The State of Western Australia v Penny [No 2]
[2022] WASC 459
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PENNY [No 2] [2022] WASC 459
CORAM: FORRESTER J
HEARD: 11 NOVEMBER 2022
DELIVERED : 23 DECEMBER 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 offender – Application for restriction order – Whether the respondent is a high risk serious offender – Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order – Whether necessary to make restriction order to ensure adequate protection of community – Whether community can be adequately protected by imposition of supervision order – Whether the respondent will substantially comply with standard conditions of a supervision order
Legislation:
Criminal Code
Dangerous Sexual Offences Act 1995 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision Order made
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | David McKenzie |
Case(s) referred to in decision(s):
Director of Public Prosecutions v Williams [2007] WASCA 206
Garlett v The State of Western Australia [2022] HCA 30
The Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
The Director of Public Prosecutions (WA) v GTR (2008) WASCA 187
The Director of Public Prosecutions v Decke [2009] WASC 312
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Hart [2019] WASC 4
The State of Western Australia v Penny [2022] WASC 136
The State of Western Australia v ZSJ [2020] WASC 330
FORRESTER J:
Introduction
This is an application made by the State of Western Australia on 22 December 2021 for a restriction order to be made in respect of the respondent, Levi Aaron Penny, pursuant to the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
On 22 April 2022, a preliminary hearing pursuant to s 46 of the HRSO Act was held before Derrick J.[1] His Honour was satisfied that there were reasonable grounds to believe that the court might find the respondent to be a high risk serious offender. His Honour ordered that the application for a restriction order be heard on 11 November 2022 and ordered that the respondent be made subject to an interim supervision order pursuant to s 58(5) of the HRSO Act.
[1] The State of Western Australia v Penny [2022] WASC 136.
On the application for a restriction order, the matters I must decide are:
(1)whether the respondent is a high risk serious offender, within the meaning of s 7 of the HRSO Act; and, if so
(2)whether to make an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order)[2] or that he be released into the community subject to conditions that the court considers appropriate (supervision order).[3]
[2] HRSO Act s 26.
[3] HRSO Act s 27.
The application
When the application was made on 22 December 2021, the respondent was serving a term of imprisonment of 5 years, imposed by Corboy J on 2 May 2018.[4] The sentence was structured as follows:
(1)armed robbery contrary to s 392(c) of the Criminal Code – 2 years' imprisonment (head sentence);
(2)attempted armed robbery contrary to s 392(c) and s 552(2)(a) of the Criminal Code – 1 year imprisonment, cumulative; and
(3)armed robbery contrary to s 392(c) of the Criminal Code – 2 years' imprisonment, cumulative.
[4] The respondent was eligible for parole, but parole was refused see Book of Materials for the Restriction Order Hearing Volume 2 filed 12 September 2022, 626 - 627 (Book of Materials Vol 2).
The sentence was backdated to 9 March 2017.
After the above sentence was handed down:
(1)on 21 June 2018, the respondent was sentenced to 2 years' imprisonment, to be served concurrently, for one offence of home burglary, committed on 14 November 2016;[5]
(2)on 15 July 2019, the respondent was sentenced to 4 months' imprisonment, to be served concurrently, for one offence of assault public officer, committed on 24 January 2018;[6] and
(3)on 29 June 2021, the respondent was sentenced to 2 months' imprisonment, to be served cumulatively, for one offence of assault public officer, committed on 1 March 2021.[7]
[5] Book of Materials Vol 2, 750.
[6] Book of Materials Vol 2, 755.
[7] Book of Materials Vol 2, 759.
The respondent's total sentence expired on 8 May 2022.
The offences of armed robbery and attempted armed robbery are serious offences under the HRSO Act.[8] Accordingly, the respondent was, at the time the application was made, 'a serious offender under custodial sentence'[9] who was not a serious offender under restriction within the meaning of s 35 of the HRSO Act.
[8] HRSO Act s 5 and sch 1, sub-div 3 item 34.
[9] HRSO Act s 3, s 5.
The respondent presently awaits trial on a charge of assaulting a public officer, arising out of an incident in custody prior to the respondent being released from custody.[10] In my view, it was not in the interests of justice to defer the hearing of the restriction order hearing until that charge was dealt with.[11]
[10] Book of Materials Vol 3, 1000
[11] HRSO Act s 46(3)
Evidence adduced at the hearing
The State produced a Book of Materials comprised of three volumes, containing the criminal history of the respondent and detailed evidence relating to it, including statements of material facts and transcripts, the respondent's custodial history, program completion reports relating to the various programs undertaken by the respondent while in custody, parole and other assessment reports, and reports prepared for this hearing, specifically:
(1)report of Dr Natalie Pyszora, Consultant Forensic Psychiatrist, dated 30 September 2022;
(2)report of Dr Tara Yewers, Counselling Psychologist, dated 1 October 2022;
(3)Community Supervision Assessment of Rhonda Sunderland, Senior Community Corrections Officer, dated 28 October 2022; and
(4) Proposed Treatment Plan of Valerie Thatcher, HRSO Planning Manager, dated 21 October 2022.
Pursuant to s 84(5) of the HRSO Act, in this hearing the court may receive into 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 proceeding 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 section 7(3) relating to the offender.
There is plainly a significant body of material I am required to have regard to by reason of s 7(3) of the HRSO Act which is contained in the Books of Materials.
However, there is also a very significant body of material contained in Volume 1 of the Books of Material which is of very limited, if any, probative value.[12] For example, there are numerous Incident Description Reports contained between pages 38 and 226 of Volume 1 which name the respondent but include no information whatsoever as to his alleged involvement in the incident referred to. Others constitute bare assertions of facts with no indication of how they might have been ascertained or proved.
[12] Book of Materials for the Restriction Order Hearing Volume 1 filed 12 September 2022 (Book of Materials Vol 1).
There are also 67 pages of medical records which, in the main, require a medical practitioner to properly explain them before they could be relied upon.[13]
[13] Book of Materials Vol 1, 366 - 433.
In Volume 2, there are numerous Statements of Material Facts, but in many cases, no indications as to whether these were actually accepted by the respondent at sentencing or, at least, accepted by the sentencing Judge.[14]
[14] See for example Book of Materials Vol 2, 629 - 631.
While the court has discretion to receive the materials, as they fall within the ambit of material described in s 84(5), much of the material could in no way be properly described as acceptable or cogent. In this judgment, I will only refer to the material which can be so described.
The State also called Dr Pyzsora, Dr Yewers and Ms Sunderland to give evidence at the hearing.
Index offending
INS 11 of 2018
On 3 March 2017 at about 8.15 pm, the respondent entered a Subway store in Cooloongup armed with a metal letterbox pole which was about one metre long. Two staff members were at the store. The respondent swung the pole in a baseball style fashion, smashing the display screen of the register. The respondent yelled out, 'Give me the fifties and twenties!' One of the victims handed the respondent approximately $1,088.00 in cash from the till. The respondent then left the store.[15]
[15] Book of Materials Vol 2, 618 - 619.
On Monday 6 March 2017 at about 12.40 pm, the respondent went to Supa Foods in Hamilton Hill, and walked about the store with the intention of returning later to commit an armed robbery. He returned at about 4.20 pm. Three staff members were present. The respondent waved a tyre iron, which was approximately 50 cm long, at the first victim, and said, 'Give me all the money out of the till!' He then pulled out a 30cm long fishing knife from under his jumper, held it up at his chest height and shouted again, 'Give me the money in the till!' The second victim yelled out for help, at which point the respondent hit the front till with the tyre iron with considerable force. The second victim armed herself with a metal pole, screamed at the respondent to leave and said that police would be called. The respondent then ran out of the store.[16]
[16] Book of Materials Vol 2, 619.
On Monday 6 March 2017 at about 10.20 pm, the respondent was at Domino's in Jindalee. Two staff members were at the store. The respondent entered the store holding a pair of bolt cutters which were approximately half a metre in length. The respondent smashed the bolt cutters down on the counter and yelled, 'Where is the till?' The first victim gave the respondent two fifty dollar notes from the till. The respondent produced a knife from under his clothes, demanded more cash and yelled, 'Where is the other till and the safe?' The respondent lunged at the first victim and swung the knife at him. The respondent then jumped over the counter, still holding the knife and bolt cutters. After searching further for a safe and another till, the respondent walked towards the first victim holding the knife up in front of him. The respondent asked the first victim where his phone and wallet was, but the victim said he had neither. The respondent then ran out of the store.[17]
[17] Book of Materials Vol 2, 619 - 620.
The accused was arrested on 9 March 2017.[18]
[18] Book of Materials Vol 2, 610.
Statutory framework and legal principles
The objects of the HRSO Act are:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b) to provide for continuing control, care or treatment of high risk serious offenders.[19]
[19] HRSO Act s 8.
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[20]
[20] Garlett v The State of Western Australia [2022] HCA 30 [55] - [56].
The term 'high risk serious offender' is defined in s 7(1) of the HRSO Act as follows:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
A 'restriction order' means a continuing detention order or a supervision order.[21] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[22] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[23]
[21] HRSO Act s 3.
[22] HRSO Act s 3, s 26(1).
[23] HRSO Act s 3, s 27(1).
Relevantly, an offence is a 'serious offence' if it is an offence listed in sch 1 div 1 of the HRSO Act,[24] which includes robbery.[25]
[24] HRSO Act s 5.
[25] HRSO Act sch 1 div 1 sub-div 3, item 34.
The State has the onus of satisfying the court in accordance with s 7(1).[26]
[26] HRSO Act s 7(2).
When considering whether it is satisfied that a person is a high risk serious offender, the court must have regard to the matters set out in s 7(3).
In considering whether it is satisfied as required by s7(1), the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[27]
[27] HRSO Act s 7(4).
The jurisprudence established in respect of the Dangerous Sexual Offences Act 1995 (WA) (repealed) is relevant in construing and applying the HRSO Act, with necessary adaptation.[28]
[28] The State of Western Australia v ZSJ [2020] WASC 330 [30] - [31].
The words 'high degree of probability' import more than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt but are otherwise not capable of further definition.[29] The court is required to identify what it is that constitutes the risk and what makes it unacceptable, thereafter considering whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.[30]
[29] The Director of Public Prosecutions (WA) v GTR (2008) WASCA 187 [28] - [34].
[30] The Director of Public Prosecutions (WA) v GTR [34].
In The State of Western Australia v Garlett,[31] Corboy J considered that s 7(1) of the HRSO Act (in conjunction with s 48) requires the court to assess two separate matters. The first is whether a risk that an offender will commit a serious offence is unacceptable. The second is, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.
[31] The State of Western Australia v Garlett [2021] WASC 387 [135].
In Garlett v The State of Western Australia[32] the court said:
Whether or not a risk that an offender will commit a "serious offence" is "unacceptable" is a question which requires the court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is "necessary" to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.
[32] Garlett v The State of Western Australia [73].
The meaning of 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams[33] in the following terms:
In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
[33] Director of Public Prosecutions v Williams [2007] WASCA 206 [63].
If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make a continuing detention order or, except as provided in s 29, a supervision order. In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[34]
[34] HRSO Act s 48.
In The State of Western Australia v Garlett, [35] Corboy J stated:
…the court should choose, as between a continuing detention order and a supervision order, the order that is 'least invasive or destructive' of a person's right to be at liberty while ensuring an adequate degree of protection of the community. That constraint also applies in determining the non-standard conditions (if any) of a supervision order. Moreover, as Hall J pointed out in Director of Public Prosecutions v Decke[36] '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order'.
[35] The State of Western Australia v Garlett [143].
[36] The Director of Public Prosecutions v Decke [2009] WASC 312 [14].
The HRSO Act does not require that there be no risk of reoffending. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. [37]
[37] The Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33].
The court cannot make a supervision order in relation to an offender unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[38]
[38] HRSO Act s 29.
The standard conditions of a supervision order are set out in s 30 of the HRSO Act and include the requirement that the offender not commit a serious offence during the period of the order.[39]
[39] HRSO Act s 30(2)(f).
In determining whether an offender 'will substantially comply with the standard conditions of the order':
[t]he 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 object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious…offence.[40]
[40] The State of Western Australia v Hart [2019] WASC 4 [52].
Matters to be considered pursuant to s 7(3) HRSO Act
Antecedents and criminal history - s 7(3)(g)
Family background and relationships
The respondent is a 26‑year-old man of Aboriginal descent. His childhood was one of transiency, instability, criminality, neglect, and trauma.[41]
[41] Book of Materials for the Restriction Order Hearing Volume 3 filed 28 October 2022, 902 - 903 (Book of Materials Vol 3).
The respondent was born and raised in Perth, as one of four children to his biological parents' union. He also has six half‑siblings.[42] At a young age, the respondent was exposed to illicit substance abuse and domestic violence perpetrated against his mother by his biological father and his mother's later partners.[43] He also witnessed the traumatic removal of his two youngest siblings from his mother's care by the Department of Child Protection (DCP).[44]
[42] Book of Materials Vol 3, 902 [20].
[43] Book of Materials Vol 3, 902 - 903 [20] - [22].
[44] Book of Materials Vol 3, 903 [21].
When the respondent was 4 years old, his younger brother passed away from sudden infant death syndrome. Following this, his mother's functioning deteriorated and she was ultimately imprisoned for a lengthy period, at which point the respondent was placed in the care of the DCP.[45]
[45] Book of Materials Vol 3, 902 - 903 [20].
The respondent described himself and his two brothers as having been the subject of physical, emotional and sexual abuse while in State care. From the age of 8 years of age, when the sexual abuse against him commenced, the respondent began to display behavioural problems and disengage from school.[46] Eventually, the foster placement broke down, but this also resulted in the respondent and his siblings being separated.[47]
[46] Book of Materials Vol 2, 775.
[47] Book of Materials Vol 2, 586 [22].
On his mother's release from prison, the respondent frequently absconded from his placement to be with her.[48]
[48] Book of Materials Vol 2, 774.
When the respondent was 11 years old, his father was the victim of an assault which resulted in permanent physical and cognitive injuries. His father lives in a care home. Since being released, the respondent has only visited his father once, an experience he described as 'upsetting'.[49]
[49] Book of Materials Vol 3, 903 - 904, 958 [117].
In 2009, the respondent was reported to have a strong desire to reside with his mother, who was supportive of this arrangement.[50] However, their accommodation was unstable and at times the respondent needed to stay with other relatives, who were not considered to be suitable.[51] In 2018, the respondent reported that his mother desired a relationship with him but he felt it was too late.[52] He told Dr Yewers that his mother has a further three years to serve in prison. The respondent did not envision having an ongoing relationship with her but indicated he may visit her at some stage.[53]
[50] Book of Materials Vol 2, 763.
[51] Book of Materials Vol 2, 770 - 771.
[52] Book of Materials Vol 2, 593 [2].
[53] Book of Materials Vol 3, 904 [24].
The respondent reports having had several prior relationships, none of which were long-lasting. He has an 11‑year‑old daughter from a previous relationship but has no contact with her.[54]
[54] Book of Materials Vol 3, 904 [25].
The respondent has been with his current partner for eight years, most of which he has spent in prison. They have a five‑year‑old son together. The respondent describes his partner in positive terms. It would appear she is a prosocial and stable source of support for him,[55] although it is alleged that on one occasion in 2015, she did try to provide him with drugs in prison.[56]
[55] Book of Materials Vol 3, 904 [26].
[56] Book of Materials Vol 2, 833.
In December 2016, there was an incident between the respondent and his partner which resulted in a family and domestic violence report. The respondent did not wish his partner to have a job and attended her workplace and was shouting and screaming. Eventually he had to be removed, at which point he was making threats.[57]
[57] Book of Materials Vol 3, 878 - 880.
There were further incidents involving property damage on 29 December 2016 and 12 January 2017, which occurred in the course of arguments.[58] There were no allegations of physical assault. However, in October 2017, during a prison visit, the respondent apparently punched his partner in the face while she was holding their baby.[59] Finally, in June 2022, the respondent's partner called the police after an argument between her and the respondent, which resulted in a 24 hour separation order being made.[60]
[58] Book of Materials Vol 3, 882, 886.
[59] Book of Materials Vol 2, 603.
[60] Book of Materials Vol 3, 889.
The respondent's son appears to be a significant motivating factor. When speaking with Dr Yewers, the respondent placed importance on developing a relationship with his son and being a father to him.[61]
Education and employment
[61] Book of Materials Vol 3, 904 [26].
The respondent's school attendance was generally poor.[62] He apparently last attended in year 6 and had not gone back. However, he reported that he is literate and well able to read and write,[63] apparently as a result of further education in detention.[64]
[62] Book of Materials Vol 2, 763.
[63] Book of Materials Vol 3, 906 [35].
[64] Book of Materials Vol 2, 593 [3].
Departmental records indicate that the respondent has no employment history[65] and as late as 2020 did not appear to be motivated to be employed in any capacity.[66] However, since his release on the interim supervision order in May 2022, the respondent obtained placement through an organisation called Thrive, which finds employment for ex‑offenders, and he has been employed full time since August 2022.[67]
Substance abuse
[65] Book of Materials Vol 2, 867.
[66] See for example Book of Materials Vol 2 867, 870.
[67] Book of Materials Vol 3, 954 [95].
The respondent first experimented with alcohol at the age of nine and was consuming it regularly at the age of 12. He described drinking to excess, to the point of not remembering what happened.[68]
[68] Book of Materials Vol 2, 789.
The respondent first experimented with cannabis at the age of 10 and used it daily when not in custody. His accounts of the age at which he started using amphetamines and injecting them has varied, but it appears he was around 13 years old when he first injected them, and soon was using them daily.[69]
[69] Book of Materials Vol 2, 585 [18], 789.
The respondent acknowledged drug use during his prison sentence, telling Dr Pyszora he used Subutex.[70] He told Dr Pyszora that at the time of the index offences he had taken 'flakka', a synthetic drug, which made him psychotic.[71]
Medical and psychiatric history
[70] Book of Materials Vol 3, 954 [98].
[71] Book of Materials Vol 3, 981 [235].
The respondent has no reported medical or psychiatric conditions.
Criminal history
The respondent has an extensive criminal history, with contact with the criminal justice system commencing when he was just 10 years old. He committed his first violent offence at the age of 12. The majority of the gaps in the respondent's offending appear to correlate with periods of incarceration.[72] The most significant offending is summarised below.
Relevant adult convictions
[72] Book of Materials Vol 1, 1 - 18.
Aside from the index offending described above, the respondent has no other convictions for serious offences as an adult.
As an adult, the respondent has convictions for burglary, stealing and criminal damage and has, in the majority of cases, been sentenced to terms of immediate imprisonment for that offending.[73]
Relevant juvenile convictions
[73] Book of Materials Vol 1, 1 - 3.
The respondent was first dealt with in the Perth Children's Court in March 2006, when he was just 10 years old. Since then, he has accumulated an extensive criminal record, having been dealt with for 49 burglaries (most of which were of dwellings), as well as stealing, criminal damage, common assault, being armed in circumstances so as to cause fear, disorderly behaviour and breaching court orders.[74]
[74] Book of Materials Vol 1, 4 - 18.
The respondent was dealt with for committing three 'serious' offences:
CC 8117 of 2009 - Aggravated robbery
On 27 December 2009, at the age of 13 years, the respondent was with two female co-offenders. The three of them approached a woman at a train station. The two co-offenders assaulted the victim while the respondent wrested the woman's handbag from her.[75]
[75] Book of Materials Vol 1, 456.
On 11 February 2010, the respondent was sentenced to 3 months' detention for this offence.[76]
RO 298 of 2013 - Aggravated robbery
[76] Book of Materials Vol 1, 10.
On 11 April 2013 at about 4.00 pm, the 17‑year-old respondent, in company with his brother, approached the victim outside Rockingham Train Station. The respondent said to the victim, 'Hand your phone over or I will knock your teeth out.' The victim immediately handed his phone to the respondent, who ran away from the scene with his brother. The respondent admitted the offence in a later electronic record of interview, saying he had exchanged the phone for drugs.[77]
[77] Book of Materials Vol 1, 489, 520
On 19 September 2013, the respondent was sentenced to 4 months' detention for this offence.[78]
CC 2513 of 2013 - Aggravated robbery
[78] Book of Materials Vol 1, 4.
On 25 April 2013 at about 12.50 pm, the respondent was with two co-offenders at a train station. The victim was sitting in the middle of a metal row of seats. The respondent and one co-offender sat on either side of the male victim while the other co-offender stood over the victim. They demanded the victim hand over his mobile phone, iPod and wallet. The victim complied. The respondent removed $5.00 cash and an ATM card from the victim's wallet before returning it to him. The victim also provided the PIN numbers to his mobile phone and ATM card after one of the co-offenders threatened to bash him.[79]
[79] Book of Materials Vol 1, 490 - 491, 520.
On 19 September 2013, the respondent was sentenced to 12 months' detention for this offence.[80]
Conduct while in custody
[80] Book of Materials Vol 1, 4.
During his most recent sentence, the respondent was charged and found guilty of two prison offences.[81] One conviction relates to the respondent's assault on his partner in custody.[82] The respondent also disobeyed the lawful order of a prison officer by refusing to return to his cell during an emergency muster.[83]
[81] Book of Materials Vol 2, 848 - 849.
[82] Book of Materials Vol 2, 865.
[83] Book of Materials Vol 2, 865.
The respondent was also charged and convicted of two offences of assaulting a public officer, in each case a prison officer.[84] In one incident on 1 March 2021, he punched an officer, causing facial contusions and lacerations, and the removal of four teeth.[85] He still has an outstanding charge of assaulting a public officer related to conduct prior to his release on the interim supervision order.
[84] Book of Materials Vol 1, 1.
[85] Book of Materials Vol 3, 920 [88].
Out of four random urinalysis tests, one came back positive for buprenorphine.[86]
Previous Response to Supervision
[86] Book of Materials Vol 2, 849.
The respondent has not been subject to any supervision as an adult.
The respondent was the subject of a Youth Conditional Release Order for 5 months from 29 October 2010.[87]
[87] Book of Materials Vol 1, 9.
On 24 December 2008, an Intensive Youth Supervision Order (IYSO) was imposed on the respondent for a period of 6 months. While the respondent may have committed some minor offences while on the order,[88] it appears he satisfactorily completed it.
[88] Book of Materials Vol 1, 13.
A second IYSO was imposed on the respondent for 6 months on 25 March 2009. The offender was later sentenced to a period of detention for three counts of breaching that order.[89]
[89] Book of Materials Vol 1, 10 - 11, 13 - 15.
A Post Sentence Supervision Order (PSSO) of 12 months' duration was made in relation to the respondent in anticipation of his release from custody on 8 May 2022. However, the imposition of the interim supervision order resulted in the automatic cancellation of the PSSO, [90] and it cannot be reinstated if the respondent is found not to be a high risk serious offender.
Reports prepared under s 74 for hearing of the application and the extent to which the respondent cooperated in the examination - s 7(3)(a) HRSO Act
Report of Dr Natalie Pyszora, dated 30 September 2022
[90] HRSO Act s 108(5).
Dr Pyszora interviewed the respondent on 20 September 2022. Given that he had evident ongoing symptoms of complex PTSD at interview, she did not take an extensive history from him relying instead on the information contained in other reports, already summarised above.[91] However, the respondent complied fully with the process.
[91] Book of Materials Vol 3, 949 [76].
The respondent reported to Dr Pyszora that he had undertaken employment and was working full time. He was pleased to be earning good money, was proud about the fact that he had a home, a family and a car, and was feeling good about his 'normal lifestyle' of work and not using drugs.[92]
[92] Book of Materials Vol 3, 954 [96] - [97].
The respondent reported that he still argues with his partner, mainly triggered by jealousy from both parties. According to him, they have had one heated argument since his release, which resulted in his partner calling the police and a 24-hour order being issued.[93] The respondent says they are communicating better about issues lately.[94]
[93] Book of Materials Vol 3, 889, 957 [112].
[94] Book of Materials Vol 3, 956 [106] - [107].
In July 2022, the respondent breached his interim supervision order by attending a family funeral and drinking alcohol. Since then, he has cut ties with his family and feels stronger for it.[95] He does not have prosocial relationships beyond his partner and her immediate family.[96]
[95] Book of Materials Vol 3, 958 [115].
[96] Book of Materials Vol 3, 959 [118].
The respondent appeared to Dr Pyszora to be genuinely motivated to improve his communication and relationship skills, although she did not then have the family and domestic violence reports, so she was unable to address them with him.[97]
[97] Book of Materials Vol 3, 983 [245].
Dr Pyszora said that the respondent described being focused on building a structure to his life and said he was strongly motivated not to return to prison. He is attending the gym and finds training assists him with his temperament. He copes with frustration by meditating.[98]
[98] Book of Materials Vol 3, 983 [247].
Dr Pyszora is of the opinion that the respondent fulfils criteria for diagnoses of complex PTSD, antisocial personality disorder and severe substance use disorder.[99]
[99] Book of Materials Vol 3, 984 - 985.
The respondent's PTSD has arisen from his multiple and complex traumas throughout childhood and adolescence. The treatment is largely psychological. Similarly, some aspects of his antisocial personality disorder depend on his response to treatment, which is primarily psychological and managing criminogenic risk factors. Both conditions are very relevant to some of his impulsivity and some of his reactions to anger.[100]
[100] ts 34 - 35.
Dr Pyszora referred to research which shows that adults with high exposure to Adverse Childhood Experiences (ACEs) have much higher rates of psychiatric, addictive and medical illnesses in adulthood. Each additional ACE substantially increases the risk of becoming a serious, chronic and violent juvenile offender. Factors which were highly predictive of a young person becoming a serious, chronic and violent offender include having an incarcerated household member and physical abuse.[101]
[101] Book of Materials Vol 3, 986 [262] - [263].
Dr Pyszora administered risk assessment instruments but noted that they should be used with caution when in relation to Aboriginal individuals. The major risk factors and commonly used risk assessment scales predict recidivism for Indigenous offenders, but with less accuracy than for non-indigenous offenders. Despite this, she said, the available research supports the use of empirically validated structured risk assessments with offenders of indigenous heritage.[102]
[102] Book of Materials Vol 3, 987 - 988 [268] - [269].
Dr Psyzora administered the Hare Psychopathy Checklist‑Revised; Har, 2003 (PCL-R) rating scale. This allows the reliable identification of traits of psychopathy, a form of personality disorder. While not designed as a risk assessment instrument, the PCL-R is considered to be an important consideration in assessing risk. Psychopathy is also strongly associated with the nature and severity of violence.[103]
[103] Book of Materials Vol 3, 988 [270].
Dr Pyszora omitted one item on the basis that that respondent has spent most of his life in custody, but generated a pro-rated score. On that basis, the respondent scored in the lower end of the moderate range for psychopathy, and his positive scoring was consistent with his diagnosis of antisocial personality disorder.[104]
[104] Book of Materials Vol 3, 988 [272]; ts 36 - 37.
The HCR-20 V3[105] was also administered. This provides a Structured Professional Judgment (SPJ) approach to violence risk assessment. SPJ provides assessors with empirically based frameworks to help support and organise their knowledge and inform risk assessment processes, including identifying opportunities for interventions or managing risk. As such, SPJ focuses on the prevention and management of future violence, rather than an exact probability of likely future violence.[106]
[105] Historical, Clinical and Risk Management 20, Version 3; Douglas, Hart and Webster, Belfrage 2013 as cited in Book of Materials Vol 3, 989.
[106] Book of Materials Vol 3, 989 [274]
The historical risk factors present for the respondent were a history of problems with: violence, other antisocial behaviour, relationships, employment, substance use, personality, traumatic experiences, violent attitudes, and treatment or supervision response. A history of problems with major mental disorder was partially present having regard to his diagnosis of complex PTSD.[107]
[107] Book of Materials Vol 3, 989 - 990 [277] - [286].
Clinical risk factors partially present were recent problems with: violent ideation or intent, symptoms of major mental disorder, instability, treatment or supervision response. He has recent problems with insight, in that he still appears in a self-reliant survival mode and is only gradually allowing himself to accept the need for support from professional services and government agencies.[108]
[108] Book of Materials Vol 3, 991 - 992 [287] - [293].
Risk management factors are partially present, being future problems with personal support, and stress or coping. Dr Pyszora also assessed that the respondent may possibly have future problems with his living situation and treatment or supervision response.
The latter two are connected and will depend on whether a supervision order is imposed, and the conditions of any such order. Dr Pyszora considers that it will be important for the respondent to have sufficient support and structure to manage his risks without them being so onerous that they lead to non-risk related breaches. As she observes, such an outcome may result in imprisonment, which may well result in the termination of the respondent's relationship. In such circumstances the respondent will likely resume drug use, which would present a high risk situation.[109]
[109] Book of Materials Vol 3, 992 - 993 [295], [298].
Dr Pyszora expressed the view that the respondent:
…could present a high risk of committing a serious offence of armed robbery if his partner left him and he relapsed into amphetamine addition as he would quickly have little to lose, and a return to prison would not be a deterrent. However, if the current protective factors of work, relationship, avoidance of substance use and avoidance of antisocial peers continue, his risk should be well managed.[110]
[110] Book of Materials Vol 3, 993 - 994 [304].
The most likely serious offence the respondent would commit would be an armed robbery of a store, or a stranger. He may be armed with an improvised weapon and use this to make threats. It would be in the context of relapse of significant substance misuse and is likely to be intoxicated, but also emotionally dysregulated.[111] It is unlikely he would intend to cause physical harm, although he could do so. Any psychological harm would likely be serious.[112]
[111] ts 39.
[112] Book of Materials Vol 3, 994 [306].
Such a scenario would likely only occur when he was intoxicated with amphetamines or other drugs, had relapsed into dependency, and was angry or emotionally dysregulated.[113]
[113] Book of Materials Vol 3, 994 [307].
Dr Pyszora was of the opinion that, having regard to the respondent's history, he has 'done amazingly well' since his release in May 2022 and has shown 'a surprising motivation and ability to commit to work and to living free of drugs'. Concerns remain about the potential risk of family violence and exposing the respondent's son to such behaviour, but the respondent's prime motivator is building a family life.[114]
[114] Book of Materials Vol 3, 987 [267].
Dr Pyszora was of the view that, in the initial three months, his partner's support and his family motivation contributed to the respondent's compliance with his interim supervision order. However, since August, the other major factor has been getting into employment.[115]
[115] ts 35.
Dr Pyszora considers that, with continued structure and support, the respondent has significant potential to develop a prosocial life.[116]
[116] Book of Materials Vol 3, 987 [267].
Dr Pyszora gave evidence consistently with her report. She reported that the respondent told her he didn't want the assistance of the Community Offender Management Unit. He has been self-reliant all his life and he wants to do things for himself. Dr Psyzora considered he may feel some shame in seeking help. However, she observed that, positively, since the interim supervision order was imposed, it appears he has been beginning to accept that some assistance might be useful, and is more open to psychological therapy too.[117]
[117] ts 37 - 38.
Ultimately, Dr Pyszora was of the view that, if the respondent were not subject to a restriction order, he may present a high risk of committing a serious offence.[118] She said:
The difficulty is knowing what dynamic risk factors are going to arise in the future. So if there were a situation where Mr Penny through his own efforts remained free of substances, complied with necessary group based treatment to manage some of the other risks, if his relationship went very well, he didn't have any stressors within his relationship and he managed his antisocial associates, it's possible that he wouldn't commit another serious offence. However, if those dynamic factors did arise and, in my opinion, they are likely to arise without a supervision order then he would present a high-risk of serious offending.[119]
[118] Book of Materials Volume 3, 995 [312].
[119] ts 40.
In terms of the conditions recommended to be included in any supervision order, Dr Pyszora considered conditions which required the respondent to disclose relationships to his CCO and, if required, to disclose his offending to any person with whom he is in a relationship. These were important due to his apparent reluctance to discuss his associations with his CCO.[120]
[120] ts 41 - 42.
For the same reason, Dr Pyszora recommended that the respondent be required to make his electronic devices accessible to his CCO and to abide by various conditions in relation to those devices. Dr Pyszora regarded this as a reasonable and necessary level of extra oversight.[121]
[121] ts 42 - 43.
Dr Pyszora also recommended that the respondent be prevented from going to licensed premises where the primary focus is alcohol while allowing him to go to prosocial venues where alcohol may be available.[122]
[122] ts 43.
While Dr Psyzora did not oppose a condition permitting the respondent's CCO to place him on a curfew, she did not consider such a condition to be necessary.[123]
[123] ts 44.
Dr Pyszora recommended a supervision order of 2 years' duration.[124]
Report of Dr Tara Yewers, Counselling Psychologist, dated 1 October 2022
[124] Book of Materials Vol 3, 995 [312], 43.
The respondent made several comments to Dr Yewers to the effect that an order is unnecessary, it is hindering his ability to reintegrate into the community and it is unreasonable for his juvenile convictions to be discussed. Dr Yewers noted that the respondent was easily able to move his attention to the interview without lingering on these points.[125]
[125] Book of Materials Vol 3, 902 [19].
The respondent described needing to make his own life and was aware of how his background was affecting him. Dr Yewers reported that the respondent advised he was considering engaging in private psychological treatment to address this.[126]
[126] Book of Materials Vol 3, 903 - 904 [23].
The respondent informed Ms Yewers that, since being released, he has largely avoided seeing antisocial family members, aside from engaging in conversations over the phone. The respondent acknowledged the potential negative influence these people may have over him and would only possibly be in some contact with them after he has established himself in the community.[127]
[127] Book of Materials Vol 3, 904 [24].
The respondent describes his relationship with his partner and the mother of his child as being supportive and stable, despite some recent hardships. She will not permit his family to visit their home, and he acknowledges that, should he persist with his criminal lifestyle, the relationship will likely end.[128]
[128] Book of Materials Vol 3, 904 [26].
In October 2017, the respondent physically assaulted his partner during a prison visit. The respondent told Dr Yewers that this was the only instance of physical violence between the couple. The respondent agreed that in the past he has become aggressive towards his partner by breaking things.[129] However, they have been working on their communication and he says their arguments aren't what they used to be.[130] It is also noted that many of the prior incidents were in the context of drug use by the respondent.[131]
[129] Book of Materials Vol 3, 904 [27].
[130] Book of Materials Vol 3, 904 - 905 [28].
[131] Book of Materials Vol 3, 905 [30].
The respondent is not presently focused on friendships, having distanced himself from antisocial peers and family, but told Ms Yewers he would try to develop a prosocial network through his work and the gym.[132]
[132] Book of Materials Vol 3, 905 - 906 [32] - [34].
Ms Yewers noted that, for the first time, the respondent was engaged in full-time employment in the construction industry, that he enjoyed working and was gratified to be earning a regular wage.[133]
[133] Book of Materials Vol 3, 906 - 907 [37] - [38].
In relation to his substance use, the respondent was able to reflect on his reasons for abusing substances, and the adverse effects of the substances on him and his behaviour. He cited his responsibilities and commitments to his son as motivation for abstention.[134]
[134] Book of Materials Vol 3, 907 - 908 [41] - [43].
The respondent was also able to describe a number of stressful situations he has had to deal with since his release and articulated how he had been able to better respond to the emotional intensity and conflicts which arose.[135]
[135] Book of Materials Vol 3, 909 [47] - [49].
The respondent acknowledged to Ms Yewers that he had a history of poor behaviour in custody. He said he was unhappy, sad and angry and he had a negative mindset as a result of his lengthy sentence[136]
[136] Book of Materials Vol 3, 920 [89].
The respondent expressed frustration with the Interim Supervision Order, saying it was holding him back. However, he also has said that his supervisory relationship with his SCCO is 'going all right' and that Ms Sunderland was 'just doing her job.'[137]
[137] Book of Materials Vol 3, 922 [96].
The respondent expressed some ambivalence about attending the community-based Respect and Connect Program, but accepted that it may assist him in managing disagreements, and that he would 'just get on with it and take what I can get from it.'[138] In evidence, Dr Yewers said she considered this demonstrated a certain level of maturity on the part of the respondent.[139]
[138] Book of Materials Vol 3, 922 [98].
[139] ts 57.
The respondent articulated his future goals in relation to employment and life skills, and his family. He said he is 'done trying to be that person' in relation to his previous behaviour and, while he said, 'it's early days, considering my history', he expressed a desire to build a prosocial life. He considers his risk of violence is minimal, unless responding to violence, because he is better able to manage his emotions and proactively address problems.[140] He identified remaining abstinent from illicit substances as foremost in managing his risk.[141]
[140] Book of Materials Vol 3, 923 [100] - [101].
[141] Book of Materials Vol 3, 923 [102].
Ms Yewers assessed the respondent's risk of violent recidivism using the Violence Risk Scale (VRS). 'Violence' is not restricted to violent crimes; it includes all violent behaviour.[142] The respondent had a number of static and dynamic factors relevant to his risk. In relation to the dynamic factors, those which received a score indicating that the risk factor is present, significant and related to violence recidivism risk are: violent lifestyle, criminal peers, interpersonal aggression, emotional control, substance abuse, violence cycle and impulsivity. Other factors considered to be criminogenic are criminal attitudes, work ethic, violence during institutionalisation, weapon use, insight into violence, stability of relationships with significant others and cognitive distortions.[143]
[142] Book of Materials Vol 3, 925 - 926 [112] - [113].
[143] Book of Materials Vol 3, 927 - 931.
The respondent's VRS score indicated he was in the high risk level for any violent recidivism. Among offenders in the normative sample for the VRS, 44.5% of those with scores in this range offend again within 4.4 years.[144]
[144] Book of Materials Vol 3, 932 [137].
Ms Yewers applied the PCL-R instrument and the respondent's score fell in the low range, indicating low likeness to the construct of psychopathy.[145]
[145] Book of Materials Vol 3, 933 [142] - [144].
In Ms Yewers' view, the respondent's most likely risk scenario involves a relapse to drug use and may portend crime for instrumental reasons, such as monetary gain to support and drug habit. It may therefore involve burglary and stealing, but equally robbery, including an armed robbery. He would likely be under the influence of drugs at the time, increasing his impairment, impulsivity and disinhibition, risk of recklessness and disregard for others. A weapon would further increase the potential risk.[146]
[146] Book of Materials Vol 3, 934 [145].
Dr Yewers assessed the respondent as a high risk of committing a serious offence in the future if not subject to a restriction order. While she considered he has a number of protective factors in place which are presently moderating that risk, they are relatively recent given his history.[147]
[147] Book of Materials Vol 3, 934 [149] - [152].
Dr Yewers stated:
Monitoring and oversight are recommended, particularly around Mr Penny's drug use, intimate relationship, and peer associations. However, the guiding goal should be for self-management. Therefore, the intensity of the scrutiny should be sensitive to and reflective of Mr Penny's ability to manage himself.
Over time, as Mr Penny maintains his stability and adheres to the conditions imposed by an Order, it will be important for a graded reduction in the strictness and rigidity of the conditions to ensure that he has the opportunity for independence and self-management prior to the end date of his Order.[148]
[148] Book of Materials Vol 3, 935 [152].
Dr Yewers gave evidence consistent with her report.
In evidence, Dr Yewers said she considered that a curfew condition should be maintained so that it could be called upon in case his situation deteriorated, but thought on present circumstances it could be eased back and removed.[149]
[149] ts 59 - 60.
As a result of recent issues involving the respondent's apparent reluctance to disclose the resumption of his association with his brother, Dr Yewers supported the proposed conditions requiring that the respondent disclose his associations to his CCO and to disclose his previous offending to his associates if required, as well as the conditions permitting scrutiny of his electronic devices.[150]
[150] ts 60.
Dr Yewers also supported the condition preventing the respondent consuming alcohol, while allowing him to attend prosocial venues where alcohol was available, but which were not alcohol oriented.[151]
[151] ts 63.
In Dr Yewers' view, an order of 3 years' duration would be sufficient.[152]
Any other medical, psychiatric, psychological or other assessment relating to the respondent - s 7(3)(b) HRSO Act
Community Supervision Assessment, report of Rhonda Sunderland dated 28 October 2022
[152] Book of Materials Vol 3, 935 [152]; ts 61.
Ms Sunderland's report summarised the respondent's criminal history and programmatic intervention as set out above.
Ms Sunderland stated that the respondent has demonstrated sound compliance with the supervision component of the interim supervision order and reported as required, except for one missed appointment. Ms Sunderland noted that despite the respondent having to deal with what is likely a stressful period, having commenced fulltime employment, long travel distances during his initial period on the order, an injury to his partner and the increased number of attendances at Adult Community Corrections (ACC) for the assessments for the restriction order hearing, there have been no unfavourable information received regarding his movements or behaviour.[153]
[153] Book of Materials Vol 3, 1005.
The respondent is presently waitlisted for the Connect and Respect men's behavioural change program. While the respondent is disgruntled about being required to participate, he appears to be accepting of the requirement and has identified potential positive outcomes.[154]
[154] Book of Materials Vol 3, 1001.
The respondent had attended nine sessions with Senior Counselling Psychologist Mr David Summerton up until 29 July 2022. While the respondent engaged adequately, he verbalised reluctance to attend. When he commenced full time employment in August 2022 and indicated a preference to participate in the Connect and Respect program, his sessions with Mr Summerton were suspended.[155]
[155] Book of Materials Vol 3, 1005.
The respondent's substance misuse was addressed in the individual psychological counselling sessions, to avoid overwhelming the respondent with having to attend multiple appointments. With the cessation of those counselling sessions, Ms Sunderland notes that substance abuse counselling can be made available if required, but the Connect and Respect sessions take place twice a week for 3 months, and so substance abuse counselling has not been required at this time.[156]
[156] Book of Materials Vol 3, 1005.
The respondent has been directed to attend urinalysis testing on approximately 25 occasions. On four of those occasions, the sample provided returned low creatinine levels. The third occasion resulted in the respondent being charged with a contravention of his order. In no case has a positive result being returned, and all samples provided since 25 July 2022 have been valid and returned negative results.[157]
[157] Book of Materials Vol 3, 1006.
The respondent was issued a warning on 16 May 2022, as a result of the respondent consuming a can of premixed bourbon with his nephew the weekend before, something with the respondent voluntarily disclosed to Ms Sunderland.[158]
[158] Book of Materials Vol 3, 1006.
In evidence, Ms Sunderland said that she had noticed an improvement in the respondent's behaviour and attitude since his release in May, and that he seemed to be able to self-regulate his anger a little more in supervision.[159]
[159] ts 66.
The respondent failed to attend a scheduled supervision and psychological counselling appointment on 17 June 2022. He belatedly requested its rescheduling to later in the day to enable him to meet with Thrive Integration regarding potential employment. That was approved. However, when the respondent did attend, he failed to engage well and he was issued with a warning letter.[160]
[160] Book of Material Vol 3, 1006 - 1007.
It is noted that the night before was the incident in which the respondent and his partner had an argument during which the police were called and the respondent was issued a 24 hour separation notice.[161]
[161] This is referred to in Dr Pyszora's report at Book of Material Vol 3, 957 [112] and at Book of Material Vol 3, 889.
On 18 July 2022, the respondent attended ACC for urinalysis testing and was also meant to attend a supervision appointment. However, he left without attending the latter and he could not be contacted thereafter. He was charged with contravening his supervision order in respect of that matter.[162]
[162] Book of Materials Vol 3, 1007
The respondent has been issued written warnings for moving his GPS home beacon. According to the respondent, these movements were accidental.[163]
[163] Book of Materials Vol 3, 1007.
On 30 July 2022, the respondent contacted COMU staff, indicating that he might not be home prior to the commencement of his curfew. He said he had been at a funeral and needed to charge his anklet at his nephew's house. He was given an extension but failed to meet it. It appears he was locked out of his residence by his partner, and removed his beacon to an unapproved residence. The respondent was ultimately arrested at this residence and charged with contravening his order by removing his beacon, breaching his curfew, not residing at his home address and refusing to provide a sample of his breath for testing.[164]
[164] Book of Materials Vol 3, 1007.
On 14 October 2022, due to alerts on the respondent's GPS device, officers attended the respondent's address. No issues were detected but staff attending the residence saw a smoking implement and detected a strong smell of cannabis. The respondent told Ms Sunderland that his younger brother had been spending time at the house, although he claimed he has told his family he does not tolerate illicit substance use at his house.[165]
[165] Book of Materials Vol 3, 1008.
The respondent's employer has reported that the respondent attends on time, is grateful, polite and is becoming a role model for others.[166]
[166] Book of Materials Vol 3, 1008.
Ms Sunderland gave evidence which was consistent with her report. She said that the respondent was on a curfew between 7.30 pm and 5.00 am. It was usual, she said, that before assessments were completed, a curfew of about 12 hours was put in place. In the case of the respondent, it was changed slightly to accommodate his work. Ms Sunderland said it would be further reviewed in light of the assessments of Dr Pyszora and Dr Yewers.[167]
[167] ts 69 - 70.
Ms Sunderland was of the view that the respondent was reluctant to disclose his associations, which was the foundation for the proposed additional conditions regarding his relationships and devices.[168]
Report of Valerie Thatcher, HRSO Planning Manager, dated 21 October 2022
[168] ts 72 - 73.
The respondent has been offered 13 sessions of psychological counselling with Dr David Summerton and has recorded two absences, one of which was unauthorised. This counselling stopped after the respondent was remanded in custody on his arrest in July 2022 and did not resume due to the respondent's employment commencing.[169]
[169] Book of Materials Vol 3, 895 [9].
The respondent was also offered to attend an offender assessment interview for Connect and Respect, a men's domestic violence program run by Communicare. The respondent failed to attend for an appointment on two occasions, but did attend on the third occasion.[170]
[170] Book of Materials Vol 3, 895 - 896 [10].
Ms Thatcher confirmed that, if made subject to a Supervision Order, the respondent would have continued access to psychological counselling with Mr Summerton in the community, as well as access to the Connect and Respect Program.[171]
[171] Book of Materials Vol 3, 898 [22] - [23]..
Should a continuing detention order be made in respect of Mr Penny, it is proposed he continue to receive individual psychological counselling, and enrolment in programs will be facilitated should any outstanding treatment needs be identified.[172]
Previous Reports
[172] Book of Materials Vol 3, 899 [24].
The respondent's prolific offending as a juvenile means there is a very large number of psychological reports charting his teenage years. As to the respondent's tragic background, it was perhaps most effectively summarised in January 2010, at which time Tanina Oliveri, a Clinical and Forensic Psychologist, said of the respondent:
Levi has endured a highly traumatic and disrupted childhood. His life to date has been characterised by witnessing and being the victim of domestic violence; parental substance abuse; family criminality; parenting difficulties; the death of his baby brother; his removal into DCP care; his mother's imprisonment; disconnection from his family; transiency; witnessing the traumatic removal of his siblings by DCP; alleged physical, emotional and sexual abuse while in state care; his father's assault, coma and permanent disability; father's inability to fulfil a father role; and mother's head injury resulting in epilepsy, tremors and fatigue. Levi's experiences have resulted in fear, sadness, grief and loss, feelings of isolation, alienation, disconnection, anger, hatred and resentment and he is likely to have externalised his emotional difficulties in the form of behavioural problems within the school, home and community environments. He has underachieved at school despite appearing to have the intellectual ability to succeed. Further, he has abused alcohol and cannabis from a very young age predominantly as a coping mechanism in an attempt to deal with, escape and distract himself from negative emotional states and memories and to self-soothe. Offending behaviour has often been used to fund his substance abuse.[173]
[173] Book of Materials Vol 2, 777 - 778.
The various reports commence in 2009, when the respondent was 13 years of age. They set out the background of the respondent, the traumatic events to which he has been exposed, and the emotional deprivation he has endured. From a very early stage, it was identified that the respondent had taken to substance abuse as a maladaptive coping strategy.
The authors of the reports repeatedly recommended that the priority was to ensure that the respondent was provided with structure and support on his release from detention, including intensive family intervention, substance misuse counselling and, if he was willing, psychological counselling.
A Protection and Care Order had been made in relation to the respondent in 2002,[174] but he had a poor relationship with DCP, expressing anger, resentment and hatred for the Department, which he regarded as having ruined his life.[175] As such, he was unwilling to engage with the Department in relation to his accommodation or care.[176]
[174] Book of Materials Vol 2, 768.
[175] Book of Materials Vol 2, 774.
[176] Book of Materials Vol 2, 769.
The Department was also unable to identify any suitable family members for the respondent to live with on his release from custody.[177] This meant that the fundamental recommendation of the experts, that the respondent be provided with a stable and supportive environment on release, was never complied with.
[177] Book of Materials Vol 2, 771, 785, 805.
As early as 2009, the respondent expressed wanting to 'change everything' and 'do things normal kids do', although he appreciated the difficulties he would face in achieving that goal.[178] In 2011, he said he wanted to start afresh and get his life together, and was motivated to engage in a residential rehabilitation program.[179] Unfortunately, he was unable to complete the program, saying later 'there were too many rules.'[180]
[178] Book of Materials Vol 2, 766.
[179] Book of Materials Vol 2, 791.
[180] Book of Materials Vol 2, 794.
The reports also document an increasing awareness on the part of the respondent as to the influences which negative peer associations had on his behaviour in the community, and the role which his, by then entrenched, substance abuse played in his offending. Unsurprisingly, given his young age, the respondent was said to have had difficulty identifying deeper psychological factors underlying his offending and to be guarded about exploring them.[181]
[181] Book of Materials Vol 2, 781.
By late 2011, the respondent's amphetamine use was more apparent, and he said that they made him 'feel big' by which he meant 'in control'. He was aware that when he was angry or intoxicated, he did not consider the welfare of others and acted only in his own interests.[182] The factors contributing to his offending appeared to be boredom, antisocial peers, thoughts of not caring or having nothing to lose, and the need to fund clothing, food, drugs and alcohol.[183]
[182] Book of Materials Vol 2, 798.
[183] Book of Materials Vol 2, 798.
He still did not have stable accommodation or care available which continued to be seen as a greater priority than individual psychological counselling.[184]
[184] Book of Materials Vol 2, 798 - 799, 807, 813.
In a report dated 16 March 2012, when the respondent was 16 years old, Roxanne Buktenica, a Clinical Psychologist, observed that the respondent was discouraged about his future and presented with a pessimistic and negative thinking style.[185] He was not motivated to cease drug use as he enjoyed the effects, did not see his use as negative behaviour, and had concrete cognitive distortions which normalised and minimised substance abuse.[186] He continued to have difficulties with emotional regulation which did not appear to have improved following counselling.[187] He believed he would continue to offend and was adamant he would end up in adult prison, which he did not perceive as a negative outcome.[188]
[185] Book of Materials Vol 2, 808 - 809.
[186] Book of Materials Vol 2, 810 - 811.
[187] Book of Materials Vol 2, 824.
[188] Book of Materials Vol 2, 812.
A mentor or male role model was recommended[189] but does not appear ever to have eventuated.
[189] Book of Materials Vol 2, 814, 817.
The respondent's periods in detention were characterised by numerous adverse incidents or reports. However, in 2012 he started to engage with Youth Justice Psychological Services.[190]
[190] Book of Materials Vol 2, 816.
Kate Riordan, a psychologist who prepared a report dated 5 March 2013, observed:
Levi is a stoic youth who has endured developmental insults across the entire spectrum of his physical, emotional, social and psychological development. He has experienced repeated and chronic traumas throughout his entire childhood, which in turn has contributed to underdeveloped coping strategies to deal with negative affect and his recurrent stressors. Within the context of a family system that has become entrenched within the criminal justice system, Levi perceives himself to have limited opportunities outside of offending behaviour and illicit substance misuse.[191]
[191] Book of Materials Vol 2, 817.
During a later sentence of detention, in which he turned 18, the respondent engaged again with psychological services, having 67 sessions.[192] During this period, the respondent had started to engage in self‑harming behaviours, and had voluntarily sought psychological support, in which he was found to be more open with the services.[193]
[192] Book of Materials Vol 2, 824.
[193] Book of Materials Vol 2, 825.
As a result of the more intensive psychological engagement, the respondent developed greater insight into the influence his early exposure to antisocial behaviour in his family had on his offending and substance misuse[194] and was improving in his own self-management and emotional tolerance.[195]
[194] Book of Materials Vol 2, 826.
[195] Book of Materials Vol 2, 825.
However, the respondent continued to appear despondent about the future and his ability to effect meaningful change to his lifestyle. Notwithstanding this, he did identify steps he could take towards doing so, including developing a routine, remaining separate from certain family members, and sustaining a relationship with his partner, who would be a prosocial influence.[196] He was also more realistic about the difficulties he may encounter on release.[197]
[196] Book of Materials Vol 2, 826.
[197] Book of Materials Vol 2, 826.
In a pre-sentence report dated 6 April 2016, the respondent was identified as still needing substance abuse counselling, given the direct correlation between his substance use and offending.[198] In May 2016, the respondent was denied parole due to his previous non-compliance with his Supervised Release Order and the absence of a relapse prevention plan, related to his failure to complete the Pathways Program.[199]
[198] Book of Materials Vol 2, 830.
[199] Book of Materials Vol 2, 832 - 835.
In November 2018, the respondent was assessed to be at a very high risk of reoffending, and a high risk of violent offending[200] and it was recommended he engage in the Violent Offending Treatment Program and the Pathways Program.[201] He completed the former, but not the latter, and his parole assessment in February 2020 was not positive due to his lack of strategies to prevent relapse into drug use, and concerns about the family violence concerns in the respondent's relationship with his partner.[202]
Report of Dr Siva Bala, Associate Professor of Psychiatry dated 16 April 2018
[200] Book of Materials Vol 2, 843.
[201] Book of Materials Vol 2, 844.
[202] Book of Materials Vol 2, 864 - 867.
This report was prepared for the purposes of the sentencing of the respondent for the index offences.
The respondent told Dr Bala that he was angry with his partner as a result of an argument about his substance abuse when he committed the robbery with the letterbox pole. He then spent the next three days using amphetamines, and committed the other two robbery offences under the influence of methylamphetamines.[203]
[203] Book of Materials Vol 2, 583 [7].
The respondent told Dr Bala that at the time of the offences, he had been awake for approximately three weeks and was experiencing 'voices' which were 'playing with his head' and he was paranoid and agitated.[204]
[204] Book of Materials Vol 2, 583 [8].
The respondent expressed remorse for his offending and displayed some recognition of the effect his offending would have had on the victims.[205]
[205] Book of Materials Vol 2, 583 [9].
The respondent told Dr Bala that he has never felt loved or wanted. At the time of his sentencing, his mother and one of his brothers were incarcerated, and his other brother had drug problems. His primary supports were his sister and partner. At the time, his son was 9 months old.[206]
[206] Book of Materials Vol 2, 586 - 587 [22] - [25].
The respondent's principal diagnosis was severe substance use disorder in extended remission in a controlled environment, with a secondary diagnosis of antisocial personality traits.[207]
[207] Book of Materials Vol 2, 587.
Dr Bala stated that children exposed to dysfunctional family situations can develop behavioural difficulties stemming from the unpredictability of their world leading to a lack of verbal and conceptual understanding of the interaction between their inner world and surroundings. Further, insecure attachment during infancy can manifest as conduct disorder, aggression, anxiety and mood disorders, hyperactivity, antisocial behaviour, vulnerability to stress, difficulty regulating negative emotions, learning problems and displays of hostility or oppositional behaviour as the infant moves through childhood.[208]
[208] Book of Materials Vol 2, 588 [27.b] - [27.c].
Dr Bala was of the view that the respondent exhibits features of conduct disorder from childhood, saying:
Conduct disorder is one of the most common childhood disorders marked by a pattern of repetitive behaviour wherein the rights of others or social norms are violated. Symptoms include verbal and physical aggression, cruel behaviour towards people, destructive behaviour, lying, truancy, vandalism and stealing. Youths with conduct disorder are at a greatly increased risk of incarceration, injury, mental illness, substance abuse and death by homicide and suicide.
Mr Penny has adopted severe substance use as his main coping mechanism.[209]
[209] Book of Materials Vol 2, 588 - 589 [27.d] - [27.e].
Dr Bala was of the view that the respondent seemed to be on the trajectory of a personality disorder. Antisocial personality disorder describes a pattern of disregard for and violation of the rights of others, commencing in adolescence and continuing into adulthood. Criteria includes dissocial/unlawful behaviours, impulsivity, irritability and aggressiveness, reckless disregard for the safety of self and others, irresponsibility and lack of remorse.[210]
[210] Book of Materials Vol 2, 589 [27.g].
Dr Bala was of the view that the respondent needs treatment for his substance use issues and underlying attachment disorder, and long term therapy.[211]
Report of Erin Sweeny, Psychologist, dated 20 April 2018
[211] Book of Materials Vol 2, 590 [30.b].
This report was also prepared for the purposes of the sentencing for the respondent's index offending. Formal psychometric testing was not considered relevant or suitable for the respondent.[212] However, Ms Sweeny administered the VRS, which is a violence risk assessment tool designed to integrate risk, need, responsibility and treatment change factors relevant to violent offenders.[213]
[212] Book of Materials Vol 2, 595 [8].
[213] Book of Materials Vol 2, 597 [16].
The respondent's static risk was high, given his youth, the fact that his first violent offence was committed at the age of 12, his extensive juvenile history, his breaches of community supervision and instability of his upbringing.[214] The primary dynamic factors which contribute to his risk include his criminal attitude, poor emotionality and violence during incarceration, weapon use, substance use, limited community support, violence cycle and impulsivity.[215]
[214] Book of Materials Vol 2, 597 [17].
[215] Book of Materials Vol 2, 597 [17].
Based on the findings from the VRS, Ms Sweeny assessed the respondent's risk of violent recidivism as high.[216] She recommended individual counselling both in custody and then in the community, as well as education and training skills to assist him to gain employment. She also said that the respondent would require support to build positive leisure interests and prosocial networks.[217]
Propensity to commit serious offences in the future - s 7(3)(c) HRSO Act
[216] Book of Materials Vol 2, 597 [18].
[217] Book of Materials Vol 2, 598 [20].
I am required to consider whether the respondent has a propensity, being an inclination or tendency,[218] to commit serious offences in the future. In this context, 'serious offences' can only properly mean robbery or assault with intent to rob.[219]
[218] The State of Western Australia v Bellamy [2013] WASC 467 [70].
[219] I will henceforth collectively refer to these offences as 'robbery'.
The respondent certainly has had, in the past, an established propensity to commit acquisitive offences, in the main to obtain money to support his substance habit. He was also prone to destructive conduct, such as criminal damage. However, his record does not suggest a propensity to commit robbery. Indeed, it might suggest that his strong preference is not to commit such offences.
In my view, the serious offences committed when the respondent was a child cannot reasonably suggest a propensity to commit such offences in the future, given when they were committed, their circumstances (including that they were committed in company) and their different character when compared to the index offences.
The index offences are the only serious offences committed by the respondent as an adult. Their circumstances, involving a weapon actively used to threaten, were very serious. However, they were committed over a period of three days while the respondent was under the influence of drugs to such an extent that he had not slept for three weeks.
Both Dr Pyszora and Dr Yewers consider that the most likely serious offence scenario for the respondent is a robbery or armed robbery. However, the apparent foundation for that opinion is that that is the only serious offence the respondent has ever committed. To that extent, I accept their opinion, but that is not the same as saying that the respondent has a propensity to commit such offences.
Where the index offending is the only basis, I have considerable hesitation in finding that the respondent has a propensity to commit a serious offence in the future. Rather, his propensity is a generalised one to commit offences with the aim of obtaining funds to support drug use. As part of that, if he were to relapse into drug use, I accept that robbery would likely be one of the offences the respondent would eventually commit as part of his offending. However, that is not the same as finding that he has a 'propensity'. In my view, it has not been clearly established that he has a propensity to commit a serious offence in the future.
Whether or not there is any pattern of offending behaviour by the offender - s 7(3)(d) HRSO Act
The pattern of offending behaviour in the respondent's case is clear. It involved the respondent, being intoxicated or withdrawing from substances, committing offences to obtain money for drugs, alcohol, food or clothing. On almost every occasion, the respondent was associating with negative peers either at or shortly before the offending. The relapse into drug use was generally precipitated by a traumatic trigger, or an adverse event which resulted in the respondent being unable to manage his emotions and turning to substances to cope and distract himself.
Any efforts by the respondent to address the cause or causes of the offending behaviour, including whether the respondent has participated in any rehabilitation program - s 7(3)(e) HRSO Act
The Respondent has undertaken the following rehabilitation programs during his periods in custody:
Young Offender Personal Development Program
During the respondent's admission to Banksia Hill Detention Centre after 11 February 2010, the respondent participated in the Prepared for Life stream of the Young Offender Personal Development Program, which addressed issues such as motivation to change, relapse prevention and stress management.[220]
Emotional Management Program
[220] Book of Materials Vol 2, 780.
This program aimed to provide information and promote greater understanding about managing anger and other emotions. The respondent completed it in June 2011 and demonstrated an understanding of most of the concepts discussed, and was able to apply those concepts discussed to external situations and personal experiences.[221]
Emotional Management Program
[221] Book of Materials Vol 2, 796.
This program, undertaken by the respondent from December 2012 to March 2013, was a six session therapeutic pilot program which aims to provide information and assist participants in identifying and managing strong emotions.
The author observed that the respondent:
(a)consistently presented as respectful, communicative and jovial and was willing to engage in all activities;
(b)experienced difficulty at times in distinguishing between emotions and behaviour;
(c)showed an awareness of internal and external triggers that would or would not lead to certain emotions and behaviours;
(e)presented as guarded when exploring the effects of substance use upon him, stating he no longer uses; and
(f)demonstrated an understanding of when certain communication styles should be employed and the benefits of communicating with those around him to ascertain their mood.[222]
[222] Book of Materials Vol 2, 819 - 821.
The final program report indicated that the respondent actively participated and engaged with the remaining sessions. He was able to list numerous positive coping strategies he had at his disposal, but at times provided less constructive responses to conflict.[223]
Pathways Program - non completion report
[223] Book of Materials Vol 2, 822 - 823.
The author of the non-completion report, dated 8 June 2016, noted that the respondent appeared attentive and engaged and, when given the opportunity, consistently demonstrated understanding of the program content.[224] However, he failed to attend group on several occasions. When warned that absences would likely result in his dismissal from the program, the respondent was apparently fatalistic. He continued to miss sessions until his removal, demonstrating a lack of consequential thinking which was characteristic of his pattern of offending.[225]
[224] Book of Materials Vol 2, 838.
[225] Book of Materials Vol 2, 838
The respondent recognised the destructive effects of his methylamphetamine use, but not of his cannabis use. He was of the opinion he could control his alcohol consumption. He recognised the link between his offending and lack of emotional coping skills. However, he had no specific strategies in place to cease contact with antisocial peers, other than saying 'no'.[226]
[226] Book of Materials Vol 2, 839 - 840.
The author noted that the respondent had not met his treatment needs in relation to substance misuse, emotional coping skills, impulsivity/lack of consequential thinking, and negative peer associations.[227]
Violent Offending Treatment Program
[227] Book of Materials Vol 2, 839 - 840.
In a report dated 20 January 2020, the facilitators noted that the respondent frequently displayed restlessness, irritability and anxiety while attending the program, and left the room for short periods of time.[228] He developed strategies to manage his emotions and his behaviour steadily improved, although it was only when a contract was put in place that he stopped leaving the room.[229]
[228] Book of Materials Vol 2, 858.
[229] Book of Materials Vol 2, 858.
The respondent demonstrated some insight into the link between his poor emotional regulation and his violent behaviour.[230] He described himself as institutionalised.[231]
[230] Book of Materials Vol 2, 857.
[231] Book of Materials Vol 2, 858.
While the respondent demonstrated an understanding of the program content, the facilitators observed that this did not seem to translate to the wider prison setting.[232] They considered the respondent would benefit from further development of his emotional coping skills and further efforts to address his entrenched antisocial beliefs.[233]
[232] Book of Materials Vol 2, 858 - 860.
[233] Book of Materials Vol 2, 858 - 859.
The risk management plan formulated by the respondent was mainly aspirational in nature, as opposed to being comprised of specific strategies to achieve his goals. It was recommended that he complete the Pathways program and undertake regular urinalysis, substance abuse counselling and counselling for emotional regulation.[234]
Pathways Program - non-completion report
[234] Book of Materials Vol 2, 860 - 862.
In this report, dated 26 March 2021, the author noted that the respondent attended 34 out of 38 possible sessions prior to being removed from the program. The respondent's non-attendance was primarily a result of low motivation and commission of prison offences; he appeared disinterested throughout the program, questioned the program's efficacy in preventing relapse and commented that the content was similar to previous programs he had undertaken. At times the respondent was passive-aggressive towards facilitators and other participants.[235]
[235] Book of Materials Vol 2, 871.
Although the respondent gained some insight into his use of substances as a maladaptive coping strategy, he presented as unwilling and resistant to developing better emotional management skills. This, in combination with the fact that the respondent presented with positive urinalysis tests in August 2019 and February 2021, made it evident to the author that the respondent is still at an elevated risk of illicit drug use.[236]
[236] Book of Materials Vol 2, 872.
The respondent was also assessed to be at an elevated risk in the area of negative peer associations. The respondent was observed to be susceptible to negative peer influence, lacking insight into why he maintains relationships with these peers and apathetic about needing to use refusal skills to minimise his risk.[237]
[237] Book of Materials Vol 2, 872 - 873.
Despite recognising risk factors in his current relationship with his partner, the respondent made limited attempts to improve and develop prosocial relationship skills. The author noted the respondent had poor strategies in place for dealing with conflict in his relationship. The respondent was considered to be an elevated risk in this area.[238]
[238] Book of Materials Vol 2, 873.
The respondent's pro-criminal attitudes persisted throughout the program, with little attempt made to shift those attitudes. The respondent held entrenched anti-authority sentiments reflective of power and control cognitive distortions which appeared to impede his ability to engage in consequential thinking.[239]
[239] Book of Materials Vol 2, 873.
Although the respondent demonstrated a basic understanding of the concepts and skills explored in the program, he did not show he would be able to use them in high-risk settings. The respondent could reflect on his previous behaviours, but could not manage himself in the present moment and his lack of consequential thinking skills lead him to react impulsively and aggressively, and make poor decisions.[240]
[240] Book of Materials Vol 2, 874.
As a result of excessive absences and assaulting a prison staff member, the respondent was removed from the program. Consequently, the respondent was not able to develop a risk management plan.[241]
[241] Book of Materials Vol 2, 874.
The author was of the opinion that the respondent's treatment needs remain outstanding, having demonstrated limited gains in each area. It was recommended the respondent engage in a future Pathways Program.[242]
Conclusion
[242] Book of Materials Vol 2, 875.
The respondent has had inconsistent engagement with programmatic intervention. However, his youth at the time of the programs, the significant deprivation of his upbringing, his reluctance to trust or rely on others, the limited opportunities he has had to implement in the community any of the skills learned in the programs he has undertaken, and his growing maturity are all important factors to consider in this regard.
In my view, inconsistency in his engagement in rehabilitation can be attributed to the feelings of powerlessness and despondency which the respondent unsurprisingly came to feel in his teens as a result of the criminal offending cycle he was in and the inability of any person in authority to provide him with the stability and support in the community to which he was entitled.
Whether or not the offender's participation in any rehabilitation program has had a positive effect on the offender - s 7(3)(f) HRSO Act
The respondent has clearly made gains from the programs offered to him, and the skills and information he has learned appears to be assisting him to develop greater insight and understanding of the impact of his offending the more experience he has in the community.
The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence - s 7(3)(h) HRSO Act
I am mindful of the observations of Edelman J in The State of Western Australia v Garlett:
In assessing the level of risk that the offender will commit the specified serious offence, the Court may receive, under s 84(5), an offender's antecedents or criminal record, and anything relevant in the official transcript of a proceeding against the offender. The context of s 84(5), including the requirement in s 7(3)(g) to consider an offender's antecedents and criminal record, demonstrates an intention that such tender will rarely be refused by the Court.
Section 84(5) is not, however, a free licence for the Court to draw conclusions about the risk of the specified serious offence from unrelated offending. The offending upon which the Court can place any weight must be relevant to establishing a pattern of behaviour, or a propensity, sufficiently proximate in time, showing a likelihood that the offender will commit the specified serious offence. Before concluding that there is any real risk that the offender will commit the specified serious offence, the State will almost always need to prove that the offender has committed prior offences of the same or similar nature. Even a criminal record of numerous other serious offences might say very little or nothing about a different specified serious offence. For instance, the past commission of an offence of robbery, no matter how serious, is unlikely to reveal anything about the risk of commission of an offence of criminal damage by fire, and vice versa.[243]
[243] The State of Western Australia v Garlett [221] - [222] (citations omitted).
Ultimately, Dr Pyszora was of the view that, if the respondent were not subject to a restriction order, he may present a high risk of committing a serious offence.[244] As outlined at [101] above, she acknowledged that is very much dependent on dynamic risk factors. However, she was of the view that those dynamic risk factors are likely to arise without at least a supervision order.[245]
[244] Book of Materials Vol 3, 995 [311].
[245] ts 40.
Dr Yewers was also of the opinion that the respondent presents as a high risk of future offence if not subject to a restriction order.[246] She too acknowledges that there are a number of protective factors currently in place which moderate that risk, but points out they are relatively recent. Importantly, the interim supervision order has been one of those protective factors.[247]
[246] Book of Materials Volume 3, 935 [152].
[247] ts 58 - 59
The opinions of both Dr Pyszora and Dr Yewers are consistent with the opinions of the numerous other experts who have assessed the respondent in the past. However, for the first time, both the experts and the respondent express real optimism as to the prospects of the respondent living a prosocial life, while being alive to the very significant challenges still to be faced by the respondent.
The respondent's relationship and the motivation of his desire to be there for his son are highly protective factors, as is his employment.
However, as positive as these factors are, it is important to bear in mind the fragile foundations on which the prospects of a positive outcome for the respondent rest at this stage. The respondent acknowledges that his relationship depends on him staying crime free and engaging in appropriate behaviours. Further, the respondent and his partner have only been able to reside together since his release and, while their relationship has improved over time, it is still relatively new in that sense. This is quite apart from the fact that even stable relationships end without fault on the part of either party. There is good reason to doubt that the respondent's present optimistic and motivated outlook would survive the breakdown of his relationship. That is particularly so if his relationship with his son is adversely impacted.
To some extent, the significance of the respondent's relationship to his prospects of maintaining his abstinence from substances and remaining offence free has lessened as a result of his engagement in employment. The respondent is well paid and well regarded by his employer. There are a range of benefits which have and will continue to flow to the respondent, including improving his self-esteem, giving his days structure and occupying him, allowing him to provide for his family, and providing the opportunity for prosocial contacts.
From the evidence given at the hearing, it is apparent that, having regard to the nature of the respondent's employment, the manner in which the interim supervision order is presently operating is placing a potentially unreasonable and unsustainable burden on the respondent.
The respondent starts work very early, in a location south of the river. He reports once a week. That reporting can only take place between 8.00 am and 4.30 pm, but if he also has to report for urinalysis, he has to report by 2.30 ‑ 3.00 pm. He has asked to report on Friday afternoons, because he finishes early on Friday, but this cannot always be accommodated. According to Ms Sunderland, he has elected to attend at lunch times, so that he needs to take less time off work. While the respondent's employer willingly accommodates him in complying with his order, the respondent does not wish to take time off work. He relies on public transport, so he chooses his options based on accessibility.[248] Both experts acknowledged the substantial additional burden this has placed on the respondent, making his employment progress even more remarkable.[249]
[248] ts 66 - 67.
[249] ts 48, 56, 67, 73.
The respondent has elected to undertake the Connect and Respect program rather than individual counselling. The respondent will be required to attend this course twice weekly from 5.30 ‑ 7.30 pm for 3 months. He presently has a curfew between 7.30 pm and 5.00 am which would need adjusting to accommodate that course. Ms Sunderland also indicated in her evidence the curfew would also be reviewed having regard to the evidence of the experts regarding the curfew.[250]
[250] ts 70.
While there is no doubt that a supervision order (interim or otherwise) is by its nature intended to provide a significant degree of supervision, care and control of an offender, the manner in which the present order is operating is not particularly compatible with the respondent's employment, or him developing a prosocial life out of work.
In short, the respondent's free time in the community since he commenced employment has been so limited and rigidly controlled that he would have had little opportunity to engage in behaviours which increase his risk of committing offences. As such, the order is protective to such an extent that it masks the risk of the respondent committing a serious offence if he were not subject to such an order.
I accept the evidence of both Dr Pyszora and Dr Yewers that, if the respondent were not subject to a restriction order, the risk of the respondent committing a serious offence is high. I accept their prognostications that that would likely involve a robbery on a soft target, while armed. The respondent would be intoxicated or withdrawing from substances. He would likely be armed with an improvised or makeshift weapon. While he would be unlikely to intend to harm anyone, physical harm may be done to a victim as a result of the presence of the weapon and the effects of the substances on the respondent, and psychological harm to the victim/s would be likely.
However, if the respondent is subject to a restriction order, the risk is likely to be substantially reduced. This is because any relapse into drug use will be detected at a very early stage. Further, and importantly, under a restriction order, any relationship difficulties encountered by the respondent would be likely to be identified reasonably promptly, and the respondent would have access to support, counselling and supervision in such an event. This would be essential if the respondent is to remain drug free.
The need to protect members of the community from that risk - s 7(3)(i) HRSO Act
There is no doubt that it is important to protect members of the community from the risk the respondent poses. The likely victims are vulnerable targets, being small commercial entities or people on their own. The offending behaviour in which he is considered likely to engage is serious, with at least threats of violence, if not actual violence. Such an offence is likely to cause significant psychological harm, even if no physical harm is done.
Is the respondent a high risk serious offender?
Is there an unacceptable risk that the respondent will commit a serious offence?
The principal question in this matter is whether there is an 'unacceptable risk' of the respondent committing a serious offence. In determining this question, I am required to have regard to the likelihood of the respondent committing a serious offence, the nature of the serious offence likely to be committed, the potential consequences of such offending, and the consequences on the respondent of making a finding that the risk is unacceptable.
Having regard to the matters set out in s 7(3) of the HRSO Act, and particularly the opinions of Dr Pyszora and Dr Yewers, I am satisfied to a high level of probability that, at this early stage of the respondent's transition into the community, the risk of him committing a serious offence is unacceptable.
As I have outlined, the nature of the offence likely to be committed and the extent of the potential harm which would result from a serious offence of the kind which the respondent would likely commit are both significant. The likely involvement of substance abuse and the emotional dysregulation which would be expected to be present in such a case, together with the probable use of a weapon, enhance the risk to the community, particularly vulnerable sections of it which are the most likely target.
In my view, the likelihood of the respondent committing a serious offence is high. This is because the respondent is at such an early stage of integrating into the community in what is realistically his first opportunity as an adult to do so, he faces significant pressures relating to his associations, particularly with his family, and some of the important foundations of his rehabilitation are, while very promising, not yet sufficiently well-established to sufficiently reduce that risk.
I acknowledge that the consequences of making a restriction order in relation to the respondent are substantial. As I have already indicated, in my view the burden of the present order is particularly onerous in the case of the respondent. With some justification, having regard to his background and present circumstances, the respondent resents the intensity of the interim supervision order and its implications - that he is unable to be trusted. He seeks to establish himself as a functional, prosocial and independent adult, free from the stigma and burden of his childhood. He wants to be able to prove to himself and others that he, together with his partner, can provide the kind of upbringing for his son that he was denied. A supervision order will mark him as a high risk serious offender, both by its restrictions and the physical presence of the GPS tracker.
Despite this, I have formed the view that, at this stage, there is an unacceptable risk that the respondent will commit a serious offence. However, if the respondent continues with the gains he has made since his release, it is my view that he will not long pose such a risk.
Is it necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence?
It is highly unfortunate that the imposition of an interim supervision order automatically results in the cancellation of a PSSO imposed on an offender.[251] In light of the evidence which has emerged since the interim supervision order was imposed, the respondent's case may well have been one of those rare cases contemplated by Quinlan CJ in The State of Western Australia v D'Rozario [No 3].[252]
[251] Sentence Administration Act 2003 s 74J(3).
[252] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21].
In the absence of such an option, the adequate protection of the community requires that, for a further period, the respondent be provided with access to high level support and remain under some supervision, to enable him to consolidate his gains and his place in the community for the longer term. It is unrealistic to expect that he will not falter at some point in trying to do so, and the lack of support at that point would, in my view, be disastrous for the respondent's prospects.
Continuing detention order or supervision order?
Both Dr Pyszora and Dr Yewers are of the opinion that the respondent's risk can be properly managed if he is made subject to a supervision order. Ms Sunderland also supports the release of the respondent on a supervision order.
The State concedes that a supervision order would appropriately reduce the risk of the respondent committing a serious offence to the point at which the protection of the community is adequately protected.
In my view, the length of the order should be 18 months. Having regard to the time already spent by the respondent on the interim supervision order, it is my view that there is a very real prospect that the respondent's risk will no longer be unacceptable after that time. If the State remains of the view that the respondent remains an unacceptable risk towards the end of that period, it can make an application for the extension of the order.
Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions?
The respondent did not give or adduce evidence at the hearing. However, there is evidence on the State case which enables me to determine this issue.
The fact that the respondent has contravened conditions of his interim supervision order is not a barrier to satisfaction to the required standard that he will substantially comply with the standard conditions of the order. Given the respondent's history, missteps are to be expected, and the conduct of the respondent in response to his contraventions provides a degree of assurance that he will substantially comply with the standard conditions in the future.
The performance of the respondent on the interim supervision order, and his compliance with his conditions under the significant competing pressures of his employment also demonstrate his motivation to comply.
I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order.
Additional conditions
In light of the evidence given at the hearing, I am not satisfied that it is appropriate to make provision for a curfew to be imposed under the supervision order.
The proposed restriction on the respondent attending licensed premises is unreasonably broad. The respondent is not permitted to consume alcohol, but that should not prevent him going to the many kinds of premises other than cafes, restaurants and sporting venues which are licensed. I accept that, in the absence of permission from his CCO he should not be permitted to go to the casino or racetracks, pubs, nightclubs or other venues where the principal function of the establishment is the supply of alcohol.
I also propose to order that the conditions regarding access to the respondent's electronic devices will cease to have effect in 6 months' time.
Conclusion
I am satisfied, to a high degree of probability, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. Accordingly, I am satisfied that the respondent is a high risk serious offender within the meaning of the HRSO Act.
I am also satisfied that a supervision order is sufficient to adequately protect the community against the risk identified, and that a detention order is not necessary to do so.
I am also satisfied that the respondent has established, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
Accordingly, I impose a supervision order of 18 months' duration, with the conditions as set out in Schedule A, to commence on a date to be fixed.
SCHEDULE A
IN THE SUPREME COURT OF WESTERN AUSTRALIA
SO 22 of 2021
IN THE MATTER of the High Risk Serious Offenders Act 2020
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
LEVI AARON PENNY Respondent
_________________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE FORRESTER
ON 23 DECEMBER 2022
_________________________________________________________________________
Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 18 months from 23 December 2022, not being a date not earlier than 21 days from the date this Order is made, on the following conditions:
You, LEVI AARON PENNY, must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, Western Australia (WA) within 48 hours of this Order being issued by the Court and advise the officer of your current name and address;
Report to and receive visits from, a Community Corrections Officer as directed by the Court;
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a Community Corrections Officer, which includes, complying with any reasonable direction of the officer (including direction for the purposes of section 31 or 32);
Not leave, or stay out of the State of Western Australia without the permission of a Community Corrections Officer;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Take up residence at [address redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;
Reporting to a CCO and supervision by a CCO
Report to, and receive visits from, CCO at times and at places as directed by the CCO; and comply with the lawful orders and directions of a CCO;
10. Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO;
Attendance at programs or treatment
11. Consult, engage, attend all appointments, receive visits and comply with all requirements of any psychiatrist, psychologist, counsellor, medical practitioner, mentor, support person and/or support service nominated by a CCO, as directed by a CCO, including any programs designed to address your offending behaviour;
Reporting to WA Police
12. Report to WA Police at times and at locations as directed by a CCO or WA Police;
13. If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order;
14. Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020;
Disclosure/Exchange of Information
15. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
16. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any partners, associates, potential partners and potential associates and, where appropriate, to disclose to them confidential information including your offence history;
Restrictions on contact with Victims
17. Have no contact, directly or indirectly, with the victims of your serious violent offending (this therefore excludes your partner [name redacted]), unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice;
18. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times;
19. Report to the CCO and WA Police any direct or indirect contact with the victims of your offending within 48 hours of such contact occurring;
Criminal conduct
20. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
21. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider;
22. Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article;
Prevention of high-risk situations
23. Report at your next contact with your CCO, the formation of any social association (of more than four contacts by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;
24. As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than four contacts by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
25. Not purchase, or possess, or consume or use alcohol, unless approved in advance by a CCO;
26. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;.
27. Provide a valid sample pursuant to Condition 29;
Not go to or remain at any casino or racetrack, pubs, nightclubs or other venue where the principal function of the establishment is the supply of alcohol, unless permitted or required to do so for the following reasons:
a) For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
b)For a purpose, and duration approved in advance by a CCO;
c)On the order of a CCO or Police Officer;
29. Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drugs, unless the identity of such person is approved in advance by a CCO;
30. Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence;
31. From the commencement of this order, and for a period of 6 months of the term of the order, advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
32. From the commencement of this order, and for a period of 6 months of the term of the order, not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in Condition 33, without prior approval. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO. Enable device locking or password access of your computer, telecommunication and/or electronic devices. Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in Condition 33, or any online accounts, to any person other than a CCO or Police Officer;
33. From the commencement of this order, and for a period of 6 months of the term of the order, upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data or information, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses;
34. From the commencement of this order, and for a period of 6 months of the term of the order, not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data or information including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
_______________________________
THE HON JUSTICE FORRESTER
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
23 DECEMBER 2022
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