The State of Western Australia v ORS
[2023] WASC 248
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ORS [2023] WASC 248
CORAM: WHITBY J
HEARD: 4 JULY 2023
DELIVERED : 4 JULY 2023
PUBLISHED : 6 JULY 2023
FILE NO: SO 6 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ORS
Respondent
Catchwords:
Criminal law – High risk serious offender – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Interim detention order appropriate – Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Interim Detention Order made pursuant to s 46(2)(c)(i) of the High Risk Serious Offenders Act 2020 (WA)
Category: B
Representation:
Counsel:
| Applicant | : | B D Meertens |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Tony Hager |
Cases referred to in decision:
State Director of Public Prosecution v Carr [2021] WASC 26
The State of Western Australia v PAS [2020] WASCA 405
The State of Western Australia v Pickett [2020] WASC 96
The State of Western Australia v Winder [2021] WASC 65
WHITBY J:
(This judgment was delivered extemporaneously on 4 July 2023 and has been edited from the transcript.)
Summary
ORS was born on 5 March 2001. He is now 22 years old. He has a long history of offending beginning from the age of 11.
On 4 and 5 June 2018, ORS, who was then 17 years old, entered the home of a 76‑year‑old woman in Leonora without her consent. While in the house he attempted to sexually penetrate her on one occasion, sexually penetrated her on another occasion, sprayed her face and vagina with pepper spray and stole her jewellery and handbag.
On 15 January 2019, ORS pleaded guilty to the offences of aggravated sexual penetration without consent, attempted sexual penetration without consent, three counts of aggravated home burglary and aggravated unlawful wounding. The first two of these offences were specified as serious offences for the purposes of the High Risk Serious Offenders Act2020 (WA) (Act) (Index Offences).
On 14 February 2019, ORS was sentenced in the Children's Court at Kalgoorlie to a term of detention of 6 years and 8 months pursuant to the Young Offenders Act 1994 (WA) (YOA). This sentence was backdated to commence on 6 June 2018.
ORS's earliest release date, pursuant to s 121(4) of the YOA, was 5 October 2021. This was the earliest date ORS could be released under a juvenile Supervised Release Order (SRO).
On 17 March 2020, before ORS could be considered for an SRO, he committed an offence in Banksia Hill Detention Centre of criminal damage/destruction of property contrary to s 444 of the Criminal Code. ORS was 19 at this time so he was dealt with as an adult in the District Court. He was ultimately sentenced to 12 months imprisonment to be served concurrently with his sentence of detention. This made his earliest date for parole 14 December 2021. On 22 January 2022, the Prisoners Review Board (PRB) denied ORS release on parole.
ORS is before the Supervised Release Review Board (SRRB) on 12 July 2023 for consideration of his release on an SRO.
On 19 June 2023, the State of Western Australia applied for a restriction order in respect of ORS pursuant to s 35 of the Act (Application). The State relies upon the affidavit of Brent Douglas Meertens affirmed on 20 June 2023 in support of the Application (Meertens Affidavit).
The Application has been listed before me for a preliminary hearing. The State seeks an interim detention order pursuant to s 46(2)(c)(i) of the Act until the hearing of the Application.
For the reasons I now give, I am satisfied that there are reasonable grounds for believing that the court might, in accordance with s 7 of the Act, find that ORS is a high risk serious offender and that it is appropriate to make an interim detention order in respect of ORS in order to adequately protect the community.
Background and offending history
ORS was born in Kalgoorlie on 5 March 2001. His mother, father and paternal grandmother moved with him from Kalgoorlie to Leonora shortly after his birth. He grew up being cared for by his maternal grandparents. He was the oldest of his mother's five children: two are full siblings and two are half siblings.
ORS was exposed as a child to domestic violence, drug and alcohol use by his parents and many of his family members spent time in prison. He did not have stable accommodation growing up.
ORS has a history of sniffing spray paint and glue and as a 14‑year‑old started smoking cannabis. In 2017, he started drinking alcohol heavily and using intravenous methylamphetamine.
ORS's criminal history began in 2012. From 2012 to 2015 he offended solely in relation to property offences. His offending escalated and he committed violent offences in 2016 and 2018.
In 2014 or 2015, he moved to Perth to live with his girlfriend. They have a son who is now 6 years old and lives in foster care.
ORS has an extensive criminal history.[1] He has committed 20 burglaries. He has one prior conviction for a sexual offence (other than the Index Offences). On 13 January 2017, he approached a 29‑year‑old woman at a bus stop in Nollamara and touched her on the breast and vagina over her clothing. ORS was convicted of unlawful and indecent assault.
[1] Meertens Affidavit Annexure A.
Issues
The following issues arise for determination at the preliminary hearing:
(a)Is the threshold criteria for the State to make the Application satisfied?
(b)What are the legal principles applicable to a preliminary hearing?
(c)Are there reasonable grounds for believing that ORS might be a high risk serious offender?
(d)Is it appropriate to make an interim detention order or an interim supervision order?
Is the threshold criteria for the State to make the Application satisfied?
In order for the State to make the Application:
(a)ORS must be a serious offender under a custodial sentence;
(b)ORS must not be already under restriction; and
(c)there must be a possibility that ORS might be released from custody within one year after the application is made.[2]
[2] s 35 of the Act.
Pursuant to s 3 of the Act a 'serious offender under custodial sentence' is a person who is under custodial sentence for a serious offence or a person who is under a custodial sentence for an offence other than a serious offence and has been under that sentence at all times since being discharged from a custodial sentence for a serious offence.
Section 5 of the Act defines 'serious offence' to include an offence specified in sch 1 to the Act.
Pursuant to s 3(d) of the Act, the term 'under a custodial sentence' includes a sentence of detention under the YOA for an offence committed after the young offender had reached 16 years of age.
On 14 February 2019, Wager J (as her Honour then was) sentenced ORS to 3 years detention for the 'serious offences' (as defined in sch 1 of the Act) of:
(a)one count of aggravated sexual penetration without consent contrary to s 326 of the Criminal Code – sentence of 3 years detention to be served cumulatively on the offence of aggravated home burglary contrary to s 401(2)(a) of the Criminal Code; and
(b)one count of attempted sexual penetration without consent contrary to s 326 and s 552 of the Criminal Code – sentence of 1 year detention to be served concurrently.
Pursuant to s 122 of the YOA, if the court imposes two or more sentences of detention, the sentences are regarded as one sentence which commences on the first date the offender is required to serve one of the sentences and ends on the expiry date of the last sentence.
Therefore, ORS is currently serving one custodial sentence for both serious and non‑serious offences.
A SRO can only be made if:
(a)ORS consents to the making of the order;
(b)the earliest release day has been reached;
(ba)the SRRB has considered any statement received from a victim of the offence in respect of which ORS is in custody;
(c)there is a responsible adult present or the SRRB considers that there is sufficient reason for it to make the order even though a responsible adult is not present; and
(d)ORS is not in custody under any other order or serving any other custodial sentence, or the requirements for releasing him from custody under that other order or sentence are satisfied.[3]
[3] s 133 of the YOA.
The SRRB are considering ORS's case for supervised release on 12 July 2023.
Therefore, given ORS is currently serving a custodial sentence for serious offences and there is a possibility that he might be released from custody within one year of the Application, that is on 12 July 2023, the State has met the threshold criteria for making the Application. The court's jurisdiction to hear the Application, including the preliminary hearing, is established.
What are the legal principles applicable to a preliminary hearing?
Section 46(1) of the Act provides:
(1)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, in accordance with section 7, find that the offender is a high risk serious offender.
A person is a 'high risk serious offender' if 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: s 7(1) of the Act.
While the determination that a person is a high risk serious offender requires proof to a high degree of probability, the same test is not applicable at the preliminary hearing. At the preliminary hearing, the court need only be satisfied that there are reasonable grounds for believing that the offender 'might' be a high risk offender. In order for such reasonable grounds to exist there must be sufficient facts in existence which induce that state of mind in a reasonable person.[4] To say that something might occur means that it is possible.[5]
Are there reasonable grounds for believing that ORS might be a high risk serious offender?
[4] The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
[5] The State of Western Australia v PAS [2020] WASCA 405 [20] ‑ [21] (Allanson J); State Director of Public Prosecution v Carr [2021] WASC 26 [9] (Hall J).
The court must have regard to the following factors in considering whether it is satisfied that ORS is a high risk serious offender:[6]
[6] s 7(3)(a) ‑ (j) of the Act.
(a)reports made under s 74 of the Act;
(b)medical, psychiatric, psychological or other assessments relating to ORS;
(c)propensity to commit serious offences in the future;
(d)a pattern of offending;
(e)attempts at rehabilitation;
(f)effect of rehabilitation;
(g)antecedents and criminal record;
(h)risk of committing such offences if not subject to a restriction order;
(i)the need to protect members of the community from the risk of further serious offences; and
(j)any other relevant matter.
The following reports have been provided to me in relation to ORS which contain relevant information:
(a)Multidisciplinary Clinical Report of Dr Raewyn Mutch & others dated 5 November 2017;
(b)Psychological Pre-Sentence Report for Court of Tina Marley dated 8 February 2019;
(c)Psychological Treatment Progress Report of Beth McLaughlin dated 25 August 2020;
(d)Multidisciplinary Assessment Report of Dr Carsten Broeze & others dated 1 October 2021;
(e)Psychological Treatment Progress Report of Michael Davis dated 9 August 2021; and
(f)Psychological Report for the PRB of Bart Wszola dated 17 January 2022.
The reports confirm that while ORS has made progress towards rehabilitation, he still has a number of outstanding treatment needs.
In the most recent report, Mr Wszola said that ORS continues to present with numerous risk factors, which are largely linked to his neurodevelopmental disorder (FASD) and adverse childhood experiences, which could be difficult to moderate.
ORS's STATIC-99R score placed him in the 'Well Above Average Risk' category, with a predicted recidivism rate of 35.1% of reoffending sexually within a five year period. Mr Wszola said that 'adolescence is a time of cognitive, physical, social and emotional change and risk status can change dramatically, so the risk rating in this case needs to be considered with that in mind'.
Mr Wszola identified the presence of a number of historical and dynamic risk factors which are known to elevate the risk of sexual reoffending. ORS presented with a poor level of self-awareness as well as limited stress management and coping skills.
Mr Wszola stated that ORS's diagnosis of FASD, along with his difficult developmental history, would most likely negatively impact his capacity to manage his emotions as well as his ability to develop and maintain healthy emotional attachments. A history of substance abuse could further impair his decision-making capacity and increase his risk of impulsive behaviour and reoffending, if he were to relapse into substance use.
Mr Wszola states that there are concerns about a degree of sexual preoccupation. ORS presented with significant concerns in regard to his intimate and non-intimate relationships as he appears to have difficulty developing and maintaining healthy emotional attachments.
In regard to future management issues, ORS presented with deficits in regard to his planning and problem‑solving skills, which may contribute to him making poor decisions and placing himself in high risk situations.
Mr Wszola expressed the view that the most likely risk scenario for reoffending would involve ORS failing to continue engaging with treatment and supervision when he returns to the community. This would limit his capacity to integrate the treatment gains he has made so far and would increase his risk of returning to old patterns of behaviour. In that context, he would be more likely to abuse drugs and alcohol, which would elevate his risk of acting in an impulsive and aggressive manner to obtain sexual gratification.
While ORS has been convicted of serious sexual offences against only one victim on 4 June 2018 during the course of a home burglary, he does also have a conviction for indecent assault committed in 2017. However, I accept that this is not a 'serious offence' for the purposes of the Act. Overall, I am not satisfied that ORS has displayed a propensity to commit or has a pattern of offending in relation to sexual offences. This is only one factor to which the court must have regard.[7]
[7] The State of Western Australia v Pickett [2020] WASC 96 (Smith J) [116].
However, ORS has demonstrated a propensity or tendency to commit home burglaries whilst affected by drugs and/or alcohol. Committing such offences does expose women in their homes to the risk of serious sexual offences.
In January 2022, the PRB denied ORS parole on the basis of Mr Wzsola's report that he represented a high risk of reoffending and as a result of his poor prison conduct.
On 6 June 2022, the SRRB released ORS on a SRO. On 10 August a warrant was issued for his arrest following a suspension of the SRO.
He was in prison from 10 August 2022 to 7 September 2022 when the SRRB removed the suspension and released ORS into the community on a SRO.
On 9 November 2022, Goldfields Youth Justice Services issued a suspension warrant in relation to ORS's compliance with the SRO.
On 10 November 2022, the SRRB cancelled the SRO due to ORS's total non‑compliance. I note that the non‑compliance was not as the result of reoffending.
ORS's antecedents and criminal record and his previous poor compliance with supervision, combined with his high risk of reoffending lead me to conclude that there is a risk that he might commit further offences if not subject to a restriction order and there may be a need to protect members of the community from that risk.
Having regard to all of these factors and the material annexed to the Meertens Affidavit, I am satisfied that there are reasonable grounds for believing that the court might, pursuant to s 7(1) of the Act, find that ORS is a high risk serious offender.
Is an Interim Detention Order or Interim Supervision Order appropriate?
The State seeks an interim detention order pursuant to s 46(2)(c)(i) of the Act in order to adequately protect the community from the risk of serious offending on the part of ORS pending the determination of the Application.
Given ORS's prior offending, his outstanding treatment needs, his poor history of compliance with supervision orders, his poor response to being released on an SRO, his high risk of reoffending and the potential risk to the community, I am satisfied that there is a risk that he may reoffend if he is released before the hearing of the Application. In these circumstances, I consider it appropriate that ORS be detained in custody until the hearing of the Application to ensure the community are adequately protected from his risk of reoffending.
Orders
I make the following orders:
1.The Court orders pursuant to s 46(2)(c)(i) of the High Risk Serious Offenders Act 2020 (WA) that the Respondent be detained in custody pursuant to an Interim Detention Order until the final determination of the application.
2.The hearing of the restriction order application pursuant to s 48 of High Risk Serious Offenders Act 2020 (WA) be heard on 30 November 2023 at 10.00 am.
3.The Respondent undergo examinations by two qualified experts, namely one psychiatrist, Dr Gosia Wojnarowska, and one psychologist, Dr Benjamin Bannister, for the purposes of preparing reports as required by s 46(2)(a) and s 74 of the High Risk Serious Offenders Act 2020 (WA) that are to be used on the hearing of the restriction order application.
4.The experts named in order 3 are not to include in their reports 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.
5.The reports of the experts be provided to the Applicant at least 42 days prior to the hearing of the restriction order application.
6.Any report authored by the Department of Justice, including any Proposed Management Plan, be provided to the Applicant at least 35 days prior to the date of the hearing of the restriction order application.
7.The experts named in order 3 liaise with the Department of Justice as to a Management Plan (if appropriate) for the Respondent to be supervised in the community.
8.Pursuant to s 122 of the Criminal Investigation Act 2006, the experts named in order 3 may be supplied with and may view any audio-visual recordings of interviews with the Respondent, or transcripts of the same, for the purpose of preparing their reports.
9.At the hearing of the restriction order application, the reports provided by the experts named in order 3 shall stand as the evidence‑in‑chief of the experts and no further evidence‑in‑chief may be adduced without the leave of the Court.
10.The Respondent be detained in custody until the final determination of the application, pursuant to s 46(2)(c)(i) of the High Risk Serious Offenders Act 2020 (WA).
11.There be liberty to the parties to apply generally.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Associate to the Honourable Chief Justice Peter Quinlan
6 JULY 2023
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