The State of Western Australia v Harvey
[2022] WASC 67
•25 FEBRUARY 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HARVEY [2022] WASC 67
CORAM: HALL J
HEARD: 18 FEBRUARY 2022
DELIVERED : 18 FEBRUARY 2022
PUBLISHED : 25 FEBRUARY 2022
FILE NO/S: SO 21 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRADLEY WAYNE HARVEY
Accused
Catchwords:
High Risk Serious Offenders Act 2020 - Restriction order application - Preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Whether an interim supervision order should be made pending determination of the application
Legislation:
High Risk Serious Offenders Act 2020
Result:
Orders made pursuant to s 46(2)
Interim supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr D S McDonnell |
| Accused | : | Ms A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Accused | : | Legal Aid (WA) |
Cases referred to in decision:
Harvey v State of Western Australia [2015] WASCA 250
State of Western Australia v Harvey [2014] WASCSR 228
HALL J:
(This judgment was delivered extemporaneously on 18 February 2022 and has been edited from the transcript.)
Introduction
On 6 December 2021, the State of Western Australia applied for a restriction order in respect of the respondent, Bradley Wayne Harvey, 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:
1.a restriction order be imposed under s 48;
2.the respondent undergo examination by a psychiatrist and qualified psychologist for the purposes of preparing reports;
3.the respondent is subject to an interim supervision order under the Act until the final determination of the application.
For reasons that follow, I am satisfied that the requirement of s 46 are met. I am also satisfied that it is desirable, for the protection of the community, that an interim supervision order be imposed pending the final determination of the application. Neither of these positions was accepted by the respondent but they are the conclusions I have reached after considering the evidence.
The law
The main purpose of a preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing 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 that 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 manslaughter or unlawful killing contrary to s 280 of the Criminal Code.
I do not have to be satisfied that a restriction order will be made. It is sufficient at this stage of proceedings if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. Further, a belief is an inclination of mind towards accenting 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 on the affidavit of Daniel Sean McDonnell, affirmed on 6 December 2021, which annexes the respondent's criminal history dating back to 1992. This includes details of the respondent's past offending and several previous reports in relation to treatment. Those reports include a treatment assessment report and an individual management plan, the most recent of which is dated 15 March 2021.
The State also relies upon affidavits of Nadine Minnock, affirmed on 16 February 2022, and Heather Applin, affirmed on 9 February 2022. These affidavits relate to the respondent's proposed accommodation on release. In short, he proposes to reside with his sister and her family. The sister is willing, but her home is in an exclusion zone that had been recommended by the Victim Mediation Unit. I will return to that issue later.
The respondent is now 49 years of age. He has a history of violent offending. His offending has included offences of assault occasioning bodily harm, assault, unlawful damage and manslaughter. The only one of those offences that falls within the category of a serious offence within the Act is that of manslaughter.
The most recent offence was that of manslaughter, which the respondent committed in 2012. The facts of that offence are that the respondent lured the victim, his ex‑partner, to his unit with the intention of assaulting and robbing her, as it was alleged that she owed him some money. When the victim attended the property, the respondent punched her a number of times to the head before stabbing her to the abdomen and stomping on her head a number of times. He later returned, wrapped her body in a tarpaulin and placed her in his vehicle before leaving the area and burying her body in bushland.
The respondent was originally charged with murder. After a trial in the Supreme Court, he was acquitted of murder but convicted of manslaughter. He was sentenced for that offence to 10 years' imprisonment. An appeal against the sentence was dismissed and the offence was described in the Court of Appeal in the following terms:
This was a serious case of manslaughter involving a planned physical attack on an unsuspecting victim. The deceased was described in evidence as being slightly built. The attack upon her was sustained and vicious. It involved the use of hands, feet and a weapon. The motivation was anger regarding their failed relationship and an unpaid debt The appellant recruited (another person) to assist him, both in the arrangements to lure the deceased to the place where she was attacked and then to dispose of her body. The disposal was an attempt to conceal the fact that the appellant had killed the deceased. The deceased had young children and her death had a devastating effect on them and on her mother and sister.[1]
[1] Harvey v State of Western Australia [2015] WASCA 250, [69] (Hall J, Buss P and Mazza JA agreeing).
Although there is no formal risk assessment, the sentencing remarks indicate that substance abuse was a significant factor. In his sentencing remarks, Corboy J said:
I've also accepted and taken into account in your favour submissions made by Mr Freitag regarding your prospect of rehabilitation and the relatively low risk of you reoffending by committing of violence in the future. The submissions were broadly consistent with your criminal history, although the risk of you not seriously offending in the future will likely depend on you not relapsing into substance abuse.[2]
Plainly, his Honour was not suggesting that the respondent would necessarily be a relatively low risk of a reoffending. Indeed, he said that any risk depended upon whether or not the respondent relapsed into substance abuse.
[2] State of Western Australia v Harvey [2014] WASCSR 228, [49] (Corboy J).
The respondent has participated in some programs, although he has not participated in programs that address substance abuse. Further, he has repeatedly denied responsibility for the manslaughter offence, claiming that the victim died of a drug overdose.
The respondent, in programs, has portrayed himself as a victim of circumstance. He continues to minimise the offence's severity and he has not demonstrated any insight or victim empathy. He has been assessed as having treatment needs relating to his lack of insight, his aggression in interpersonal relationships, his lack of emotional management and his lack of empathy. He presented in the Stopping Family Violence program as argumentative and ambivalent about addressing his treatment needs.[3] The report on that program concluded that he had made no significant shifts in the program.[4]
[3] Affidavit of Daniel Sean McDonnell affirmed on 6 December 2021, annexure U (State Parole Assessment prepared by Laura Murray dated 17 February 2020).
[4] Affidavit of Daniel Sean McDonnell affirmed on 6 December 2021, annexure S (Stopping Family Violence Program Completion Report dated 28 July 2017).
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 offending. Although the risk of reoffending has not been assessed in a formal fashion at this stage, there are reasonable grounds for believing that the risk is a real one. This is because the respondent:
a) has a history of violent offending;
b) has had substance abuse issues in the past;
c) has not adequately addresses those issues; and
d) continues to deny responsibility for his last, serious, offence.
I have taken into account that some of the factors referred to in s 7 of the Act may not arise in respect of the respondent. My attention was drawn to subsection 7(3)(c) of the Act and the issue of whether there was a propensity to commit serious offences. I accept that it is not possible to draw the conclusion that there is such a propensity in circumstances where the respondent has committed only one offence of that nature. However, that offence has to be seen in the context of his previous offending history, which has included other offences of violence. Furthermore, the existence of a propensity to commit serious offences is but one of the factors referred to in s 7(3). Even if it were the case that there is a lack of propensity to commit serious offences, I do not consider that a conclusion that the s 46 requirements are not met is justified.
I have also considered whether there has been a pattern of offending. Insofar as there is a pattern, it can only be broadly stated as indicating a tendency to violence. There is not, on the information available to me, a basis for drawing a conclusion that there is strictly a pattern with respect to the way the respondent commits offences.
I do accept that he has participated in rehabilitation programs. However, it must be said that his response to those programs has been mixed and has resulted in some negative comments from those who have conducted them.[5]
[5] See e.g. affidavit of Daniel Sean McDonnell affirmed on 6 December 2021, annexure S (Stopping Family Violence Program Completion Report dated 28 July 2017).
On the basis of the respondent's offending history, the previous assessments of his reoffending risk and his response to treatment programs, there are, in my view, reasonable grounds to believe that a court might find that he is a high risk serious offender. I will therefore make orders for the hearing of the restriction order application.
Interim supervision order
The State further submits that I should make an interim supervision order pursuant to s 58(5) of the Act. The respondent's counsel submits that such an order is not required, because the respondent will be the subject of a post-sentence supervision order (PSSO) and the provisions of that order are adequate to ensure protection of the community upon his release.
The PSSO does contain conditions which are designed to ensure that the respondent:
·does not contact the manslaughter victim's family;
·does not have contact with a co-offender;
·does not use illicit drugs;
·attends for urinalysis;
·does not consume alcohol;
·does not enter licensed premises;
·submits to random breath testing;
·attends programs and counselling as required; and
·advises his corrections officer of any change of address.
Those conditions could address some of the risk factors that I have referred to. In my view, however, the PSSO alone is insufficient to ensure the appropriate degree of protection of the community. An interim supervision order allows for additional conditions, such as a curfew and GPS monitoring. GPS monitoring is particularly relevant in this case because there is an issue with the location of the respondent's sister's home. It is within an area that was proposed by the Victim Mediation Unit as an exclusion zone because it is an area in which the victim's family lives. I do note that that exclusion zone is very large and it may well be that it can be narrowed.
In those circumstances, it seems to me that GPS monitoring would provide a way of ensuring adequate protection of the victim's family by creating a smaller, discrete protection zone that could be electronically monitored whilst allowing the respondent to reside at the address of his sister. This is a further reason why a supervision order is appropriate in the circumstances of this case.
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
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