The State of Western Australia v Ryan [No 2]
[2021] WASC 38
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- RYAN [No 2] [2021] WASC 38
CORAM: ALLANSON J
HEARD: 16 & 17 FEBRUARY 2021
DELIVERED : 19 FEBRUARY 2021
FILE NO/S: SO 12 of 2020
(Formerly HRSO 3 of 2020)
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DEREK CHARLES RYAN
Respondent
Catchwords:
High Risk Serious Offenders Act 2020 - Application for restriction order - Where respondent has long history of committing serious offences - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by supervision of the respondent
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr T McPhee |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | State Solicitor for Western Australia |
| Respondent | : | Albert Wolff Chambers |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Ryan v The State of Western Australia [2011] WASCA 7
ALLANSON J:
Introduction
On 3 September 2020, the State of Western Australia commenced proceedings against the respondent, Derek Charles Ryan, for a restriction order pursuant to the High Risk Serious Offenders Act 2020 (WA).[1]
[1] In these reasons, all references to legislation are to the High Risk Serious Offenders Act, unless specified otherwise.
At the time of the application, Mr Ryan was serving a sentence of imprisonment for 12 years. But for this action, he would have been released on the completion of that sentence on 7 October 2020.
Mr Ryan is currently on an interim supervision order, pending the determination of the State's application.
Restriction Orders
The court must make a restriction order if it finds that it 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 Mr Ryan to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[2] A restriction order is not made for the purpose of imposing additional punishment on an offender, although, from a respondent's perspective, the distinction between purpose and effect may be elusive.
[2] Section 7(1), s 48.
A restriction order may be either a continuing detention order or supervision order. In deciding whether to make a detention order or a supervision order, the paramount consideration is to be the need to ensure adequate protection of the community.[3]
[3] Section 48(2).
The court cannot make a supervision order, and therefore must make a detention order, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the standard conditions of a supervision order. The respondent has the onus of proving that he will substantially comply.[4]
[4] Section 29(1) and s 29(2).
The court must have regard to the following matters set out in s 7(3):
(a)any report prepared under s 74 for the hearing of the application and the extent to which Mr Ryan cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to Mr Ryan;
(c)information indicating whether or not Mr Ryan has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by Mr Ryan;
(e)any efforts by Mr Ryan to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation programme;
(f)whether or not his participation in any rehabilitation program has had a positive effect on him;
(g)Mr Ryan's antecedents and criminal record;
(h)the risk that, if he were not subject to a restriction order, he would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
The matters set out in paragraphs (h) and (i) are conclusions or findings based on s 7(3)(a) ‑ (g) and (j).
The term 'serious offence' is defined in s 5. Relevantly to this application, it includes an offence specified in sch 1.
In an application for a restriction order, the court must hear admissible evidence called by the State and, if the respondent elects to give or call evidence, that evidence.[5] Mr Ryan elected not to call evidence.
[5] Section 84(2).
The rules of evidence apply, but are modified to permit the court to receive in evidence:
(a)any document relevant to Mr Ryan's antecedents or criminal record; or
(b)anything relevant contained in the official transcript of any relevant proceeding against him;[6] or
(c)any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against him; or
(d)any relevant material of the kind mentioned in s 7(3) relating to him.[7]
[6] In s 84, relevant proceeding means a judicial proceeding for ‑[7] Section 84(5).
A document or report may be admissible for the purposes of these proceedings by reason of s 7 and s 84, but it is still necessary to consider its probative value. Some of the reports or assessments that were included in the Book of Materials tendered by the State were prepared for other purposes, and the opinions expressed in them are of little if any assistance in resolving the questions now before the court.
Serious offences
The term 'serious offence' is defined in s 5:
(1)An offence is a serious offence if ‑
(a)it is specified in Schedule 1 Division 1; or
(b)it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division.
(2)An offence is a serious offence if ‑
(a)it was an offence under a written law that has been repealed; and
(b)the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).
(3)An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2).
(4)An offence against the law of the Commonwealth or of any place outside Western Australia is a serious offence if the offender's acts or omissions that constituted the offence under that law would have constituted a serious offence under subsection (1), (2) or (3) if they had occurred in Western Australia.
(5)An offence against the law of the Commonwealth is a serious offence if ‑
(a)the offence is of a sexual or violent nature; and
(b)the penalty for the offence specified by the law of the Commonwealth is or includes imprisonment for 7 years or more; and
(c)the offence is prescribed to be a serious offence.
(6)An offence is a serious offence if the court sentencing the offender has declared it to be a serious offence under the Sentencing Act 1995 section 97A.[8]
[8] Under s 97A of the Sentencing Act, a sentencing court may declare an offence to be a serious offence for the purposes of the Act. The section applies where a court is sentencing an offender to imprisonment for an indictable offence and the offence:
(i)involved the use of, or counselling or procuring the use of, or conspiring or attempting to use, a firearm against another person; or
(ii)involved the use of, or counselling or procuring the use of, or conspiring or attempting to use, serious violence against another person; or
(iii)resulted in serious harm to, or the death of, another person.
The section also applies when sentencing for a family violence offence, where the offender is a serial family violence offender.
The offences in sch 1 include, but are not confined to sexual offences. Mr Ryan has no history of sexual offending. He has been convicted of one charge of criminal damage by fire. Otherwise, his serious offending has been by committing, or attempting to commit, robbery.
Mr Ryan's general offending history, including offences which are not serious offences under the Act, may be relevant to assessing the level of risk.
Evidence
The State submitted three volumes of evidence in support of its application,[9] including:
[9] In giving references for this material, I will simply refer to the page number in the book of materials for the hearing.
(1)Mr Ryan's criminal record;
(2)a file of material relating to his time in prison between 2008 and 2020, including incident reports and medical records;
(3)transcripts and other material relating to his convictions for serious offences;
(4)transcripts and other material relating to convictions for other offences which the State contends are relevant offences;
(5)a Psychiatric Report prepared for the Parole Board in 1998;[10]
[10] 925.
(6)a Preventing and Managing Relapse Program Completion Report prepared in 2003;[11]
[11] 645.
(7)a Cognitive Skills Treatment Program Completion Report prepared in 2004;[12]
[12] 650.
(8)a Violent Offending Treatment Program Completion Report prepared in 2005;[13]
(9)a CJS Programs Assessment Report prepared in 2006;[14]
(10)a Release Review Report prepared in 2006;[15]
(11)a Psychological Report prepared in 2009;[16]
(12)a Think First Treatment Program Non-Completion Report prepared in 2009 - not completed due to illness and surgery which prevented Mr Ryan completing the program;[17]
(13)a Violent Offender Treatment Program Non-Completion Report prepared in 2016 ‑ not completed because Mr Ryan was 'relocated' to the prison management unit, and then removed from the program by the prison Assistant Superintendent;[18]
(14)a Clinical Re-Assessment Report made in 2019;[19]
(15)the reports required by s 46(2)(a) and s 74, prepared by Dr Gosia Wojnarowska, psychiatrist, and Ms Julie Hasson, psychologist;[20]
(16)a proposed HRSO Management Plan;[21] and
(17)a Community Supervision Assessment.[22]
[13] 652.
[14] 658.
[15] 660.
[16] 762.
[17] 785
[18] 930. I have been unable to identify in the material before the court what incident led to Mr Ryan being put in the management unit.
[19] 931.
[20] 949, 971.
[21] 933.
[22] 993.
The material relating to Mr Ryan's sentencing on violent offences includes only one presentence report, prepared in 2009.[23]
[23] 767.
Antecedents and criminal record
Because they inform the consideration of the other relevant factors, it is convenient to begin with Mr Ryan's antecedents and criminal record.
Personal antecedents
Mr Ryan is an indigenous man. He was born in 1964 and is now 57 years old.
Mr Ryan was born in Geraldton, and is one of seven siblings. When he was 12 years old, his father died in a violent incident. Following his father's death, Mr Ryan's mother was unable to cope and developed a serious substance abuse problem. Home life was difficult. Mr Ryan was admitted to a number of boys' homes as a young child. He ceased schooling after completing year 7.
Mr Ryan frequently offended from about the age of 12. He served periods of detention in juvenile detention facilities. He was sentenced to imprisonment in an adult prison when he was only 16. He began using benzodiazepines ‑ apparently prescribed ‑ while incarcerated. He has since experimented with most illicit drugs. Before his most recent imprisonment in 2008, Mr Ryan reported that he used amphetamines and alcohol.
Mr Ryan has three children from a relationship that lasted about 18 years. His then partner also engaged in the use of illicit substances and used alcohol excessively.
Mr Ryan has a limited employment history. Most of his adult life has been spent in prison.
At the time this application was commenced, Mr Ryan was serving a sentence of imprisonment for 12 years, without eligibility for parole.
The offending history
Mr Ryan's relevant offending history was set out in detail by Smith J in her Honour's reasons on the preliminary hearing. I summarise the essential features of that history.
Juvenile offending
Mr Ryan's criminal history commenced in 1977 when he was 12 years old. When he was 16, he was sentenced in the Supreme Court to imprisonment for 5 years for 25 offences of burglary. He escaped legal custody and received a further term of imprisonment for 6 months.
Serious offences committed as an adult
Between 11 September 1985 and 3 April 2009, Mr Ryan has been convicted of eight serious offences:
(1)On 11 September 1985, he was convicted of one offence of attempted armed robbery in company. The offence was committed at a motel in Rivervale on 16 March 1995. Mr Ryan was in company with a co-offender. Mr Ryan was armed with a replica pistol. He pointed it at the victim and demanded money but ran when the victim confronted him.
(2)On 2 August 1990, Mr Ryan was convicted of one offence of robbery, committed in Perth City on 10 December 1989. Mr Ryan approached the victim from behind and tugged on the shoulder strap of her purse, and eventually grabbed it after pushing the victim to the ground and punching her several times to the face. In the plea in mitigation on that occasion, Mr Ryan's counsel estimated that between the ages of 16 and 26, Mr Ryan had spent all but 18 months in prison.
(3)On 3 December 1993, he was convicted of an offence of criminal damage, committed on 10 May 1993. After an argument with his de facto, Mr Ryan threatened to set fire to their house. He returned home, opened all the gas jets on the stove and set fire to kerosene, which he had earlier splashed around in the house, before leaving the property.
(4)In 2001, Mr Ryan was convicted of offences, including two counts of armed robbery and one count of attempted armed robbery. The offences were committed during two burglaries on 10 May 1999, in Geraldton, and 14 May 1999, in Carnarvon. The offences involved demanding money, drugs and other property while in company, and armed with a sawn off shotgun. The shotgun was used to threaten the victims.
(5)On 8 October 2008, Mr Ryan was convicted in the Supreme Court of one count of aggravated armed robbery, committed at Balga in June 2006. He and two others broke into the victim's home whilst she and her 9 year‑old daughter were sleeping. The offenders were looking for a woman who had previously lived at the address. Mr Ryan was armed with a knife and a co‑offender with a screwdriver. Mr Ryan put the knife to the victim's throat and asked for gold, money or drugs. The offenders took the victim's stereo, mobile phone, cigarettes and makeup bag. Mr Ryan was also convicted of aggravated burglary.
(6)On 3 April 2009, Mr Ryan was convicted after trial of one offence of aggravated armed robbery committed in February 2008. Mr Ryan was armed with a tomahawk and a co-offender was armed with a length of PVC water pipe. They entered the victim's shed which was situated near his residence. Mr Ryan threatened the victim with the tomahawk and demanded money and drugs. The offenders obtained 1 or 2 g of amphetamine and $50 in cash.
Other relevant criminal convictions
Mr Ryan's record of offending is extensive and has resulted in his serving many terms of imprisonment.
The State relies on convictions between 1990 and April 1998 for offences which are not serious offences, but which involved either acts of violence or breach of bail undertakings. The State included evidence relating to his sentencing for various offences on 10 occasions:
(1)On 16 July 1990, police attended a disturbance at an address in Geraldton. Mr Ryan confronted police and threw rocks at them. He was arrested 11 days later and charged with assaulting a public officer and breach of bail.[24]
[24] 813.
(2)On 25 October 1989, police attended a house in Geraldton to execute a search warrant. They were confronted by three adults and one juvenile, armed with iron bars, bricks, beer bottles and shovels. The police were threatened by the four offenders, and left the area. The incident resulted in an indictment with 25 charges, seven of which were against Mr Ryan. The sentencing judge commented that none of the offenders applied any physical force or threw anything at any of the police officers - the assault was constituted by the threat. Her Honour further commented that Mr Ryan became involved because of his concern at the manner in which the police were treating his cousin.[25]
[25] 832.
(3)In 1995, Mr Ryan was charged with being disorderly by fighting in the street, and for breach of bail.[26]
(4)In 1995, Mr Ryan was charged with resisting arrest (in December 1994) and breach of bail.[27]
(5)In 1996, Mr Ryan was charged again with a breach of bail conditions.[28]
(6)In November 1995, Mr Ryan was charged following an incident in which he hit his then de facto partner with a machete. The victim received a deep laceration to one finger, a smaller laceration on her wrist, and a further laceration to the left leg, which involved a deep thickness of the skin but no further.[29] The charge was dealt with at the same time as four charges of stealing, a charge of threatening behaviour and a charge of using threatening words (both relating to December 1992). The threatening behaviour charge resulted from Mr Ryan challenging the complainant, a police officer, to fight. About 15 minutes later, the respondent used threatening words towards another police officer.[30]
(7)In 1996, Mr Ryan was charged with assault occasioning bodily harm in the remand centre at Canning Vale Prison. The State has put in evidence the transcript of the victim's evidence, and the sentencing remarks. It is not apparent on that material what bodily harm was caused, and her Honour made no finding on that matter.[31]
(8)In 1997, Mr Ryan was charged with giving a false name and making a false bail undertaking, and with breach of bail.[32]
(9)In 1997, Mr Ryan was charged with and pleaded guilty to an aggravated burglary on the rectory of a church in Girrawheen. Mr Ryan was disturbed by the priest and two voluntary church workers. During a struggle, Mr Ryan produced a screwdriver, which he held in a threatening manner. He was charged, as a circumstance of aggravation, with being charged with an offensive weapon, but was not charged with assault or any other offence.[33]
(10)In 1998, Mr Ryan was charged with a breach of bail, giving a false name and making a false bail undertaking.[34]
The s 74 reports
[26] 836 - 837.
[27] 838.
[28] 839.
[29] 844.
[30] 852 ‑ 853.
[31] 907 ‑ 908.
[32] 909.
[33] 915.
[34] 928 ‑ 929.
Both of the experts presenting reports pursuant to s 74 of the Act prefaced the report with the statement that it was prepared at the request of the Supreme Court. Although it may appear a technical point, the court does not request the report. By s 46, if the court is satisfied, on a preliminary hearing, that there are reasonable grounds for believing that the court might find an offender is a high risk serious offender, the court must order that the offender undergo examination for the purpose of preparing the reports to be used on the hearing of the restriction order application. The application for that order is made by the State, and the State decides which experts are to be instructed. The role of the court is to adjudicate on the application, and its function is judicial.
Each of the experts was cross‑examined, but that cross‑examination was largely directed to whether the risk of further offending by Mr Ryan could be adequately managed by appropriate supervision in the community.
Dr Wojnarowska
Dr Wojnarowska undertook a clinical assessment of Mr Ryan, guided by the use of two assessment tools: the Hare Psychopathy Check‑list ‑ Revised (PCL‑R) and the HCR‑20 v3, which she described as a 'broad‑band violence risk assessment instrument with potential applicability to a variety of settings'.[35]
[35] 959.
Dr Wojnarowska's conclusions from her examination and consideration of the material relating to Mr Ryan were not challenged. I can summarise the essential points, all of which I accept.
First, Mr Ryan has no major mental illness. Dr Wojnarowska diagnosed the presence of antisocial personality disorder: 'Mr Ryan's personality structure is characterised by disregard for societal norms ‑ limited ability to empathise, impulsivity, immaturity and entitlement. He also presents with profound deficits in interpersonal functioning characterised by deficits in empathy associated with limited remorse for his behaviour'.[36]
[36] 959.
Second, Mr Ryan meets the criteria for a diagnosis of substance use disorder (although in remission), for alcohol, amphetamines and benzodiazepines.[37] Mr Ryan's history shows an initial addiction to benzodiazepines. At 20 years of age he began using methamphetamine, which use has continued.[38] He continued to express a desire to use methamphetamine and alcohol.[39]
[37] 959.
[38] 961.
[39] 964.
Third, while Dr Wojnarowska assessed Mr Ryan using the PCL-R, she testified that it was not really relevant whether Mr Ryan was called a psychopath or not: what was relevant was identifying the areas that require further management or treatment.[40]
[40] ts 64.
Fourth, Dr Wojnarowska set out in her report the worksheet for her assessment of Mr Ryan by reference to the HCR-20 v3. The report set out relevant general information regarding Mr Ryan's psychosocial history, including relationships, and a summary of his criminal convictions. Dr Wojnarowska then addressed each of the possible risk factors identified in HCR-20 v3 and set out, in table form, a summary of the facts relevant to that factor, her finding as to whether that factor was present, and her professional judgment as to the relevance of that factor (whether low, moderate, or high) in the assessment of future risk.[41]
[41] See ts 59.
Dr Wojnarowska expressed the opinion that Mr Ryan is at high risk of re-offending if not subject to restriction.[42] Her opinion was based on the presence of many, highly relevant, risk factors. Dr Wojnarowska summarised her opinion at [130] to [133] of her report:
130.Mr Ryan's offending has been related to antisocial personality disorder with psychopathic traits; substance use disorder; coping skills deficits and the presence of negative or maladaptive coping mechanisms; impulsivity; emotional and behavioural regulation difficulties; family of origin dysfunction and his own history of neglect.
131.A number of risk factors were identified by HCR‐20 and these include personal supports, treatment and supervision response, stress and coping and substance abuse. Exposure to destabilisers such as accessibility of alcohol and/or substances and proximity of antisocial influences are significant risk factors for future re‐offending. Mr Ryan's desire to reengage in substance and alcohol use is currently only mitigated by the conditions imposed on him by the court. He has explicitly expressed that on completion of any legal requirement he will resume substance use. It is concerning that he perceives methamphetamine use as harmless.
132.Mr Ryan did not complete [any] treatment programs during his most recent term of imprisonment. It appears that following completion of past programs he has reoffended and by his own admission there were no identifiable gains for him.
133.The identified protective factors which may mitigate his risk include his intact cognitive functioning, willingness to obey the orders imposed irrespective of the underlying motives.[43]
[42] 969.
[43] 969.
There is one matter which requires particular comment. The HCR‑20 v3 is directed to the risk of violent behaviour ‑ conduct that causes physical harm to another person[44] ‑ which does not correlate with serious offences as defined in the Act. Not all violent offences are serious offences. Accordingly, Dr Wojnarowska's opinion related to the risk of offending of a 'violent and/or serious nature',[45] but not necessarily the committing of a serious offence as defined.
[44] ts 56.
[45] 969.
Dr Wojnarowska considered that Mr Ryan's risk could be adequately managed in the community, subject to appropriate supervision conditions, with any breaches in relation to alcohol or drug use to be treated seriously with immediate consequences.[46]
[46] 970.
Dr Wojnarowska expressed the opinion that a supervision period of five years would be sufficient.[47] She had seen the proposed conditions of supervision and regarded them as appropriate.
[47] ts 66.
Finally, one of Mr Ryan's serious offences was for criminal damage by fire. There is no pattern of such offences and it is not a specific future risk. Dr Wojnarowska said, and I accept, that the arson offence 'fits into his overall impulsive behaviour with inability to self‑regulate, which is fuel ‑ fuelled by the methamphetamines'.[48]
Ms Hasson
[48] ts 71.
Ms Hasson also assessed Mr Ryan using PCL‑R and HCR‑20 v3. She concluded that Mr Ryan's risk of re-offending is chronic, referring particularly to his past inability to live in the community without relapsing into alcohol and drug use and engaging in offending behaviour.
Ms Hasson similarly referred to the diagnosis of antisocial personality disorder, noting its relevance to future risk management.
Ms Hasson expressed the opinion that Mr Ryan has a high risk of re‑offending, but that risk can be managed in the community. Ms Hasson also supported a period of five years for supervision, and the proposed conditions of the supervision order.
Although Ms Hasson expressed her opinion as 'a high risk of serious re-offending', I consider the expert opinion, on the basis of the assessment tools to which Ms Hasson referred, must be confined to the risk of violent reoffending. Whether that risk is of committing serious offences is a finding which must be based on all of the factors set out in s 7(3), and does not appear to be a question for expert opinion.
Other medical, psychiatric, psychological or other assessment
1998 psychiatric report
In 1998, Mr Ryan was examined and a report prepared by Dr Steven Patchett, Forensic Psychiatrist, at the request of the Parole Board.
Dr Patchett found no evidence for formal psychiatric disorder and his opinion was that Mr Ryan's problems related to a combination of polysubstance abuse (mainly benzodiazepines) and antisocial personality traits. When seen by Dr Patchett, Mr Ryan was almost free from his addiction to benzodiazepines. An underlying anxiety disorder was considered, but Dr Patchett could express no conclusive opinion.[49]
[49] 927.
Dr Patchett expressed the view that Mr Ryan required ongoing drug and alcohol counselling and support.
2009 presentence report and psychological report
On 10 February 2009, Mr Ryan was convicted of one count of aggravated armed robbery. He was to be sentenced for that offence, and also to 15 other charges on a notice under s 32 of the Sentencing Act. For the purposes of sentencing, the court received a presentence report and a psychological report.[50]
[50] 767 ‑ 771.
The information in each report is limited by the purpose for which it was prepared. Relevantly, however, the presentence report records Mr Ryan's account of the offence that it followed his purchase of what he called 'bad quality' drugs from the victim ‑ the drug being amphetamine. Mr Ryan told the author that his offending had been the result of factors including alcohol and entrenched substance use;[51] Mr Ryan had a history of using a range of drugs including amphetamines and, for a time, heroin, and prescription medications. His drug of choice was benzodiazepines.[52]
[51] 768.
[52] 770.
The psychologist also records a history of substance misuse, particularly dependence on prescription drugs. She reported Mr Ryan as saying 'he had maintained abstinence from prescription drugs but had taken up the use of meth/amphetamines when he was last released to the community. The current offence was committed under the influence of methamphetamines and motivated by the desire to obtain the drugs'.[53]
2019 clinical reassessment report
[53] 764.
The report was expressed to be for the purposes of 'updating Mr Ryan's current treatment and program requirements'.[54] The authors noted that Mr Ryan had not completed a Violent Offending Treatment Program, and the program for Indigenous Men Managing Anger and Substance Use was no longer available.
Programs undertaken while in custody
[54] 931.
Pursuant to s 7(3), the court must have regard to whether Mr Ryan has participated in any rehabilitation program. The court must also have regard to whether his participation in any rehabilitation program has had a positive effect on him. The only evidence in that regard is the report prepared either on completion, or non-completion. None of the authors of the reports were called. Each report includes a statement of the author's opinion on whether there have been treatment gains, and what treatment needs remain outstanding. It is difficult to assess what weight can be given to those opinions.
Mr Ryan undertook and completed programs provided to prisoners in 2003, 2004 to 2005, and 2006. He participated in a further program in 2009, but was unable to complete due to illness and subsequent surgery. In 2015, he again commenced but did not complete a program; on that occasion he was removed from the program by prison authorities.
2003 Preventing & Managing Relapse Program
In December 2003, Mr Ryan participated in this program while serving a sentence of 4 years and 2 months' imprisonment. The program was conducted over 28 hours. It appears that the program was directed towards drug and alcohol abuse.
At the time, Mr Ryan identified benzodiazepines as his most problematic drug.
Mr Ryan was described as participating well. It was suggested he would benefit from further support once he had completed his jail term. There is no evidence about whether Mr Ryan was able to access further support on his release.
I have no doubt that Mr Ryan's abuse of drugs and alcohol continued up to his most recent term of imprisonment. He reported continuing to use while in custody.
2003 Cognitive Skills Reasoning and Rehabilitation Program
Mr Ryan completed this program between March and June 2004. The completion report is of little if any relevance in the present application. In particular, it is difficult on the evidence before the court to see the relevance of the report to the question of the risk that Mr Ryan will commit a serious offence.
2004 - 2005 Violent Offending Treatment Program
Mr Ryan participated in this program, which was conducted at Acacia Prison between October 2004 and April 2005.
The report expresses the opinion that Mr Ryan made limited treatment gains, and there remained substantial treatment deficits. The authors recommended further intervention, but it appears that Mr Ryan completed no further programs during his term of imprisonment.
It is also difficult to understand parts of the report which refer to, and, at least in part, rely on, the Paulhus Deception Scale, the Swedish Scales of Personality, the State‑Trait Anger Inventory, and scores on the Hostile Interpretations Questionnaire, the Interpersonal Reactivity Index, and the Criminal Sentiments Scales. None of those tools or scales was explained. While the report may be intelligible to the informed reader, and serve a particular purpose within the custodial setting, it lacked any explanation which might give it value as evidence.
CJS Programs Assessment Report and Parole Review Report
This report was prepared in January 2006, while Mr Ryan was on parole. It reported that Mr Ryan had, at that time, shown an incapacity to prioritise attendance at programs, while attending to cultural commitments (funerals) and attempting to re-establish his marriage after his long incarceration. The review recommended that Mr Ryan take programs on Emotional Management, Social Perspectives and Empathy, and/or Preventing Slip Ups. There is no evidence that Mr Ryan participated in any of those programs.
On 11 April 2006, his parole was suspended for failing to attend a domestic violence assessment as directed. Mr Ryan also committed a further offence on 8 April 2006, prompting suspension of his parole.
Mr Ryan was returned to custody on 2 August 2006. He was then facing a charge of aggravated burglary. I infer, from the timing, that the charges he was then facing are the aggravated burglary and aggravated armed robbery committed on 15 June 2006 for which he was later imprisoned.
Current term of imprisonment
Mr Ryan has commenced but not completed two programs during his current term of imprisonment. An Individual Management Plan, created 13 May 2020 and approved 21 May 2020,[55] records that in 2008 Mr Ryan was recommended for three programs: violent offending, addictions offending, and cognitive skills. It records that the addictions offending program was not available and, for each of the other two programs, and Mr Ryan had 'maintained his stance of not participating at Casuarina Prison'. The refusal to participate is recorded as in October 2008, and there is evidence that Mr Ryan participated in the violent offender program in 2015, but was removed from it. Mr Ryan is recorded as refusing to participate in a Pathways Program in October 2005.
Prison medical records
[55] 190.
The State has included prison medical records for the date range 9 April 2009 to 18 September 2020. The records for September 2020 disclose that Mr Ryan was experiencing anxiety about this application, coming as it did at the end of his 12 year sentence.
The Community Supervision Assessment
The court received a report, and oral evidence, from Ms Trudy Hill, a senior Community Corrections Officer, with the Community Offender Monitoring Unit.[56]
[56] 993 ‑ 1009.
In particular, Ms Hill commented on Mr Ryan's progress while subject to the interim supervision order. There have been some incidents resulting in Mr Ryan receiving verbal or written warnings regarding his compliance, but there has been substantial compliance. Significantly, Mr Ryan has been subjected to 29 urinalysis tests since 7 October 2020: 24 have provided negative results and none have provided positive results.
Mr Ryan has accommodation with his current partner, and Ms Hill commented positively on Mr Ryan's support in the community.
Mr Ryan is continuing individual psychological counselling.
Propensity to commit serious offences in the future
Section 7(3) requires the court to have regard to a respondent's propensity to commit serious offences in the future. The section expressly refers to serious offences and not, for example, a propensity to offend generally or even a propensity for violence (not all violent offences being serious offences under the Act).
The word 'propensity' is used in its ordinary meaning in the context of the criminal law, that is, 'an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder':[57] Director of Public Prosecutions (WA) v GTR.[58]
[57] His Honour was there addressing propensity under the Dangerous Sexual Offenders Act.
[58] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178].
Mr Ryan has an extensive criminal history, starting as a juvenile and continuing up to his latest term of imprisonment. As a child, he committed numerous burglary offences, culminating in the sentence of imprisonment in 1980 when he was 16. In the presentence report prepared for sentencing in 2009, it was noted that Mr Ryan has offended multiple times each year, with the only gaps in offending when he has been sentenced to imprisonment.[59] The offences for which Mr Ryan was convicted and sentenced to imprisonment for 8 years in 2008 were committed while he was on parole for prior offences of aggravated burglary, armed robbery and attempted robbery for which he also received a total sentence of 8 years.[60]
[59] 768.
[60] See Ryan v The State of Western Australia [2011] WASCA 7 [80].
Mr Ryan has been diagnosed as having antisocial personality disorder, as well as substance use disorder (alcohol and substance addictions, currently in remission). He has demonstrated an inclination or tendency to steal, or attempt to steal, with violence, and while intoxicated by drugs or alcohol. Unless Mr Ryan's abuse of alcohol and illicit drugs can be managed, I am satisfied that the propensity is likely to be expressed in future offending.
Any pattern of offending behaviour
The evidence regarding Mr Ryan's serious offences discloses common features: with one exception, the offences of robbery were committed in company, generally with a family member as a co-offender; the offenders were armed, with weapons varying from a sawn off shotgun, to a screw driver; Mr Ryan was generally intoxicated; some of the victims (or intended victims) were known to Mr Ryan. Although weapons were used to threaten, and cause fear and compliance, Mr Ryan did not physically harm any victim.
The exception was the robbery in 1989. On that occasion, actual violence was used towards the victim, with Mr Ryan punching her to get her to release the bag.
There is a pattern also in some of Mr Ryan's non serious offending. Mr Ryan has convictions in 1989, 1990, 1994, and 1995 for threatening behaviour or assaulting or resisting police officers. The offending has been either in response to attempts to arrest Mr Ryan, or in response to other police action, including the arrest of others. Mr Ryan has expressed a hatred of police and a belief that they are racist towards Aboriginal people. While none of the offences were serious, as defined in the Act, the conduct was violent and demonstrates the presence of a risk of a serious offence.
The offences are all over 25 years ago, but Mr Ryan continued to express negative attitudes towards the police and authority in his interviews with Dr Wojnarowska, Ms Hasson, and Dr Riordan.
Addressing the cause or causes of the offending
I have set out, above, the programs completed by Mr Ryan during earlier periods of incarceration. There were no programs completed during his most recent term of imprisonment.
Dr Wojnarowska recommended programmatic intervention, in parallel with psychological counselling. Both Dr Wojnarowska and Ms Hasson identified the use of drugs, in particular methamphetamines, as a major risk factor. Dr Wojnarowska said in evidence that should Mr Ryan start using amphetamines, 'his risk of offending will elevate from chronic to immediate'.[61]
[61] ts 67.
Ms Hasson said, with regard to Mr Ryan's ability to comply with supervision in the community, that while the diagnosed antisocial personality disorder, emotional dysregulation and poor coping skills were important, in her belief he could manage those provided he did not lapse into substance abuse.[62]
[62] ts 90.
It is important that Mr Ryan has been able to manage in the community since his release without relapsing into drug usage. It is also important that the supervision regime that he will be subject to will include both prohibition of drug and alcohol use, and monitoring for compliance.
Following his release on the interim order, Mr Ryan was referred to Adult Community Psychological Services to engage in individual intervention.
The proposed High Risk Serious Offender Management Plan
The State adduced a report by Dr Kathryn Riordan, Senior Forensic and Clinical Psychologist, dated 28 January 2021. The report was expressed to be for the purpose of assisting with identification of relevant supervision, management and intervention strategies should Mr Ryan be made subject to a restriction order.[63]
[63] 933.
A large part of the report repeats information that is otherwise before the court. Dr Riordan also conducted an assessment using the Violence Risk Scale which she said was not being used to comment on his potential future risk of violent reoffending, but rather to identify outstanding treatment targets.[64]
[64] 941.
Dr Riordan reported that Mr Ryan has been managed on a community-based restriction order since October 2020 and has been largely compliant with the requirements of that order. He presents with substantial outstanding treatment needs, including for substance use. Dr Riordan testified that Mr Ryan had spoken about his desire to recommence substance use, and that 'he was very clear that the only thing that is stopping him from using the substances that he would like to use at this current time is the external constraints around his behaviour, such as urinalysis'.[65]
[65] ts 98.
Dr Riordan's discussion in her report of the treatment available to Mr Ryan, and from which he would benefit, was in the level of generality which does not permit any clear finding. She said in evidence, however, that Mr Ryan has already engaged with a psychologist, and has spoken of his willingness to engage with individual psychological counselling.[66]
[66] ts 99.
Evidence of the respondent
Mr Ryan did not give evidence.
Although he was represented, I permitted him to address the court. Mr Ryan is clearly concerned that, having served the sentence that was imposed for his offences, he is now to be subject to further restriction. The requirements of the Act, however, are clear: if I am satisfied that it is necessary to make a restriction order in relation to Mr Ryan to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence, I must make that order.
Conclusion
I have accepted the evidence of the two experts who provided reports, pursuant to s 74. I am satisfied that, particularly should he re-engage in the abuse of drugs and alcohol, Mr Ryan would be likely to reoffend. Mr Ryan's presently expressed intention is to resume using alcohol and drugs when he is not prevented from doing so by external constraints.
The expert opinion, which was substantially unchallenged, is that there is a risk is of Mr Ryan committing offences which would include violent conduct. His violent offences, in the past, have included seven serious offences of robbery or attempted robbery. In all but one of those offences he was armed. He has also committed a violent offence with a weapon against his then de facto partner.
I am satisfied that the State has proved a real risk that Mr Ryan, if not subject to restrictions, would commit offences that would include serious offences. On the basis of his offending history, there is a real risk that Mr Ryan would commit offences of stealing with violence. He has shown a propensity to employ weapons. The potential for injury to a victim, in my opinion, makes the risk unacceptable.
The evidence is that the risk can be managed, so as to ensure the adequate protection of the community, with Mr Ryan remaining in the community, provided he is subject to conditions and his conduct is monitored. He has, since his release on the interim supervision order, demonstrated his ability and his willingness to substantially comply with the conditions of a supervision order. The evidence before the court is that those conditions provide adequate protection.
Both experts agreed that the order should be for five years, although no reasons were given for that term other than that it should be sufficient. The opinions regarding the period of supervision were not challenged. Although the court is not bound to accept those opinions, I am satisfied that it is a suitable period. I am conscious of the restrictions that the order places upon him, although those restrictions can, at least in part (for example, as to curfew and the extent of restricted areas), be modified during the term of the order. The supervision needs to be long enough to meet the underlying problem of substance abuse.
I am, accordingly satisfied on the evidence, to a high degree of probability, that it is necessary to make a restriction order in relation to Mr Ryan to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. I am satisfied that Mr Ryan should be subject to a supervision order under s 27 of the Act, so that he is to be subject to the stated conditions in that order for a period of five years.
Pursuant to s 27(3), having been advised that the implementation of the order from the date it is made is practically feasible, I will order that the supervision order has effect from the date it is made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
19 FEBRUARY 2021
(a) a serious offence; or
(b) another offence that the court considers relevant, having regard to the matter for decision before the court.
4
2
0