The State of Western Australia v James-Ind [No 3]
[2024] WASC 406
•31 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JAMES-IND [No 3] [2024] WASC 406
CORAM: LEMONIS J
HEARD: 25 OCTOBER 2024
DELIVERED : 25 OCTOBER 2024
PUBLISHED : 31 OCTOBER 2024
FILE NO/S: SO 5 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ROBERT ALAN JAMES-IND
Respondent
Catchwords:
Application for a restriction order under the High Risk Serious Offenders Act 2020 (WA) - Respondent is currently the subject of a supervision order under that Act - Consideration of whether the State has met the requisite criteria for the Court to fix a date for hearing of the State's application - Consideration of whether the existing supervision order should continue until final determination of the State's application
Legislation:
Dangerous Serious Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Criteria under s 46 of the High Risk Serious Offenders Act 2020 (WA) is met
Date set for hearing of application and ancillary orders made for the provision of expert evidence at that hearing
Order made that the existing supervision order continue until final determination of these proceedings
Representation:
Counsel:
| Applicant | : | Ms T Loo |
| Respondent | : | Mr D McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v James-Ind [2019] WASC 176
The State of Western Australia v James-Ind [No 2] [2022] WASC 343
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
LEMONIS J:
(This judgment was delivered extemporaneously and has been edited to include case citations and to correct matters of language).
On 26 August 2024, the State of Western Australia applied for a restriction order in respect of Mr Robert Alan James-Ind under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
Section 46 of the HRSO Act requires that there be a preliminary hearing in respect of the State's application, which is the hearing listed before me today. The State has provided helpful written submissions for the purposes of today's hearing.
By way of initial background, on 13 May 2019, McGrath J declared Mr James‑Ind to be a 'Dangerous Sexual Offender' under the now‑repealed Dangerous Sexual Offenders Act 2006 (WA).[1] McGrath J also determined Mr James‑Ind's risk could be adequately managed in the community, and ordered that he be subject to a supervision order for 5 years commencing on 4 June 2019.
[1] The State of Western Australia v James-Ind [2019] WASC 176 (James-Ind No 1).
This supervision order continued as a supervision order pursuant to s 125 of the HRSO Act upon the commencement of the HRSO Act and is taken to have been made as a supervision order under that Act. It will expire on 4 December 2024. The State's current application is brought pursuant to s 36 of the HRSO Act, which authorises the State to apply for a new restriction order in the year prior to the expiry of the existing supervision order.
As part of its application, the State also seeks an order under s 58(3) of the HRSO Act that the existing supervision order is to continue until these proceedings are finally determined.
The main purpose of the preliminary hearing before me today is for me to decide whether there are reasonable grounds for believing that the court might find, pursuant to s 7 of the HRSO Act, that Mr James‑Ind remains a high risk serious offender within the meaning of that Act. If I am not so satisfied, then I cannot fix a day for the hearing of the State's application for a restriction order.
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 to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence. A restriction order is a continuing detention order or a supervision order. So, to state the obvious, a restriction order does not necessarily entail a person being detained in custody.
Section 7 of the HRSO Act sets out the matters that the court must have regard to in assessing whether a person is a high risk serious offender. These matters are comprehensively addressed in the State's written submissions.
In respect of the issue before me on this preliminary hearing, Quinlan CJ observed in The State of Western Australia v Winder that:[2]
For the purposes of this hearing, I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. I emphasise the word might. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[2] The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ) citing The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J).
I respectfully adopt and apply these observations.
Mr James‑Ind is represented today by counsel, Mr McKenzie, who is very experienced in this area. Mr McKenzie quite properly concedes that the criteria set out in s 46 of the HRSO Act is met.
For the relatively brief reasons which follow, I accept that concession and I am satisfied that the criteria in s 46 is met. I will therefore make an order setting a hearing date for the restriction order application and ancillary orders to facilitate the hearing of that application.
I am also satisfied that it is in the interests of the community for Mr James‑Ind to remain subject to the supervisions and restrictions he is presently bound by under the existing supervision order. I will therefore order that Mr James‑Ind's existing supervision order is to continue until these proceedings are finally determined.
The evidence
In support of the application, the State relies upon an affidavit of Ms Fleur Marie Allen affirmed on 26 August 2024. Ms Allen's affidavit contains the details of Mr James‑Ind's criminal history, as well as several reports and assessments in relation to him. These include both psychological and psychiatric reports, as well as program completion and intervention progress reports.
The details of Mr James‑Ind's offending, as well as the reports prepared in relation to him up to mid‑2019, are comprehensively outlined in the reasons of McGrath J in James-Ind No 1.[3]
[3] James-Ind No 1 [35] - [48].
Suffice it to say for the purposes of the application before me today, Mr James‑Ind has an extensive history of sexual offending against female victims in the states of Victoria and Western Australia, dating back to 1988. The last of those sexual offences were committed in 2003 in Victoria.
McGrath J summed up the psychiatric and psychological evidence presented at the 2019 restriction order application, with the following observation:[4]
Mr James‑Ind is at a high risk of committing further serious sexual offences. This assessment of risk takes into account his ongoing treatment needs. Mr James‑Ind has undertaken a number of treatment programs. However, it is clear that there is the risk that a serious sexual offence may be committed if a continuing detention or supervision order is not made.
Contraventions of the supervision order
[4] James-Ind No 1 [88].
As I have said, McGrath J imposed a supervision order. Following the imposition of the supervision order, Mr James‑Ind was convicted of the following two breaches of the supervision order:
(a)on 14 July 2019, Mr James‑Ind entered a vehicle where a female was present without receiving prior approval from his community corrections officer; and
(b)on 29 June 2020, Mr James‑Ind left his residence without the handheld component of his electronic monitoring device. He returned to his house to collect it. The total period Mr James‑Ind was not in range of the device was 15 minutes.
For both breaches he was fined.
On 28 November 2020, Mr James‑Ind was arrested and remanded in custody in relation to two further breaches of the supervision order. These breaches were constituted by Mr James‑Ind allowing a mother and her daughter, aged 41 and 16 respectively, to reside in caravans at his address without the prior approval of a community corrections officer.
On 15 December 2020, Mr James‑Ind was ordered to be detained in custody on an interim detention order pending the final determination of contravention proceedings brought against him in respect of these two further breaches.
On 11 January 2021, Mr James-Ind was sentenced to a total effective sentence of immediate imprisonment of 6 months and 1 day for these two breaches. Mr James-Ind served the entirety of that term.
The final determination of the contravention proceedings was heard on 12 October 2022 by McGrath J.
On 17 October 2022, his Honour set aside the interim detention order and released Mr James‑Ind on an amended supervision order.[5] The amendments sought to address Mr James-Ind's behaviour since the initial imposition of the supervision order. Further, by reason of the operation of s 57(2) of the HRSO Act, the period of the supervision order was automatically extended by the period of 6 months and 1 day that Mr James-Ind had spent in custody. Thus, it now expires on 4 December 2024.
[5] The State of Western Australia v James-Ind [No 2][2022] WASC 343 (James-Ind No 2).
Since being released back into the community on the amended supervision order, Mr James‑Ind has been convicted of three further breaches of the order:
(a)First, on 27 April 2023, Mr James-Ind failed to include the necessary details in a diary the supervision order requires him to keep;
(b)Second, on 11 January 2024, Mr James-Ind had a female in his vehicle without prior approval; and
(c)Third, on 11 April 2024, Mr James-Ind had a female at his residence without prior approval.
For all three of these breaches, Mr James-Ind was fined.
The most recent evidence as to Mr James-Ind's risk of reoffending
The most recent reports on Mr James-Ind available to me are those that were before McGrath J on the hearing of the contravention proceedings.
In his Honour's reasons for judgment, his Honour summarised the evidence regarding Mr James-Ind's risk assessment that was given by Dr Wynn Owen, a prominent psychiatrist who is very experienced in this area.
Dr Wynn Owen was of the opinion that Mr James-Ind remained a high risk of committing a serious offence if not subject to a restriction order.[6]
[6] James-Ind No 2 [24].
In respect of Dr Wynn Owen's assessment of Mr James-Ind's risk profile, McGrath J observed:[7]
Dr Wynn Owen identified ongoing dynamic risks as including sexual deviance, possible sexual preoccupation, poor self-management, problems with stress and coping, problems resulting from childhood abuse and ongoing anti-authoritarian attitudes including resentment towards staff tasked with administering orders.
Dr Wynn Owen is of the opinion that Mr James-Ind's risk has not been elevated and that it is no higher than it was when he went into custody. Dr Wynn Owen stated that Mr James-Ind's risk can be adequately managed in the community with suitable amendments to the supervision order and the implementation of proposed supervision strategies.
Dr Wynn Owen stated that Mr James-Ind's outstanding treatment needs could be met in the short term either in the prison or in the community. Dr Wynn Owen recommended that there should be a recommencement of psychological counselling. Further, additional supervision order conditions should be imposed to address internet usage with a prohibition on searching for materials depicting violent and sexual acts and for approval by a CCO of internet usage activities and diary conditions for recording places visited.
[7] James-Ind No 2 [26] - [28].
I respectfully adopt this summary. Dr Wynn Owen's suggested amendments were reflected in the amended supervision order which McGrath J made on 17 October 2022.
My assessment
As I have said, the most recent reports available to me are those that were before McGrath J in 2022, which concluded that Mr James‑Ind remained a high risk of committing a serious offence if not subject to a restriction order. As the State submits, which I accept, those reports continue to provide guidance as to Mr James-Ind's risk profile.
Mr James-Ind has been convicted of three breaches of his supervision order since the amended supervision order was made. The most recent of those breaches was in April this year. These breaches are relatively minor, as is reflected by Mr James-Ind being sentenced to fines in respect of them. Also, those breaches did not result in Mr James-Ind being placed on an interim detention order and becoming the subject of contravention proceedings.
Relevantly, and in the absence of more recent reports, nothing in Mr James-Ind's conduct since the contravention proceedings of 2022 suggests to me that his risk to the community has escalated to such an extent that the existing supervision order no longer offers adequate protection of the community. I am satisfied that it is appropriate that he remain the subject of the existing supervision order until these proceedings are finally determined.
Conclusion
In all of these circumstances, and having regard to the matters outlined in the State's written submissions, I am satisfied there are reasonable grounds to believe that the Court might find that Mr James‑Ind remains a high risk serious offender. Accordingly, I am satisfied that the criteria in s 46 of the HRSO Act is met. I will therefore make an order fixing the date of the hearing of the State's application for a restriction order. The State also seeks orders that Mr James-Ind undergo examination by a psychiatrist and a psychologist, and orders facilitating the preparation of their reports. These orders should also be made. The most recent expert reports were prepared in 2022. It is appropriate that further expert reports be provided for the purposes of the final hearing.[8]
[8] An order that the offender undergo examination for the purpose of preparing these reports is mandated by s 46(2)(a) of the HRSO Act.
Pending the hearing of the restriction application, I am satisfied that Mr James‑Ind should remain in the community under the conditions of the existing supervision order. I will therefore order pursuant to s 58(3) of the HRSO Act that the period of the supervision order made by McGrath J on 17 October 2022 is to continue until these proceedings are finally determined.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SP
Associate to the Hon Justice Lemonis
31 OCTOBER 2024
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