The State of Western Australia v Sandon [No 4]

[2024] WASC 41

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SANDON [No 4] [2024] WASC 41

CORAM:   MCGRATH J

HEARD:   22 FEBRUARY 2024

DELIVERED          :   22 FEBRUARY 2024

PUBLISHED           :   23 FEBRUARY 2024

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 offender - Contravention proceedings - Application for interim detention pending determination of contravention proceedings - Whether exceptional circumstances exist - Whether there will be substantial compliance with standard conditions of the supervision order - Need to ensure adequate protection of the community

Legislation:

High Risk Serious Offenders Act 2020 (WA), s 53, s 56

Result:

Offender detained pending determination of contravention proceedings

Category:    B

Representation:

Counsel:

Applicant	:	Ms T-M Hollaway
Respondent	:	Mr T J McCulloch

Solicitors:

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

Case(s) referred to in decision(s):

Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4

The State of Western Australia v Sandon [2022] WASC 243

The State of Western Australia v Sandon [No 2] [2023] WASC 29

The State of Western Australia v Sandon [No 3] [2003] WASC 148

MCGRATH J:

1. The State has filed an application under s 55 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) commencing contravention proceedings in respect of the respondent. In support of the application the State has filed an affidavit of Ms Hollaway, counsel for the applicant, affirmed 22 February 2024, and an affidavit of Ms McClung, Senior Community Corrections Officer, affirmed 21 February 2024.

2. The issue that I must decide is whether the respondent may be released on an interim supervision order pending the determination of the new contravention proceedings.  Counsel for the respondent submitted that given the circumstances, the interim detention of the respondent was not opposed.  I find the concession of the respondent was properly made and that he must be subject to interim detention pending the determination of the contravention proceedings for the following reasons.

Procedural history

1. On 3 June 2022, the State filed an application for orders under s 14 and s 18 of the Dangerous Sexual Offenders Act2006 (WA) (DSO Act). On 28 July 2022, I heard the preliminary hearing and determined that there were reasonable grounds for believing that a court might find that the respondent is a high risk serious offender pursuant to s 7 of the DSO Act.[1] I ordered that the respondent be released on the basis that he was subject to a post sentence supervision order (the PSSO) pursuant to s 74D of the Sentence Administration Act 2003 (WA). I was satisfied that the conditions of the PSSO rendered it unnecessary to order an interim supervision order.

   [1] The State of Western Australia v Sandon [2022] WASC 243.

2. Subsequently, the PSSO expired. Therefore, on 9 February 2023, Lundberg J made an interim supervision order (ISO) pursuant to s 27A of the HRSO Act releasing the respondent into the community pending the final determination of the application. [2]

   [2] The State of Western Australia v Sandon [No 2] [2023] WASC 29.

3. On 14 February 2023, Lundberg J heard the final hearing and determined that the respondent was a high risk serious offender and that he should be released on a supervision order.[3]  Therefore, the respondent commenced living in the community subject to the stringent conditions of the supervision order.

   [3] The State of Western Australia v Sandon[No 3] [2023] WASC 148.

The alleged contraventions

1. In support of the contention that the respondent has contravened the supervision order the applicant relies on 14 criminal convictions, during the period 2 June 2023 and 23 January 2024, for breaches of the supervision order contrary to s 80 of the HRSO Act, and 14 convictions of using a prohibited drug (methylamphetamine or amphetamine or heroin) contrary to s 6(2) of the Misuse of Drugs Act1981 (WA).[4]  The charges arose after the respondent tested positive after a urinalysis test required as a condition of the supervision order. 

   [4] Affidavit of Ms Hollaway affirmed 22 February 2024, [34] - [59].

2. In addition, the applicant relies upon one contravention conviction concerning a failure to attend a urinalysis appointment and one concerning the possession of a weapon.

3. The respondent was also convicted, during the period 21 March 2023 and 19 May 2023, of four charges of contravening a supervision order contrary to s 80 of the HRSO Act, and four charges of using a prohibited drug (methylamphetamine or amphetamine) contrary to s 6(2) of the Misuse of Drugs Act whilst subject to the interim supervision order, but for which he was convicted after he had commenced being subject to the supervision order.[5]  The charges arose after the respondent tested positive after a urinalysis test. 

   [5] Affidavit of Ms Hollaway affirmed 22 February 2024, [12], [27] - [40].

4. For the offending the respondent received non-custodial dispositions, namely fines. 

5. To the respondent's credit he has sought assistance in respect to his use of illicit drugs whilst a member of the community.  However, it is clear that he has an ongoing entrenched illicit drug habit.

Relevant legislative provisions

1. Section 56 of the HRSO Act applies to a person who is subject to a supervision order in respect of whom proceedings on an application under s 53 are pending.

2. Section 56(2) of the HRSO Act provides as follows:

   The court may at any time in the pending proceedings -

   (a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or

   (b)if the offender is not detained in custody, order the offender to be detained in custody.

3. Section 56(3) of the HRSO Act provides as follows:

   The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -

   (a)releasing the offender is justified by exceptional circumstances; and

   (b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).

4. Therefore, I must be satisfied on the balance of probabilities of both matters specified in s 56(3) before I can order the respondent's release.

5. The term 'exceptional circumstances' used in s 56(3) is not defined in the HRSO Act. The term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special or an exception to the general trend of cases.

6. The standard conditions of the supervision order referred to in s 56(3)(b) are those set out in s 30(2), which provides:

   A supervision order in relation to an offender must require that the offender -

   (a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and

   (b)report to, and receive visits from, a community corrections officer as directed by the court; and

   (c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and

   (d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and

   (e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

   (f)not commit a serious offence during the period of the order; and

   (g)be subject to electronic monitoring under section 31.

7. As to the phrase 'substantially comply', this was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart in the context of contravention proceedings.[6]  I apply the reasoning of Fiannaca J.

   [6] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4, [52].

8. The relevant questions to be decided are therefore as follows:

   1.Is the respondent's release justified by exceptional circumstances?

   2.If released, will the respondent substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?

Assessment of the application

1. I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.

Exceptional circumstances

1. The initial question for my determination is whether exceptional circumstances exist for the purposes of s 56(2) of the HRSO Act. Counsel for the respondent did not submit that there were any exceptional circumstances. I find that there are no exceptional circumstances within the meaning of s 56(3) of the HRSO Act.

Substantially comply with the standard conditions of the supervision order

1. I now turn to the question posed by s 56(3) as to whether the respondent has satisfied me on the balance of probabilities that if released, he will substantially comply with the standard conditions of the supervision order, including any amendments made to the standard conditions of the supervision order.

2. As to whether the respondent will substantially comply with the standard conditions of the order, the onus is on the respondent to establish that he will do so on the balance of probabilities.

3. On the basis of the information that I have at the time of hearing this application, I am not satisfied that the respondent would substantially comply with the standard conditions if released.  The concern is that the respondent is using illicit drugs in the community.  There is a high risk that the respondent will commit offences of violence whilst intoxicated from illicit drugs. 

4. At the HRSO hearing before Lundberg J, both Dr Petch, psychiatrist, and Ms Hasson, psychologist, expressed the opinion that the most likely scenario confronting the respondent was that he suffers a setback of some description and his mood deteriorates, leading him to commence using illicit drugs and alcohol.  This is a trajectory that the respondent has been on several times in the past.  The risk for the respondent consuming illicit drugs is that his life would then rapidly deteriorate, such as by suffering a loss of employment and engaging in criminal behaviour to fund his habit, including criminally violent activity.[7]

   [7] Affidavit of Ms McClung affirmed 21 February 2024, [11].

5. In The State of Western Australia v Sandon [No 3], Lundberg J stated that the respondent's convictions for violence 'span almost 10 years and represent an ongoing pattern of violent behaviour since adolescence'.[8]  The respondent has been assessed as tending to quickly revert to criminal behaviour, suggesting the presence of anti-social attitudes and beliefs, particularly when using illicit substances or when struggling to cope with his life situation.  The respondent tends to offend when under the influence of illicit substances and uses violence as a means to an end, and then attempts to justify his offending as self-defence or because he was on drugs.[9]

   [8] The State of Western Australia v Sandon [No 3] [2003] WASC 148, [96].

   [9] The State of Western Australia v Sandon [No 3] [2003] WASC 148, [96].

6. Lundberg J in The State of Western Australia v Sandon [No 3] found that the respondent was at a high risk of committing serious violent offences in the future.  His Honour found that if the respondent restarts using drugs, it is likely that his risk of committing serious violence will escalate rapidly and would become grave.[10]

   [10] The State of Western Australia v Sandon [No 3] [2003] WASC 148, [91].

7. Ms McClung deposes that the respondent is being evicted from his accommodation with his mother on 23 February 2024, unless he is able to otherwise negotiate.[11]  An alternative address has been proposed with peers who have two children, aged five and 11 years of age respectively, residing at the address.  That accommodation is yet to be assessed by the authorities.[12]

   [11] Affidavit of Ms McClung affirmed 21 February 2024, [10].

   [12] Affidavit of Ms McClung affirmed 21 February 2024, [10].

Conclusion

1. Accordingly, I am satisfied that exceptional circumstances do not exist that justify the release of the respondent.  Moreover, I am not satisfied that the respondent will substantially comply with the standard conditions of the supervision order.  The respondent has an entrenched illicit drug problem that needs to be addressed.  He has continued to use illicit drugs whilst subject to the supervision order. 

2. Therefore, the respondent will be detained in custody pending the determination of the contravention proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

PB

Associate to the Judge

23 FEBRUARY 2024