The State of Western Australia v Roworth - [2021] WASC 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ROWORTH [2021] WASC 309
CORAM:   QUINLAN CJ
HEARD:   7 SEPTEMBER 2021
DELIVERED          :   7 SEPTEMBER 2021
PUBLISHED           :   7 SEPTEMBER 2021
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 Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim supervision order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46(2) made
Interim supervision order granted

Category: B

Representation:

Counsel:

Applicant	:	B D Meertens
Respondent	:	P R Gazia

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid WA

Cases referred to in decision:

The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Ratcliff [2021] WASC 31
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 7 September 2021 and has been edited from the transcript.)

Introduction

On 16 August 2021, the State of Western Australia applied for a restriction order in respect of Shaun Meecham Roworth under the High Risk Serious Offenders Act 2020 (WA) (the Act).
The application was made following a referral from the High Risk Serious Offenders Committee on 15 April 2021. Four months elapsed between the referral and the application being made. The delay of four months cannot be explained by the need to obtain additional information as the latest evidence on the affidavit in support of the application dated 16 August 2021 is dated 26 March 2021.
When the application was initially made, the respondent had less than one month before his release date from prison. This meant that, not only was it necessary for the State to make an application for interim orders, but also that the Court was required to list the matter as a matter of urgency, which it did on 27 August 2021. On that date, the State sought an interim supervision order notwithstanding that the preliminary hearing was yet to be heard and the respondent had yet to provide instructions to his lawyer.
For those reasons, I adjourned the matter until today.
I set out this history as it illustrates the necessity, if the Court is to be able to effectively exercise its jurisdiction under the Act to provide adequate protection of the community, that applications are made in a timely manner, and preferably well before persons are proposed to be released from custody.
The main purpose of the preliminary hearing before me today is to determine whether there are reasonable grounds for believing that the Court might find that Mr Roworth is a high risk serious offender within the meaning of that Act.[1]
[1] See s 46(1) of the Act.
Mr Roworth's counsel accepted that the requirements of s 46 are met, and for the reasons that I give, I accept that concession.
The issue which remained to determine was what interim orders, if any, I should make under the Act pending the restriction order application. I will return to those interim orders in due course.
I will first give my reasons for accepting the concession that, pursuant to s 46(1) of the Act, I am satisfied that there are reasonable grounds for believing that the Court might find Mr Roworth is a high risk serious offender.
I need not set out again the relevant principles in relation to that question, which can be found in The State of Western Australia v PAS[2] and The State of Western Australia v Winder.[3]
[2] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J).
[3] The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

In support of its application, the State relied upon the affidavit of Megan Elizabeth Hemsley affirmed on 16 August 2021 which contains Mr Roworth's criminal history and several previous reports in relation to him. I was also provided a copy of a post‑sentence supervision order made by the Prisoners Review Board on 10 August 2021, which is to apply upon Mr Roworth's release.
The evidence reveals that Mr Roworth has a long history of violent offending. His offending includes aggravated armed robbery, aggravated burglary, stealing, threats to kill and grievous bodily harm. Some of that relevant offending is as follows.
In September 1995, Mr Roworth broke into a pharmacy, in company with other co‑offenders, and stole money and drugs. On 11 October 1995, Mr Roworth, in company with a co-offender, broke into a car in a shopping centre car park and stole it, and on 12 October 1995 Mr Roworth and a co‑offender entered a hardware store armed with a wheel brace, threatened a staff member and stole $700. In relation to those offences, Mr Roworth was convicted of burglary, armed robbery and stealing motor vehicle and was sentenced to a total term of 5 years 9 months imprisonment. He was only 19 years old at the time of sentencing and already had numerous convictions for stealing motor vehicles as well as other offences.
While serving the term of imprisonment in 1997, Mr Roworth carried out a reprisal on another prisoner because he believed the other prisoner was an informant. He was convicted of grievous bodily harm in relation to that offence and was sentenced to 2 years imprisonment cumulative upon his then existing term of imprisonment.
In 1998, Mr Roworth was involved in a riot at Casuarina Prison and, as a consequence of that, was convicted of five counts of threatening to kill and sentenced to a total effective term of 2 years imprisonment.
In 2002, Mr Roworth stole money, prescription medication and other property from several people and businesses. Mr Roworth was convicted of, amongst other offences, seven counts of armed robbery and sentenced to a total effective term of 9 years 6 months imprisonment. One of the offences involved Mr Roworth entering a pharmacy armed with a tomahawk. While in the pharmacy, he grabbed an 80‑year‑old customer who sustained some minor injuries when he threw her to the ground. Mr Roworth and the co‑offender stole money from the till, prescription medications and the wallets of two pharmacists.
In 2011, again, armed and in company with others, Mr Roworth broke into the house of two victims wearing balaclavas, assaulted one of the victims and stole items. For this offence Mr Roworth was sentenced to 2 years imprisonment.
Mr Roworth's most recent offending, and for which he has most recently entered custody occurred on 12 October 2015. At 7.50 pm on that day, Mr Roworth, in company with another person, ran into a pharmacy armed with a tomahawk. Mr Roworth waved the tomahawk and demanded that the till be opened. He obtained $1,500 in cash which he and his co‑offender then used to purchase drugs. Mr Roworth was convicted of aggravated armed robbery and was sentenced to 3 years 9 months imprisonment. This sentence was backdated to 15 October 2015.
Around the same time, Mr Roworth committed several other offences including aggravated burglary, stealing and criminal damage between 9 August 2015 and 14 October 2015. He was sentenced for those offences on 26 October 2016 to a total effective sentence of 2 years 2 months imprisonment, to be served cumulatively on his sentence for the aggravated armed robbery.
Mr Roworth is still serving his terms of imprisonment, which ends on 14 September 2021.
There are a number of documents and reports annexed to Ms Hemsley's affidavit. The most recent document annexed to the affidavit is an Individual Management Plan dated 18 February 2021. The most recent report is a Parole Review Report dated 9 July 2019. There are no psychological or psychiatric reports available in relation to Mr Roworth and the most recent pre‑sentence report is dated 4 April 2013.
Mr Roworth is now 44 years of age.
The pre‑sentence report dated 4 April 2013 stated that Mr Roworth had an unremarkable upbringing and reported no abuse or neglect. He reported that he had rebelled against his family's 'strict' views at the age of 10 and ultimately left his family home at the age of 12. At the time of that pre‑sentence report, Mr Roworth reported ongoing contact with his mother, stepfather and younger sister and brother but that his family lead prosocial lifestyles and did not condone his offending behaviour.
At that time, perhaps not surprisingly given his considerable time in custody, Mr Roworth had no employment experience.
The 2019 Parole Review Report stated that Mr Roworth had no psychological or psychiatric issues recorded.
As will be evident from the nature and pattern of Mr Roworth's past offending, Mr Roworth has a long history of drug use. The 2013 pre‑sentence report described his drug use in these terms:
Mr Roworth presents with a history of daily intravenous poly-substance abuse relating to amphetamine (speed), opiates (heroine and morphine) and more historically cannabis. His history of offending relates directly to the maintenance of his addiction, stating he would offend to obtain money on a daily basis, stating he was always on the lookout for opportunistic thefts. He reported 'I'd use as much as I could get in every day', indicating no limit to his intake, which his preferred substance being heroin and most recently … speed. Mr Roworth reported relapse to illicit substance abuse within days of release on all prior occasions and further disclosed substance abuse within custody leading up to his [then] most recent release, stating 'I got out and had to support that (dependency) straight away'.
That report said the following, which is likely to remain true today:
Noting the impact his abuse of illicit substances has had towards his prior offending, this area appears paramount in ensuring abstinence can be achieved upon release in order to reduce his risk of re‑offending. Mr Roworth openly admits he is unlikely to achieve such without supervision and guidance upon release.
Prior to his most recent term of imprisonment, Mr Roworth had completed several programs including a Preventing and Managing Relapse Program in 2004, Cognitive Skills Program in 2004 and Moving on from Dependencies Program in 2005. Given his return to custody soon after that time, those programs appear to have produced little by way of treatment gains.
During his current term of imprisonment, Mr Roworth has completed the Violent Offender Treatment Program, in 2017, and the Pathways Program, in 2018.
The report for the Violent Offender Treatment Program dated 15 May 2017 stated:
Mr Roworth attended and completed the VOTP program at Casuarina Prison on 02/03/2017. He was a vocal group member who was respectful and supportive of others in the group and worked consistently throughout the program. The following treatment areas were identified: insight into violence, emotional control, weapons use, substance use, interpersonal relationships, impulsivity, cognitive distortions, criminal attitudes and criminal peers. Treatment gains were observed in these areas; however, there is some concern regarding charges associated with drug use during his current term of imprisonment. He would benefit from inclusion in the Pathways Program to address outstanding substance use issues as well as ongoing treatment when he is eventually released from prison.
The report later stated:
Mr Roworth has prepared a risk management plan where he identified high risk situations such as criminal peers, drug use (particularly cravings) and his younger sister as being high risk situations for him and will be using skills from the program to assist him in overcoming these obstacles. He acknowledge that returning back into the community at the completion of his sentence will be difficult and inclusion in programs which enhance life skills would be to his advantage.
The program facilitators recommended that Mr Roworth participate in the Pathways Program which he later did.
The Pathways Program Completion Report dated 25 June 2018 stated:
His gains were considered to be around deepening his determination to not relapse, planning for his future, and recognition of the depth of his addiction to illicit drugs and a criminal lifestyle and some emerging responsibility taking. It is suggested that to reduce his risk of reoffending, the following recommendation are made if a period of parole is granted:
•Support in his pursuit of sustained substance abuse counselling supported by urinalysis to address his entrenched methyl amphetamine addiction.
•Support to undertake a residential rehabilitation program to support his safe re-entry into the community.
•Engagement with a training and employment agency that supports his transition back into society through gainful employment.
•Encouragement to seek personal counselling to support his exploration of emotions, to build recognition around his emotional needs, coping with relationships and dealing with his entrenched obstinate thinking style.
Those reports do suggest some positive gains on Mr Roworth's part, although, Mr Roworth requires a good deal more work if he is to remain offence free.
The most recent Individual Management Plan dated 18 February 2021, stated in relation to Mr Roworth's prison behaviour:
Mr Roworth has been employed as a Peer Support Worker … Mr Roworth is regarded as an above average worker who is polite, respectful and helpful in his interactions with staff and his peers. He is reported to complete all tasks as required and any additional duties as requested. Peer Support Officer and Employment Officer stated Mr Roworth has really 'stepped up to the plate' with his new employment … Mr Roworth was described as a good worker who completed all tasks with no issues or complaints.
At that time, and since then, Mr Roworth has been a minimum security rated prisoner.
I will note that the 2019 Parole Review Report stated that Mr Roworth completed the Pathways Program on 6 June 2019 and that on 14 June 2019 Mr Roworth returned a positive test for cannabis suggesting limited, if any gains, from the Pathways Program.
That statement appears to be incorrect.
In fact, Mr Roworth completed the Pathways Program on 6 June 2018, and while he did return a positive test to cannabis on 14 June 2019, between the completion of the Pathways Program in June 2018 and that test, he had returned negative urinalysis tests on 10 separate occasions.
On those occasions, the only drugs found on urinalysis were methadone which was prescribed to him to deal with his opiate addiction. There is no evidence that he has tested positive for any opiates (other than the methadone medication) while he has been in custody. That provides some indication that Mr Roworth will, at least, be leaving custody drug free. His task is now to remain drug free.
In relation to Mr Roworth's risk of reoffending, the 2019 Parole Review Report stated:
The LS/RNR and the VRS Assessment tools show very high risk factors at play for reoffending especially noted his overall criminal history, lack of education and employment coupled with drug problems and criminal attitudes. Roworth admits to being institutionalised and has spent much of his adult life in prison.
In light of this evidence, I turn to the assessment under s 46 of the Act.

Assessment

I am satisfied that there are reasonable grounds to believe that a court might find Mr Roworth to be a high risk serious offender.
My reasons for that conclusion are that Mr Roworth has a significant history of offending, including serious offences, as was most recently the case with his offending in 2015. That offending has been directly related to his substance abuse over the years.
Mr Roworth has spent much of his adult life in prison and, while there have been reports of treatment gains during his most recent terms of imprisonment, and he has conducted himself well during his recent move into minimum security, the reality (which Mr Roworth appears to have readily accepted) is that his history of drug use has meant that he has been so far unable to maintain an offence-free lifestyle. Mr Roworth has accepted, in that regard, that his successful integration in the community will require supervision, guidance and assistance.
In light of the need for such supervision, guidance and assistance, and in light of his ongoing treatment needs, I am satisfied that there are reasonable grounds to believe that a court might find that Mr Roworth is a high risk serious offender.
I will therefore make orders for the hearing of the restriction order application and for Mr Roworth to be examined by a psychiatrist and qualified psychologist for the purposes of preparing reports to be used at that hearing.

Interim supervision order

In the meantime, as I have said, the State submits that I should make an interim supervision order pending the determination of the restriction order application.
Mr Roworth, through his counsel, submits that such an order is not necessary for the protection of the community, as the community can be adequately protected by a post‑sentence supervision order made by the Prisoners Review Board on 10 August 2021.
In submissions before me today, the State initially submitted that I should order that Mr Roworth be subject to an interim detention order and, in the alternative, an interim supervision order.
This was contrary to the submission made by the State only 11 days ago on 27 August 2021. On that occasion, the State did not seek an interim detention order but sought an interim supervision order imposed on that day.
Counsel for the State agreed that there had been no changes in the Mr Roworth's circumstances since 27 August 2021 and that there was no new evidence in relation to its change of position. I expressed concern as to whether the application for an interim detention order was merely an ambit claim. Ultimately, in the course of submissions, counsel withdrew the application for an interim detention order.
As a general observation, and without reflecting adversely on counsel who appeared today, I would observe that, as the model litigant, it is the role of the State, particularly where the liberty of the subject is at stake, to make responsible arguments based on the evidence and the law. The effective discharge of this Court's jurisdiction under the Act depends on the State doing so. The interests of justice are not served by the State making ambit claims, safe in the knowledge that the Court will ultimately arrive at the result required by law. Apart from casting the State in the role of the 'boy who cried wolf', it fails to provide the Court with the assistance it requires.
As it was, in this case, the State provided considerable assistance in relation to the additional matters that would effectively contribute to the supervision of Mr Roworth were he placed on an interim supervision order, as opposed to a post‑sentence supervision order.
In order to make such an interim supervision order, s 58(2) of the Act requires that I be satisfied that there is a pending proceeding, the offender to whom the pending proceedings relate must not be in custody, and the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under this section.
In relation to those criteria these are, of course, pending proceedings within the meaning of s 58(2)(a). In relation to s 58(2)(b), while Mr Roworth is currently in custody, he will be released from custody on 14 September 2021. Previous decisions of judges of this Court have concluded that, on its proper construction, s 58(2)(b) (and its predecessor, s 27A(2) of the Dangerous Sexual Offenders Act 2006 (WA)) applies in relation to a person who would not be in custody on a specified future date from which the order is to take effect.[4] While the provisions are somewhat ambiguous, I am satisfied that I should follow those decisions and agree that an order can be made from the specified date, which is the date of Mr Roworth's release on 14 September 2021.
[4] The State of Western Australia v CA [2020] WASC 164 [30] - [33] (Fiannaca J); The State of Western Australia v Ratcliff [2021] WASC 31 [42] - [43] (Derrick J).

In the circumstances, I am satisfied that I should make an interim supervision order, as it is necessary and desirable in the interests of the safety of the community that I make that order, rather than simply rely upon the post‑sentence supervision order.
My reasons for that conclusion are as follows.
It is clear from the reports and Mr Roworth's criminal history, as I have already identified, that he requires supervision, guidance and support in the community. I have been advised by both parties that Mr Roworth proposes to live at the address of his partner and her child and that that location has been reviewed by the Community Offender Monitoring Unit (COMU). COMU have advised that they consider that the location is one in which Mr Roworth can be safely managed if the tools available under an interim supervision order are in place.
The particular tools that are available (and which are important for the protection of the community) are that, under an interim supervision order, Mr Roworth can be made subject to GPS monitoring and can be subject to a curfew. The precise requirements and detail of the GPS monitoring and curfew are able to be determined from time to time by COMU by issuing written lawful directions in relation to Mr Roworth's whereabouts and, in particular, whether he is to be prohibited from attending certain premises.
I consider that it is in the interests of the safety of the community that COMU have that capacity. It is apparent from Mr Roworth's prior offending that it has involved business premises, and in the circumstances, it ought to be open to the COMU to place restrictions on Mr Roworth's capacity to access certain places which may pose high risk situations. Pharmacies, which have been part of Mr Roworth's offending history, may be an example of such a place.
Without an interim supervision order, it would not be possible for COMU to impose those kinds of specific and particular restraints. In my view, it is in the interests of the community's protection that they be able to do so.
Mr Roworth has expressed preparedness to comply with those kinds of restrictions (if it be necessary), although he has expressed concern in relation to the particular effects of GPS monitoring and curfews as to his capacity to see and associate with family, including his grandmother with whom he has a close relationship. It is, of course, in the interests of Mr Roworth and in the interests of the community that he is able to engage in pro‑social relationships including family relationships.
I am satisfied, however, that it is well within the power of COMU to manage conditions under an interim supervision order in such a way as to facilitate that kind of pro‑social contact.
Finally, an interim supervision order, unlike a post‑sentence supervision order, does provide a statutory mechanism for ensuring that if there is a breach of the interim supervision order, Mr Roworth is able to be promptly brought before the Court to be dealt with.
For those reasons, I will order that Mr Roworth be subject to an interim supervision order from 14 September 2021 until the completion of the proceedings.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
7 SEPTEMBER 2021