The State of Western Australia v Quartermaine
[2021] WASC 68
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- QUARTERMAINE [2021] WASC 68
CORAM: HILL J
HEARD: 2 MARCH 2021
DELIVERED : 2 MARCH 2021
PUBLISHED : 11 MARCH 2021
FILE NO/S: SO 16 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
LAWRENCE HENRY QUARTERMAINE
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief a court might find respondent is a high risk serious offender - Whether interim detention order should be made pending final determination of the proceedings - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 7, s 35, s 46
Result:
Application granted
Orders made for expert reports
Orders made that the respondent be detained in custody until hearing of application
Category: B
Representation:
Counsel:
| Applicant | : | Mr T W McPhee |
| Respondent | : | Mr G J Allen |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Graeme Allen Barristers & Solicitors |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Allen [No 5] [2018] WASC 274
Director of Public Prosecutions (WA) v Dodd [2015] WASC 249
Director of Public Prosecutions (WA) v Free [2010] WASC 255
Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v Cox [2020] WASC 344
The State of Western Australia v Ryan [2020] WASC 352
The State of Western Australia v ZSJ [2020] WASC 330
HILL J:
On 19 October 2020, the State of Western Australia applied for orders in respect of the respondent under s 35, s 46 and s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The State also sought an order that the respondent be detained in custody until the conclusion of the restriction order hearing pursuant to s 46(2)(c) of the HRSO Act.
The application was listed before me for the preliminary hearing on 2 March 2021.
The State's application at the preliminary hearing was for orders pursuant to s 46(2) of the HRSO Act for:
(a)Mr Quartermaine to undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in relation to hearing the restriction order application;
(b)the provision of any relevant report by a Department of Justice officer; and
(c)Mr Quartermaine to be detained in custody until the hearing of the restriction order application.
The main purpose of the preliminary hearing is for the court to determine whether it is satisfied there are reasonable grounds for believing that the court might, in accordance with s 7 of the HRSO Act, find that Mr Quartermaine is a high risk serious offender.[1]
[1] High Risk Serious Offenders Act 2020 (WA) s 46(1).
The decision on a preliminary hearing is the first step in a process which might lead to the indefinite detention of an offender following the conclusion of a sentence of imprisonment, on the grounds that it is necessary to make such an order to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.[2]
[2] The State of Western Australia v Cox [2020] WASC 344 [7].
At the preliminary hearing before me, counsel for Mr Quartermaine informed the court that, for the purposes of the preliminary hearing only, the respondent accepted there was sufficient material before the court to form a belief that a court might, at a restriction order hearing, find that Mr Quartermaine is a high risk serious offender.[3] On the materials before the court, I accept this concession was properly made.
[3] ts 9 - 10.
Counsel for Mr Quartermaine also informed the court that, at this stage, given the matters raised in the affidavit of India Ahalya Allegakoen filed 26 February 2021, suitable accommodation had not been identified for Mr Quartermaine for the date of his scheduled release in April 2021.[4] On the basis of this information, together with the materials filed on behalf of the State, I determined that the court should exercise its discretion to order that Mr Quartermaine be detained in custody until further order of the court. Without suitable accommodation, I do not consider that Mr Quartermaine can be released on an interim supervision order.
[4] ts 10.
Accordingly, at the conclusion of the hearing on 2 March 2021, I found that the orders sought by the State in s 46(2)(a) and s 46(2)(b) of the HRSO Act should be made, and that Mr Quartermaine should be detained in custody until the hearing of the restriction application pursuant to s 46(2)(c)(i) of the HRSO Act.
These are my reasons for making those orders.
Legislative background
Under s 35 of the HRSO Act, the State may apply for a restriction order in relation to a serious offender under custodial sentence who is not a serious offender under restriction, where there is a possibility that the offender might be released from custody within one year of the date the application is made. A serious offender under restriction is a person who is subject to a restriction order or an interim supervision order.[5]
[5] High Risk Serious Offenders Act s 3.
Section 35(2) provides that an application may be made under the section whether the custodial sentence was imposed before or after the commencement of s 35 and whether or not the offender is in custody.
After a restriction order application is made, the court must fix a date for a preliminary hearing.[6]
[6] High Risk Serious Offenders Act s 43(1).
Where the court is satisfied there are reasonable grounds for believing the court might find the offender is a high risk serious offender, the court must order the offender be examined by a psychiatrist and a qualified psychologist for the preparation of reports in accordance with s 74 for the hearing of the restriction order application,[7] fix a date for the hearing of the application,[8] and may order the offender to be detained in custody pending the hearing of the application.[9]
[7] High Risk Serious Offenders Act s 46(2)(a).
[8] High Risk Serious Offenders Act s 46(2)(d).
[9] High Risk Serious Offenders Act s 46(2)(c).
Applicable legal principles
In determining whether there are reasonable grounds for belief that a court might find an offender is a high risk serious offender, the test is analogous to that set out in Director of Public Prosecutions (WA) v Free[10] which considered the test under the DSO Act for determining whether there were reasonable grounds for belief that a court might find a respondent a serious danger to the community under that Act.[11]
[10] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [4], [8] - [13].
[11] The State of Western Australia v Ryan [2020] WASC 352 [14].
In considering the test applicable under the HRSO Act, as was noted by Fiannaca J in The State of Western Australia v ZSJ:[12]
[T]he HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether [they are] a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.
[12] The State of Western Australia v ZSJ [2020] WASC 330 [5].
In The State of Western Australia v Cox, Allanson J set out the threshold test in respect of a preliminary hearing in the following terms:[13]
In a preliminary hearing, a judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made - that is, a judge might be satisfied to a high degree of probability that it is necessary to make an order for continuing detention or supervision of the respondent to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. To say that something might occur is to say that it is possible.
For there to be 'reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. That is the threshold that must be crossed before ordering that the respondent be examined by a psychiatrist and qualified psychologist whose reports will form the primary evidence on the application for a restriction order.
[13] The State of Western Australia v Cox [15] - [16].
In deciding whether Mr Quartermaine is a high risk serious offender, the court must be satisfied that it is necessary to make a restriction order pursuant to s 7(1) of the HRSO Act, to ensure adequate protection of the community against an unacceptable risk that Mr Quartermaine will commit a serious offence. In determining whether it is satisfied, the court must have regard to the factors set out at s 7(3) of the HRSO Act.
In Director of Public Prosecutions v Dodd, Simmonds J discussed the principles to be applied by the court in making an order pursuant to s 14 under the DSO Act.[14] The same principles apply to the making of an order under s 46 of the HRSO Act, namely that: [15]
(a)the court must have a belief in the possibility that a later court will be satisfied 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; that belief is the threshold that must be crossed before a judge can order the respondent to undergo examination by experts;
(b)s 46 of the HRSO Act refers to s 7 of the HRSO Act;
(c)it is conceivable that even in the absence of any reports from a psychiatrist or other medical or psychological assessment at the preliminary hearing, on the basis of the respondent's criminal record alone, there may be grounds for concluding that a court may be persuaded that the offender is a high risk serious offender;
(d)reasonable grounds for such a conclusion ordinarily will require more than the respondent's offending behaviour to be recited;
(e)for the court to form that conclusion, there must be sufficient facts or circumstances to provide the basis for the proposition under review.
[14] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [38]; Applicant's submissions [13].
[15] The State of Western Australia v Ryan [19].
To determine whether there are reasonable grounds to form the requisite belief, the court is required to consider the admissible evidence before it, as specifically modified by the HRSO Act. As Allanson J in The State of Western Australia v Cox stated:[16]
If there is to be a reasonable ground based on the existence of facts, I need to look at the evidence. Section 46, read with s 84 and s 7, provides for the evidence on which the court may act in a restriction order proceeding. Although s 84(3) refers to the court acting on admissible evidence, s 84(4) and s 84(5) modify the rules of evidence to allow the court to receive into evidence material including 'any document relevant to the antecedents' of the offender; and any medical, psychiatric, psychological or other assessment relating to the offender; and any information indicating whether or not the offender has a propensity to commit serious offences in the future.
[16] The State of Western Australia v Cox [17].
If the court forms the requisite belief, it then must consider whether it should exercise its discretion to order that an offender be detained in custody or whether to make an interim supervision order until the restriction order hearing. The principles that guide the court's discretion are:[17]
(a)the relative strength of the applicant's case that the respondent represents an unacceptable risk to the community and may commit an offence before the application is finally heard;
(b)the extent to which the court can be confident that any such risk will be sufficiently minimised by the respondent's adherence to the supervisory conditions and other requirements; and
(c)the fundamental consideration as to the system of justice and the undesirability of depriving the respondent of their liberty prior to the application being finally determined. Where the court ultimately dismisses the application or alternatively makes a supervision order, any interim detention order against the respondent will have been unnecessary and possibly damaging to the long-term interest that the community has in maximising the respondent's chance of rehabilitation.
[17] Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160 [62] - [64] (Blaxell J); The State of Western Australia v Ryan [21].
Factual background and evidence
The State's application is supported by an affidavit of Heidi Karen Watson affirmed 19 October 2020, an affidavit of India Ahalya Allegakoen filed 26 February 2021 and written submissions dated 24 February 2021.
Counsel for Mr Quartermaine did not seek to rely on any documentary material or any written outline of submissions.
Respondent's criminal history
Mr Quartermaine is 39 years old, having been born on 10 April 1981. He is currently serving a term of 15 months' imprisonment that was imposed on 1 May 2020, which was backdated to commence on 16 January 2020. Mr Quartermaine is due for release at the completion of his sentence on 15 April 2021. I accept that the State may make an application in respect of Mr Quartermaine.
The respondent has a lengthy criminal history which commenced in 1993 when he was 12 years old.
The respondent's first conviction for a sexual offence was in August 2009 for offences that occurred in 2003. The respondent was charged with four counts of sexual penetration without consent and two counts of aggravated burglary. The offences occurred at the same house on two separate occasions: one on 9 March 2003 and the second on 3 April 2003.
Following his release from prison on 8 March 2003, on 9 March 2003 the respondent entered the victim's house when she was asleep in bed with her eight‑year‑old daughter. Her three other children were also in the house. The victim awoke to find the respondent kneeling over her. He touched her on her underwear and under her underwear inserting his finger into her vagina. He then penetrated her vagina with his penis before leaving the house.
On 3 April 2003, the respondent returned to the victim's home while she was asleep in bed with her daughter. Once again, the respondent entered her bedroom, penetrated her vagina with his fingers and then penetrated her vagina with his penis.
The respondent initially pleaded not guilty to the offences but changed his plea to a plea of guilty after the first day of trial and after the victim had given evidence in chief. On 4 August 2009, the respondent was sentenced to 10 years' imprisonment, which was backdated to 12 September 2007. While the respondent was made eligible for parole, he served his full 10 year sentence and was released from custody on 11 September 2017.
The next offences committed by Mr Quartermaine commenced approximately two months after his release from prison. Between 16 December 2017 and 26 February 2018, Mr Quartermaine was charged with a series of offences for masturbating in public or in a police lock‑up. One of these offences occurred in front of a woman who was with her toddler and infant daughters. On 4 May 2018, the respondent was sentenced to a term of 7 months' imprisonment for these offences, which was suspended for a period of 12 months.
Between 21 and 22 May 2018, Mr Quartermaine was charged with three separate offences for masturbating in public as well as one charge of unlawful and indecent assault. In October 2018, he was sentenced to a term of 14 months' imprisonment (backdated to 23 May 2018) for these offences together with breaches of a conditional suspended imprisonment order that had been imposed in May 2018.
The next offences occurred between November 2019 and January 2020. On 27 November 2019, Mr Quartermaine was in the car park of the Thornlie train station and masturbated in front of a female driver who was then in her vehicle. He was arrested and placed on bail, which included a condition not to attend the Thornlie train station.
On 1 January 2020, Mr Quartermaine attended the Thornlie train station and repeatedly followed a female as she moved on and off a train. He sat down next to the victim on the train, put his arm around her and asked her for a kiss. He then forced his hands between her legs and squeezed her groin on the outside of her jeans. On 16 January 2020, the respondent was arrested for these offences at his home and taken to the Cannington police station lock‑up. While at the lock‑up, he began to masturbate while staring at a woman who was at the police station with her child. The respondent was charged with the offence of an obscene act in a police station. Mr Quartermaine was sentenced to 15 months' imprisonment for these charges.
In addition to these convictions, Mr Quartermaine has a number of convictions for violence, including the assault of domestic partners on three separate occasions. Two of these offences occurred when his then domestic partner refused his sexual advances.
Mr Quartermaine's antecedents
Mr Quartermaine is an Indigenous man. Due to his parents' issues with alcohol abuse, he was primarily raised by his aunt and uncle.
Mr Quartermaine attended school until year 9. During his teenage years, the respondent developed substance abuse issues including with alcohol, cannabis and methylamphetamine. Apart from one short period of employment, Mr Quartermaine has not worked due to drug abuse issues.
Mr Quartermaine has three children from previous relationships. He has had no significant contact with his children for a number of years.
Reports and treatment programs
No reports were prepared for the preliminary hearing. However, the State adduced in evidence a number of reports that had been prepared for previous sentencing hearings.
The evidence before the court is that Mr Quartermaine has entrenched illicit drug use issues which have contributed to his offending.
A psychological report was prepared in July 2009, prior to Mr Quartermaine being sentenced on the most serious of the offences he has been convicted of.[18] At that time, Mr Quartermaine was assessed using the STATIC‑99 risk assessment measure which placed him in the medium high risk category. I note that the application of this risk assessment tool to aboriginal offenders in Western Australia has been previously questioned because of the lack of data that confirms it is capable of predicting recidivism within this population.[19] At that stage, the psychologist concluded that Mr Quartermaine's treatment needs were multiple as he demonstrated a significant propensity for violence. Intensive treatment was highly recommended due to the significant risk that Mr Quartermaine would re‑offend.
[18] Affidavit of Heidi Karen Watson affirmed 15 October 2020, Annexure AF.
[19] See for example Director of Public Prosecutions (WA) v Allen [No 5] [2018] WASC 274 [46].
Mr Quartermaine has engaged in the intensive Sex Offender Treatment Program on two occasions: the first in 2014 and the second in 2015. In 2014, Mr Quartermaine completed 21 of 107 sessions but was removed from the program due to his mental health.[20] In 2015, Mr Quartermaine completed the program. At the conclusion of the program, the completion report states:[21]
It is suggested that Mr Quartermaine's sexual offending is an extension of his violent behaviour, his sense of entitlement generally but also sexually. He appears to hold anti-social views and distorts his truth to gain compliance with what he wants. He was observed to have made no gains relating to his criminogenic treatment targets; however it is acknowledged that he completed the program and maintained compliance with his medication regime and demonstrated an ability to self-regulate during times of stress. It is suggested that without considerable support in the community Mr Quartermaine will continue to offend.
[20] Affidavit of Heidi Karen Watson affirmed 15 October 2020, Annexure AH.
[21] Affidavit of Heidi Karen Watson affirmed 15 October 2020, Annexure AI.
The most recent psychiatric report of Mr Quartermaine was obtained in September 2018.[22] The report expresses the opinion that Mr Quartermaine's risk of sexual re‑offending is high without further treatment of his substance abuse. The report recommended that Mr Quartermaine continue treatment with antipsychotic medications for schizophrenia, repeat the Sex Offender Treatment Program and have drug and alcohol counselling.
[22] Affidavit of Heidi Karen Watson affirmed 15 October 2020, Annexure AJ.
The most recent treatment assessment report of Mr Quartermaine was in June 2020.[23] At that time, Mr Quartermaine was unable to be assessed as a consequence of his major mental illness and was referred to specialist services for a full assessment. There is no evidence before the court as to whether this occurred and, if so, what the assessment was.
Whether Mr Quartermaine has a propensity to commit serious offences in the future and whether there is any pattern of offending behaviour
[23] Affidavit of Heidi Karen Watson affirmed 15 October 2020, Annexure AL.
As was submitted by the State, the word 'propensity' must be given its ordinary and natural meaning which is 'to have an inclination or tendency to do something'.[24] Essentially, it means that there is an identifiable characteristic of the offender in his or her make up or personality, which may or may not be of the quality of a diagnosable mental illness or personality disorder.
[24] The State of Western Australia v Bellamy [2013] WASC 467 [70].
The evidence before the court is that Mr Quartermaine has schizophrenia. The psychiatric report obtained for the respondent's sentencing in October 2018 expresses the opinion that Mr Quartermaine also has drug use disorder and an antisocial personality disorder.[25]
[25] Affidavit of Heidi Karen Watson affirmed 15 October 2020, Annexure AJ.
I accept that the respondent's criminal history of offences illustrates a tendency to commit sexually motivated offences. I also accept that the respondent in the past has been prone to violence, particularly when he is under the influence of illicit drugs.
It is clear that Mr Quartermaine has a propensity to commit serious offences as he has been convicted of repeated sexually motivated and violent offences over the course of more than 20 years. His pattern of offending is associated with intoxication from his use of methylamphetamines.
Conclusion
On the basis of the materials before the court, I accept there are reasonable grounds for believing that a court may find that Mr Quartermaine is a high risk serious offender and that, as a result, orders should be made under s 46(2)(a) and s 46(2)(d) of the HRSO Act.
The question then is whether I should make an interim detention order or an interim supervision order in respect of the respondent. At this stage, as was conceded by counsel for Mr Quartermaine, the respondent does not have any suitable accommodation available to him on his release from imprisonment. Without suitable accommodation, I do not consider that there are conditions which could currently be put in place which would sufficiently provide for adequate protection of the community.
Accordingly, it is my view that an interim detention order should be made in respect of the respondent. If between the dates of today's hearing and the hearing of the restriction order application, the position changes and suitable accommodation has been identified, the question as to whether the interim detention order is appropriate can be re‑assessed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill
11 MARCH 2021
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