The State of Western Australia v Patrick
[2016] WASC 391
•5 DECEMBER 2016
THE STATE OF WESTERN AUSTRALIA -v- PATRICK [2016] WASC 391
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 391 | |
| Case No: | DSO:3/2016 | 18 OCTOBER 2016 | |
| Coram: | JENKINS J | 5/12/16 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | There are reasonable grounds for believing that the court might find that the respondent is a serious danger to the community Date fixed for hearing of the application for the Division 2 order and consequential orders made | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA LEON PATRICK |
Catchwords: | Criminal law Dangerous Sexual Offenders Act 2006 (WA) Application for continuing detention order or supervision order Preliminary hearing Youthful respondent State inaction |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 14 |
Case References: | Director of Public Prosecutions v GTR [2008] WASCA 187 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
LEON PATRICK
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order or supervision order - Preliminary hearing - Youthful respondent - State inaction
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 14
Result:
There are reasonable grounds for believing that the court might find that the respondent is a serious danger to the community
Date fixed for hearing of the application for the Division 2 order and consequential orders made
Category: B
Representation:
Counsel:
Applicant : Ms S Markham
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions v GTR [2008] WASCA 187
1 JENKINS J: The State of Western Australia applies for an order under the Dangerous Sexual Offenders Act 2006 (WA) s 14(1) that a date be set for the hearing of the application for an order under the Act, Division 2 in respect to the respondent, Leon Patrick and for consequential orders.
2 A date must be set if the court is satisfied there are reasonable grounds for believing that the court might, under the Act, find that Mr Patrick is a serious danger to the community. That is, that the court is satisfied there are reasonable grounds for believing that the court might find that that there is an unacceptable risk that, if Mr Patrick were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.
3 The application is opposed to by Mr Patrick. He says that there are three reasons why I ought not to be so satisfied. They are, first his youth, secondly that his treatment needs have not been addressed whilst he has been in custody and in detention and thirdly there is no current assessment of his risk.
Mr Patrick's criminal history
4 Mr Patrick was born on 5 December 1995 and is 19 years of age. He is an initiated indigenous man.
5 Mr Patrick has a long record of offending for someone so young. Many of his convictions are for non-sexual offending. His generalised offending commenced in 2008, when he was only 12 years of age, when he was referred to the juvenile justice team for an offence of aggravated burglary. After that, he appeared in the Kununurra and other children's courts for offences such as aggravated burglary, stealing, unlawful damage and minor traffic and drug offences. He has also repeatedly been dealt with by the children's Court for breaching community based orders.
6 He has been convicted of three serious sexual offences, committed over a period of about four years. He committed his most recent serious sexual offence in 2014. Additionally, he has been convicted of other offences which had sexual overtones.
Mr Patrick's background
7 Mr Patrick was born in Darwin and has no known siblings. His biological father is unknown. There are reports that Mr Patrick's mother abused alcohol during her pregnancy and this may have caused Mr Patrick long-term developmental deficits. Further, his mother is significantly hearing-impaired and, consequentially, lacks the ability to speak. It is likely that this has impacted on Mr Patrick's ability to acquire language at an early age.
8 Mr Patrick was raised by his great-grandmother from the age of two years. They lived a transient lifestyle moving between Warmun, Kununurra and Halls Creek. His great-grandfather passed away in mid-2010 and his great-grandmother then struggled to care for Mr Patrick. During his childhood Mr Patrick lived with various relatives. It is reported that he has been exposed to domestic violence, family feuding, substance abuse, inappropriate sexual activity and criminal activities.
9 Mr Patrick was very close to a cultural brother who committed suicide at the age of nine years in 2007. The loss resulted in significant turmoil within Mr Patrick's extended family. It also caused psychological problems and further dislocation for Mr Patrick. It was after his brother's suicide that Mr Patrick began to exhibit various antisocial behaviours, including substance misuse and offending.
10 Mr Patrick has had little formal education. He reports long-standing literacy and numeracy difficulties, as well as problems with concentration. Mr Patrick completed the Weschler Non-verbal Scale of Ability test (WNSA) and other tests in 2013. The WNSA is a non-verbal measure of ability that has been designed for culturally and linguistically diverse groups and those who are unable to speak English and/or have language and/or hearing difficulties. Overall, the results indicated that Mr Patrick's intellectual functioning was within the extremely low to low average range although it was not possible to report a full-scale IQ due to significant differences between domain scores.
11 On a singular word reading test, Mr Patrick's score was within the extremely low range for his age group and at an approximate 5.4 year old level. He refused to continue with a numerical operations subtest and was only able to complete very basic mathematical equations with his overall performance in the extremely low range and at an early five year old level. Mr Patrick refused to write his name or participate in a spelling task.
12 Mr Patrick also had difficulties in attention/executive functioning. However, according to his teachers, Mr Patrick did not appear to have any difficulty understanding customs, beliefs and storytelling. He expressed his culture through music and seemed to understand religious beliefs and understand his own personal cultural identity. At that time, Mr Patrick was able to follow instructions fairly well and could organise things that he required for an outing, such as clothes and food. He had shown initiative by doing things without being told. He was able to plan his time but had difficulty completing tasks within the planned time. He appeared to understand conversations fairly well although he had difficulty asking for explanation if he was unsure of meanings.
13 On the other hand, Mr Patrick had no experience with other activities of daily living, such as negotiating public transport, managing his money or going shopping. He had difficulty reacting to and resolving conflict or dealing with racial issues. Mr Patrick also had trouble dealing with his cultural identity amongst non-indigenous people. He had difficulty accepting the consequences for breaking a rule. He showed no awareness of nutrition and was unable to take appropriate action if he was unwell or follow medical instructions. Mr Patrick was unable to remember and attend appointments by himself. Mr Patrick did not demonstrate any understanding of employment processes and responsibilities. He did not demonstrate an understanding of the need to prepare for a working life, career options or demonstrate any skills that could lead to future employment.
14 Professor Carmela Pestell, the clinical psychologist and neuropsychologist, who completed the report in 2013 noted that it was outside her area of expertise to confirm whether Mr Patrick had foetal alcohol spectrum disorder (FASD), as such a diagnosis needed to be made by a medical specialist. However, the neuropsychological screen suggested that Mr Patrick had low average visuospatial/perceptual abilities and general spatial reasoning abilities which were not in keeping with a diagnosis of intellectual disability. He appeared to have expressive language difficulties that could not be fully accounted for by the fact that English is his second language. Mr Patrick also has a history of attentional problems which is in keeping with FASD. Professor Pestell noted other characteristics which were consistent with FASD but also concluded that was likely that chronic substance abuse had exacerbated any pre-existing cognitive difficulties.
15 Professor Pestell recommended that Mr Patrick be referred to a speech pathologist for assessment and treatment and that he undergo a hearing assessment. It was also recommended that he be reviewed by a paediatrician for further investigation of FASD. Disappointingly, there is no evidence that these recommendations have been implemented.
Mr Patrick's serious sexual and related offences
16 Mr Patrick's first serious sexual offence was committed on 24 December 2009, when he was approximately 14 years of age. A heavily intoxicated 12-year-old female victim, who was known to Mr Patrick, went to a home in Kununurra. She entered a bedroom occupied by Mr Patrick and two other young males. The victim kissed two of the males, including Mr Patrick. Shortly after doing so she vomited and became unconscious. Mr Patrick and his co-offenders removed her lower garments. Mr Patrick then had penile sexual intercourse with the victim until he ejaculated. Two other males then sexually penetrated the complainant. When the victim awoke, her vagina was sore and bleeding. She was admitted to hospital for three days.
17 Mr Patrick entered a plea of guilty to the offence of sexual penetration of a child. It was submitted that he was remorseful for his offending. On 13 May 2010, he was sentenced to 8 months detention.
18 On the evening of 30 September 2010, Mr Patrick then 14 years of age, went into a room occupied by a 13-year-old girl. She woke to feel Mr Patrick patting her bottom. She swore at him and he ran off. About half an hour later she was woken by the same sensation. The victim called out and Mr Patrick ran away.
19 In the early hours of 2 October 2010, in the same community, a 21-year-old female was woken by her father who had seen Mr Patrick sitting on her bed. He did not have permission to be in the house. On 2 March 2011, Mr Patrick was sentenced to a 6 month intensive youth supervision order for the above two counts of assault and trespass.
20 In the early hours of 7 December 2011, Mr Patrick then 16 years of age, went into the 14-year-old female victim's home in Warmun. He was carrying a pair of scissors. The victim was asleep on a couch. Mr Patrick used the scissors to cut a hole in the victim's shorts and underpants to expose her genital area. He then pushed his penis through the hole in her clothing. This caused the victim to wake up. She was distressed and called for help. Mr Patrick ran from the scene.
21 Mr Patrick was sentenced for aggravated indecent dealing with a child to 8 months detention.
22 On 11 August 2013, Mr Patrick went to the 31-year-old female victim's home and asked if he could see a young relative. As the victim bent over to attend to the child, Mr Patrick put his hand up the victim's skirt and touched her vagina from outside her clothes. The victim asked Mr Patrick to leave and escorted him to the side gate. As he left, Mr Patrick told the victim that she had a 'nice arse' and he grabbed her buttocks.
23 On 23 September 2013, Mr Patrick was sentenced to 3 months detention for indecent assault.
24 Mr Patrick committed his most recent serious sexual offence on 14 February 2014. On that date, Mr Patrick then 18 years of age and a co-offender were drinking with the 24-year-old female victim at the front of a house in Kununurra. Mr Patrick repeatedly asked the victim for sex and she told him she was not interested. Mr Patrick then said to the victim:
If you don't want to listen to me, I will just have to rape this cunt right here.
25 Mr Patrick then punched the victim in the head several times. The co-offender also assaulted the victim, causing her to fall to the ground. Both offenders then kicked the victim repeatedly to the head and other parts of her body. One of the offenders said that they needed to knock out the victim. Whilst the co-offender sat on top of the victim, Mr Patrick pulled her shorts down to her knees, despite her attempts to pull them up. A neighbour witnessed the incident and shouted out that they were calling the police. Mr Patrick and the co-offender then ran off. The victim was taken to hospital where she received medical treatment for a cut to the top of her head, a cut to her chin, grazes to her knees and bruising to her face and body.
26 On 26 June 2015, Mr Patrick pleaded guilty to attempted aggravated sexual penetration, on what was to be the first day of his trial. He was sentenced to 3 years imprisonment.
Events since 26 June 2015
27 Mr Patrick was made eligible for parole; however parole was refused on 28 August 2015 at Mr Patrick's request.
28 Mr Patrick is currently imprisoned at the West Kimberley Regional Prison. In January 2016 he was assessed as being unsuitable for group based programmes and was recommended for one to one counselling. It is unclear as to what, if any, counselling has taken place to date.
29 Mr Patrick has completed a compulsory two day education course called 'healthy eating on a budget'. He has also completed a food hygiene course and an introduction to workplace health and safety course. Mr Patrick has engaged with men's outreach and is making enquiries in relation to obtaining a driver's licence.
30 Mr Patrick's current sentence will end on 17 February 2017. Whilst currently in custody, Mr Patrick has had only one prison offence. On 29 January 2015 he 'committed an act of misconduct subversive of the order and good government of the prison' by fighting. Random urinalysis conducted in April 2015 was negative. On the other hand, his poor work ethic resulted in him being dismissed from work in the prison laundry.
Discussion
31 Given the information before me, and even accepting that it does not include a psychiatric report completed by a court appointed psychiatrist, I am satisfied that at a Division 2 hearing a judge may conclude that Mr Patrick has a propensity to indecently and sexually assault women, in particular teenage girls and young women. A judge may also find that there is a pattern of offending behaviour in that Mr Patrick has offended against females in and around their homes.
32 On the evidence before me, it is inexplicable that Mr Patrick has not been given the opportunity to address the causes of his offending behaviour in a formal and structured manner whilst he has been on juvenile community based orders, in juvenile detention and in adult custody. Nevertheless, the fact that he has not participated in relevant programmes means that it is not possible for me to conclude that such programmes have enabled him to rehabilitate himself.
33 Mr Patrick's history of substance abuse and generalised criminal offending is not in his favour.
34 It is not appropriate for me to assess definitively the risk that if Mr Patrick were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. That is because I do not have available to me a psychiatric report which contains the sort of information necessary for me to make such an assessment. Further, there has not been a Division 2 hearing of this matter. However, given Mr Patrick's history of offending and because there is no evidence before me that he has addressed the causes of his offending, I am of the view that a court may find that there is a significant risk that if Mr Patrick were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence and that there is a need to protect members of the community from that risk.
35 There is no doubt that Mr Patrick is a very young person to be the subject of an application under the Act. However, the Act applies to young offenders and juvenile convictions may be taken into account in determining relevant issues under the act: Director of Public Prosecutions v GTR [2008] WASCA 187.
36 Mr Patrick's counsel submitted that in GTR the court of appeal said that the general impression is that the prediction of likely recidivism in relation to sexual offending may be less reliably established in relation to children, unless the offending reveals the making of adult type choices. In my view, until a Division 2 hearing occurs it is not possible to determine whether or not Mr Patrick's risk of serious sexual offending can be reliably established.
37 At a Division 2 hearing, the court will have to take into account Mr Patrick's age, the ages at which he offended and whether Mr Patrick is maturing in a way that reduces his risk or not. It will also have to take into account Mr Patrick's youth in determining whether he poses an unacceptable risk of serious sexual offending. These matters are appropriate to be considered in a Division 2 hearing and do not affect determinatively my decision as to whether a court might find that Mr Patrick is a serious danger to the community.
38 Mr Patrick's counsel submitted that on the basis of the evidence before me there is a concern that the State has by its inaction in respect to Mr Patrick, who was in juvenile detention or on community based orders for considerable periods of his childhood and has been in adult custody since February 2014, significantly contributed to a situation where it is more likely that he will be indefinitely detained under the Act. However, the question for me under the Act is whether I am satisfied that there are reasonable grounds for believing that the court may find that Mr Patrick is a serious danger to the community. There is little, if any, room in that test for a consideration in a manner of benefit to Mr Patrick of the State's apparent lack of appropriate action in the past.
Conclusion
39 In my opinion, there are reasonable grounds for believing that the court might find that Mr Patrick is a serious danger to the community. I acknowledge that there is no report from a court appointed psychiatrist. Against this Mr Patrick's antecedents and criminal record, both generally and in respect of sexual offending, is serious and shows repeated sexual and indecent offending against females. On the basis of his record alone there are reasonable grounds for concluding that a court might be persuaded that Mr Patrick is a serious danger to the community.
40 There is no evidence currently before me that whilst in custody and detention Mr Patrick has gained insight into factors which have contributed in the past to his serious sexual offending and thereby addressed his risk of serious sexual offending.
41 Therefore, I will make the orders as sought by the applicant in the minute of proposed orders dated 23 November 2016. The orders include an order that Mr Patrick undergo examination by forensic psychologist, Sarah Ballantyne 'in order to assess [Mr Patrick] in relation to FASD'. In view of Professor Pestell's comments about her lack of qualifications to make a diagnosis of FASD, I direct the applicant to liaise with Ms Ballantyne and Mr Patrick's counsel about whether Ms Ballantyne is qualified to make such a diagnosis. If not, I direct the applicant to identify a suitably qualified medical practitioner and to seek a further direction that Mr Patrick undergo examination by him or her. Whether Mr Patrick has FASD or not, and if not, whether his low intellectual functioning is organic or acquired may be very relevant to the psychiatrists' risk assessments and determinative of the resources Mr Patrick can access and the support he can receive in the community, these issues should be dealt with as a priority.
42 Dr Pestell also recommended that Mr Patrick be referred to a speech pathologist for assessment and treatment and have a hearing test. These recommendations should also be pursued and, if necessary, directions sought from the court in respect of them.
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