The State of Western Australia v Reid
[2022] WASC 355
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- REID [2022] WASC 355
CORAM: DERRICK J
HEARD: 21 OCTOBER 2022
DELIVERED : 21 OCTOBER 2022
PUBLISHED : 25 OCTOBER 2022
FILE NO/S: SO 12 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PATRICK JOSEPH REID
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 - Restriction order application - Preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Whether an interim supervision order should be made pending determination of the application - Turns on own facts
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders made pursuant to s 46(2)
Interim supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v Lynch [2022] WASC 104
The State of Western Australia v Ratcliff [2021] WASC 31
The State of Western Australia v Ugle [2022] WASC 91
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Application
On 6 July 2022 the State of Western Australia (State) made an application for orders to be made in relation to Patrick Joseph Reid (the respondent) as follows:
1.A restriction order under s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (Act) (the application for this order being made pursuant to s 35(1) of the Act);[1]
2.Orders pursuant to pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act requiring, among other things, that the respondent undergo examination by a psychiatrist and a psychologist for the purpose of preparing reports to be used on the hearing of the restriction order application; and
3.An order pursuant to s 46(2)(c)(i) of the Act that the respondent be subject to an interim detention order until the final determination of the restriction order application, or alternatively an order pursuant to s 58(5) of the Act that the respondent be subject to an interim supervision order until the final determination of the application.
[1] The respondent is an 'offender' for the purposes of the Act and a 'serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act: see the definition of 'offender' in s 3 of the Act, par (b) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act.
I have today heard the State's application for the orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Accordingly, the hearing that has taken place before me is a preliminary hearing conducted pursuant to s 46(1) of the Act.
I have also heard the State's application pursuant to s 58(5) of the Act. The State has not pressed for an interim detention order to be made pursuant to s 46(2)(c)(i).
The respondent concedes that the requirements of s 46(1) are met and therefore does not oppose the application for the orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Nonetheless, it is, of course, still necessary for me to examine the evidence and to satisfy myself that the orders sought should be made.
The respondent, for reasons that I will elaborate upon in due course, opposes the application made pursuant to s 58(5) of the Act.
The respondent's current status
On 14 June 2021 the respondent was sentenced to 2 years imprisonment for an offence of doing an act which caused bodily harm with intent to cause harm contrary to s 304(2)(a) of the Criminal Code (WA) (Code) (index offence). He was made eligible for parole but has been refused released on parole. The expiry date of his sentence is 30 October 2022.
On 12 October 2022 the Prisoners Review Board (PRB) made a post-sentence supervision order in relation to the respondent pursuant to s 74D of the Sentence Administration Act 2003 (WA) (SA Act) to come into effect on 30 October 2022 (PSSO).[2]
The law[3]
[2] Exhibit 6.
[3] My statement of the applicable law reproduces what has been written by other judges of this court in numerous recent decisions: see by way of example only, The State of Western Australia v Ugle [2022] WASC 91 [5] - [8] (Hall J) and The State of Western Australia v Lynch [2022] WASC 104 [7] - [10] (Quinlan CJ).
Section 46(1) of the Act provides that the main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the Act.
A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act is defined in s 5 and sch 1.
I do not have to be satisfied that a restriction order will be made. It is sufficient at this stage of proceedings if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. Further, a belief is an inclination of mind towards assenting to rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
The evidence
In support of the application the State relies on an affidavit affirmed by Daniel Sean McDonnell on 6 July 2022.[4] Mr McDonnell is a legal practitioner employed by the State's Solicitor. Annexed to Mr McDonnell's affidavit are a number of documents including the respondent's criminal record, documents relating to the respondent's prior convictions and reports that have been prepared in relation to the respondent.
[4] Exhibit 1
The State also relies upon an affidavit sworn by Martyn James Clancy-Lowe on 16 September 2022[5] and an affidavit affirmed by Stacey Madden on 29 August 2022.[6] Mr Clancy-Lowe is the Executive Manager of the Sex Offender Registry. Ms Madden is a Senior Community Corrections Officer (CCO) employed by the Department of Justice (Department) and is based at the Community Offender Monitoring Unit (COMU).
[5] Exhibit 2.
[6] Exhibit 3.
The State also relies in support of the application upon a Western Australian Police Force Desktop Spatial Analysis dated 9 August 2022[7] and a Pathways Program Completion Report dated 27 September 2022.[8]
[7] Exhibit 4.
[8] Exhibit 7.
The respondent's background and personal circumstances
The respondent is a 48-year-old Indigenous man from the East Kimberley region. He has a history of alcohol and cannabis abuse.
The reports annexed to the affidavit of Mr McDonnell reveal that the respondent commenced drinking alcohol with his family when he was 15 years old and established a pattern of heavy drinking. He has since had some long periods of abstinence.
The respondent's counsel has informed me that her instructions are that the respondent has abstained from alcohol for approximately 17 years. Given a statement made by the respondent to the facilitators of one of the programs that he has recently engaged in, to which I will refer in due course, I doubt that he has managed to completely abstain from alcohol for this period of time. However, there is nothing in the evidence before me to suggest that he has not managed to abstain for a significant period of time (years as opposed to months).
The reports annexed to the affidavit of Mr McDonnell also reveal that the respondent has been a long term and regular user of cannabis.
The respondent's counsel has informed me that the respondent has not consumed cannabis for some time and that he will be leaving prison 'clean'.
The respondent's counsel has informed me that the respondent has now obtained a driver's licence and that this is a 'huge' protective factor for him.
The respondent's criminal record[9]
[9] Exhibit 1, annexure A, 6.
The respondent has a lengthy criminal record which includes convictions for offences of violence, particularly against his partners. He has spent significant periods of his adult life in prison although he has had long periods in the community without offending.
The respondent's criminal record includes convictions for a number of 'serious offences' within the meaning of the Act, specifically manslaughter contrary to s 280(1) of the Code, criminal damage by fire contrary to s 444(1)(a) of the Code and the index offence.
The respondent committed his manslaughter offence in 1994. On 17 August 1994 he was convicted after trial of the offence (he was charged with murder but convicted of the available alternative of manslaughter). On the same date he was sentenced to 5 years and 4 months imprisonment, the sentence having been reduced from 6 years to take account of the time that he had already spent in custody.
The respondent committed his offence of criminal damage by fire in 2009. He pleaded guilty to the offence. On 20 July 2009 he was sentenced for the offence to a 12-month community based order with a requirement that he perform 80 hours of community service.
The respondent committed the index offence on 31 October 2020. He pleaded guilty to the index offence at an early opportunity.
The respondent also has convictions for offences that reveal a disregard for court orders and law enforcement. In particular, he has been convicted of breaching a violence restraining order, breaching a suspended imprisonment order, three breaches of bail, breaching a restraining order and escaping legal custody. These offences were all committed before 2007 and, with the exception of the offence of breaching a suspended imprisonment order, resulted in the imposition of small fines.
The respondent has successfully completed some periods on parole.
Prior to being sentenced for the index offence the respondent had last been sentenced to an immediate term of imprisonment in December 2007. On that occasion he was sentenced to a total term of 13 months imprisonment for assault and wounding offences. This is not to say that the respondent did not commit offences between 2007 and October 2020. He did. However, the offences were not viewed by the sentencing courts as being of sufficient seriousness to warrant the imposition of immediate terms of imprisonment.
Facts of the index offence
The facts of the index offence were as follows.[10]
[10] Exhibit 1, annexure F, 29 - 31.
On 31 October 2020 the victim, who was at the time the partner of the respondent's sister, was riding a bicycle down a street. The respondent was a passenger in a car when he saw the victim on the bicycle. The respondent had, earlier that day, provided the victim with money in order to buy cannabis. The victim had not returned with the cannabis as expected.
The respondent made the driver of the car stop and approached the victim. He asked the victim about the cannabis and the victim replied that he had smoked the cannabis. This angered the respondent who punched the victim to the head causing him to fall to the footpath.
The respondent then stomped on the side of the victim's head. He then circled around the victim before jumping into the air and landing with his foot on the victim's head. The victim appeared to be unconscious by this time. The respondent stomped on the victim's head a final time and then walked away.
The victim suffered swelling and lacerations to the right side of his head and ear but no brain injury.
The respondent was charged. It was clear, and the respondent admitted, that he intended to harm the victim. He admitted to the police that he was upset that the victim had smoked the cannabis.
The sentencing judge found that the offence was not premeditated and resulted from a loss of self-control.[11]
[11] Exhibit 1, annexure F, 31.
Facts of the manslaughter offence
As I have already indicated, another of the respondent's 'serious offences' is an offence of manslaughter. Despite the fact that the offence was committed in 1994, almost 30 years ago, due to the objective seriousness of the offence I will state the facts of the offence. The facts are as follows.[12]
[12] Exhibit 1, annexure I, 41.
On the afternoon of 24 March 1994 the respondent and the victim were drinking near the Halls Creek townsite with a number of other people. The respondent and the victim had been in a relationship for approximately three or four months.
The respondent and the victim got into an argument and the respondent threatened to hit the victim. The respondent and the victim then went to the Halls Creek Hotel where they continued drinking at separate bars. An hour or so after they arrived at the hotel the respondent approached the victim and requested that she accompany him home. The victim refused and the respondent became angry, punching the victim in the face and knocking her to the ground where she hit her head. The respondent then punched the victim again when she was on the ground.
The respondent left the hotel and walked back to his car. The victim followed him and he again punched her to the face. The respondent and the victim then appeared to resolve the argument. They returned to their home in a nearby community.
On arrival at the community the argument recommenced and the respondent picked up a boomerang that was behind the seat of the car and punched the victim again. As the victim ran away the respondent threw the boomerang at her. The boomerang struck the victim's body. The respondent then struck the victim several more times to the torso and legs with the boomerang until it broke. He then picked up a piece of hose and struck the victim with it several more times while she was on the ground. He also kicked and punched her body several more times before picking up a metal window louvre and striking her on the side and legs with it.
During the ongoing assault the victim fell to the ground and struck the back of her head heavily on the edge of the concrete veranda and the ground. She lost consciousness. The respondent then poured hot liquid from a cooking pot over the victim's chest and legs. The victim failed to respond so the respondent picked up a smouldering stick from a campfire and prodded her with it. When the victim again failed to respond the respondent dragged her to the side of the house and hosed her down with cold water in an attempt to revive her. This also failed.
Finally, the respondent dragged the victim inside and changed her clothes. He then realised that the victim had no pulse or heartbeat. He gave her mouth to mouth resuscitation and CPR, successfully regaining her pulse and heartbeat. He then ran to a telephone box to phone an ambulance. On his return the victim had again stopped breathing and had no heartbeat. By the time the ambulance arrived the victim was deceased.
Participation in programs
The respondent has completed three prison based programs, the Cognitive Skills - Think First Program (Cognitive Skills Program), the Not Our Way Family and Domestic Violence Program (Not Our Way Program) and the Pathways Program. He completed the Cognitive Skills Program in November 2008. He completed the Not Our Way Program in February this year. He completed the Pathways Program in September this year. The completion reports for all three programs indicate that the respondent was motivated to participate in the programs and was an active participant in the programs.
In the Completion Report for the Cognitive Skills Program dated 12 January 2009 the facilitators of the program said the following in relation to the respondent's motivation and participation:[13]
[The respondent] presented at the pre-program interview motivated to participate in the program. He was hoping to learn 'how to think before I do something'…
[The respondent] had a mature attitude towards participants and facilitators and got on well with every one (sic) in the group…When required he would put forward his views and thoughts. [The respondent] attended all 30 sessions of the program, normally turning up first which showed his degree of motivation.
…
[The respondent] worked methodically through material, asking for clarification where needed and ensuring he had an understanding before moving onto the next exercise. He covered all material in the program and gained a reasonable understanding of the concepts presented.
[The respondent] identified that his biggest problem was alcohol, drugs and 'old mates'.
[The respondent] has a good understanding of his offence cycle which comprised drinking, drugs, arguments which lead to violence and lack of communication…
[The respondent] has achieved good result through his motivation to learn and his drive to change his offending behaviour. It is considered that [the respondent] will need support from his community in the form of positive role models and employment.
The Community Corrections Officer will need to play a major role in [the respondent's] integration into the community by working within a motivational interviewing framework to help [the respondent] to attain his goal of abstinence…
[13] Exhibit 1, annexure X, 114 - 115.
In the Completion Report for the Not Our Way Program dated 21 March 2022 the program facilitators said the following in relation to the respondent's attitude and performance in the program:[14]
Throughout his program engagement, [the respondent] was a polite and focussed participant. [The respondent] remained mostly quiet during group discussions but was thoughtful and on topic during instances in which he contributed to the discussion. [The respondent] was observed to be actively listening during group discussions and would consistently write topical notes into his program journal. [The respondent] was an active participant during smaller group exercises and individual activities. [The respondent] regularly displayed a positive attitude towards Program Facilitators, was encouraging towards other participants, and expressed frequent gratitude with regards to his participation in the group.
[The respondent] did not require assistance during individual or group activities and displayed evidence of conceptual understanding through his journal, worksheets and contributions to discussions.
[14] Exhibit 1, annexure AH, 159.
In relation to the respondent's understanding of the link between his substance abuse and his offending the program facilitators said the following:[15]
[The respondent] identified that he managed his alcohol consumption by abstaining for 'at least five years'. [The respondent] reported heavy cannabis use and identified that this contributed to his offending behaviour.
When examining the cycle of violence and how alcohol relates to the stages of the cycle, [the respondent] was able to insightfully demonstrate how alcohol and cannabis had impacted his relationships in the past.
[15] Exhibit 1, annexure AH, 162.
It is the respondent's statement to the facilitators that he had abstained from alcohol for 'at least five years' that causes me to doubt his previously referred to instructions to his counsel that he has abstained for 17 years.
In relation to the issue of the gains made by the respondent by his participation in the program the program facilitators made the following remarks:[16]
[The respondent] made some gains in relation to his treatment needs including improving his emotional regulation and consequential thinking. [The respondent's] treatment needs regarding improving victim empathy and responsibility taking remain unmet and present a risk for future offending.
…
[The respondent] made gains in relation to emotional regulation and improving consequential thinking…Moreover, while exploring potential impact to the victims of violent offending, [the respondent] was able to demonstrate an ability to understand the consequences of his actions.
In relation to [the respondent's] victim empathy and responsibility taking, [the respondent] was able to show some evidence of limited compassion and perspective taking. However, [the respondent's] demonising comments regarding the victim of [the index offence], his minimising of the offence, and reluctance to explore recent offending demonstrate a lack of responsibility taking and empathy. Additionally, [the respondent] was charged in prison with assaulting the victim of [the] index offence whilst they were both in custody at West Kimberley Regional Prison. The respondent's reluctance to acknowledge this incident combined with minimisation of original offending demonstrate an ongoing risk to the victim.
[16] Exhibit 1, annexure AH, 162 - 163.
In the Completion Report for the Pathways Program dated 27 September 2022 the program facilitators stated that the respondent presented as a focused and engaged participant who was willing to explore factors relating to his substance use and offending.[17]
[17] Exhibit 7, 3.
The facilitators acknowledged that the respondent had made treatment gains in relation to his substance (cannabis) use.[18] However, they made the point that his gains were yet to be tested in the community and expressed the view that he may benefit from further alcohol and drug counselling and support in the community.[19]
[18] Exhibit 7, 4.
[19] Exhibit 7, 4.
The facilitators also acknowledged that the respondent had made treatment gains in the area of emotional management and coping skills. However, they expressed the view that his treatment gains in this area were 'emerging' and again made the point that his gains were yet to be tested in the community.[20] They expressed the further view that he would likely benefit from further support upon release in the form of counselling that will assist him to consolidate gains made during the program and to further develop his emotional management strategies.[21]
[20] Exhibit 7, 5.
[21] Exhibit 7, 5.
At the end of their report the facilitators said the following:[22]
[The respondent's] treatment needs were identified as Substance Use, Poor Emotional Management and Copying Skills/Impulsivity, Antisocial Cognition/Consequential Thinking Skills. He explored factors relating to his cannabis use and made the decision to cease his use. He developed a number of skills to manage his use which included assertive refusal skills, positive thinking, engaging a positive support network, consequential thinking skills, and positive self-talk. He explored factors related to his poor emotional management and impulsivity and developed strategies to manage difficult emotions. These strategies included active sharing, positive thinking, and thought stopping skills. He identified antisocial thinking patterns that he previously engaged in and was able to challenge these with pro-social beliefs. He also displayed the ability to engage in consequential thinking skills.
[The respondent] identified his relapse and recidivism risks as spending time with antisocial peers, returning to substance use, and mis-managing difficult emotions. He developed and practised a number of strategies to manage [these] risks including positive thinking, positive self-talk, assertive refusal skills, active sharing, consequential thinking skills and empathy skills. He displayed the ability to implement a number of these strategies throughout the program.
[The respondent's] treatment gains will need practice to consolidate and are yet to be tested in a community-based setting. Should he be offered a period of supervised release, it is recommended that the following will assist him: Monitoring of substance use through urinalysis, providing with support to engage in new employment and training opportunities and encourage participation and engaging in counselling that assists with consolidating gains made during the program.
[22] Exhibit 7, 6.
Recent risk assessment
In September 2021 the respondent's treatment needs were assessed by the Department. The Treatment Assessment Report prepared as a result of this assessment dated 24 September 2021[23] records that the Level of Service/Risk, Need, Responsivity screening tool was used to assess the respondent's risk of reoffending and that the result of the assessment was that the respondent was at high risk of general reoffending. The Report also records that the Violence Risk Scale assessment tool was used to assess the respondent's risk of reoffending and that the result of the assessment was that the respondent was at a high risk of violent offending.
[23] Exhibit 1, annexure AF, 150.
Accommodation situation
The respondent's intention, on being released from prison, is to live with his mother Ms Ivy Lannigan at her home address in Halls Creek (proposed address). He has not identified any other accommodation options.
In her affidavit Ms Madden deposes to the following matters in relation to the respondent's intention to live at the proposed address:
1.On 9 August 2022 she made contact with Ms Lannigan who expressed her knowledge of the respondent's criminal record and confirmed her willingness for the respondent to reside with her if he is released;
2.Ms Lannigan stated that she lives at the proposed address with her sister and that at times other family members also stay at the address;
3.Ms Lannigan stated that her home is registered as an alcohol restricted property;
4.Halls Creek is approximately 358 km southwest of Kununurra;
5.On 29 July 2022 she contacted Kununurra Adult Community Corrections (ACC). ACC advised her that they typically visit Halls Creek every two weeks for case management purposes and that the respondent would have the ability to make phone calls in between visits if required; and
6.On 18 August 2022 electronic monitoring equipment was tested in the Halls Creek area for the purpose of ascertaining whether GPS monitoring of the respondent could occur. While there were no issues identified at the time of testing, effective monitoring would be confined to the immediate Halls Creek township. In the event of administrative or technical issues there would be no ability to attend on the respondent outside business hours. If the respondent became uncontactable the Department would be relying on local authorities for assistance. Given limitations regarding the ability to attend to electronic monitoring issues and the infrequency of ACC attendance in Halls Creek, there may be periods where the integrity of electronic monitoring is compromised and/or the respondent is unable to be monitored.
In his affidavit Mr Clancy-Lowe, who was asked by the Department to undertake an accommodation assessment of the proposed address, deposes that according to the Western Australia Police Information Management System (IMS) the occupants of the proposed address include three persons (not including Ms Lannigan or her sister) each of whom has been convicted of a variety of offences.
In his affidavit, Mr Clancy-Lowe deposes that in 2022 police have attended several domestic violence incidents between family members at the proposed address.
In his affidavit Mr Clancy-Lowe further deposes that the proposed address is within two kilometres of the residence of the respondent's brother who was the victim of an offence of using a firearm to cause fear that was committed by the respondent.
The Desktop Spatial Analysis reveals that the offence committed by the respondent involving the use of the firearm was committed when the respondent was a juvenile and involved him firing a shot over his brother's head. The Desktop Spatial Analysis also reveals that the nearest police station to the proposed address is the Halls Creek Police Station which is located one to five minutes away from the address. It is common ground that the proposed address actually backs onto the Halls Creek Police Station.
During her submissions the respondent's counsel informed me that she managed to speak to Ms Lannigan on 20 October 2022. Counsel informed me that Ms Lannigan is 70 years old, that she lives at the proposed address with her sister who is 58 years old, that she and her sister have health and mobility issues, that she is still willing for the respondent to live with her and her sister at the proposed address, and that she hopes that the respondent will be able to provide her and her sister with assistance. Counsel informed me that the respondent is intending to provide assistance to his mother and her sister and that he considers that performing this role will give him a sense of purpose.
Counsel informed me that Ms Lannigan confirmed that the proposed address is registered as an alcohol restricted property and that there is a notice on the front door stating, in substance, that no alcohol is to be brought onto, or consumed, on the property.
Counsel also informed me that one of the family members who on occasion stays at the house, who is one of the three persons who Mr Clancy-Lowe refers to in his affidavit as having a criminal record, is a young man with substance abuse issues. Counsel stated that Ms Lannigan informed her that she does not allow this individual to use illicit substances at the proposed address or to stay at the proposed address if he is under the influence of illicit substances.
The PSSO conditions
The standard conditions of the PSSO specified in s 74F of the SA Act are as follows:
1.To report to Halls Creek ACC within 72 hours of being released from prison or as otherwise directed by a CCO;
2.To notify a CCO of any change of address or place of employment within 2 clear working days of the change; and
3.To comply with s 76 of the SA Act (which in essence requires compliance with lawful directions and orders of a CCO).
The conditions of the PSSO that are additional to the standard conditions specified in s 74F of the SA Act are as follows:
1.To have no direct or indirect contact with the victim of the index offence;
2.To attend programs and counselling as directed;
3.Not to use or be in possession of any illicit drug including cannabis;
4.To attend random urinalysis as directed by a CCO and to provide a valid sample;
5.Not to consume alcohol;
6.Not to enter licensed premises except cafes, restaurants, sporting venues and grocery stores, but not to purchase alcohol at any venue;
7.To submit to random breath testing as required by police; and
8. Not to change his address without the prior approval of his CCO.
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
The respondent has a significant history of violent offending, often associated with alcohol or drug use. The respondent's past problems with alcohol have been significant. The respondent's problems with cannabis are significant. There are reasonable grounds to believe that if the respondent is unable to control his use of alcohol and cannabis he will return to the kind of violent offending that has seen him imprisoned in the past.
The most recent assessment of the respondent's risk level suggests that he is at a high risk of committing further offences of violence.
Although the completion reports for the respondent's participation in the Not Our Way Program and the Pathways Program reveal that in recent times the respondent has shown signs of willingness to change and to live a pro-social life, there is sufficient evidence to indicate that maintaining his abstinence from alcohol and illicit drugs, most specifically cannabis, will continue to present a significant challenge for him. I note in this respect that despite having successfully completed the Cognitive Skills Program the respondent continued to offend including by committing the index offence.
Taking the above matters into account, I am satisfied that there are reasonable grounds for believing that a court might find that the respondent is a high risk serious offender. That is, I am satisfied that there are reasonable grounds for believing that a court might find that the respondent is a person in relation to whom it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that he will commit a 'serious offence' of violence including, but not necessarily limited to, unlawfully wounding or unlawfully doing grievous bodily harm with intent to maim, disfigure or disable or to do grievous bodily harm contrary to s 294(1)(a) of the Code, unlawfully doing grievous bodily harm contrary to s 297 of the Code and doing bodily harm with intent to harm contrary to s 304(2)(a) of the Code. I will therefore make the orders for the hearing of the restriction order application.
Interim supervision order
The question that remains is whether I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act, an interim supervision order pursuant to s 58(5) of the Act or no further order in which case the respondent will be released on the conditions of the PSSO. The answer to this question depends on my assessment of what is required to ensure adequate protection of the community pending the determination of the restriction order application. In making this assessment I must bear in mind not only that the scheme of the Act requires that the court do no more than is necessary to achieve the adequate protection of the community, but also that the court has not yet found, and may ultimately not find, the respondent to be a high risk serious offender.
In making the assessment referred to in the previous paragraph, I also need to be conscious of the fact that the restriction order application is not going to be heard until 28 March 2023. The delay does weigh against the making of either an interim detention order or an interim supervision order bearing in mind that the respondent has not been found to be a high risk serious offender.
The State, as I have already indicated, does not contend that it is necessary to make an interim detention order in respect of the respondent to ensure adequate protection of the community. The State does, however, submit that to ensure adequate protection of the community it is necessary to make an interim supervision order in respect of the respondent containing a total of 31 conditions which are set out in a draft interim supervision order which it has filed (draft order). The conditions set out in the draft order are Annexure A to these reasons.
The State, as part of submitting that it is necessary to make an interim supervision order in terms of the draft order, contends that allowing the respondent to be released on the PSSO will not ensure adequate protection of the community. In this respect the State emphasises the conclusions expressed in relation to the respondent by the facilitators of the Pathways Program that the respondent's ability to abstain from illicit drugs is yet to be tested in the community, and that his ability to manage his emotions and to cope with stressors is 'emerging' and is also yet to be tested in the community. The State further emphasises that although there may be some overlap between some of the conditions contained in the draft order and the conditions of the PSSO, releasing the respondent on an interim supervision order on the conditions set out in the draft order will inevitably result not only in the respondent being subjected to a greater degree of supervision and monitoring in the community than will be the case if he is released on the PSSO, but also more support, assistance and intervention than will be provided to him under the PSSO.[24]
[24] In the course of her submissions the applicant's counsel made the point that if the respondent is released on an interim supervision order he will be assigned a dedicated CCO and asserted that under the PSSO the respondent will not have a designated CCO: ts 28, 21 October 2022. Counsel's assertion that the respondent will not be allocated a designated CCO if he is released on the PSSO, which was not contradicted by the respondent's counsel, would appear to be contrary to s 74H of the SA Act.
The respondent submits that releasing the respondent on the PSSO will ensure adequate protection of the community. In this respect the respondent points out that the reporting and supervision conditions contained in conditions 1, 2 and 10 of the draft order are covered by standard conditions 1 and 3 of the PSSO, that condition 3 of the draft order is covered by standard condition 2 of the PSSO, that condition 12 of the draft order is substantially covered by additional condition 2 of the PSSO, that conditions 18 - 20 of the draft order are substantially covered by additional condition 1 of the PSSO, and that conditions 24 - 27 of the draft order (which it is argued deal with the respondent's most significant risk factor) are substantially covered by additional conditions 3 - 7 of the PSSO.
The respondent further submits that standard conditions 4 and 7 of the draft order, which must be included in any interim supervision order by reason of s 30 of the Act and which provide for electronic monitoring of the respondent and the imposition of a curfew, are unnecessary to ensure adequate protection of the community. In this context the respondent submits that the respondent's offending has not been confined to specific areas which he needs to be excluded from and has not been confined to night-time hours. Rather, the respondent submits, his past offending has been opportunistic and has occurred at any time and at any place with the result that neither electronic monitoring or a curfew is required to ensure adequate protection of the community from the risk he poses.
In relation to the issue of a curfew, which is also covered by conditions 21 - 23 of the draft order, the respondent further submits that the imposition of a curfew may in fact be counterproductive when it comes to managing his risk in the community. In this respect the respondent asserts that there may be occasions when he is required to leave the Halls Creek area for periods of time (albeit not very extended periods of time) to visit extended family members and to attend to family and cultural obligations. He makes the point in this context that his family is not from Halls Creek, that his country ranges from Balgo to Christmas Creek and that many of his family members do not live in Halls Creek but in other communities surrounding Halls Creek. He asserts that he needs to be able to move throughout the communities surrounding Halls Creek to attend to his family and cultural obligations. However, he also asserts that he will not be able to travel far from Halls Creek due to the responsibilities that he will have of caring for his mother and aunty and other family members.
In relation to conditions 13 - 15 of the draft order, the respondent submits that the conditions are not necessary to ensure adequate protection of the community. He asserts that it will be easy for the police to keep track of him given the proximity of the proposed address to the Halls Creek Police Station. He submits that the police can exercise search powers if they need to.
With respect to conditions 16 and 17 of the draft order, the respondent submits that these conditions are not necessary to ensure adequate protection of the community because the only people he will be associating with are members of his family who all know about his background.
As to conditions 28 and 29 of the draft order, the respondent submits that these conditions are not required to ensure adequate protection of the community. The respondent submits that he has demonstrated an ability to abstain from alcohol and drugs and that in any event his mother will not permit anyone to be at the proposed address if they are using alcohol or drugs.
So that is a summary of the competing submissions of the parties.
Ultimately, and bearing in mind that the respondent has not been found to be a high risk serious offender and that I should do no more than is necessary to achieve the adequate protection of the community, I have come to the decision that allowing the respondent to be released on the PSSO pending the determination of the restriction order application will not ensure adequate protection of the community and that it is necessary to subject the respondent to an interim supervision order in the terms of the draft order. I have arrived at this decision essentially for the following reasons.
First, the conditions of the PSSO, although they require the respondent to notify a CCO of any change of address, do not actually require him to live at the proposed address.[25] In my view it is imperative that the respondent is required to live at the proposed address with his mother. I realise that it might be said that the respondent has to live at the proposed address because he has nowhere else to go. However, this may not always be the case between now and the hearing of the restriction order application. Further, if for some reason the proposed living arrangements break down and the respondent is required to vacate the proposed address this will not actually be a contravention of the PSSO with the result that the sort of steps that will, in such circumstances, be able to be undertaken by the COMU if the respondent is subject to an interim supervision order[26] will not be able to be taken by those responsible for supervising and monitoring him under the PSSO.
[25] Section 74G(1) of the Act provides that a post-sentence supervision order may contain as an additional requirement a requirement relating to where the supervised offender must reside.
[26] Act, s 51.
Second, in my opinion it should be open to those responsible for supervising and monitoring the respondent in the community, particularly in the early stages of his release into the community, to impose a curfew on him supported by electronic monitoring (to whatever extent is possible). The emotional resources of the respondent are likely to be most severely tested in the period immediately following his release while he adjusts to life in the community. In these circumstances those responsible for his supervision and monitoring should have the option of subjecting him to electronic monitoring and a curfew. The imposition of a curfew will provide the respondent with stability and structure on his release and will reduce his ability to associate or come into contact with negative peers.
I emphasise that in expressing these views I am not suggesting that it will inevitably be necessary for the respondent to be required to remain subject to electronic monitoring and a curfew until the restriction order application is determined. To the contrary, it is my expectation that if the respondent settles well into the community and engages well with the supervision and reporting requirements of the interim supervision order, consideration will be given to removing any electronic monitoring or curfew requirements that have been imposed on the respondent, or at least to reducing the extent to which they apply to him.
I am conscious of the respondent's desire to be able to leave Halls Creek to visit members of his family and to attend to family and cultural obligations. I am also conscious of the fact that permitting him to do these things may in the longer term act as a protective factor. However, and as I have indicated, I think that it is, at least in the initial stages of the respondent's release, appropriate to permit those responsible for his supervision and monitoring in the community to impose greater restrictions on his movements than would be able to be imposed under the PSSO. Further, I note that it will always be open to the respondent to request his CCO for a temporary suspension of any electronic monitoring and a temporary suspension of any curfew so as to permit him to attend any particularly important family or cultural obligation.
Third, the respondent's recent treatment gains are yet to be tested in the community. In these circumstances it is, in my view, important that he is closely monitored and supervised in the community, and that he is provided with a high level of support. I note in this respect that it is, in my view, inevitable that the level of monitoring, supervision and support that will be provided to him under an interim supervision order will be greater than that which he will receive under the conditions of the PSSO.
Fourth, in my view it is important to enable the police to be involved in the monitoring of the respondent and to respond quickly if he appears to be engaging in risky behaviour. Accordingly, I consider that conditions 13 - 15 of the draft order are appropriate.
Fifth, in my view there should, to ensure adequate protection of the community, be the ability to exchange and disclose information about the respondent as provided for by conditions 16 and 17 of the draft order.
Sixth, in my view imposing on the respondent the obligations contained in conditions 28 and 29 of the draft order are an important part of reducing the risk of him relapsing into alcohol and/or cannabis use.
Accordingly, for these reasons I am not persuaded that releasing the respondent on the PSSO will ensure adequate protection of the community.
I am, however, as is apparent from what I have said, satisfied that the nature and extent of the risk that the respondent presents to the community can be adequately and properly managed under an interim supervision order that requires him to live at the proposed address and that contains the stringent conditions set out in the draft order. I have arrived at this conclusion taking into account the following matters:
1.The respondent has successfully completed periods of parole on prior occasions without further offending;
2.The respondent has in the past demonstrated a willingness and a capacity to abstain from consuming alcohol for periods of time;
3.The respondent has recently successfully completed the Not Our Way Program and the Pathways Program and has made some treatment gains as a result of doing so;
4.The respondent's mother is one of the occupants of the proposed address. She is willing to provide the respondent with support;
5.The fact that other occasional residents of the proposed address have criminal records is of limited relevance because their criminal records say little if anything about the respondent's risk of committing offences;
6.Halls Creek is not where the respondent committed the index offence. The victim of the index offence does not live in Halls Creek. The victim is in any event protected by a violence restraining order;
7.The proposed address is close to the Halls Creek police station and contact with the ACC is feasible although limited by distance;
8.Electronic monitoring will be available albeit to a limited extent only;
9.There is no evidence of any ongoing animosity between the respondent and his brother who lives 2 km away; and
10.The conditions contained in the draft order directly address the respondent's risk factors and treatment needs.
In summary, I am not satisfied that it is necessary to make an interim detention order in respect of the respondent to ensure adequate protection of the community but I am satisfied that it is necessary to make an interim supervision order in respect of the respondent to ensure adequate protection of the community. In other words, I am, in accordance with s 58(2) of the Act, satisfied that to ensure adequate protection of the community it is desirable to make an interim supervision order under s 58(5) which contains the conditions set out in the draft order. I am also satisfied that the other pre-conditions for the making of an interim supervision order specified in s 58(2)(a) and s 58(2)(b) of the Act are met given that the respondent will not be in custody on a specified future date (30 October 2022).[27] I will therefore make an interim supervision order in terms of the draft order.
[27] The State of Western Australia v CA [2020] WASC 164 [30] - [33]; The State of Western Australia v Ratcliff [2021] WASC 31 [42] - [43]; The State of Western Australia v Hart [2021] WASC 205 [32] - [33].
ANNEXURE A
STANDARD CONDITIONS REQUIRED BY THE ACT
1.Report to a Community Corrections Officer at the prison at the time of your release and advise the officer of your current name and address;
2.Report to and receive visits from, a Community Corrections Officer as directed by the court;
3.Notify a Community Corrections Officer of every change your name, place of residence, or place of employment at least 2 days before the change happens;
4.Be under the supervision of a Community Corrections Officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
5.Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;
6.Not commit a serious offence during the period of the Order; and
7.Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
Residence
8.Take up residence at [the proposed address] 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
9.On the day of release report to a Community Corrections Officer at the prison and allow for fitting of electronic monitoring equipment and completion of intake.
10.Report to, and receive visits from, a CCO at times and at places as directed by the CCO and comply with the lawful orders and directions of a CCO;
11.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
12.Attend all appointments and receive visits from any, psychiatrist, social worker, psychologist, support service and/or support person as directed by a CCO;
Reporting to WA Police
13.Report to WA Police at times and locations as directed by a CCO or WA Police;
14.If requested, permit Police Officers to enter and search your residence and/or vehicle or your person for the purpose of monitoring your compliance with your obligations under this order and allow seizure of any such items that the Police Officer believes to contravene the conditions of the order;
15.Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020;
Disclosure/Exchange of Information
16.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
17.Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;
Restrictions on contact with Victims
18.Have no contact, directly or indirectly, with the victims of your violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice, or in a manner approved of in advance by the CCO;
19.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 victim at all times;
20.Report to the CCO and WA Police any direct or indirect contact with the victims of your violent offending within 48 hours of such contact occurring;
Curfew
21.Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
22.When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
23.When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Prevention of high-risk situations
24.Not to possess, or consume, or purchase, or use alcohol without prior approval of a CCO;
25.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;
26.Provide a valid sample pursuant to condition 25;
27.Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;
b)For a purpose, and for a duration, approved in advance by a CCO;
c)On the order of a CCO or Police Officer.
28.Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drug or under the influence of alcohol, unless the identity of such person is approved in advance by a CCO;
29.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;
30.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;
31.As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JP
Research Associate to the Honourable Justice Derrick
25 OCTOBER 2022
5
0