The State of Western Australia v Mangolamara
[2020] WASC 428
•26 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MANGOLAMARA [2020] WASC 428
CORAM: HILL J
HEARD: 24 NOVEMBER 2020
DELIVERED : 24 NOVEMBER 2020
PUBLISHED : 26 NOVEMBER 2020
FILE NO/S: DSO 8 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ROBERT ANTHONY MANGOLAMARA
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief a court might find respondent is a high risk serious offender - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 7, s 35, s 46
Result:
Application granted
Orders made for expert reports
Order that the respondent be detained in custody until further order
Category: B
Representation:
Counsel:
| Applicant | : | Ms H K Watson |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Albert Wolff Chambers |
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
Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160
Director of Public Prosecutions for Western Australia v Mangolamara [2007] WASC 71
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v Cox [2020] WASC 344
The State of Western Australia v Ryan [2020] WASC 352
The State of Western Australia v ZSJ [2020] WASC 330
HILL J:
Introduction
On 7 August 2020, the State of Western Australia applied for orders under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The State also sought an order that the respondent be detained in custody until the conclusion of the Division 2 hearing pursuant to s 14(2)(b)(i) of the DSO Act.
On 26 August 2020, the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) came into force. Accordingly, it is this legislation which now governs the State's application. Specifically, the application is now made under s 35 for a restriction order and s 46(2) of the HRSO Act for:
(a)Mr Mangolamara to undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in relation to hearing the restriction order application;
(b)the provision of any relevant report by a Department of Justice officer; and
(c)an order that Mr Mangolamara be detained in custody until the hearing of the restriction order application.
The main purpose of the preliminary hearing is for the court to determine whether it is satisfied there are reasonable grounds for believing that the court might, in accordance with s 7 of the HRSO Act, find that Mr Mangolamara is a high risk serious offender.[1]
[1] High Risk Serious Offenders Act 2020 (WA) s 46(1).
The decision on a preliminary hearing is the first step in a process which might lead to the indefinite detention of an offender following the conclusion of a sentence of imprisonment, on the grounds that it is necessary to make such an order to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.[2]
[2] The State of Western Australia v Cox [2020] WASC 344 [7].
At the preliminary hearing on 24 November 2020, counsel for Mr Mangolamara informed the court that, for the purposes of the preliminary hearing only, the respondent accepted there was sufficient material before the court to form a belief that a court might, at a restriction order hearing, find that Mr Mangolamara is a high risk serious offender.[3] On the material before the court, I accept this concession was properly made.
[3] ts 12.
Counsel for Mr Mangolamara also informed the court that, at this stage, no suitable accommodation had been identified for Mr Mangolamara on his scheduled release at the end of January 2021.[4] On the basis of this information, together with the material filed on behalf of the State, I determined that the court should exercise its discretion to order that Mr Mangolamara be detained in custody until further order of the court. Without suitable accommodation, I do not consider that the risk to the community can be sufficiently minimised to enable Mr Mangolamara to be released on an interim supervision order.
[4] ts 13.
Accordingly, at the conclusion of the hearing on 24 November 2020, I found that the orders sought by the State in s 46(2)(a) and (b) should be made, and that Mr Mangolamara should be detained in custody until further order of the court.
These are my reasons for making those orders.
Legislative background
On 9 July 2020, pt 1 of the HRSO Act came into effect. On 26 August 2020, the remaining provisions of the HRSO Act came into force except for s 91 and sch 1, div 2, subdiv 1, item 1. On the same date, the DSO Act was repealed by s 123 of the HRSO Act.
Pursuant to s 124(1) of the HRSO Act, if an application made under the DSO Act has not been finally determined by the commencement date of the HRSO Act, the application continues and is determined under the HRSO Act. The application is taken to have been lodged under the corresponding provisions of the HRSO Act.[5]
[5] High Risk Serious Offenders Act s 124(1)(c).
Under s 35 of the HRSO Act, the State may apply for a restriction order in relation to a serious offender under custodial sentence who is not a serious offender under restriction, where there is a possibility that the offender might be released from custody within one year of the date the application is made. A serious offender under restriction is a person who is subject to a restriction order or an interim supervision order.[6]
[6] High Risk Serious Offenders Act s 3.
Section 35(2) provides that an application may be made under the section whether the custodial sentence was imposed before or after the commencement of s 35 and whether or not the offender is in custody.
After a restriction order application is made, the court must fix a date for a preliminary hearing.[7]
[7] High Risk Serious Offenders Act s 43(1).
Where the court is satisfied there are reasonable grounds for believing the court might find the offender is a high risk serious offender, the court must order the offender be examined by a psychiatrist and a qualified psychologist for the preparation of reports in accordance with s 74 for the hearing of the restriction order application,[8] fix a date for the hearing of the application,[9] and may order the offender to be detained in custody pending the hearing of the application.[10]
[8] High Risk Serious Offenders Act s 46(2)(a).
[9] High Risk Serious Offenders Act s 46(2)(d).
[10] High Risk Serious Offenders Act s 46(2)(c).
Applicable legal principles
In determining whether there are reasonable grounds for belief that a court might find an offender is a high risk serious offender, the test is analogous to that set out in Director of Public Prosecutions (WA) v Free[11] which considered the test under the DSO Act for determining whether there were reasonable grounds for belief that a court might find a respondent a serious danger to the community under that Act.[12]
[11] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [4], [8] - [13].
[12] The State of Western Australia v Ryan [2020] WASC 352 [14].
In considering the test applicable under the HRSO Act, as was noted by Fiannaca J in The State of Western Australia v ZSJ:[13]
[T]he HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether [they are] a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.
[13] The State of Western Australia v ZSJ [2020] WASC 330 [5].
In The State of Western Australia v Cox, Allanson J set out the threshold test in respect of a preliminary hearing in the following terms:[14]
In a preliminary hearing, 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 - that is, a judge might be satisfied to a high degree of probability that it is necessary to make an order for continuing detention or supervision of the respondent to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. To say that something might occur is to say that it is possible.
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. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. That is the threshold that must be crossed before ordering that the respondent be examined by a psychiatrist and qualified psychologist whose reports will form the primary evidence on the application for a restriction order.
[14] The State of Western Australia v Cox [2020] WASC 344 [15] - [16].
In Director of Public Prosecutions v Dodd, Simmonds J discussed the principles to be applied by the court in making an order pursuant to s 14 under the DSO Act. [15] The same principles apply to the making of an order under s 46 of the HRSO Act,[16] namely that:
(a)the court must have a belief in the possibility that a later court will be satisfied to a high degree of probability that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community; that belief is the threshold that must be crossed before a judge can order the respondent to undergo examination by experts;
(b)it is conceivable that even in the absence of any reports from a psychiatrist or other medical or psychological assessment at the preliminary hearing, on the basis of the respondent's criminal record alone, there may be grounds for concluding that a court may be persuaded that the offender is a high risk serious offender;
(c)reasonable grounds for such a conclusion ordinarily will require more than the respondent's offending behaviour to be recited;
(d)for the court to form that conclusion, there must be sufficient facts or circumstances to provide the basis for the proposition under review.
[15] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [38]; Applicant's submissions [22].
[16] The State of Western Australia v Ryan [19].
To determine whether there are reasonable grounds to form the requisite belief, the court is required to consider the admissible evidence before it, as specifically modified by the HRSO Act. As Allanson J in The State of Western Australia v Cox stated:[17]
If there is to be a reasonable ground based on the existence of facts, I need to look at the evidence. Section 46, read with s 84 and s 7, provides for the evidence on which the court may act in a restriction order proceeding. Although s 84(3) refers to the court acting on admissible evidence, s 84(4) and s 84(5) modify the rules of evidence to allow the court to receive into evidence material including 'any document relevant to the antecedents' of the offender; and any medical, psychiatric, psychological or other assessment relating to the offender; and any information indicating whether or not the offender has a propensity to commit serious offences in the future.
[17] The State of Western Australia v Cox [17].
If the court forms the requisite belief, it then must consider whether it should exercise its discretion to order that an offender be detained in custody or whether to make an interim supervision order until the restriction order hearing. The principles that guide the court's discretion are:[18]
(a)the relative strength of the applicant's case that the respondent represents an unacceptable risk to the community and may commit an offence before the application is finally heard;
(b)the extent to which the court can be confident that any such risk will be sufficiently minimised by the respondent's adherence to the supervisory conditions and other requirements; and
(c)the fundamental consideration as to the system of justice and the undesirability of depriving the respondent of their liberty prior to the application being finally determined. Where the court ultimately dismisses the application or alternatively makes a supervision order, any interim detention order against the respondent will have been unnecessary and possibly damaging to the long-term interest that the community has in maximising the respondent's chance of rehabilitation.
[18] Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160 [62] - [64] (Blaxell J); The State of Western Australia v Ryan [21].
Factual background and evidence
The State's application is supported by an affidavit of Heidi Karen Watson affirmed 7 August 2020 and written submissions which were filed prior to the hearing.
Mr Mangolamara did not seek to rely on any documentary material or any written outline of submissions.
Respondent's criminal history
Mr Mangolamara is 39 years old, having been born on 25 July 1981. He is currently serving a term of 4 years' imprisonment that was imposed on 19 February 2018 and backdated to commence on 26 January 2017. While Mr Mangolamara was made eligible for parole, he has not been released on parole. Mr Mangolamara is due for release at the completion of his sentence on 25 January 2021. For this reason I accept that the State may make a restriction order application in respect of Mr Mangolamara.
The respondent's criminal history commenced in 1996 when he was 15 years old. Mr Mangolamara was charged with the indecent assault of his five‑year‑old nephew. In relation to this offence, the respondent was referred to a Juvenile Justice Team by the Kununurra Children's Court.[19]
[19] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure E.
The next conviction for a sexual offence was in 1999. The respondent was charged with aggravated burglary and indecent assault of a 27‑year‑old sleeping woman which occurred during the course of the burglary. On 10 February 2000, the respondent plead guilty to both charges and was sentenced to a community based order (CBO) on 21 February 2000.[20]
[20] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexures I and J.
Twenty-six days after Mr Mangolamara was released on his CBO, when he was 18 years old, he assaulted a 13‑year‑old girl (RJW) and deprived RJW of her liberty with the intention of having sex with her.[21] The respondent was charged on 19 March 2000 and released on bail. Four days later, he entered a room where his 28‑year‑old aunt (DEC) was asleep at a party. The respondent removed DEC's clothing and penetrated her vagina with his penis whilst she slept.[22] On 6 June 2000, the respondent pleaded guilty to each of these offences. He was sentenced to 4 years and 6 months' imprisonment, with a sentence of 12 months' imprisonment to be served concurrently in relation to the charges involving RJW. Mr Mangolamara was also re‑sentenced for the 1999 offences, as a result of the breach of his CBO. He received 12 months' imprisonment for the indecent assault and 18 months' imprisonment for the aggravated burglary, which were ordered to be served concurrently with the other terms.[23]
[21] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure L.
[22] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure M.
[23] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure N.
The next offences committed by Mr Mangolamara occurred in 2002, when he was on parole. At the time, the respondent was aged between 21 and 22 years of age. On dates unknown between 25 March 2002 and 10 December 2002, the respondent sexually offended against a 12‑year‑old girl (TRD) on three occasions while she was visiting the Kalumburu community. Mr Mangolamara was charged with two counts of attempted sexual penetration of a child under 13 years of age and two counts of sexually penetrating a child under the age of 13 years of age, which occurred on two different days when the respondent penetrated TRD's vagina with his penis. The respondent pleaded guilty on 20 April 2004 and was sentenced to 2 years and 8 months' imprisonment with no eligibility for parole.[24]
[24] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure R.
Prior to Mr Mangolamara's release for the 2002 offences, the State filed an application under the DSO Act. On 27 March 2007, the application was dismissed at the Division 2 hearing (now a restriction order hearing under the HRSO Act).[25] The respondent was released from custody on this date.
[25] Director of Public Prosecutions for Western Australia v Mangolamara [2007] WASC 71.
Five months after his release in 2007, the respondent committed offences against his half‑sister (CCAD). At that time, the respondent was serving a suspended sentence for assault for which he had been sentenced to a 9 month term of imprisonment, suspended for 12 months. On 27 August 2007, Mr Mangolamara entered CCAD's home with the intention of having sex with her. He went into her bedroom where she lay asleep and lay behind her, rubbing his penis against her bottom. The respondent left when CCAD woke and demanded that he leave. CCAD reported the matter to the police and indicated that the respondent had sexually offended her when she was a child. When interviewed, Mr Mangolamara admitted to the 2007 offending and sexual offences against CCAD when she was a child in 1999 and 2000.
At the time of the first offences against CCAD, she was aged between 13 and 15 years of age and the respondent was aged between 16 and 19 years of age. The respondent had entered the house that CCAD lived in with her family while she was asleep. He went into her bedroom and rubbed her breast on the outside of her clothes and then rubbed her bare vagina for approximately five minutes. In relation to these two offences, the respondent was sentenced as a juvenile, to 6 months' imprisonment for each offence.
In relation to the 2007 offences against CCAD, the respondent was sentenced to 2 years' imprisonment for the aggravated burglary and 12 months' imprisonment for the indecent assault. The sentences for the sexual offences were ordered to be served concurrently with the sentence for the burglary. Mr Mangolamara was also sentenced to a cumulative term of 9 months' imprisonment when he was re‑sentenced for the suspended sentence. That is, the respondent was sentenced to a total term of imprisonment of 2 years and 9 months' imprisonment, backdated to 16 September 2007. The respondent was made eligible for parole.[26]
[26] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexures X and Y.
The respondent next offended in 2017, when he was living with his female partner and her daughter. Mr Mangolamara had not reported to police that a child was living with him as required under Community Protection (Offender Reporting) Act 2004 (WA). The daughter of the respondent's partner had a sleepover with a friend, who was 11 years old (KJ). The respondent entered the room where the daughter and KJ were asleep and rubbed KJ's breasts, waking her. KJ told her friend what had happened and sometime later, the daughter reported what she had been told by her friend.[27]
[27] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure AA.
On 12 December 2016, the respondent was sentenced to a 12 month CBO for offences against his partner. On 10 January 2017, he argued with his partner and she hit Mr Mangolamara with a metal broom. The respondent took the metal broom off his partner and hit her with it. He handed the broom back to her and she hit him with the broom again a few more times. The respondent then struggled with the victim to get back the broom until he had it once again. He struck the victim forcefully on the head, causing a significant head wound and skull fracture. When she fell to the ground, he struck her several more times. The respondent's partner suffered life threatening injuries and was flown to Perth from Kununurra for treatment and surgery.[28]
[28] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure AC.
The respondent initially entered a plea of not guilty to the indecent dealing charge against KJ but pleaded guilty on 10 January 2018. On 19 February 2018, Mr Mangolamara was sentenced for the offences of indecent dealing and aggravated grievous bodily harm and sentenced to 4 years' imprisonment: 1 years' imprisonment in relation to the indecent dealing and 3 years' imprisonment, cumulative, for the aggravated grievous bodily harm.[29] In respect of the offence of failing to report that a child was living with him, on 27 February 2018, the respondent was fined $500.
[29] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure AD.
Mr Mangolamara's antecedents
Mr Mangolamara is an Indigenous man from the Kimberley region of Western Australia. He was born in Derby and spent the majority of his upbringing in Kalumburu.
The respondent's parents were each murdered about a year apart when the respondent was a child. There are inconsistencies in the material before the court as to how old the respondent was when each of his parents was killed, although it is clear this occurred when he was a relatively young child. Following the deaths of his parents, the respondent was raised by his aunt and her husband in Kalumburu, in a family of six brothers and sisters. Subsequently, his stepfather died in a fighting accident and his youngest brother (to whom he was very close) died of pneumonia.
During his teenage years the respondent developed problems with cannabis (from when he was 12 years old) and alcohol (from 17 years of age).
The respondent attended school up until year 10 at his local community and then went to Perth for year 11 prior to transferring to a school in Esperance where he completed years 11 and 12. He commenced an apprenticeship in motor mechanics but did not complete it. The respondent returned to the Kimberley region and was employed for a period, first at a bakery and then on a health/environment project. However, since these initial roles, when he has not been in prison, Mr Mangolamara has had a very limited employment history.
Mr Mangolamara has one daughter to a previous relationship which lasted five years. The offence of grievous bodily harm, for which he is currently serving a term of imprisonment, was an offence against his then domestic partner. Mr Mangolamara is currently single.
Reports and treatment programs
No reports were prepared for the preliminary hearing. However, the State produced in evidence a number of the reports that have been prepared for previous sentencing hearings and for the previous application under the DSO Act.
Two reports were prepared for the State's previous application under the DSO Act in 2006. In rejecting the State's application, Hasluck J did not consider that the evidence of the experts was 'sufficiently cogent' to warrant the making of an order.[30] For this reason, I have not placed any significant weight on these reports.
[30] Director of Public Prosecutions for Western Australia v Mangolamara [196].
The evidence before the court is that Mr Mangolamara has entrenched cannabis and alcohol use issues which have contributed to his offending.
Mr Mangolamara has completed the Intensive Sex Offender Program on two occasions: the first in 2000 and the second in 2010. At the conclusion of the second of these programs, the completion reports states that:[31]
[The respondent] met most program objectives, made some treatment gains, was observed to gain a greater understanding of the factors underlying his offending, and demonstrated greater acceptance of responsibility for his behaviour.
[31] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure AS, p 332.
At that time (namely, in May 2010), Mr Mangolamara was assessed as being a high risk of sexual reoffending.[32]
[32] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure AS, p 332.
The most recent treatment assessment report of Mr Mangolamara was in March 2019.[33] The report placed his static risk and dynamic risk in the high range and recommended that he attend the Pathways Program, the Stopping Family Violence Program and the Intensive Sex Offender Treatment Program.
[33] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure AX, p 363.
As at the date of the hearing, the only program that Mr Mangolamara has been enrolled in and been able to complete is the Stopping Family Violence Program. The authors of the program completion report of March 2020 stated that:[34]
(a)Mr Mangolamara demonstrated minimal shifts in his insight and skill implementation throughout the program;
(b)while he gained an emerging awareness, he continued to blame his behaviours on the victim and alcohol consumption;
(c)he had minimal awareness into his impulsivity;
(d)Mr Mangolamara made only rudimentary gains towards his treatment need areas and continued to present as a risk of re‑offending.
[34] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure AY.
Mr Mangolamara had been booked into a Pathways Program at Roebourne Regional Prison, commencing on 21 September 2020. However, due to a prison alert, the respondent was not transferred to Roebourne Regional Prison and has not completed this program.[35]
[35] Applicant's submissions [66].
The respondent has not been given the opportunity to complete an intensive sexual offender treatment program during his current term of imprisonment and individual counselling has not been offered to him.[36]
Whether Mr Mangolamara has a propensity to commit serious offences in the future and whether there is any pattern of offending behaviour
[36] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexure AZ.
As was submitted by the State, the word 'propensity' must be given its ordinary and natural meaning which is 'to have an inclination or tendency to do something'.[37] Essentially, it means that there is an identifiable characteristic of the offender, in his or her make up or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.
[37] The State of Western Australia v Bellamy [2013] WASC 467.
There is no evidence currently before the court that Mr Mangolamara has a mental illness. The reports obtained for the previous DSO applications express the opinion that Mr Mangolamara has an anti‑social or dissocial personality disorder.[38]
[38] Affidavit of Heidi Karen Watson affirmed 7 August 2020, Annexures AN and AO.
I accept that the respondent's criminal history of serious offences illustrates a tendency to sexually assault children (both male and female) and adult females who are vulnerable due to age, intoxication or because they are asleep. I also accept that the respondent in the past has been prone to violence, particularly when he is intoxicated and angry.
It is clear that Mr Mangolamara has a propensity to commit serious offences as he has been convicted of repeated sexual and serious offences over the course of more than 20 years. His pattern of offending is associated with intoxication by the use of cannabis and alcohol.
Conclusion
On the basis of the materials before the court, I accept there are reasonable grounds for believing that a court might find that Mr Mangolamara is a high risk serious offender and that, as a result, orders should be made under s 46(2)(a) and (d) of the HRSO Act.
The question then is whether I should make an interim detention order or an interim supervision order in respect of the respondent. At this stage, as was conceded by counsel for Mr Mangolamara, the respondent does not have any accommodation available to him on his release from imprisonment. Without stable accommodation, I do not consider that there are conditions which could currently be put in place which would sufficiently provide for adequate protection of the community.
Accordingly, it is my view that an interim detention order should be made in respect of the respondent. If between the dates of today's hearing and the hearing of the restriction order application, the position changes and suitable accommodation has been identified, the question as to whether the interim detention order should continue can be re‑assessed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill
26 NOVEMBER 2020
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