The State of Western Australia v Reynolds
[2024] WASC 494
•29 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- REYNOLDS [2024] WASC 494
CORAM: FORRESTER J
HEARD: 29 NOVEMBER 2024
DELIVERED : 29 NOVEMBER 2024
FILE NO/S: SO 13 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
NATHAN JOHN REYNOLDS
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 - Preliminary hearing - Whether reasonable grounds for belief that offender is a high risk serious offender - Interim Detention Order or Interim Supervision Order - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Application for interim supervision order adjourned
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McDonnell |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Mr T Hager |
Case(s) referred to in decision(s):
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
FORRESTER J:
(This judgment was delivered extemporaneously on 29 November 2024 and has been edited from the transcript).
Introduction:
On 15 November 2023, the respondent was sentenced to a term of 25 months' imprisonment after pleading guilty to two offences of unlawful assault occasioning bodily harm in circumstances of aggravation, two charges of making a threat in circumstances of aggravation, two charges of common assault in circumstances of aggravation and one charge of strangulation.
The respondent's sentence was backdated to commence on 21 December 2022. The respondent's sentence will expire on 20 January 2025.
The learned magistrate declared the respondent to be a serial family violence offender and then declared all seven offences to be serious offences pursuant to s 97A of the Sentencing Act 1995 (WA).
On 1 November 2024, the State of Western Australia applied for a restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (Act).
This is the preliminary hearing in respect of the application. The main purpose of a preliminary hearing is for the court to decide whether there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the Act.[1]
[1] High Risk Serious Offenders Act 2020 (WA) s 46(1) (Act).
In my view, there are reasonable grounds for such a belief. Accordingly, I order that the matter be listed for a final hearing, and that appropriate reports be prepared. These are my reasons for doing so.
Legal principles
The State's application was made pursuant to s 35 of the Act, for a restriction order to be imposed in relation to the respondent under s 48 of the Act.
The respondent is a serious offender under custodial sentence, as that phrase is defined in s 3 of the Act.
As noted above, pursuant to s 46(1) of the Act, the primary 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.
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.[2]
[2] Act s 7(1).
A 'serious offence' within the meaning of the Act includes an offence declared to be a serious offence by the court sentencing the offender pursuant to s 97A of the Sentencing Act.[3]
[3] Act s 5(6).
A determination that a person is a 'high risk serious offender' requires proof to a high degree of probability. However, at the preliminary hearing stage, the threshold test is lower. At a preliminary hearing, a judge does not need 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. Belief is an inclination of the 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.[4]
[4] 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 the application, the State relied upon an affidavit of Tanya‑Maree Hollaway affirmed 1 November 2024 and an affidavit of Ms Heather Applin affirmed 19 November 2024. Ms Hollaway's affidavit concerns the respondent's criminal history and includes several reports and assessments in relation to him. Ms Applin's affidavit relates largely to his potential release into the community.
I have considered all of the evidence and need not set it out in detail. Relevant features of it include the following.
The index offences
The offences which render the respondent liable to be dealt with under the Act (the index offences) are two offences of unlawful assault occasioning bodily harm in circumstances of aggravation, two offences of making a threat in circumstances of aggravation, two offences of common assault in circumstances of aggravation and one offence of impeding a person's breathing or circulation.
Those charges all arise out of the same incident which occurred on 20 December 2022.
Mr Reynolds had previously been released from custody on 17 September 2022 and was subject to a post sentence supervision order. Before the offending, the respondent had been in a relationship with the victim, but they had since separated or it appears they were in an on‑again‑off‑again relationship. He had begun to reside with the victim again on 13 December 2022.
On 20 December 2022, Mr Reynolds, the victim (SG), and the victim's 4 year old son were at home. An argument occurred and Mr Reynolds forcibly pushed an open palm upwards into the victim's nose which caused bleeding. He helped the victim to the couch and gave her a towel but about 10 to 15 minutes later, when she got up, Mr Reynolds kicked her from behind in the lower back, ribs and buttocks causing her to fall over. He picked her up and took her back to the couch, but he then started arguing again and the victim slid onto the floor. Mr Reynolds then kicked her to the side of the head and body causing bruising.
He left the room and returned with five knives and dropped them on the floor and hit the victim. He held one of the knives against the victim's skin on the lower leg in an attempt to cut her, but the knife was fortunately too blunt. The victim asked why he was doing this and Mr Reynolds said, 'I will cut you up into little pieces'.
The victim crawled to the bedroom and Mr Reynolds began throwing knives at her. The handle of one of the knives hit her. He then kicked her to the left buttock causing bruising.
Mr Reynolds then demanded that the victim give him a lift. She agreed and as she walked outside, Mr Reynolds headbutted her in the right eye and forehead which caused bruising.
Whilst stationary in the car, another argument occurred. This time, Mr Reynolds reached over and grabbed the victim's throat and squeezed tightly to the point that it affected her vision, she saw stars and was unable to speak. She slid out of the car and on to the ground.
Mr Reynolds told her to call the police and she said she would. At this, Mr Reynolds walked around the car with a knife and stood over her, holding it approximately 15 cm from her head and said, 'you will be the first one to get stabbed and then I will kill them'. The victim then drove Mr Reynolds to an address and as she drove, Mr Reynolds lunged at the her and bit her on the upper left arm causing bruising and redness.
Other criminal history
Serious offences
Mr Reynolds has previously been convicted of one offence of with intent to harm, did an act as a result of which life, health or safety of any person was or was likely to be endangered. For that offence, he received a sentence of 2 years' imprisonment.
On that occasion, Mr Reynolds and the victim (AM) had a five year old child, and the victim was approximately 11 weeks pregnant. On 18 May 2020, Mr Reynolds and the victim engaged in a verbal disagreement whilst in a car in a carpark. Mr Reynolds removed the keys, got out of the car, walked to the driver's side door, picked up the victim and threw her from the drivers' side to the passenger side. She got out of the car, screamed in fear of her safety and stood in between cars to distance herself from Mr Reynolds.
Mr Reynolds then drove a lap of the carpark before getting out of the car and telling the victim to get in or he would run over her. He then reversed the car and aiming for AM, drove at her and collided with the parked car next to her. He then reversed heavily colliding with a different car before driving at AM again.
A member of the public intervened and pulled AM to safety. Mr Reynolds was under the influence of alcohol at the time.
On 1 January 2017, Mr Reynolds, who was armed with a baseball bat and in the company of a co-offender, entered a residence through an unlocked door and assaulted three victims present at the address. Mr Reynolds threw a pot plant at one of the men, striking him on the left arm and severing the brachial artery. He was convicted of grievous bodily harm and sentenced to a term of imprisonment of 2 years and 2 months'.
As a child, Mr Reynolds was also convicted of aggravated armed robbery and attempted aggravated armed robbery, in each instance receiving a 12 month youth conditional release order. In both instances, Mr Reynolds was in company and was armed and was targeting a small business.
Other offending
PE 56647 of 2022 and 56646 of 2022
On 21 December 2022, the police attended an address with the intention of speaking to Mr Reynolds in relation to the index offences. Mr Reynolds was present but refused to talk to police. He grabbed two knives from the kitchen and waved them in the direction of police before going into the back yard and barricading the flyscreen door.
Tactical Response Group attended and while police were speaking with Mr Reynolds through the flyscreen, he stabbed the knives at the fly screen completely penetrating the screen and causing a hole. This caused police to fear for their safety and multiple officers drew and covered Mr Reynolds with tasers. He was then able to be arrested.
While in police custody and in the presence of police officers, the respondent called AM, who was protected against contact from Mr Reynolds by a family violence restraining order, and put her on speaker.
Mr Reynolds pleaded guilty to charges of breaching a family violence restraining order and being armed in a way that may cause fear. He received a sentence of a $1000 fine for the breach of family violence restraining order and a term of 6 months' imprisonment to be served concurrently on the term imposed for the index offences for the assault charge.
ROC 2988 of 2020
On 16 April 2020, Mr Reynolds was in AM's vehicle and their 5 year old child was in the back seat. An argument occurred and the victim called police. Mr Reynolds attempted to take the victim's phone and assaulted her in the face. She sustained a cut to the inside of her mouth which bled. As a result, the respondent was charged with aggravated common assault and received a sentence of 3 months' imprisonment concurrent.
Again on 22 March 2020, Mr Reynolds and AM were in an argument as a result of which AM asked him to leave. She left for an hour to allow Mr Reynolds time to pack his things but on return, she noticed he had not packed anything. Mr Reynolds grabbed hold of the AM's face and hit her head into the wall behind her. This resulted in her being winded, falling to the floor with her ears ringing and impaired vision. For this, Mr Reynolds was charged with aggravated unlawful assault occasioning bodily harm for which he received a sentence of 4 months' imprisonment cumulative.
Childrens' Court offending
The respondent also has a history of offending prosecuted in the Children's Court for family violence offences.
Breaches of court orders
Mr Reynolds has been convicted of three charges of breaching a police order, two charges of breaching protective bail conditions, two more charges of breaching a family violence restraining order and one charge of breaching a violence restraining order. These convictions largely related to the respondent having an order not to attend the address of a protected person but attending that address nonetheless.
Conduct in custody
During his most recent term in custody, Mr Reynolds has been found guilty of three charges in prison including for disobeying the lawful order of a prison officer, failing to submit to a breath sample, and property damage for wilfully breaking windows.[5]
Personal circumstances and background
[5] Affidavit of Tanya-Maree Hollaway affirmed 1 November 2024, Annexure C (Hollaway Affidavit).
The respondent is now 28. He has a lengthy criminal history as I have just described. It largely comprises of convictions for family violence offences.
He is the eldest of two sons born to his parents. He also has half siblings from other relationships of his mother's. His parents separated when he was about 2 years old, following which he had almost no contact with his father.
His childhood was marred by domestic violence and substance abuse. His mother abused alcohol and drug dealing occurred in the home. At the age of 12 the respondent and his brother were sent to live with his father because his mother's partner did not want him or his brother in the home. Up until that point, he had had almost no contact at all with his father.
The respondent's father prevented the respondent and his brother from having contact with their mother and he was verbally, physically and emotionally abusive to both children. As a result the respondent has poor parental attachment and felt neglected, rejected and abandoned, without any sources of positive support.
The respondent also reports having been sexually abused as a child and exposed to traumatic events including suicide attempts by one of his mother's partners.
He remains in contact with his mother and sisters, and they remain supportive of him. His brother was regrettably murdered in February 2022. He presently has no contact with his father.
Mr Reynolds struggled at school and found it hard to learn. He was expelled in year eight and obtained work in landscaping, maintenance and as a plasterer. After his release from custody in 2022, he obtained FIFO work which he enjoyed.
When he was 16 years old, the respondent formed a relationship with a 14 year old girl. They were together for some years but the relationship was characterised by mutual substance use, jealousy and the respondent's violence towards her as well as verbal and emotional abuse. A violence restraining order was in force but after it expired the respondent and the girl reunited. They have two children together.
The respondent has a significant history of substance abuse and mental health issues. He first used alcohol at the age of 10 and since then regularly engaged in binge drinking. He first used cannabis at the age of 11, and often used it daily. At 12, he inhaled aerosols and experimented with medication without prescription. He claims to have first used methylamphetamine at the age of 13 years and to have smoked it about three times a week before escalating to daily intravenous use before he was remanded in custody for his attempted robbery and robbery offences.
The respondent also claimed to have used methylamphetamine a couple of times in the week before the index offences, a claim supported by a drug test on 21 December 2022.
He first reported seeing doctors and psychologists around the age of 10 or 11 for behavioural issues and because he 'saw things' such as 'shadow people' at nighttime. He says he has experienced suicidal ideation his 'whole life, really', and experienced psychotic symptoms on several occasions including previous psychiatric admissions for drug induced psychosis. He has not self-harmed since he was 18.
After his release from prison in September 2022, the respondent experienced psychotic symptoms in the absence of drugs for the first time. He was drinking heavily at that time and he was prescribed an antidepressant in December 2022.
Before the index offence, the respondent repeatedly requested to speak to a psychologist and had two sessions with one at Adult Community Corrections. He reported hearing voices, experiencing paranoia, sleep disturbances among other symptoms. It was recommended he attend a GP and ask for a referral to a psychiatrist due to the psychologist's belief the respondent was using substances to mask an underlying psychotic disorder.
He admitted to a psychiatrist that, in custody, he had used Suboxone, Subutex, heroin and methylamphetamine.
Reports
The respondent has undergone a number of evaluations over the years, including psychological, psychiatric and other assessments. I will not detail them all, but I have read them all.
During his most recent period of supervision in the community, Mr Reynolds was initially compliant with conditions of the PSSO, reporting for supervision, attending urinalysis and engaging with psychological services. He disclosed heavy alcohol use and paranoia before committing the index offences.
The most recent psychiatric report is from one Dr Alana Rowick, Consultant Forensic Psychiatrist, dated 6 September 2023, written for the purposes of determining the respondent's fitness to stand trial in respect of the index offences.[6]
[6] Hollaway Affidavit, Annexure BH.
Dr Rowick opined that the respondent meets the criteria for Schizophreniform Disorder as well as stimulant use disorder, and alcohol use disorder. Dr Rowick also referred to previous court ordered reported and prison medical notes which included psychiatric diagnoses including attention deficit hyperactivity disorder, cluster B personality disorder, depression, complex post-traumatic stress disorder, social phobia, agoraphobia, drug induced psychosis and antisocial personality disorder.
Dr Rowick noted that Mr Reynolds had a family history of schizophrenia, a history of traumatic experiences during childhood, and has previously developed psychotic symptoms in the context of substance use, all of which may indicate that he has an increased vulnerability to developing an enduring psychotic illness.
In the lead up to the index offences, the respondent reported to his Community Corrections psychologist and his Community Correction Officer symptoms of auditory hallucinations and paranoia. Prior to being received into prison, there was no evidence that he was using substances, however once he was incarcerated, he reported using methamphetamine in the week before the index offences. A urinalysis on 21 December 2022 returned results positive for methamphetamine, cannabis, codeine and morphine.
Dr Rowick reported that Mr Reynolds' psychotic symptoms resolved rapidly after being prescribed antipsychotic medication. She recommended he remain compliant with any medication prescribed by his treating psychiatrist and remain abstinent from substances, further noting that failure to do so would increase the risk of future violence and reoffending.
In a Treatment Assessment Report dated 20 August 2024, the respondent was assessed as a high risk of violent reoffending. His dynamic treatment needs suggested significant issues concerning violent lifestyle, interpersonal aggression, emotional control, institutional violence and impulsivity. He was also assessed as a high risk of general reoffending with identified treatment needs being family and marital problems due to significant domestic violence, substance abuse, ongoing negative peer association, lack of prosocial activities and attitudes, and his mental health.
Most regrettably, the respondent was not given the opportunity to access any programmes during his most recent sentence. It has been recommended he participate in the Stopping Family Violence Program and the Pathways Program, but they are not available at his present custodial location, and he cannot be moved from that location at this time.
It was identified that the respondent has limited protective factors as he has a limited social support network and has said 'friends are overrated'. He advised that close relationships with his family members were a driving factor to improving his life as well as developing bonds with his children.[7]
[7] Hollaway Affidavit, Annexure BQ.
It was assessed that the respondent's offending related to his use of abusive behaviours within intimate and familial relations, using violence as a means to resolve conflict, poor emotional regulation, attitudes that normalise violence, substance abuse, mental health concerns and limited protective factors such as prosocial support networks and engagement in meaningful activities.[8]
Respondent's proposal on release
[8] Hollaway Affidavit, Annexure BP.
If released, the respondent proposes to reside at an address owned by his mother. His mother has confirmed knowledge of the respondent's offending and expressed willingness to allow him to reside at the property.
His mother described the respondent as having displayed violent behaviours in the family home when he was younger but said that he had never physically assaulted her. She did describe feeling intimidated by his behaviour. His mother apportioned some blame for the respondent's offending on the victim and on the respondent's mental health and misuse of prescription medication.
The address is located in a suburb adjacent to where the victim currently resides. The Victim‑Offender Mediation Unit support a no contact condition and GPS exclusion zone protecting the victim in the event of release. The respondent has confirmed he is aware of the victim's location and his mother and sister reportedly maintain a relationship with the victim.[9]
Submissions
[9] Affidavit of Heather Applin affirmed 19 November 2024.
The applicant submits that there are reasonable grounds to believe that the court might find the respondent to be a high risk serious offender.
On behalf of the respondent, there was a concession made that the court were entitled, on the evidence, to make such a finding.
Disposition
On 15 November 2023, a serial family violence declaration was made in respect of Mr Reynolds, meaning that future family violence offences will be declared to be serious offences pursuant to s 97A of the Sentencing Act if they do not already constitute serious offences.
In those circumstances, I am satisfied that the threshold has been met, and find that there are reasonable grounds to believe that the court might find the respondent to be a high risk serious offender.
Interim supervision order or Interim detention order?
In my view, the conditions proposed by the State by way of an interim supervision order are excessive. The parole assessment considered that a curfew requirement was not necessary in the case of the respondent, and I agree. Further, the technology conditions do not seem to be reasonable, at least to the extent proposed, having regard to the nature of the respondent's offending.
I do accept that the respondent has previously breached a post‑sentence supervision order by re‑offending. However, I am also concerned that, if an interim supervision order is imposed and the respondent does not meet the threshold required for a restriction order, there will be no other supervision available. Accordingly, I propose to adjourn the application for an interim order to a further directions hearing, when consideration will have been given to whether a PSSO is to be imposed and, if so, the conditions involved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
20 DECEMBER 2024
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