The State of Western Australia v Long
[2024] WASC 237
•1 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- LONG [2024] WASC 237
CORAM: QUINLAN CJ
HEARD: 28 JUNE 2024
DELIVERED : 28 JUNE 2024
PUBLISHED : 1 JULY 2024
FILE NO: SO 6 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
WESLEY LONG
Respondent
Catchwords:
Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 3, s 7, s 35, s 46, s 58
Sentence Administration Act 2003 (WA), s 66
Result:
Orders pursuant to s 46(2) made
Interim supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | A Woldan |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Aboriginal Legal Service |
Case referred to in decision:
The State of Western Australia v Winder [2021] WASC 65
QUINLAN CJ:
Introduction
On 9 June 2006, the respondent, Wesley Long, was sentenced to life imprisonment with a minimum of 9 years imprisonment for the murder of his partner. That crime, which Mr Long committed on 24 May 2005, came at the end of years of escalating violence by him against the victim. Mr Long's violence towards the victim was fuelled by alcohol and often involved the use of weapons, as it did on the day of the murder. On that day, Mr Long stabbed the victim with a knife; once to the centre of her back and then into her upper left breast through her rib cage and into her heart.
Mr Long spent 16 years in prison for the murder, until he was released on parole for three years from 7 July 2021. During his time in prison, Mr Long participated in many programs. He was described as a model prisoner, who earned privileges and held trusted positions (including as a peer support worker). Mr Long did not incur any prison charges and remained abstinent of drugs and alcohol for the entirety of his imprisonment. Numerous random substance tests returned negative results.
At the time of his release on parole, Mr Long was assessed, according to risk assessment tools, as presenting a moderate risk of violent reoffending and a high risk of intimate partner violence. It was nevertheless concluded that Mr Long's risk could be managed in the community, including by conditions designed to ensure his continued abstinence from drugs and alcohol and to monitor any future intimate relationships.
Mr Long's parole period is soon coming to an end (on 7 July 2024). While Mr Long appears to have been generally compliant with his parole conditions, he has been issued a number of warnings in relation to the use of alcohol. In addition, on 28 August 2023, Mr Long's parole was suspended as a result of him breaching a 72‑hour police order under the Restraining Orders Act 1997 (WA). On that occasion, Mr Long was found in company with his partner at licenced premises, both of which were prohibited.
The State now applies, by application dated 11 June 2024, for a restriction order in respect of Mr Long under the High Risk Serious Offenders Act 2020 (WA) (the Act).
The preliminary hearing of the application came before me today.
Mr Long, who is a Martu man and lives at the Jigalong Community in the Eastern Pilbara, appeared before me today via videolink. Mr Long and I were assisted in our communication by Mrs Brand, a Martu interpreter from Aboriginal Interpreting Western Australia. I record the Court's gratitude for Mrs Brand's able assistance.
Mr Long's counsel conceded that there are reasonable grounds to believe that the court might find that Mr Long is a high risk serious offender within the meaning of the Act and that it was open to impose an interim supervision order under the Act, pending the determination of the restriction order application.
I accepted those concessions and made orders for the hearing of the restriction order application. I also ordered that Mr Long be subject to an interim supervision order until the hearing of the application. The conditions of that order substantially reflect Mr Long's current parole conditions. Most importantly, the conditions require him to reside at Jigalong, follow the directions of a community corrections officer and stay away from alcohol.
These are my reasons for making those orders.
Some issues of law
I am satisfied that the State's application is permitted by s 35 of the Act, which provides that an application for a restriction order may be made in relation to a 'serious offender under a custodial sentence'. A person will be 'under a custodial sentence' within the meaning of the Act if they are subject to 'a sentence of imprisonment imposed by a court of Western Australia', the term of which has not lapsed (s 3), notwithstanding that the person is not presently in custody (s 35(2)).
Murder is a 'serious offence' within the meaning of the Act and Mr Long remains subject to his life sentence. Pursuant to s 66(2)(a) of the Sentence Administration Act 2003 (WA), a person sentenced to imprisonment is discharged from the sentence, if released under a parole order, at the end of the parole period. Accordingly, Mr Long's sentence of life imprisonment will expire on 7 July 2024, the end of his parole period.
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 Mr Long is a high risk serious offender within the meaning of the Act (s 46). That requirement sets a low threshold. As I said in The State of Western Australia v Winder:[1]
For the purposes of this hearing, I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. I emphasise the word might. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[1] The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
The evidence
In support of the application, the State relied upon an affidavit of Tanya-Maree Holloway affirmed on 11 June 2024 and an affidavit of Heather Applin affirmed on 26 June 2024. Ms Hollaway's affidavit contains Mr Long's criminal history, as well as several reports and assessments in relation to him. Ms Applin's affidavit deals with Mr Long's accommodation and arrangements for his supervision.
I have considered all of the affidavit evidence, and need not set it out in detail. Relevant features of it include the following.
Mr Long has only committed one 'serious offence' within the meaning of the Act, namely the murder of his partner on 24 May 2005. Prior to committing that offence, however, Mr Long had a long history of offending, including multiple convictions for aggravated assault, common assault, assault occasioning bodily harm, unlawful wounding, unlawful damage, burglary, breaking and entering and stealing as well as resisting arrest, hindering police, escaping custody, assaulting public officers and breaching a restraining order and bail.
Most relevantly, Mr Long's criminal history reveals an escalating pattern of domestic violence prior to his conviction for murder. This included convictions for unlawful wounding and other forms of violence against his partners in 1989, 1992, 1994, 1995, 1997, 1998 and 2002. Mr Long's violence against his partners often involved weapons, including knives.
Mr Long has undergone numerous psychological assessments over the years of his imprisonment. Early reports suggested that, while Mr Long does not manifest any mental illness, he 'is likely to be neurologically impaired to a degree by long-term alcohol abuse and/or head injury.'
Mr Long also participated in a number of programs throughout his sentence. In 2011, Mr Long participated in the Think First Program as well as the Indigenous Family Violence Program. Both programs were well attended by Mr Long, where he was observed to be quiet and requiring prompting to engage, behaviours that were considered consistent with his cultural background. Mr Long reportedly made gains in problem solving and a greater awareness of consequences.
In 2015, Mr Long participated in the Not Our Way Program designed to address family violence offending by Aboriginal men. Mr Long attended all sessions and, as in previous programs, was considered to be a quiet participant who required prompting. It was thought that he may have had difficulty in understanding and processing some information in the program.
After much assessment and preparation for possible release, by 2020 Mr Long was considered suitable for parole. On 4 November 2020, a senior forensic psychologist, Dr Lynley Poli, concluded that Mr Long presented a moderate risk of violent reoffending according to the Violence Risk Scale and a high risk of intimate partner violence according to the Spousal Assault Risk Assessment. Dr Poli noted that while those risk levels were the same as Mr Long's previous assessment in 2017, his overall scores on these measures had decreased. She also observed that Mr Long's risk level was unlikely to change with continued incarceration as he required the opportunity to test the skills that he had learned across a range of different high risk settings in the community.
Mr Long was assessed as suitable for parole with recommendations that he be regularly tested to ensure his abstinence from alcohol and that he receive further supervision and support in the community.
Mr Long was released on a 3‑year term of parole on 7 July 2021, although, as I have said, his parole was suspended on 28 August 2023. The background to that suspension was as follows.
On 25 August 2023, Mr Long was issued with a 72‑hour police order after he was seen arguing with his partner over food at a service station. His partner stated that they were only arguing and that he had not hit her but that she was fearful of him as he had hit her in the past and they fought regularly. The following day, Mr Long was observed at licenced premises in Newman in the company of his partner, the protected person under the police order. This constituted a breach of the police order as well as his parole order, under which he was not to enter licenced premises.
In the months leading up to this incident, Mr Long had been recorded as having relapsed into alcohol use. Mr Long reported pressures to enter bottle shops and drink with his new partner.
Mr Long was released to parole again on 17 April 2024 on the condition that he reside a Jigalong. His parole has since been without incident. Mr Long is no longer in a relationship with the woman the subject of the events in August 2023 and described himself as currently single.
Assessment
The assessment in this case is a difficult one. While Mr Long has a demonstrated history of serious violence towards intimate partners, including the most serious offence a person can commit (murder), his offending was many years ago and, as one of the psychologists observed, 'once removed from the environment in which the murder offence occurred, Mr Long has not demonstrated any aggressive or violent behaviour or problematic drug use'.
If Mr Long is able to keep away from alcohol, the State may have real difficulty satisfying the court to 'high degree of probability' that it is necessary to make a restriction order in relation to Mr Long to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. In that regard, the only 'serious offences' that the evidence suggests that Mr Long is realistically at any risk of committing are violent offences (such as doing grievous bodily harm or bodily harm with intent). There is no evidence to suggest that there is a risk of Mr Long committing any other kind of serious offence within the meaning of the Act.
Whether Mr Long can keep away from alcohol and patterns of violence against partners is therefore the critical question in assessing his risk.
As I have said, however, the issue before me today was not whether the court will find that Mr Long is a high risk serious offender, but whether it might do so. In my view, the evidence of his lapse back into alcohol use in late 2023 in the context of an intimate relationship, particularly in light of his history, gives me reasonable grounds to believe that the court might make that finding. That is, in my view, there is sufficient evidence to support the belief that Mr Long is at risk of falling back into alcohol use and, when in intimate relationships, returning to violence against women. If that happens, his behaviour could again escalate to violence constituting an offence such as doing grievous bodily harm or bodily harm with intent.
I therefore made orders for the hearing of the restriction order application.
In the meantime, I was also satisfied that it was desirable for the adequate protection of the community, that Mr Long continue to be supervised, in a like manner to his supervision under parole. It is, in my view, in Mr Long's interests that the supervision that has, so far, kept him relatively free of offending should continue for the time being. Every day that Mr Long is able to avoid relapse into alcohol use and is able to make a positive contribution to his community, the more likely it is that the court, and the community, can have confidence that, ultimately, Mr Long will be able to live without external supervision.
In order to provide the best protection for the community, the conditions of Mr Long's interim supervision order should be short, clear and easily understood. I am satisfied that the conditions that I imposed (which are included in the schedule to these reasons), meet that description.
Schedule
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer (CCO) on 2 July 2024 and advise the officer of your current name and address;
Report to and receive visits from a CCO as directed by the court;
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a CCO and comply with any reasonable directions of the officer (including a direction for the purposes of section 31 or 32);
Not leave, or stay out of, the State of Western Australia without the permission of a CCO;
Not commit a serious offence as defined by the Act the during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Take up residence at [REDACTED] Jigalong and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;
To remain at Jigalong Community while subject to this Order and not to leave Jigalong Community without prior permission of the CCO;
To abide by any Jigalong Community by-laws;
Restrictions on contact with Victims to a CCO and supervision by a CCO
Directions under condition 4 may include any direction in relation to contact with the family of the victim of your murder conviction.
Prevention of high-risk situations
Not to possess, or consume, or purchase, or use alcohol;
Attend for, and submit to, urinalysis or any other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place; and
Provide a valid sample pursuant to condition 13.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Associate to the Hon Chief Justice Quinlan
28 JUNE 2024