The State of Western Australia v JPA

[2024] WASC 225

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JPA [2024] WASC 225

CORAM:   QUINLAN CJ

HEARD:   21 JUNE 2024

DELIVERED          :   21 JUNE 2024

PUBLISHED           :   24 JUNE 2024

FILE NO:   SO 7 of 2024

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

JPA

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 continuing detention order may be made – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Order pursuant to s 46(2) made

Category:    B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	A Fedele

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid WA

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 and has been edited from the transcript.)

1. On 13 June 2024, the State of Western Australia applied for a restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (the Act). The preliminary hearing of the application came before me today.

2. The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds to believe that the Court might find that the respondent is a high risk serious offender within the meaning of the Act. The law in relation to that issue is well settled.[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).

3. The respondent's counsel conceded that the threshold requirements of s 46 are met. I accept that concession and am satisfied that the Court might find that the respondent is a high risk serious offender within the meaning of the Act.

4. I do not have sufficient information before me to be satisfied that the adequate protection of the community would be met by the respondent being released on an interim supervision order following release from his current term of imprisonment. I am positively satisfied that he should not be released until a proper assessment has been made. For that reason I will make an interim detention order until 26 July 2024, being the date to which I will adjourn the matter pending receipt of further evidence.

The evidence

1. In support of the application, the State relied upon an affidavit of Tanya‑Maree Holloway, affirmed on 13 June 2024, and an affidavit of Ms Heather Applin, affirmed on 18 June 2024. Ms Hollaway's affidavit concerns the respondent's criminal history, and includes several reports and assessments in relation to him. Ms Applin's affidavit relates largely to his potential release into the community.

2. I have considered all of the evidence and need not set it out in detail. Relevant features of it include the following.

3. The respondent is now 50 years old, he has an extensive criminal record, totalling some 14 pages in Western Australia alone, with further convictions in Queensland, South Australia and the ACT. His offending ranges from traffic offences and the stealing of a motor vehicle, through to possession of prohibited drugs, making threats to kill, multiple assaults, 9 breaches of bail, as well as 55 breaches of violence restraining orders.

4. Of particular relevance to this application are the respondent's convictions for a series of offences that constitute 'serious offences' within the meaning of the Act, in particular violent sexual offences. He has three convictions for aggravated sexual penetration without consent; one conviction for pursuing another with an intent to intimidate under circumstances of aggravation; and a conviction for indecently dealing with a lineal relative or de facto child of or over the age of 16 years.

5. The respondent is currently serving a term of 20 months of imprisonment for this last conviction. That term of imprisonment is due to expire on 24 July 2024.

6. The circumstances of the respondent's offending include the following.

7. On 23 May 2014, the respondent was sentenced for a large number of offences principally committed between November 2012 and February 2013 in relation to the respondent's then‑wife and others associated with her.

8. In addition to the serious offences, which I will come to, the respondent committed a number of other offences during that period involving serious family violence including threats to kill.

The offences of November 2012 to February 2013 ‑ aggravated sexual penetration without consent: Criminal Code, s 326 and pursuing another with an intent to intimidate under circumstances of aggravation: Criminal Code, s 338E(1)

1. In relation to the serious offences in November 2012, the respondent's then‑wife, who was seven months pregnant, was laying on her back in bed. The respondent headbutted her, held her to the bed, forced her legs apart, ripped off her shorts and underwear and put his hand into her vagina. She told him to stop and told him it was hurting. The respondent accused his wife of being unfaithful. There was a child in the house at the time of that aggravated sexual penetration without consent.

2. Further offences were later committed against the victim, including threats to kill. One of the threats to kill was carried out while the respondent had his hand around the victim's throat.

3. In February 2013, the respondent committed further sexual offences against his wife, after she had come home from hospital following the birth of their child. The victim was asleep and the respondent came home and woke her up saying words to the effect that he was going to kill her, jumped on top of her, put a leg between her legs, said he knew she had been unfaithful and needed to prove it, shoved her underpants to one side and inserted a hand or fist into her vagina. She told him it was hurting and said that she was in complete agony. After removing his hand, the respondent shoved his penis into the victim's vagina, forcefully. Again, the victim told him that it hurt.

4. In addition to these offences, the respondent was convicted of numerous counts of breaching a violence restraining order that his former wife took out after February 2013. The respondent was also convicted of a number of other offences, including threats to shoot both that victim and her family. During that period, the respondent also pretended to be the victim's brother and made enquiries with a women's refuge in relation to her location, and was able to identify the day care centre that his children attended.

5. All of the offending in relation to the offending over this period was the subject of an eight and a half year term of imprisonment.

Indecently dealing with a lineal relative or de facto child of or over the age of 16 years: Criminal Code, s 329(4) and s (10)(b)

1. The respondent's most recent offending, and that for which he is currently in prison, relates to his conduct on 27 October 2022 following his release from that earlier term of imprisonment. The victim was the respondent's step‑daughter, who was 16 years old at the time. She lived with the respondent and his new wife, and was clearly vulnerable. The victim was asleep in her bed wearing only a t-shirt when the respondent entered her room and sat on the end of the bed. He placed his hand on her, causing her to wake up and shine the torch on her mobile phone in his direction, frightening her.

2. The respondent moved his hand to the victim's vagina and used his finger to rub her vagina. He then moved it and rubbed her backside, before placing it on her breast. He then left the room.

3. For this conduct, the respondent was sentenced to a term of 20 months imprisonment.

Risk assessment and treatment

1. During his terms of imprisonment, the respondent has undergone psychological and psychiatric assessments, as well as completing a Stopping Family Violence Program between July and October 2015 at Albany Regional Prison, and the Pathways Program between May and July 2017 while at Eastern Goldfields Regional Prison. At the conclusion of the latter program, it was noted that the respondent continued to have outstanding treatment needs relating to his pro‑criminal attitude and orientation, anti‑social traits, anti‑social peer associations, emotional regulations, and coping skills.

2. A psychological report was prepared in April 2014 by Ms Cinzia Zuin. That report was prepared prior to the respondent's sentencing in May 2014, and prior to his most recent offending. At that time, Ms Zuin administered the Millon Multiaxial Inventory as well as the Static‑99 actuarial assessment.

3. Ms Zuin concluded that the respondent's test results were consistent with somebody suffering from a depressive illness, with symptoms of anxiety. She also indicated various dependent personality traits as well as identifying that he coped poorly when relationships end.

4. The Static‑99 instrument employed by Ms Zuin in her assessment of the respondent also indicated that while he presented a medium to low risk of sexual reoffending, he was likely to pose a greater risk of reoffending in a violent manner. She concluded that the respondent's treatment needs gave rise to concerns.

5. There is also in evidence a psychiatric report prepared by Dr Gosia Wojnarowska dated 20 May 2014. That report details a history of admission to psychiatric hospitals, with the respondent's abuse of both alcohol and amphetamines being a recurring feature. Dr Wojnarowska concluded that the respondent was likely to experience a relapse of psychosis if he continued to use alcohol and other illicit substances, and that while his risk of sexual offending was low, his risk of generalist offending remained high. That view was, of course expressed, before the respondent went on to sexually reoffend, this time against his step‑daughter.

My assessment

1. The evidence satisfies me that there are reasonable grounds to believe that the Court might find the respondent to be a high risk serious offender. Despite intervention, he has a demonstrated history of repeat offending. He has been convicted of many breaches of court orders, as well as multiple breaches of Violence Restraining Orders. He has committed what is, in my view, a variety of serious offending, including sexual offending against adults and indecent dealing with a child, both of whom were family members of his. He has also threatened and intimidated family members and others.

2. The violent nature of his sexual offending in 2012 and 2013 is of particular concern in relation to his capacity to commit such offending.

3. On the basis of that offending history and his unmet treatment needs, I am satisfied that there are reasonable grounds to believe that the Court might find the respondent is a real risk of committing further violent offences if released and, in particular, if released unsupervised.

4. I will therefore make orders for the hearing of the restriction order application.

Interim detention order

1. In the interim, the State submits that I should make a detention order pursuant to s 46(2) of the Act. To make a detention order, I must be positively satisfied that such an order is appropriate. If I am satisfied that the protection of the community can adequately be met by an interim supervision order, then that would be the appropriate order.

2. In my view, this is a case where the protection of the community requires that the respondent be held in detention pending further assessment.

3. To be managed in the community safely, it is imperative that the respondent have suitable and stable accommodation.

4. The State's application and the supporting affidavit of Ms Applin do not enable me to be satisfied that there is currently suitable accommodation. Two houses were identified by the respondent, as revealed in the affidavit material, as accommodation options upon release. Both of the persons with whom the respondent proposed to live are known to him. Somewhat concerningly, it appears that both of those persons have a strong conviction that the respondent is innocent of his most recent offending.

5. The first house at which the respondent proposed to reside is only a short distance from the residence of his most recent victim and her mother. The Victim Offender Mediation Unit considered that this address was unsuitable in light of its proximity to both women. On the basis of the current material, I agree with that assessment.

6. The other proposed accommodation was accommodation with a friend which, while potentially suitable, was still the subject of the concern that it was within 15 minutes of the victim's residence.

7. The State submitted, as is reflected in the affidavit of Ms Aplin, that to make a determination as to the suitability or potential for supervision at that place, it would be necessary for GPS testing to be done. No GPS testing has been done in relation to that residence.

8. For this reason, I am not presently satisfied that the respondent could be safely managed in the community in the interim. I am satisfied that it is appropriate to adjourn this matter to a date at which further information can be provided to the Court. The application with be adjourned to 26 July 2024.

9. As the adjourned date is beyond the expiration of the respondent's current sentence (24 July 2024), I am positively satisfied that I should order that the respondent be detained, at least until that adjourned date.

10. Whether, and if so what, orders in relation to supervision are appropriate is not a matter about which I express any concluded view. It is a matter to be determined based on the evidence available on 26 July.

11. I therefore order that the respondent be detained in custody until 26 July 2024, or such further date is ordered, if any, on 26 July 2024, pursuant to s 46(2)(c)(i) of the Act.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

MJM

Research Associate to the Hon Chief Justice Quinlan

24 JUNE 2024