The State of Western Australia v Sandon [No 2]
[2023] WASC 29
•10 FEBRUARY 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SANDON [No 2] [2023] WASC 29
CORAM: LUNDBERG J
HEARD: 9 FEBRUARY 2023
DELIVERED : 10 FEBRUARY 2023
PUBLISHED : 10 FEBRUARY 2023
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) - Interim supervision order application - Impending expiry of a post-sentence supervision order under the Sentence Administration Act 2003 (WA)
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 3, s 30, s 46, s 48, s 58
Sentence Administration Act 2003 (WA), s 74A, s 74B, s 74D, s 74J
Result:
Interim supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Ms F M Allen |
| Respondent | : | Mr T J McCulloch |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Sandon [2022] WASC 243
LUNDBERG J:
A. Overview
These reasons explain why I was satisfied at the hearing on 9 February 2023 that, in the particular circumstances of this case, an interim supervision order should be made in relation to the Respondent pursuant to s 58(5) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
B. Background
The State's application for an interim supervision order was first heard before McGrath J on 26 July 2022, in conjunction with the preliminary hearing application under s 46 of the HRSO. I refer to the reasons of McGrath J delivered on 28 July 2022 in this regard: The State of Western Australia v Sandon [2022] WASC 243. As explained below, the application was renewed before me on 9 February 2023 given the impending hiatus between the expiry of the Respondent's post-sentence supervision order (PSSO) and the final determination of the State's restriction order application.
At that time of the hearing before McGrath J, the Respondent was a sentenced prisoner. He was due for release from custody on 12 August 2022 (and he was in fact released on that date). The Respondent had been serving a 3½ year sentence of imprisonment for aggravated robbery (being the index offence). The Respondent was convicted of that offence in the District Court in October 2019. The offending involved the Respondent 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 the Respondent, he responded by further assaulting the victim causing him to fall to the ground.[1]
[1] The State of Western Australia v Sandon [2022] WASC 243 [23] (McGrath J).
The Respondent was convicted of one other 'serious offence' (as defined under the HRSO Act). In June 2013, the Respondent 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. In brief terms, the offending involved the Respondent being armed with a knife and brandishing the knife to store security when he was leaving the store after shoplifting.[2]
[2] The State of Western Australia v Sandon [2022] WASC 243 [22] (McGrath J).
It should also be noted that the Respondent has a history of other offending, including breaches of bail undertakings, violence restraining orders, community based orders, and parole.
For the purposes of the hearing before McGrath J, the Respondent conceded that there were reasonable grounds for believing that the court might find that he was a high risk serious offender within the meaning of the HRSO Act. McGrath J accepted that the concession was properly made and his Honour ultimately concluded that there were reasonable grounds to believe that the court might find that the Respondent was a high risk serious offender (at [3] and [40] - [43]).
However, McGrath J was not satisfied it was necessary to order that the Respondent be subject to an interim supervision order upon his release from custody (at [45] - [56]). His Honour's conclusion in this regard was driven by the fact the Respondent would be subject to a six month PSSO upon his release from custody and whilst in the community awaiting the final restriction order application hearing pursuant to s 48 of the HRSO Act. The PSSO had been imposed on 20 July 2022 by the Prisoners Review Board (Board), pursuant to s 74D of the Sentence Administration Act2003 (WA) (SA Act).
His Honour accepted the submission of the Respondent that, having regard to the protection and supervision provided by a PSSO, it was not necessary or desirable for the protection of the community that an interim supervision order be made at that time (at [5]). One of the preconditions for the making of an interim supervision order is, of course, that the court must be satisfied that such an order is desirable to ensure the adequate protection of the community: s 58(2)(c) of the HRSO Act.[3]
[3] The PSSO regime serves purposes which are similar in nature to the regime established by the HRSO Act (and its predecessor legislation, the Dangerous Sexual Offenders Act 2006 (WA)). In particular, the Prisoners Review Board is obliged to make a PSSO in respect of a prisoner if it considers that the order is necessary for the ‘prevention of harm to the community from further offending by the prisoner’ (s 74D(3) of the SA Act). Further, a PSSO does ‘not form part of the punishment for the offence for which the prisoner has been imprisoned’ (s 74B(2) of the SA Act).
In the circumstances, McGrath J did not dismiss the application for the interim supervision order but rather adjourned the application sine die (at [59]). His Honour was conscious that the PSSO was due to expire on 11 February 2023 and the final hearing of the restriction order application was, for a number of reasons, not due to be heard until after that expiration date. There was at least a possibility, though, that the Board might extend the duration of the PSSO beyond 11 February 2023.
In the event such an extension was not granted, his Honour anticipated that the State might renew its application for an interim supervision order.
C. Recent procedural history
In late November 2022, I made orders to list the State's restriction order application for hearing on 14 February 2023, with the interim supervision order application being relisted for hearing on 27 January 2023 (if required).
In January 2023, it became apparent that the Board would consider the Respondent's request to extend the PSSO at a hearing on 3 February 2023. In the event the Board considered it appropriate to extend the duration of the PSSO beyond 11 February 2023, the necessity for a hearing of the interim supervision order application would naturally fall away.
Accordingly, the parties sensibly sought an adjournment of that application at the directions hearing before Quinlan CJ on 27 January 2023. His Honour made orders adjourning the application through until 9 February 2023.
On 3 February 2023, the Board considered the Respondent's case and declined to amend the terms of the original parole order. In its letter to the Respondent dated 3 February 2023, the Board stated as follows:
The Board has previously determined that a suitable period for the PSSO was six months. In effect, the application is asking the Board to amend the decision by an extension. Leaving aside questions of jurisdiction, the Board is of the view that the matters raised in the application do not provide grounds for an extension.
You are the subject of an application under the High Risk Serious Offenders Act. It will be for the Supreme Court to determine if it is appropriate to make an order under that Act. That is to be heard shortly and the short period of a few days between the expiry of the PSSO and the making of an order, interim or otherwise under the High Risk Serious Offenders Act should not pose any risk to the community.
The coalescence of the above matters meant that, absent the making of an interim supervision order by this court pursuant to s 58 of the HRSO Act, there would be a short lacuna in supervision regimes commencing on 12 February 2023 and the date on which I make any final orders in respect of the restriction order application.
Whilst I acknowledge the final hearing is scheduled for 14 February 2023, which is only 4 days away, I anticipate I will reserve my decision and publish reasons and make final orders within 2 to 3 weeks thereafter. So, it is possible the lacuna may be around 3 weeks.
D. Disposition
In considering this matter, I bore in mind that the scheme of the HRSO Act requires that the court do no more than is necessary to achieve an adequate degree of protection of the community. The Respondent has been subject to a PSSO for the past six months and has not reoffended in any significant respect during this period.[4]
[4] The terms of the PSSO are found in the Book of Materials dated 6 September 2022 at pages 212 - 213.
I also allowed for the possibility that I may find, at the conclusion of the hearing on 14 February 2023, that the Respondent is not a high risk serious offender for the purposes of the HRSO Act. At this stage, I have not heard oral evidence from any of the State's witnesses and there has been no cross-examination on behalf of the Respondent. Detailed submissions have not been made by either party as to the various matters in respect of which I will need to ultimately be satisfied before determining the State's restriction order application.
If I ultimately find the Respondent is not a high risk serious offender, there will be no occasion for the making of either a continuing detention order or a supervision order, and the restriction order application will need to be dismissed. I am not in a position to definitively comment on this issue at this stage, other than to note that, in July 2022, McGrath J concluded there were reasonable grounds to believe that the court might find that the Respondent was a high risk serious offender (and, indeed, accepted a concession from the Respondent to this effect).
As to the primary matters relied upon by the State in support of the making of the interim supervision order, counsel for the State, Ms Allen, drew my attention to the evidence that the Respondent has continued with his illicit substance use over the period since his release from prison (namely amphetamine and methylamphetamine use). The Respondent has also consumed alcohol in contravention of the PSSO. These matters represent significant risk factors for the Respondent's reoffending.
The Respondent has been charged with breaches of the PSSO as a result, which are due to be heard in the Armadale Magistrates Court. I refer, in this regard, to the Post Sentence Supervision Order Performance Report dated 25 January 2023.
In support of its application, counsel for the State relied on the opinions contained in the report of Dr Edward Petch dated 18 October 2022. Dr Petch is the Consultant Forensic Psychiatrist who has reviewed the Respondent. In his detailed report, Dr Petch opined that:[5]
The court must have regard to the propensity of Mr Sandon to commit serious offences in the future (these may or may not be violent). The propensity of Mr Sandon to commit serious offending is underpinned by his substance misuse disorder (currently in remission), his untreated ADHD and his personality disorders. He has a well-established tendence to steal for gain, either to eat or to obtain cash or to steal as a means of obtaining cash to fund his habit or service his drug debt. In the course of these endeavours, he has on occasion resorted to violence some of which have become serious. The propensity is largely driven by intoxication, and if that can be managed his overall risk in my view is likely to be substantially moderated. Should he restart using drugs, in my view it is likely that his risk of committing serious violence will escalate rapidly and would become grave.[6]
The conditions of the PSSO have demonstrated that the provisions of that order have provided a degree of protection to the community. These however may not be sufficient to manage the risk should he relapse and start to use drugs or alcohol, although the current PSSO does specifically prohibit this.[7]
[5] ts 43 - 44, 46 - 47.
[6] Report of Dr Petch dated 18 October 2022, [239].
[7] Report of Dr Petch dated 18 October 2022, [242].
Further, counsel for the State drew my attention to various statements within the report of the Forensic Psychologist, Ms Julie Hasson. Ms Hasson reviewed the Respondent and in her report dated 21 October 2022 found that:[8]
If Mr Sandon relapses back into illicit substance abuse, it is likely he will offend on a regular basis over a period of several days in order to obtain alcohol and drugs. He will continue to offend until such time as he is apprehended. His offending in the past shows persistence and habituation.
Mr Sandon is assessed as being a high risk of reoffending which increases the likelihood of him engaging in the offending behaviour described in the scenarios above. Mr Sandon has yet to make sufficient treatment gains or demonstrate that he can manage his substance abuse risk in the community over an extended period of time. He is definitely 'on the right track' however he requires significant support and assistance to maintain abstinence.
[8] Report of Ms Julie Hasson dated 22 October 2022, [110] - [111]; ts 54.
I took the view at the hearing that the opinions of Dr Petch and Ms Hasson provided appropriate support for the making of an interim supervision order. Whilst I was conscious that the supervision regime would operate for only a short period, I considered it appropriate to avoid any hiatus in the Respondent's supervision arrangements pending the final determination of the State's application.
In the circumstances, the view I took at the hearing on 9 February 2023, after hearing submissions from the counsel for the State and for the Respondent, was that the prerequisites for the making of an interim supervision order in s 58(2) of the HRSO Act were satisfied. In particular, I was satisfied that:
1.proceedings on a restriction order application were pending (s 58(2)(a)); and
2.the Respondent was not in custody (s 58(2)(b)); and
3.it was desirable to make an interim supervision order to ensure the adequate protection of the community (s 58(2)(c)).
However, I was concerned that the draft interim supervision order sought by the State was too onerous in certain respects and formed the view that its scope should be narrowed. The draft interim supervision order sought by the State contained some 35 conditions. The first seven of these are standard conditions required by s 30(2) of the HRSO Act. The remainder were sought by the State pursuant to the power in s 30(5) of the HRSO Act as additional conditions. I was not satisfied that all of these conditions were required on an interim basis and concluded that conditions 18 - 19 (disclosure of information), conditions 20 - 22 (restrictions on contact with victims) and conditions 31 - 35 (conditions relating to telecommunication devices and firearms) of the State's draft orders should be removed.[9] At least at this stage, there was no compelling basis to impose these additional conditions on the Respondent.
[9] These numbers reflect the original numbering of the conditions used by the State.
The balance of the conditions were, in my view, appropriate for the protection of the community and to ensure that the Respondent remains subject to a supervision regime that does no more than is necessary in this regard. I also had in mind the need to minimise the impact of any interim supervision regime on the Respondent's continuing employment, which is an important part of his overall rehabilitation.
If I was satisfied that an interim supervision order should be made, the State proposed that I make the order to take effect from 10 February 2023. I was content with this approach. Upon the interim supervision order taking effect, the PSSO will automatically cancel such that the Respondent will not be subject to two regimes. In this regard, counsel for the State drew my attention to the operation of s 74J(3) of the SA Act, which provides:[10]
If a supervised offender, during the PSSO period, becomes a serious offender under restriction, the PSSO applicable to the supervised offender is cancelled by operation of this subsection
[10] ts 51.
The phrase 'serious offender under restriction' includes a person who is subject to an interim supervision order, by virtue of the definitions within s 74A of the SA Act and s 3 of the HRSO Act. So, upon an interim supervision order being made in relation to the Respondent, the PSSO will automatically be cancelled.
The final terms of the interim supervision order I made on 9 February 2023 are set out in Annexure A to these reasons. These orders will have effect for a relatively short period, from 10 February 2023 through until the determination of the restriction order application. The proceedings were otherwise adjourned until 14 February 2023.
ANNEXURE A
INTERIM SUPERVISION ORDER - CONDITIONS
With proceedings pending on a restriction order application and the Court being satisfied that, to ensure adequate protection of the community, it is desirable to make an order under section 58 of the High Risk Serious Offenders Act 2020, the Court orders that the Respondent be subject to an interim supervision order pursuant to section 58(5) of the Act, from 10 February 2023 until the determination of the restriction order application, on the following conditions:
You, MATHEW JOHN SANDON, must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to Maddington Adult Community Corrections Centre at 191 Burslem Drive, Maddington within 48 hours of imposition the Order and advise the officer of your current name and address.
Report to and receive visits from, a Community Corrections Officer as directed by the Court.
Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32).
Not leave or stay out of the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a serious offence during the period of the Order.
Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
Residence
Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer assigned to you.
Reporting to a CCO and supervision by a CCO
Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO.
Disclose to the CCO the name and details of any paid or unpaid employment, education, training or volunteer work in which you intend to commence.
Attendance at programs or treatment
Comply with the requirements of all programs and intervention designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;
Medications/Mental Health
To comply with mental health treatment as directed by a medical practitioner or a Community Mental Health Team member, including medication.
Disclose to the CCO on the next occasion you report to that person or agency the medical practitioner's details and allow contact for oversight and monitoring to occur regarding your treatment.
Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO or undergo treatment, including anti-depressant medication, as directed by the CCO in consultation with a medication practitioner or medical practitioners.
Reporting to WA Police
Report as directed by the Officer-in-Charge of the Serious Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth WA 6000, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team (or other specific Police location in WA) or his/her delegate.
If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020.
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and you use is in accordance with the instructions of the prescriber.
Prevention of high-risk situations
Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.
Attend for, and submit to, urinalysis or other testing for prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
Provide a valid sample pursuant to Condition 21.
Not purchase, or possess, or consume or use alcohol.
Not go or remain at any licensed premises with the exception of cafes, restaurants and sporting venues, unless permitted for a purpose and for a duration approved in advance by a CCO.
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SAO
Associate to the Honourable Justice Lundberg
10 FEBRUARY 2023
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