The State of Western Australia v Mackay
[2020] WASC 288
•6 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MACKAY [2020] WASC 288
CORAM: MCGRATH J
HEARD: 6 AUGUST 2020
DELIVERED : 6 AUGUST 2020
FILE NO/S: DSO 6 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
HERBERT WILLIAM MACKAY
Respondent
Catchwords:
Dangerous Sexual Offenders Act - Preliminary hearing - Whether reasonable grounds for believing a div 2 order might be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 8, s 11, s 14, s 17, s 37
Result:
Application granted
Orders sought by applicant made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid WA |
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:
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 Mackay.[1]
[1] Application by the State of Western Australia dated 3 July 2020.
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 Mackay 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 Mackay were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.
Mr Mackay does not oppose the application. It is necessary that I determine whether that concession is properly made.
For the following reasons, I have determined that the orders sought should be made. In these reasons for decision, I will consider the following:
1.The relevant legal principles.
2.The factual background and evidentiary material.
3.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 div 2 order, if the offender 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.
Section 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.[2] 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.[3]
[2] Dangerous Sexual Offenders Act 2006 (WA), s 11(3).
[3] 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 div 2 order.
Further, the court must order that the offender 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 div 2 order.[4]
[4] Dangerous Sexual Offenders Act 2006 (WA), s 14(2)(a).
In Director of Public Prosecutions (WA) v Free[5] 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.
[5] 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.[6]
[6] 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 Mr Meertens which produces relevant documentary material, and a written outline of submissions.[7] Mr Mackay did not seek to rely on any documentary material nor any written outline of submissions.
Criminal history
[7]Affidavit of Brent Douglas Meertens affirmed 3 July 2020; Applicant's Outline of Submissions for Preliminary Hearing dated 4 August 2020.
Mr Mackay is a 44 year old male having been born on 29 March 1976.
Mr Mackay has a criminal history that relevantly comprises sexual offending.[8] Mr Mackay has been convicted of sexual offending in 1994, 2000 and 2011. Mr Mackay does not have a criminal record in any other jurisdiction.[9] I will provide an outline of Mr Mackay's offending.
1994 offending: one count of sexual penetration of a child under the age of 13 years
[8] Western Australian Criminal Record, Annexure A to the Affidavit of Mr Meertens, 30 ‑ 41.
[9] Affidavit of Mr Meertens [5].
On 30 May 1994, Mr Mackay was convicted on his own plea of one count of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code.[10] The offending occurred on 2 March 1994.
[10] Transcript of proceedings in the Children's Court of Western Australia on 30 May 1994, Annexure H to the Affidavit of Mr Meertens, 72 ‑ 94.
Mr Mackay was 17 years of age at the time of the sexual offending. The offending involved Mr Mackay committing a burglary at a residential property. After taking property Mr Mackay returned to the property and once again unlawfully entered the property. Mr Mackay picked up a 6 year old female child, carried her from the property and then penetrated the victim's anus with his finger.[11]
[11] Transcript of proceedings in the Children's Court of Western Australia on 30 May 1994, Annexure H to the Affidavit of Mr Meertens, 92.
On 30 May 1994, his Honour Muller P of the Perth Children's Court sentenced Mr Mackay to 2 years' imprisonment for that offence (2 years 8 months' total effective sentence) with eligibility for parole.[12]
[12] Transcript of sentencing hearing in the Children's Court of Western Australia on 30 May 1994, Annexure H to the Affidavit of Mr Meertens, 94.
This offence is a 'serious sexual offence' as defined in s 3(1) of the Act.
2000 offending: three counts of sexual penetration of a child under 13 years; one count of indecent dealing with a child under 13 years
On 3 October 2000, Mr Mackay pleaded guilty to three counts of sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code and one count of indecent dealing with a child under 13 years contrary to s 320(4) of the Criminal Code.[13]
[13] District Court Indictment (Unnumbered) dated 3 October 2000, Annexure J to the Affidavit of Mr Meertens, 99 ‑ 101.
Counts 1 - 4 on the indictment involved offending on 23 March 2000 against two female children aged 5 years and 9 years of age respectively. The children were members of a family known to Mr Mackay's family.The facts with respect to the offending were accepted by Mr Mackay at the sentencing hearing.[14]
[14] Statement of Material Facts, Annexure I to the Affidavit of Mr Meertens, 95 ‑ 98; Transcript of sentencing hearing in the District Court of Western Australia on 3 October 2000, Annexure K to the Affidavit of Mr Meertens, 102 ‑ 108.
Count 1 involved Mr Mackay sexually penetrating the female child aged 9 years by orally penetrating her mouth with his penis contrary to s 320(2) of the Criminal Code.
Counts 2 ‑ 4 were perpetrated against the second female child aged 5 years. Counts 2 and 3 involved Mr Mackay sexually penetrating the victim by orally penetrating her mouth with his penis contrary to s 320(2) of the Criminal Code. Count 4 involved Mr Mackay indecently dealing with the victim by rubbing his penis against her body and her vagina contrary to s 320(4) of the Criminal Code.
The offending against the two children was investigated when the victim of count 1 told her mother what had occurred.
On 3 October 2000, his Honour Jackson DCJ imposed a total effective term of immediate imprisonment of 6 years with respect to the four counts on the indictment.[15] Mr Mackay was made eligible for parole and was made a reportable offender under the Community Protection (Offending Reporting) Act 2004 (WA).
[15] Transcript of sentencing hearing in the District Court of Western Australia on 3 October 2000, Annexure K to the Affidavit of Mr Meertens, 107.
The four offences are 'serious sexual offences' as defined in s 3(1) of the Act.
2010 offending: six counts of aggravated sexual penetration without consent; one count of threatening to kill; one count of deprivation of liberty
On 27 May 2011, Mr Mackay was convicted after trial by jury of six counts of aggravated sexual penetration without consent of a female child over the age of 13 years and under the age of 16 years contrary to s 326 of the Criminal Code, one count of threatening to kill contrary to s 338B(a) of the Criminal Code and one count of deprivation of liberty contrary to s 333 of the Criminal Code.[16]
[16] District Court Indictment SHE 43 of 2010 dated 18 May 2011, Annexure E to the Affidavit of Mr Meertens, 58 ‑ 60.
The offences were committed on 3 March 2010 against a 14 year old girl, who was unknown to Mr Mackay. The offending involved Mr Mackay approaching the victim in the street as she was walking home. He placed his hand over her face and threatened to kill her. The victim attempted to fight back but Mr Mackay pushed her to the ground. He then dragged the victim into a ditch on a vacant lot where he then sexually offended.[17]
[17] Transcript of sentencing hearing in the District Court of Western Australia on 21 July 2011, Annexure F to the Affidavit of Mr Meertens, 62 ‑ 63.
Mr Mackay was acquitted of count 1 on the indictment. Count 2 on the indictment involved the offence of threatening to kill and count 3 involved the offence of deprivation of liberty.
Counts 4 - 9 comprised six counts of aggravated sexual penetration without consent that were perpetrated against the female. Counts 4 and 7 involved Mr Mackay sexually penetrating the victim by engaging in cunnilingus. Counts 5, 8 and 9 involved Mr Mackay sexually penetrating the victim by penetrating her vagina with his penis. Count 6 involved Mr Mackay sexually penetrating the victim by introducing his penis into her mouth.
On 21 July 2011, Braddock DCJ imposed a total effective term of imprisonment of 10 years 6 months' with eligibility for parole.[18]
[18] Transcript of sentencing hearing in the District Court of Western Australia on 21 July 2011, Annexure F to the Affidavit of Mr Meertens, 61 ‑ 70.
The six offences of aggravated sexual penetration are 'serious sexual offences' as defined in s 3(1) of the Act.
Other criminal convictions
Mr Mackay has three convictions of failing to comply with reporting obligations under s 63 of the Community Protection (Offending Reporting) Act. Further, in 2007 Mr Mackay was convicted of an offence of common assault contrary to s 313(1)(a) of the Criminal Code. The offending involved Mr Mackay assaulting his female partner by grabbing her by the hair and dragging her before picking her up and throwing her to the pavement on two occasions.[19]
[19] Statement of material facts for charge PPH 07000927, Annexure N to the Affidavit of Mr Meertens, 114.
In 2010, Mr Mackay was convicted of a common assault contrary to s 313(1)(a) of the Criminal Code and an aggravated assault occasioning bodily harm contrary to s 317(1) of the Criminal Code.[20] The charge of common assault involved an assault on his female partner that comprised striking her to the left side of her face with a clenched fist.[21] The aggravated assault occasioning bodily harm offending involved Mr Mackay punching his female partner to the face several times causing a large cut above her left eye.[22]
Reports and treatment programs
[20] Statement of material facts for charge PPH 10000612, Annexure P to the Affidavit of Mr Meertens, 119 ‑ 120; Statement of material facts for charge PPH 10000672, Annexure Q to the Affidavit of Mr Meertens, 121 ‑ 123.
[21] Statement of material facts for charge PPH 10000612, Annexure P to the Affidavit of Mr Meertens, 119.
[22] Statement of material facts for charge PPH 10000672, Annexure Q to the Affidavit of Mr Meertens, 122.
Given that this is a preliminary hearing, no reports were prepared. However, a number of reports in relation to Mr Mackay which have been prepared for previous sentencing hearings were produced by the applicant. I will outline the salient aspects of the most recent principal reports.
Report of Dr Febbo
In 2011 Dr Febbo, Consultant Psychiatrist, stated that Mr Mackay's risk of reoffending utilising the Static 99R actuarial tool, which is an actuarial (historical) measure of relative risk for sexual offence recidivism, was in the high category with a 39% chance of reoffending sexually within five years and a 45% chance of reoffending within 10 years.[23]
[23] Report of Dr Febbo dated 6 July 2011, Annexure V to the Affidavit of Mr Meertens, 147.
Dr Febbo identified a number of risk factors for Mr Mackay in relation to future sexual violence. The factors included the presence of chronicity in sexual violence, physical coercion in sexual violence, psychological coercion in sexual violence, major mental illness, problems with substance use, diversity of sexual violence and extreme minimisation of sexual violence.[24] Further, Dr Febbo stated that a number of factors could possibly be partially present including sexual deviance and attitudes that support or condone sexual violence.[25] Dr Febbo concluded that Mr Mackay is at high risk of committing a further sexual offence and that he requires the dynamic risk factors to be addressed.
Treatment programs
[24] Report of Dr Febbo dated 6 July 2011, Annexure V to the Affidavit of Mr Meertens, 148.
[25] Report of Dr Febbo dated 6 July 2011, Annexure V to the Affidavit of Mr Meertens, 147.
In 1995, Mr Mackay completed a Sex Offender Treatment Program.[26]
[26] Report of the Sex Offender Treatment Program dated 15 June 1995, Annexure R to the Affidavit of Mr Meertens, 124.
In 2002, Mr Mackay completed the Intensive Sex Offender Treatment Program.[27] The authors of a report in relation to that program stated that Mr Mackay was a challenging group member. The authors stated that based on actuarial factors, which are historical in nature and therefore unchanging, Mr Mackay was assessed as presenting a medium high risk of reoffending in a sexual manner.[28] The report stated that Mr Mackay presents with a protracted history of excessive alcohol abuse prior to the offending and that the nature of the offending suggests that Mr Mackay has a poor capacity to control his behaviour which is likely to have been related to his negative outlook on life and his depressive state. On a positive note the authors of the report stated that Mr Mackay was demonstrating a sound insight into his offending behaviour and is developing a realistic relapse prevention plan.
[27] Report of the Intensive Sex Offender Treatment Program dated 4 April 2002, Annexure S to the Affidavit of Mr Meertens, 129 ‑ 130.
[28] Report of the Sex Offender Treatment Program dated 15 June 1995, Annexure R to the Affidavit of Mr Meertens, 133.
In 2004, Mr Mackay completed the Indigenous Men Managing Anger and Substance Use Program.[29] Mr Mackay completed the 50 hour program which is aimed at addressing offending behaviour including drug and alcohol use and violence. The authors of the report stated that Mr Mackay attended all sessions and participated.[30]
[29] Report of Indigenous Men Managing Anger and Substance Use Program Report dated 19 July 2004, Annexure T to the Affidavit of Mr Meertens, 132 ‑ 133.
[30] Report of the Intensive Sex Offender Treatment Program dated 4 April 2002, Annexure S to the Affidavit of Mr Meertens, 125 ‑ 131.
In 2011, Mr Mackay completed the Cognitive Brief Intervention Program.[31] The supervisor concluded that Mr Mackay participated in group discussions demonstrating an understanding of each session and was attentive throughout the course.[32]
[31] Cognitive Brief Intervention Program Report dated 7 October 2011, Annexure W to the Affidavit of Mr Meertens, 149 ‑ 150.
[32] Cognitive Brief Intervention Program Report dated 7 October 2011, Annexure W to the Affidavit of Mr Meertens, 150.
In 2016, Mr Mackay completed the Pathways Program which is an intensive cognitive-behavioural based program for offenders who have co-occurring problems of alcohol and other drug abuse and criminal conduct.[33] The authors of the report in relation to the program stated that Mr Mackay did not sufficiently develop skills and strategies to manage his risk factors and that it was recommended that that should be the focus of any further programmatic intervention. Specifically, the focus should be on Mr Mackay's ability to communicate his needs assertively, improve his ability to manage his emotions effectively, and challenge his unhelpful thought processes.[34]
[33] Pathways Completion Program Report dated 19 July 2016, Annexure X to the Affidavit of Mr Meertens, 151 ‑ 159.
[34] Pathways Completion Program Report dated 19 July 2016, Annexure X to the Affidavit of Mr Meertens, 151.
In 2016, Mr Mackay completed the Think First Cognitive Skills (Sex Offender) Program.[35] The author of this report stated that Mr Mackay demonstrated gains in his ability to manage his emotions demonstrating recognition of his emotions. However, Mr Mackay's participation was considered inconsistent. The authors stated that Mr Mackay did not discuss the victim of his offending and did not demonstrate empathy for the victim. This may suggest a minimisation or avoidance of the offence and further that Mr Mackay has outstanding treatment needs to address his tendency to respond impulsively and his lack of victim empathy.[36]
[35] Report of the Think First Cognitive Skills Program dated 11 October 2016, Annexure Y to the Affidavit of Mr Meertens, 160 ‑ 165.
[36] Report of the Think First Cognitive Skills Program dated 11 October 2016, Annexure Y to the Affidavit of Mr Meertens, 163 ‑ 164.
Assessment
Each of counts 4 ‑ 9 inclusive on District Court indictment 43 of 2010 dated 18 May 2011 for which Mr Mackay has served a term of imprisonment constitutes a 'serious sexual offence' as defined in s 3 of the Act and s 106A of the Evidence Act 1906 (WA).
Further, given Mr Mackay's expected date of release is 2 September 2020, the statutory requirement that Mr Mackay 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.
Mr Mackay has been convicted of 11 serious sexual offences committed against four female children aged between 5 years and 14 years of age over a 17-year period. Mr Mackay has been assessed as having a high risk of sexual offending and that his dynamic risk factors must be addressed. Mr Mackay has offended despite having undertaken intensive sex offender treatment over many years and has outstanding treatment needs.
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 Mackay 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 Mackay 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.
GP
Research Orderly to the Honourable Justice McGrath6 AUGUST 2020
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