The State of Western Australia v Pool
[2023] WASC 376
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- POOL [2023] WASC 376
CORAM: QUINLAN CJ
HEARD: 29 SEPTEMBER 2023
DELIVERED : 29 SEPTEMBER 2023
FILE NO: SO 10 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JASON BRADLEY POOL
Respondent
Catchwords:
Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim detention order is desirable – Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders pursuant to s 46(2) made
Interim detention order made
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid - Perth - Criminal Law Division |
Cases referred to in decision:
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
QUINLAN CJ:
Introduction
On 25 August 2023, the State of Western Australia applied for a restriction order in respect of Mr Jason Bradley Pool under the High Risk Serious Offenders Act 2020 (WA) (the Act).
The preliminary hearing of the application came before me earlier today.
At the hearing Mr Pool's counsel conceded, and I was satisfied, that there are reasonable grounds for believing that the Court might find that Mr Pool is a high risk serious offender within the meaning of the Act (see s 46(1) of the Act).
I therefore ordered that the restriction order application be heard on 30 April 2024 and that Mr Pool undergo examinations by a psychiatrist and a psychologist for the purposes of preparing reports to be used at that hearing.
The State also sought an order that Mr Pool be detained in custody pending the final determination of the application, rather than him being released on an interim supervision order. The State submitted that, in the absence of appropriate accommodation, adequate protection of the community could not be achieved by a supervision order. Mr Pool's counsel agreed that the absence of suitable accommodation was a significant obstacle facing Mr Pool's release into the community.
In the circumstances, I adjourned the preliminary hearing to 26 October 2023 (Mr Pool's release date from his current sentence of imprisonment being 30 October 2023). I made an order that Mr Pool be detained in custody until 26 October 2023 pursuant to s 46(2)(c)(i) of the Act. The purpose of the adjournment is to enable Mr Pool and the Department of Justice to explore potential accommodation options before a final decision is made as to whether Mr Pool can be released on an interim supervision order or whether it is necessary, in the interests of community safety, for him to be detained in custody pending the final determination of the restriction order application.
I ordered that the Community of Offender Monitoring Unit of the Department of Justice provide an affidavit as to any accommodation options prior to 26 October 2023.
When making the orders I said that I would publish my reasons later in the day. My reasons are as follows.
The law
Pursuant to s 46 of the Act, the main purpose of a preliminary hearing is to decide whether the Court is satisfied that there are reasonable grounds for believing that the Court might find that Mr Pool is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the Court is satisfied by acceptable and cogent evidence, and to a high degree of probability, that it is necessary to make a restriction order in relation to the person, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
In the context of this application, a 'serious offence' within the meaning of the Act relevantly includes sexual offences against a child, contrary to s 321 of the Criminal Code and aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code.
I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible, and belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts that are sufficient to induce that state of mind in a reasonable person.[1]
[1] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
The evidence
In support of its application, the State relied upon the affidavit of Daniel Sean McDonnell affirmed 25 August 2023. Mr McDonnell's affidavit contains Mr Pool's criminal history, which dates back to 1988, as well as several reports in relation to him. Those reports include pre‑sentence reports, psychological reports, a psychiatric report, program completion reports, parole assessment reports, parole review reports, and a forensic psychological intervention treatment report.
I also received an affidavit from Ms Cassie McNally dated 11 September 2023 and a copy of a post sentence supervision order made by the Prisoners Review Board on 28 September 2023.
I considered all of that material.
Mr Pool's offending history
Mr Pool has a significant and lengthy criminal history, which includes aggravated burglary; aggravated sexual penetration without consent; sexual penetration without consent; deprivation of liberty; indecent assault; indecent dealing with a child; indecently recording a child; stealing; use of optical surveillance device; being on premises without lawful excuse; numerous prohibited drug offences; and numerous traffic offences.
Mr Pool is currently serving a total effective sentence of 11 years and 9 months imprisonment. That sentence was imposed on 13 November 2012 in relation to 16 separate offences. Eleven of those offences were serious offences within the meaning of the Act, namely:
(a)five counts of indecently dealing with a child, contrary to s 320 and s 321 of the Criminal Code;
(b)two counts of indecently recording a child, contrary to s 321 of the Criminal Code;
(c)one count of attempting to indecently record a child, contrary to s 321 of the Criminal Code;
(d)one count of deprivation of liberty, contrary to s 333 of the Criminal Code;
(e)one count of sexual penetration without consent, contrary to s 325 of the Criminal Code; and
(f)one count of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code.
In addition to these serious offences within the meaning of the Act, the other offences for which Mr Pool was sentenced on 13 November 2012 included three counts of indecent assault and two counts of aggravated home burglary. While not serious offences within the meaning of the Act, the latter two convictions for aggravated burglary are, in my view, relevant to Mr Pool's pattern of sexual offending and the assessment of his potential risk of committing serious offences in the future.
While the sentences for the 16 offences for which he is currently imprisoned were all imposed on the same day, they relate to offending over a period of over 6 years from 2005 to 2011.
The pattern of this offending is instructive, as indeed is an earlier series of offences dating from 2001. Mr Pool's pattern of offending over time suggests an escalation of offending, commencing with behaviour that was once euphemistically described as that of a 'Peeping Tom', to indecent offences against unwitting victims (usually children that he knew), ultimately escalating to degrading and violent offending against strangers in their homes.
The circumstances of Mr Pool's offending includes the following.
On 24 July 2001, when he was 31 years old, Mr Pool was convicted of three offences that involved him recording private activity to which he was not a party. He filmed a naked woman through her window and videotaped two other women without their knowledge. With the benefit of hindsight, that offending may have been a harbinger of the paraphilia suggested by Dr Sam Febbo in a psychiatric report prepared for Mr Pool's sentencing in 2012.[2]
[2] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure P – Psychiatric report of Dr Sam Febbo dated 8 November 2012, 126.
The offending for which Mr Pool was sentenced in 2012 included the following.
2005 to 2006 – indecently dealing with a child
Between 17 February 2005 and 16 February 2006, Mr Pool and his then wife babysat a 7‑year‑old victim. Mr Pool and his wife were friends with the victim's mother. Mr Pool, his wife, and the victim were playing videogames on a mattress in Mr Pool's loungeroom. After Mr Pool's wife fell asleep, Mr Pool leaned across the victim and placed his hand down her top and rubbed her breasts. Mr Pool then removed his hand from the victim's top and placed it down the front of the victim's shorts. He then rubbed the victim's vagina on the outside of her underwear. The victim tried to pull away, but Mr Pool pulled her towards him and gestured for her to be quiet.
2007 – indecently dealing with a child and indecently recording a child
Between 24 and 25 August 2007, a 13‑year‑old victim, who was a neighbour of Mr Pool, was asleep on a mattress in Mr Pool's lounge room.
While the victim was asleep, Mr Pool pulled down her pyjama top and bra and touched her breast. As she continued to sleep, Mr Pool masturbated, with his penis close to the victim's face, and held his erect penis against her lips. Mr Pool then pulled down the victim's pyjama top and bra again and touched her breast.
Mr Pool used a video camera to record all of this offending.
2007 – attempting to indecently record a child
Between October and December 2007, the same 13‑year‑old victim was staying at Mr Pool's house. When the victim was showering, Mr Pool positioned his phone in a gap between the outside of the bathroom window and the wall in an attempt to record her in the shower. The victim undressed and started to shower before noticing Mr Pool's phone. The victim yelled out and covered herself with the shower curtain. Mr Pool removed the phone from the window ledge. The victim told Mr Pool's wife what had occurred.
2010 – aggravated home burglary and indecent assault
On 20 November 2010, at approximately 4.20 am, a 17‑year‑old victim was at her boyfriend's house. She was unknown to Mr Pool. The victim was slightly intoxicated and lay on a bed fully clothed.
Mr Pool entered the house through an unlocked carport/kitchen door. Once inside the residence, Mr Pool took a pair of scissors and cut the victim's outer clothing as she slept, exposing various parts of her body. Mr Pool rubbed the victim's exposed vagina with his hand. After the victim awoke, Mr Pool was chased from the residence by her boyfriend. Mr Pool recorded the offending using the victim's phone.
2010 – indecently recording a child
Between 22 and 24 November 2010, Mr Pool entered the grounds of the home of a 14-year-old victim, who was unknown to him. Mr Pool used a video camera to film the victim through her bedroom window, without her knowledge, for about 14 minutes. The victim was changing from her school uniform into her nightwear and was filmed while in her underwear.
2011 – deprivation of liberty, indecent assault, sexual penetration without consent and aggravated sexual penetration without consent
On 27 September 2011, between 3.00 am and 4.00 am, Mr Pool entered the 37-year-old victim's home through an unsecured rear sliding door. The victim was not known to Mr Pool.
After entering the residence, Mr Pool found the victim asleep in her bedroom and placed his hand over her mouth. The victim woke up and started to offer resistance. Mr Pool wrapped his hands around the victim's throat and asked her to relax. She stopped resisting. Mr Pool loosened his grip and then used the victim's dressing gown cord to tie the victim's hands together and to the top of the bed.
Mr Pool removed a doona from the victim, exposing her naked body and then used a cardigan to tie her left leg to the base of the bed. Mr Pool placed the victim's underwear over her face and head, following which he positioned himself between her legs and rubbed her breasts, stomach and body.
Mr Pool then placed his hand between the victim's legs, rubbed the outside of her vagina and then penetrated the victim's vagina with his fingers. While doing this, Mr Pool used his mobile telephone to record and take photographs of the victim.
Mr Pool then removed a vibrator from one of the bedside draws. He used the vibrator to rub the outside of the victim's vagina, before penetrating the victim's vagina with it twice.
Risk assessment and treatment
Mr Pool was the subject of a number of reports over the past 22 years. Those reports, as a whole, suggest that Mr Pool lacks insight into his offending. At the time of his sentencing in 2012, while expressing guilt and shame for some of his offending, Mr Pool had 'considerable difficulty accepting unequivocal responsibility for his actions'[3] and often minimised responsibility for, and attempted to justify, his offending.[4]
[3] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure N – Psychological report of Steve Jobson dated 5 October 2012, 106.
[4] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure O – Pre‑sentence report addendum dated 18 October 2012, 115.
A report from Mr Steve Jobson, psychologist, dated 5 October 2012, for example said:[5]
While accepting some level of responsibility and offering empathy for the victims of his actions, Mr Pool's explanation of his offending behaviour was replete with justification and minimisation of seriousness. For example, of the offences he committed on 21 November 2010, he claimed 'I didn't want to hurt anyone … I didn't hit anyone … I wasn't going to rape her… I just wanted to look at her.'
[5] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure N – Psychological report of Steve Jobson dated 5 October 2012, 106.
Mr Jobson found that Mr Pool experienced a severe level of anxiety and depression, and that his offending often occurred during times of family conflict and the use of amphetamines.[6] He also found Mr Pool had issues with very low self‑esteem, and that Mr Pool 'holds considerable inhibitions concerning sexuality and sexual expression'.[7]
[6] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure N – Psychological report of Steve Jobson dated 5 October 2012, 106.
[7] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure N – Psychological report of Steve Jobson dated 5 October 2012, 108.
Mr Pool was assessed by Dr Sam Febbo, psychiatrist, in November 2012 for the purposes of the sentencing hearing that month. Dr Febbo found:[8]
From the psychiatric perspective, the dominant aspect of Mr Pool's presentation is the marked substance abuse/dependence. However, I also noted the presence of significant depression at the time of the offending and this appears to be his second episode of depression. He appears to have been severely depressed back in his late twenties and was working in the mining industry. At that time, too, he turned to self‑medication with substances.
There are aspects of Mr Pool's sexual offending that suggest the presence of a paraphilia. The relatively diverse nature of Mr Pool's sexual offending suggests the presence of a paraphilia not otherwise specified according to the DSM-IV-R. In this condition there are recurrent, intense sexually arousing fantasies, sexual urges, or behaviours that can involve non consenting persons and this can cause clinically significant stress or impairment in social, occupational or other important areas of functioning.
It is fair to say that, from the history, Mr Pool was aware of the inappropriate nature of his actions and made attempts to address his psychiatric issues including the substance abuse and inappropriate sexual behaviours.
[8] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure P – Psychiatric report of Dr Sam Febbo dated 8 November 2012, 126.
During Mr Pool's lengthy term of imprisonment, he has completed a number of programs.
In 2015, Mr Pool completed the Pathways Program. According to the Program Completion Report, Mr Pool's 'victim narrative remained dominant in his thinking and comments'.[9] The Report concluded:[10]
His treatment gains were limited to his deeper recognition of the impacts of his substance abuse on his life and others, his early grasp of how his childhood has shaped his life and some limited recognition of empathy. His considerable outstanding treatment needs relate to his stubbornness and his resistance to new ideas despite his recognition of same, his limited ownership and denial/victim thinking patterns and his poor emotional development and coping skills. Also, he has deficits in managing his use of illicit substances as a means of avoidance of his responsibilities and for emotional coping especially around relationship difficulties, business pressure and financial demands. His unaddressed exploitation of others for his sexual purposes, poor self-esteem, immaturity, and externalisation of blame for his behaviour, inability to self-regulate and coping skills for dealing with stress remain as further treatment needs for Mr Pool.
[9] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure Q – Pathways Program Completion Report dated 30 August 2015, 132.
[10] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure Q – Pathways Program Completion Report dated 30 August 2015, 133.
In 2016, Mr Pool completed the Think First Program. He was consistently punctual and attended all thirty sessions. He was observed to take an active interest in the session content and offered relevant input into group discussions. He was said to have made some limited treatment gains. The Program Completion Report concluded:[11]
Mr Pool's static scores appear linked to his seeming resistance to reveal how he might apply the skills examined in the programme to his situation, both now and in the future. He on a few occasions demonstrated what appeared to be a sense of deep shame at the thought of his previous actions. The challenge of accepting the management of emotional states associated with his offending, and accepting the consequences of it for himself and others, appeared to cause him a good deal of distress. It seemed easier for him to engage in ongoing justifications and blame shifting. Despite these difficulties Mr Pool did make treatment gains during the course of the programme. His gains in the area of recognising that problems exist, relate to his improved capacity to accept that he would benefit from external assistance to cope with his issues and that he must relinquish some independence to accept that assistance.
[11] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure R– Think First Program Completion Report dated 18 January 2017, 139.
In 2017, Mr Pool completed the Intensive Sex Offender Treatment Program. The Program Completion Report outlines some gains made in the program, such as an awareness and intention to address his emotional dysfunction and lack of self-esteem. Mr Pool was, nevertheless, still assessed as being in the high-risk category, requiring ongoing support and counselling particularly in self‑regulation and sexual issues.[12]
[12] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure S– Intensive Sex Offender Treatment Program Completion Report dated 14 May 2018, 146 ‑ 147.
The other reports before me included a Victim‑Offender Mediation Unit Report (2020), recommending protective conditions for Mr Pool's victims, a Parole Review Report (2021) and a Parole Assessment Report (2021).
According to the most recent Parole Assessment Report, it was recommended that Mr Pool be released to parole, citing reasons such as positive prison conduct, participation in voluntary programs, positive response to prior community supervision, and that supervision for the remainder of his sentence may assist with reintegration.[13] Protective requirements were recommended.
[13] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure V– Parole Assessment dated 5 October 2021, 166.
In the most recent psychological report of Mr Pool, prepared for parole assessment purposes, the author noted Mr Pool's rudimentary progress in criminogenic treatment programs and recommended he address outstanding treatment needs related to his sexual offending:[14]
[Mr Pool] appears to have made only rudimentary progress in the application of relevant skills and strategies to strengthen any such change in his life in general, to prevent recidivistic sexual offending. It is noted that in the current interview with Mr Pool and from information noted in the Parole Assessment Report, he did reveal some degree of motivation and commitment to abstain from illicit substances, and he also agreed to attend counselling as directed. While Mr Pool's comments and agreeableness in this regard are not questioned, the apparent limited treatment progress noted from the relevant Treatment Completion Reports, does suggest that he remains at risk of reoffending, although this might be somewhat mitigated by the apparent progress he made in individual counselling. While the possibility of recidivism is not likely to be imminent, his risk may escalate should he not make appropriate progress in further individual counselling or treatment, and should he again be faced with similar personal and environmental circumstances underpinning his Index offending.
[14] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure W – Psychological Report for Parole Review Board dated 22 December 2021, 177.
The author of that report agreed that the protective conditions proposed by the Parole Assessment Report were necessary.
The most recent report in relation to Mr Pool was the Forensic Psychological Intervention Team end of treatment report. That report concluded:[15]
Mr Pool has engaged in extensive criminogenic intervention in custody and has made rudimentary gains to date. He presents with personality traits and entrenched schemas and beliefs which appear to hinder effective therapeutic engagement in a criminogenic context. As such, while there are continued barriers to effective engagement and uncertainty regarding his release prospects slash options he is unlikely to benefit from further criminogenic intervention. Should Mr Pool receive further clarification regarding his release options, and have sufficient time to re-engage with FPIT prior to release, then he may benefit from intervention to develop and strengthen his self‑management and release plans.
[15] Affidavit of Daniel Sean McDonnell affirmed 25 August 2023, Annexure W – Forensic Psychological Intervention Team End of Treatment Report dated 7 August 2022, 195.
I now turn to my assessment.
Assessment
I am satisfied that there are reasonable grounds to believe the Court might find Mr Pool to be a high risk serious offender. Mr Pool's offending history suggests a distinct pattern of offending which escalated over time. That pattern of increasing sexual offending is suggestive of an underlying disordered tendency or disposition on Mr Pool's part.
On the basis of the material before me, Mr Pool appears not to have fully accepted responsibility for his sexual offending and its causes. While according to the psychological and psychiatric reports Mr Pool has experienced some mental health issues such as depression, anxiety and low self‑esteem, his issues appear to stem from his personality and issues with self‑regulation, exacerbated by a history of illicit substance abuse.
While Mr Pool has participated in several programs to address his behaviour while he has been in prison and has respectfully participated, his gains appear to be limited.
In my assessment, there is little evidence to suggest that Mr Pool is less likely to offend now than at the time he entered prison. On the basis of his offending history, his ongoing attitude towards his offending and his unmet treatment needs, I am satisfied that there are reasonable grounds to believe that a court might find that he is a high risk serious offender. I therefore made orders for the hearing of the restriction order application.
Turning then to the interim detention order.
Interim detention order
The State submitted that I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act.
The principal basis upon which that submission was made is that there is no suitable accommodation available to Mr Pool upon his release. Indeed, in submissions before me today counsel for the State confirmed that if suitable accommodation was available that it would be open to make an interim supervision order. Mr Pool's counsel also accepted that the availability of suitable accommodation was Mr Pool's hurdle in respect of a supervision order.
Consistent with the submissions of both counsel, my provisional view is that, in the absence of evidence that Mr Pool will be able to reside in accommodation that provides sufficient protection to the community, an interim supervision order would not be appropriate as it would not provide adequate protection to the community. Again, on a provisional basis, the evidence supports the conclusion that Mr Pool may well be a significant risk to the community, particularly if he is confronted with stressful situations that lead him both to substance abuse and to acting on his sexual predilections. Unstable and unsuitable accommodation could well give rise to such a stressful situation.
It is however a significant matter to deprive a person of their liberty beyond their sentence and in circumstances in which a restriction order application has not been determined. It is very much in the interests of the community, in the long term, if Mr Pool is able to be released on supervision with appropriate controls, supervision and accommodation.
For these reasons I adjourned the preliminary hearing to 26 October 2023 and made an order that Mr Pool be detained in custody until that date pursuant to s 46(2)(c)(i) of the Act. He will still, of course, be a sentenced prisoner until that time. Nevertheless, limiting the interim detention order to that date will enable Mr Pool and the relevant authorities to investigate whether suitable alternative accommodation arrangements can be made for his released into the community after his sentence is completed.
I am aware, from the material before me, that there are various supported accommodation programs that are available to persons subject to supervision orders under the Act. Those programs have not, to this point, been available to Mr Pool and I do not know whether they might be available now that I have ordered that the restriction order application be heard and determined. That is, however, a matter that should be explored.
To that end, I also made an order today that the Community Offender Monitoring Unit of the Department of Justice file and serve an affidavit as to any accommodation options by 23 October 2023.
If the position otherwise changes in the meantime, the parties have liberty to apply generally.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to the Honourable Chief Justice Quinlan
29 SEPTEMBER 2023
0
2
0