The State of Western Australia v MAR [No 4]
[2023] WASC 271
•24 JULY 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MAR [No 4] [2023] WASC 271
CORAM: STRK J
HEARD: 21 JULY 2023
DELIVERED : 21 JULY 2023
PUBLISHED : 24 JULY 2023
FILE NO/S: SO 8 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MAR
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Contravention proceedings - Whether interim detention order ought be made pending the determination of contravention proceedings
Legislation:
High Risk Serious Offenders Act 2020 (WA), div 5
Result:
Contravention proceedings listed for hearing
Application for an interim detention order granted
Category: B
Representation:
Counsel:
| Applicant | : | D S McDonnell |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Albert Wolff Chambers |
Case(s) referred to in decision(s):
The State of Western Australia v MAR [No 2] [2021] WASC 97
The State of Western Australia v MAR [No 3] [2022] WASC 371
The State of Western Australia v Slater [No 2] [2021] WASC 465
STRK J:
(This judgment was delivered extemporaneously on 21 July 2023 and has been edited from the transcript.)
Introduction
On 14 April 2021, having found the respondent to be a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act 2020 (WA), the court made a continuous detention order in relation to the respondent: The State of Western Australia v MAR [No 2] [2021] WASC 97. The respondent's history and evidence in that proceeding that led the court to conclude that the respondent was a high risk serious offender and that a continuous detention order was the appropriate restriction order at that time was set out in detail in the reasons for decision delivered by Tottle J.
Part 5 of the High Risk Serious Offenders Act provides for the periodic review of an offender's detention under a continuous detention order. The first review of the respondent's continuous detention order was heard over 25 July, 31 August, and 21 October 2022 before Fiannaca J.
For the reasons delivered on 25 October 2022, upon the first review, Fiannaca J was satisfied that the respondent remained a high risk serious offender, but was also satisfied that the adequate protection of the community against the risk that the respondent would commit a serious offence could be ensured by a supervision order, if the respondent were to be released on the standard conditions provided by the High Risk Serious Offenders Act and further conditions proposed by the State: The State of Western Australia v MAR [No 3] [2022] WASC 371. It was ordered that the continuing detention order made on 14 April 2021 be taken to be rescinded from 2 November 2022; and from 2 November 2022, when not in custody, the respondent be subject to conditions in the terms of a supervision order, which order is to have effect for a period of five years from 2 November 2022. The supervision order comprised 51 conditions.
On 18 July 2023, the State filed an application under s 53 of the High Risk Serious Offenders Act commencing contravention proceedings under s 55 in relation to alleged contraventions of the supervision order. The application is supported by the affidavit of Daniel Sean McDonnell, a government legal practitioner employed by the State Solicitor's Office, affirmed on 18 July 2023.
In the contravention proceedings, the State seeks orders that the supervision order be rescinded and a continuing detention order made. In the alternative, the State seeks an order that the respondent be subject to a supervision order on amended terms. The State further applies for an order that the respondent be detained in custody pending the determination of the contravention proceedings pursuant to s 53(2)(b) of the High Risk Serious Offenders Act.
Today, the State only seeks an order under s 53(2)(b) that the respondent be detained in custody pending the determination of the contravention proceedings.
For the following reasons, I have determined that the respondent will be detained in custody on an interim detention order pending the determination of the contravention proceedings.
Statutory context
Part 4 of the High Risk Serious Offenders Act concerns the restriction of offenders and div 5 concerns contravention of a supervision order.
Section 51 of the High Risk Serious Offenders Act, a section within div 5, allows for a warrant to be issued by a magistrate directing an offender subject to a supervision order to be brought before this court for the court to consider a suspected or anticipated contravention. Section 52 empowers a magistrate issuing a warrant under s 51(3) to order publication of a photograph of an offender.
Section 53 of the High Risk Serious Offenders Act empowers the State to commence contravention proceedings, and provides as follows:
(1) This section applies to —
(a) an offender who is brought before the Supreme Court under a warrant issued under section 51(3) or 56(7)(d); and
(b) an offender who is charged with an offence under section 80(1).
(2) In relation to the offender, the State may apply for —
(a) an order under section 55; and
(b) an order for the offender to be detained in custody while proceedings on the application for an order under section 55 are pending.
(3) The application must state what order is sought under section 55.
Section 54 of the High Risk Serious Offenders Acts allows for the court to order reports for purposes of contravention proceedings; and s 55 concerns the orders that might be made at the substantive hearing. The orders that the court may make under s 55 are to: rescind the supervision order and make a continuing detention order in relation to the offender; make an order amending the conditions of the supervision order or extending the duration of the supervision order; or affirm the supervision order without amendment or extension.
Relevantly, s 56 of the High Risk Serious Offenders Act concerns the orders that may be made during contravention proceedings, and provides as follows:
(1) This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect of the offender are pending (the pending proceedings).
(2) The court may at any time in the pending proceedings -
(a) if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b) if the offender is not detained in custody, order the offender to be detained in custody.
(3) The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a) releasing the offender is justified by exceptional circumstances; and
(b) the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
(4) The onus of proof as to the matter described in subsection (3)(b) is on the offender.
(5) For the purposes of subsection (3), in considering whether releasing the offender is justified by exceptional circumstances the court may, as it thinks fit, receive and take into account information put before it, whether or not that information would normally be admissible in a court of law.
(6) In making a decision under subsections (2) and (3), the paramount consideration is to be the need to ensure adequate protection of the community.
(7) If the court releases the offender —
(a) the offender remains subject to the supervision order; and
(b) the court may, before the pending proceedings are determined, make an interim order amending the supervision order to include any requirements the court considers appropriate to ensure adequate protection of the community; and
(c) the court may order the offender to reappear before the court at any adjourned hearing of the pending proceedings; and
(d) if it is alleged that the offender has further breached the supervision order or breached an order made under paragraph (c), the court may issue a warrant to have the offender arrested and brought before the court.
In this case, s 56 is engaged as the respondent is before the court in respect of pending proceedings: s 56(1).
I have considered whether the requirement for exceptional circumstances in s 56(3) is engaged in the disposition of the State's application pursuant to s 53(2)(b), which in turn, depends upon whether s 56(2)(a) is engaged.[1]
[1] The State of Western Australia v Slater [No 2] [2021] WASC 465 [17].
In that regard, the first question is whether the respondent is 'detained in custody' within the meaning of s 56(2)(a).[2] As to how such a question is answered, I adopt the views expressed by Quinlan CJ in The State of Western Australia v Slater [No 2] at [19] ‑ [20]:
Prima facie, in my view, 'detained in custody', within the meaning of s 56, means detained pursuant to the provisions of the Act. Section 56(2)(a) cannot be construed as providing this Court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences. In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act in relation to a suspected or anticipated contravention of a supervision order. An order of the Court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply - including the requirements of s 56(3).
Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).
[2] The State of Western Australia v Slater [No 2] [18].
In this case, the respondent is remanded in custody to appear on 24 July 2023 in the Magistrates Court for mention only in relation to a pending charge for contravention of a requirement of a supervision order (PE 35506/23). He is not presently 'detained in custody' pursuant to an order made or power exercised under the High Risk Serious Offenders Act. Nor is he an offender brought before the court under a warrant issued under s 51(3) or s 56(7)(d).
I therefore proceed on the understanding that there need not be, nor would there be an 'order [for] the offender to be released' within the meaning of s 56(2)(a) if I were to refuse the State's application, and that subsection has no application. For that reason, I proceed on the basis that no issue of exceptional circumstances arises.[3]
[3] The State of Western Australia v Slater [No 2] [24].
I proceed on the basis that the State's application for an interim detention order requires a positive order under s 53(2)(b); and in these circumstances, the power to order interim detention is not one affected by s 56(2)(a).
In the disposition of the application, I also adopted and applied the observations of Quinlan CJ at [25] ‑ [27]:
Rather, the real issue is that which applies generally to an interim detention order (under s 46(2)(c)) or an interim supervision order under (s 58(2)(c)); namely, whether the Court is satisfied that, to ensure adequate protection of the community, it is desirable to make either an interim detention order or an interim supervision order. That is, in effect, the test that applies to the making of an interim supervision order generally.
This points up an important aspect of any consideration of alleged contraventions of an interim supervision order. Compliance with an interim supervision order (and, indeed, any supervision order) is an important matter, and the importance of such compliance should not be understated. Nevertheless, it must be recognised, having regard to the text and structure of the Act as a whole, that an interim supervision order is not an end in, and of, itself. An interim supervision order is a means to an end: the end being the protection of the community against the risk of serious offences.
In that sense, a supervision order or an interim supervision order will have served its purpose if it protects the community from serious offences, even if compliance with the conditions of the order, in the particular case, has not been perfect. The Court must always keep in mind that the object of the Act to be achieved is the adequate protection of the community from the commission of serious offences.
Alleged contraventions
I understand that since the respondent was released on the supervision order on 2 November 2022, he has been charged with 25 offences. In respect of 24 of the 25 charges, the respondent has pleaded guilty and received penalties which include fines, community based orders and in some cases, no penalty.[4]
[4] Affidavit of D S McDonnell pars 12, 40.
The State says that 19 of the charges were referred in relation to the respondent's contraventions of a requirement/condition of the supervision order. The supervision order conditions to which the respondent is subject (in a redacted form) are reproduced at sch A to these reasons.
While the State says that particulars of the contravention allegations will be filed before the hearing of the contravention proceedings, at this stage, the State says that particulars of the 19 contraventions will mirror the material facts described pars 13 to 46 of Mr McDonnell's affidavit,[5] which are summarised below.
[5] Affidavit of D S McDonnell par 47.
While counsel for the respondent did not appear on behalf of the respondent with respect of all of the charges before the Magistrates Court, for the purposes of this application, counsel indicated that the facts which grounded the convictions as set out in the statements of material facts attached to Mr McDonnell's affidavit were not disputed.[6]
Charge 1 (PE 53070/22)
[6] ts 255 (21 July 2023).
The respondent must comply with condition 51 of the supervision order which provides that the respondent must maintain a diary of his movements, activities and associations, if and as directed by the Community Corrections Officer (CCO), and present this diary to the CCO and WA Police upon request. Under condition 4, the respondent must also be under the supervision of a CCO, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32 of the High Risk Serious Offenders Act).
From the statement of material facts for charge PE 53070/22, I understood that the respondent was issued a written lawful instruction under the supervision order. The respondent was instructed to record daily events in his diary, and to include the address of any property attended; the names of any individuals who travelled with him to this location; the purpose of attendance at the address; the duration of stay at the address; the name and surname (if known) of any individuals at the location; in the case of continuous travel without stopping, an identifiable location for his travel, and if he stopped, the duration of the stop and reason for the stop.
The respondent's diary was checked by a Senior Community Corrections Officer on 29 November 2022. No diary entries were recorded on 16 November 2022 to 20 November 2022, and on 27 and 28 November 2022. The respondent made admissions to a Senior Community Corrections Officer that he had not recorded his movements in his diary, and a review of the GPS monitoring system the respondent is subject to indicated that on the dates where no entries were made in his diary he had not accurately recorded his movements.
On 1 December 2022, WA Police arrested the respondent and charged him with one count of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 51 to the supervision order had been breached.
The respondent was convicted on a plea of guilty on 1 December 2022 before a magistrate.
Charges 2 & 3 (PE 55524-55525/22)
The respondent must comply with condition 25 of the supervision order which provides that he must not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for him by a person duly authorised under the Medicines and Poisons Act 2014 (WA), and his use is in accordance with the instructions of the prescriber.
The respondent also must comply with conditions 36 and 37 of the supervision order which provide that he must attend for, and submit to, urinalysis or 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 must provide a valid sample pursuant to condition 36.
From the statement of material facts for charges PE 55524-55525/22, I understood that on 12 December 2022, the respondent was directed to attend East Perth Adult Community Corrections at 2.00 pm for the purposes of urinalysis; and he complied with this direction and supplied a valid sample.
On 15 December 2022, the result of the urinalysis screening was received and found to be positive for cannabis, the respondent having last supplied a negative sample on 30 November 2022. The concentration of the sample was 438 ug/L and the urine THC Creatinine ratio 48.1. The threshold for cannabis is 15 ug/L.
On 15 December 2022, WA Police arrested the respondent and charged him with one count of having used a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act; and one count of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 25 to the supervision order had been breached.
The respondent was convicted on both charges on a plea of guilty on 16 December 2022 before a magistrate.
Charges 4 - 10 (PE 1176-1182/23)
The respondent must comply with conditions 25, 36 and 37 of the supervision order, described above. He must also comply with condition 38, in that he must not purchase, or possess, or consume or use alcohol.
Under condition 4, the respondent must also be under the supervision of a CCO, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32 of the High Risk Serious Offenders Act). Under condition 10, the respondent must be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
From the statement of material facts for charges PE 1176‑1182/23, I understood that on 3 January 2023, the respondent was directed to attend East Perth Adult Community Corrections for the purposes of urinalysis; and he complied with this direction and supplied a valid sample at 1.24 pm.
On 6 January 2023, the result of the urinalysis screening was received and found to be positive for cannabis. The concentration of the sample being 81 ug/L with the threshold for cannabis being 15 ug/L.
The respondent is also subject to GPS tracking which sends an alert vibration to the device, should he enter an exclusion zone. On 30 December 2022, the respondent was issued a Written Lawful Instruction (WLI) not to enter an exclusion zone for Royal Perth Hospital and St Mary's Cathedral.
On 4 January 2023 at between 11.39 am and 11.42 am, the respondent entered the exclusion zone around Royal Perth Hospital. He was immediately contacted by his CCO and warned to remove himself from the zone, which he did and was advised he would receive an official warning for the breach. At about 4.20 pm, the same day the respondent re‑entered the same exclusion zone and remained there for approximately nine minutes, before exiting. At the time his CCO attempted to telephone him, however no calls were answered.
At about 1.58 pm on 6 January 2023, the respondent was arrested in relation to other breaches of his supervision order. At this time, the respondent underwent a breath analysis preliminary test which gave a reading of 0.110 grams of alcohol. He was also in possession of a 700 ml bottle of Jim Beam spirits, of which only 100 ml remained; and approximately 1 gram of cannabis.
On 6 January 2023, WA Police arrested the respondent and charged him with seven offences. He was charged with five counts of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act; one count of having used a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act; and one count of being in possession of a prohibited drug, namely cannabis contrary to s 6(2) of the Misuse of Drugs Act. It was alleged that conditions 4, 25 and 38 to the supervision order had been breached.
The respondent was convicted before a magistrate on his plea of guilty on 9 January 2023 in relation to all seven charges.
Charge 11 (PE 17420/23)
The respondent must comply with condition 46 which requires that he advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by him, whether or not it is capable of being connected to the internet, and the location of that device.
By condition 49, the respondent must upon request permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining the respondent's computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device, which includes providing all screen name(s), user name(s), and email addresses.
From the statement of material facts for charge PE 17420/23, I understood that on Thursday 6 April 2023 the respondent was at his home address when officers from the High Risk Serious Offenders team attended to conduct an unannounced visit and meeting. While at the address, officers requested to review the respondent's mobile telephone, as per condition 49. The respondent retrieved a grey Optus smart phone from his pocket and handed it to police. The officers noticed there was a further phone situated on the coffee table directly in front of the respondent and asked if this was also his phone. The respondent stated it did not work.
Police retrieved the telephone from the table and found it to also be a grey Optus Smart phone, but a slightly smaller model than the first. Both telephones were reviewed and were found to be functioning. A review of the telephone located on the table revealed (as can be discerned from the statement of material facts) a google search for 'brutal family invasion' and a viewed video of 'home invasion rape' and 'all family porn'.
Interrogation of police databases and further inquiries with CCOs revealed the respondent had only reported one device to both departments, being the same device with the same recorded telephone number. No further devices had been disclosed since the commencement of the supervision order. Both mobile telephones were seized for forensic download and review.
On 6 April 2023, WA Police arrested the respondent and charged him with one count of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 46 to the supervision order had been breached.
The respondent was convicted before a magistrate on his plea of guilty on 13 April 2023.
Charges 12 - 14 (PE 18929-18931/23)
The respondent must comply with condition 32 of the supervision order which provides that he must not permit any female to enter any residential address in which he resides, unless the identity of such person is approved in advance by a CCO.
The respondent must also comply with condition 15 which provides that he must comply with all obligations imposed on him pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).
From the statement of material facts for charges PE 18929‑18931/23, I understood that on Thursday 6 April 2023, the respondent was at his home address when officers from the High Risk Serious Offenders team attended to conduct an unannounced visit and meeting. While at the address, officers requested to review the respondent's mobile telephone, as per condition 49 of the supervision order (described above). The respondent's telephones were seized and downloaded.
A review of the telephone download revealed two images of the respondent inside his residence in company with a female. The images depict the respondent and the female sat in the respondent's kitchen area. In one of the images the female is holding a glass bottle labelled 'Jim Beam' and a small clip seal bag with a quantity of an unknown green substance inside. In front of the female on the table is a brass cone piece consistent with the type of item that could be used for smoking cannabis. The capture time of the image is dated 24 December 2022 at 1.01 pm, while the respondent was subject to the supervision order. The respondent had not been given approval for this female to be inside his residence.
While reviewing a download of the mobile telephone devices, messages from Facebook were also recovered in relation to Facebook accounts with account names which incorporated the respondent's surname. A search was conducted of these two Facebook accounts and it was discovered that the pictures posted by the user of these accounts were the same pictures saved in the respondent's telephone camera album. One of the Facebook accounts had been in use since 11 December 2022. The second had been in use since 22 December 2022.
Interrogation of police databases revealed the respondent had not reported either of these two Facebook accounts within seven days, failing to comply with his reporting obligations.
The first account has 272 listed 'Friends', which included a profile for a female which incorporated the respondent's surname. Messages on the device seized from the respondent show him to refer to that female profile as his wife. The second account has 78 listed 'Friends'.
On 12 April 2023, WA Police summoned the respondent with three offences, being two counts of having contravened a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act, and one count of having failed to comply with reporting obligations contrary to s 63(1) of the Community Protection (Offender Reporting) Act. It was alleged that conditions 15 and 32 to the supervision order had been breached.
The respondent was convicted before a magistrate of three offences on his plea of guilty on 29 May 2023.
Charges 15 - 16 (PE 57484-57485/22)
The respondent by condition 27 must be subject to a curfew, pursuant to s 32 of the High Risk Serious Offenders Act, such that he is to remain at and not leave his approved address as directed by a CCO from time to time.
By condition 38, he must not purchase, or possess, or consume or use alcohol.
From the statement of material facts for charges PE 57484-57485/22, I understood that on 26 December 2022, the respondent failed to return home prior to his curfew at 6.00 pm causing an alert at the Department of Justice Community Offender Monitoring Unit. The respondent returned home at approximately 7.10 pm.
On 26 December 2022, the respondent was arrested at his home address. He made admissions captured on police body worn camera and was subsequently charged. The respondent's explanation was that he had been drinking with his family.
At about 8.50 pm on 26 December 2022, the respondent underwent a breath analysis test which gave a reading of 0.140 grams of alcohol. He made admissions captured on police body worn camera, including that he had had two bottles of wine.
On 26 December 2022, WA Police arrested the respondent and charged him with two offences, being two counts of having contravened a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that conditions 27 and 38 to the supervision order had been breached.
The respondent was convicted before a magistrate on his plea of guilty on 28 December 2022.
Charge 17 (PE 58034/22)
By condition 38, the respondent must not purchase, or possess, or consume or use alcohol.
From the statement of material facts from charge PE 58034/22, I understood that at approximately 4.50 pm on 29 December 2022, the respondent was at sitting in front of Royal Perth Hospital on Victoria Square, Perth. Police attended the location and requested that he undergo a breath analysis test. He blew a reading of 0.179 grams of alcohol. The respondent made admissions captured on police body worn camera including 'I drank a couple of bottles of fruity lexia'.
On 29 December 2022, WA Police arrested the respondent and charged him with one count of having contravened a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 38 to the supervision order had been breached.
The respondent was convicted before a magistrate on his plea of guilty on 30 December 2022.
Charges 18 - 21 (PE 2307-2310/23)
The respondent must comply with conditions 10, 25 and 38, described above.
From the statement of material facts from charges PE 2307‑2310/23, I understood that at about 3.21 pm on 12 January 2023, the respondent was arrested in relation to other breaches of his supervision order at Wellington Square, East Perth. At the time he was in possession of approximately 1 gram of cannabis.
On 2 November 2022 the respondent was issued a Written Lawful Instruction (WLI) not to enter an exclusion zone for Wellington Square. On 12 January 2023 at about 3.00 pm, he entered the exclusion zone around Wellington Square, was located and arrested by WA Police within the exclusion zone at 3.21 pm on the same day.
At about 3.21 pm on 12 January 2023, when arrested while in an exclusion zone, the respondent was found to be in possession of alcohol. At this time, he underwent a breath analysis preliminary test which gave a reading of 0.99 grams of alcohol.
On 12 January 2023, WA Police arrested the respondent and charged him with four offences, being one count of being in possession of a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act; and three counts of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that conditions 10, 25 and 38 had been breached.
The respondent was convicted before a magistrate on his plea of guilty on 13 January 2023.
Charges 22 - 24 (PE 30128-30129/23 and PE 30190/23)
The respondent must comply with conditions 4, 25 and 38, described above.
From the statement of material facts from charges PE 30128‑30129/23 and PE 30190/23, I understood that on 13 June 2023 at 6.50 pm, the respondent was at his residence. He underwent a breath analysis preliminary test which gave a reading of 0.183 grams of alcohol. Police located two unsealed plastic bladders containing 500 millilitres of wine in a backpack in the possession of the respondent. He made admissions captured on police body worn camera that he had purchased alcohol and consumed it earlier that day, some of which was in his backpack.
Cannabis plant material within a clip seal bag was located in the right trouser pocket of the respondent's trousers during a security risk search. The respondent stated that he intended to smoke the cannabis as it helps him sleep.
During supervision with his CCO in June 2023, the respondent was issued a verbal and written direction to report for supervision on Tuesday 13 June 2023 at 1.00 pm. He failed to attend his appointment at the specified time. His CCO attempted to contact him on his mobile telephone at 1.13 pm, and he did not answer. At 6.50 pm the respondent was arrested at his home address in relation to other contraventions of his supervision order.
On 13 June 2023, WA Police arrested the respondent and charged him with three offences, being two counts of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act; and one count of being in possession of a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act. It was alleged that conditions 4 and 38 had been breached.
The respondent was convicted before a magistrate on his plea of guilty to all three charges on 6 July 2023.
Charge 25 (PE 35506/23)
The respondent must comply with condition 38, described above.
From the statement of material facts for charge PE 35506/23, I understand that it is alleged that at approximately 3.00 pm on 14 July 2023, the respondent was sitting at the front of 77 Barrack Street, Perth. Further, it is alleged that police attended the location and requested the respondent to undergo a breath analysis test which gave a reading of 0.118 grams of alcohol; and police located an open bottle of 700 ml Bacardi Rum inside the respondent's backpack, the bottle was two thirds full.
On 14 July 2023, WA Police arrested the respondent and charged him with one count of having contravened a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It is alleged that condition 38 to the supervision order was breached.
I understand that the respondent appeared in Perth Magistrates Court on 15 July 2023 in relation to this charge, and was remanded in custody until 24 July 2023 at 9.00 am when he will appear in Perth Magistrates Court for mention.
Assessment of the application
I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.
The State's position
Counsel for the State referred to the report prepared by Dr Wynn Owen for the purposes of the first review hearing.[7] Counsel noted that Dr Wynn Owen had diagnosed the respondent with substance abuse and antisocial personality disorders, and at par 77 of his report had opined that both risk factors are associated with an elevated risk of future sexual offending by the respondent.
[7] Affidavit of D S McDonnell, annexure 'AA'.
It was submitted that many of the offences for which the respondent was convicted relate to use of cannabis, consumption of alcohol and/or possession of cannabis and alcohol. Further, on some occasions, police arrested the respondent in public places after having found him under the influence of alcohol and/or cannabis.[8]
[8] Affidavit of D S McDonnell par 51.
Counsel for the State informed the court that the Community Offender Monitoring Unit has concerns that the respondent appears to present an elevated risk of serious offending which will continue if he remains in the community. Further, they have concerns regarding his ongoing manageability in the community.[9]
[9] Affidavit of D S McDonnell par 52.
Due to the respondent's high risk behaviour, the State seeks that the respondent be detained in custody pending the determination of the proceedings pursuant to s 53(2)(b) and of the High Risk Offenders Act.[10]
The respondent's position
[10] Affidavit of D S McDonnell par 53(ii).
Through counsel, the respondent accepts that the evidence of Dr Wynn Owen is relevant to the disposition of this application, and the that conditions of the supervision order were breached.
It was acknowledged that both accommodation and various supports remained in place. It was submitted that the respondent's offending occurred in a context where the respondent was lonely and isolated from his family and community, and had resorted to alcohol and cannabis.
The State's application for an interim detention order was not opposed, but left to the court's discretion. If made, counsel for the respondent urged the court to list the substantive contravention proceedings for hearing as soon as possible.
Disposition
Various findings were made in the restriction order proceeding by Tottle J in 2021, and in the first review proceeding by Fiannaca J in 2022. I do not understand that either party takes issue with those findings, nor my having regard to the same for the purpose of determining the State's application under s 53(2)(b).
I proceed on the basis that the respondent has a criminal history of sexual and violent offending from the age of 15 years. He also has an extensive history of other forms of offending.[11] I am informed by the findings of offending history summarised in The State of Western Australia v MAR [No 3] [54] ‑ [59], in addition to the findings in The State of Western Australia v MAR [No 2].
[11] The State of Western Australia v MAR [No 2] [26]; The State of Western Australia v MAR [No 3] [54].
The State says that 19 of the respondent's recent charges were referred in relation to contraventions of a requirement/condition of the supervision order. The respondent was convicted of 18 of those 19 charges on his plea of guilty. The respondent has not entered a plea to the final charge (PE 35506/23).
A number of the convictions now entered involve breach of the conditions to the supervision order by reason of alcohol and cannabis use. It was observed by Fiannaca J in The State of Western Australia v MAR [No 3] at [53] that:
The respondent has an extensive history of chronic alcohol and cannabis use, which appears to have commenced when he was a teenager, and continued throughout his adult life. Although there is nothing in the materials to suggest that it prevented him from functioning satisfactorily in the work and service roles he has had, his substance abuse problem has been identified as a factor in his offending.
Dr Wynn Owen assessed the respondent's risk in both the restriction order proceeding and the first review proceeding. For the purposes of the first review hearing, he again diagnosed the respondent with Substance Use Disorder, then in remission, and Antisocial Personality Disorder.[12]
[12] The State of Western Australia v MAR [No 3] [191]; affidavit of D S McDonnell, annexure 'AA', pars 57 ‑ 59.
As part of the assessment of risk for the first review hearing, Dr Wynn Owen again employed the RSVP framework to determine the presence of the respondent's risk factors.[13] The RSVP requires the assessor to formulate likely scenarios for future offending by the subject.
[13] The State of Western Australia v MAR [No 3] [196] - [227]; affidavit of D S McDonnell, annexure 'AA', pars 65 ‑ 95.
As to scenarios for sexual offending, at [224], Fiannaca J noted as follows:
As Dr Wynn Owen had identified previously, any future serious offending by the respondent is likely to reflect his past offending. Accordingly, in his opinion, the most likely scenario for serious sexual offending is an opportunistic indecent assault upon a female family member or acquaintance who is present, and apparently asleep, at a place where the respondent happens to be, and at a time when the respondent has been drinking alcohol and is acutely intoxicated or within hours of ceasing alcohol consumption. In that scenario, the respondent would cease if the victim woke and told him to stop, or broke free. An escalation of sexual violence would entail attempted or actual vaginal penetration, with a degree of force used to compel compliance. Dr Wynn Owen concluded that an escalation and change would be the use of a degree of force resulting in physical injury, including the potential use of a weapon. [Footnotes omitted]
As to scenarios for violent offending, at [227], Fiannaca J summarised Dr Wynn Owen's opinion as follows:
In Dr Wynn Owen's opinion, the most likely scenario for serious violent offending is violence towards a female partner in an intimate relationship. The context may include a return to substance use to manage feelings of jealousy or to manage fear of rejection and abandonment. Acute intoxication is likely to be a factor, as the disinhibition resulting from intoxication can impair self-control and consequential thinking, resulting in an increase of the level of violence used. [Footnotes omitted]
In making a decision in relation to the application before me, the paramount consideration is the need to ensure adequate protection of the community: s 56(6).
The respondent has been subject to the supervision order for about nine months. There have been a large number of offences (for which the respondent has pleaded guilty) in that time. I understand that in that nine months, the respondent has been in the community for only about 4 or 4.5 months, and the remainder in remand in relation to his recent convictions.[14] The respondent's conduct cannot be characterised as 'one-off', or a blip in what was otherwise compliant conduct while subject to the supervision order.
[14] ts 249 (21 July 2023).
For the purpose of this application, I accept that the breaches of the conditions may indicate that the respondent is moving towards a heightened risk that he may commit a serious offence.
On the other hand, I am cognisant that the contraventions appear not to have involved any aggression or disorderly conduct by the respondent. The alleged contraventions, save for the circumstances which informed charge 11 (PE 17420/23), do not appear sexually motivated.
In the end, the issue for me is whether it is necessary or desirable that the respondent be detained to protect against the risk of a serious offence being committed between now and the substantive hearing of the contravention proceedings. I consider that the material before me reveals such a risk, and I am satisfied that it is necessary that the respondent be detained having regard to the paramount consideration.
I have also considered whether a variation to the conditions to which the respondent is subject, or the addition of conditions, might tip the balance. Unfortunately, given the range and number of breaches the subject of recent conviction, on the evidence before me, I am not satisfied that a variation or imposition of additional conditions would ensure adequate protection of the community from the commission of serious offences.
I will therefore make an order under s 53(2)(b). The respondent will be detained in custody while contravention proceedings on the State's application for an order under s 55 are pending. The orders otherwise promoted on the part of the State are also appropriate. Section 54 of the High Risk Serious Offenders Acts allows for the court to order reports for purposes of contravention proceedings and by order 2, the respondent will undergo an examination by Dr Wynn Owen for the purpose of the contravention proceedings.
Conclusion and orders
Having concluded that it was necessary to make order an under s 53(2)(b), I heard the parties as to the form of orders and their availability for the hearing of the contravention proceedings. Orders were made in the form reproduced at sch B to these reasons.
Sch A - Supervision order made on 27 October 2022 (redacted)
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SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 27 OCTOBER 2022
Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (HRSO Act), the Court makes a supervision order in relation to the Respondent (this Order), for a period of 5 years from 2 November 2022, on the following conditions:
You, MAR, must:
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre within 48 hours of your release from custody subject to this Order, and advise the CCO of your current name and address.
Report to and receive visits from a CCO as directed by the court under this Order.
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, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32 of the HRSO Act).
Not leave or stay out of the State of Western Australia without the permission of a CCO.
Not commit a serious offence as defined in section 5 of the HRSO Act during the period of this Order.
Be subject to electronic monitoring under section 31 of the HRSO Act.
Residence
Take up residence at [REDACTED] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order.
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO.
Attendance at programs or treatment
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO.
Attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO.
Reporting to WA Police
Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020.
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, inclusion confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate to disclose to them confidential information including your offending history.
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your sexual and violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual or violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your offending (including sexual offending) on the next working day you report to the CCO or Police.
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s202, s203, s204 Criminal Code 1913 (WA) or s17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave you approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring you compliance with the curfew.
When subject to a curfew under this Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Prevention of high-risk situations
With the exception of public transport, not to enter in or on any vehicle, including taxis and rideshare vehicles such as but not limited exclusively to Uber, where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by the CCO.
Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO.
Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO.
Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO.
Attend for, and submit to, urinalysis or 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.
Provide a valid sample pursuant to Condition 36.
Not purchase, or possess, or consume or use alcohol.
Not to go, enter any part of your body inside, or remain at any licensed premises unless permitted or required to do so for the following reasons:
a.For the purpose of averting or minimising a serious risk of death or injury to yourself or another person.
b.For a purpose, and duration approved in advance by a CCO.
c.On the order of a CCO or Police Officer.
Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know are affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO.
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence.
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
a.The contact is authorised in advance by the CCO and such contact is supervision at all times by an adult approved in advance by the CCO.
b.The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication)
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide the name, address, location and any details known by you, of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 46, without prior approval.
Enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 46, or any online accounts, to any person other than a CCO or Police Officer.
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
Maintain a daily diary of your movements, activities and associations, if and as directed by the CCO, and present this diary to the CCO and Police upon request.
Sch B - Orders made on 21 July 2023
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LP
Associate to the Honourable Justice Strk
24 JULY 2023
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