The State of Western Australia v KWLD
[2021] WASC 432
•3 DECEMBER 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KWLD [2021] WASC 432
CORAM: QUINLAN CJ
HEARD: 2 DECEMBER 2021
DELIVERED : 2 DECEMBER 2021
PUBLISHED : 3 DECEMBER 2021
FILE NO/S: SO 13 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KWLD
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 supervision order is desirable – Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders pursuant to s 46 made
Interim supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | D S McDonnell |
| Respondent | : | In person |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | In person |
Cases referred to in decision:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
KLWD v The State of Western Australia [2020] WASCA 94
KLWD v The State of Western Australia [No 4] [2013] WASCA 185
The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
QUINLAN CJ:
Introduction
On 18 October 2021, 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 application, as filed, also sought an order that, until the determination of the application for a restriction order, the respondent be detained in custody or that he be released on an interim supervision order under the Act. The State later confirmed that it did not seek an interim detention order.
The respondent advised the Court that he received the application and affidavit in support on 21 October 2021. The application was listed for directions before Fiannaca J on 10 November 2021. His Honour listed the preliminary hearing of the matter for 26 November 2021.
The preliminary hearing of the application came before me on that day. 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 the respondent is a high risk serious offender within the meaning of the Act.[1]
[1] The Act, s 46(1).
The respondent does not presently have any legal representation. That is a result of the respondent's choice. While he has been offered legal aid, the respondent would prefer to represent himself. He considers that it is in his best interests if he does so.
I am satisfied that the respondent has not suffered any prejudice as a consequence of his representing himself. It is apparent that the respondent is an intelligent and articulate young man. I have, nevertheless, impressed upon him that even the most intelligent among us can benefit from legal representation. In an application such as this, the benefit to be obtained by having impartial advice from independent counsel is also not to be underestimated.
When the preliminary hearing was called on for hearing on 26 November 2021, the respondent sought an adjournment of the preliminary hearing for a period of approximately six weeks and that the State's application for an interim supervision order be deferred until the preliminary hearing. The respondent identified the bases of his application as including procedural fairness and the fact that he had received the State's submissions on the preliminary hearing only 48 hours earlier.
As the respondent's current term of imprisonment expires on 4 December 2021, I advised him that I would not adjourn the preliminary hearing or the State's application for an interim supervision order to a date after the respondent's release. It would not be in the interests of the adequate protection of the community to defer the consideration of those matters, particularly in relation to whether there should be an interim supervision order, until weeks after an offender's release date. It will be obvious that, in the event that an interim supervision order is ultimately desirable to ensure adequate protection of the community, the adequate protection of the community would potentially be defeated by deferring consideration of such an order until well after the respondent's release.
In relation to the preliminary hearing itself, as I said to the respondent on 26 November 2021, it is apparent from the terms of the Act that it manifests an intention that the preliminary hearing is to be a summary hearing. While the State is required to give an offender seven days' notice of the date fixed for the preliminary hearing,[2] and while the offender may lodge affidavits to be relied upon by the offender for the preliminary hearing,[3] the Act expressly provides that the Court may decide whether there are reasonable grounds for the belief described in s 46(1) of the Act without hearing from the offender.
[2] The Act, s 43.
[3] The Act, s 44.
In that regard, s 83(3) of the Act provides, in relation to such a decision:
The court may decide entirely or partly from a consideration of documents lodged with the court, without the offender or witnesses appearing and without the offender consenting to, or being heard on, the making of the decision.
I am satisfied that the respondent was given notice of the preliminary hearing. As stated above, the initial date for the preliminary hearing (26 November 2021) was listed by Fiannaca J on 10 November 2021, at a hearing attended by the respondent. On that occasion the respondent was invited to, but did not, make any submission as to why the preliminary hearing should not be heard on 26 November 2021. Indeed he said that from his point of view 'it would be preferable to have a decision about remand or conditional release prior to the expiration of [his] sentence on 4 December'. For these reasons, I declined the respondent's request to adjourn the application until after his release date.
Nevertheless, in light of the respondent's submission that he had only recently received the State's submissions, I adjourned the preliminary hearing and the State's application for an interim supervision order to 2 December 2021.
At the hearing on 2 December 2021, the respondent conceded that I could be satisfied that there are reasonable grounds for believing that the Court might find that he is a high risk serious offender within the meaning of the Act. He also accepted that it was desirable that he be subject to an interim supervision order pending the determination of the restriction order application.
I accepted those concessions and made orders under s 46(2) of the Act and made an interim supervision order under s 58(5) of the Act.
I said that I would publish my reasons later. These are my reasons.
The law
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 the respondent 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 to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence. A 'serious offence' within the meaning of the Act, relevantly, includes sexual penetration of a child of or over the age of 13 years and under the age of 16 years[4] and using electronic communication to procure a child under the age of 16 to engage in sexual activity.[5] The respondent has convictions for both of these offences. He is currently under a custodial sentence for the latter offence.
[4] Criminal Code, s 321.
[5] Criminal Code, s 204B.
According to s 46(1) of the Act, 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. 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.[6]
[6] 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).
References to the respondent
As will become apparent, much of the respondent's previous serious offending was committed when he was a child. Pursuant to s 35(1) of the Children's Court of Western Australia Act 1988 (WA), a person shall not publish or cause to be published in any newspaper or other publication or broadcast or cause to be broadcast by radio or television a report of any proceedings in the Court, or in any other court on appeal from the Court, containing any particulars or other matters likely to lead to the identification of a child who is concerned in those proceedings.
The effect of s 35(1) has been that previous decisions of the Court of Appeal in relation to the respondent, which would lead to his identification as a child the subject of proceedings in the Children's Court, have anonymised references to the respondent.[7] Given the relevance of his childhood offending to this application, I have adopted the same course in these reasons. In addition, I made an order under s 35(2) of the Children's Court of Western Australia Act 1988 (WA) that no person shall publish or cause to be published in any newspaper or other publication or broadcast or cause to be broadcast by radio or television a report of those proceedings containing any particulars or other matter likely to lead to the identification of the respondent. Again, the reason that I made that order was that it is not possible to consider (or report) the issues relevant to this application without reference to the respondent's significant offending as a child.
[7] See KLWD v The State of Western Australia [No 4] [2013] WASCA 185; KLWD v The State of Western Australia [2020] WASCA 94.
The evidence
The State relies upon the affidavit of Fleur Marie Allen affirmed on 18 October 2021 which contains the respondent's criminal history and several previous reports in relation to him (including a psychological report and a psychiatric report). It also relied upon an affidavit of Heather Applin affirmed on 8 November 2021 and an affidavit of Nadine Minnock affirmed on 26 November 2021.
I also received in evidence, as they related to the respondent's prior criminal history and antecedents, the decisions of the Court of Appeal in KLWD v The State of Western Australia [No 4] and KLWD v The State of Western Australia (Exhibits 1 and 2 respectively).
The respondent tendered an affidavit sworn by him on 4 July 2018 when he was a sentenced prisoner in Victoria. That affidavit, which I received as Exhibit 3, sets out a number of programs and courses undertaken by the respondent while in prison in Victoria.
The respondent is 27 years of age. The evidence reveals that from a young age the respondent was exposed to violence, substance abuse and criminality and that he experienced significant instability, attachment problems and relationship difficulties. It is not necessary to repeat the detail of the respondent's childhood experiences.
Offending history
The evidence reveals that the respondent has a history of offending beginning in 2009 when he was approximately 15 years of age. His early convictions were for carrying a controlled weapon, stalking, possessing child exploitation material and breaching a violence restraining order. For that earlier offending the respondent was made subject to youth community based orders.
In 2012, the respondent was convicted of a series of sexual offences against teenage girls committed when he was 16 and 17 years of age. The offences involved four separate complainants: TB, SM, MC and SW and included the following offences:
Date of Offence Nature of Offence (Criminal Code) Complainant Sentence Imposed 1.7.10 - 30.7.10 Attempt to sexually penetrate a child over the age of 13 and under 16 – s 321(2) and s 552 TB 18 months imprisonment 1.7.10 - 30.7.10 Sexual penetration of a child over 13 and under 16 – s 321(2) TB 12 months imprisonment concurrent 1.3.11 - 30.3.11 Sexual penetration of a child over 13 and under 16 – s 321(2) SM 12 months imprisonment cumulative 15.6.10 - 15.7.10 Sexual penetration of a child over 13 and under 16 – s 321(2) MC 9 months imprisonment concurrent 15.6.10 - 15.7.10 Sexual penetration of a child over 13 and under 16 – s 321(2) MC 9 months imprisonment concurrent 15.6.10 - 15.7.10 Sexual penetration of a child over 13 and under 16 – s 321(2) MC 9 months imprisonment concurrent 15.6.10 - 15.7.10 Sexual penetration of a child over 13 and under 16 – s 321(2) MC 9 months imprisonment concurrent 1.6.11 - 7.6.11 Involving a child in child exploitation – s 217(2) SW 6 months imprisonment concurrent 1.6.11 - 7.6.11 Possession of child exploitation material – s 220 SW 4 months imprisonment concurrent
At the same time, the respondent was convicted of a number of other non‑sexual offences, which were, in summary:
Date of Offence Nature of Offence (Criminal Code) Sentence Imposed 8.11.11 Aggravated burglary and commit an offence – s 401(2)(a) 15 months imprisonment concurrent 8.11.11 Aggravated burglary and commit an offence – s 401(2)(a) 9 months imprisonment concurrent 8.11.11 Deprivation of liberty – s 333 12 months imprisonment concurrent 8.11.11 Impersonating a public officer – s 87(2)(a) 3 months imprisonment concurrent
The respondent was sentenced for these offences on 13 September 2012. The total effective sentence for all of the offences was 30 months imprisonment (backdated to 16 November 2011).
The facts in relation to the sexual offending, as found by the sentencing judge (following a trial of the issues), included the following.
In relation to MC, while the sentencing judge was satisfied that the respondent obtained information about MC to help ensure her trust and dependency on him, his Honour was satisfied that she and the respondent were in a boyfriend/girlfriend relationship, that there were genuine feelings between them and there was not a significant difference in their ages. To that extent, the sentencing judge considered that the offending in relation to MC must be looked at separately from the offending against the other victims.[8]
[8] Affidavit of Fleur Marie Allen affirmed on 18 October 2021, 63.
TB was 14 years of age. The offending against TB involved sexual offending by the respondent, to which TB did not consent. The sentencing judge found that TB was coerced by the respondent to go to a beach through a series of text messages. The respondent took TB to the ground and inserted his penis into her vagina (I note that, while the charge was for an attempt, the sentencing judge was satisfied that the respondent effected penetration). The respondent also penetrated TB's vagina with his finger. The sentencing judge was satisfied that the respondent knew that TB did not consent to the sexual activity.[9]
[9] Affidavit of Fleur Marie Allen affirmed on 18 October 2021, 65.
SM was 13 years of age. The sentencing judge found that the respondent had sought her out on Facebook and that he knew that she had run away from home and was vulnerable. The respondent pressured her to have sexual intercourse with him. The sentencing judge found that SM's will was overborne. As the sentencing judge put it, the respondent 'forced himself on her with threats of self‑harm and manipulation such that she wasn't consenting to the sexual act in a free and voluntary way'.[10] This offence occurred at a time when the respondent had been charged with stalking MC and another girl. [11]
[10] Affidavit of Fleur Marie Allen affirmed on 18 October 2021, 65 ‑ 66.
[11] Affidavit of Fleur Marie Allen affirmed on 18 October 2021, 66.
The offences in relation to SW (who was 15 years of age) involved the respondent persuading her to send him sexually explicit photographs of herself. The sentencing judge was not satisfied that the respondent's conduct involved any threat, although his Honour was satisfied that it involved a 'degree of manipulation'.[12]
[12] Affidavit of Fleur Marie Allen affirmed on 18 October 2021, 66 ‑ 67.
The evidence reveals that, following his release for these offences, the respondent moved to Melbourne. A Victorian police criminal history report reveals that the respondent was convicted of a number of offences in the Melbourne County Court.
According to that report, on 27 November 2017 the respondent was convicted of two counts of failing to comply with reporting obligations (he was acquitted of a third count), two counts each of using a service to groom a person under 16 years for a sexual act and using a service to transmit indecent communications to a person under 16 years. The sentences for these offences resulted in a total term of imprisonment of 2 years and 5 months.
The evidence does not reveal any of the detail of the facts in relation to this offending, although it is clear from the offences themselves that they were for sexual offending relating to children.
Returning to Western Australia, the respondent was charged and convicted of the offence of using electronic communication to procure a child under the age of 16 to engage in sexual activity. The date of the offence was 12 January 2015 (when the respondent was 20 years of age).
The respondent was sentenced for that offence on 10 August 2021. The facts of the offending were that on 28 July 2014 the respondent commenced contact with another person on Facebook purporting to be a female, who (in August 2014) purported to reveal her age to be 13 years. The contact between them continued into 2015.
While the respondent thought that he was conversing with a 14‑year‑old girl, the person was in fact a police officer acting in a covert capacity.
On 12 January 2015 the respondent encouraged the child persona to masturbate, in the sense of penetrating her vagina with her finger. The respondent told her to rub her nipple and asked her if she could 'feel the wet warm bit'. The respondent said to the child persona to 'gently push your finger in and out, putting a little more in each time, how's it feel?' He asked the persona to delete the messages.
It is not clear, from the evidence, whether this offence was committed before, or after, the offences committed in Victoria for which he was convicted on 27 November 2017. I infer that it was committed before the respondent moved to Melbourne given the close proximity between the commencement of the contact with the child persona (28 July 2014) and the respondent's release date in relation to the offences for which he was sentenced on 13 September 2012 (being 16 May 2014). On that basis, I infer that the respondent's offending in Victoria occurred more recently (that is, after January 2015).
The respondent was sentenced for the 12 January 2015 offence to 18 months imprisonment backdated to 5 June 2020. He is, accordingly, due to be released on 4 December 2021.
Reports and assessments
The evidence adduced by the State includes the following reports and assessments relating to the respondent:
(a)a psychological report of Tanina Oliveri dated 29 July 2012;
(b)a psychiatric report of Dr Sam Febbo dated 9 August 2012;
(c)a presentence report of Katie Swan dated 7 September 2012;
(d)a Parole Assessment Report of Jeremy Marsden dated 22 January 2013;
(e)a Think First Program Completion Report dated 7 March 2014;
(f)a Parole Review Report of Jane Cartner dated 17 August 2021;
(g)a Parole Assessment Report of Melissa Madrigali dated 7 September 2021;
(h)a Post Sentence Supervision Order Report of Melissa Madrigali dated 8 September 2021; and
(i)a Stable Assessment Report prepared in Hakea Prison dated 23 September 2021.
Clearly a number of these reports were prepared prior to, or during, the respondent's sentence for the offences for which he was sentenced on 13 September 2012. The weight to be accorded to those reports must be considered in that light. Indeed, the presentence report and parole assessment reports, of 2012 and 2013 respectively, are in my view of little assistance and I do not proposed to address them further. The reports of Ms Oliveri and Dr Febbo, however, in my view do provide useful background to an assessment of the respondent's potential risk, including insight into his personality.
It is also apparent, from the reports themselves that there have been other reports prepared in relation to the respondent that have not been included in the material before me. Indeed, the respondent stated that there was a psychological report prepared in relation to him while he was in prison in Victoria. Those reports may well be relevant to the final determination of the restriction order application.
Historical reports and assessments
Ms Oliveri's report dated 29 July 2012 was prepared when the respondent was 18 years old. She described him as articulate and displaying verbal skills of a high standard. In the most part, the respondent was compliant at interview as he answered the majority of questions asked. However, Ms Oliveri said that when challenged by questions such as those to assess his level of grooming behaviour, sexual deviances, selection of victims or inappropriate patterns of sexual behaviour, the respondent was often either unwilling or unable to answer and, at times, he reported that he could not recall as some offences had occurred some time ago. Ms Oliveri reported that his lack of responding appeared to be a self‑protective mechanism.
Ms Oliveri said that the respondent showed no emotion when discussing his background and offending and that a lack of genuine empathy was apparent. The respondent displayed a strong tendency to attempt to control the assessment and he asked many questions of the interviewer to clarify why questions were being asked and to also clarify his situation. Ms Oliveri said that the respondent could easily be viewed as a manipulative person particularly as his main aim is to fulfil his personal needs at any cost, a likely result of his childhood experiences. Despite remaining interpersonally and emotionally detached throughout the assessment, the respondent also presented as superficially charming and friendly. Ms Oliveri said that the respondent appeared to be highly narcissistic as he was self‑focused on his own needs and over‑valued his self‑worth.
In relation to his offending at that time, Ms Oliveri reported that the respondent was aware that all of the girls were under the legal age of consent, although he strongly denied that he had ever used force, coercion, threats or aggression to ensure sexual contact claiming that all of his sexual experiences had been of a consenting nature. He did say, however, that once he forms a union with a girl he becomes 'dependent, possessive and clingy' in the relationship and that all of his relationships had been ended by the girl or the girl's parents.
Ms Oliveri said that the respondent reported a pattern of binge drinking from age 15 years. He also had a history of mental health admissions when a child, presenting with suicidal ideation, threats to self‑harm and engaging in self‑harming behaviour or suicidal gestures.
Ms Oliveri conducted psychometric testing on the respondent. She said that his profile was valid but that there were far less elevations on this scale than expected considering his background history and his presentation. Ms Oliveri considered that this was a likely result of his high level of intelligence and cautious responding due to his desire to repress negative personality traits and appear more well‑adjusted than is actually the case. From his pattern of responding, the respondent's scores suggested that he was avoidant and on guard in his relationships as he is mistrustful of others. She also identified that many other concerning personality features were elevated although they remained under the level of clinical significance. These included traits of dependency on others, narcissism, antisocial and self‑defeating attitudes/behaviour and emotional instability, fear of abandonment and interpersonal problems.
In terms of risk assessment, at that time, Ms Oliveri utilised the Risk for Sexual Violence Protocol (RSVP). She stated that the respondent had many concerning factors in his history. Considering all of the information, the respondent was assessed as being a high risk of reoffending in a sexual manner in the future.
In relation to treatment, Ms Oliveri said:
In order to reduce his level of risk, [the respondent] must address his sexual offending and the factors that contributed to such offences. Treatment should provide an opportunity for [the respondent] to further explore his sexual offences and assist him to better understand the factors that led to his offences and strategies to avoid such offending in the future. Due to his young age, his level of minimisation and denial and his level of manipulation/psychopathic features he may be best suited to individual psychological counselling with a departmental psychologist rather than a group based sex offender treatment program. It is suggested that he be referred for specialist assessment to determine the most appropriate form of sex offender treatment for him. As he is considered to be a high risk of sexual reoffending, sex offender treatment is a priority. Substance abuse counselling is also warranted as a result of his abuse of alcohol. On completion of sex offender treatment, he is likely to require long term psychological therapy with a highly skilled and experienced Clinical Psychologist in order to address his concerning personality features. Further, on his release he will need stable and long term accommodation and engagement in fulltime education/work to provide structure and routine to his days.
Dr Sam Febbo's psychiatric report of 9 August 2012 was prepared at around the same time.
Dr Febbo expressed the opinion that from the psychiatric perspective the respondent's history was in keeping with a scatter of depressive symptoms of fluctuating severity. In his opinion, the respondent would fulfil the diagnostic criteria required for a dysthymic disorder; a condition with relatively chronic depressive symptoms including intermittent low mood in addition to other symptoms such as episodes of poor appetite, lethargy and impairment in relation to self‑esteem and hopelessness.
In Dr Febbo's opinion the respondent's dysthymic disorder was closely related to the presence of marked personality pathology. He said that the respondent would meet the diagnostic criteria required for a borderline personality disorder and he also noted the presence of significant antisocial personality traits. A borderline personality disorder, Dr Febbo said, is characterised by a pervasive pattern of instability in interpersonal relationships, self‑image and mood in addition to marked impulsivity. The respondent's personality pathology falls within the so‑called Cluster B personality disorders which encompass borderline, antisocial, narcissistic, and histrionic personality disorders.
Dr Febbo was of the view that the respondent's childhood experiences had a significant causal relationship to his personality pathology. He also expressed the view that the respondent was at high risk in relation to further sexual offending. He considered that the respondent required assessment and participation in a sex offender treatment program.
I note at this point that both Ms Oliveri and Dr Febbo recommended that the respondent participate in some form of sex offender treatment program.
Regrettably, based on the material provided to me, that does not appear to have occurred and, as the respondent's subsequent sexual offending demonstrates, Ms Oliveri and Dr Febbo's assessment that the respondent posed a risk of future sexual offending proved to be correct.
The only treatment report from Western Australia before me is the Think First Program Completion Report dated 7 March 2014. This is a cognitive skills program conducted over the course of a month to address problem solving. The report indicated that the respondent appeared to have made some gains. It said:
[The respondent] remained relatively quiet throughout the program, contributing to discussions and activities when required. He appeared to have made some gains in the dimensions of Ability to Solve Problems, Self Management, Ability to Think/Develop Alternatives, Awareness of Consequences, Egocentricity, Impulsivity, Cognitive Style, Critical Reasoning and one notable gain in Social Perspective Taking. [The respondent] appeared to have increased his awareness of the need to consider the viewpoints of others.
Programs in Victoria
The respondent's affidavit (Exhibit 3) records that he undertook a number of programs while in prison in Victoria, including psychological counselling and vocational education.
In particular, the respondent undertook the following:
(a)in February 2017 he commenced a program called 24 Hour Alcohol Program and attended nine sessions before being transferred to another location;
(b)in February 2016 he completed a 2‑hour program called Release Related Harm Reduction Program;
(c)on 30 June 2016, he completed a program called 6 Hour Substances and Me: Alcohol and other Drugs (AOD) and Depression;
(d)on 14 December 2017, he attended a Drug and Alcohol Orientation Session;
(e)between 8 January 2018 and 28 February 2018, he completed a program called 44 Hour Semi‑Intensive Drug and Alcohol Treatment Program;
(f)on 21 March 2018, he completed a program called Leaving Prison;
(g)on 26 March 2018, he completed a 3‑hour program called Family and Relationships Program;
(h)on 3 May 2018, he completed a program called 6 Hour Substances and Me: Alcohol and Other Drugs (AOD) and Stress Management Program;
(i)on 10 May 2018, he completed a 6‑hour program called Substances & Me: Managing Cravings;
(j)between 28 March 2018 and 12 April 2018, he attended three sessions of the GROW Mental Wellness Program;
(k)between 15 February 2018 and July 2018, he attended individual counselling sessions with two psychologists; and
(l)a variety of occupational or vocational courses.
A report from one of the psychologists who provided counselling to the respondent (Kris Nickless) forms part of Exhibit 3. That report describes the drug and alcohol programs undertaken by the respondent referred to above.
Recent assessments
As the respondent's most recent sentence of 18 months imprisonment was imposed on 10 August 2021 and backdated to 5 June 2020, he was assessed for parole almost immediately.
The Parole Review Report dated 17 August 2021 recommended that he be denied release on parole. The report confirmed that, to date, the respondent has not engaged in a sex offender treatment program.
The Parole Assessment Report dated 7 September 2021 and Post Sentence Supervision Order Report dated 8 September 2021, were prepared by the same community corrections officer (Ms Madrigali) and may be considered together.
Those reports note that, prior to his current sentence, the respondent's bail was revoked on 24 February 2021 due to a positive urine test for methylamphetamine on 19 February 2021. Otherwise there were no compliance issues raised in relation to his compliance with home detention bail.
The reports express the view that the respondent presents with criminogenic needs in the areas of sexual related offending, poor decision‑making skills, lack of prosocial pursuits, community functioning and poor emotional management skills. The respondent advised Ms Madrigali that he had actively sought out treatment to address his criminogenic behaviours while subject to home detention bail and was able to display some insight into his offending.
The final assessment report was the Stable Assessment Report prepared in Hakea Prison dated 23 September 2021. It is apparent that the report is a risk assessment using the Stable‑2007 risk assessment tool. The report would appear to have been prepared by prison staff, rather than as part of a review by a psychologist or other relevant expert (at least there is no evidence as to the expertise or experience of the person preparing the report). The weight to be accorded to the report must have regard to that limitation. Nevertheless, the report does, in my view, provide some useful evidence in relation to the respondent's current presentation and attitudes.
The Stable Assessment Report generally presents an unfavourable picture of the respondent and his risk as high.
The report records that:
[The respondent] interrupted the assessment process to discredit the victims, often referring to them as consensual partners or in derogatory terms. He continuously pointed out that he wants to live his life as a young 27 year old man and won't 'live under a rock like a 60 year old paedophile'. This highlights his belief that his own needs are more important than the opinion of general society, and how he may be 'falsely perceived' due to his current convictions, despite his lengthy history of sexual misconduct. He made grandiose statements of his own contribution to society and that he is a successful businessman.
The writer also said:
[The respondent] consistently ruminated on past sex offending charges and did not wish to speak about the current charge because he will have a 'breakdown' speaking of the offence in an emotionally volatile environment. He deliberately manipulated the conversation to highlight how the offence was difficult on his situation and discussing his offending would cause him stress. He would then navigate the situation to examples where he spoke highly of himself as a contributing member of society to avoid any feelings of negative self‑worth.
Finally, in relation to supervision, the report stated:
– [The respondent] has criminal convictions relating to not complying with his reporting obligations in WA and VIC.
– Although he completed his home detention bail for 2 years successfully, this appeared to be primarily motivated with demonstrating he can be trusted in the community to avoid prison time.
– At current assessment [the respondent] stated he is not impressed with being a reportable offender for life and stated because his obligations are impeding on his ability to achieve a normal life, he is planning to move overseas to avoid his reporting obligations.
My assessment
I am satisfied that there are reasonable grounds to believe that the Court might find the respondent to be a high risk serious offender. That is, I am satisfied that there are reasonable grounds for believing that the Court might be satisfied that it is necessary to make a restriction order in relation to the respondent, to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.
Of course, the evidence does not enable me to conclude that a restriction order will be made in relation to the respondent. In particular, I recognise that the psychological and psychiatric reports before me were prepared almost 10 years ago. The Court could, of course, only reach a conclusion to the high degree of probability required by s 7(1) of the Act on the basis of up‑to‑date reports prepared specifically for the purpose of the Act and an assessment of the respondent's risk in light of those reports.
The reports of Ms Oliveri and Dr Febbo are, however, not irrelevant to the assessment of the real possibility that the Court will find that the respondent is a high risk serious offender. Indeed, there are three matters, in my view, which support their continued relevance for present purposes.
First, the reports were consistent in identifying personality traits in the respondent that were of concern, including narcissistic and antisocial personality traits. Those personality traits are consistent with the nature of the respondent's past offending, which has involved grooming and manipulation of others. Those reports and the respondent's past offending point, in my view, towards a tendency on the part of the respondent to manipulate other persons for his own personal satisfaction and that that tendency has been a consistent feature of his personality. The fact that the respondent is evidently intelligent and articulate heightens, rather than lessens, the risk associated with those personality traits. An offender's propensity to commit serious offences and any pattern of offending are, of course, significant considerations in the Court's ultimate consideration of the issue in s 7(1) of the Act.
In this context, it is relevant, in my view, that Ms Oliveri and Dr Febbo in their reports place emphasis on the respondent's dysfunctional childhood, the significant instability and attachment problems and the impact of those matters on the respondent's personality. The personality traits of people who have suffered deprivation in their formative years, as the courts recognise, will often be a feature of a person's make‑up and often do not diminish with the passage of time.[13] This is not to say that the respondent's risk (or indeed his personality) is fixed for all time. It does, however, mean that the significant features of the respondent's personality identified by experts as he entered adulthood cannot be dismissed as 'ancient history'.
[13] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [43] ‑ [44] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).
Secondly, and relatedly, both Ms Oliveri and Dr Febbo recommended that, in order to reduce his risk of reoffending, the respondent should participate in some form of sex offender treatment program. That has not happened. While the Think First Program Completion Report dated 7 March 2014 reported that the respondent appeared to have made some gains, that program was not specifically directed to sexual offending. And, indeed, it did not prevent the respondent from sexual offending upon his release in both Western Australia and Victoria.
The evidence does reveal that the respondent participated extensively in programs while in custody in Victoria. That is to his credit. Those programs appear to have focused primarily on issues of drug and alcohol abuse. It does not appear from that material that the respondent participated in programs specifically directed towards sexual offending. That remains, in my view, an unmet treatment need.
I turn then to the third relevant matter in Ms Oliveri and Dr Febbo's reports. They both identified a high risk of reoffending, which in fact eventuated. The correctness of their risk assessments at that time, in my view, provides support for the reliability of their reports generally.
The reports prepared since the respondent was sentenced in August this year, limited though they may be, also confirm in my view that the respondent continues to have unmet treatment needs. Those reports also suggest that the respondent continues to exhibit the personality traits identified by Ms Oliveri and Dr Febbo as he entered adulthood. In the circumstances, in my view, it cannot be said that the risk associated with the respondent's personality and his unmet treatment needs have now reduced to an acceptable level.
For these reasons, I was satisfied that there are reasonable grounds to believe that the Court might find that he is a high risk serious offender. I therefore made orders for the hearing of the restriction order application and for the respondent to be examined by a psychiatrist and qualified psychologist for the purposes of preparing reports to be used at that hearing.
Interim supervision order
In the meantime, as I noted previously, the State submitted that I should make an interim supervision order pending the determination of the restriction order application.
The power to make an interim supervision order is found in s 58 of the Act. Pursuant to s 58(2), that section applies if:
(a)proceedings on a restriction order application are pending;
(b)the offender to whom the pending proceeding relates is not in custody; and
(c)the Court is satisfied that to ensure adequate protection of the community, it is desirable to make an order under that section.
There is no issue as to whether s 58(2)(a) and (b) are met. The proceedings on the restriction order application are pending and, for reasons I have previously been given, I am satisfied that s 58(2)(b) of the Act applies in relation to a person who would not be in custody on a specified future date, from which the order is to take effect.[14]
[14] The State of Western Australia v Hart [2021] WASC 205 [32] ‑ [33] (Quinlan CJ).
The real issue in the present case is whether it is desirable to ensure that the adequate protection of the community is met.
The respondent accepted that it was desirable to make an interim supervision order and I am satisfied that it is.
In particular, in my view, it is desirable in order to ensure adequate protection of the community, that the respondent's interaction with girls within the age that he has offended (13 years to 16 years) be carefully monitored and supervised. While the respondent's early offending involved physical sexual activity with his victims, it has been a consistent feature of his offending, in 2010 to 2011, 2015 and later in Victoria, that he has used electronic and online communication to groom underage girls. It is important, as the respondent will now have access to such communication upon his release, that his use of such communication be able to be effectively monitored by the authorities.
For those reasons, I made an order that the respondent be subject to an interim supervision order, commencing on his release date of 4 December 2021, until further order of the Court.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
3 DECEMBER 2021
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