The State of Western Australia v Roworth
[2022] WASC 71
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ROWORTH [2022] WASC 71
CORAM: MCGRATH J
HEARD: 1 MARCH 2022
DELIVERED : 3 MARCH 2022
PUBLISHED : 3 MARCH 2022
FILE NO/S: SO 9 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SHAUN MEECHAM ROWORTH
Respondent
Catchwords:
Criminal law - High risk serious offender - Contravention proceedings - Interim supervision order - Whether interim detention order should be made pending determination of contravention proceedings - Need to ensure adequate protection of the community
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 53, s 55, s 56
Result:
Application for interim detention order pending contravention proceedings refused
Contravention proceedings listed for hearing
Category: B
Representation:
Counsel:
| Applicant | : | Ms F M Allen |
| Respondent | : | Mr P R Gazia |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Cases referred to in decision:
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
The State of Western Australia v Rao [2021] WASC 476
The State of Western Australia v Roworth [2021] WASC 309
The State of Western Australia v Slater [No 2] [2021] WASC 465
MCGRATH J:
Introduction
On 16 August 2021, the applicant applied for a restriction order in respect of Mr Roworth under the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act).
On 7 September 2021, Quinlan CJ heard the preliminary hearing under s 46 of the HRSO Act. Quinlan CJ held that there were reasonable grounds for believing that the Court might find that Mr Roworth is a high risk serious offender within the meaning of the HRSO Act.[1] Quinlan CJ ordered that Mr Roworth be subject to an interim supervision order from 14 September 2021 pending the determination of the HRSO proceedings.[2]
[1] The State of Western Australia v Roworth [2021] WASC 309 [9].
[2] The State of Western Australia v Roworth [2021] WASC 309 [57].
On 23 February 2022, the applicant filed an application alleging that Mr Roworth has contravened conditions of the interim supervision order and seeking orders that the interim supervision order, made by Quinlan CJ, be rescinded, and that an interim detention order be made. The State submitted that Mr Roworth be detained in custody pending the determination of both the HRSO Act application and the contravention proceedings.
For the following reasons, I have determined that Mr Roworth will not be detained in custody pending the determination of the contravention proceedings. Mr Roworth will remain in the community continuing to be subject to the stringent conditions of the interim supervision order which, in my view, adequately manages the risk of Mr Roworth committing a serious offence, as defined under the HRSO Act. Therefore, Mr Roworth will remain subject to the interim supervision order pending the HRSO and contravention proceedings.
The alleged contraventions
The alleged conduct upon which the applicant relies in support of the contention that Mr Roworth has contravened the interim supervision order comprises, substantially, of seven criminal charges. The State also relies upon 'other concerning behaviours' which are outlined in the affidavit of Mr Cooke, police officer, sworn on 15 February 2022.
In addition, the State filed an affidavit of Mr Carmichael, Senior Community Corrections Officer, affirmed on 28 February 2022. Mr Carmichael provides a report concerning the progress of Mr Roworth whilst subject to the interim supervision order.
On 11 February 2022, the Western Australian Police arrested Mr Roworth and charged him with seven offences comprising five allegations of contravention of a requirement of the interim supervision order, contrary to s 80(1) of the HRSO Act; one charge of possession of a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) and one charge of driving a motor vehicle without a licence, contrary to s 49(1)(a) of the Road Traffic Act 1975 (WA).
On 12 February 2022, Mr Roworth appeared in the Northbridge Magistrates Court in respect of the seven charges and was remanded in custody to reappear before the Perth Magistrates Court on 14 February 2022.
On 14 February 2022, Mr Roworth appeared in the Perth Magistrates Court and was granted bail to reappear on 22 February 2022. The learned magistrate did not impose any conditions in respect of the grant of bail. Mr Roworth was released into the community subject to the interim supervision order, including the condition that he be subject to GPS electronic monitoring equipment. The seven criminal charges have been adjourned to 22 March 2022 in the Perth Magistrates Court for mention only.
The five allegations of contravening a requirement of the interim supervision order, contrary to s 80(1) of the HRSO Act, comprise the following:
1.Breach of condition 28 by deleting data from his telecommunication device, namely a mobile phone (charge number MC PER 5700/22).
2.Breach of condition 27 by failing to advise a Community Corrections Officer of a telecommunication device in his possession, namely a mobile phone (charge number MC PER 5701/22)
3.Breach of condition 24 by remaining in the presence of a person affected by a prohibited drug (charge number MC PER 5702/22).
4.Breach of condition 25 by remaining in the place where prohibited drugs were consumed (charge number MC PER 5703/22).
5.Breach of condition 18 by being in possession of a prohibited drug, namely cannabis (charge number MC PER 5704/22).
In respect of the charge of possession of a prohibited drug, namely cannabis, the alleged facts contend that Mr Roworth was found to be in possession of a small bag of cannabis comprising three bags compressed inside a balloon and weighing 0.82 grams, 0.22 grams and 0.95 grams. Mr Roworth denied ownership of the bag (charge number MC PER 5705/22). The allegation in respect of driving a motor vehicle without a licence charge (charge number MC PER 5706/22) relies upon CCTV footage of a vehicle and the GPS data from the Department of Justice which was monitoring Mr Roworth's movement in the community.
The State also relies upon other concerning behaviour by Mr Roworth. In his affidavit, Mr Cooke, police officer, outlines messages identified on a Samsung account in the name of Mr Roworth, which was linked to an email account in his name. The message chats comprise an exchange of messages with another person. Mr Cooke expresses the opinion that during the message chats, there was discussion between Mr Roworth and another person concerning the use of drugs. The State, in written submissions, stated that the messages support an inference that Mr Roworth has been involved in regular drug use and possibly the supply of drugs and that 'therefore, there is the potential for the applicant to also rely on at least some of that conduct at the hearing of the contravention application.'[3]
[3] Applicant’s written submissions dated 24 February 2021 [23].
Mr Roworth intends to plead not guilty to the charges. His counsel submitted that the mobile phone belonged to another person and, therefore, the messages relied upon by the prosecution were between other persons.
Relevant legislative provisions
The State brings the application under ss 53 and 56 of the HRSO Act. Section 53 of the HRSO Act provides:
State may seek orders
(1)This section applies to -
(a)an offender who is brought before the Supreme Court under a warrant issued under section 51(3) or 56(7)(d); and
(b)an offender who is charged with an offence under section 80(1).
(2)In relation to the offender, the State may apply for -
(a)an order under section 55; and
(b)an order for the offender to be detained in custody while proceedings on the application for an order under section 55 are pending.
(3)The application must state what order is sought under section 55.
Section 56 of the HRSO Act, relevantly, provides:
(1)This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect to the offender are pending (the pending proceedings).
(2)The court may at any time in the pending proceedings -
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
(3)The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
(4) The onus of proof as to the matter described in subsection (3)(b) is on the offender.
The term 'exceptional circumstances' used in s 56(3) is not defined in the HRSO Act. The term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special, or an exception to the general trend of cases.
As to the phrase 'substantially comply', this was considered by Fiannaca J in Director of Public Prosecutions (WA) v Hart,[4] in the context of contravention proceedings. I apply the reasoning of Fiannaca J.
[4] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].
An issue that arises for determination is whether it is necessary for Mr Roworth to establish exceptional circumstances to justify his release or whether the onus is on the State to establish that Mr Roworth be detained pending the contravention proceedings. Mr Roworth was not brought before the Supreme Court under a warrant issued under s 51(3) or s 56(7)(d) of the HRSO Act. Rather, the State specifically relies upon s 53(1)(b) of the HRSO Act. That is, at the time the contravention application was made, Mr Roworth was charged with seven offences which are to be dealt with in the Magistrates Court. Mr Roworth was not detained in custody under the HRSO Act. Further, his criminal charges, having been dealt with on 22 February 2022, meant that Mr Roworth voluntarily attended court for the hearing of this application. Accordingly, the interaction of ss 53 and 56 of the HRSO Act arises for consideration.
Quinlan CJ considered the relevance of s 56 of the HRSO Act to an application under s 53 of the HRSO in The State of Western Australia v Slater [No 2] stating: [5]
[5] The State of Western Australia v Slater [No 2] [2021] WASC 465 [15] - [20].
The present application also points up another issue, which is the possible application of ss 56(2) and (3) of the Act to this case, and relationship of those provisions to s 53(2)(b).
Sections 56(2) and (3) provide:
(2)The court may at any time in the pending proceedings -
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
(3)The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
An issue which arises in this case is whether the requirement for exceptional circumstances in s 56(3) is engaged in relation to the State's application. That, in turn, depends upon whether s 56(2)(a) is engaged.
In that regard, the first question is whether Mr Slater is 'detained in custody' within the meaning of s 56(2)(a).
Prima facie, in my view, 'detained in custody', within the meaning of s 56, means detained pursuant to the provisions of the Act. Section 56(2)(a) cannot be construed as providing this Court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences. In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act in relation to a suspected or anticipated contravention of a supervision order. An order of the Court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply - including the requirements of s 56(3).
Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).
Accordingly, in The State of Western Australia v Slater [No 2], Quinlan CJ held that given that the respondent was not in custody, for the reason that the respondent was not brought before the court pursuant to a warrant under s 51 of the HRSO Act, then s 56(3) had no application. For that reason, the requirement in s 56(3) that there be exceptional circumstances did not apply.[6] I subsequently applied that reasoning in The State of Western Australia v Rao.[7] The State accepted that the reasoning of the Chief Justice in The State of Western Australia v Slater [No 2] applies in respect of the present application.
[6] The State of Western Australia v Slater [No 2] [2021] WASC 465 [24].
[7] The State of Western Australia v Rao [2021] WASC 476.
Mr Roworth has not been in custody under the HRSO Act. The State did not make an application to a magistrate for a warrant to arrest and to take Mr Roworth into custody to be brought before the court. Rather, Mr Roworth was charged with offences under s 80(1) of the HRSO Act. Mr Roworth was granted bail by the learned magistrate.
Mr Roworth voluntarily attended court today. He was not in custody and not subject to any warrant or any other order under the HRSO Act (or any other Act) requiring his attendance. The State's application is that Mr Roworth be detained in custody under s 53(2)(b), while the contravention proceedings under s 55 are pending. Accordingly, s 56(3)(a) has no application in respect of Mr Roworth for the reason that Mr Roworth is not in custody. Therefore, for that reason, it is not necessary that the release of Mr Roworth be justified by exceptional circumstances. Rather, the State must establish that the protection of the community against the risk of Mr Roworth committing a serious offence under the HRSO Act requires that he be detained.
Assessment of the application
I now turn to the assessment and whether Mr Roworth should be detained in custody until the determination of the contravention proceedings.
I am not satisfied, on the basis of the alleged contraventions that I have outlined, that the State has established that Mr Roworth should be detained pending the contravention proceedings. I am satisfied that the risk that Mr Roworth may commit a serious offence, as defined under the HRSO Act, may be adequately protected against by the interim supervision order. I have made this determination for the following reasons.
First, Mr Roworth was making good progress with his rehabilitation before his release from incarceration. In his reasons for decision, Quinlan CJ outlined the programmes undertaken and the progress of Mr Roworth.[8]
[8] The State of Western Australia v Roworth [2021] WASC 309.
Second, Mr Roworth has met the supervision requirements of the interim supervision order. Mr Roworth has reported weekly to his Community Corrections Officer as required.[9]
[9] Affidavit of Luke Matthew Carmichael affirmed 28 February 2022 [6], [12] ‑ [13].
Third, Mr Roworth has attended and completed the mandatory urinalysis testing for illicit drugs three times per week. Since 15 February 2022, Mr Roworth has attended on six occasions, with the test results being negative with no validity issues.[10] The fact that the urinalysis tests have returned negative results is supportive of Mr Roworth’s position, being that he is not using illicit drugs.
[10] Affidavit of Luke Matthew Carmichael affirmed 28 February 2022 [14].
Fourth, Mr Roworth is engaged with the professional officers. Mr Roworth is attending psychological counselling with the Department psychologist.[11] There is no suggestion that he has failed to attend or is not engaged. Mr Carmichael, in his affidavit, deposed that Mr Roworth denied personal drug use and externalised blame for his drug use during his consultation with the psychologist.[12] The difficulty with that proposition is that Mr Roworth denies the criminal charges. Underlying Mr Carmichael’s assertion is the assumption that Mr Roworth is guilty of the offences. The charges will be determined after trial in the Magistrates Court in due course.
[11] Affidavit of Luke Matthew Carmichael affirmed 28 February 2022 [15].
[12] Affidavit of Luke Matthew Carmichael affirmed 28 February 2022 [15].
Fifth, the interim supervision order imposes a strict regime with the consequence that Mr Roworth will continue to be subject to an interim supervision order with the understanding that his acts and utterances will be carefully scrutinised.
Sixth, the contravention charges do not involve offences against the person. They do not involve acts of violence or sexual acts.
Seventh, I am mindful that Mr Roworth has a spent a great deal of his adult life incarcerated. He has a long term illicit drug addiction. Mr Roworth is a citizen that needs the assistance of the community to rehabilitate. I accept that Mr Roworth presents a challenge to the officers of the Department. The officers undertake this challenging task with diligence. Mr Roworth should be permitted to continue to engage with the officers. Prior to his release Mr Roworth was making very good progress with his rehabilitation. Mr Roworth should be given the opportunity to continue his rehabilitation whilst subject to the interim supervision order.
Conclusion
Therefore, the application of the State that Mr Roworth be detained in custody pending the determination of the contravention proceedings is refused. Mr Roworth will continue in the community being subject to the stringent conditions of the interim supervision order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
3 MARCH 2022
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