The State of Western Australia v Haworth
[2022] WASC 259
•11 AUGUST 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HAWORTH [2022] WASC 259
CORAM: FORRESTER J
HEARD: 9 AUGUST 2022
DELIVERED : 9 AUGUST 2022
PUBLISHED : 11 AUGUST 2022
FILE NO/S: SO 7 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
AARON JAMES HAWORTH
Accused
Catchwords:
Criminal Law – High risk serious offender – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether an interim supervision order is desirable – Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders made pursuant to s 46(2) of the High Risk Serious Offenders Act 2020 (WA)
Application for interim supervision order adjourned
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Accused | : | T J McCulloch |
Solicitors:
| Applicant | : | State Solicitors Office |
| Accused | : | Legal Aid - Perth - Criminal Law Division |
Case(s) referred to in decision(s):
The State of Western Australia v PAS [2020] WASCA 405
The State of Western Australia v Winder [2021] WASC 65
FORRESTER J:
Introduction
On 7 April 2022, the State of Western Australia applied for a restriction order in respect of Aaron James Haworth under the High Risk Serious Offenders Act 2020 (WA) (the Act).
Mr Haworth was convicted on his plea of guilty of the offence of manslaughter and on 16 January 2014 was sentenced by Jenkins J to a term of 10 years' imprisonment, backdated to 11 August 2012. Mr Haworth's sentence will expire on 10 August 2022.
On 15 June 2021, Mr Haworth was released on parole. That parole was suspended on 6 July 2021 as a result of a relapse into substance abuse. Mr Haworth was re‑released on parole on 25 January 2022. However, that was suspended on 12 April 2022 as a result of breaches of curfew and failure to provide a urinalysis sample.
This is a preliminary hearing in respect of the State's application.
The main purpose of the preliminary hearing is for the court to decide whether there are reasonable grounds for believing that the court might find that Mr Haworth is a high risk serious offender within the meaning of the Act.[1]
[1] High Risk Serious Offenders Act s 46(1).
If I am so satisfied the State seeks interim orders pursuant to s 46(2) of the Act, including orders that Mr Haworth undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application.
The State also submits that I should impose an interim supervision order pursuant to s 58(5) of the Act.
Legal principles
Pursuant to s 35 of the Act, the State has applied for a restriction order to be imposed in relation to Mr Haworth under s 48 of the Act.
Mr Haworth is a serious offender under custodial sentence, as that phrase is defined in s 3 of the Act.
As noted above, pursuant to s 46(1) of the Act, the main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that Mr Haworth 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 the person in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[2]
[2] High Risk Serious Offenders Act, s 7(1).
A 'serious offence' within the meaning of the Act includes the offences of murder, manslaughter, unlawful assault causing death, attempted murder, unlawfully doing grievous bodily harm, with or without a specific intention, and with intent to harm doing an act or making an omission which causes bodily harm or endangers the life, health or safety of another.
A determination that a person is a 'high risk serious offender' requires proof to a high degree of probability. However, at the preliminary hearing stage, the threshold test is lower. At a preliminary hearing, a judge does not need 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 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.[3]
[3] The State of Western Australia v PAS [2020] WASCA 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
The evidence
The State relied upon an affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, which contains Mr Haworth's Western Australian criminal records, transcripts of previous sentencing hearings for other serious and relevant offending, as well as numerous reports, including Community Corrections Officer reports, parole assessment reports, program completion reports, a pre‑sentence report and psychological reports. The most recent psychological report was prepared by Tina Marley, and is dated 14 October 2020.
The index offence
The offence which renders Mr Haworth liable to the operation of the Act (the index offence) is manslaughter.
The facts of that offence, taken from the remarks of the sentencing Judge on 16 January 2014[4], are as follows:
[4] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 22 (The State of Western Australia v Haworth [2014] WASCSR 5).
Mr Haworth and the victim had been in a de facto relationship for approximately 10 years at the time of the victim's death.
The victim was a chronic user of intravenous drugs. She had been on a methadone and other drugs over the years. Mr Haworth's relationship with the victim was characterised by drug use, domestic violence and co‑dependency. There was an element of coercive control as part of their relationship.
On Friday, 10 August 2012, the victim had been out with a friend during the day. She was intoxicated as a result of using a combination of substances. After she returned home that afternoon, Mr Haworth became very angry about the fact that the victim was under the influence of drugs and he brutally assaulted her by punching and kicking the victim in the face, head, chest, back, arms and legs. As a result, the victim became unconscious. Mr Haworth then went out to get his methadone and some cannabis. When Mr Haworth got returned, the victim was still unconscious.
At that point, Mr Haworth called a friend for assistance. The victim was seriously injured. She remained unconscious, and her breathing was laboured. He minimised his conduct to his friend, saying that he had given her a few slaps as he was annoyed at her. Mr Haworth said something to the effect that 'she knew she would get it if she came home in that state.'
It was only much later that night, when the victim's breathing became worse, that Mr Haworth again sought help from his friend and they took her to the hospital. Mr Haworth advised the medical staff, quite untruthfully, that the victim was 'fine two hours ago', that he 'had went and had a sleep and when I woke up I went into the garage and found her like that.' The doctor observed the victim's left eye was black and that she had bruising and marks around her neck which the doctor described as finger marks.
As a result of the assault by Mr Haworth, the victim suffered fractures to her face and skull, swelling and bleeding on the brain, and bruising to her limbs, chest and face. Despite the best efforts of the medical staff, the victim died on 10 September 2012 as a result of pneumonia in association with severe head injuries.
Mr Haworth participated in an electronic record of interview with the police. He initially denied assaulting the victim but then admitted that he did so. Mr Haworth was ultimately convicted of manslaughter on the basis that he did not intend to inflict life‑threatening injuries. He expressed remorse for what he had done.
Other criminal history
The first criminal offence of which Mr Haworth was convicted was manslaughter, a 'serious offence' within the meaning of the Act. The facts, as found by Heenan J for the purpose of sentence,[5] were that on 19 October 1998, Mr Haworth and his girlfriend were out the front of a property in Spearwood when the victim, suspecting them of interfering with property, came out and swung a cricket bat at Mr Haworth. In warding off the blow, Mr Haworth was struck with the bat on his elbow, which was painful. Mr Haworth shouted at the victim, threatening to kill him. He and his girlfriend then ran off to a unit nearby, where they had spent most of the day with friends, one of whom was his eventual co-offender.
[5] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 61 at 65 (The Queen v Haworth and Anor, Supreme Court Indictment 36 of 1999, sentencing transcript 28 October 1999).
Mr Haworth and his co‑offender went to confront the victim. The co‑offender took a knife. Mr Haworth took a paving brick. When they arrived, the victim was still outside with the cricket bat. There was a confrontation during which Mr Haworth threw the brick at the victim, but it did not connect. The co‑offender then stabbed the victim in the chest, causing his death.
While that manslaughter resulted in Mr Haworth's first conviction, it was not Mr Haworth's first violent offence. On 23 August 1998, Mr Haworth and another man went to a house in Coolbellup to confront the victim about an earlier incident. A fight ensued, during which the co‑offender was given a wheel brace, with which he struck the victim, causing him to fall down. The co‑offender continued to strike the victim while he lay on the ground. Meanwhile, Mr Haworth went to a nearby property and took a broomstick. When he returned, his co‑offender was still striking the victim with the wheel brace as he lay on the ground. Mr Haworth then commenced to strike the victim with the broomstick. The assault only ended when a bystander yelled that police were on their way. The victim sustained severe bruising.[6]
[6] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 79 (The Queen v Haworth, District Court Indictment 1307 of 1999, sentencing transcript 14 August 2000).
Mr Haworth was convicted of assault occasioning bodily harm. While this is not a 'serious offence' within the meaning of the Act, the facts are highly consistent with the 1998 manslaughter offence and they are highly relevant to this application.
Mr Haworth was sentenced to 8 years' imprisonment for the manslaughter and received a cumulative term of 3 months' imprisonment for the assault occasioning bodily harm.
After his release, Mr Haworth committed a number of traffic and relatively minor offences until September 2009, when he was convicted of breaching a violence restraining order, criminal damage, three offences of breach of bail, possession of weapons and a housebreaking implement, and an offence contrary to s 304(1) of the Criminal Code (WA). He was sentenced to a Community Based Order, but was later fined for breaching it.[7]
[7] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 6 (Respondent's Western Australian criminal record).
In December 2011, Mr Haworth was dealt with for assault occasioning bodily harm and being armed or pretending to be armed in a way that may cause fear.
The circumstances of that offending were that on 8 January 2011, Mr Haworth went to the house of the victim, who was his sister. He was armed with a knife. The victim's de facto shut the door, which caused Mr Haworth to become agitated, and he started stabbing the door. He then turned to the victim, who was in the front yard, grabbed her by the hair, dragged her to the ground, held the knife to her throat and told her he was going to kill her.
Her de facto came out of the house because he was afraid for the victim. Mr Haworth then punched and wrestled the de facto to the ground, causing him bodily harm.[8]
[8] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 22 (The State of Western Australia v Haworth [2014] WASCSR 5).
For this, Mr Haworth was sentenced to a term of 12 months' imprisonment, suspended for 12 months. On 16 January 2014 he was dealt with for breaching that suspended sentence and ordered to serve the term of 12 months' imprisonment concurrently with the sentence imposed for the index offence (for which he was sentenced on the same date).
Personal circumstances and background
Mr Haworth is 42 years of age. He has three sisters (one older and two younger), three half‑brothers and a half‑sister (all younger). His mother was an Aboriginal woman, but his father reportedly disapproved of her identifying with her people. Mr Haworth's parents' relationship was marred by his father's alcohol abuse and domestic violence, which attracted police attention on occasion. At times, his mother required medical treatment after being assaulted by his father. His parents separated when he was 13 years old, and he remained with his father.
Mr Haworth has in the past expressed views which suggest that he viewed some level of violence in relationships as being acceptable. This can be traced back to his perceptions of his parents' relationship. He recalled his childhood as being good, saying his mother was 'doing her best', but he feared for her when his father was intoxicated. He said his father did not direct his aggression towards the children, but described him and his siblings being hit with an electrical cord. He dismissed that as acceptable discipline, even though it left welts on their legs.
Mr Haworth left school early in Year 10, having formed the view that education had little value. He left home at the age of 14, because he preferred to live with his peers. During his teens and early adulthood he associated with an antisocial peer group, and himself engaged in antisocial behaviour. In later years, he also formed the view that work had limited benefits, and in 2013 it was said Mr Haworth preferred not to work for an income and was reliant on Centrelink benefits. [9]
[9] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 162 (Psychological Report for Court dated 11 November 2013).
His relationship with the victim was only his second significant relationship, his first having been with a same aged girl in his mid‑teens, which lasted 3 – 4 years. He met the victim of the index offence shortly after being released from a lengthy period in custody.[10] Their life was unstable, involved drug use by both him and his partner, and the relationship was marked by domestic violence.[11] At the date of the index offence, he and the victim had been evicted, and they were effectively squatting.[12]
[10] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 162 (Psychological Report for Court dated 11 November 2013).
[11] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 22 (The State of Western Australia v Haworth [2014] WASCSR 5).
[12] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 156 (Pre-sentence report dated 18 November 2013).
Mr Haworth has a long history of substance abuse. Jenkins J found in 2014 that it seemed he would use any available substance, although his preference appeared to be for sedating drugs which enable him to shut out his problems.[13] While he was on the methadone program at the time of the index offence, he was also using cannabis and abusing prescription drugs.[14]
Reports
[13] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 22 (The State of Western Australia v Haworth [2014] WASCSR 5).
[14] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 156 (Pre-sentence report dated 18 November 2013).
The author of the psychological report in 2013 suggested that Mr Haworth tended to be aggressive and hostile with others, and may get personal pleasure and satisfaction from the negative consequences of his interactions with others. His interpersonal style appeared to be pervasively combative and he tended towards antagonism and domination of others.[15]
[15] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 162 (Psychological Report for Court dated 11 November 2013).
Mr Haworth was assessed as having a high risk of re‑offending violently and within an intimate relationship. He had a number of treatment needs related to substance abuse, general aggression and beliefs and attitudes relating to intimate partner violence.[16]
[16] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 162 (Psychological Report for Court dated 11 November 2013).
Mr Haworth participated in the Think First Program (TFP) in 2015, the Pathways Program in 2017, the Violent Offending Treatment Program (VOTP) in 2018 and the Stopping Family Violence Program (SFVP) between 2018 and 2019.[17]
[17] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 152, 145, 135, 127 (Completion Reports).
The completion reports for these programs demonstrate that Mr Haworth made treatment gains in each case, although in some cases more limited than others. Overall, Mr Haworth's primary risk and treatment needs relate to his use of violent behaviours, particularly in intimate relationships and poor coping strategies, which increases his use of illicit substances as a coping mechanism. This in turn exacerbates his violent behaviours and lack of consequential thinking.[18]
[18] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 114 (Parole Assessment dated 21 October 2020).
The Parole Assessment Report found that he had more recently displayed a shift in thinking in these areas, and his behaviour in custody had improved significantly since completing his programs, with reduced displays of aggressive and conflictual behaviour.[19]
[19] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 114 (Parole Assessment dated 21 October 2020).
Mr Haworth spoke most positively about the Pathways Program, noting that it was through this therapeutic context that he first became aware how his developmental history had impacted on him, and the fact that he used drugs as a maladaptive coping strategy. He identified this as an epiphany that had changed his conceptualisation of himself.
The prison counsellor/psychologist assessed that in the 20 sessions Mr Haworth had attended with her since 2016, he had made considerable gains in his ability to tolerate stress and other difficult emotions, and changes in his conceptualisation of antisocial behaviour and aggression. She suggested that he required additional treatment on release.[20]
[20] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 118 (Psychological Report for Prisoners Review Board dated 14 October 2020).
In the Psychological Report for the Prisoners Review Board dated 14 October 2020, the psychologist was of the view that Mr Haworth would require considerable support on release to implement strategies gained in treatment, and integrate any changes in his thinking, attitudes and behaviour. His history of antisocial behaviour and personality factors would likely present as ongoing factors which would require close risk monitoring and management.
The psychologist was of the view that Mr Haworth's risk of violent offending, which was assessed as being high in 2014, was now in the 'medium' risk range. He was suggested to be in a preparation state of change, and to have demonstrated relatively consistent improvements in his work ethic during his period of imprisonment. This was assessed in 2014 as a notable risk factor.
Mr Haworth's risk of intimate partner violence was not reassessed because of his long period in prison and the absence of an intimate relationship for some time.
The risk pathway most likely for Mr Haworth is that he will relapse into drug abuse because of boredom, poor coping, or adverse peer relationships.
He was assessed as being unlikely to make additional gains in custody. Psychological intervention on his release was recommended, as was engagement with a drug agency. Urinalysis and applying supervision sessions to maintain Mr Haworth's motivation for avoiding antisocial associations and monitoring and supporting his capacity to manage stress was suggested, as was close monitoring of any new intimate relationships.[21]
[21] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 118 (Psychological Report for Prisoners Review Board dated 14 October 2020).
Mr Haworth was initially released on parole on 15 June 2021. However, his parole was suspended on 6 July 2021 as a result of his provision of an invalid urine sample on 28 June 2021 and a positive urinalysis result for cannabis on 30 June 2021. He was avoidant when asked about the extent of his cannabis use, but admitted using it. Among other things, he attributed his use to being overwhelmed with being in the community, an emotional response to his offending on release, and running out of medication.[22]
[22] Affidavit of Kathryn Emma Ellson affirmed on 7 April 2022, 98 (Community Corrections Officer's Review Report dated 1 September 2021.
Mr Haworth's re-release on parole was recommended, and he was released on 25 January 2022 with a condition that he abide by an electronically monitored curfew to remain at his home address between 8.00 pm and 5.00 am each and every night unless otherwise permitted by his CCO. However, he breached that parole order by failing to supply a urinalysis sample on one occasion and breaching his curfew on a small number of occasions. While this was explained to some extent in submissions by Mr Haworth's counsel, Mr Haworth's compliance, or lack of it, is concerning. As a result, his parole was suspended on 12 April 2022.
On 3 August 2022 the Prisoners Review Board made a post‑sentence supervision order (PSSO), of 2 years' duration, to commence on 10 August 2022.
Assessment
Mr Haworth has a significant history of violent offending, marked not only by its frequency, but its severity, with two people having lost their lives in confrontations initiated by Mr Haworth. While his violent behaviour is primarily in the context of his close relationships, it is not exclusively so. He has poor coping strategies, and resorts to using of illicit substances as a coping mechanism, which in turn exacerbates his violent behaviours and lack of consequential thinking skills. His recent difficulties with his release on parole demonstrate that he remains at real risk of relapse.
The combination of the significant risk that Mr Haworth may lapse into previous behaviours, lifestyle and relationships, together with the severity of the potential outcomes of re‑offending, leads me to be satisfied that there are reasonable grounds to believe that a court might find that Mr Haworth is a high risk serious offender.
Interim Supervision Order
Mr Haworth has made sufficient gains in custodial treatment programs that it is considered that there is little more which can be gained by him in custody, and that supervision and treatment in the community is the next step. However, the fact that within three weeks of his release in June 2021, he turned to cannabis use as a result of feeling overwhelmed and to cope with emotional turmoil demonstrates a need for that treatment and supervision to be very close.
It is noted that on his more recent release on parole he did not return a positive urinalysis result and I am not prepared to infer that he did engage in drug use in that period. However, his behaviours still demonstrate a risk.
The State has sought that an interim supervision order be imposed in relation to Mr Haworth, rather than an interim detention order.
As indicated above, in the absence of such an order, Mr Haworth will be subject to a PSSO, which includes conditions that Mr Haworth is:
(1) to report to adult community corrections within 72 hours of his release;
(2) comply with the lawful orders or directions of any community corrections officer;
(3) to have no direct or indirect contact with the deceased victim's family;
(4) not to use or be in possession of any illicit drug including cannabis;
(5) to attend random urinalysis for all illicit substances as directed by the community corrections officer and provide a valid sample;
(6) not to consume alcohol;
(7) to submit to random breath testing as required by police;
(8) to attend programmes and counselling as directed;
(9) not to associate with nominees, associates and members of Outlaw Motorcycle Gangs;
(10) to advise his community corrections officer of his residential address and not change that address without the prior approval of the community corrections officer;
(11) to notify a community corrections officer of any change of address or place of employment within 2 clear working days after the change
An interim supervision would impose additional obligations on Mr Haworth. However, the majority of the conditions required to protect the community are included in the PSSO.
There are two additional conditions which would be imposed under an interim supervision order but to which Mr Haworth is not subject under the PSSO. They are the requirements that Mr Haworth be subject to electronic monitoring and that he be subject to a curfew.
Electronic monitoring can be a useful monitoring and prevention tool in the management of many offenders in the community. However, in the case of Mr Haworth, there is no suggestion that there are particular areas or zones from which he should be excluded, or where his risk of re-offending is greater than others. His risk factors are associating with anti-social peers and substance abuse and he often engages is that in a residential environment. Electronic monitoring has no utility in addressing that risk and is really only useful for detecting or providing additional proof as to where he was at a particular time after the event.
While I do accept that electronic monitoring does provide an additional means of surveillance, in my view, it is not necessary in the case of Mr Haworth to provide the community protection required.
In relation to the curfew, Mr Haworth's offending was not limited to night-time offending and, indeed, the majority of it appears to have occurred outside the hours when a curfew would restrict his movement. In my view, a curfew would have little meaningful impact on the protection of the community in this case.
However, I recognise there is some utility in a curfew in that it would provide structure to Mr Haworth and to that extent, it would aid in his rehabilitation and impact on the protection of the community.
In determining whether to impose an interim supervision order, I am also conscious of the lengthy period the State presently requires to obtain reports from qualified experts for the purposes of a final hearing. As a result of those delays, the matter has been listed for March 2023. I accept that there are many factors which explain the delay, but it is very lengthy. It does weigh against the making of an interim supervision order.
Finally, the making of an interim supervision order would result in the PSSO being cancelled. This means that if Mr Haworth does demonstrate the potential the psychologist sees in him and is not declared to be a high risk serious offender after the final hearing, he would not be subject to any restrictions, supervision or program requirements in the community. That would be a highly undesirable outcome in this case, as everything points to Mr Haworth needing considerable support in the community if he is going to succeed on release.
The alternative is that Mr Haworth would have the opportunity to demonstrate that he can remain substance free and progress his rehabilitation in the community while subject to the PSSO and while he awaits the final hearing.
An adjournment of the State's application for an interim supervision order enables the court to impose such an order at any time that Mr Haworth requires greater restriction or supervision.
Accordingly, I order that the State's application for an interim supervision order be adjourned to 30 September 2022, when I will seek a report as to his progress on the PSSO. The final hearing is listed on 9 March 2023.
Orders are otherwise made in terms of the State's Minute of Proposed Orders dated 20 July 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Judge
11 AUGUST 2022
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