The State of Western Australia v PAS [No 3]
[2021] WASC 117
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PAS [No 3] [2021] WASC 117
CORAM: HALL J
HEARD: 16 APRIL 2021
DELIVERED : 20 APRIL 2021
FILE NO/S: SO 13 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAS
Respondent
Catchwords:
Criminal law – High Risk Serious Offenders – Whether the respondent is a high risk serious offender – Whether the risk of committing further serious offences can be managed on a supervision order or whether a continuing detention order is necessary – Unmet treatment needs – Substance abuse issues – Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | T W McPhee |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | T Hager |
Cases referred to in decision:
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
PAS v The State of Western Australia [2009] WASCA 210
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v PAS [2021] WASC 59
HALL J:
By an application dated 18 September 2020 the State of Western Australia applied for a restriction order pursuant to the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) in relation to the respondent. On 10 November 2020 Allanson J made an interim supervision order pending the determination of the application.[1] The respondent was at that time serving a term of imprisonment imposed in the District Court in 2008. That sentence expired on 20 November 2020 and the respondent was then released on the interim supervision order.
[1] The State of Western Australia v PAS [2020] WASC 405.
In the three months following his release the respondent contravened the conditions of the interim supervision order on a number of occasions. In particular, he breached the conditions by repeatedly using illicit drugs. This resulted in charges under s 80 of the HRSO Act and also under the Misuse of Drugs Act 1981 (WA). In addition, the State commenced contravention proceedings pursuant to div 5 of the HRSO Act. Those contravention proceedings were dealt with by Quinlan CJ on 4 March 2021. His Honour found that the contraventions had been proven and, for the reasons that he gave, the interim supervision order was affirmed.[2]
[2] The State of Western Australia v PAS [2021] WASC 59.
Following the contravention proceedings there were further breaches involving the use of illicit drugs which led to further charges. The respondent was remanded in custody on those charges. As at the date of the hearing of this application those further charges had yet to be dealt with. The respondent was due to appear in the Magistrates Court on those charges on 20 April 2021. Counsel who appeared for the respondent advised that the respondent intended to enter pleas of guilty to those charges and that the expected outcome was a sentence of immediate imprisonment. It was also likely that a suspended term of imprisonment imposed for the previous breach charges would be activated.
At the restriction order hearing it was conceded on behalf of the respondent that he is a high risk offender. I have independently reached the same conclusion based on the evidence. The only remaining issue was whether the appellant should be detained in custody or released on a supervision order. I have concluded that in the circumstances of this case the risk that the respondent may commit a serious offence of a sexual or violent nature is not currently able to be managed within the community. It is therefore necessary to impose a continuing detention order. The reasons for those conclusions follow.
The respondent's name is suppressed by an order of the court. The reasons for that order are not relevant to the merits of this application.
The making of the application
The State may apply to the court for a restriction order in relation to a serious offender under a custodial sentence.[3] A serious offender under a custodial sentence is defined to include a person who is a under a custodial sentence for a serious offence.[4] A serious offence is defined to include offences specified in sch 1 div 1 of the HRSO Act.[5] Those offences include sexual penetration without consent contrary to s 325 of the Criminal Code (WA) and armed robbery contrary to s 392 of the Criminal Code. If the offender is in custody the application cannot be made unless there is a possibility that he might be released within one year after the date of the application.[6]
[3] HRSO Act, s 35.
[4] HRSO Act, s 3.
[5] HRSO Act, s 5.
[6] HRSO Act, s 35(3).
On 21 November 2008 the respondent was sentenced in the District Court to a total effective sentence of 12 years imprisonment for a number of offences, including five offences of sexual penetration without consent. That sentence did not expire until 20 November 2020. He has an earlier conviction for a serious offence, an armed robbery, for which he was sentenced to 3 years and 4 months imprisonment on 1 February 2008.
The State applied for a restriction order in relation to the respondent on 18 September 2020. At that time he was still serving the sentence imposed on 21 November 2008, having been refused release on parole. The respondent was due to complete the full sentence on 20 November 2020 and would be released the following day, subject to any other orders.
Accordingly, at the time the application was made the respondent was a serious offender under a custodial sentence and would be released from custody within the period of 12 months following the making of the application. The application, therefore, meets the requirements of the HRSO Act.
I note, however, that the application could have been brought earlier than it was. Although the HRSO Act only came into force on 26 August 2020, the respondent could have been subject to an application under the preceding Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). There may be good reasons for an application being made towards the end of an offender's term of imprisonment, particularly where there is some prospect of the offender's circumstances changing in the last year before release. However, an offender may be placed at a distinct disadvantage if the first time he becomes aware of the possibility of a restriction order is shortly before his release date. Furthermore, a late application may result in the offender remaining in custody on an interim detention order, though that was not the case here.
Relevant legal principles
The court must make a restriction order if it finds that the offender is a high risk offender. A restriction order is either a supervision order or a continuing detention order.[7]
[7] HRSO Act, s 48.
An offender is a high risk 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 offender to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. The State bears the onus of satisfying the court that it is necessary to make a restriction order.[8]
[8] HRSO Act, s 7(1), s 7(2).
In considering whether it is satisfied that the offender is a high risk offender the court must have regard to each of the matters specified in s 7(3) of the HRSO Act. Those matters are:
(a)any report prepared under s 74 for the hearing of the application and the extent to which the respondent cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the respondent;
(c)information indicating whether or not the respondent has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the respondent;
(e)any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation program;
(f)whether or not the respondent's participation in any rehabilitation program has had a positive effect on him;
(g)the respondent's antecedents and criminal record;
(h)the risk that, if he were not subject to a restriction order, the respondent would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
The court must disregard the possibility that the offender may be temporarily prevented from committing a serious offence by imprisonment, remand in custody or the imposition of bail conditions.[9]
[9] HRSO Act, s 7(4).
If the court decides that an offender is a high risk offender it must then decide whether a supervision order or a detention order is the appropriate outcome. In deciding between these two options the paramount consideration is the need to ensure protection of the community.[10]
[10] HRSO Act, s 48(2).
The court cannot make a supervision order, and therefore must make a detention order, unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of a supervision order. The onus is on the offender to prove that he will substantially comply with the standard conditions.[11] The standard conditions of a supervision order are those set out in s 30(2) of the HRSO Act. They include reporting, notification of changes of circumstances, supervision by a community corrections officer, not to leave the State without permission, not to commit a serious offence and to be subject to electronic monitoring.[12] A supervision order may also include such other conditions as the court considers appropriate to ensure adequate protection of the community, for rehabilitation, care or treatment of the offender and to ensure the adequate protection of victims.[13]
[11] HRSO Act, s 29.
[12] HRSO Act, s 30(2).
[13] HRSO Act, s 30(5).
The words 'will substantially comply with' in s 29(2) are identical to those that appeared in provisions of the former DSO Act and bear the same meaning. In effect that phrase means that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general objects of a supervision order and of the legislation.[14]
[14] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
Even where the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a continuing detention order if it is not satisfied that conditional release under a supervision order will ensure an adequate degree of protection to the community.
Proceedings under the HRSO Act are taken to be criminal proceedings for all purposes. This does not require that anything be proved to a higher standard than is required by s 7(1) of the HRSO Act.[15]
[15] HRSO Act, s 82.
In an application for a restriction order the court must hear admissible evidence called by the State and, if the offender elects to give or call evidence, that evidence. The rules of evidence apply but are modified to permit the court to receive in evidence:
(a)any document relevant to the antecedents or criminal record of the offender; or
(b)anything relevant contained in the official transcript of any relevant proceedings against the offender; or
(c)any relevant material that was tendered to the court or that informed the court in a relevant proceeding against the offender; or
(d)any relevant material of the kind mentioned in s 7(3) relating to the offender.[16]
[16] HRSO Act, s 84.
Evidence
The State filed three volumes of materials that it relied on for the purposes of the application. Those volumes were received in evidence without objection.
Volume 1 contained copies of the respondent's criminal record, a chronology prepared by the DPP, prison records, medical records, court records relating to the respondent's conviction for armed robbery in February 2008 and documents relating to the respondent's conviction for a number of assaults and sexual penetration offences in April 2008.
Volume 2 contained further records relating to the assault and sexual penetration offences, records relating to a number of other offences, documents relating to post-sentence treatment, documents relating to the earlier proceedings in this matter and copies of reports prepared for the restriction order hearing. The reports in the latter category are as follows:
1.a proposed HRSO management plan of Dr Lynley Poli dated 2 March 2021;
2.a psychiatric report of Dr Peter Wynn Owen dated 11 April 2021;
3.a psychological report of Ms Julie Hasson dated 23 February 2021;
4.an addendum psychological report of Ms Hasson dated 31 March 2021; and
5.a community supervision assessment report by Trudy Hill dated 12 April 2021.
Volume 3 was a supplementary volume of materials provided by the WA Police. It included information relating to the respondent's performance on the interim supervision order, and in particular his breaches of that order.
Dr Wynn Owen, Ms Hasson, Dr Poli and Ms Hill all gave oral evidence at the hearing. There was no substantial dispute with the contents of their reports. Cross‑examination focused on the adequacy of treatment provided to the respondent during his prison sentence and the availability of adequate treatment options in the event he was placed on a restriction order, either a supervision order or a detention order.
The respondent elected not to give or adduce any evidence.
Offending history (s 7(c), 7(d) and 7(g))
The respondent's offending history is extensive. His first offence occurred when he was 17 years old. The only significant gaps are when he was in custody. He has been convicted of six serious offences as defined in the HRSO Act as well as a number of other violent offences which do not constitute serious offences within the meaning of the Act. The totality of the offending history is relevant to the determination of whether the respondent has a propensity to commit serious offences in the future and whether there is a pattern of offending.
I will deal first with the respondent's convictions for serious offences as defined by the HRSO Act.
Between 14 and 17 November 2006 the respondent committed a series of offences against his then de facto partner. I will refer to the partner hereafter as the victim. He had been using cannabis and methylamphetamines and became suspicious that the victim was being unfaithful. The victim had become pregnant during their brief relationship and the respondent had questioned paternity. At an earlier stage of their relationship the victim had obtained a violence restraining order, but later had it lifted.
On 14 November 2006 the respondent accused the victim of sleeping with other men. He restrained her and stabbed her with a metal dart in the upper left thigh area, left forearm and left wrist causing wounds that bled. At the time he said 'they can read this when they got you naked, this is what I think of them'. The victim was screaming for him to stop. He then dragged the dart across her left breast causing great pain and scratched her upper left arm. He carved initials and a derogatory phrase into the victim's skin. These wounds also bled. During the ordeal the respondent told the victim to shut up or he would break her jaw. He punched her to the nose with a closed fist causing facial numbness and loss of movement in the left arm. He then removed the victim's tracksuit pants and penetrated her vagina with his penis.
The offences continued on 15 November 2006 with the respondent telling the victim to suck his penis or he would 'cave her head in'. He grabbed hold of her hair and forced his penis into her mouth, telling her to 'suck it like she wanted it'. The victim was too scared to refuse. The respondent subsequently told the victim to remove her pants and sit on his penis. She complied because she was frightened.
On 16 November 2006 the respondent grabbed the victim's throat with two hands. She had trouble breathing. He eventually released her neck, causing severe bruising. Later that day the respondent pulled the victim's pants down, climbed on top of her, pulled her legs apart and put his penis into her vagina.
On 17 November 2006 the respondent again removed the victim's pants, pulled his own shorts down and pushed his penis into her vagina. He behaved in a threatening manner throughout the ordeal and the victim was too scared to say no or resist. At other times over the course of the day he pushed, punched and kicked the victim, and on one occasion pushed material into her mouth preventing her from screaming.
As a result of this course of conduct the respondent was charged with five counts of assault occasioning bodily harm and five counts of sexual penetration without consent. He was also charged with offences relating to other incidents, including three counts of common assault, one of breach of bail and one of aggravated common assault. The aggravated common assault had occurred 10 days prior when the respondent and the same victim had an argument and he punched her in the head before throwing a rock at her. He punched her a further two times causing pain and discomfort before a witness intervened.
In regard to the offending between 14 and 17 November 2006, the respondent pleaded guilty to the assaults and not guilty to the sexual offences. He was convicted of the sexual offences after a three‑day trial. He was sentenced to a total effective sentence of 12 years. His appeals against conviction and sentence were dismissed.[17]
[17] PAS v The State of Western Australia [2009] WASCA 210.
There is one other serious offence on the respondent's record. On 24 February 2006 he committed an offence of armed robbery. On that day he went to a Woolworths store and selected a number of toiletry items and secreted them inside a backpack. He became aware that he was under surveillance and attempted to leave the store. His path was blocked by staff members before a security guard arrived and attempted to apprehend him. The security guard pinned the respondent against a wall and at that point the respondent produced a can of pepper spray from his pocket and sprayed it in the face of the guard. A scuffle ensued and the guard was able to gain possession of the back pack. Due to the effects of the pepper spray the guard had to release his hold and the respondent fled the scene. The security guard suffered vomiting, severe burning sensation to the face and breathing difficulty. The security guard was immobilised for 45 minutes and required medical attention. The respondent was sentenced on 1 February 2008 to 3 years and 4 months imprisonment backdated to commence on 13 December 2006.
The respondent has several other convictions of both a violent and sexual nature that are relevant when assessing his risk of reoffending. On 29 September 1992 the respondent was convicted of carnal knowledge of a girl under 16. The respondent was himself aged 16 at the time. He was convicted and released on an undertaking.
On 19 March 2002 the respondent was convicted of indecent assault. The details of this offence are that the female victim was aged 29 years old and was known to the respondent, who was 26 years old at the time. The respondent and the victim attended at his grandparents' house. The respondent had told the victim that he needed to pick something up from that house. Once inside he told her that he had something to show her. The victim followed the respondent to a bedroom and he then began trying to grope her between the legs. She pushed him away and told him to stop scaring her. He pushed her onto the bed and lay on top of her, pinning her down. He told her not to struggle or resist or he would assault her. He pushed her skirt up and pulled down his jeans and pants. He pulled the victim's underwear aside and using his hand rubbed his penis against her vagina until he ejaculated between her legs. He then climbed off the victim who immediately leapt off the bed. He told her not to 'dog' on him or he would hurt her. He stood aside allowing her to leave the room. The victim left the house and walked down the street. The respondent followed her, threatening her and pleading with her not to tell anyone. The victim went to her brother's house and reported the sexual assault to the police. The respondent was charged later that day.
The respondent also has multiple convictions for violence including assault occasioning bodily harm, common assault, aggravated common assault to prevent arrest, unlawful wounding and weapons offences. He has been convicted of being in possession of various weapons including a steel wheel club, which he used to strike a male victim in the head causing a cut (in 1994). In 1995 he assaulted an intimate partner during an argument by punching her several times in the face and poking her with a screwdriver. In 1999 he argued with a man and produced a knife from his pocket stabbing the man in the back. He then chased the victim, who fell backwards. He continued to chase the victim and then threw a rock at his head causing him to tumble. As a result of the scuffle the victim sustained a fractured wrist and swelling to the back of his head. Some of the offences have occurred whilst the respondent was subject to parole, supervision or while there was a violence restraining order in place.
On another occasion in 1999 the respondent and his partner were approached by security in a shopping centre over concerns of stealing. The respondent's partner fled the scene and was apprehended by three staff. The respondent assaulted a fourth individual by punching him with a clenched fist to the face causing bruising and swelling. The respondent followed his partner and produced a knife waving it at the three men detaining his partner and threatening to harm them if they did not release her, which they did.
This history shows that the respondent has a propensity to act violently. In particular, he has a tendency to use violence in intimate relationships and in the context of sexual offending. The period of time over which the offences have occurred suggests that the tendency is well‑established. As to whether there is a pattern of offending, there are a number of recurring features in the offending conduct. They include, the use of violence generally and in the context of intimate relationships, the use of weapons and offending whilst under the influence of illicit drugs.
Relevant personal history (s 7(g))
The respondent is the eldest of two children born to his parents' union. He has a younger sister. His parents separated when he was young and he lived with his maternal grandparents, sister and mother for several years. He did not have contact with his father following the separation until his late teens, when he travelled to Broome to spend time with him. His father re‑partnered and the respondent has two younger half‑siblings from his father's subsequent relationships. His mother did not re‑partner. His parents reconciled many years later, following the death of his stepmother. The reports indicate that his parents remain together and are supportive of him.
The respondent has described his home life with his grandparents, mother and sister in mostly positive terms. He has stated that his grandparents and mother did not use drugs, nor misused alcohol. He described his grandparents as strict and that they lived a Christian life. His grandfather never hit his grandmother and never condoned violent behaviour. He felt loved and most of his needs for affection and guidance were met by his grandparents and a maternal aunt, who he was particularly close to.
The respondent's relationship with his mother was apparently complicated. He has reported that she was 18 when she had him and parenting was a struggle for her. He recalled occasions when his mother was physically violent towards him, though he did concede that he had usually done something naughty to warrant punishment. He does not view his mother's use of physical punishment to be excessive.
Outside the immediate home environment the respondent was exposed to incidents of violence, alcohol and substance abuse. There was an ongoing feud between members of his family and others in the aboriginal community. He has indicated that these experiences were traumatic for him, despite his caregivers doing their best to protect him and his sister.
The respondent was exposed to some racial abuse at school. He has reported not really liking school and as struggling with attention and concentration. There were behavioural issues, including truanting and acting out in class. He was involved in several fights at school. However he said that this was usually a result of racism and that he believed that he stood up for himself as opposed to starting fights. He was the victim of some bullying, however he was a good football player and as a result he was able to make friends and be accepted by many of his peers.
The respondent reported that he has been employed in a few jobs since leaving school. These have included: brick paving, factory work and sorting rubbish. He also completed a six‑month teachers' aid course, though never worked in that capacity. He has been unemployed for most of the time he has lived in the community. In prison he has worked in the bakery and in vegetable preparation and completed Certificates I and II in packaging and freezer work. If released on a supervision order he is willing to work in any capacity as he sees work as a good way to occupy his time and make money.
During the brief period that the respondent was living in the community on the interim supervision order he was residing at his parents' house. His 13‑year‑old nephew was also living there. He had the support of his son and daughter‑in‑law and sister. He attended two sessions of substance abuse counselling at Cyrenian House during this period. He also engaged with Ebenezer Aboriginal Corporation, who were going to support him in vocational training and employment. He also made some efforts to obtain his driver's licence.
Reports and assessments (s 7(a), 7(b), 7(c), 7(d), 7(e), 7(f), 7(h) and 7(i))
Julie Hasson
Ms Hasson is a registered forensic psychologist with over 25 years experience. She was engaged to prepare a report under s 74 of the HRSO Act and conducted interviews with the respondent at Casuarina Prison on 10 February 2021.[18]
[18] Book of Materials, volume 2, Exhibit 2, 1023 ‑ 1065.
Ms Hasson spoke to the respondent about his history of alcohol and substance abuse. He disclosed that he commenced using alcohol and drugs from around the age of 13. During his teens and early adulthood there was a period of binge drinking. From late adolescence and throughout adulthood he continued to use drugs, including illicit substances and prescription medications. He reported problematic use of cannabis, heroin and amphetamines in the community. Whilst in prison opiate based medications such as Subutex were an issue for him and he also periodically continued to use cannabis and amphetamines. Drug tests during his term of imprisonment reveal charges for use and possession of illicit drugs and the respondent reported that three days prior to being released he had injected Subutex.
The respondent told Ms Hasson that feelings of boredom were a significant risk factor for him for drug relapse. He said that despite completing programs and retaining program content and being aware that he becomes paranoid and behaves aggressively when intoxicated, he found it difficult to say no to drugs. Substance abuse remains an area of outstanding treatment need, especially since the respondent relapsed within a very short period of time in the community whilst on an interim supervision order.
Ms Hasson set out in her report details of the programs undertaken by the respondent during his term of imprisonment. From September 2012 to March 2013 he undertook a violent offender treatment program (VOTP) at Acacia Prison. He was described as an outspoken, open and honest contributor to the program content. Substance abuse was highlighted as an area of future concern. He undertook a stopping family violence program at Acacia Prison between May 2013 and August 2013. He presented as a motivated and helpful individual during this program and was considered to display a number of treatment related gains and a high level of self‑awareness. There was, however, a concern that there was a long period of time between completing the program and any possible release into the community and there was a potential for him to lose any skills that were learnt. He acknowledged his offending at that time and developed a comprehensive safety plan. Between December 2013 and January 2014 he undertook a cognitive skills program at Bunbury Regional Prison. He was described as being cooperative and interested in respect of this program. He demonstrated good understanding of the program content. However the facilitator believed that he appeared to minimise his offending, blaming it on substance abuse. He was considered to have met program objectives and made treatment gains.
Between February 2014 and July 2014 the respondent commenced an intensive sex offender treatment program (ISOTP) at Bunbury Regional Prison. He attended 140 out of a total 321 hours of this program. However, on 27 June 2014 he was charged with two drug related prison charges which resulted in an upgrade of his security rating and removal from Bunbury Regional Prison and thus from the program. Records indicate that prior to the removal from the program he was seen to display a positive attitude and had identified antisocial attitudes, emotional management and sexual issues as risk factors. His removal from the program meant that he did not develop a self‑management plan.
Between 8 February 2018 and 3 May 2018 the respondent undertook a pathways program at Bunbury Regional Prison. This program is focused on substance abuse. He was described as a willing and active participant who displayed a positive attitude towards treatment. He developed a relapse and reoffending prevention plan however that plan did not contain strategies for how he might respond to a lapse. Further deficiencies including absence of goals, absence of extended support networks and a lack of consideration of the needs and expectations of others, were identified.
Ms Hasson noted that the respondent had also undertaken other programs during earlier sentences of imprisonment, including a cognitive skills program at Acacia Prison in 2002 and an exploring change workshop at Roebourne Regional Prison in 2000.
The respondent was positive about his participation in the programs. He said that despite not completing the ISOTP he had gained much helpful information that had built on knowledge he gained in the VOTP and stopping family violence programs. He acknowledged that jealously, suspiciousness and paranoia had contributed to his offending and that the realisation of this was important. The ISOTP had challenged him to consider his attitudes and beliefs about women and how he had behaved in an abusive ways in the past towards others. He said that prior to the ISOTP he thought he could have sex when he wanted to but he began to realise what consent meant and was better able to recognise that his former partner (and the victim of the serious sexual offences) had not agreed to have sex. He also said that participation in different programs had highlighted other important risk factors for him including feelings of anger and insecurity and substance abuse. He said that the programs had helped him to identify and express his emotions and that he believes he is a better communicator resulting in less misunderstandings. He also noted that his drug use in the community whilst on the interim supervision order had made him appreciate that he continues to have outstanding treatment needs in that respect.
Ms Hasson stated that the respondent has a history of institutional violence and behavioural problems. This is reflected in the prison records which reveal that he has faced 29 prison charges between 22 January 2007 and 7 October 2020. Use and possession of illicit drugs appears to be the dominant behaviour resulting in charges. However there are also charges in relation to swearing and the use of threatening language or behaving in a threatening manner, as well as fighting, being in possession of a weapon and gambling. He acknowledged his history of incidents and charges and that punishment did not have a deterrent effect.
An individual management plan completed at Acacia Prison and approved on 20 May 2020 stated that staff described the respondent as polite and respectful towards officers and always happy to help. He was usually compliant with instructions and did not seem to have issues with other prisoners. This assessment seems to be at odds with the record of prison offending. The respondent maintained contact with family through social visits with his mother, sister and granddaughter. He occasionally used the mail system and made daily phone calls.
On 9 November 2018 the Prisoners Review Board denied release on parole to the respondent noting his extensive criminal history, which suggested a high risk of reoffending. The board also took into account poor prison conduct suggesting an unwillingness or inability to comply with directions and a poor response to prior community supervision orders. The board noted that the respondent's relapse prevention plan did not have sufficient protective strategies to reduce the risk of reoffending or to adequately address unmet treatment needs. It was suggested that the respondent engage with a specialist re-entry program such as Uniting Care West.
There was some improved behaviour in the 12 months prior to the review by the Prisoners Review Board, as well as engagement in other treatment programs. The board requested that the respondent be assessed for inclusion in a sex offender treatment program to address outstanding treatment needs. This did not occur. On 21 October 2020 the board decided that the respondent continued to remain a risk to the safety of the victim of his offending and that a period of continued supervision and monitoring would assist to reduce his risk. A decision was made that a post-sentence supervision order should be made commencing on 20 November 2020 and expiring on 20 November 2022.
Ms Hasson conducted a risk assessment using a number of structured professional judgement and actuarial measures in combination with a forensic psychological assessment. The instruments used in this assessment to estimate risk of sexual and violent offending were the Static‑99R, RSVP, HCR‑20 (Version 3) and the PCL‑R. All of these instruments were developed with a mainly Caucasian population and as such must be used with caution as there are limitations given the absence of well‑established comparisons for use with Aboriginal and Torres Strait Islander people.
Ms Hassan found that the respondent's Static‑99R score was 5, which puts him at risk level IVa. This represents an above average risk for being charged or convicted of other sexual offence. Level IV offenders have a perceptibly higher risk than the typical offender. Most of these offenders have chronic histories of rule violation, poor childhood adjustment and significant criminogenic needs. On average, offenders with a score of 5 have a sexual recidivism rate of between 13.8% and 16.6% at the five year mark. However the risk is higher for individuals identified as high risk and high need. The respondent falls into this sub-group. The sexual recidivism rate for the high risk / high need group at the five year mark is between 18% and 24.8%. Based on these scores the respondent was assessed as being at a high risk of reoffending.
Ms Hasson also assessed the respondent using the Risk for Sexual Violence Protocol (RSVP), which is a set of structured professional guidelines. This protocol allows evaluators to code the presence of 22 individual risk factors from five domains, as well as any additional case specific factors. In the case of the respondent a number of the risk factors were founded to be present or partially present. Those founded to be present were the risk factors relating to escalation of sexual violence, physical coercion in sexual violence, psychological coercion in sexual violence, extreme minimisation or denial of sexual violence, problems with stress or coping, problems with substance abuse, problems with intimate relationships, problems with non-intimate relationships, problems with employment, non-sexual criminal activity, problems with planning and problems with supervision. Risk factors that were partially present were chronicity of sexual violence, diversity of sexual violence and problems resulting from child abuse. Ms Hasson was of the view that the RSVP and the Static‑99R results together place the respondent as at a high risk of sexual reoffending unless he has the benefit of further intervention, supervision, support and monitoring.
Ms Hasson also assessed the respondent using the Hare Psychopathy Checklist (PCL‑R), a 20 item scale which uses both historical and dynamic data for the assessment of psychopathic traits. The PCL‑R uses a semi-structured interview together with file and collateral information to measure personality traits and behaviours that are related to the concept of psychopathy. The respondent's total score on the checklist when assessed by Ms Hasson was 25. This places him below the threshold of psychopathy, for which the cut‑off score in Australia is 30. Ms Hasson said in oral evidence that she recognised that a cut-off of 25 is used in some European jurisdictions. She also noted that Dr Wynn Owen had used the same checklist and obtained a score of 30. She did not consider that this result was at odds with her findings as the test allows for this degree of variance between clinicians.
Ms Hasson considered possible risk scenarios. Based on the respondent's past offending behaviour she considered three possible scenarios. In the first scenario the respondent may indecently assault a female acquaintance or intimate partner but penetration will not occur and there will be an absence of overt physical violence. In the second scenario the respondent may persist with his behaviour and progress to sexually penetrating the victim orally and vaginally with his penis. Threats and force such as is necessary to prevent the victim from leaving may be used to gain compliance but without physical harm. In the third scenario the offending would resemble the 2006 offences. In this scenario sexual penetration would occur along with threats and overt physical violence causing injury. In addition to using hands or fists or other body parts to assault the victim, the respondent may use a weapon. He may also attempt to strangle or choke the victim.
All of these possible scenarios are likely to cause significant psychological harm to the victim. The second and the third scenarios may result in the victim being physically harmed, with the most serious injuries stemming from scenario three. The imminence of any sexual offending is likely to depend on the presence or absence of acute dynamic risk factors, including illicit substance abuse and relationship stressors. If the respondent becomes paranoid or experiences significant jealously and trust issues and is unable to resolve these with his partner then his risk of reoffending will escalate. Ms Hasson concluded that all three scenarios are likely in the future if the respondent does not manage his risk.
Ms Hasson's conclusion was that the respondent presents as a high risk of serious reoffending if not subject to a restriction order under the HRSO Act. The respondent does not have sufficient insight and understanding of internal and external risk triggers to moderate or mitigate that risk. He recognises problem areas, especially those related to drug use, but does not yet have the skills to overcome them and his ability to manage these risks is likely to be inconsistent. This is reflected in the lapses that occurred whilst he was in the community subject to an interim supervision order. In order to achieve behavioural change the respondent requires further therapeutic input. He has indicated a willingness to engage in counselling and programs.
Ms Hasson stated that a number of factors have contributed to the respondent's offending, the most relevant of which were substance abuse and the presence of an antisocial personality disorder. Difficulties with emotional behavioural regulation and jealously and trust issues, as well as a degree of sexual entitlement, are relevant features of his sexual offending. Lifestyle factors, including absence of employment, limited vocational skills, difficulties with housing and accommodation, a low level of educational achievement, limited prosocial supports, limited meaningful engagement in community based hobbies or leisure pursuits, the presence of antisocial peers and family members and reliance on welfare, all contribute to the respondent's risk of reoffending.
Ms Hasson said that whilst the respondent completed several programs during his last term of imprisonment a number of treatment needs remain. These include needs in respect of substance abuse, emotional regulation, distress tolerance, adjustment to living in the community, overcoming institutionalisation and the expression and inhibition of angry and aggressive impulses. Substance abuse is one of the respondent's most significant risk factors. He has used illicit substances in prison and continued to use them when released on the interim supervision order. He did so notwithstanding the likelihood that his use would be detected by urinalysis.
In oral evidence Ms Hasson noted that the respondent was not without hope in terms of treatment. He has a positive attitude and engages well. She is of the view that individual counselling would be beneficial. This form of counselling would be more challenging for the respondent as he would not be able to hide in a group. She considers that he would benefit most from regular counselling: at least once a week, preferably twice, of at least one hour duration with the same counsellor, with whom he could build up a rapport.
In cross‑examination Ms Hasson accepted that supervision order conditions should be capable of reducing the risk of reoffending in theory. However, she noted that reliance on conditions as external controlling factors would have reduced benefit if the respondent is not motivated and wants to abide with the conditions because he accepts that they are necessary.
Dr Peter Wynn Own
Dr Wynn Owen is a forensic psychiatrist and prepared a report pursuant to the orders of the court.[19] He found that the respondent fitted the diagnostic criteria for substance use disorder and antisocial personality disorder. Antisocial personality disorder was indicated in the respondent's case by a failure to conform with social norms with respect to lawful behaviours, impulsivity, irritability and aggressiveness, lack of remorse and consistent irresponsibility. He also demonstrates the narcissistic trait of lack of empathy.
[19] Book of Materials, volume 2, Exhibit 2, 987 ‑ 1022.
Dr Wynn Owen also undertook a risk assessment using a number of tools. In particular he utilised the Static‑99R, the Violence Risk Appraisal Guide (VRAG-R), the RSVP and the PCL‑R. On the Static‑99R Dr Wynn Owen placed the respondent at risk level IVa, that is, as an above average risk for committing future sexual offences. As the respondent fitted the category of a high risk / high need offender he was assessed as having a 21% likelihood sexual reoffending within five years of release and an approximately 32% likelihood of sexual reoffending within 10 years. To place these figures in context, the likelihood of an adult male committing a sexual offence over his lifetime is less than 1%. Of those males who have committed one sexual offence approximately 10% will go on to commit a new sexual offence. The respondent's score placed him in the 88th percentile of the sex offender samples.
VRAG‑R is an actuarial risk tool designed to assess the likelihood of violent or sexual reoffending among male offenders. It requires an assessment against 12 items in seven domains. The respondent's score on this instrument placed him in a high risk category. Offenders with the same score as the respondent on release had a 78% or greater likelihood of committing a new violent offence within five years. Dr Wynn Owen noted that this estimate was not specific to the respondent and that the instrument tended to overestimate the risk of violent offending in Australian indigenous male offenders due to a range of factors, including an increased likelihood of men in this group being charged and convicted of offences. Nonetheless the results are of moderate predictive validity and the high score of the respondent indicates that the risk is high, even making allowance for this factor. The risk relates to the likelihood of any violent offence, not only a violent offence which is deemed to be a serious offence by the HRSO Act. The respondent's score reflects the ongoing pattern of frequent violence seen in his criminal record.
Dr Wynn Owen's assessment using the RSVP guideline produced very similar results to those of Ms Hasson. That is, a number of risk factors were present. In regard to the risk factor of problems with planning, Dr Wynn Owen noted that this was significantly demonstrated by the breaches of the interim supervision order that had led to two returns to prison after his initial release.
Dr Wynn Owen assessed the respondent as having a score of 30 on the PCL-R test. This score meets the threshold for psychopathy. The difference between this score and that obtained by Ms Hasson for the same test has been earlier noted.
Dr Wynn Owen's conclusion was that the respondent presents as a high risk of future serious offending of a sexual nature if released unsupervised. This risk is associated with the presence of a psychopathic personality and significant dynamic risk factors, including lack of self-awareness, attitudes that condone or support sexual violence and substance use. There is a trajectory of escalation of sexual violence in his sexual offending and the presence of psychopathy increases the likelihood of further escalation.
In his report Dr Wynn Owen expressed the following opinion:
[PAS] presents a high risk of committing a future serious offence, of either a sexual or non-sexual nature. On the basis of this assessment I find that [PAS] is more likely to commit a serious sexual offence than a serious non-sexual or violent offence. I note, however that his history and high VRAG score indicates that there is a very high likelihood of future violent offending. Without change through effective therapeutic intervention or community management, future violent offending appears inevitable. Of particular significance to the risk of re-offence are the present of psychopathy and current substance use disorder apparently not modified significantly by an interim supervision order.
Dr Wynn Owen concluded by saying that risk management in the community would require significant external constraint to be effective as the respondent has demonstrated that he is currently unable to abstain from substance use notwithstanding the conditions of an interim supervision order and the known consequences of a breach of conditions. The respondent has also demonstrated that his self‑reporting is unreliable and this must be taken into account in developing a risk management plan. Further, the respondent has significant unmet treatment needs, in particular in the area of sexual offending, cognitive distortions and attitudes that support and condone violence and sexual violence, emotional recognition and self-management, coping and problem solving and substance use.
Dr Wynn Owen recommended that the respondent receive individual psychological intervention in the form of counselling. This is required because group programs have been notably ineffective in addressing substance use. The respondent's personality style can be better managed and challenged in a one‑on‑one setting by a therapist who is aware of his interaction style and has developed a rapport. The respondent needs to address outstanding treatment needs in the areas of self-awareness, emotional awareness, self-management, cognitive distortions, coping skills, problem‑solving, interpersonal function, substance use and sexual offending.
Dr Lynley Poli
Dr Poli is a senior forensic psychologist with the forensic psychological services section of the Department of Justice. She was responsible for the preparation of a high risk serious offender management plan in respect of the respondent.[20] The plan formed part of the Book of Materials.
[20] Book of Materials, volume 2, Exhibit 2, 975 ‑ 986.
In the plan Dr Poli noted that although the respondent had completed several treatment programs to address his offending behaviour and had demonstrated considerable gains as a result of his interventions, he has a range of unmet treatment needs. Dr Poli recommended that the respondent engage in an ISOTP to address the residual treatment targets relating to his sexual offending behaviour. This recommendation was made bearing in mind that the respondent had not completed the earlier ISOTP.
Enquiries had established that the ISOTP was only available at Bunbury Regional Prison and Acacia Prison. The respondent is presently held at Hakea Prison and ineligible to move to Bunbury or Acacia due to his security rating. This means that he will be unable to participate in an ISOTP unless he is able to achieve a change to that rating. There was no evidence as to how that could be achieved or how likely it was. The next ISOTPs commence in July of this year. Participation in an ISOTP would also require a treatment assessment to ensure that the respondent was suitable to undertake the program. However, Dr Poli said that high risk serious offenders on detention orders were often given priority and she understood that a position on one of the programs would be made available if the respondent was transferred to one of the relevant prisons.
Dr Poli also recommended that the respondent engage in individual psychological intervention following the completion of the ISOTP. At the hearing she modified this recommendation because of the possible difficulty in the respondent accessing an ISOTP. She agreed that counselling should commence as soon as possible and not after participation in an ISOTP as referred to in the plan. As to the availability of a counsellor it was apparent from answers given by Dr Poli that resources are very severely limited. She said that there is a waitlist for individual counsellors but could not say when the respondent would be able to access counselling services if he was placed on that waitlist. She understood that offenders detained under the HRSO Act were usually given priority.
Dr Poli also suggested that the respondent's substance abuse issues could be addressed by being transferred to the Mallee Rehabilitation Unit at Casuarina Prison. His eligibility for that program would have to be assessed, but it may afford an opportunity to deal more effectively with the respondent's long-term and entrenched drug use.
Dr Poli accepted in cross‑examination that the outstanding treatment needs of the respondent were only exposed and considered in detail as a result of these proceedings. The respondent had not at any time during his 12‑year sentence been considered for individual counselling.
Trudy Hill
Trudy Hill is a senior community corrections officer with the Community Offender Monitoring Unit. She is the community corrections officer assigned to the respondent. She prepared a community supervision assessment report that was included in the Book of Materials.[21] That report summarises the respondent's offending history, programs undertaken in prison, prison behaviour and progress whilst subject to the interim supervision order.
[21] Book of Materials, volume 2, Exhibit 2, 1057 ‑ 1073.
Regarding the interim supervision order, Ms Hill set out a number of non‑compliance incidents. After his release in November 2020 the respondent was seen on a weekly basis for the purpose of supervision. He attended as directed and engaged in a polite manner, but some of his responses lacked honesty. This was particularly the case in respect of substance use. During his time in the community the respondent was subject to 16 urinalysis tests. Of those tests only two returned negative results.
On 26 November 2020 the respondent was contacted via telephone and instructed to attend urinalysis the following day. During the call he admitted to using cannabis, and the following day he reported that he had consumed approximately four to five cones. He attributed this to boredom and feeling overwhelmed. The urinalysis results subsequently returned a positive result for cannabis. He was issued with a written warning.
On 2 December 2020 the respondent made further admissions to using cannabis, claiming that he used one cone in the two days prior to attending for supervision. A urinalysis result subsequently produced a positive result for cannabis and a further written letter was issued.
On 9 December 2020 the respondent was instructed to provide a urine sample and during a meeting on the same day he denied any use of cannabis or other illicit substances. The results of the test subsequently showed a positive result for cannabis.
On 11 December 2020 the respondent was again instructed to provide a urine sample and denied use of cannabis or other illicit substances. The sample later produced a positive result for cannabis.
On 16 December 2020 the respondent was instructed to provide a further sample. This sample produced a result positive for methylamphetamine and cannabis.
A further positive result for both methylamphetamine and cannabis occurred as a result of a test on 21 December 2020.
A further positive result was obtained from a test undertaken on 10 March 2021, again for both methylamphetamines and cannabis. Tests on 12 and 17 March 2021 produced similar results. On 19 March 2021 there was a positive result for cannabis. On 24 March 2021 there was a positive result for both methylamphetamine and cannabis. The same occurred on 29 March 2021 and 30 March 2021.
As has been noted earlier in these reasons the respondent was charged with offences under s 80 of the HRSO Act. Some of these offences related to breaches of the condition relating to illicit drugs. Others related to breaches of curfews and exclusion zones. He was charged with six offences under s 80 and this resulted in him being remanded in custody on 22 December 2020. He was subsequently convicted on 2 March 2021 as a result of his pleas of guilty to those charges. He received a financial penalty (after taking into account the time he had spent in custody) and was released again on his interim supervision order.
Contravention proceedings in this Court resulted in an appearance on 4 March 2021. The contraventions were found proven and the respondent was again released on his interim supervision order. He was cautioned about the risk of using drugs and the likely impact it would have at the final hearing. However, as has already been noted, he continued to use drugs.
The respondent was then charged with further offences arising from breaches of the interim supervision order, to which he pleaded guilty and was sentenced to a suspended imprisonment order. On 1 April 2021 an additional 10 charges in respect of breaches were preferred and the respondent was remanded in custody until 20 April 2021 for legal advice. Those charges remained outstanding as at the date of the hearing. Counsel for the respondent advised that guilty pleas were intended and a sentence of immediate imprisonment was expected.
There are no significant issues in regards to accommodation. Ms Hill notes that during his period in the community the respondent resided with his mother, father and nephew. His mother has indicated a willingness to provide support, including accommodation, on an ongoing basis. His mother is assessed as being a pro-social individual who does not condone or support drug or alcohol use.
Ms Hill's report considered strategies to manage offending behaviours and posed supervision order conditions in the event that such an order was considered appropriate. As such an order is not a viable option in this case I do not intend to set out the proposed conditions.
Is the respondent a high risk serious offender?
The evidence satisfies me to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community from an unacceptable risk that the respondent will commit a serious offence. In particular, having regard to the respondent's offending history, his outstanding treatment needs and the opinions of Dr Wynn Owen and Ms Hasson in regards to the high risk of serious reoffending, the likelihood of further serious offending is such that the community could not be adequately protected unless a restriction order is imposed.
Continuing detention order or supervision order?
Having decided that the respondent is a high risk serious offender it is necessary to determine whether he should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order. Before I can make a supervision order I must be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order and that the totality of the conditions would provide adequate protection of the community against the risk that the respondent would commit a serious offence. The respondent bears the onus of establishing that he would substantially comply with the standard conditions.
There are two factors that weigh heavily against a supervision order. The first of these is the respondent's unmet treatment needs. Despite participation in a number of programs the respondent has outstanding treatment needs, in particular in respect of risk factors related to serious sexual offending and substance abuse. He did not complete an ISOTP and has not therefore adequately addressed behaviours and attitudes in regard to the risk of serious sexual offending. In regard to substance abuse he did undertake a Pathways program in 2018 but it has clearly been ineffective.
The second factor is that substance abuse is a continuing significant issue and the respondent has consistently failed to comply with conditions requiring him to abstain from such use. The fact that his serious sexual offending occurred in the context of illicit drug use heightens the significance of this failing. It is clear that the respondent does not presently have sufficient capability or willingness to abstain from such use. This not only heightens the risk of reoffending it makes management of that risk very problematic.
The respondent has not satisfied me on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order. This is principally because I am not satisfied that it is likely that he would comply with the standard supervision condition (given that supervision would inevitably include directions to abstain from drug use). In any event I am not satisfied that a supervision order would provide adequate protection for the community from the risk that the respondent would commit further serious offences. There is a high likelihood that he would not comply with conditions regarding drug use, curfews and exclusion zones. It is also likely that he would fail to be frank and honest about any such drug use. Such non-compliance would raise the risk of further offending. The likely nature of such further offending would be of the types the respondent has previously committed. That risk includes serious sexual offending. The degree and nature of the risk is such that there are currently no conditions that could adequately protect the community.
Future treatment needs
A continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[22] The objects of the Act are to provide for the detention or supervision of high risk serious offenders to ensure adequate protection of the community and victims, and to provide for the continuing control, care or treatment of high risk offenders.[23] The HRSO Act provides for periodic reviews of continuing detention orders: after the first year and every two years thereafter.[24]
[22] HRSO Act, s 26.
[23] HRSO Act, s 8.
[24] HRSO Act, s 64.
The significance of depriving a person of their liberty, not for something that they have done but for something that they may do, is such that the risk must be regularly reassessed. That factor also requires that every reasonable effort be made to ensure that the respondent has his treatment needs addressed so that his chances of being released at the next review date are maximised.
During the hearing it was apparent that although the respondent had been in prison for 14 years prior to his most recent release and had engaged with such programs as were offered to him, it was not considered necessary to address his unmet treatment needs until the application for a restriction order was made. The expert witnesses have identified treatment options, in particular individual counselling. That is an option that has never before been afforded to the respondent.
It might be thought that a better utilisation of public resources would be to identify the need for such treatment at an earlier stage. If the respondent's treatment needs had been addressed earlier in his sentence there may have been a possibility that he would have been suitable for release on a supervision order at the end of his sentence. It is a false economy to deprive offenders of the treatment that they need if this results in an application for further detention under the HRSO Act. The further loss of liberty for the individual and the public cost of further detention may be avoided if the resources used to make an application were deployed at an earlier stage.
In any event, the fact is that extensive reports and assessments have now been undertaken in respect of the respondent. His treatment needs have been fully considered and detailed in those reports. A continuing detention order will be reviewed in one year. Full advantage of that period must be made to ensure that the respondent receives all the assistance that is reasonably available.
I had some concerns at the hearing that resources for individual counselling within the prisons were limited. Despite efforts to obtain some information as to when a psychologist may be available to undertake individual counselling with the respondent, the position remained unclear. I was not confident that the respondent's treatment needs would be given the priority that they deserved.
There is a risk that once a detention order has been made the prison authorities will default to treating the respondent as if he is simply another prisoner serving a sentence. A person detained under the HRSO Act is not a prisoner and should not be treated as such. One of the reasons such a person is detained is to receive treatment. In my view every effort should be made to ensure that the following things are done:
1.Individual counselling at least weekly of one hour's duration with a psychologist with whom he is able to build up a rapport and who will ensure that the treatment needs identified in the reports are addressed in a systematic way.
2.Consideration be given to transferring the respondent to a prison at which he can undertake the ISOTP.
3.Consideration be given to transferring the respondent to Casuarina Prison so that he can take part in the program at the Mallee Rehabilitation Centre.
I appreciate that the ISOTP and Mallee Rehabilitation Centre programs are not available at the same prisons and may need to be undertaken sequentially. There should be no reason for any delay in providing individual counselling. It is imperative that the psychological counselling starts as soon as possible to best utilise the time before the first review. That counselling may also provide the respondent with improved prospects for participation in the ISOTP and the Mallee Rehabilitation Centre programs.
Order
I order that the respondent be detained in custody for control, care and treatment.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
20 APRIL 2021
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