The State of Western Australia v Hill - [2023] WASC 284

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HILL [2023] WASC 284
CORAM:   QUINLAN CJ
HEARD:   28 JULY 2023
DELIVERED          :   28 JULY 2023
PUBLISHED           :   28 JULY 2023
FILE NO/S:   SO 7 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

MARK CHARLES HILL
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 detention order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46(2) made
Interim detention order made

Category: B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	D J McKenzie

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	S A Auburn

Cases referred to in decision:

The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 28 July 2023 and has been edited from the transcript.)

Introduction

On 6 July 2023, the State of Western Australia applied for a restriction order in respect of Mark Charles Hill 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 Hill is a high risk serious offender within the meaning of the Act.
Mr Hill's counsel conceded that the requirements of the Act were met and in the circumstances, I am satisfied that that concession was properly made and that the requirements of s 46 are met.
I am also satisfied that it is necessary and desirable for the protection of the community that an interim detention order be imposed, pending the final determination of the application. Mr Hill's counsel accepted that that was the only appropriate outcome.
Mr Hill also briefly addressed the court himself to submit that a post‑sentence supervision order in relation to him was adequate. I will come to my reasons for being satisfied that that is not the case, at the end of these reasons.

The law

Pursuant to s 46 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 Hill 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.
In the context of this application, a 'serious offence' within the meaning of the Act relevantly includes manslaughter, contrary to s 280 of the Criminal Code, and stalking, contrary to s 338E of the Criminal Code.
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, and 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

In support of its application, the State relied upon the affidavit of Brent Douglas Meertens affirmed on 6 July 2023. Mr Meertens' affidavit contains Mr Hill's criminal history, which dates back to 1979, as well as several reports in relation to him. Those reports include pre‑sentence reports, psychological reports, a psychiatric report, program completion reports, parole assessment reports, parole review reports, an individual management plan and post‑sentence supervision order report.
I have also received an affidavit from Jessica Cohen dated 25 July 2023.
I have considered all of the contents of those affidavits; I need not set them out in detail. Pertinent features are as follows.
Mr Hill has a long criminal history which includes manslaughter; stalking; stalking in circumstances of aggravation; assault occasioning bodily harm in circumstances of aggravation; offensive and disorderly conduct on an aircraft; criminal damage; multiple breaches of violence restraining orders; breach of a conditional release order; breach of a community based order; multiple offences of obstructing public officers; and burglary or attempted burglary. His offending also includes numerous traffic offences.
Mr Hill's criminal history includes convictions for three serious offences within the meaning of the Act. Those serious offences are manslaughter; aggravated stalking with intent to intimidate; and stalking.
Mr Hill is currently serving a term of 11 years imprisonment for manslaughter. That term expires on 1 August this year. The circumstances of the serious offending are as follows.

Manslaughter – s 280 Criminal Code

In relation to the manslaughter offence, Mr Hill had previously been in a domestic relationship with the victim, who had obtained a violence restraining order against him. On 7 June 2012, Mr Hill was released from custody after serving a sentence in relation to another offence. Shortly after Mr Hill's release, he contacted the victim. The victim was protected by a violence restraining order at the time but was content to re‑establish contact with Mr Hill.
Between 31 July 2012 and 1 August 2012 in the early hours, Mr Hill attended the victim's property. There was apparently an altercation there and Mr Hill assaulted the deceased.
She suffered bruising to her left and right side of her face; bruising over the left jaw, with areas of lineal blanching and underlying bruising extending to the neck of the throat and tongue and near the hyoid bone; bruising and swelling around the mouth; bruising and swelling of the preorbital area on the right, extending to the nasal bridge and lateral aspect of the right upper nose; bruising and swelling of the inner aspect of the left eyelids; bruising of the right upper arm consistent with finger pad bruising; abrasions and bruising on the left and right arm; bruising to the middle aspect of the left side of the deceased's back and a smaller area of bruising over the right mid‑lower flank; bruising to the middle aspect of the left side of the abdomen and the groin area and a left side fracture of the ninth rib; bruising to the inner aspect of the chest between the fourth and fifth rib; bruising on the under surface of the scalp and bruising on the left and right sides of the back of the scalp; and a traumatic vertebral column area consistent with sudden rotational injury of the spine.
The deceased suffered, therefore, multiple blunt force impacts, a concussive head injury. She died a short time later.
Following his conviction for manslaughter, Mr Hill was sentenced to 11 years imprisonment. He denied at trial, and has consistently denied ever since, that he committed the offence.

Aggravated stalking with intent to intimidate – s 338E(1) Criminal Code

The next serious offence for which he was convicted, aggravated stalking with intent to intimidate, Mr Hill and the victim were in a domestic relationship. This was a different victim to the victim of his manslaughter. On 22 August 2010, Mr Hill violently assaulted the victim and a violence restraining order was obtained against him.
In March to June 2011, Mr Hill breached the violence restraining order over 40 times. Upon release from prison, Mr Hill used another person's phone to call the victim on six separate occasions on 13 July 2012. The accused left a series of voice messages which left the victim feeling scared and concerned for her safety. This was in breach of the violence restraining order the victim had against Mr Hill. Mr Hill was sentenced to 6 months imprisonment concurrent with the term of imprisonment he was serving at the time.

Stalking – s 338E(1) Criminal Code

The stalking offence, Mr Hill had some sort of relationship with the victim at the time of that offending. On 19 April 2006, Mr Hill left several threatening voice messages, it appears, under the belief that he was owed money. He later attended the victim's address and entered via an unlocked door. He engaged in what the sentencing magistrate considered to be 'bizarre' and 'scary' behaviour. He was sentenced to a 12‑month community based order in relation to that offence.

Unlawful assault causing bodily harm in circumstances of aggravation

I will mention one other offence, which is not a serious offence for the purposes of the Act but which is relevant to the application and relevant to Mr Hill's pattern of offending. That is a conviction for unlawful assault causing bodily harm in circumstances of aggravation which was committed on 22 August 2010. That is almost two years prior to his conviction for manslaughter.
On that occasion, Mr Hill assaulted the complainant with whom he had been in a domestic relationship. This was the same complainant in relation to which the aggravated stalking with intent to intimidate charge arises.
He became angry with her for getting out of the bed after he got in, grabbed her upper arms, pushing her over, and caused her to fall down, hitting the right side of her head, face, and shoulder. He grabbed her by the front of her shirt, picked her up, and threw her towards the dining room door. He approached her while she was lying on the floor and proceeded to kick her in the stomach, continue with punches to the head, face, and neck. He sat on top of her with his left hand around her neck, saying, 'It's okay [victim's name]. You're just going to die a slow death. You're going to choke on your own blood.'
The victim in that case suffered two fractures to her right eye socket, fractured her right collarbone, abrasions to the bridge of her nose, multiple facial bruising, and bruising to the neck and upper body. She was 61 years old at the time. Significantly, in relation to that offence, Mr Hill was interviewed for a psychological report for the purposes of sentencing by Ms Romana Lee. She reported this:
According to Mr Hill, he recalled 'slapping her with an open hand' and that he would 'never punch a woman'. Mr Hill stated he was shocked by the extent of the injuries and the only explanation he could think of was that she was a diminutive woman and he was a bigger person with a past history of truck driving and labouring. Thus although he may have only 'slapped' the victim, he did not know his own strength and there were unintended injuries.

Risk assessment and treatment

In relation to risk assessment and treatment, Mr Hill has been the subject of a number of reports over the past 13 years. Those reports, as a whole, suggest that not only does Mr Hill have an entrenched and disordered attitude towards violence against women but has no insight in relation to his capacity for such violence.
The report that I have just referred to, of Ms Lee, was dated 4 November 2010. Ms Lee found Mr Hill experienced an extremely severe level of anxiety and depression and a history of excessive alcohol consumption. She found that his offending was strongly associated with alcohol misuse. She said, at page 4 of the report:
He has held a strong belief that when he has consumed alcohol, he experiences behavioural changes such as having the Dutch courage to 'tell people off', being sleazy towards females and 'mouthing off'. As such, his negative behaviours have often been explained away by his alcohol use and this externalised locus of control has meant that he had failed to take personal responsibility for his behaviours and to action change.
Following that offence, Mr Hills completed the Families Without Fear program in 2011. He apparently participated well in sessions but was observed minimising, denying and justifying his account of the incident, which demonstrated a lack of insight into the consequences of his violence for his partner.
Following his reoffending after release, Mr Hill was the subject of the pre-sentence report, dated 5 July 2011, in relation to his numerous breaches of a violence restraining order. The report author found that, 'Mr Hill has not demonstrated any strategies to reduce his alcohol consumption and thereby his risk of reoffending.'
In preparation for being sentenced for manslaughter, a pre-sentence report, psychological report and psychiatric report were prepared.
The pre-sentence report, dated 14 January 2014, reported that Mr Hill had been subject to four previous community supervision orders, of which he had completed three and breached the other. It was reported that Mr Hill continued to minimise his offending behaviour and appeared to justify his behaviour by problematic alcohol abuse. The author noted that, 'he has a pattern of violence towards female partners and his offending has been consistent and continued to escalate in seriousness.'
The psychological report from Ms Mary-Anne Martin, dated 27 January 2014, is instructive. Ms Martin reported that Mr Hill appears to have mental health problems, including depression, anger, disinhibition and possible manic behaviours. He has a personality style marked by a lack of empathy and remorse, poor behaviour controls, impulsivity and a history of disregard for the law. He reported drinking alcohol on the night of the offence and has a history of problem alcohol use.
Ms Martin noted that Mr Hill had completed a family violence program in the past. He did not appear to have made any gains from the program. She considered his prognosis for change was poor.
Significantly, Ms Martin said, at page 5 of her report, following the completion of the Millon Clinical Multiaxial Inventory-III, the following:
Mr Hill demonstrates a number of features consistent with a psychopathic personality. The PCL-R, which uses both historical and dynamic data, is widely regarded as the most accurate measurement for measuring psychopathy.
Psychopathy is measured using information obtained from interviews and file information. The PCL-R has an underlying two factor structure: Factor 1 consisting of items core to the interpersonal features of psychopathy egocentricity; manipulativeness; shallow emotions; deceptiveness; lack of empathy, remorse or guilt; and Factor 2 relating to antisocial or criminal lifestyle. … Mr Hill scored at the 96th percentile and factor 1, giving weight to a diagnosis of psychopathy. Eighty-two per cent of Canadian prisoners scored lower than did Mr Hill on this instrument. Mr Hill's score on the PCLR met the diagnostic cut-off for psychopathy. Given Mr Hill's overall PCLR results, his high PCLR factor 1 score, and his offence history, I am of the opinion that Mr Hill meets the diagnostic criteria for psychopathy and that this has a relevance to his future risk of violence.
The psychiatric report prepared by Dr Stephen Patchett dated 15 February 2014 found no evidence for major mental illness. Dr Patchett noted that Mr Hill had a history of depressive order, for which he appears to have received appropriate treatment, and that Mr Hill's 'predominant difficulties' are in the area of personality dysfunction. He said Mr Hill's extensive history of heavy and sustained use of alcohol was also noted and had implications in his offending.
During Mr Hill's current term of imprisonment, he completed the Think First, Pathways and Stopping Family Violence programs. He attended the sessions in each program but continued to make limited gains, deny responsibility and minimise his offending. He was enrolled in the Medium Intensity Program to further address his treatment needs, problem solving and perspective taking. He attended sixteen and a half out of 20 registered sessions of the 53 sessions before withdrawing due to medical issues. A parole assessment report completed on 28 June 2021 that recommended Mr Hill not be released said:
Mr Hill's entrenched and outstanding treatment needs; his previous court history, which includes serious violent offending, numerous breaches of restraining orders and weapon possession; limited gains made from three intensive programs; and he does not present with a viable parole plan; his risk to the community is considered to be elevated without appropriate long-term intervention.
Of note, Mr Hill's threatening behaviour had continued within the prison setting with other prisoners, prisons staff, and in 2019 he attempted to send his brother abusive written threatening letters
Most recently, a post‑sentence supervision order report dated 12 June 2023 outlined Mr Hill's plans for release. He explained that he currently has a mobile home on a friend's property, which he intended to reside in a long‑term caravan park in the Peel region. He has minimal supports in the community and instead hoped to 'meet new acquaintances' at the caravan park. As I indicated, the Prisoners Review Board issued a post‑sentence supervision order in relation to Mr Hill on 29 June 2023.
Turning to my assessment.

Assessment

I am satisfied there are reasonable grounds to believe the court might find Mr Hill to be a high risk serious offender. Mr Hill's offending history shows a pattern of offending which has escalated over time. This pattern of increasing violence has and continues to be directed towards women, particularly older women. Ms Martin described Mr Hill as presenting 'as predatory in selecting vulnerable older women as partners'. There is ample evidence to support that assessment.
Mr Hill appears never to have accepted his capacity for obvious violence against women and the causes of it. While according to the psychological and psychiatric reports Mr Hill has experienced some mental health issues such as depression, his issues stem from his personality, exacerbated by an extensive history of alcohol abuse.
At least one assessment of his personality assesses him to meet the diagnostic criteria for psychopathy. While Mr Hill has participated in several programs to address his behaviour while he has been in prison and has respectfully participated, he has failed to make significant gains and continues to demonstrate a lack of insight into his offending. This is illustrated in his continued minimisation, justification, and denial of his offending.
In my assessment, there is no evidence to suggest that Mr Hill is less likely to offend now then at the time he entered prison. On the contrary, he has continued to exhibit inappropriate behaviour. On the basis of his offending history, his ongoing attitude towards his offending and his unmet treatment needs, I am satisfied there are 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 detention order

Turning then to the application for the detention order, the State submits that I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act. Mr Hill's counsel accepted that in the circumstances that was the appropriate order. I am, of course, not bound to accept that concession and must be positively satisfied that a detention order is appropriate. In my view, this is one of those cases where the protection of the community requires that Mr Hill be held in detention pending the full assessment required by the Act.
Mr Hill has already killed one intimate partner by beating her to death and has brutally beat another partner. He has a significant history of violence and has shown an inability to take responsibility for his actions. His pattern of offending gives rise to concerns as to the safety of the community and the need for very close supervision.

In the present case, the only accommodation proposed upon his release is in a caravan park in a regional area of Western Australia. The evidence before me is to the effect that the caravan park would require Mr Hill to use the communal toilets and shower facilities. The caravan park is some 34 km from the nearest town.
In all of the circumstances, I am satisfied that that would be quite an inappropriate place for Mr Hill to reside for the following reasons.
A caravan park of its nature will have an itinerant population and, insofar as there are permanent residents of the caravan park, it may well also include vulnerable members of the community. The location of the caravan park would require use of communal facilities and the distance from the caravan park to the nearest town and therefore the authorities, in my view, presents a particular risk.
The use of alcohol has been identified as a significant contributor to Mr Hill's offending. On the basis of the material available to me, I am not satisfied that alcohol could completely explain such vicious offending as that committed by Mr Hill in the past. Nevertheless, as a catalyst for his offending, it would be essential that Mr Hill was subject to strict supervision in relation to the use of alcohol, which in my view would require regular testing, and not merely intermittent testing. Likewise, he should be in a location in which proper and immediate supervision is able to be undertaken.
For those reasons, I am satisfied that an interim supervision order would not adequately protect the community from the risks that I have identified, nor would the post-sentence supervision order imposed by the Prisoners Review Board. Indeed, insofar as an interim supervision order would not sufficiently protect the community, the conclusion applies with even greater force than a post-sentence supervision order would not.
For those reasons, in my view, the circumstances are such that adequate protection of the community requires that Mr Hill remain in detention until a complete assessment can be done of his risk. That does not prevent an application being made for an interim supervision order at a later time, should those advising Mr Hill be able to gather further evidence or make other arrangements for a potential release.
As it is, however, I will make orders in accordance with the orders filed by the State, and in particular that the hearing of the restriction order application pursuant to s 48 of the Act be heard on 19 January 2024.
There is liberty to apply generally, which would enable the application for an interim supervision order to be made. I would also note that the date of the restriction order application – that is, 19 January 2024 – has been selected due to the anticipated time it will take for the reports to be prepared by the two qualified experts. As I noted at the hearing of the application, this is a significant delay until the restriction order application is to be heard.
In the event that the qualified experts are able to provide their reports earlier than as is anticipated, in light of the fact that Mr Hill will be subject to an interim detention order, the parties should apply, pursuant to the liberty to apply, to bring forward the restriction order application to an earlier date. The court will accommodate an earlier hearing date.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Associate to the Honourable Chief Justice Quinlan
28 JULY 2023