The State of Western Australia v Penny
[2022] WASC 136
•27 APRIL 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PENNY [2022] WASC 136
CORAM: DERRICK J
HEARD: 22 APRIL 2022
DELIVERED : 22 APRIL 2022
PUBLISHED : 27 APRIL 2022
FILE NO/S: SO 22 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
LEVI AARON PENNY
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Restriction order application - Preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Whether interim detention order or interim supervision order should be made pending determination of restriction order application - Turns on own facts
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)
Result:
Orders made pursuant to s 46(2)
Interim supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Ms F M Allen |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | David McKenzie |
Case(s) referred to in decision(s):
The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v Lynch [2022] WASC 104
The State of Western Australia v Ratcliff [2021] WASC 31
The State of Western Australia v Ugle [2022] WASC 91
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
On 22 December 2021 the State of Western Australia made an application for orders to be made in relation to Levi Aaron Penny (the respondent) as follows:
1.A restriction order under s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (the Act) (the application for this order being made pursuant to s 35(1) of the Act);[1]
2.Orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act requiring, among other things, that the respondent undergo examination by a psychiatrist and qualified psychologist for the purpose of preparing reports to be used on the hearing of the restriction order application; and
3.An order pursuant to s 46(2)(c)(i) of the Act that the respondent be subject to an interim detention order until the final determination of the restriction order application, or alternatively an order pursuant to s 58(5) of the Act that the respondent be subject to an interim supervision order until the final determination of the application.
1 The respondent is an 'offender' for the purposes of the Act and a 'serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act: see the definition of 'offender' in s 3 of the Act, par (b) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act. Given that the respondent is to be released on 8 May 2022, the application was, as required by s 35(3) of the Act, made within a period of 1 year of the date on which the respondent is to be released from custody.
I have today heard the State's application for the orders pursuant to s 46(2) of the Act. Accordingly, the hearing that has taken place before me is a preliminary hearing conducted pursuant to s 46(1) of the Act.
The respondent concedes that the requirements of s 46(1) are met and therefore does not oppose the application for the orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Nonetheless, it is, of course, still necessary for me to examine the evidence and to satisfy myself that the orders sought should be made.
Despite the terms of the application the State does not press for an order that the respondent, in the event that I find that the requirements of s 46(1) are met, should be detained in custody until the determination of the restriction order application. The State's position is that in these circumstances the appropriate order, given the particular circumstances of the respondent, will be that he be released subject to the conditions of an interim supervision order pursuant to s 58(5) of the Act.
The respondent does not oppose the application for the order that he be released on an interim supervision order pursuant to s 58(5) of the Act pending the determination of the restriction order application. The respondent does not oppose the application notwithstanding that a post-sentence supervision order (the PSSO) was made in relation to him by the Prisoners Review Board (the Board) on 6 April 2022 pursuant to s 74D of the Sentence Administration Act 2003 (WA) (SA Act) which is to come into effect on 8 May 2022, the respondent's current sentence expiry date. That is, the respondent does not seek to argue that the conditions of the PSSO render it unnecessary to make an interim supervision order in respect of him.
The law[2]
[2] My statement of the applicable law reproduces what has been written by other judges of this court in numerous recent decisions: see by way of example only, The State of Western Australia v Ugle [2022] WASC 91 [5] - [8] (Hall J) and The State of Western Australia v Lynch [2022] WASC 104 [7] - [10] (Quinlan CJ).
Section 46(1) of the Act provides that the main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the Act.
A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[3]
[3] Act, s 7(1).
A 'serious offence' within the meaning of the Act is defined in s 5 and sch 1. Relevantly for the purposes of the current application, a 'serious offence' includes the offence of robbery contrary to s 392 of the Criminal Code (WA).
I do not have to be satisfied that a restriction order will be made. It is sufficient at this stage of proceedings 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. Further, a belief is an inclination of mind towards accenting 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 evidence
In support of the application the State relies on an affidavit affirmed by Daniel Sean McDonnell on 23 December 2021. Mr McDonnell is a legal practitioner employed by the State's solicitor. Annexed to Mr McDonnell's affidavit are a number of documents relating to the respondent including his criminal record and reports that have been prepared in relation to him.
The State also relies upon an affidavit affirmed by Ms Heather Applin on 14 April 2022 and an affidavit sworn by Mr Martyn James Clancy-Lowe on 19 April 2022. Ms Applin is a Senior Community Corrections Officer employed by the Department of Justice (the Department) and is based at the Community Offender Monitoring Unit. Mr Clancy-Lowe is employed by the Western Australian Police Force as the Executive Manager of the Sex Offender Registry. The affidavits of Ms Applin and Mr Clancy-Lowe relate to the respondent's proposed accommodation on release.
The respondent's background and personal circumstances
The respondent is a 26-year-old Indigenous man. He had a dysfunctional upbringing characterised by parental abandonment and neglect, and exposure to domestic violence and substance abuse. During his childhood he spent periods of time in foster care. His schooling was disrupted and incomplete.
The respondent has a son who is about 5 years old. He has previously expressed a desire to live as a family unit with his son and his son's mother.
The respondent has a long term and entrenched problem with illicit substances. Unsurprisingly, given his troubled upbringing, he has resorted to drug use as a maladaptive coping mechanism.
The respondent's criminal record
The respondent has a history of serious offending which is largely driven by his drug use, unstable lifestyle, antisocial attitudes and negative peer associations.
The respondent committed the first of his offences when he was only 10 years old. He has continued to commit offences ever since save for periods of time during which he has been incarcerated.
The respondent committed his first offence of violence when he was 12 years old. He has over the years committed numerous burglary related offences, stealing offences and damage type offences.
In 2010 the respondent was convicted of an offence of aggravated robbery. The respondent was 13 years old at the time. The facts of the offence were that the respondent and two co-offenders approached the female victim at a train station and the respondent, while the co-offenders assaulted the victim, stole the victim's handbag.
In 2013 the respondent was convicted of two offences of aggravated robbery. The respondent was 17 years old at the time.
The facts of the first of the aggravated robbery offences were that the respondent and a co-offender approached the male victim at a train station and told him that they would assault him unless he handed his phone over. The victim handed over his phone.
The facts of the second of the aggravated robbery offences were that the respondent and two co-offenders followed the victim. When the victim sat down the respondent and one of the co-offenders sat on either side of him while the third co-offender stood over him. The respondent and his co-offenders demanded the victim hand over his mobile phone, wallet and iPod which the victim did.
On 2 May 2018 the respondent was convicted of two offences of armed robbery and one offence of attempted armed robbery (the index offences). He was 22 years old at the time. He was sentenced for the index offences to a total of 5 years imprisonment with the commencement date of the term being backdated to 5 March 2017. It is for the index offences, as well as some other offences of which he was subsequently convicted, that the respondent is currently imprisoned. His sentence expiry date is 8 May 2022. The index offences involved the respondent entering three outlets while armed with various items including a tyre iron, a fishing knife, bolt cutters, and a metal letterbox pole, and demanding money from staff and threatening them with violence. The index offences represented a significant escalation in the severity of the violence exhibited by the respondent.
Since being imprisoned for the index offences the respondent has been convicted of two offences of assaulting a public officer. He committed these two offences on 24 January 2018 and 1 March 2021.
In addition to committing the two assault public office offences the respondent has generally behaved poorly during his current term of imprisonment. He has been the subject of a number of adverse reports in relation to his behaviour towards prison staff and programme facilitators.
Recent participation in programs and recent assessments
A psychiatric report dated 16 April 2018 was prepared for the purpose of the respondent's sentencing for the index offences. The psychiatrist's principal diagnosis was that the respondent had a severe substance use disorder (amphetamines and cannabis) which was in remission due to him being in the controlled prison environment. He concluded that the respondent did not have a mental illness. He formed the view that the respondent had adopted severe substance use as his main coping mechanism, that is, as his primary way of dealing with adverse life experiences. He assessed the respondent's offending risk to be high given the respondent's long history of offending, childhood attachment difficulties and chronic severe substance use.
A psychological report dated 20 April 2018 was prepared for the purpose of the respondent's sentencing for the index offences. The psychologist used the Violence Risk Scale (VRS) to assess the risk of the respondent committing further violent offences. Based on the findings from the VRS the psychologist assessed the respondent's risk of future violent offending to be high. She expressed the view that without treatment in relation to both violence and drugs, as well as clear support plans, the respondent is 'likely to return to what he knows best in order to survive'. The psychologist identified the respondent's intensive treatment needs to include violence, substance use and building a support network in the community.
In a pre-sentence report dated 24 April 2018 that was prepared for the purpose of the respondent's sentencing the writer of the report noted that the respondent accepted that his drug use had contributed to his offending. She considered that the respondent appeared to accept responsibility for his actions and demonstrated an element of insight into the serious nature of the index offences. She expressed the view that the respondent's offending was closely linked to his poor decision making, lack of consequential thinking, impulsivity, lack of employment, lack of prosocial activities and entrenched illicit substance use.
On 18 December 2019 the respondent completed the Violent Offending Treatment Program. The program's facilitators identified the respondent's treatment needs to be emotional regulation and coping, antisocial beliefs and attitudes, communication skills, interpersonal aggression, substance misuse and antisocial peer association.
During the program the respondent demonstrated an understanding of the program's content relevant to his treatment needs. He recognised that substance misuse, poor communication and antisocial peer association placed him at an increased risk of violent offending. However, his suggested strategies to avoid these risks were superficial and he failed to translate his theoretical understanding into improved behaviour in prison generally (as was evidenced by frequent reports of his continued oppositional and belligerent behaviour towards prison staff during and following the program).
During the program the respondent was resistant to the facilitators' efforts to process his contributions with him. He presented as restless and agitated and would often leave the program room.
According to the facilitators the respondent's formulated risk management plan consisted primarily of aspirational goals rather than specific strategies for achieving a prosocial life.
In January 2020 the respondent was assessed for release on parole. The community corrections officer who undertook the assessment concluded that despite the respondent's participation in the Violent Offending Treatment Program, he appeared to have made limited gains in utilising his intervention experiences to produce a robust parole plan. She expressed the view that if the respondent was to be released before he had adequately addressed his violent offending and substance abuse issues it was likely that he would pose a high risk of recidivism and associated harm. She was 'dubious' as to whether the respondent would adhere to the stringent nature of parole conditions.
In March 2020 the Board decided that the respondent should not be released on parole. The Board's reasons for arriving at this decision were stated to be as follows:
1.The respondent's criminal history including violence which suggested a high risk of re-offending;
2.The respondent's poor prison conduct including a number of charges relating to illicit substance use;
3.The respondent's release plan did not include sufficient protective strategies to reduce risk to the safety of the community or any way to adequately address his unmet intensive treatment needs;
4.The absence of confirmed suitable accommodation; and
5.The respondent's unmet treatment needs relating to his resort to violence and illicit substance use.
In March 2021 the respondent participated in the Pathways Program. The respondent was removed from the program due to excessive program absences and because he had assaulted a custodial officer.
According to the program's facilitators the respondent demonstrated basic insights into his patterns of offending and relapse. However, his capacity to identify skills or strategies which would assist him to address his treatment need areas remained outstanding.
The facilitators assessed the respondent as demonstrating limited gains across all his treatment areas. Further, in light of the respondent having been charged for assaulting a custodial officer the facilitators formed the view that the respondent continued to carry active risk associated with his violence orientated treatment need areas. They recommended that the respondent engage in a future Pathways Program if this became available to him before he was released because this would provide him with an opportunity to further address his ongoing areas of risk for relapse and recidivism.
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
The respondent has a significant criminal record which includes serious robbery offences involving threats of violence and the use of weapons. He has significant unmet treatment needs, particularly in relation to illicit substance use which is a significant risk factor for him. His history of offending, the most recent assessments of his risk of reoffending, the results of his participation in the Violent Offending Treatment Program and the Pathways Program, and his behaviour in prison are all factors that point towards him currently being at a high risk of committing violent offences including violent offences that are 'serious offences' within the meaning of the Act. In these circumstances, I am satisfied there are reasonable grounds for believing that a court might find that the respondent is a high risk serious offender. I will therefore make the orders for the hearing of the restriction order application.
The respondent's proposed accommodation
The respondent, if he is released into the community on the expiry of his current sentence, proposes to live with his partner and their child at an address in Cooloongup. The respondent's partner is agreeable to him living with her and their child if he is released.
The affidavits of Ms Applin and Mr Clancy-Lowe reveal that although the relationship between the respondent and his partner has not been free of conflict (two recorded domestic violence incidents in December 2016 and January 2017 involving verbal arguments only and an incident in October 2017 involving the respondent pushing his partner when she came to see him in prison which did not result in the laying of a formal charge) the Western Australian Police Force has advised that there are no immediate concerns with the respondent living with his partner.
Interim supervision order
The question that remains is whether I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act, an interim supervision order pursuant to s 58(5) of the Act or no further order at all. The answer to this question depends on my assessment of what is required to ensure adequate protection of the community pending the determination of the restriction order application. In making this assessment I must bear in mind that the scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.
As I have indicated, the State does not submit that an interim detention order needs to be made to ensure adequate protection of the community. Rather, the State submits that an interim supervision order should be made in the terms of a draft interim supervision order which it has filed (the draft order). The draft order contains 32 conditions. The State submits that the conditions of the draft order will enhance the ability of the authorities to adequately supervise and monitor the respondent in the community. The State further submits in this context that the conditions of the PSSO are not as stringent as the conditions of the draft intensive supervision order and would not be adequate to manage the risk of the respondent committing a serious offence.
The respondent, as I have already indicated, does not attempt to suggest that anything other than an interim supervision order is appropriate.
The PSSO, in addition to the three standard conditions required under s 74F of the SA Act contains 10 conditions which are substantially similar as a number of the conditions contained in the draft order. Having said this, the conditions of the draft order which cover similar ground to the conditions of the PSSO are generally framed in stricter and/or more extensive terms and therefore restrict to a greater extent the respondent's access to high risk situations. Further, the PSSO does not include a condition providing for electronic monitoring which is a standard condition of an interim supervision order required under s 30(2) of the Act. Nor does the PSSO include a curfew condition which is a condition included in the draft order.
I am satisfied that if the respondent is to be released the community corrections officers responsible for his management should have the ability to impose a curfew on him. I am also satisfied that the curfew should be able to be enforced by electronic monitoring. In my opinion the imposition of a curfew will provide the respondent with stability and structure on his release and will reduce his potential access to negative peers and high risk situations (it being more likely, in my view, that he will have potential access to negative peers and high risk situations during night-time hours). For these reasons I accept the State's submission that it is necessary to make an interim supervision order to ensure adequate protection of the community. I also accept the State's concession that given the stringent nature of the conditions of the draft order it is not necessary to make an interim detention order to ensure adequate protection of the community.
In summary, I am not satisfied that it is necessary to make an interim detention order in respect of the respondent to ensure adequate protection of the community. However, I am satisfied that it is necessary to make an interim supervision order in respect of the respondent to ensure adequate protection of the community. In other words, I am, in accordance with s 58(2) of the Act, satisfied that to ensure adequate protection of the community it is desirable to make an interim supervision order under s 58(5) which contains most of the conditions set out in the draft order. I am also satisfied that the other pre-conditions for the making of an interim supervision order specified in s 58(2)(a) and s 58(2)(b) of the Act are met given that the respondent will not be in custody on a specified future date (8 May 2022).[4] I will therefore make an interim supervision order containing most of the conditions set out in the draft order
[4] The State of Western Australia v CA [2020] WASC 164 [30] - [33]; The State of Western Australia v Ratcliff [2021] WASC 31 [42] - [43]; The State of Western Australia v Hart [2021] WASC 205 [32] - [33].
I say most of the conditions because I am not, on the basis of the information before me, persuaded that proposed conditions 16 and 30 -32 are required. These conditions are generally imposed on offenders who are at risk of committing serious sexual offences. The respondent does not fall into this category of offender. Accordingly, in my view these conditions do not need to be imposed on the respondent to ensure adequate protection of the community. I note that the State concedes that proposed condition 16 is not required but does not concede that conditions 30 - 32 are not required.
My decision not to include proposed conditions 30 - 32 in the interim supervision order does not, of course, mean that it will not be open to the judge who hears the restriction order application, if they find that the respondent is a high risk serious offender and that the respondent should be placed on a supervision order, to conclude on the more detailed evidence put before them that conditions such as proposed conditions 30 - 32 should be imposed as part of the supervision order.
Subject to making the above referred to necessary amendments to the draft order, I will make an interim supervision order in the terms proposed by the State. Of course, the respondent should realise that if he is ultimately found by the court to be a high risk serious offender his performance on the interim supervision order is likely to be highly relevant to the court's determination as to whether he should be made the subject of a continuing detention order or be allowed to remain in the community on a supervision order. To put the issue more bluntly, if the respondent contravenes the conditions of the interim supervision order that I am about to make then, if he is ultimately found to be a high risk serious offender, it will be much more difficult for the court to conclude that a continuing detention order should not be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LK
Associate
27 APRIL 2022
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