The State of Western Australia v PAS - [2020] WASC 405

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PAS [2020] WASC 405
CORAM:   ALLANSON J
HEARD:   10 NOVEMBER 2020
DELIVERED          :   10 NOVEMBER 2020
PUBLISHED           :   11 NOVEMBER 2020
FILE NO/S:   SO 13 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAS
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA), s 3, s 5, s 7, s 30, s 31, s 43, s 46, s 48, s 84
Sentencing Act 1995 (WA), s 8

Result:

Orders pursuant to s 46(2) made

Category: B

Representation:

Counsel:

Applicant	:	F Clare
Respondent	:	T Hager

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	T Hager

Case(s) referred to in decision(s):

Nil

ALLANSON J:

This application was heard on 10 November 2020. Orders were made at the time with reasons to be published.

The respondent is serving a term of imprisonment imposed in the District Court of Western Australia at Perth on 21 November 2008. The sentence of imprisonment ends on 20 November 2020.
On 18 September 2020, the State of Western Australia filed an application under the High Risk Serious Offenders Act 2020 (WA) for the following orders:
1.A restriction order to be imposed under s 48 of the High Risk Serious Offenders Act in relation to the respondent.
2.Orders pursuant to s 46(2)(a), (b) and (d) of the Act.
3.An order that, until the conclusion of the hearing and judgment on the application for a restriction order:
a.the respondent be detained in custody; or alternatively
b.with effect from the date of such order, the respondent be released subject to the conditions in s 30(2) and such other conditions as the court considers appropriate.
In these reasons, unless otherwise stated, references to provisions of legislation are to the High Risk Serious Offenders Act.

Background

On 9 August 2007, the respondent was charged on indictment in the District Court with five charges of unlawful assault occasioning bodily harm, and five charges of sexual penetration without consent. The offences were committed against the one victim, between 14 and 17 November 2006.
At the commencement of his trial in April 2008, the respondent pleaded guilty to the charges of unlawful assault occasioning bodily harm. He was convicted after trial on the sexual penetration charges.
On 21 November 2008, the trial judge imposed a head sentence of imprisonment for 12 years, commencing on the date of sentencing. By s 8(2) of the Sentencing Act 1995 (WA), the sentencing judge could not take into account the possibility that an order could be made under the High Risk Serious Offenders Act (or the Dangerous Sexual Offenders Act 2006 (WA), then in force). Any time in custody or restrictions to which he will be subject from 20 November 2020 are in addition to the penalty that was considered proportionate to his offending.
At the time of sentencing in November 2008, the respondent was serving a term of imprisonment for 3 years 4 months that had been imposed on 1 February 2008, for one count of armed robbery. The offence was committed by the respondent using pepper spray to avoid being apprehended for shop lifting. The sentence for armed robbery had been back-dated to commence on 13 December 2006.
On 21 November 2008, the respondent was also sentenced to imprisonment on other charges in the Magistrates Court.
The respondent was made eligible for parole, but parole was not granted. He is now 45 and has been in custody continuously since he was 31.

The preliminary hearing

The Act provides for the making of restriction orders for the continuing detention or supervision of high risk serious offenders after the completion of their sentence. The State may apply to the Supreme Court for a restriction order in relation to a 'serious offender under custodial sentence'.[1]
[1] Defined in s 3.
A person is a high risk serious offender if the court dealing with an application under the Act 'finds that it 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 offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence'.[2]
[2] Section 7(1).
Serious offences are defined in s 5, primarily by reference to Sch 1. The Act is not confined to persons who have committed sexual offences.
Robbery and sexual penetration without consent are serious offences. Relevantly, in this case, the respondent is a 'serious offender under custodial sentence' because he is under a custodial sentence for an offence of sexual penetration without consent.
After a restriction order application is made, the court must fix a day for the matter to come before the court for a preliminary hearing.[3] 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 the respondent is a high risk serious offender.[4]
[3] Section 43.
[4] Section 46(1).
If satisfied, the court must order that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used on the hearing of the restriction order application.[5] The court must also fix a day for the hearing of the restriction order application.[6]
[5] Section 46(2)(a)
[6] Section 46(2)(d).
On the final hearing, if the court finds that the respondent is a high risk serious offender, it must make an order that he be detained in custody for an indefinite term for control, care, or treatment; or make a supervision order under which, when not in custody, he is to be subject to stated conditions, including mandatory standard conditions.[7] The standard conditions of a supervision order include electronic monitoring.[8]
[7] Section 48.
[8] Section 31.

The evidence

The State relies on the affidavit of Fiona Marie Clare, affirmed 17 September 2020. Ms Clare is a lawyer employed in the Office of the Director of Public Prosecutions and also appeared as counsel on the hearing. Ms Clare's affidavit is wholly based on materials held on the files of the ODPP, and additional material provided by the Department of Justice and the West Australian Police.
I have had regard to the material in the attachments, to the extent that I considered it relevant. It is unnecessary to refer to all of it, because the essential material for the purposes of this application are found in a smaller number of the attachments to which I will refer.
The respondent adduced no evidence.

Consideration

In a preliminary hearing, a judge does 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 the 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.
The process under the Act is that the court must find that there are reasonable grounds to believe an order might be made, on the basis of the evidence presented at the preliminary hearing, before ordering that the respondent be examined by a psychiatrist and qualified psychologist. The reports by the psychiatrist and psychologist will form the primary evidence on the application for a restriction order.
Section 46, read with s 84 and s 7, provides for the evidence on which the court may act in a restriction order proceeding. Although s 84(3) refers to the court acting on admissible evidence, s (4) and s (5) modify the rules of evidence to allow the court to receive into evidence a range of material, including opinions and assessments, which might not otherwise be admissible. Whether evidence adduced in that way is cogent is a question for another day.
In this application, the material which most directly goes to the risk of the respondent committing a serious offence in the future was prepared in 2008 when the respondent was only 32, and before his long period of incarceration.
For the purpose of sentencing in the District Court on the charges of sexual penetration and assault occasioning bodily harm, the court received a psychological report, prepared by Ms Julie Hasson, Forensic Psychologist.
Ms Hasson conducted a two hour interview with the respondent, and reviewed documents made available by Community Justice Services. She also conducted a psychometric assessment, while noting the need for caution in using tests and assessment tools that were not been designed for use in the testing of persons from an indigenous culture.[9] The respondent is an Aboriginal man.
[9] Ms Clare's affidavit, annexure AE, 225 ‑ 230.
Ms Hasson referred to the respondent's problems with substance abuse, linked with his offending and ongoing psychological issues associated with paranoia and delusional beliefs, including delusions of a jealous or persecutory nature.[10] Ms Hasson concluded, on the basis of the test data, that the respondent represented a high risk of reoffending in a sexual manner. In her summary and recommendations, Ms Hasson stated:
… Since treatment needs are also predictive of re-offence, the fact that he is assessed to have significant treatment needs across numerous domains suggests there are issues that, if unaddressed, lead to ongoing concern about [the respondent] stepping into conflict and reacting violently.
[The respondent] is assessed as suitable to participate in treatment programs to address his offending behaviour. He will be reassessed once sentenced to determine the most suitable program for his needs based on numerous factors including; risk of re-offence, length and type of sentence and program availability.[11]
[10] Ms Clare's affidavit, annexure AD, 230.
[11] Ms Clare's affidavit, annexure AE, 233.
I infer that the respondent was not reassessed after sentence. Ms Hasson's assessment in June 2008 is the last psychological assessment or report in the material in evidence.
While serving his sentences, the respondent completed two programs directed to violent offending in 2013, a Think First Program in 2014, and a Pathways Program in 2018. The respondent began but did not complete a Sex Offender Treatment Program in 2014. He was removed from the program following a change in his security rating, which led to his transfer from the prison where the course was available.[12]
[12] Ms Clare's affidavit, annexure AM, 277.
The report on completion of the Violent Offender Treatment Program in 2013 reported positively on gains the respondent had made, but stated that he still had a tendency to interpret neutral situations in hostile ways, and expressed concern were he to become involved with the use of illicit drugs again.[13]
[13] Ms Clare's affidavit, annexure AG, 241.
The most recent report is a parole assessment in October 2018. The reporter recommended against the grant of parole. In particular, the reporter commented that the respondent had not completed a specific program for sexual offending.[14]
[14] Ms Clare's affidavit, annexure AM.
No specific sexual offending program was available to the respondent between 2018 and now.
The State otherwise relies on material from 2002, and to material prepared for the purpose of sentencing in 2008, which adds little, if anything, to Ms Hasson's report. It is difficult to make any assessment of the cogency of the earlier material when regard is had to how long ago it was prepared and to the fact that the respondent has been continuously in prison since 2007 (and for part of the period between 2002 and 2007).
Despite the assessment in 2008 that he had significant treatment needs, and his imprisonment for 12 years since then, the respondent has only participated once in a program for sexual offenders, and was unable to complete it. He completed the Pathways Program in 2018, but there is no evidence of him participating in any other treatment or program in the last six years of his sentence. A court might find that his treatment needs remain unmet, and, without supervision, the risk of his committing a serious offence is unacceptable.
The materials to which I have referred ‑ particularly the pre‑sentence material from 2008 ‑ considered in the context of the respondent's history of offending, are sufficient grounds to believe that the court might find the respondent is a high risk serious offender. That was properly conceded by counsel for the respondent.

Orders

I will make orders required by s 46 (2)(a) and (d).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
11 NOVEMBER 2020