The State of Western Australia v Narkle [No 4]
[2017] WASC 3
•9 JANUARY 2017
THE STATE OF WESTERN AUSTRALIA -v- NARKLE [No 4] [2017] WASC 3
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 3 | |
| 09/01/2017 | |||
| Case No: | MCS:86/2009 | 21 DECEMBER 2016 | |
| Coram: | HALL J | 21/12/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Orders made Respondent required to enter undertaking after current supervision order expires | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA SHANE NARKLE |
Catchwords: | Criminal law Dangerous sexual offenders Application for a further supervision order on expiry of existing order Preliminary orders Final hearing to occur after existing order expires No power to extend existing order Power to detain but conditionally release the respondent until the final hearing |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 7, s 8, s 14 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
SHANE NARKLE
Respondent
Catchwords:
Criminal law - Dangerous sexual offenders - Application for a further supervision order on expiry of existing order - Preliminary orders - Final hearing to occur after existing order expires - No power to extend existing order - Power to detain but conditionally release the respondent until the final hearing
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 8, s 14
Result:
Orders made
Respondent required to enter undertaking after current supervision order expires
Category: B
Representation:
Counsel:
Applicant : Mr C Astill
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Nil
- HALL J:
(This judgment was been delivered extemporaneously on 21 December 2016 and has been edited from the transcript)
1 The respondent, Shane Narkle, is presently the subject of a supervision order under the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). That order was made on 7 January 2013 for a term of four years. Accordingly, the order is due to expire on 6 January 2017.
2 By an application filed on 8 December 2016, the State seeks a further supervision order to take effect on the expiry of the current order. The intention is that a hearing to determine whether such an order should be granted will be held on 9 February 2017. Section 8(4A) of the DSO Act provides that if an offender is subject to a supervision order and that order is to expire within one year, the DPP may file with the Supreme Court an application for orders under s 14 and for a further supervision order under s 17(1)(b) in relation to the offender, with the further order to take effect on the expiry of the current order.
3 Section 8(4) provides that an application must be accompanied by an affidavit relied upon by the DPP for the purpose of seeking an order under s 14. An affidavit of Mr Craig Astill, who appears today for the State, and sworn on 6 December has been filed for that purpose.
4 Section 14 provides for orders to be made at a preliminary hearing, including fixing a day for the hearing of the application and the obtaining of reports. Such orders can only be made if the court is satisfied that there are reasonable grounds for believing that the court might under s 7(1) find that the offender is a serious danger to the community. The implication is that on an application of this nature it is necessary for the court to make a fresh finding under s 7 before any further supervision order can be made. Thus, at the final hearing of the application the court must consider whether there is an unacceptable risk that if the respondent was not subject to a further supervision order he would commit a serious sexual offence.
5 At the preliminary hearing stage, the making of programming orders only depends on there being reasonable grounds for believing that the court may make the finding necessary under s 7. Whilst that is a new finding under s 7, it does not occur in a vacuum and the history of the supervision order can be taken into account. That history is referred to in the affidavit of Mr Astill. I have read that affidavit and the annexed documents.
6 There is evidence in that material that Mr Narkle has been non-compliant with the supervision order in a number of different respects, and that he has engaged in conduct that is known to raise the risk of sexual offending. There is also evidence that counselling during the term of the supervision order has not been successful and that Mr Narkle continues to maintain the beliefs and attitudes that were a factor in the assessment in 2013 that he was a serious danger to the community.
7 There is also evidence of an expressed intention on the part of Mr Narkle to drink alcohol to excess and to commit violent offences once the order expires. The sexual offending in the past has been of a violent nature. However, I recognise that a supervision order could not be imposed if the only risk is of violent offending and not sexual offending. Nonetheless, as I have noted, sexual offending in the past has been a component of violent offending, which itself is linked to excessive use of alcohol.
8 In those circumstances, conditions and expressions of views which relate to the use of alcohol are relevant in considering whether a court may make an order such as that sought. Whether the risk is unacceptable refers not just to the percentage chance of an offence being committed, but to the type of offence that may be committed. The sexual offences in this case, although committed many years ago, were of a seriously violent and sexual nature, and that is a relevant consideration in determining whether any risk is an acceptable one.
9 In my view, there are reasonable grounds for believing that the court may find that the respondent continues to be a serious danger to the community. Accordingly, the basis for making orders under s 14 has been established.
10 As I noted earlier, the hearing is proposed to be on 9 February 2017. By that time, the current order will have expired. There appears to be no power under s 14 to extend the current order to the hearing date, or to make an interim supervision order that would apply after the current order expires. This appears to be a hiatus in the DSO Act. It is to be contrasted with the ability to make an interim detention order where the respondent is in custody. It is also to be contrasted with the power to extend the term of a supervision order in contravention proceedings: see s 23.
11 There is, however, at the preliminary hearing stage a power under s 14 to make an order that an offender who is not in custody be detained in custody for a period that is stated in the order, which in the case of a preliminary hearing would usually be until the final hearing can be held. Clearly, the power to detain should not be used unless it is appropriate. It is not the case that in every circumstance it will be necessary or appropriate to detain a person in custody in proceedings of this nature. That is particularly so bearing in mind that if the application is granted it would not be possible for an order for continuing detention to be made: s 17(3). Bearing that in mind, the power to detain on an interim basis should be used sparingly. It should also not be used in order to remedy a deficiency in the DSO Act, that being that there is no power to make an interim supervision order.
12 However, there may be circumstances where the risk that has been established to the standard necessary under s 14 is one that, should the current order expire, would seriously affect the safety of the community. It may be that in such circumstances there would be good grounds to exercise the power to detain. If there are grounds to exercise that power in a case such as the present, then I am satisfied that there would also be grounds to exercise it on a conditional basis, such that the respondent could be released upon an undertaking that would condition any order to detain him and require him to comply with the terms of any such order until the final hearing.
13 In the circumstances of this case, I am satisfied that such an order should be made and that the order should be in terms that will require Mr Narkle to enter into a personal undertaking that will require him to appear at the hearing on 9 February 2017 and to also comply with all of the terms of the current supervision order up until that date. The effect of that will be that he will continue to be bound by the terms and conditions of that order up until 9 February, although the basis for that will change after 6 January 2017.
14 There is another potential difficulty that I should mention at this stage and that is that s 8(4A) provides that any new order must take effect 'on the expiry of the current order'. It might be thought impossible to comply with this requirement if the current order has expired. There is no power, express or implied, to make an order with retrospective effect. This implies that any application for a new order should be heard and determined before the current order expires. That will not be the case here, due to the timing of the application.
15 Section 10(b) provides that an application under s 8(4A) can be dealt with even if the offender ceases to be subject to a supervision order. This means that the final hearing can be listed after the current order expires, provided that proceedings were commenced before that time. In these circumstances, it is possible to fix a hearing date in February, though it does not resolve how the court will comply with the terms of s 8(4A). That, however, is a matter for the judge who presides at the final hearing. These are only my preliminary views in respect of that provision. I make no ruling in respect of it. The parties have had limited opportunity to give those issues detailed consideration.
16 I am satisfied that I have the power to make the orders sought under s 14 and that the factual basis for making such orders has been established.
17 Accordingly, there will be orders in the following terms:
(1) The application for a division 2 order pursuant to s 17(1)(b) of the DSO Act will be heard on 9 February 2017.
(2) The respondent is to undergo examinations by a psychiatrist, namely, Dr Bryan Tanney, and a psychologist who is to be determined, the name of the psychologist to be provided to the court within the next seven days, for the purpose of preparing reports as required by s 37 of the DSO Act and for use at the hearing of the application for the division 2 order.
(3) The two reports referred to in order 2 are to be provided to the applicant and the respondent on or before 23 January 2017.
(4) The authors of the two reports referred to in order 2 are to liaise with the Department of Corrective Services as to a management plan, if appropriate, for the respondent to continue to be supervised in the community.
(5) There be an order that the respondent be detained pursuant to s 14 of the DSO Act until the hearing of the application, however such order to be suspended upon the respondent entering into an undertaking that he will continue to abide by the conditions of the supervision order after it expires on 6 January 2017 and that he will appear at the hearing of the application on 9 February 2017.
(6) That there be liberty to the parties to apply generally.
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