The State of Western Australia v Sandon
[2022] WASC 243
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SANDON [2022] WASC 243
CORAM: MCGRATH J
HEARD: 26 JULY 2022
DELIVERED : 28 JULY 2022
FILE NO/S: SO 9 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MATHEW JOHN SANDON
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Restriction order application - Preliminary hearing - Whether reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Whether interim supervision order should be made pending determination of restriction order application - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act2003 (WA)
Result:
Orders made pursuant to s 46(2) of the High Risk Serious Offenders Act 2020 (WA)
Application for interim supervision order adjourned
Category: B
Representation:
Counsel:
| Applicant | : | Ms F M Allen |
| Respondent | : | Mr T J McCulloch |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Cases referred to in decision:
The State of Western Australia v Pas [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
MCGRATH J:
On 3 June 2022, the State of Western Australia applied for a restriction order in respect of Mr Sandon under s 48 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act).
Mr Sandon is currently a sentenced prisoner. He is due to be released from custody on 12 August 2022.
The preliminary hearing application came before me on 26 July 2022. At the hearing, Mr Sandon conceded that there were reasonable grounds for believing that the court might find that he is a high risk serious offender within the meaning of the HRSO Act. I accept that the concession was properly made and conclude that there are reasonable grounds to believe that the court might find that Mr Sandon is a high risk serious offender.
The State submitted that Mr Sandon should be released from custody pending the final hearing of the restriction order, pursuant to the terms of an interim supervision order.
On 20 July 2022, the Prisoners Review Board made a six month post-sentence supervision order (the PSSO) in respect of Mr Sandon, pursuant to s 74D of the Sentence Administration Act2003 (WA) (the SA Act). Mr Sandon submitted, having regard to the protection and supervision provided by a PSSO, that it was not necessary or desirable for the protection of the community that an interim supervision order be made at this time.
I am satisfied that the conditions of the PSSO render it unnecessary to order an interim supervision order. Therefore, Mr Sandon will be subject to the PSSO whilst in the community awaiting the restriction order application hearing pursuant to s 48 of the HRSO Act.
The law
Section 46(1) of the HRSO Act provides that 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 Mr Sandon is a high risk serious offender within the meaning of the HRSO Act.
A 'high risk serious offender' is defined by s 7(1) of the HRSO Act as 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 to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the HRSO Act is defined in s 5 and sch 1. Relevantly, a 'serious offence' includes the offence of aggravated robbery.
I do not have to be satisfied that a restriction order will be made at the substantive hearing. 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 therefore requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[1]
[1] The State of Western Australia v Pas[2020] WASC 405 [20] - [21] (Allanson J); The State of Western Australia v Winder[2021] WASC 65 [16] (Quinlan CJ).
Under s 35(1) of the HRSO Act, the State may apply for a restriction order in relation to a serious offender 'under custodial sentence' who is not a serious offender under restriction, where there is a possibility that the offender might be released from custody within the period of one year after the application is made.
Under s 3 of the HRSO Act, a 'serious offender under custodial sentence' includes a person who is under custodial sentence for offences other than a serious offence and has been under sentence at all times since being discharged from a custodial sentence for a serious offence.
The initial issue that arises is whether Mr Sandon is a serious offender under custodial sentence.
On 17 October 2019, Burrows DCJ in the District Court sentenced Mr Sandon to a total effective sentence of three years six months' imprisonment with parole eligibility for one count of aggravated robbery, contrary to s 392 of the Criminal Code (WA). The sentence was ordered to commence on 13 February 2019.
On 29 October 2019, Mr Sandon was sentenced in the Armadale Magistrates Court to concurrent terms of imprisonment of six months for one charge of common assault contrary to s 313 of the Criminal Code and 3 months for one charge of stealing contrary to s 378 of the Criminal Code.
Mr Sandon's current sentence expires on 12 August 2022.
Accordingly, Mr Sandon is a serious offender under a custodial sentence.
The evidence
I have received the affidavit of Mr Bennett affirmed 3 June 2022 and annexures thereto comprising Mr Sandon's criminal history and a number of reports including psychiatric and psychological assessments.
The State also relies upon the affidavit of Ms Miller affirmed 29 June 2022 which relates to Mr Sandon's accommodation if released.
Antecedents - criminal record
Mr Sandon is now 32 years of age. He was born in Western Australia with his childhood being documented as stable and supportive with two parents. His parents separated when he was 11 years of age. He completed his education to year 10. Subsequently, Mr Sandon trained as a spray painter and was in employment until he was 22 years of age.
Mr Sandon has a criminal record dating back to 2008.
In respect of 'serious offences' as defined under the HRSO Act, in June 2013, Mr Sandon was convicted in the Supreme Court of one count of aggravated armed robbery for which he was sentenced to a one year term of imprisonment. The offending involved Mr Sandon being armed with a knife and presenting the knife to store security when he was leaving the store after shoplifting.
As I have observed, in October 2019, Mr Sandon was convicted in the District Court of one count of aggravated robbery for which he received a term of imprisonment of three years six months. This is the index offence. The offending involved Mr Sandon approaching the victim at a train station and punching the victim once to the left side of the head and then stealing his bag. Upon the victim endeavouring to use his mobile phone to record Mr Sandon, he responded by further assaulting the victim causing him to fall to the ground.
Therefore, the entirety of the serious offences that the State relies upon comprise one count of aggravated armed robbery committed in 2013 and one count of aggravated robbery committed in 2019.
Mr Sandon has a history of other offending. This offending comprises a history of breach of bail undertakings, violence restraining orders, community based orders and parole.
Relevantly, the previous offending includes a conviction in 2010 in the Armadale Magistrates Court for two charges of assault occasioning bodily harm in respect of which a $2,000 fine was imposed for each charge. In 2012, Mr Sandon was further convicted of one charge of aggravated assault occasioning bodily harm and five charges of breach of a violence restraining order. The victim was Mr Sandon's then girlfriend's stepfather. Mr Sandon had an altercation with the victim resulting in him causing a bodily injury by throwing a piece of broken fence at the victim. For that offending, Mr Sandon received fines and a further 12 month community based order.
In 2013, Mr Sandon was convicted of one breach of a violence restraining order, one breach of a bail undertaking, two breaches of a conditional release order and two breaches of a community based order.
In 2016, Mr Sandon was convicted of common assault, unlawful wounding and breach of a bail undertaking and, in 2017, was convicted of one charge of assault occasioning bodily harm. For that offending, Mr Sandon received a conditionally suspended imprisonment order and a three month term of imprisonment cumulative on the sentence imposed for a 2017 stealing offence, respectively. The offence of assault occasioning bodily harm involved Mr Sandon attending an IGA Express supermarket and endeavouring to steal property from the supermarket and, when approached, he assaulted the security officer. The unlawful wounding involved Mr Sandon assaulting a victim and after the victim pursued him, Mr Sandon reacted by further assaulting the victim with a rake.
In 2019, Mr Sandon was convicted of common assault and received a six month term of imprisonment to be served concurrently with the sentence imposed for the aggravated robbery count (the index offending). The offending involved Mr Sandon assaulting a taxi driver when he was asked to pay for a fare.
Reports and assessments
I have received a number of reports. Mr Jobson, psychologist, in his report of 21 January 2017, undertook a MCMI‑III psychometric assessment used to measure personality disorders and clinical syndromes. Mr Jobson determined that Mr Sandon had a high level of both disclosure and self‑denigration which is typical of persons who are highly psychologically or emotionally impaired. The results showed that Mr Sandon experienced a high level of depression and anxiety suggesting the presence of chronic worry and a general sense of hopelessness or futility concerning the future. An antisocial personality pattern was not evident from observational psychiatric testing but Mr Jobson stated that there were early signs of the development of such characteristics.
Mr Jobson assessed Mr Sandon as having a moderate to large number of risk factors related to general offending and that his risk of reoffending would escalate should he return to the use of illicit substances. The recommendation was that Mr Sandon undertake drug rehabilitation programs and individual counselling.
A psychiatric report from Dr Smith in 2017 determined that Mr Sandon is not suffering from a major mental illness and is not in need of treatment for ADHD. Mr Sandon was diagnosed with harmful substance use and an emotionally unstable personality disorder with antisocial features. Dr Smith stated that Mr Sandon's offending behaviour is a direct outcome of the diagnosed disorders. The main features of Mr Sandon's behaviour are impulsiveness and impaired social judgment. Dr Smith stated that Mr Sandon has suffered severe consequences due to his substance abuse. Dr Smith recommended that Mr Sandon receive significant formal assistance to avoid illicit substances and to develop a prosocial lifestyle. Dr Smith recommended that Mr Sandon complete the Pathways substance abuse treatment programs.
The psychiatric report of Dr Watson of 29 July 2019 assessed Mr Sandon as having various unaddressed emotional and personality vulnerabilities. However, Dr Watson stated that his assessment based on the DSM-V diagnostic system was, in his opinion, that Mr Sandon does not have a major mental illness but that he suspected there is evidence of an underlying anxiety disorder. Further, Mr Sandon does have features consistent with emotionally unstable personality disorder.
In respect of risk, Dr Watson undertook a risk assessment based on the HCR-20 (V3) being a comprehensive set of professional guidelines to assess and manage the risk of violence. Dr Watson outlined the most likely scenario for reoffending generally but also stated that violence would occur in the context of personality vulnerability, substance misuse and antisocial peer influences.
Dr Watson stated that Mr Sandon's treatment needs comprised addressing his substance abuse and psychological intervention to address the suspected anxiety and personality vulnerabilities.
In 2019, officers completed a Treatment Assessment Report. The author assessed Mr Sandon as presenting at high risk to very high risk for future violent offending. The author recommended that Mr Sandon complete further programmes to address the offending.
Treatment undertaken
In May 2018, Mr Sandon undertook the Pathways program. The report states that Mr Sandon's participation was positive and that he made positive shifts regarding an increased understanding of his triggers for substance misuse and susceptibility to negative peer influence.[2] The author of the Pathways report stated that Mr Sandon's participation was indicative of someone who 'aspired to prosocial values with an ability to reflect on his past antisocial behaviour and motivations.' Further, Mr Sandon developed strategies for coping with emotional distress and demonstrated a willingness to seek professional help when feeling overwhelmed and showed a commitment to his mental and physical health. The author stated that Mr Sandon took responsibility for his offending and that he identified himself at the action stage in terms of his commitment to change and determination to reunite with his young daughter.
[2] Pathways program completion report dated 14 May 2018.
Further, Mr Sandon completed the methadone program and developed a realistic and achievable Risk Management Plan.
Proposed accommodation
Ms Miller, an officer of the Department of Corrective Services, deposes that Mr Sandon proposes to reside with his mother at an address in the metropolitan area of Perth. Ms Miller further deposes that Mr Sandon's mother confirmed that she is aware of his criminal history and confirmed a willingness for her son to reside with her should he be released in the community. Mr Sandon's mother is the only resident of the proposed accommodation.
Assessment
As I have observed, I am satisfied that there are reasonable grounds to believe that a court might find Mr Sandon to be a high risk serious offender. I have reached this determination for the following reasons.
Mr Sandon has a reasonably significant history of violent offending and most recently committed a 'serious offence', within the meaning of the HRSO Act in 2019.
Whilst Mr Sandon's criminal record cannot be described as extensive compared to other offenders, there is a high risk of him reoffending. Informing that belief are three matters, namely, Mr Sandon's substance abuse, his personality disorder and his antisocial lifestyle. Mr Sandon appears to suffer from substance misuse disorder and has been diagnosed with emotionally unstable personality disorder or traits consistent with this condition.
Mr Sandon has continuing treatment needs to address his substance abuse and his personality disorder.
I now turn to the application for the interim supervision order.
The State submits that I should make an order for an interim supervision order. Mr Sandon opposes the application to impose an interim supervision order submitting that that he is subject to a PSSO that adequately protects against the risk of him reoffending. The answer to this issue depends upon my assessment of what is required to ensure adequate protection of the community pending the determination of the restriction order application. I am mindful that the scheme of the HRSO Act requires that I do no more than is necessary to achieve an adequate degree of protection of the community.
The PSSO provides as follows:
(a)to report to Adult Community Corrections within 72 hours of his release;
(b)Reside at the fixed address and to notify the Community Corrections Officer of any proposed change of address within 2 clear working days.
(c)to comply with the lawful orders of any Community Corrections Officer;
(d)to have no direct or indirect contact with the victim;
(e)not to use or be in possession of any illicit drugs including cannabis;
(f)to attend random urinalysis for illicit substances, including cannabis, as directed by a Community Corrections Officer and provide a valid sample;
(g)not to consume alcohol;
(h)not to enter licensed premises except cafes, restaurants and sporting venue or grocery stores which may have a liquor licence but no purchase of liquor permitted at any venue;
(i)to submit to random breath testing as required by the Police;
(j)to comply with mental health treatment as directed by a medical practitioner.
(k)to attend programs and counselling as directed; and
(l)not to change address without prior approval of a Community Corrections Officer.
The State provided a proposed interim supervision order. I observe that the interim supervision order conditions sought by the State would impose some additional restrictions on Mr Sandon, but most of the proposed conditions designed to ensure the protection of the community are presently addressed by the PSSO.
The State identified restrictions that it submits distinguish the proposed interim supervision order and the proposed PSSO, namely, that under the interim supervision order Mr Sandon would be subject to electronic monitoring, his electronic devices would be subject to examination, he will be subject to a curfew and that he would undertake random testing for illicit substances.
In respect of random testing for illicit substances, I am of the view that the PSSO provides adequate management of this risk by requiring that Mr Sandon be subject to random urinalysis for illicit substances as directed by a Community Corrections Officer, not consume alcohol and to submit to random breath testing as required by police and not to enter licensed premises.
Whilst I accept electronic monitoring may provide an additional means of surveillance of any offender under community supervision, I do not consider that necessary in Mr Sandon's case. In particular, I observe that Mr Sandon has never been convicted of any sexual offending.
In respect of a curfew, I am unable to conclude, based upon the prior offending and other information available, that a curfew is necessary to further reduce the risk, beyond the PSSO. There is no nexus between Mr Sandon's prior offending and the time of day.
In respect of electronic surveillance of Mr Sandon's movements in the community, I am unable to conclude, based upon the prior offending and the other information available, that electronic surveillance is necessary. There is no nexus between any location and Mr Sandon's prior offending. I observe that electronic surveillance of an offender is highly relevant when authorities require the offender not to attend a particular location. This condition is highly relevant in respect of sex offenders.
Therefore, I am not satisfied it is desirable to make an interim supervision order at this time, given the conditions which Mr Sandon is currently subject to pursuant to the PSSO.
I am mindful that the Prisoners Review Board has imposed a six month PSSO commencing on 12 August 2022 and expiring on 11 February 2023. The court is able to list the substantive final hearing of the application matter prior to that date to ensure that the matter is heard and determined whilst Mr Sandon is subject to the PSSO.
However, the State has submitted that the first available date at which experts are able to finalise reports and give testimony is 8 May 2023. The delay of nearly 12 months is most unsatisfactory. It is not uncommon that offenders are detained under an interim detention order pending the substantive hearing. It is not acceptable that an offender be incarcerated for a 12 month period for the reason that the State's expert witnesses are not available to provide reports and give testimony. Fortunately, Mr Sandon will not be detained under the HRSO Act awaiting the determination of the substantive hearing.
Given that Mr Sandon will be subject to the PSSO in the community, I will order that the restriction order hearing be held on 8 May 2023. That is the date sought by the State.
I appreciate that the PSSO expires on 11 February 2023 and therefore, Mr Sandon will not be subject to supervision in the community after that date given the delay in determining the substantive application. It may be necessary for consideration to be given to extending the duration of the PSSO. Pursuant to s 74E of the SA Act, a PSSO may be imposed for period of not less than six months and not more than two years. The State submitted that in another unrelated proceeding the Prisoners Review Board considered that the express power to amend a PSSO under s 74I of the SA Act does not permit the Prisoner Review Board to extend the duration of the PSSO. This issue was not developed in the written or oral submissions. Whether the Prisoners Review Board considers that the duration of the PSSO imposed upon Mr Sandon may and should be extended is solely an issue for the Prisoners Review Board to determine.
Alternatively, the State may make arrangements for the experts to provide the reports this year and the substantive hearing will be listed and determined prior to 11 February 2023.
In the circumstances, I will not dismiss the application for the interim supervision order but adjourn that application sine die. In the event that the PSSO is not extended, the State may make an application to impose an interim supervision order. Mr Sandon's compliance with the PSSO will be highly relevant in determining whether an interim supervision order is necessary. Further, should Mr Sandon not satisfactorily meet the requirements of the PSSO then, at any time, and upon application by the State, consideration can be given to imposing an interim supervision order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Judge
28 JULY 2022
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