The State of Western Australia v Mills [No 3]
[2024] WASC 18
•25 JANUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MILLS [No 3] [2024] WASC 18
CORAM: DERRICK J
HEARD: 25 JANUARY 2024
DELIVERED : 25 JANUARY 2024
FILE NO/S: SO 8 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DWAYNE ANTHONY MILLS
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Contravention proceedings - Supervision order - Whether detention order should be made pending determination of contravention proceedings
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Contravention proceedings listed for hearing
Detention order made
Category: B
Representation:
Counsel:
| Applicant | : | D S McDonnell |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Mills [No 2] [2023] WASC 126
The State of Western Australia v Slater [No 2] [2021] WASC 465
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
On 8 and 9 March 2023 Vandongen J heard the State's application for a restriction order to be made in relation to the respondent pursuant to s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (Act).
On 26 April 2023 Vandongen J found that the respondent is a high risk serious offender and made a restriction order, specifically a supervision order, in respect of the respondent pursuant to s 48(1)(b) of the Act.[1]
[1] The State of Western Australia v Mills [No 2] [2023] WASC 126.
The respondent was released on the supervision order on 26 April 2023.
Since the respondent's release on the supervision order he has been charged with 19 offences of contravening a requirement of the order contrary to s 80(1) of the Act. He has pleaded guilty to, and been convicted in the Magistrates Court of, 11 of these charged offences (contravention offences). He has either pleaded not guilty or is yet to enter a plea to the remaining eight charges (charged contraventions). In respect of the charged contraventions he has been remanded to appear in the Magistrates Court on 7 February 2024. He is currently remanded in custody.
On 24 January 2024 the State, in light of the contravention offences and charged contraventions, made an application pursuant to s 53(1)(b) and s 53(2) of the Act for orders under s 55 of the Act and also for an order under s 56(2)(b) of the Act, alternatively s 56(7)(b) of the Act (contravention application).
The State has filed in support of the contravention application an affidavit affirmed by Mr Daniel McDonnell dated 24 January 2024 and an affidavit affirmed by Ms Roxanne Stockton dated 25 January 2024. Mr McDonnell is a legal practitioner employed by the State's solicitor. Ms Stockton is a Senior Community Corrections Officer (CCO) employed by the Department of Justice Corrective Services Division. Ms Stockton is based at the Community Offender Monitoring Unit (COMU).
The contravention application has today come before me for directions. The State seeks programming orders in the following terms (programming orders):
1.The application for an order pursuant to s 55 of the [Act] be heard on 27 May 2024.
2.The Respondent undergo an examination by a qualified expert, namely Ms Julie Hasson, psychologist, for the purposes of preparing a report as required by s 74 of the [Act] that is to be used on the hearing of the contravention application.
3.The expert named in order 2 is not to include in her report, information or opinions about the Respondent based on a communication with a third person unless details of that communication sufficient to identify the person with whom the communication was held, its date and a summary of its content are included in the expert's report.
4.The report of the expert be provided to the Applicant at least 14 days prior to the hearing of the contravention application.
5.Any report ordered by the Department of Justice, including any Performance Report or Treatment Progress Report, be provided to the Applicant at least 7 days prior to the date of the hearing of the contravention application.
6.The expert named in order 2 liaise with the Department of Justice as to a Management Plan (if appropriate) for the Respondent to be supervised in the community.
7.Pursuant to s 122 of the Criminal Investigation Act 2006, the expert named in order 2 may be supplied with and may view any audiovisual recordings of interviews with the Respondent, or transcripts of the same, for the purpose of preparing her report.
8.The Respondent be detained in custody until the final determination of the application, pursuant to s 56(2)(b) of the [Act].
9.There be liberty to the parties to apply generally.
The respondent does not oppose the making of the programming orders. I will make the programming orders. However, despite the respondent's non‑opposition to the order that he be detained in custody until the final determination of the contravention application pursuant to s 56(2)(b) of the Act, it is necessary for me to state my reasons for deciding that it is appropriate to make this order (interim detention order). I will therefore proceed to do so.
I note that the State has formally tendered on the directions hearing in support of its application for the interim detention order the affidavits affirmed by Mr McDonnell and Ms Stockton. The State tendered the affidavits without objection from the respondent. The respondent did not require either Mr McDonnell or Ms Stockton to submit themselves to cross‑examination on the content of their respective affidavits.
The respondent's offending history
The respondent was born on 2 December 1979. He is therefore now 44 years of age.
The respondent has a lengthy criminal record. He has committed many offences that have involved the infliction of serious violence or serious threatened violence. In The State of Western Australia v Mills [No 2],[2] Vandongen J summarised the respondent's extensive criminal record in the following terms:
Mr Mills has a very lengthy criminal record. His offending began in the Children's Court when he was convicted of an offence of armed robbery in company that was committed in April 1992. After he was sentenced for that offence later that year, Mr Mills frequently appeared before the Children's Court in relation to a wide range of offences including threatening behaviour, possession of drugs, stealing motor vehicles, assault, burglary, unlawful wounding, robbery, aiding an escaped prisoner, attempting to pervert the course of justice, and breach of bail, as well as numerous driving offences.
As an adult, Mr Mills continued to commit serious offences from early 1998, until his most recent offending in February 2017.
[2] The State of Western Australia v Mills [42] ‑ [44].
On 1 March 2011 the respondent was convicted of two offences of aggravated armed robbery, one offence of aggravated burglary and one offence of stealing a motor vehicle. He was sentenced on that date to a total of 7 years and 6 months imprisonment for the offences.
On 30 September 2016 the respondent was released on parole.
On 20 March 2017 the respondent's parole was cancelled because he committed further offences. The further offences committed by the respondent were stealing, making a threat to unlawfully harm, assault occasioning bodily harm, and unlawfully doing an act as a result of which the life, health, or safety of another was likely to be endangered or was endangered.
On 22 March 2018 the respondent was sentenced to a total of 4 years imprisonment in respect of the offences that he had committed while on parole. The sentence was ordered to be served cumulatively on the sentence that he was then serving for the two aggravated armed robbery offences. The end result was that he was required to serve a total of 11 years and 6 months imprisonment from 1 March 2011. The respondent was serving this term of imprisonment at the time that the State made the restriction order application.
The restriction order hearing and Vandongen J's decision
The qualified experts who provided reports pursuant to s 74 of the Act, and who gave evidence before Vandongen J on the hearing of the restriction order application, were Professor Natalie Pyszora, a consultant psychiatrist, and Ms Julie Hasson a consultant forensic psychologist.
Professor Pyszora and Ms Hasson both expressed the opinion that one of the respondent's risk factors was substance use.[3]
[3] The State of Western Australia v Mills [No 2] [58].
Professor Pyszora gave evidence that the respondent was most likely to reoffend by committing armed violence with antisocial peers.[4] She said that any such offending would likely be associated with drug use.[5] She said that the risk that the respondent might commit further serious offences involving the use of violence was related to the risk of him relapsing into substance abuse, the risk of him associating with anti‑social people and the risk of him doing both of these things in combination.[6] She said that if the respondent relapsed into substance use and/or began associating with antisocial and drug using peers, it is highly likely that he would relapse into serious offending.[7]
[4] The State of Western Australia v Mills [No 2] [60].
[5] The State of Western Australia v Mills [No 2] [60].
[6] The State of Western Australia v Mills [No 2] [61].
[7] The State of Western Australia v Mills [No 2] [90].
Ms Hasson identified three possible risk scenarios for the commission of future violence by the respondent. The first of the identified scenarios was that the respondent would reoffend by committing an armed or violent robbery in order to fund drug use or alleviate financial pressure.[8]
[8] The State of Western Australia v Mills [No 2] [62].
Ultimately, both Professor Pyszora and Ms Hasson expressed the opinion that if the respondent was not subject to a restriction order he would present a high risk of committing a serious offence.[9]
[9] The State of Western Australia v Mills [No 2] [64] ‑ [67].
The opinion evidence given by Professor Pyszora and Ms Hasson was unchallenged.[10] Their evidence was accepted by Vandongen J.[11]
[10] The State of Western Australia v Mills [No 2] [96].
[11] The State of Western Australia v Mills [No 2] [96].
Vandongen J expressed his conclusion in relation to whether the respondent was a high risk serious offender in the following terms:[12]
Mr Mills' counsel conceded at the hearing that Mr Mills is a high risk serious offender. That concession should be accepted.
As I have already explained, based on the acceptable, cogent and unchallenged evidence before me, I have found that there is a high risk that Mr Mills will commit a serious offence if he is not subject to a restriction order. Specifically, there is a high risk that he will commit a serious offence that involves the use of physical violence and weapons, which is likely to be committed in company with others, carrying with it the risk of trauma and injury to any victim.
It necessarily follows, in my view, that the risk Mr Mills will commit a serious offence is an unacceptable risk.
On that basis I am satisfied, to a high degree of probability, that it is necessary to make a restriction order in relation to Mr Mills to ensure the adequate protection of the community against that unacceptable risk.
[12] The State of Western Australia v Mills [No 2] [97] ‑ [100].
Having found that the respondent was a high risk serious offender and that consequently a restriction order needed to be made in relation to him, Vandongen J expressed his reasons for deciding that the making of the supervision order would ensure adequate protection of the community in the following terms:[13]
In my view, such an order will afford adequate protection for the community for the following reasons.
Firstly, and significantly, Mr Mills has not committed any offences since he was released on 17 July 2022, let alone any violent serious offences, notwithstanding my findings about his history of committing, and his propensity to commit, such offences.
Secondly, Mr Mills has been largely compliant with the terms of the [post-sentence supervision order] since it was first imposed on him on 17 July 2022 … Relevantly, there is no evidence to suggest that Mr Mills has failed to comply with the conditions in the [post‑sentence supervision order] that he not have contact with any victims of his offences or with a co offender, or that he not be in possession of or use any prohibited drugs, or that he not associate with nominees, associates or members of any motorcycle clubs since his release from prison.
Thirdly, Mr Mills currently lives with, and has the support of, his mother and his 16‑year‑old daughter. His mother has indicated that she is willing to continue to accommodate Mr Mills should he be made subject to a supervision order ...
Fourthly, Mr Mills has been employed on a casual basis as a general hand since 27 September 2022. He was still serving a probationary period of employment at the time of the hearing, but he expected that he would be offered a permanent position in the near future. He has also successfully completed a certificate in surface extraction on 16 September 2022, and his employment mentor has said that he has been working positively.
Fifthly, the unchallenged expert evidence of Professor Pyszora and Ms Hasson is to the effect that the risk that Mr Mills might commit a serious offence can be adequately managed by making him subject to a supervision order. There is no expert evidence in support of a conclusion that it is necessary to do more, by way of a continuing detention order, to achieve an adequate degree of protection for the community.
Finally, the State has not submitted that only a continuing detention order would provide adequate protection for the community. In fact, the State has submitted that the risk that Mr Mills will commit a serious offence is able to be managed in the community and that a supervision order should be made. Although I am not bound to accept the State's submission, it is plainly a very significant factor in favour of a supervision order being made.
[13] The State of Western Australia v Mills [No 2] [109] ‑ [115].
The contravention offences and the charged contraventions
It is not necessary for me to recite in detail the facts of the contravention offences and the alleged facts of the charged contraventions. The facts of the contravention offences and the alleged facts of the charged contraventions are revealed by documents annexed to Mr McDonnell's affidavit. For present purposes it suffices for me to set out the following brief details of the contravention offences and the charged contraventions:
Contravention offences
1.On 8 June 2023 the respondent was convicted of one offence of contravening a requirement of the supervision order by failing to provide a valid sample for urinalysis and one offence of contravening a requirement of the supervision order by failing to comply with a lawful direction from his CCO (PE 29034/2023 - PE 29035/2023). The respondent committed the offences on 6 and 7 June 2023. The respondent was fined for the offences;
2.On 26 June 2023 the respondent was convicted of two offences of contravening a requirement of the supervision order by failing to provide a valid sample for urinalysis and one offence of contravening a requirement of the supervision order by using methylamphetamine (PE 32183/2023 - PE 32185/2023). He committed the offences on 16 June 2023 and 21 June 2023. He was fined for the offences;
3.On 11 July 2023 the respondent was convicted of one offence of contravening a requirement of the supervision order by failing to attend for urinalysis testing as directed and by subsequently failing to provide a sample (PE 34772/2023). He committed the offence on 10 July 2023. He was fined for the offence;
4.On 25 July 2023 the respondent was convicted of one offence of contravening a requirement of the supervision order by using methylamphetamine (PE 36936/2023). He committed the offence on 19 July 2023. He was fined for the offence;
5.On 9 August 2023 the respondent was convicted of one offence of contravening a requirement of the supervision order by using methylamphetamine (PE 39622/2023). He committed the offence on 4 August 2023. He was sentenced for the offence to 6 months and 1 day imprisonment suspended for 12 months;
6.On 3 October 2023 the respondent was convicted of one offence of contravening a requirement of the supervision order by using methylamphetamine (PE 47888/2023). He committed the offence on 19 September 2023. He was sentenced for the offence to 6 months and 1 day imprisonment suspended for 12 months; and
7.On 7 November 2023 the respondent was convicted of one offence of contravening a requirement of the supervision order by failing to provide a valid urinalysis sample and one offence of contravening a requirement of the supervision order by using methylamphetamine (PE 55473/2023 - 55474/2023). He committed the offences on 2 November 2023. He was sentenced for each of the offences to 8 months imprisonment suspended for 12 months.
Charged contraventions
1.On 5 July 2023 the respondent was charged with one offence of contravening a requirement of the supervision order by not providing a valid urinalysis sample (PE 33960/2023). He is alleged to have committed the offence on 30 June 2023;
2.On 20 July 2023 the respondent was charged with one offence of contravening a requirement of the supervision order by failing to report to his CCO that he had an electronic device in his possession and one offence of contravening a requirement of the supervision order by failing to provide details of the device to the police (PE 36414/2023 - 36415/2023). He is alleged to have committed the offences on 6 July 2023;
3.On 13 October 2023 the respondent was charged with two offences of contravening a requirement of the supervision order by failing to reside overnight at his approved address (PE 51011/2023 - 51012/2023). He is alleged to have committed the offences on two separate occasions during the period 7 October 2023 to 10 October 2023;
4.On 15 November 2023 the respondent was charged with two offences of contravening a requirement of the supervision order by failing to abide by his curfew (PE 57472/2023 - 57473/2023). He is alleged to have committed the offences on 4 November 2023 and 15 November 2023; and
5.On 23 January 2024 the respondent was charged with one offence of contravening a requirement of the supervision order by not returning to his approved home address before 10.00 pm (PE 4530/2024). He is alleged to have committed the offence on 3 January 2024.
Other alleged offences while subject to the supervision order
In addition to the charged contraventions the respondent has also, while subject to the supervision order, been charged with, among other offences, five offences of stealing, one offence of breach of bail and one offence of driving with an illicit drug in his fluid or blood.
On 20 July 2023 the respondent was charged with the first of his stealing offences (PE 36413/2023). The respondent is alleged to have committed the offence on 6 July 2023. The thrust of the allegation the subject of the charge is that the respondent stole a mobile phone from a shop, that the phone was configured in such a way that it could not be used to make calls and that the respondent returned the phone to the shop the next day claiming that he had found the phone on the floor. I note that the phone the subject of this stealing charge is the phone the subject of the above referred to two charged contraventions relating to his possession of an electronic device.
On 30 July 2023 the respondent was charged with his second offence of stealing (AR 9513/2023). He is alleged to have committed the offence with a person who is a high risk serious offender (non‑sexual serious offending) subject to a supervision order.
On 2 January 2024 the respondent was charged with the remaining three stealing offences (AR 113/2024 - AR 115/2024). The respondent is alleged to have committed one of the offences on 28 December 2023 and two of the offences on 1 January 2024. Each of the charges alleges that the respondent shoplifted cans of alcohol.
On 23 January 2024 the respondent was charged with his breach of bail offence (together with the last of his above referred to charged contraventions). The allegation the subject of the charge is that the respondent failed to appear in court on 22 January 2024 in answer to the police bail that was granted to him in respect of the three stealing offences with which he was charged on 2 January 2024. He was arrested on a warrant and brought before the court on 23 January 2024. He was on that date remanded in custody.
On a date that is not revealed by the material before me the respondent was charged with an offence of driving with a prescribed illicit drug (methylamphetamine) in his oral fluid or blood (AR 860/2024). He is alleged to have committed the offence on 1 November 2023. His first appearance date for the charge is 25 March 2024.
Affidavit of Ms Stockton
Ms Stockton is currently the respondent's case manager. She has been the respondent's case manager since 4 August 2023.
In her affidavit, Ms Stockton deposes that during the period 26 April 2023 to 4 August 2023 the respondent has contravened the supervision order on a number of occasions and in a variety of ways. She deposes that these contraventions have not resulted in the laying of formal charges against the respondent but have rather been dealt with by issuing the respondent with non‑compliance warnings. The contraventions deposed to by Ms Stockton include the respondent failing to attend for urinalysis without providing evidence in support of any explanation for the non‑attendance, failing to provide valid samples for urinalysis, providing a urinalysis sample while using a deceptive device, testing positive for methylamphetamine, failing to spend nights at his approved address, engaging in aggressive behaviour towards a phlebotomist, his partner and other persons present at an Adult Community Corrections Centre, and failing to comply with his curfew.
In her affidavit, Ms Stockton also deposes that between 26 April 2023 and 24 January 2024 the respondent engaged in 'concerning behaviours' that impact upon the management of the risk of him committing a serious offence. The respondent's 'concerning behaviours' identified by Ms Stockton include, but are not limited to, the following:
1.Avoidance of urinalysis testing, providing positive urinalysis test results and engaging in deceptive behaviour regarding substance misuse;
2.Using medical certificates to circumvent conditions of the supervision order notwithstanding that his medical condition does not prevent compliance;
3.Displaying aggressive behaviour towards COMU staff and his previous supervising CCO; and
4.Associating with another high risk serious offender, specifically the person who he is alleged to have committed the second of his stealing offences with.
In relation to the respondent's current situation Ms Stockton deposes as follows:
1.Following self‑disclosure of methylamphetamine use the respondent agreed to self‑refer to Next Step for substance abuse counselling. The respondent failed to self‑refer with the result that a formal referral was submitted on 30 August 2023. On 22 September 2023 Next Step confirmed that the respondent was waitlisted for substance abuse counselling;
2.On 16 October 2023 and 6 November 2023 the respondent attended substance abuse counselling at Palmerston. However, on 4 December 2023 the respondent failed to attend counselling and Palmerston's attempts to contact the respondent by telephone on 6 December 2023 were unsuccessful;
3.On 16 June 2023 the respondent was referred to the Forensic Psychological Intervention Team (FPIT) for offence specific counselling. Following the referral the respondent failed to attend three counselling sessions due to employment. On 23 August 2023 the respondent attended a counselling session. On 4 October 2023 the respondent refused to attend for counselling proffering as a reason for doing so his need to support his partner at a medical clinic. However, monitoring of the respondent's movements revealed that he did not attend any medical clinic. On 5 January 2024 the respondent declined a re‑referral to the FPIT. The respondent has therefore attended a total of four counselling sessions; and
4.The respondent currently lives with his partner and her father at an approved address in Forrestfield.
Ms Stockton concludes her affidavit by asserting that due to the respondent's 'non‑compliance with the conditions of the supervision order and ongoing concerns for the respondent's dishonesty, ongoing grooming and manipulation of supports in his life, and participation in behaviours relating to his risk scenarios', the COMU is of the opinion that the respondent is likely to further contravene the conditions of this supervision order. She deposes that the COMU has concerns that the current conditions of the supervision order do not allow for adequate management of the respondent's risk of serious offending in the community. She deposes that the COMU supports the contravention application.
Determination of application for interim detention of the applicant
The essential question for me in determining the State's application for the interim detention order is whether I am satisfied that it is necessary to make the order to ensure adequate protection of the community from the risk of the commission by the respondent of serious offences. The need to ensure adequate protection of the community is the paramount consideration.[14]
[14] Act, s 56(6).
I must always keep in mind that the object of the Act to be achieved is the adequate protection of the community from the commission by the respondent of serious offences.[15]
[15] The State of Western Australia v Slater [No 2] [2021] WASC 465.
Even putting to one side the charged contraventions, it is apparent from the contravention offences and the conduct of the respondent deposed to by Ms Stockton, that the respondent has, since shortly after being released on the supervision order, used methylamphetamine on a regular basis. The conditions of the supervision order have failed to deter the respondent from engaging in methylamphetamine use.
It is also apparent from the facts of the contravention offences as revealed by the documents annexed to Mr McDonnell's affidavit that the respondent has on most of the occasions the subject of the offences attempted to avoid urinalysis or has provided an invalid sample in an attempt to conceal from those responsible for his supervision and management that he has been using methylamphetamine. In other words, the respondent has engaged in conduct designed to deceive those responsible for his supervision and management.
It is clear from the expert evidence that was before Vandongen J at the hearing of the restriction order application, to which I have referred, that the ongoing use by the respondent of methylamphetamine is a very significant risk factor for him. The respondent's use of methylamphetamine increases very significantly the unacceptable risk that he will commit a serious offence of the type identified by Vandongen J; that is, a serious offence that involves the use of physical violence and weapons in company with others carrying with it the risk of trauma and injury to any victim.
It is the position that the respondent's use of methylamphetamine since being released on the supervision order has not resulted in him committing a serious offence. However, given the clear link between the respondent's use of methylamphetamine and his commission of serious violent offences it is near on inevitable that if he continues to use methylamphetamine and hence becomes more entrenched in its use, he will commit a serious offence of the type identified by Vandongen J.
There is nothing before me that supports the conclusion that if the respondent is permitted to remain in the community subject to the supervision order its conditions will deter him from continuing on the path of methylamphetamine use that he has engaged in since his release.
For the reasons I have stated in paragraphs 38 - 42 above, I am satisfied that I should make an order detaining the respondent until the determination of the contravention application. I am satisfied that it is at this point in time necessary to make such an order to ensure adequate protection of the community from the unacceptable risk of the respondent committing serious offences of the type identified by Vandongen J.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JP
Research Associate to the Honourable Justice Derrick
29 JANUARY 2024
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