The State of Western Australia v JXK [No 4]
[2024] WASC 231
•26 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JXK [No 4] [2024] WASC 231
CORAM: MCGRATH J
HEARD: 26 JUNE 2024
DELIVERED : 26 JUNE 2024
FILE NO/S: SO 2 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JXK
Respondent
Catchwords:
Criminal law - High risk serious offender - Contravention proceedings - Application for detention pending determination of contravention proceedings - Need to ensure adequate protection of the community
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 53(2)(b), s 56
Result:
Offender detained pending determination of contravention proceedings
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McDonnell |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v JXK [No 3] [2023] WASC 23
The State of Western Australia v Slater [No 2] [2021] WASC 465
MCGRATH J:
The State has filed an application under s 55 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) commencing contravention proceedings in respect of the respondent. The State seeks an order under s 53(2)(b) of the HRSO Act that the respondent be detained in custody pending the finalisation of the contravention proceedings. In support of the application the State relies upon the affidavit of Ms Nichols, Community Offender Monitoring Unit, affirmed 24 June 2024.
In February 2020, the State applied for orders under the Dangerous Sexual Offenders Act 2006 (DSO Act) that the respondent was a serious danger to the community and that he be detained in custody or released subject to a supervision order under the DSO Act. On 10 June 2021, the court found the respondent was a high risk serious offender and should be subject to a continuing detention order pursuant to s 48(1)(a) of the HRSO Act. On 10 February 2023, Lundberg J ordered that the respondent be released on a supervision order after hearing evidence on the first review under s 64(2) of the HRSO Act.[1]
[1] The State of Western Australia v JXK [No 3] [2023] WASC 23.
The issue that I must decide is whether the respondent may be released on an interim supervision order pending the determination of the new contravention proceedings or detained in custody. Counsel for the respondent submitted that given the circumstances, the detention of the respondent is not opposed. I find that the submission of counsel for the respondent was properly made and that the respondent must be detained in custody pending the determination of the contravention proceedings for the following reasons.
Relevant legislative provisions
Section 56 of the HRSO Act applies to a person who is subject to a supervision order in respect of whom proceedings on an application under s 53 are pending.
Section 56(2) of the HRSO Act provides as follows:
The court may at any time in the pending proceedings -
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
Section 56(3) of the HRSO Act provides as follows:
The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
In The State of Western Australia v Slater [No 2][2] Quinlan CJ stated that in respect to an application that a respondent be detained under s 53(2)(b), the Court must be satisfied that, to ensure adequate protection of the community, it is desirable to make either an interim detention order or an interim supervision order. That is, in effect, the test that applies to the making of an interim supervision order generally.[3]
[2] The State of Western Australia v Slater [No 2] [2021] WASC 465.
[3] The State of Western Australia v Slater [No 2] [2021] WASC 465, [25].
The alleged contraventions
The conduct upon which the applicant relies in support of the contention that the respondent has contravened the supervision order is outlined in the affidavit of Ms Nichols.
Ms Nichols deposes that since 27 February 2023, the respondent has contravened the supervision order resulting in the respondent being convicted of criminal offences.[4] The convictions are as follows:
a)On 21 March 2023, during a compliance search conducted by the HRSO SOMS Team, it was identified the Respondent had failed to make any entries in his diary for the dates 13 March 2023 to 21 March 2023, contrary to Condition 33 of his HRSO SO and two WLIs [written lawful instruction] issued identifying clear instructions and expectations of the Respondent's diary entries. As a result, the Respondent was arrested and charged with PE 14115/2023 Contravened a Requirement of a SO. On 28 March 2023, the Respondent appeared in Perth Magistrates Court and received a global $2,000 fine.
b)On 21 March 2023, during the abovementioned compliance search, the Respondent reported to the attending officers of the HRSO SOMS team that he had created an account for the image based social media network, Pinterest. The Respondent's mobile telephone device was seized and further investigation by the HRSO SOMS team, who confirmed that he had created a Pinterest account, contrary to Condition 52 of his HRSO SO and a corresponding WLI issued on 27 February 2023 which further outlined the Respondent's social media restrictions. The Respondent was arrested and charged with PE 14116/2023 Contravened a Requirement of a SO. On 28 March 2023, the Respondent appeared in Perth Magistrates Court and received a global $2000 fine, combined with the aforementioned charge PE 14115/2023.
c)Further on 21 March 2023, following the abovementioned compliance search and during further investigations of his mobile telephone usage, it was identified that the Respondent had downloaded the application 'DuckDuckGo' which is an encrypted search engine that does not store the internet search history, contrary to Condition 58 of his HRSO SO. The Respondent reported to attending officer's he did a search for the best search engine and 'DuckDuckGo' came up as number one. The Respondent was arrested and charged with PE 14117/2023 Contravened a Requirement of a SO. On 28 March 2023, the Respondent appeared in Perth Magistrates Court and received five months concurrent imprisonment, backdated to 21 March 2023 and with parole eligibility.
d)Further on 21 March 2023, during the abovementioned compliance search, the Respondent reported to the attending officers that he had 'probably' been breaching the conditions of his HRSO SO by accessing pornographic material on his mobile telephone device. Following the abovementioned compliance search and during further investigations of his mobile telephone usage, it was ascertained that the Respondent had conducted internet searches and visited online websites using the following terms 'Child nude modelling', 'Teenichild nude modelling', 'Young teenie child nude modelling', 'Naked child laughing at studio shot stock photo' 'Russian child nude modelling agencies', 'Child Jan Saudek' (controversial photographer of naked children), 'Jock Sturges' (controversial photographer of naked children), 'Lolita' (well known child pornography search term), 'Sally Mann' (controversial photographer of naked children), 'Porn Dude' (Adult pornography), and 'Xvideos' (Adult pornography), contrary to Condition 51 of his HRSO SO. The websites resulted in showing naked/partially clothed children or pornographic material. The Respondent was arrested and charged with PE 14118/2023 Contravened a Requirement of a SO. On 28 March 2023, the Respondent appeared in Perth Magistrates Court and received 12 months concurrent imprisonment, backdated to 21 March 2023 and with parole eligibility. It is noted he was denied parole by the Prisoners Review Board on 15 August 2023 and served the full sentence of 12 months imprisonment.
[4] Affidavit of Ms Nichols affirmed 24 June 2024, [13].
In addition, the respondent has been charged with further criminal charges which are yet to be determined. Ms Nichols deposes that the respondent has been charged with the following offences since 27 February 2023:[5]
a)On 24 April 2024, the Respondent reported for supervision in line with the conditions of his HRSO SO and engaged with COMU SCCO Ms Julia Adams. The Respondent's mobile telephone was reviewed in line with Condition 57 of the HRSO SO, where it was observed his internet history reflected the searching and viewing of several pornographic websites. These included websites such as but not limited to 'Zoo Porn', 'Cute Teens', 'Old guy and young girl', 'Real Uncle and Niece', 'XXX teens', 'Fuckbook', 'Stallion Creampie', 'Incest 3D Toons', 'Free Animal Sex', 'Best Incest Pro', 'Small Top incest fuck', 'stripchat.com', 'Animal Porn Videos', 'She wants to be fucked', 'Petite Teen Porn' and 'Teencunt.net'. The alleged possession, access and viewing of these pornographic sites is in breach of Condition 51 of his HRSO SO. The Respondent's alleged behaviour further contravenes a Written Lawful Instruction (WLI) issued on 20 March 2024, prohibiting his use of search terms correlated with children and teens. The WLI specifically states the Respondent is not permitted to use search terms that contain 'young', 'girl', 'teen' and 'teens', which are reflected in the alleged contravening behaviour. The WLI has been attached for reference as Annexure 'D'.
b)In addition to the above search terms noted, it was also observed by SCCO Ms Adams that the Respondent's internet search history also reflected reviewing of search engines such as 'DuckDuckGo' and 'Web Proxy', which are encrypted search engines that do not record online web activity. Further, the Respondent is alleged to have searched the term 'Delete your activity - Android - Google Account'. This raised a concern that the Respondent may have been attempting to conceal his online activity, contrary to Condition 58 of his HRSO SO. Further, due to prior contravention charges in 2023, the Respondent was also issued a WLI on 20 March 2024 prohibiting his use of cipher software. The WLI has been attached for reference as Annexure 'E'.
c)Due to the concerns raised during the review of his mobile phone, a recording was taken by SCCO Ms Adams of the content on the phone and the above information was provided to the WAPF SOMS HRSO Team for further investigation. The SOMS HRSO Team attended the Respondent's address on 26 April 2024 to conduct further investigations at which time they reviewed the Respondent's mobile telephone and observed his internet search history had been deleted and was no longer present on the device. Further, the HRSO SOMS team observed during their initial attendance at the Respondent's address that he attempted to hide several sheets of paper by sitting on them. The sheets of paper were retrieved by the HRSO SOMS team and dozens of different pornographic websites were observed to be written down on the paper. The Respondent stated he had been watching pornography and the pieces of paper contained some of those sites he had been watching.
[5] Affidavit of Ms Nichols affirmed 24 June 2024, [11].
As a result of the further criminal charges the respondent was arrested and has been remanded in custody without bail being considered. On 12 June 2024, the respondent entered a plea of guilty to the outstanding charges and a pre-sentence report was ordered by the Court. The respondent is to re-appear in the Perth Magistrates Court on 9 July 2024 for sentencing.
In her affidavit, Ms Nichols also outlines other conduct of the respondent that constitutes contraventions, though criminal charges were not preferred.[6] Ms Nichols deposes that the respondent has engaged in concerning behaviours between 27 February 2023 and 26 April 2024 that include challenging and circumventing conditions of the HRSO, in particular his use of social media and online gaming.[7] Further, Ms Nichols deposes that the respondent has under reported his sexual preoccupation and by so doing circumvented the supervision order conditions concerning the monitoring of such behaviour.[8]
[6] Affidavit of Ms Nichols affirmed 24 June 2024, [11].
[7] Affidavit of Ms Nichols affirmed 24 June 2024, [15].
[8] Affidavit of Ms Nichols affirmed 24 June 2024, [15].
Assessment of the application
I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.
When the alleged contraventions are viewed together and in light of other evidence that the State relies upon, there appears to be good reasons for the authorities to be concerned about their ability to manage the respondent in the community.
I am satisfied the respondent has contravened the HRSO supervision order as evidenced by his recent pleas of guilty to the contravention charges. The State submits that there is a risk that the respondent will further contravene the supervision order and that there is a potential risk of the respondent committing serious offences opportunistically or intentionally whilst subject to the supervision order. The conditions do not satisfactorily manage the risk.
Further, the State submits that there are no meaningful amendments that could be made to the supervision order to allow adequate management of the respondent's risks of continually contravening the supervision order or committing a serious offence in the community.
On the basis of the information I have at the time of hearing this application, I am not satisfied that the respondent would substantially comply with the standard conditions of a supervision order if released. In particular, I am not satisfied that the respondent would substantially comply with the conditions regarding supervision by a Community Corrections Officer and compliance with all reasonable directions issued by such an officer.
I am also mindful that the respondent does not have suitable accommodation in the community presently due to his incarceration arising from his offending.[9] At the time the respondent was released on 24 March 2024, the respondent was provided emergency accommodation. Ms Nichols deposes that the respondent does not have any prosocial supports in the community other than the formal service providers.[10]
[9] Affidavit of Ms Nichols affirmed 24 June 2024, [16].
[10] Affidavit of Ms Nichols affirmed 24 June 2024, [16].
I am not satisfied that an amended supervision order would adequately manage the risk.
Accordingly, I am satisfied that it is desirable that the respondent be detained in custody to ensure the adequate protection of the community.
Conclusion
Therefore, the respondent will be detained in custody pending the determination of the contravention proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
PB
Associate to the Judge
26 JUNE 2024
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