The State of Western Australia v Lewis
[2019] WASC 429
•20 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- LEWIS [2019] WASC 429
CORAM: MCGRATH J
HEARD: 20 NOVEMBER 2019
DELIVERED : 20 NOVEMBER 2019
FILE NO/S: DSO 8 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JONATHON NEAL LEWIS
Respondent
Catchwords:
Dangerous Sexual Offenders Act - Preliminary hearing - Whether reasonable grounds that an order might be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7(1), s 8, s 11, s 14, s 17, s 37
Result:
Application granted
Orders sought by applicant made
Category: B
Representation:
Counsel:
| Applicant | : | Ms H K Watson |
| Respondent | : | Mr B G Illari |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | B G Illari |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Dodd [2015] WASC 249
Director of Public Prosecutions (WA) v Free [2010] WASC 255
MCGRATH J:
(This judgment was delivered extemporaneously on 20 November 2019 and has been edited from the transcript.)
The State of Western Australia applies, pursuant to s 8(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act), for orders under s 14 and s 17(1) of the Act in respect of Mr Lewis.
In accordance with s 11 of the Act, the purpose of this preliminary hearing is to determine whether the court is satisfied that there are reasonable grounds for believing that the court might find that Mr Lewis is a serious danger to the community under s 7(1) of the Act. That is, to determine whether the court is satisfied that there are reasonable grounds for believing that a court might find that there is an unacceptable risk that if Mr Lewis were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.
The application is opposed by Mr Lewis.
For the following reasons, I have determined that the orders sought should be made. In these reasons for decision, I will consider the following:
(a)the relevant legal principles;
(b)the factual background and evidentiary material; and
(c)an assessment of the application.
Relevant legal principles
Section 8 of the Act provides that the Director of Public Prosecutions may file an application for orders under s 14 and for a Division 2 order if the respondent is under a custodial sentence for a serious sexual offence and there is a possibility that the respondent might be released from custody within the period of one year after the application is made.
Further, s 11 of the Act provides that the application must be the subject of a preliminary hearing before the court.
The main purpose of a preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community.[1] That is, to determine whether the court is satisfied that there are reasonable grounds for believing that the court might find that there is an unacceptable risk that, if the offender is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.[2]
[1] Dangerous Sexual Offenders Act 2006 (WA), s 11(3).
[2] Dangerous Sexual Offenders Act 2006 (WA), s 7(1).
Section 14(1) of the Act provides that at the preliminary hearing, if the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community, the proper officer of the court must, subject to s 7(2A), fix a day for the hearing of the application for a Division 2 order.
Further, the court must order that the respondent undergo examinations by two qualified experts named by the court, at least one of whom is to be a psychiatrist, for the purposes of preparing reports in accordance with s 37 to be used on the hearing of the application for the Division 2 order.[3]
[3] Dangerous Sexual Offenders Act 2006 (WA), s 14(2)(a).
In Director of Public Prosecutions (WA) v Free[4] McKechnie J made the following observations in relation to the requirements of s 14(1) which I apply in respect of this application:
A judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made ...
It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description. The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made. At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.
The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation. In George v Rockett (1990) 170 CLR 104:
'When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.'
Further on:
'The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.'
The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.
[4] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [10] ‑ [13].
Similar observations in relation to the requirements of s 14(1) were made by Simmonds J in Director of Public Prosecutions (WA) v Dodd.[5]
[5] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [34] ‑ [42].
I will now consider the material before the court which bears upon my determination of the question posed by s 14(1) of the Act.
Factual background and evidence
The State's application is supported by an affidavit of Ms Watson which produces relevant documentary material and an outline of submissions.[6] Mr Lewis relies upon the affidavit of Ms Anderson, legal practitioner, which outlines the antecedents of Mr Lewis as well as an outline of submissions.[7]
[6] Exhibit 1: Affidavit of Heidi Karen Watson affirmed 26 September 2019; Applicant's Outline of Submissions for Preliminary Hearing dated 12 November 2019.
[7] Exhibit 2: Affidavit of Sonia Anderson affirmed 15 November 2019; Respondent's Outline of Submissions for Preliminary Hearing dated 15 November 2019.
Mr Lewis was born on 1 September 1988 in Albany and is 31 years of age. There is no evidence of childhood trauma, neglect or abuse.[8] Mr Lewis has no children and is not in a relationship.[9] Mr Lewis completed his education to Year 12, attending education support classes.[10] Mr Lewis has cognitive and attention difficulties.[11] In 2009, Mr Lewis was assessed with the Wechsler Abbreviated Scale of Intelligence (WASI).[12] The WASI assists in identifying cognitive difficulties that may influence a person's capacity to function and work within the community.[13]
[8] Pre-sentence report dated 7 May 2018, Annexure X to the Affidavit of Ms Watson.
[9] Pre-sentence report dated 7 May 2018, Annexure X to the Affidavit of Ms Watson.
[10] Pre-sentence report dated 7 May 2018, Annexure X to the Affidavit of Ms Watson.
[11] Pre-sentence report dated 7 May 2018, Annexure X to the Affidavit of Ms Watson.
[12] Psychological Report of Ms Wager dated 19 June 2009, Annexure P to the Affidavit of Ms Watson.
[13] Psychological Report of Ms Wager dated 19 June 2009, Annexure P to the Affidavit of Ms Watson.
The Full Scale Intelligence Quotient obtained from the WASI testing suggested that Mr Lewis would rank in the low average range of scores (19th percentile), indicating that 81% of similar aged peers would perform as well as or better than Mr Lewis on the subtests presented.[14] The results on the performance subtests was significantly higher than his score on the verbal subtests.[15]
Criminal history
[14] Psychological Report of Ms Wager dated 19 June 2009, Annexure P to the Affidavit of Ms Watson.
[15] Psychological Report of Ms Wager dated 19 June 2009, Annexure P to the Affidavit of Ms Watson.
Mr Lewis has a criminal history that relevantly comprises sexual offending.[16] In July 2009, Mr Lewis was convicted of one charge that on 1 January 2005 he attempted to sexually penetrate a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA).[17] That offending was dealt with in the Perth Children's Court. In October 2010, Mr Lewis was convicted of one count that on 13 March 2010 he sexually penetrated a child over 13 years of age and under 16 years of age contrary to s 321(1) of the Criminal Code.[18] In June 2018, Mr Lewis was convicted of:
(a)one count that on 31 March 2017, with intent to commit a crime, he showed offensive material to a child contrary to s 204A(2) of the Criminal Code;
(b)one count that on 31 March 2017 he procured a child over 13 years of age and under 16 years of age to do an indecent act contrary to s 321(5) of the Criminal Code;
(c)one count that on 31 March 2017 he involved a child in child exploitation contrary to s 217(2) of the Criminal Code; and
(d)one count that on 1 April 2017 he failed to comply with reporting obligations contrary to s 63(1) of the Community Protection (Offender Reporting) Act2004 (WA).[19]
[16] Western Australian Criminal Record, Annexure B to the Affidavit of Ms Watson.
[17] Prosecution Notice dated 16 April 2009, Annexure D to the Affidavit of Ms Watson.
[18] Indictment dated 10 September 2010, Annexure H to the Affidavit of Ms Watson.
[19] Indictment dated 5 June 2018, Annexure L to the Affidavit of Ms Watson.
Mr Lewis has also been convicted of a further offence in November 2013 of failing to comply with reporting obligations and in October 2010 he was convicted of breaching a Conditional Suspended Imprisonment Order.[20]
[20] Western Australian Criminal Record, Annexure B to the Affidavit of Ms Watson.
I will now provide a short summary of Mr Lewis' relevant offending.
2005 offending – attempted sexual penetration of a child under 13 years of age
In January 2005, Mr Lewis committed the offence of attempted sexual penetration of a child under 13 years of age. Mr Lewis was 16 years of age at the time of the offending and the victim was a 12 year old girl who was asleep in the bedroom of Mr Lewis' sister having a sleep-over. The facts upon which Mr Lewis was sentenced stated that Mr Lewis entered his sister's bedroom in the middle on the night, approached the victim, lifted her nightie, pulled off her underwear and laid on top of her, holding her down with his body weight. At that time Mr Lewis attempted to penetrate the victim's vagina with his penis but was unable to effect penetration. His Honour Judge O'Neal imposed an 18 month term of imprisonment, conditionally suspended for 2 years with reporting and programme requirements.[21]
[21] Sentencing remarks dated 6 July 2009, Annexure F to the Affidavit of Ms Watson.
The maximum penalty for that offence is 10 years' imprisonment and therefore falls within the definition of a serious sexual offence under the Act.
2010 offending - sexually penetrated a child over 13 years of age and under 16 years of age
On 13 March 2010, Mr Lewis committed the offence of sexually penetrating a child over 13 years of age and under 16 years of age. Mr Lewis and the victim contacted each other by text messages and arranged to meet at a location later that evening. Mr Lewis left his family residence late at night to meet the victim. At the time of the meeting Mr Lewis had sexual intercourse with the victim who was 14 years of age. Mr Lewis knew that the victim was only 14 years of age at the time of the sexual intercourse. The sentencing judge found that there was no force or coercion used by Mr Lewis. Mr Lewis was sentenced to an immediate term of 18 months' imprisonment for the offence and for breaching the Conditionally Suspended Imprisonment Order previously imposed.[22]
[22] Sentencing remarks dated 8 October 2010, Annexure J to the Affidavit of Ms Watson.
The maximum penalty for that offence is 14 years' imprisonment and, therefore, falls within the definition of 'serious sexual offence' under the Act.
2017 offending
I now turn to the facts upon which Mr Lewis was sentenced for the 2017 offending.[23] Between 1 April 2017 and 30 May 2017, Mr Lewis used a social media networking chatroom to contact the victim who was aged between 13 and 14 years of age.[24] The gravamen of count 1 is that Mr Lewis sent videos of himself masturbating to the victim. Mr Lewis encouraged the victim to then record and send indecent images and videos of herself engaging in sexual acts. Count 2 is in relation to Mr Lewis encouraging the victim to engage and perform sexual acts on herself, in particular, through the act of touching her vagina.
[23] Amended Statement of Material Facts, Annexure K to the Affidavit of Ms Watson.
[24] Indictment dated 5 June 2018, Annexure L to the Affidavit of Ms Watson.
Count 3 is in respect of Mr Lewis requesting the victim play with herself for his benefit by the victim touching her vagina and breasts and sending videos and images of her performing those actions to him. Accordingly, the victim sent images of her bare breasts and vagina as well as videos of her engaging in masturbation to Mr Lewis.
Count 4 is with respect to Mr Lewis failing to meet his reporting obligations under the Community Protection (Offender Reporting) Act. Under his reporting obligations, Mr Lewis was required to attend regular meetings with his case manager and report changes in his personal details within 24 hours or 7 days of those events occurring, depending on what details changed. During the period of April 2017 to 30 January 2018, Mr Lewis failed to provide details to his case manager relating to online accounts he was using to communicate with other people. Mr Lewis admitted to the police that he knowingly withheld this information from his case manager as he did not want them to be aware of his actions, the subject of counts 1 ‑ 3.
The sentencing judge imposed a total effective sentence of 25 months' imprisonment for these offences.[25]
[25] Sentencing transcript dated 18 June 2018, Annexure N to the Affidavit of Ms Watson.
The maximum penalty for count 2 on the indictment, being procuring a child over the age of 13 years and under the age of 16 years, to do an indecent act contrary to s 321(5)(8) of the Criminal Code is 7 years' imprisonment. Therefore, the offence falls within the definition of 'serious sexual offence' under the Act.
Reports
Given that this is a preliminary hearing, no reports were prepared. However, a number of reports in relation to Mr Lewis which have been prepared for previous sentencing hearings were produced by the applicant.[26] I will outline the salient aspects of the principal reports.
[26] Exhibit 1: Affidavit of Heidi Karen Watson affirmed 26 September 2019.
By way of letter dated 16 March 2009, Dr Paul Skerritt, psychiatrist, stated that Mr Lewis' intellectual disability was 'relatively high level intellectual disability allowing special education in mainstream school but leading to difficulties getting established in the workforce'.[27]
[27] Letter of Dr Skerritt dated 16 March 2009, Annexure O to the Affidavit of Ms Watson.
Ms Wendy Wager, psychologist, provided a report dated 19 June 2009 for the purposes of sentencing in respect of the attempted aggravated sexual penetration offence.[28] Ms Wager stated that Mr Lewis appeared 'quite ignorant regarding sexual matters' and that he had not been given basic sexual education. Ms Wager also stated it was possible that his apparent emotional immaturity may impact negatively upon his capacity for appropriately managing his sexual behaviour.
[28] Report of Ms Wager dated 19 June 2009, Annexure P to the Affidavit of Ms Watson.
Ms Wager stated that Mr Lewis' Full Scale Intelligence Quotient suggested that he would rank in the low average range of scores, with 81% of similar aged peers performing as well as or better than him on the subtests presented. His performance scores (as opposed to his verbal subtests) placed him higher at the 42nd percentile, meaning that around 58% of similar aged peers would be expected to perform as well as or better than Mr Lewis.
Ms Wager stated that Mr Lewis lacked insight and maturity and experienced difficulties in developing sophisticated emphatic skills but seemed willing to moderate his desires. Ms Wager concluded that Mr Lewis' offending appeared opportunistic rather than the result of a deviant sexual interest or habit and that he was at a low risk of reoffending in a similar manner. Ms Wager stated that future sexual frustration due to a high level of sexual ignorance is a factor which could increase Mr Lewis' risk of future sexual inappropriateness.
By way of letter dated 23 June 2010, Dr Skerritt observed that Mr Lewis showed signs of depression and was consequently prescribed medication.[29] Mr Lewis reported to Dr Skerritt that he tended to play with 13 to 14 year old females as he felt that he could relate to them better but denied a sexual attraction to girls of that age. Dr Skerritt advised that Mr Lewis' sexual offending was 'heavily influenced by [his] intellectual disability'. Dr Skerritt noted that Mr Lewis did not have the capacity in his executive function to assess that he should have avoided sexual conduct with those too young to give consent and noted that such difficulty 'will probably not be much different through his life'.
[29] Letter from Dr Skerritt dated 23 June 2010, Annexure S to the Affidavit of Ms Watson.
Dr Roxanne Buktenica provided a psychological report dated 25 September 2010.[30] The report was prepared for the court for the purposes of sentencing in respect of the offence of sexually penetrating a child over 13 years of age and under 16 years of age in 2010. Dr Buktenica observed that Mr Lewis' behaviour during the interview was consistent with him having an intellectual disability and that he exhibited a difficulty in understanding questions that required more complex reasoning. Further, Mr Lewis exhibited minimal insight into many of his behaviours. Dr Buktenica observed that Mr Lewis was diagnosed with an intellectual disability in primary school and was placed in special education classes for his schooling, for which he completed Year 12.
[30] Report of Dr Buktenica dated 25 September 2010, Annexure T to the Affidavit of Ms Watson.
Dr Buktenica advised that on the Static-99 testing, a risk assessment measuring tool utilising actuarial models based on static, unchanging risk factors, Mr Lewis' score of 4 placed him in the medium‑high risk category, with a 26% risk of reoffending sexually over 5 years and a 31% risk over 10 years. Dr Buktenica did not find that Mr Lewis had any outstanding treatment needs in the area of sexual interest. In relation to distorted attitudes, Dr Buktenica was of the view that Mr Lewis did not have a distorted belief that the behaviour was acceptable but rather he offended due to opportunity and lack of consequential thinking. Dr Buktenica noted that Mr Lewis had deficits in social, interpersonal, emotional and intimate functioning, presented with poor social skills and had poor self‑esteem.
A pre‑sentence report dated 28 September 2010 was prepared for the sentencing of Mr Lewis in 2010.[31] The author of the pre‑sentence report stated that Mr Lewis had a relatively high level intellectual disability and the offending occurred due to his lack of consequential thinking, possibly indicative of his immaturity and poor level of intellectual functioning. The author suggested that Mr Lewis' behaviour is linked to his developing sexual awareness rather than the result of having a deviant sexual interest.
[31] Pre-sentence report dated 28 September 2010, Annexure U to the Affidavit of Ms Watson.
Ms Erin Sweeney produced a psychological report dated 1 May 2018 for the sentencing of Mr Lewis in 2018.[32] Ms Sweeney stated that Mr Lewis appeared to minimise the extent of his sexual arousal and masturbation and stated that he resorted to masturbation to cope with rejection, loneliness and boredom. Further, Mr Lewis' cognitive level effects his interpersonal interactions and his attention impairments restrict his skill development and problem solving, consequential thinking and emotional development, including his ability to accurately assess emotions in others.
[32] Psychological report of Ms Sweeney dated 1 May 2018, Annexure W to the Affidavit of Ms Watson.
Ms Sweeney assessed Mr Lewis' risk of reoffending sexually by using the Static-99R tool (measuring static risk) and the Stable 2007 tool (looking at dynamic risk factors). Under the Static-99R tool, Ms Sweeney estimated that Mr Lewis had a 'well above average risk' compared to other sex offenders. Under the Stable 2007 tool, with respect to the relevant factors for treatment and supervision, noteworthy factors were capacity for relationship stability, sex drive/sexual preoccupation, sex as coping and deviant sexual preference. Mr Lewis' risk was placed in the moderate range. However, when the two risk tools were combined to provide a composite assessment of risk and need, Mr Lewis' score placed him as a well above average risk with the rate of reoffending in this group being three to four times the average rate of reoffending for individuals convicted of sexually motivated offences. Ms Sweeney stated that the level of Mr Lewis' risk may be reduced with sufficient treatment, life changes and remaining offence free for a significant period.
Treatment programs
In 2010, Mr Lewis completed the People 1st Programme which focuses on sexual awareness and behaviour in intellectually disabled offenders.[33] The report, dated September 2010, stated that whilst Mr Lewis was able to articulate concepts that were taught, he required further work in identifying when others felt scared. Mr Lewis committed further sexual offences within two months of completing the course.
[33] People 1st Programme Report of Ms Alderson dated September 2010, Annexure R to the Affidavit of Ms Watson.
Mr Lewis was assessed as suitable to participate in both the Sex Offending Intellectual Disability Programme medium intensity and the Legal and Social Awareness Program medium intensity.[34] However, Mr Lewis declined to participate in either program due to the fact that he would be required to transfer from Albany Regional Prison to another location in order to complete the course.[35]
[34] Parole Assessment Report of Mr Anderson dated 31 May 2011, Annexure V to the Affidavit of Ms Watson.
[35] Parole Assessment Report of Mr Anderson dated 31 May 2011, Annexure V to the Affidavit of Ms Watson.
Regrettably, the Sex Offending Intellectual Disability Programme has not been available for Mr Lewis.
Assessment
Count 2 on the 2018 indictment for which Mr Lewis is currently serving his term of imprisonment is a 'serious sexual offence' as defined in s 3 of the Act and s 106A of the Evidence Act 1906 (WA). Further, given Mr Lewis' expected date of release is 29 February 2020, the statutory requirement that Mr Lewis might be released within the next 12 months has also been satisfied. Accordingly, the threshold for the State making the application under s 8 of the Act is met.
Counsel for Mr Lewis submitted that there are no reasonable grounds for believing that the court might, under s 7(1) of the Act, find that Mr Lewis is a serious danger to the community.
On behalf of Mr Lewis, it was submitted that he has only offended in an opportunistic manner which arises from his difficulties with consequential thinking and self-management rather than from sexual deviancy. It is contended that the offending is more related to Mr Lewis' intellectual difficulties. Further, Mr Lewis is a person who is willing to engage positively with treatment options and has the support of his family. In addition, the offending in 2018 was committed online without any risk of actual physical contact. It is submitted that there is no pattern to Mr Lewis' offending.
I do not accept Mr Lewis' submission. I am satisfied that there are reasonable grounds for believing that the court might determine that Mr Lewis is a serious danger to the community.
Mr Lewis has a history of offending in a sexual manner against young girls between the ages of 12 to 14 years. That offending includes sexual penetration, attempted sexual penetration and using the internet to procure a child to do an indecent act and to disseminate sexual material. Since 2005 Mr Lewis has offended against three different young girls on three separate occasions over a 12 year period. The offending in 2018 showed a persistence in his offending marked by frequent requests over an extended period for the young victim to engage in sexual acts online. Although there was no actual risk of physical contact, the young victim was effectively groomed to engage in sexual acts. When the assessment tools of Stable 2007 and Static‑99R are combined, Mr Lewis has a well above average risk of reoffending. The risk of Mr Lewis reoffending has increased during the period of his offending. It is not necessary that there be a causal link between some form of sexual deviancy and the offending. In addition, Mr Lewis has unmet treatment needs. That Mr Lewis' family is willing to support him is not enough.
Conclusion
Accordingly, in all the circumstances, I am satisfied that there are reasonable grounds for believing that the court might under s 7(1) of the Act find that Mr Lewis is a serious danger to the community. That is, I have a belief in the possibility that the court will be satisfied to a high degree of probability that Mr Lewis is a serious danger to the community. I, therefore, allow the application under s 14(1) of the Act and will make the orders sought by the applicant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DH
Research Orderly to the Honourable Justice McGrath22 NOVEMBER 2019
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