greater degree of self-management during the latter part of a long period of supervision. He has not had that opportunity. That means the extent to which he can now self-manage sufficiently to reduce the risk is untested. But Dr Wynn Owen said in oral evidence that the respondent has demonstrated a significant degree of self-management.
Ms Hasson
Ms Hasson carried out her assessment using the same tools, and an additional tool - the PCL-R (to assess for psychopathic personality disorder, which was not shown to be present). Ms Hasson differed from Dr Wynn Owen in considering that the respondent remains a high risk of serious sexual re-offending, although that risk has been well managed by the level of supervision, support and monitoring while on the supervision order, as well as the respondent's cooperation and efforts to achieve a pro-social life.[20] Ms Hasson also considered that most of the factors which had played a significant role in his past offending have not been present for most of the 10 years since his release on a supervision order, but some were still present.[21]
[20] V4-1237 [110].
[21] V4-1240 [132].
Ms Hasson considered that the respondent would 'continue to transition toward Level III average risk in the next 12 to 24 months'.[22] Ms Hasson considered a transition plan to be essential to give the respondent the opportunity to adjust to the concept of being a free citizen.[23] Ms Hasson confirmed, however, that there are supports available in the community without the respondent being dealt with as an offender.
[22] V4-37 [110].
[23] V4-1237 [107].
Ms Hasson and Dr Wynn Owen both identified the possible future offending as sexual assault by attempted sexual penetration of an adult female. That appeared to be based on his past offending.
Ms Hasson expressed concern that, if all restrictions and conditions were suddenly removed, it was possible the respondent would destabilise. His capacity to self-manage has not yet been extensively tested and he will require time to transition to self-reliance, self-management and self-monitoring.
Ms Hasson recommended a further supervision order for 2 years, with restrictions expected to be reduced or progressively removed during that time.
The other section 7 factors
Other medical, psychiatric, psychological, or other assessment relating to the respondent
By the time of this application, the respondent had successfully completed the Intensive Sex Offender Treatment Program and had received approximately 13 years of individual psychological intervention, both in custody and in the community. Importantly, the community-based intervention ended on 9 February 2022, as a result of an assessment that the respondent had achieved stability, and further treatment gains were unlikely. He has, however, still been subject to supervision.
The most recent summary of treatment interventions is in the report of Dr Barbas. Since April 2021, the respondent has engaged in six bi-monthly face to face appointments with a counselling psychologist and one telephone session. The psychologist terminated counselling because of his belief that the respondent had achieved enduring stability in the community and can be effectively managed by the supervision team.[24]
[24] V4-1207 [13].
The respondent has reduced his involvement with the Department of Justice and has had greater contact with Child Protection and Family Support services. Although those services are primarily supporting the respondent's former partner as the primary carer of their children, he does have access to them as a carer.
Information indicating whether the respondent has a propensity to commit serious offences in the future
A very marked difference is shown over time.
The earlier reports speak of the respondent's tendency to deny, minimise or justify past violent acts. He was assessed as displaying a lack of remorse, and a tendency to blame his offending on his own history of sexual abuse. He had difficulty with emotional and behavioural regulation, describing losing control when angry. [25] His progress in psychological treatment was hampered by a lack of motivation for change and reluctance to accept responsibility for his actions.[26]
[25] See, for example, Report of Dr Gosja Wojnorowka, 15 10 2007, Vol 1 429 -430.
[26] Vol 1 -434.
Current assessments convey a different picture. As I have set out above, both experts who provided s 74 reports found that the dynamic risk factors had either been significantly moderated or were no longer present.
I find that the factors which previously supported a finding of a current propensity to commit serious offences in the future do not now support that conclusion, or at least not to any real degree.
Whether there is any pattern of offending behaviour by the offender
The respondent's sexual offending was committed in three separate incidents - two in 1986 and one in 1996. Dr Wynn Owen characterised the offending as lacking very specific triggers or catalysts, and appearing to have been impulsive in the context of poor emotional and behavioural controls, anger in the face of rejection and criticism or perceived rejection and criticism, and attitudes that condone violence and sexual violence toward women.
There is a common factor to two of the offences, in that the victim was assaulted in her own home. There were other offences of breaking and entering properties, possibly with a sexual motive, but which did not result in sexual offences.
There are not sufficient instances of offending behaviour to identify a pattern. The last offending behaviour is more than 20 years ago.
Efforts by the respondent to address the causes of his offending behaviour, and whether that has had a positive effect
The respondent has participated in treatment programs and has undergone many years of individual counselling. For several years he took anti-libidinal medication. That ceased in 2015.
The reports consistently refer to changes in attitude that are consistent with the respondent's record of not re-offending while on supervision. The respondent has not only participated but has clearly benefited from supervision and treatment while on the supervision order.
Conclusion
Section 7(1) provides:
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.
The nature of the findings that the court is required to make do not permit direct evidence. The court must infer, from all of the admissible evidence, whether it is satisfied to a high degree of probability that it is necessary to make the restriction order. As in other areas where conclusions are to be drawn from circumstantial evidence, the standard of proof is applied on all of the facts found and at the final stage of the reasoning process.[27]
[27] See, for example, Palmer v Dolman [2005] NSWCA 361 [41].
Whether the risk is unacceptable, so that it is necessary to make a restriction order to ensure adequate protection of the community, requires consideration of both the nature and the extent of the risk.
There is no doubt that further offending of the kind previously committed by the respondent would be extremely damaging both to the individual victims and the community as a whole. The nature of the risk of further offending is serious.
Assessing the extent of the risk, and whether it is unacceptable, requires an evaluative judgment based on predictions from the known facts.
The court is required to act on evidence that is 'acceptable and cogent'. The evidence of the experts, in the context of the evidence of earlier assessments and what is known of the respondent's offending conduct, is that there is some risk that the respondent would commit further sexual offences if not subject to some supervision. But it is not possible to quantify that risk. The actuarial assessment using STATIC‑99R identifies the risk within a group and is largely based on historical factors. The more individual assessment from the structured clinical judgments, which take into account dynamic factors, are more persuasive in that they identify factors that bear on the risk that this particular respondent may re-offend, and whether that risk can be managed, or in the respondent's case, whether it can be self-managed.
On the evidence, I am not satisfied that the risk is more than moderate or average. The assessment of a higher level of risk by Ms Hasson appeared primarily based on historical factors. It must be considered in light of her conclusion that the respondent would continue to transition to average risk in the next 12 to 24 months.
Dr Wynn Owen considered that Mr Hart has now demonstrated the ability to lead a pro-social life. He has been leading a structured life, has shown he can plan and manage, and has demonstrated the ability to solve social problems as they arise. In Dr Wynn Owen’s words this morning, 'He would probably cope'. I accept that assessment, and I am reinforced in my views by the evidence of Ms Hasson and Ms Oppert that there is support available in the community that is not dependent on the respondent being treated as an offender. He is aware of those supports and he has already engaged with them.
I also take comfort in my view from the evidence that the respondent has been in employment; he has the prospect of future employment. The importance of employment, not only for occupying time but in providing income and in providing self-respect is something which cannot be underestimated.
Both expert witnesses considered that, were a further period of supervision imposed, it should be for no more than two years, and should be structured to allow the respondent to demonstrate his ability to self-manage risk. While a period of easing of restrictions may be desirable because of the possibility that the respondent might destabilise if all restrictions were immediately removed, a restriction order can only be made if the court is satisfied to a high degree of probability that an order is necessary to ensure the adequate protection of the community.
The respondent has, over the previous years, sufficiently demonstrated an ability to self-manage, to self-monitor and to solve social problems as they arise, particularly in the context of a relationship breakup and the care of young children. The view I have formed would mirror that expressed by Dr Wynn Owen. I do not say he would probably cope, but I am not satisfied to a high degree of probability that he would not.
The evidence does not satisfy me to the required standard that it is necessary to make a restriction order to adequately protect the community. Even if an order might for other reasons be desirable, it is not an order that I should make.
The application for a restriction order will be dismissed and, should it be necessary, the interim order discharged.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KK
Associate to the Honourable Justice Allanson
16 SEPTEMBER 2022
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