The State of Western Australia v Roffey - [2023] WASC 472

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ROFFEY [2023] WASC 472
CORAM:   STRK J
HEARD:   12 DECEMBER 2023
DELIVERED          :   12 DECEMBER 2023
PUBLISHED           :   13 DECEMBER 2023
FILE NO/S:   SO 11 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KENNETH MARTIN JAMES ROFFEY
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Whether an interim detention order or an interim supervision order is desirable - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)

Result:

Orders pursuant to s 46(2) made
Interim detention order made

Category: B

Representation:

Counsel:

Applicant	:	D McDonnell
Respondent	:	T Hager

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Geoffrey Miller Chambers

Case(s) referred to in decision(s):

Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182
The State of Western Australia v CJC [2023] WASC 52
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v De Abreu [2023] WASC 84
The State of Western Australia v Hansen [2022] WASC 391
The State of Western Australia v MAR [No 5] [2023] WASC 434
The State of Western Australia v Meehan [2023] WASC 6
The State of Western Australia v Narrier [2021] WASC 250
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

STRK J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction

On 28 November 2023, the State of Western Australia filed an application for a restriction order in respect of Kenneth Martin James Roffey under the High Risk Serious Offenders Act 2020 (WA).
The application is made in circumstances where the respondent's current sentence will come to an end on 27 June 2024, and the Prisoners Review Board has granted the respondent's request for a reconsideration of parole and has set a consideration date of 15 December 2023. Further, I understand that the respondent is due to be considered by the Prisoners Review Board for a post‑sentence supervision order pursuant to pt 5A of the Sentencing (Administration) Act 2003 (WA) on 9 May 2024.
The main purpose of this preliminary hearing is for the court to decide whether 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 High Risk Serious Offenders Act. The State submits that there are sufficient facts and circumstances for the court to be satisfied of the same. The State further presses for an order that the respondent be detained in custody, alternatively that he be released on an interim supervision order, until the determination of the restriction order application.
At the hearing of the application, counsel for the respondent did not make submissions in opposition to the court finding that there exist reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the High Risk Serious Offenders Act. It was acknowledged that the court might find the respondent to be a high risk serious offender. The court was also informed that despite the imminent reconsideration of parole by the Prisoners Review Board, no adjournment of the preliminary hearing was sought, as it was unlikely that the Prisoners Review Board would proceed to reconsider parole before the preliminary hearing of the restriction order application.
While various obstacles, including his offending history and some instances of misconduct whilst in prison, were acknowledged, the respondent sought that the court impose an interim supervision order, if it was satisfied that there exist reasonable grounds for believing that the court might find that he is a high risk serious offender.
On the materials filed and having given careful consideration to the submissions made, I am satisfied that the requirements of s 46 have been met, and I will make orders programming the hearing of the restriction order application.
I am also satisfied that it is desirable for the protection of the community that an interim detention order be imposed until further order of the court, or until the final determination of the restriction order application, whichever is the sooner.
My reasons for so concluding are as follows.

Applicable legal principles

Pursuant to s 46 of the High Risk Serious Offenders Act, 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.
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 offender, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[1]
[1] High Risk Serious Offenders Act s 7(1).
A 'serious offence' within the meaning of the High Risk Serious Offenders Act, relevant to the respondent, includes aggravated armed robbery (Criminal Code s 392(c) and (d)).[2]
[2] High Risk Serious Offenders Act s 5, read with sch 1 div 1 subdiv 3.
The nature of the test to be applied under s 46(1) of the High Risk Serious Offenders Act is well‑established.[3] The court need not be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible, and belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[3] See, for example, The State of Western Australia v Hansen [2022] WASC 391 [10]; The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21]; The State of Western Australia v Winder [2021] WASC 65 [16]. The High Court upheld the constitutional validity of the High Risk Serious Offenders Act insofar as it applies to the offences of robbery and assault with intent to rob in Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182.

The evidence

The State's application is supported by the affidavit of Fleur Marie Allen affirmed on 28 November 2023, to which Ms Allen attached documents marked annexures A to W. Ms Allen is a government legal practitioner in the employ of the State Solicitor's Office.
The documents attached to Ms Allen's affidavit include a copy of the Western Australian criminal history dated 23 November 2023 relating to the respondent;[4] and a chronology of the respondent's serious and relevant offending prepared by the State Solicitor's Office.[5]
[4] Affidavit of FM Allen affirmed 28 November 2023, Annexure A.
[5] Affidavit of FM Allen affirmed 28 November 2023, Annexure D.
The respondent is aged 38 years. His criminal history includes at least 45 serious offences, which include 24 counts of armed robbery in company; two counts of armed robbery; two counts of aggravated armed robbery; 13 counts of deprivation of liberty; three counts of criminal damage by fire; and one count of an unlawful act with intent to harm (endangering life, health or safety of any person).
The respondent is currently serving an aggregate term of imprisonment of four years and one month, comprised of the following:
(a)three years and six months' imprisonment imposed in the Perth District Court on 12 December 2022 for one count of aggravated armed robbery contrary to s 392(c) and (d) of the Criminal Code; and
(b)seven months' imprisonment imposed in the Perth Magistrates Court on 6 January 2023 comprised of:
(i)seven months' imprisonment for two counts of aggravated burglary and commit contrary to s 401(2)(ba) of the Criminal Code (to be served concurrently);
(ii)two months' imprisonment for one count of stealing a motor vehicle contrary to s 378A of the Criminal Code (to be served concurrently); and
(iii)no sentence for two counts of stealing pursuant to s 378 of the Criminal Code.
As noted above, the respondent's current sentence expires on 27 June 2024. Ms Allen's affidavit reveals that the respondent has spent about 20 years incarcerated. The 'index' offending for the purposes of this application is the offence of aggravated armed robbery committed on 27 May 2020, for which the respondent was convicted on 12 December 2022.
The documents attached to Ms Allen's affidavit also include a copy of various reports relating to the respondent including a psychiatric report prepared by Dr Alexander van Hattem dated 5 December 2022;[6] a Pathways program completion report dated 14 May 2012;[7] a Think First program completion report dated 2 August 2012;[8] a Violent Offender Treatment Program non‑completion report dated 24 February 2016;[9] a Violent Offender Treatment Program completion report dated 20 November 2017;[10] and a Victim‑Offender Mediation Unit report dated 4 January 2023.[11]
[6] Affidavit of FM Allen affirmed 28 November 2023, Annexure V.
[7] Affidavit of FM Allen affirmed 28 November 2023, Annexure R.
[8] Affidavit of FM Allen affirmed 28 November 2023, Annexure S.
[9] Affidavit of FM Allen affirmed 28 November 2023, Annexure T.
[10] Affidavit of FM Allen affirmed 28 November 2023, Annexure U.
[11] Affidavit of FM Allen affirmed 28 November 2023, Annexure W.
I note that the psychiatric report prepared by Dr van Hattem dated 5 December 2022 was prepared for the purposes of sentencing on 12 December 2022. Among other things, Dr van Hattem opined that the most appropriate diagnostic labels to describe the signs displayed and symptoms experienced by the respondent were personality disorder with dissocial (antisocial) traits, and a harmful pattern of use of both opioids and alcohol.
I also note that Dr van Hattem utilised the Violent Risk Appraisal Guide - Revised, to assess the respondent's risk of reoffending, under which the respondent received a score of 33. Dr van Hattem noted that the score placed the respondent in the highest category for which recidivism rates had been calculated. He further observed that of people in the validation population with scores comparable to the respondent, 76% had committed a new violent or sexual offence within five years, and 87% had done so within 12 years.
At pars 55 to 59 of his report, Dr van Hattem made the following observations in relation to the respondent:
Mr Roffey was a 37 year old man with an antisocial personality disorder and a history of problematic substance use, particularly opiates and alcohol.
In my opinion, there was no direct, causal link between any mental disorder and Mr Roffey's offending, although his personality structure and substance intoxication were contributing factors.
I have assessed Mr Roffey's risk of violent reoffending as considerably higher than average compared to other men convicted of a violent offence, based on the VRAG-R risk assessment tool as noted above.
Mr Roffey has spent most of his adult life in prison, and may require significant support to successfully re-integrate into society. In my opinion, his risk of reoffending would be reduced to some extent when he re-enters the community if he were supported to achieve stable accommodation, engagement with pro-social peers, and structured activity such as paid employment or volunteering.
In my opinion, addressing Mr Roffey's substance abuse issues would reduce his risk of reoffending. I recommend that he be supported to engage with an Alcohol and Other Drugs service, and he may benefit from a period of residential rehabilitation when he is released from custody. I also recommend that if he enters the community with conditions, those conditions should include abstinence from alcohol and illicit drugs, and monitoring of that abstinence through urine drug screening.
In addition to the reports attached to Ms Allen's affidavit, the court received for the purpose of the preliminary hearing a number of additional reports that had been requested but not received by Ms Allen when she made her affidavit.
The first was the parole assessment report prepared by Storm Stuart, a Senior Community Corrections Officer, dated 16 January 2023. Among other things, the parole assessment report recorded that release to parole was not then supported based on the respondent's behaviour in prison, unaddressed offending behaviour and outstanding treatment needs. The following areas of concern were also noted in the report: minimal protective strategies to prevent future relapse to drug use; lack of pro‑social activities and negative peer associations; poor problem solving, consequential thinking and decision‑making skills; lack of structured daily activity/employment; and institutionalisation and significant reintegration needs with limited professional support identified.
The second was the post‑sentence supervision order report prepared by Storm Stuart, dated 23 August 2023. Among other things, the report recorded that the respondent then proposed to reside with his mother if he were released subject to a post‑sentence supervision order.
The third was the latest parole review report prepared by Storm Stuart, dated 27 November 2023. I understood this report was prepared in a context where the respondent had been denied release to parole by the Prisoners Review Board on 23 January 2023, citing a poor release plan, poor prison conduct, a high risk of reoffending and unmet treatment needs, but the Prisoners Review Board had granted the respondent's request for a reconsideration of parole and set a consideration date of 15 December 2023.
Among other things, the report recorded that at an interview on 15 November 2023, the respondent had stated that he had been able to reflect on his offending behaviours, and how illicit substances had impacted on his ability to make positive changes. He reported that he had maintained abstinence in prison and was on the methadone program. The report recorded that the respondent had also claimed to have disconnected from negative associates, and to have engaged in substance abuse counselling which he reported an intention to continue with post‑release. He also reported that his family had all addressed their drug use and now abstained from alcohol.
As to the respondent's proposal to reside with his mother at her home, this was deemed by the author unsuitable given the home environment was considered to potentially place the respondent at risk of relapsing and offending, particularly given that his mother had enabled the respondent's drug use by trafficking illicit substances to him in prison on 5 February 2023 (resulting in the respondent receiving three months of loss of contact visits), and both his mother and his sister had used illicit substances previously. It was also noted that when the respondent was released to his mother's residence in April 2020 after serving a lengthy prison term, he had committed a further serious offence within a month of release.
The latest parole review report also recorded that the respondent's release to parole was not supported due to his parole plan being lacking with respect to suitable accommodation; his parole plan being lacking with respect to proposed interventions to address his use of illicit substances, which was linked to his risk of reoffending and harm to others; and information regarding any treatment gains made from a recently completed program was not then available.
The fourth was the Pathways program completion report prepared by Valerie Monteiro, Chiedza Makotsa and Phoebe McGuiness‑Morich dated 6 December 2023. Among other things the Pathways program completion report recorded a number of positive developments. It was recorded that the respondent had learnt positive coping strategies in dealing with stress to replace previous coping strategies that involved alcohol and drug use; the respondent had expressed that he wanted to change his behaviour and had acknowledged that this would require effort and perseverance; and the respondent reported having been offered a full‑time job.
The Pathways program completion report also recorded that the respondent had reported that if granted release, he intends to either reside with his mother (who he said was now drug free), or would apply for accommodation with a private organisation named Linkt Supported Recovery. It was also recorded that the respondent had reported that he is participating in the ADAPT Through‑Care Counselling Program, and through that program will be provided with ongoing support in the community; and is currently on the methadone program.
On the morning of the preliminary hearing, a further communication was received by the State from Ms Aimee Goode of the Community Offender Monitoring Unit. In her communication Ms Goode described the attempts made by the Community Offender Monitoring Unit to confirm the respondent's engagement with Thrive Integration and Linkt Supported Recovery. In short, Ms Goode reported that on 11 December 2023 the respondent had confirmed that he was no longer pursuing accommodation or support from Linkt Supported Recovery.
With respect to the respondent's engagement with Thrive Integration, the proprietor of that organisation confirmed to the Community Offender Monitoring Unit that if released, the respondent was welcome to contact Thrive Integration regarding work options, but at this time and before the New Year, work options were unavailable by reason of demand.
In addition to these materials, in the disposition of this preliminary hearing I also had regard to the outline of submissions for preliminary hearing filed on behalf of the State on 8 December 2023; the State's minute of proposed orders filed on 11 December 2023; the State's draft interim detention order filed on 11 December 2023; and the State's draft interim supervision order filed on 11 December 2023.

Disposition

Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?

I am satisfied that there are reasonable grounds to believe that a court might find the respondent to be a high risk serious offender. My reasons for so concluding are as follows.
First, the respondent has a significant history of committing 'serious' offences, within the meaning of the High Risk Serious Offenders Act.
As to the nature of the offences, as was observed on behalf of the State at pars 49 to 50 of the State's submissions:
The Respondent has utilized a number of weapons in the commission of his robberies, which on occasion he has used to inflict physical injuries of varying degrees of significance on his victims, including knives, baseball bats, machetes, a screwdriver, a sawn off shotgun, a handgun, a replica handgun, a meat cleaver, a metal pipe, a brick, and a piece of wood with nails protruding from it.
In addition to any physical harm inflicted, armed robberies often have a significant impact on victims by causing long term psychological harm.
Secondly, I accept for the purpose of the preliminary hearing that the respondent's past convictions appear to demonstrate that he has an inclination and/or disposition to commit armed robberies. Further, I have weighed in the balance the Violent Offender Treatment Program Completion Report prepared by program facilitators Michael Cotton and Elle DuPont under the supervision of Mei Hong (Clinical Supervisor) dated 20 November 2017.[12] As was observed on behalf of the State in its outline of submissions for the preliminary hearing, the authors there observe that the respondent's offending reflects a pattern of illicit substance use; normalised violence; underdeveloped self‑management skills; and reliance on a reactive problem‑solving style to resolve emotional distress.
[12] Affidavit of FM Allen affirmed 28 November 2023, Annexure U.

Thirdly, albeit not determinative, I weighed in the balance that Dr van Hattem in December 2022 assessed the respondent's risk of violent reoffending as being considerably higher than average compared to other men convicted of a violent offence, based on the Violent Risk Appraisal Guide - Revised risk assessment tool. I was also cognisant that during the respondent's sentencing hearing for aggravated armed robbery, Whitby DCJ (as her Honour then was) also assessed the respondent's risk of reoffending as 'high'.
Fourthly, I note that the recent Pathways program completion report reveals that the respondent has gained insight into his use of alcohol and illicit drugs and has expressed a desire to change. While these are very positive developments, the reports and assessments relating to the respondent also reveal that the respondent has ongoing treatment needs with respect to his use of illicit substances, which has been linked to his risk of reoffending and harm to others. They further reveal that the respondent has a history of reoffending promptly after release from incarceration. Also, on the information provided at the hearing, contrary to what had been reported in the Pathways program completion report, the respondent would not be foregoing immediately available work opportunities if not released.
I accept on the information before the court that the respondent presents a high risk of reoffending in a serious manner, and the information before the court accords with the State's submission that:
(a)an alarming aspect of the respondent's criminal history is the brevity of time it has taken for him to re‑engage in serious offending following his three previous releases from incarceration, despite completing rehabilitative programs while in custody; and
(b)upon release, the respondent struggled to reintegrate into the community and has found himself socialising with antisocial peers, engaging in illicit substance use, and then committing serious offences, specifically armed robberies, very shortly after release from incarceration.[13]
[13] Submissions filed on behalf of the State on 8 December 2023 par 58.
In these circumstances, I accept the State's submission that there are reasonable grounds for believing that the court might ultimately find that not only is the respondent's risk of future serious offending unacceptable, but that it is also necessary to make a restriction order to ensure adequate protection of the community.

Should an interim detention order or interim supervision order be imposed?

As noted above, the State seeks that the respondent be placed on an interim detention order pending the outcome of this application. In the alternative, the State seeks such the respondent be made subject to an interim supervision order on the standard conditions specified in s 30(2) of the High Risk Serious Offenders Act, as well as additional conditions that the State says are specifically designed to address the respondent's risk factors.[14]
[14] As set out in the State's draft supervision order filed on 11 December 2023.
As to whether an interim supervision order might presently be made, I note that in The State of Western Australia v CJC [2023] WASC 52, Quinlan CJ noted that several judges of the court have been prepared to conclude that an order can be made pursuant to s 58 even if the offender is in custody at the time the order is made, provided that the order takes effect on a date when the offender will be released. I am prepared to adopt that approach.
I am cognisant that an interim detention order or an interim supervision order are not the only options available to the court if a respondent is due to be released prior to the final hearing. It is open for the court to make no such order, even if the matter progresses to a final restriction order hearing.[15]
[15] Given the non-prescriptive wording of both s 46(2)(c)(i) and s 58(5), I proceed on the basis that it is open to the court to make neither an interim detention order nor an interim supervision order pending the determination of the restriction order application: see The State of Western Australia v Narrier [2021] WASC 250 [59]; The State of Western Australia v Meehan [2023] WASC 6 [114]; The State of Western Australia v De Abreu [2023] WASC 84 [114].
The respondent's current sentence will come to an end on 27 June 2024, and it is anticipated that the application will be listed for hearing prior to that date. The need to give consideration as to whether to make either an interim detention order or an interim supervision order at this time therefore arises because the Prisoners Review Board has granted the respondent's request for a reconsideration of parole and has set a consideration date of 15 December 2023. The State presses for an interim detention order to be made in circumstances where the respondent might be released to parole before the restriction order application is finally decided. In this regard, the State submitted that no parole conditions would adequately manage the risk posed by the respondent.
Based on the evidence before me, and having regard to the submissions made on behalf of the State and the respondent, I am not satisfied that the risk that the respondent may commit a serious offence will be adequately managed by his compliance with the terms of an interim supervision order, or any parole conditions that might be imposed (should the Prisoners Review Board decide to release the respondent to parole).
The matters which informed the recommendation made in the latest parole assessment report also inform whether the respondent ought be placed on an interim detention order pending the outcome of this application. In this regard, I note that the respondent's release to parole was not supported, among other things, due to his parole plan being lacking with respect to suitable accommodation and his parole plan being lacking with respect to proposed interventions to address his use of illicit substances, which was linked to his risk of reoffending and harm to others.
I have the benefit of the Pathways program completion report dated 6 December 2023 and the information provided by Ms Goode in her communication of 12 December 2023. On the basis of the evidence before me, it appears that the high risk that the respondent might ultimately be found to pose to the community might be mitigated by supervision and treatment in conjunction with suitable accommodation, engagement with pro‑social peers and community support. On the information available at the preliminary hearing, I am not satisfied that parole conditions would provide the level of supervision, support and assistance necessary to appropriately address the risk posed, particularly given the absence of suitable accommodation.
I have weighed in the balance the suitability of the accommodation proposed, and the position of the State and the respondent with respect to the same. Among other things, the State points to the respondent's mother having been detected in February 2023 trafficking illicit substances to the respondent in custody on 5 February 2023. On the information available, I do not consider the accommodation to be suitable, the absence of which makes it impossible to be satisfied that a supervision order is a presently viable option.[16]
[16] The State of Western Australia v MAR [No 5] [2023] WASC 434; The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].
I am cognisant of the undesirability of potentially depriving the respondent of his liberty prior to the restriction order application being finally determined, bearing in mind that the restriction order application may ultimately be refused. However, in all of the circumstances, I am not satisfied that possible parole conditions or an interim supervision order would provide sufficient protection for the community.
For these reasons, particularly in the absence of protective factors of suitable accommodation and immediate employment, I will make an interim detention order until further order of the court or until determination of the restriction order application, whichever is the sooner.
Allowing for the interim detention order to be discharged by order of the court before the determination of the restriction order application preserves the possibility of the respondent being released on an interim supervision order if the respondent were to be released to parole, if suitable accommodation and support become available.

Conclusion and orders

Having been satisfied that there are reasonable grounds to believe that a court might find the respondent to be a high risk serious offender, I will make the orders sought on behalf of the State. They will include an order that the respondent undergo examinations by two qualified experts, namely one psychiatrist, Dr Peter Wynn Owen, and one psychologist, Dr Tara Yewers, for the purposes of preparing reports as required by s 46(2)(a) and s 74 of the High Risk Serious Offenders Act that are to be used on the hearing of the restriction order application.
I will also order that the respondent be detained in custody pursuant to s 46(2)(c)(i) of the High Risk Serious Offenders Act until further order of the court, or until the final determination of the restriction order application, whichever is the sooner. It is appropriate in this case that there be liberty to revisit the appropriateness of an interim supervision order in the event that the respondent is released to parole or his current sentence comes to an end before the determination of the restriction order application, if the issues identified above can be addressed.
Prior to the next hearing, consideration ought be given to what alternative accommodation might be available to the respondent, for example through Linkt Supported Recovery. Further, I understand that the respondent has reported that he is participating in the ADAPT Through‑Care Counselling Program, and through that program will be provided with ongoing support in the community; and is currently on the methadone program. Prior to the next hearing, the court requests there be evidence adduced as to the nature and extent of the support that would be made available to the respondent upon release.
Further, counsel for the respondent advocated for the respondent to be given the opportunity to participate in treatment and rehabilitation programs while he remains in custody. I accept and agree that it is important that the respondent be given an opportunity to participate in the same prior to the restriction order application on 2 May 2024, so as to consolidate and build upon the insight he appears to have gained through his recent participation in the Pathways program. The respondent ought now also be referred to the forensic psychological intervention team for assessment.
Finally, I note that it is unfortunate that on the information presently available, the court on 2 May 2024 will not have before it the outcome of the Prisoners Review Board's consideration of whether a post‑sentence supervision order should be made in respect of the respondent. If the determination of the Prisoners Review Board was available before the hearing of the restriction order application, the court would have regard to the same as required by s 7(3) of the High Risk Serious Offenders Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Strk
13 DECEMBER 2023