The State of Western Australia v Lynch

[2022] WASC 104

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- LYNCH [2022] WASC 104

CORAM:   QUINLAN CJ

HEARD:   25 MARCH 2022

DELIVERED          :   25 MARCH 2022

PUBLISHED           :   25 MARCH 2022

FILE NO/S:   SO 4 of 2022

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

SHAUN GERARD BROES LYNCH

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(2) made
Interim supervision order made

Category:    B

Representation:

Counsel:

Applicant	:	F M Allen with A N Kildea
Respondent	:	T Hager

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Tony Hager

Cases referred to in decision:

Nil

QUINLAN CJ:

(This judgment was delivered extemporaneously on 25 March 2022 and has been edited from the transcript.)

Introduction

1. On 3 February 2022, the State of Western Australia applied for a restriction order in respect of Shaun Gerard Broes Lynch under the High Risk Serious Offenders Act 2020 (WA) (the Act).

2. The preliminary hearing of the application came before me today.

3. 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 Mr Lynch is a high risk serious offender within the meaning of the Act.

4. The State seeks orders pursuant to s 46(2) of the Act, including orders that:

   (a)Mr Lynch undergo an examination by a psychiatrist and by a psychologist for the purpose of preparing reports; and

   (b)that he be subject to an interim supervision order until the final determination of the application.

5. Mr Lynch's counsel accepted that the requirements of s 46 were met and, for the reasons I will give, I accept that that concession was properly made.

6. I am also satisfied, for the reasons I will give, that a supervision order is appropriate, pending the final determination of the application.

The law

1. As I have said, 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 Mr Lynch is a high risk serious offender.

2. 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, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.

3. A 'serious offence' within the meaning of the Act, relevantly, includes criminal damage by fire (arson).

4. 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.

The evidence

1. The evidence in support of the application by the State, consisted of an affidavit of Daniel Sean McDonnell, affirmed on 4 February 2022, which contains Mr Lynch's criminal history and several previous reports in relation to him. The State also relies upon an affidavit of Heather Applin, affirmed on 22 March 2022.

2. Mr Lynch is now 38 years old.

3. He has a somewhat sporadic history of violent offending, which has included a small number of 'serious offences' within the meaning of the Act.

Recent offending

1. Mr Lynch's most recent offending was a serious case of arson.

2. On 12 January 2018, Mr Lynch had attended at the Maylands Medical Centre, where he became agitated and aggressive after the general practitioner advised that he should reduce the medication that he had been prescribed for an anxiety condition. He called his adoptive mother, saying words to the effect 'pick me up before I kill these people', referring to the staff at the medical centre. His mother picked him up, at which time Mr Lynch was with two police officers who had been called as a result of his aggressive behaviour. Mr Lynch's mother took him home.

3. During the drive home, Mr Lynch made threats in relation to his biological father, who was living with his adoptive family at the time. When they arrived home, Mr Lynch's mother told him to adjust his attitude and stop making threats. He went to the kitchen, picked up a knife, held it and pointed it at his mother. She told him to put the knife down, which he did. His mother collected the knife and left the house as she was fearful and upset.

4. Mr Lynch then became aggressive towards his adoptive father and his biological father, who decided to leave the property. They drove off before realising that they had left behind a boarder at the property. They returned to the property to collect the boarder.

5. At the same time, the boarder was inside his caravan and heard Mr Lynch screaming 'I'm going to kill them'. The boarder left his caravan when he heard a loud bang. He saw Mr Lynch use a match to light a piece of paper, which he used to set fire to a gas bottle in the garage before going back inside the house.

6. Mr Lynch's adoptive father attempted to extinguish the fire and attempted unsuccessfully to get Mr Lynch out of the house. Police arrived and also tried unsuccessfully to get Mr Lynch out of the house. Further gas bottles exploded, causing the house to be engulfed in flames and some nearby bushland to catch fire.

7. While the house was burning Mr Lynch, was on the balcony on the second storey, yelling at the police. He then jumped from the balcony and sustained significant injuries to his head and shoulder. He was admitted to hospital and his blood alcohol level was measured at 0.14 per cent.

8. The house and all of its contents were entirely destroyed.

9. As a result of the incident, Mr Lynch no longer has contact with his adoptive parents and his adoptive mother has a lifelong violence restraining order against him.

10. For this offence of arson Mr Lynch was sentenced to 4 years and 6 months imprisonment.

11. Mr Lynch is currently on parole in relation to that sentence, having been released to parole on 14 June 2021. He is living with his partner.

12. His sentence will come to an end on 12 July 2022.

Past offending

1. Mr Lynch has a previous history of violent offending, although it does not reveal a clear pattern of any particular type of offending.

2. His most recent conviction for arson, for example, while clearly serious, is the only one of its kind. As Finannca J observed in sentencing for that offence:

   [A]s [he had] not previously had a history of lighting fires, [he was] assessed as having a low to moderate risk of re-offending in a similar way.

3. The other two convictions for 'serious offences' within the meaning of the Act are a conviction for armed robbery and a conviction for aggravated indecent assault in 2014 and 2011 respectively.

4. The conviction for armed robbery involved Mr Lynch attempting to rob a Scout's Hall while a Scout meeting was in progress. Mr Lynch rummaged through the Scout members' bags and threatened a Scout leader with an uncapped syringe. The Scout leader refused to entertain his demands, and Mr Lynch left the scene.

5. The conviction for aggravated indecent assault was one of a series of disturbing offences committed by Mr Lynch on 16 and 17 July 2010. The victim in that case was Mr Lynch's then partner. The offences were committed when Mr Lynch was under the influence of alcohol and Valium. They included Mr Lynch lunging at the victim with half a pool cue, cutting her under the eye, and then using a knife to strike her with the handle a number of times before slashing her thighs. On the same occasion, he burnt her with a cigarette, punched her on a number of occasions, hit her with a beer bottle, and cut off her hair with scissors. He also poured human urine over her as a form of degradation. Given their depravity, it is perhaps surprising that only one of these offences was a serious offence within the meaning of the Act.

6. In 2019 Mr Lynch was convicted of assault occasioning bodily harm which occurred on 27 September 2017 when Mr Lynch attacked his biological mother's husband, punching him in the face and striking him in the neck with a blade.

7. Mr Lynch has undoubtedly experienced a difficult upbringing. He was born in Victoria. His biological parents were both addicted to illicit substances, and his family life was marred by domestic violence, including violence perpetrated against him and his sister. When he was six years of age, Mr Lynch and his sister were taken into State care and placed in separate group homes. Mr Lynch described experiencing abuse while in group homes. He and his sister were eventually fostered together.

8. Mr Lynch was ultimately adopted by his adoptive family. As they lived in Western Australia, he was relocated to Perth.

9. Mr Lynch has a long history of substance and alcohol abuse. He commenced using illicit substances at a very young age. He began using cannabis and alcohol, and progressed into using methamphetamines at the age of 13. He has also abused prescription medications that were not prescribed to him.

10. In 2017 Mr Lynch had a Naltrexone implant inserted. That assisted him with his substance abuse, although he was still drinking in excess at the time of the most recent offending. It therefore has had limited impact in that regard. Indeed, substance use appears to be an inherent part of Mr Lynch's offending history.

11. Mr Lynch has been with his current partner for a number of years now. They have a young child together and it appears that his partner has remained supportive of him despite his recent offending and is a positive influence on his life.

12. Mr Lynch is a qualified gyprock installer and has held employment in that trade in the past.

13. During his time in custody, Mr Lynch has completed an Addictions Offending Pathways Program twice, once in 2012 and once in 2021; a Stopping Family Violence Program in 2020; Narcotics Anonymous in 2020; and five Substance Abuse Counselling Sessions with Whitehaven Clinic in 2019.

14. The Program Completion Report from the Pathways Program that Mr Lynch completed in April 2021 noted that:

    Mr Lynch demonstrated significant development in self-confidence, ability to articulate, personal awareness and his use of communication skills, he also demonstrated an ability to self-advocate to get his needs met.

    Mr Lynch made gains in addressing his treatment need around his entrenched substance use pattern. He developed insight into his past thoughts and behaviours and linked his disorganised early childhood to his early introduction to substances. Mr Lynch made goals and structured plans to enable himself to adhere to his goal of remaining completely illicit substance and alcohol free in the future. He indicated stability in his relationship, accommodation along with employment and regular counselling as part of his plan along with setting boundaries, assertiveness, and refusal skills …

    Mr Lynch made gains in addressing his treatment need around negative peers and family. Commencing the program Mr Lynch stated that he and his partner had relocated to Albany to distance themselves from negative associations and to ensure that Mr Lynch had a fresh start upon release from prison.

    Mr Lynch created an extensive relapse and recidivism prevention plan which outlined the following: Stable accommodation with his pro-social partner in Albany post release. He indicated options for employment through his experience in the building industry gyprocking and plastering. He has a second option in hospitality as an experienced chef. Mr Lynch stated he plans to engage with a local GP upon release to open a mental health care plan to ensure continuity of medication and access to psychological counselling to address past trauma and manage his diagnosis of PTSD.

    …

    Mr Lynch has made significant gains over the program and may benefit from supervision within the community to solidify these gains.

15. The Community Corrections Officer's Review Report dated 26 May 2021 nevertheless noted:

    Despite Mr Lynch completing his recommended treatment programs… there appears ongoing needs relating to his emotional management, abuse of prescription medication and illicit substance use. Although Mr Lynch claims to be willing to continue to address these issues via further targeted intervention upon his release, historically this has not prevented him from returning to the same behaviour.

16. As I mentioned, Mr Lynch is currently on parole and the evidence suggests that he has complied with the conditions of his parole thus far. Ms Applin notes that:

    Throughout the term of Mr Lynch's Parole, there has [sic] been no issues with the accommodation and his relationship with his partner has been positive.

17. I turn now to my assessment.

Assessment

1. I am satisfied there are reasonable grounds to believe that a court might find that Mr Lynch is a high risk serious offender.

2. While Mr Lynch has a significant criminal history, he does not have an entrenched pattern of committing 'serious offences' within the meaning of the Act.

3. Nevertheless, Mr Lynch does have a sporadic history of violent offending, which is often associated with his alcohol and drug use. He has also demonstrated that when he has offended, that offending has had serious, and at times devastating, consequences. I am satisfied there are reasonable grounds to believe that if Mr Lynch is unable to control his problems with drugs and alcohol, he will return to the kind of violent offending that has seen him imprisoned in the past.

4. Mr Lynch has been apparently making significant progress on parole, and it may be that by the time of the hearing of the restriction order application he will have made such progress that the requirements of s 7 of the Act may not be met, and it will not be necessary for him to be the subject of a restriction order. That remains to be seen, but on the current material his progress in the community appears to have been good.

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

Interim supervision order

1. Turning then to the question of an interim supervision order, in the present case, the State does not seek an interim detention order, but it submits that an interim supervision order is desirable for the adequate protection of the community.

2. In the circumstances, Mr Lynch has consented to an interim supervision order being made and accepts that it is desirable for the adequate protection of the community. That consent, which is to his credit, demonstrates a recognition of the importance of his supervision in the community. It may have been that his supervision in the community would be sufficiently addressed by his existing parole conditions.

3. Nevertheless, as his parole expires and his sentence expires on 12 July 2022 (prior to the hearing of the application) it is desirable for the adequate protection of the community to continue the stability of Mr Lynch's supervision between now and the hearing of the restriction order application.

4. Mr Lynch's performance while on supervision, up to and including the time of the restriction order application, will, of course, be a highly relevant consideration as to whether the court hearing the restriction order application will be satisfied that he is a high risk serious offender within the meaning of the Act.

5. For those reasons, I accept the concession in relation to the imposition of an interim supervision order and will make an interim supervision order, effective today.

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

LH

Principal Associate to the Honourable Chief Justice Quinlan

25 MARCH 2022