The State of Western Australia v Nelson - [2021] WASC 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NELSON [2021] WASC 215
CORAM:   QUINLAN CJ
HEARD:   30 JUNE 2021
DELIVERED          :   30 JUNE 2021
PUBLISHED           :   30 JUNE 2021
FILE NO/S:   SO 3 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

SIMON MILTON NELSON
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim supervision order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)

Result:

Orders pursuant to s 46(2) made
Application for interim supervision order adjourned

Category: B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	A D Sullivan

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid WA

Cases referred to in decision:

The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

Introduction

On 16 June 2021, the State of Western Australia applied for a restriction order in respect of Simon Milton Nelson under the High Risk Serious Offenders Act 2020 (WA) (the Act).
Mr Nelson is presently subject to a term of imprisonment that will expire this coming Friday, 2 July 2021. He will be released from prison on that day.
The preliminary hearing of the application was therefore listed before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that Mr Nelson is a high risk serious offender within the meaning of that Act (see s 46(1) of the Act).
If I am so satisfied the State seeks interim orders pursuant to s 46(2) of the Act, including orders that Mr Nelson undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application.
The State also submits that I should impose an interim supervision order pursuant to s 58(5) of the Act.

The law

As noted above, pursuant to s 46(1) of the Act, the main purpose of the preliminary hearing is to decide whether the Court is satisfied that there are reasonable grounds for believing that the Court might find that Mr Nelson is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the Court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the person in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act, relevantly, includes robbery.[1]
[1] High Risk Serious Offenders Act 2020 (WA) sch 1.
While the definition of 'high risk serious offender' sets a relatively high bar for the imposition of a restriction order (in the sense of requiring proof to a high degree of probability), s 46(1) of the Act sets a low threshold for the purposes of a preliminary hearing. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[2]
[2] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The index offences

The index offences (that is the offences that enable the State to bring the application) are armed robbery and robbery.
The facts of those offences are as follows.
In late December 2013, Mr Nelson had a dispute with his partner about her drug use. Following this, Mr Nelson admits to having gone on the run and on a drug and alcohol bender. During that time, Mr Nelson committed several offences, including the index offences.
On 3 January 2014, Mr Nelson drove into the carpark of a garden nursery supply shop in Beeliar in a car that he had stolen in the days prior. He parked the car next to another car. The owner of the other vehicle, who was the complainant in this offence, was standing next to their car.
The complainant approached Mr Nelson to see if he needed assistance, at which point Mr Nelson, holding a cricket bat, demanded the complainant's keys to his car. The complainant then said to Mr Nelson words to the effect 'you can take it' and ran off.
Mr Nelson chased the complainant around the car, waving the cricket bat above his head before getting into the complainant's vehicle and driving off.
That was the armed robbery offence.
On the same day, Mr Nelson drove the stolen car to a Willagee shopping centre. Mr Nelson exited the car and approached another car in the carpark. The owner of that car, who was outside the vehicle at the time, saw Mr Nelson running at her with a 600 ml Coca Cola bottle above his head. In fear, she got into her car.
Mr Nelson then opened the driver's side door and demanded she get out the vehicle. Mr Nelson then grabbed her by the forearm and pulled her out of the vehicle, demanding the keys to the car. She handed over the keys and then Mr Nelson drove off in her car.
That was the robbery offence.
The two offences (of armed robbery and robbery respectively) are offences specified in the Act as 'serious offences'. While Mr Nelson has a significant criminal history, those two offences are the only serious offences in his adult record. There are two further offences, committed in South Australia when Mr Nelson was a child which might fit the definition of 'serious offences' within the Act. Mr Nelson's record from South Australia shows that he was 'discharged without penalty' in relation to those offences.

The evidence

The State relied upon an affidavit of James Francis Bennett sworn on 16 June 2021 which contains Mr Nelson's criminal records (from various Australian states) and numerous reports, including pre‑sentence reports, a parole review report and a psychological report. The only psychological report, which is dated 29 April 2014, was prepared prior to Mr Nelson's most recent sentence. The most recent report is a parole review report, dated 18 April 2019. There are no psychiatric reports available.
Mr Nelson is 47 years of age. He is one of eight siblings. The psychological report states that it was 'difficult to get a clear picture of [Mr Nelson's] family structure', but Mr Nelson 'reported a stable happy childhood with no alcohol or drug problems in the family and no violence'.
Other reports, however, state that Mr Nelson had an 'unstable and transient upbringing' and that his offending and criminal conduct began when he was around 8 years old.
Mr Nelson has four children. He has two adult sons with his first partner, with whom he was in a relationship for approximately nine years. He subsequently commenced a relationship with a partner in Adelaide, with whom he has two children. That relationship dissolved, reportedly due to his alcohol misuse and he no longer sees that partner or his children from that relationship.
Mr Nelson attended school until year 11 when he was 'expelled for fighting'. He started drinking at age 14 and has admitted a problem with his alcohol use. He smoked cannabis daily from the age of 16 and began using amphetamines when he left prison, at the age of 40, in an attempt to communicate with his son who was an amphetamine user.
Amphetamine use played a large role in Mr Nelson's most recent offending, including the index offending in this application.
In relation to Mr Nelson's risk of reoffending, the psychological report stated:
Mr Nelson has a lengthy criminal history and presents a high risk of ongoing offending, both violent and generalist. He has a number of criminogenic needs related to his offending and will be assessed for programs on completion of sentencing.
Mr Bennett's affidavit annexes program completion reports from three rehabilitation programs in which Mr Nelson has participated: the Skills Training for Aggression Control program in 2001, the Pathways program in 2012 and the Think First program in 2015.
The first report, which is over 20 years old provides little information and is of marginal relevance to an assessment of Mr Nelson's risk.
The Pathways Program Completion Report dated 1 February 2012, which was also completed prior to his current sentence, stated:
While it is considered that Mr Nelson has made some gains in connection to his treatment needs, however his relapse and recidivism plan contained minimal content and lacked specific skills or strategies. Mr Nelson was able to gain insight into the link between his alcohol use and his ongoing offending. While he reported on numerous occasions that he would like to moderate or abstain from alcohol use he did not appear to develop any appropriate strategies to achieve this, other than staying away from negative peers. Mr Nelson did not believe that using and selling of cannabis to be problematic and as such did not consider this behaviour to be of high risk for reoffending. Mr Nelson was observed to defend antisocial behaviour on many occasions and appeared to justify and minimise his offences.
The Think First Program Completion Report dated 11 June 2015 concluded:
Mr Nelson was always ready to debate and give his opinion on the program material. On occasions he appeared agitated and frustrated but was polite and respectful toward the facilitators.
The participant showed a fairly basic understanding of the course content. He appeared to have gained most benefit in the sessions relating to problem solving, self management, and perspective taking.
Due to Mr Nelson making threats against a staff member, he was removed from Albany Prison immediately after finishing the Think First program. As it was not possible for the facilitators to conduct a post course interview, Mr Nelson's gains in the areas of Ability to Solve Problems, Self Management, and Social Perspective Taking were assessed from his work during the course.
During his current sentence Mr Nelson commenced, but did not complete, the Pathways Program on two separate occasions.
The first attempt appeared to be progressing well, until he was transferred to another prison. The Non Completion Report for the program dated 29 June 2015 stated:
Mr Nelson's treatment needs were identified as propensity to use violence, entrenched substance use, relationship issues, anti-social attitudes, disregard for consequences and issues with authority.
Mr Nelson engaged well in the program presenting as motivated and volunteered to mentor an Indigenous participant with limited literacy and numeracy skills. He demonstrated a good understanding of the link between his substance use and criminal conduct. He also acknowledged he had issues with violence. Mr Nelson was transferred to another prison and was unable to complete the program.
Mr Nelson did not attend the program long enough to make any significant gains regarding his treatment needs.
The second attempt failed as Mr Nelson was sent to a punishment unit and was then removed from the program as a result of having made threats to staff. The Non Completion Report for the Program on that occasion dated 22 June 2018 stated:
Mr Nelson attended 16 out of 50 sessions. He initially missed 5 sessions due to being sent to the Punishment unit for making threats to a prison officer. After missing those sessions, the facilitators spoke to Mr Nelson and offered him the opportunity to remain on the program on the premise of him maintaining the conditions to complete all remaining sessions, attending group on time, completing homework and upholding the treatment agreement. Mr Nelson agreed to these conditions and completed the homework as required. However some sessions later Mr Nelson made threats to harm a Prison Officer for previously refusing a funeral application, subsequently breaching the treatment agreement. Mr Nelson was consequently removed from the program formally on 30 April 2018.
It is recommended that Mr Nelson complete a Violent Offender Treatment Program (VOTP) before being booked for other programs as it is apparent that addressing his violent and oppositional behaviour are his primary treatment needs. There is a clear history of him not being able to complete other treatment interventions because of his violent and oppositional behaviours.
Notwithstanding the recommendation for Mr Nelson to complete a Violent Offender Treatment Program having been made over three years ago, there is nothing in the material to suggest that there has been any further attempt to address Mr Nelson's oppositional behaviours since that time.

Assessment

I am satisfied that there are reasonable grounds to believe that a court might find Mr Nelson to be a high risk serious offender.
My reasons are as follows.
Mr Nelson has a long history of offending and has most recently committed serious offences within the meaning of the Act.
At the first appearance before me, Mr Nelson made clear that he is fed up with the justice system and the prison system. He expressed a desire to simply 'get out' and live a normal life with his family. It may well be that, now that he is entering middle age, Mr Nelson has, indeed, matured and is now ready to move on from anti‑social behaviour.
Nevertheless, the reports that are available indicate that Mr Nelson still has unmet treatment needs and that he remains oppositional in his attitudes and behaviour. Given his history of resorting to violence when under pressure, as evidenced by his long criminal history, I cannot conclude that he is out of the woods yet. In the absence of any concrete evidence of improvement in his anger management, in light of Mr Nelson's history there remains a possibility that a court might find him to be a high risk serious offender.
Unfortunately, in some respects, Mr Nelson's current situation has many of the hallmarks of a self‑fulfilling prophesy. Mr Nelson has been put on courses to address his oppositional behaviour, but has failed to complete those courses because he has displayed the very behaviours and issues that the courses are designed to address. Whether that apparent catch‑22 can be broken upon his release this time remains to be seen.
I am therefore satisfied that there are reasonable grounds to believe a court might find he is a high risk serious offender. I will therefore make orders for the hearing of the restriction order application.

Interim supervision order

In the meantime, the State submits that I should make an interim supervision order pending the determination of the restriction order application, pursuant to s 58(5) of the Act.
Mr Nelson submits that it is not necessary or desirable to do so considering the restrictions to which he will already be subject to under a post-sentence supervision order under the Sentence Administration Act 2003 (WA).
I am not satisfied, as required by s 58(2)(c) of the Act, that it is desirable that I should make an interim supervision order in addition to the post‑sentence supervision order.
The post‑sentence supervision order, which was imposed by the Prisoners Review Board on 23 June 2021, contains conditions that Mr Nelson is:
(a)to report to adult community corrections within 72 hours of his release;
(b)to comply with the lawful orders of any community corrections officer;
(c)to have no direct or indirect contact with his victims;
(d)not to use any illicit or non‑prescribed substances and to attend random urinalysis for all illicit substances as directed by the community corrections officer and provide a valid sample;
(e)not to consume alcohol;
(f)not to enter licensed premises except cafés, restaurants and sporting venues;
(g)to submit to random breath testing as required by police;
(h)to attend programs and counselling as directed;
(i)to advise his community corrections officer of his residential address and not to change that address without the prior approval of the community corrections officer; and
(j)not to leave the State of Western Australia without the prior approval of adult community corrections.
Mr Nelson proposes to live with his sister at her home in a regional Western Australian town. Being situated in the regions, counsel for the State advised the Court (and I accept) that Mr Nelson will be managed by both adult community corrections and the community offender monitoring unit.
While the interim supervision order proposed by the State would impose some additional restrictions on Mr Nelson, most of the proposed conditions that are designed to ensure the protection of the community are already and presently addressed by the post‑sentence supervision order.
The one additional restriction that would arise under the proposed interim supervision order would be standard condition 7, which is the condition required by s 30 of the Act that the offender be subject to electronic monitoring under s 31.
Mr Nelson's counsel submitted that, in the circumstances, electronic monitoring of Mr Nelson is not necessary to ensure adequate protection of the community. In that regard, he submitted that there is nothing in Mr Nelson's history to indicate that close monitoring of his movements is a matter that is relevant to his offending history. It is not suggested, for example, that there are particular areas (or 'zones') that give rise to a risk of offending in relation to which Mr Nelson should be excluded. Considerations of that type are more relevant, for example, to offenders who present a risk of sexual offending and where it is necessary that the offender be excluded from certain areas (such as schools or entertainment precincts). There is nothing to suggest that those considerations apply to Mr Nelson. His offending has been generally opportunistic and associated with alcohol or drug use. The conditions of the post‑sentence supervision order specifically address those circumstances.
For these reasons, I am not satisfied that it is desirable to make an interim supervision order at this time given the conditions under which he is currently subject pursuant to the post-sentence supervision order.
Nevertheless, I accept, depending upon how Mr Nelson performs under the post‑sentence supervision order, it may be necessary that the degree of supervision that he is subject to should increase. In that regard, it is of significance that the imposition of an interim supervision order under the Act can be imposed by the Court at any time in the pending proceedings.
For this reason, in order to ensure the adequate protection of the community, I will not dismiss the application for an interim supervision order but will adjourn the application so that it remains within the control of the Court.
In that regard, if the interim supervision order is adjourned to a date to be fixed, I am satisfied that would provide sufficient notice to Mr Nelson that, in the event that there was evidence to suggest that it was desirable to impose further restrictions on him, it would be open to the Court to make an interim supervision order in his absence. I have explained as much to Mr Nelson today.
For those reasons, in addition to the orders sought by the State, I make orders that the State's application for an interim supervision order be adjourned to 23 July 2021, which is the next directions hearing day for serious offender matters.
I also direct Mr Nelson to attend the examinations by the two qualified experts on the dates and times as directed by his community corrections officer under the post‑sentence supervision order made on 23 June 2021.

Finally, I direct the State to provide the Court and the respondent with a report regarding Mr Nelson's compliance with the post‑sentence supervision order prior to 23 July 2021.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
30 JUNE 2021