The State of Western Australia v Tipping
[2023] WASC 228
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TIPPING [2023] WASC 228
CORAM: DERRICK J
HEARD: 22 JUNE 2023
DELIVERED : 22 JUNE 2023
PUBLISHED : 23 JUNE 2023
FILE NO/S: SO 5 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
HIRIM GEORGE TIPPING
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 - Restriction order application - Preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Whether an interim detention order or interim supervision order should be made pending determination of the application - Turns on own facts
Legislation:
Community Protection (Offender Reporting) Act 2004
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)
Result:
Orders made pursuant to s 46(2)
Interim detention order made
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v CJC [2023] WASC 52
The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v Lynch [2022] WASC 104
The State of Western Australia v Ratcliff [2021] WASC 31
The State of Western Australia v Ugle [2022] WASC 91
DERRICK J:
Application
On 9 June 2023 the State of Western Australia (State) made an application for orders to be made in relation to Hirim George Tipping (respondent) as follows:
1.A restriction order under s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (Act) (the application for this order being made pursuant to s 35(1) of the Act);[1]
2.Orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act requiring, among other things, that the respondent undergo examination by a psychiatrist and a psychologist for the purpose of preparing reports to be used on the hearing of the restriction order application; and
3.An order pursuant to s 46(2)(c)(i) of the Act that the respondent be subject to an interim detention order until the final determination of the restriction order application, or alternatively an order pursuant to s 58(5) of the Act that the respondent be subject to an interim supervision order until the final determination of the application.
[1] The respondent is an 'offender' for the purposes of the Act and a 'serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act: see the definition of 'offender' in s 3 of the Act, par (b) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act.
On 22 June 2023 I heard the State's application for the orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Accordingly, the hearing that took place before me was a preliminary hearing conducted pursuant to s 46(1) of the Act.
On 22 June 2023 I also heard the State's application for an interim detention order under s 46(2)(c)(i) of the Act, or in the alternative an interim supervision order under s 58(5) of the Act. At the hearing of the application the State's position was that the respondent ought to be placed on an interim detention order. However, the State did not press for the making of an interim detention order that required the respondent to remain in custody right through until the final determination of the restriction order application in the event that I decided to make the orders sought under s 46 of the Act. Rather, the State, for reasons that I elaborate upon below, accepted that it was appropriate for any interim detention order to require the respondent to remain in custody to a specified date in approximately two months time; that is, a date well in advance of the date on which any final hearing of the restriction order application would occur.
The respondent conceded that the requirements of s 46(1) were met and therefore did not oppose the application for the orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Further, given his current circumstances the respondent did not attempt to argue against the making of an interim detention order that required him to be detained for a period of approximately two months as opposed to until the final determination of the restriction order application.
Despite the position taken by the respondent in response to the State's applications it was, of course, still necessary for me to examine the evidence and to satisfy myself that the orders sought should be made.
At the end of the preliminary hearing I decided that the requirements of s 46(1) were met and therefore made orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Those orders included an order listing the hearing of the restriction order application for 17 November 2023. I also decided that it was necessary to make an interim detention order in respect of the respondent requiring him to remain in custody until 9 August 2023. I informed the parties that I would publish reasons for my decisions at a later date. These are my reasons.
The respondent's current status
On 23 February 2022 the respondent was sentenced to a total of 2 years and 6 months imprisonment for one offence of sexual penetration without consent contrary to s 325 of the Criminal Code (WA) (Code) and one offence of unlawful and indecent assault contrary to s 323 of the Code (index offences). The expiry date of his sentence is 24 June 2023.
On 24 May 2023 the Prisoners Review Board (PRB) made a post-sentence supervision order in relation to the respondent pursuant to s 74D of the Sentence Administration Act 2003 (WA) (SA Act) to come into effect on 24 June 2023 (PSSO).
The law[2]
[2] My statement of the applicable law reproduces what has been written by other judges of this court in numerous recent decisions: see by way of example only, The State of Western Australia v Ugle [2022] WASC 91 [5] - [8] (Hall J) and The State of Western Australia v Lynch [2022] WASC 104 [7] - [10] (Quinlan CJ).
Section 46(1) of the 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 the respondent is a high risk serious offender within the meaning of the Act.
A 'high risk serious offender' is 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 Act is defined in s 5 and sch 1.
I do not have to be satisfied that a restriction order will be made. It is sufficient at this stage of proceedings 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. Further, a belief is an inclination of mind towards assenting to rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
The evidence
In support of the application the State relies on an affidavit affirmed by Kathryn Emma Ellson on 9 June 2023.[3] Ms Ellson is a lawyer employed by the State Solicitor's Office. Annexed to Ms Ellson's affidavit are a number of documents including the respondent's criminal record, documents relating to the respondent's prior convictions and reports that have been prepared in relation to the respondent.
[3] Exhibit 1.
The State also relies upon:
1.A Parole Assessment Report prepared by an Adult Community Corrections (ACC) Senior Community Corrections Officer (CCO) dated 24 March 2022;[4]
2.A Department of Justice (Department) Static 99R Assessment Report dated 13 September 2022;[5]
3.A Department Stable Assessment Report dated 29 September 2022;[6]
4.A Department Treatment Assessment Report dated 26 October 2022;[7]
5.A letter from the National Disability Insurance Agency (NDIA) to the respondent dated 20 January 2023;[8] and
6.An email from the State Solicitor's Office (SSO) to the court dated 19 June 2023 forwarding an email from Ms Cassie McNally from the Community Offender Monitoring Unit (COMU) to the SSO also dated 19 June 2023 relating to the respondent's current accommodation situation.[9]
The respondent's background and personal circumstances[10]
[4] Exhibit 5.
[5] Exhibit 3.
[6] Exhibit 4.
[7] Exhibit 2.
[8] Exhibit 6.
[9] Exhibit 7.
[10] Exhibit 1, annexure X, 138; Exhibit 1, annexure W, 134.
The respondent is a 37-year-old Indigenous man.
The respondent was born in this State. He was born prematurely.
The respondent spent most of his childhood interstate.
The respondent was exposed to family and domestic violence, parental neglect and substance use during his formative years. He was subjected to all forms of abuse.
As a child the respondent was diagnosed with Attention Deficit Hyperactivity Disorder. He had difficulties with his education. He has current difficulties with literacy and numeracy.
The respondent has been involved in numerous relationships. He has a number of children born to different mothers. Most of his children live interstate.
The respondent has a history of chronic alcohol and illicit substance use, mainly cannabis and methylamphetamine.
Cognitive testing of the respondent undertaken by a clinical psychologist in 2018 indicated that the respondent has broad ranging deficits impacting upon his thinking and behaviour. He appears to have particular problems with attention, impulse control, organisation and planning.
In December 2022 an application was made by Acacia Prison on behalf of the respondent to the NDIA for support funding under the National Disability Insurance Scheme (NDIS). On the basis of the supporting evidence submitted, which consisted of a NDIS Application Form completed by a General Practitioner dated 22 December 2022, the application was refused.[11] However, the Department's Forensic Psychological Intervention Team (FPIT) has requested Acacia Prison Reintegration to resubmit the referral to the NDIS with psychological and psychiatric reports that have previously been prepared in relation to the respondent.
[11] Exhibit 6.
The respondent has a limited network of prosocial support in the community. He speaks with the mother of an ex-partner once a week who has custody of one of his children, a daughter.
The respondent's criminal record[12]
[12] Exhibit 1, annexure A, 11.
The respondent has a relatively minor criminal record in South Australia that is of no real relevance to the application. It is the sexual offences of which the respondent has been convicted in this State that have prompted the making of the application.
On 16 December 2016 the respondent was convicted after trial of one offence of indecently dealing with a child of or over the age of 13 and under the age of 16 contrary to s 321(4) of the Code. He committed the offence on 17 January 2008, that is, over 15 years ago. On 3 March 2017 he was sentenced to 4 years imprisonment for the offence. He was made eligible for parole. The offence is a 'serious offence' within the meaning of the Act.
On 16 January 2019 the respondent was released on parole.
On 16 February 2022 the respondent was convicted in this State on his late pleas of guilty of the index offences. He committed the index offences on 23 January 2020 while he was on parole for the indecent dealing offence of which he had been convicted in December 2016. As I have already indicated, he was sentenced to a total of 2 years and 6 months imprisonment for the index offences (2 years and 6 months imprisonment for the sexual penetration without consent offence and 6 months imprisonment for the unlawful and indecent assault offence to be served concurrently with the sentence for the sexual penetration without consent offence). He was made eligible for parole. The commencement date of the sentence was backdated to 6 August 2020. The sexual penetration without consent offence is a 'serious offence' within the meaning of the Act.
It is worth noting that in imposing the sentence of 2 years and 6 months imprisonment for the index offences the sentencing judge assessed the respondent's risk of reoffending to be high.
On 8 March 2022 the respondent was convicted of one offence of possessing stolen or unlawfully obtained property and two offences of failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act). He committed these offences on 9 June 2020, again while he was on parole for the indecent dealing offence of which he had been convicted in December 2016. He was fined for the property related offence and sentenced to a total of 3 months imprisonment for the failure to comply with reporting obligations offences.
The facts of the respondent's sexual offences
The facts of the respondent's above referred to sexual offences, briefly stated, are as follows.
Indecent dealing with a child of or over the age of 13 and under the age of 16[13]
[13] Exhibit 1, annexure V, 131; Exhibit 1, annexure X, 140.
On 17 January 2008 the respondent, who was 22 years old at the time, was at a beach in Rockingham. The respondent approached the 13-year-old male victim who was unknown to him. The victim was urinating on the beach. The respondent grabbed the victim and pulled him down to the ground. The respondent then pulled the victim to a secluded area under a jetty. Once under the jetty the respondent pulled his and the victim's shorts down and rubbed his erect penis around and near the victim's penis and bottom. As the respondent did this he held his hand over the top of the victim's face to prevent the victim from calling out. The victim struggled and twisted one of the respondent's nipples in an attempt to make him stop what he was doing. In response the respondent grabbed the victim's hands and pushed them under the victim's back. The respondent then continued to rub his penis up and down the victim's penis. After some time the respondent stopped what he was doing and fled.
Initial investigations failed to identify the respondent as the offender. However, in February 2014 the police file was allocated for further investigation. This led to additional DNA testing being done on various items that had been seized at the time of the initial investigation. The DNA testing made use of more advanced techniques than had been available in 2008. The further DNA testing resulted in the respondent's DNA being found on the inside of the victim's shorts.
Index offences[14]
[14] Exhibit 1, annexure H, 27.
At the time of committing the index offences the respondent was 34 years old. The 16-year-old victim was a friend of the respondent's then partner.
On 23 January 2020 the offender, while on the couch in his home, grabbed the victim's face and held it while forcibly kissing the victim on the mouth. The respondent then forcibly penetrated the victim's vagina with his fingers. The respondent kept his fingers in the victim's vagina for some time. The incident came to an end when the respondent was distracted by another person in the house. The victim then left the house.
The offender was arrested for the offences on 6 August 2020.
Behaviour while on parole[15]
[15] Exhibit 1, annexure V, 129; exhibit 2.
While the respondent was in the community on parole for the first of his sexual offences he reported for supervision as directed, provided urinalysis samples as directed all of which yielded negative results, and engaged in counselling as directed. He committed one breach in relation to substance use that resulted in a written warning being issued to him.
On 16 June 2020 the PRB made the decision to suspend the respondent's parole until expiry on 5 August 2020 due to the alleged nature and seriousness of the charged index offences.
Behaviour during current term of imprisonment[16]
[16] Exhibit 1, annexure W, 134.
During his current term of imprisonment the respondent has not incurred any formal prison charges and has not been identified as a management issue. He has been a generally compliant prisoner who has abided by prison regulations.
Participation in programmes and counselling
Prison based programmes
In 2017 while serving his term of imprisonment for the first of his sexual offences the respondent completed the Think First Cognitive Skills Programme.[17]
[17] Exhibit 1, annexure P, 92.
In 2018, also while serving his term of imprisonment for the first of his sexual offences, the respondent completed the Pathways Programme. The Pathways Programme focussed on substance misuse and criminal conduct.[18]
[18] Exhibit 1, annexure S, 108.
The respondent was reported to have made some gains through his participation in the programmes. However, his gains were limited due at least in part to his cognitive difficulties and literacy issues.[19]
[19] Exhibit 1, annexure X, 140.
The respondent has not engaged in the Intensive Sex Offender Treatment Programme (ISOTP) or any other sex offending treatment programmes. He has been unable to do so due to the unavailability of such programmes at relevant times.
Parole interventions
As I have already indicated, in 2019 while on parole the respondent participated in psychological counselling. He attended no less than 20 sessions with his FPIT psychologist. The counselling focussed predominantly on his trauma. He was reported to have engaged appropriately.[20]
[20] Exhibit 1, annexure V, 131; Exhibit 1, annexure X, 140; exhibit 2.
While on parole the respondent also engaged in substance abuse counselling at Wungening.[21]
Prison based counselling
[21] Exhibit 1, annexure V, 129; exhibit 2.
In October 2022 the respondent was referred to the FPIT to address his outstanding criminogenic needs. In November 2022, upon his transfer to Acacia Prison, the respondent was allocated an FPIT psychologist, namely Ms Caris Hamlett‑Waller, counselling psychologist.[22]
[22] Exhibit 1, annexure X, 138.
Ms Hamlett‑Waller saw the respondent on 3 January 2023, 11 January 2023, 25 January 2023 and 22 March 2023. Following her sessions with the respondent she prepared a Treatment Plan Report dated 26 April 2023.
During Ms Hamlett-Waller's sessions with the respondent he initially reported that his history of trauma was no longer an issue or risk relevant as he had developed strategies to assist and found engaging in psychological counselling beneficial. However, later when exploring precipitating factors in his offending the respondent reported his abuse as a salient factor in his offending. The respondent described still experiencing symptoms consistent with trauma including flashbacks, nightmares, sleep disturbance and irritable behaviour.
Ms Hamlett‑Waller was unable to determine a clear formulation of the respondent's offending behaviour due to inconsistent information that he had provided across time. For example, the respondent referred to auditory command hallucinations although he had not disclosed experiencing such hallucinations to the sentencing courts or to assessors as recently as March 2023. In Ms Hamlett-Waller's view this creates uncertainty in relation to the respondent's mental health as a factor in his commission of the index offences.
The respondent also provided inconsistent information regarding his substance use and whether this was a factor in his offending.
In Ms Hamlett-Waller's view the contradictory information provided by the respondent raises questions about the veracity of past assessments of the respondent and documentation.
Despite the inconsistencies in the information provided by the respondent, Ms Hamlett‑Waller is of the opinion that the respondent's personality features and cognitive limitations would have impacted his ability to effectively problem‑solve and regulate dysphoric emotions. In her opinion the respondent may have relapsed into substance misuse to cope which would likely have exacerbated his mental health issues and may have increased his sex drive and preoccupation with sex.
Due to the inconsistencies in information provided by the respondent it was difficult for Ms Hamlett-Waller to determine explicit treatment targets. However, she considers that treatment needs are likely to be in the areas of substance misuse, emotional regulation, capacity for healthy relationships, sexual offending (including sex drive and sexual preoccupation, using sex as a coping mechanism, management of sexual fantasies, sexual deviancy, offence planning and exploration of sexual offending cycle) problem solving, cognitive distortions, release planning, identification of high risk situations and compliance with treatment and supervision.
Ms Hamlett‑Waller concludes her report in the following terms:
Given [the respondent's] responsivity issues, risk management will best be facilitated through stringent behavioural controls and environmental support. He appears unlikely to be able to adhere to a risk management plan himself and will require significant structure and supervision to avoid a return to problematic behaviour. Multi‑agency support through NDIS is recommended to assist with accommodation, daily living, employment options and mentors. His abstinence from substance misuse would be imperative in reducing risk. Due to [the respondent's] report that substance‑induced perceptual disturbances were a significant factor in his offending, a psychiatric assessment appears warranted.
Assessments of the respondent
Psychiatric assessment - February 2017
In February 2017 the respondent was assessed by Dr Siva Bala, psychiatrist. Dr Bala undertook his assessment for the purpose of the respondent's sentencing for the first of his sexual offences. Following his assessment he prepared a report for the court dated 14 February 2017.[23]
[23] Exhibit 1, annexure M, 67.
Dr Bala diagnosed the respondent as having an antisocial and borderline mixed personality disorder, post‑traumatic stress disorder (PTSD) and amphetamine use disorder which was in remission due to incarceration. Dr Bala noted that the respondent denied committing the offence and that therefore it was difficult to draw a link between his traumatic childhood and his offending. Nonetheless, he expressed the view that the respondent's offending was likely to be related to being a victim of childhood sexual abuse and re‑enacting this as an adult.
Dr Bala undertook an assessment of the risk of the respondent committing further sexual offences. In doing so he made use of the Static‑99R risk assessment tool. The respondent's Static‑99R score was 6 which placed him in the 'well above average risk' range for being charged with, or convicted of, another sexual offence.
Psychological assessment - February 2017
In February 2017 the respondent was also assessed by Ms Cinzia Zuin, psychologist. Ms Zuin's assessment of the respondent was also conducted for the purpose of his sentencing for the first of his sexual offences. Following her assessment Ms Zuin prepared a report for the court dated 17 February 2017.[24]
[24] Exhibit 1, annexure N, 78.
It was not possible for Ms Zuin to determine the psychological underpinnings of the respondent's offence because of his emphatic stance of denial.
Like Dr Bala, Ms Zuin undertook an assessment of the respondent's risk of committing further sexual offences using the Static‑99R risk assessment tool. Ms Zuin found that the respondent's Static‑99R score placed him in the high risk category. In this context, Ms Zuin said the following in her report:
There is little evidence to suggest any continued pattern of offending since the current offence was committed nine years ago. However, other factors commonly associated with risk management pose cause for concern in [the respondent's] case. He has a history of transient, unstable accommodation; he has never worked due to being on a Disability Support Pension; there appear to be longstanding issues with cognitive functioning, periods of unstable mental health and a diagnosis of ADHD for which [the respondent] was medicated as a child; he has a longstanding and entrenched history of drug and alcohol abuse and; aside from his mother, with whom he maintains erratic contact, he does not appear to have a pro‑social network of support.
Ms Zuin concluded her report in the following terms:
[The respondent] has complex personality issues shaped through years of physical and sexual abuse as a child; a history of drug and alcohol abuse and; developmental and intellectual delay due to a premature birth. These factors combined all have an impact on risk management as [the respondent] has poor impulse control and he lacks effective decision‑making skills. Furthermore, he lacks consequential thinking skills and is vulnerable to manipulation and exploitation due to his various difficulties. His treatment needs are intensive however, his capacity to engage in group programmes is limited due to his various difficulties, which include poor literacy. [The respondent] would possibly derive more benefit from individual counselling that is more practice and education based and tailored to his needs. Involvement in a sex offender specific treatment programme is unlikely to meet [the respondent's] treatment needs and given his stance of denial he is unlikely to meet eligibility requirements for inclusion.
Individual counselling to address issues around victimisation through an organisation such as the Sexual Assault Referral Centre … may also be of benefit. Referral to an external organisation who can provide support, mentoring and housing assistance is also recommended.
Psychological assessment - December 2018
In December 2018 while serving his term of imprisonment for his first sexual offence the respondent was psychologically assessed by Ms Tina Marley, clinical psychologist. Ms Marley conducted her assessment to provide information to the PRB regarding the respondent's 'group readiness and to determine if he requires any specialised individual counselling'. The assessment occurred after the respondent had completed the Think First Cognitive Skills Programme and the Pathways Programme. Following her assessment Ms Marley prepared a report for the PRB dated 21 December 2018.[25]
[25] Exhibit 1, annexure T, 115.
As part of her assessment Ms Marley assessed the respondent's risk of committing further sexual offences using the Static-99R risk assessment tool and another risk assessment tool, the STABLE‑2007. The respondent's Static-99R score placed him in the 'well above average risk' category. On the STABLE-2007 the respondent scored in the 'moderate' category when compared to other male sexual offenders in the 'normed' sample.
Comparing the respondent's combined scores on the Static-99R and STABLE-2007 with a 'normed' sample of adult male sex offenders, the respondent's predicted recidivism rate was in the 'well above average' range with 26.8% of adult male sex offenders who scored the same as the respondent reoffending (in a similar manner) within a five‑year period.
Ms Marley identified the most likely reoffending scenario for the respondent to be that he would engage in impulsive and sexually aggressive behaviour towards a stranger when he was intoxicated or drug‑affected. She noted that the respondent committed his offence while he was socially isolated from family and supports living in South Australia and when he was living itinerantly. She considered that these were likely destabilising factors. She considered that when considering the respondent's compromised functioning due to his intellectual deficits it is likely that his decision‑making was further impacted by his lifestyle and substance abuse.
Ms Marley formed the view that the criminogenic interventions that the respondent had undertaken (that is, the Think First and Pathways programmes) would not have addressed the respondent's specific risk factors such as managing sexual impulses, fantasy management and meeting his intimacy needs pro‑socially. She identified these risk factors as outstanding treatment needs.
Ms Marley noted that the respondent's historical trauma remained untreated. She noted that it was unlikely that the respondent would make notable gains and develop insight into the link between his offending and victimisation while he was in prison.
Ms Marley concluded her report in the following terms:
[The respondent] would benefit from referral to the [NDIS] for case management assistance matched to his intellectual deficits. The psychometric testing in the current assessment provides evidence of [the respondent's] 'disability'. He would benefit from case management that includes access to mentors, recreation, accommodation, supported employment and with a core aspect of risk management. His offending behaviour appears secondary to his intellectual disability and substance abuse.
[The respondent] has outstanding treatment needs specifically related to sexual offending. It is recommended that he be considered for individual psychological intervention to address those needs. I believe this would be better timed as part of his transition to the community, in a multi-dimensional case management model …
[The respondent's] release planning should consider his suggestibility and easy influence by antisocial peers. He will be unlikely to secure a feasible release plan for himself, and will require considerable assistance …
Treatment Assessment – September and October 2022
In September and October 2022, so after his parole was suspended and he was returned to custody, the respondent was assessed by Mr R Litterick, an officer engaged by the Department. Mr Litterick undertook his assessment for the purpose of identifying the respondent's treatment needs. Following his assessment Mr Litterick prepared a report dated 26 October 2022.[26]
[26] Exhibit 2.
Mr Litterick interviewed the respondent on 1 September 2022. The respondent initially displayed reservation around accepting responsibility for the index offences but when challenged was open to exploring this area.
The respondent impressed Mr Litterick as having little insight into his thoughts, emotions and problem-awareness. It was therefore difficult for Mr Litterick to provide an accurate assessment of the respondent's offending behaviour.
As part of his assessment of the respondent Mr Litterick made use of the Level of Service/Risk, Need, Responsivity (LS/RNR) tool. The results of the LS/RNR indicated that the respondent was in the 'Very High' risk category of general re-offending. The respondent's identified risk factors included his criminal record, his lack of education and employment, his lack of positive prosocial reports, his lack of constructive activities and his alcohol and drug dependence.
Also as part of his assessment of the respondent, Mr Litterick administered the Static-99R[27] and the STABLE-2007[28] to the respondent. The respondent's combined Static-99R and STABLE-2007 results placed him in the 'Level IVb…Well Above Average' risk of sexual reoffending. The STABLE-2007 highlighted several areas of treatment need for the respondent including his lack of positive social influences, his lack of capacity for stable relationships, his emotional identification with children, his lack of concern for others, his impulsivity and poor problem solving skills, his sex drive, his use of sex as a coping mechanism and his willingness to cooperate with supervision.
[27] Exhibit 3.
[28] Exhibit 4.
Mr Litterick assessed the respondent as 'a high risk individual for sexual offending [with] responsivity needs which have impacted on his ability to solidify past treatment gains'. He recommended that the respondent engage with individual specialised intervention to develop strategies around risk management and harm minimisation that would correlate with any high risk serious offender or PSSO restrictions and recommendations.
On 26 October 2022 Mr Litterick, in accordance with his recommendation, referred the respondent to the FPIT (which resulted in Ms Hamlett-Waller's above referred to engagement with the respondent).
PSSO assessment - March 2023
In March 2023 the respondent was assessed by a Senior CCO from ACC to enable the provision of a report to the PRB to be used by the PRB in determining whether the respondent should be released on a PSSO. The CCO's report is dated 17 March 2023[29] and was therefore prepared shortly prior to the last of Ms Hamlett-Waller's counselling sessions with the respondent.
[29] Exhibit 1, annexure W, 134.
According to the CCO the respondent, although he verbalised victim empathy, struggled to identify the impact of his offending on his victims. He struggled to identify how his offending‑related needs would be addressed in a meaningful way in the community. He was unable to identify any form of protective strategy or specific factors that he would utilise to manage sexual impulses. He expressed no established plan for release which in the CCO's view significantly escalated the risk of him reoffending and the risk that he posed to the community.
The CCO expressed the view that the respondent presented as an extremely vulnerable individual given his myriad of complex treatment needs, his disabilities and his lack of a cohesive release plan.
The accommodation situation[30]
[30] Exhibit 1, annexure W, 136; exhibit 7.
The respondent had indicated that if released he plans to live with his ex-partner at an address in the eastern suburbs of Perth (proposed residence).
The respondent and his ex-partner have a child together. However, the child is not in the respondent's ex-partner's care. Rather, the child is in the care of the Department of Communities (Child Protection and Family Support) following the making of a Family Parenting Order by the Family Court on 24 August 2022.
When the respondent applied for release on parole in 2022 he nominated the proposed residence as the place that he intended to live on his release. However, the ACC assessed the proposed residence as unsuitable for the purposes of parole. The ACC deemed the environment of the proposed residence to be unsupportive and unprotective due to the respondent's ex-partner's substance use, the ex‑partner's refusal to accept that the respondent had committed his offences and the fact that it was the ex-partner who had introduced the respondent to the victim of the index offences.
On 14 June 2023 Ms McNally of the COMU, following unsuccessful attempts to contact the respondent's ex-partner by telephone, attended the proposed residence. On her arrival she observed the wooden front door to be open and the security screen door shut. While standing at the front door she was able to see inside the residence. She could see that the interior of the residence was strewn with items including empty alcohol containers, children's clothes and toys. Despite calling out numerous times no one answered the door. She left a letter in the front door asking the respondent's ex-partner to call her urgently.
On 16 June 2023 Ms McNally received a telephone call from a Youth Worker at Passages Youth Engagement Hub. The Youth Worker rang on behalf of the respondent's ex-partner who had received Ms McNally's letter. The Youth Worker told Ms McNally that the respondent's ex-partner was engaged with their service, that she was not residing at the proposed residence (although she had collected her mail) and that she was not able to provide accommodation to the respondent at this time.
The respondent has applied to The Beacon, a service that provides accommodation for the homeless. However, he has been informed that they do not currently have any vacancies.
The respondent has been referred to ReSet for transitional support. However, he has not yet been assessed for inclusion in ReSet's programme.
In summary, the respondent has no accommodation currently available to him in the community.
The PSSO conditions[31]
[31] Exhibit 1, annexure Y, 143.
The conditions of the PSSO that are additional to the standard conditions specified in s 74F of the SA Act are as follows:
1.To have no direct or indirect contact with the victim of his offences;
2.To comply with the requirements of the CPOR Act;
3.Not to have unsupervised contact with children under 18 years of age;
4.Not to use or be in possession of any illicit drug including cannabis;
5.To attend random urinalysis as directed by a CCO and to provide a valid sample;
6.To attend programmes and counselling as directed;
7.To comply with mental health treatment as directed by a medical practitioner of a Community Mental Health Team member; and
8. To advise his CCO of his residential address and not to change his address without the prior approval of his CCO.
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
The application is a little different to many of the applications for restriction orders that come before the court. The respondent has been convicted of only three 'serious' sexual offences, two of the offences being committed as part of the one course of conduct. This is a relatively small number of serious sexual offences compared to the number of serious sexual offences commonly committed by offenders who are the subject of applications for restriction orders. Further, the offender was in the community for the best part of nine years between committing the first of his serious sexual offences and being sentenced to imprisonment for the offence during which time he was not convicted of any further sexual offences. Indeed, during this nine year period he was convicted of only two offences, specifically an offence of possessing a knife and an offence of disorderly conduct, both of which he committed in South Australia in 2014. He was fined a small amount for both offences.
It is also the position that there was an approximate 12 year gap between the respondent's commission of the first of his 'serious' sexual offences and his commission of the second of his 'serious' sexual offences. Of course, during this 12 year period he was in prison between 6 August 2016 and 16 January 2019 serving his sentence for the first of the serious offences.
The limited number of the respondent's prior sexual offences that are serious offences within the meaning of the Act and the time that the respondent spent in the community between committing the first of the serious offences and being convicted of the offence without committing a sexual offence are factors that arguably point against the conclusion that there are reasonable grounds for concluding that the court might find that the respondent is a high risk serious offender. Having said this, the number and nature of an offender's prior serious offences and the time period over which they have been committed is not necessarily determinative of the question whether there are reasonable grounds for concluding that the court might find that the offender is a high risk serious offender. The number and nature of an offender's prior serious offences and the time period over which the offences have been committed must be considered in light of all other relevant considerations.
The respondent is, as was noted by the writer of the above referred to most recent report to the PRB, a vulnerable individual. He has no prosocial community supports in this State. He has nowhere to live. He has cognitive difficulties which are productive of poor impulse control, poor coping skills, a lack of effective decision making skills and poor consequential thinking skills. He has trauma related mental health issues. He has an entrenched substance abuse problem.
It is relatively clear that the respondent's cognitive difficulties and use of substances are causally related to his sexual offending. It is reasonable to believe that if the respondent is unable to control his use of illicit drugs he will be at real risk of acting on his sexual impulses and committing further serious sexual offences. It is also reasonable to believe that without significant support and monitoring in the community the respondent is unlikely to be able to control his use of substances.
The respondent has a number of risk factors in addition to his entrenched substance abuse problem and his cognitive difficulties. These additional risk factors include his deviant sexual interest (apparent sexual interest in children), his mental health issues arising from unresolved childhood trauma, his lack of prosocial influences and the lack of any structure in his life.
The respondent has not engaged in any programmatic intervention or individual counselling for his sexual offending.
The respondent has little or no insight into his risk factors which is perhaps unsurprising given his cognitive deficits and the fact that he does not appear to have had the benefit of any individual counselling directed at his risk related issues.
The respondent does not have any feasible release plan. He has, again unsurprisingly given his cognitive deficits, been unable to identify any form of protective strategy or specific factors that he would utilise to manage his sexual impulses.
The psychological and psychiatric assessments of the respondent's risk of reoffending indicate that he is at a well above average or high risk of committing further sexual offences. Moreover, although these assessments are now quite dated, two having been undertaken in February 2017 and the most recent in December 2018, nothing has occurred since they were undertaken to suggest that the risk has diminished. To the contrary, since the assessments the respondent has committed the index offences and has done so while subject to the monitoring and supervision conditions of a parole order.
The results of the treatment assessment of the respondent undertaken by the Department in October 2022 also indicate that the respondent is at a well above average risk of sexual reoffending.
Taking into account the nature of the respondent's prior sexual offences and all the other matters to which I have referred in par 90 ‑ 98 above, I am satisfied that there are reasonable grounds for believing that a court might find that the respondent is a high risk serious offender. More specifically, I am satisfied that there are reasonable grounds for believing that a court might find 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 the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit sexual offences amounting to 'serious offences' against male and female children and against adult females. I am therefore also satisfied that it is appropriate to make orders for the hearing of the restriction order application.
Interim detention order
The question that remains for my consideration is whether I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act, an interim supervision order pursuant to s 58(5) of the Act or no further order at all in which case the respondent will be released on the conditions of the PSSO. The answer to this question depends on my assessment of what is required to ensure adequate protection of the community pending the determination of the restriction order application. In making this assessment I am required to bear in mind not only that the scheme of the Act requires that the court do no more than is necessary to achieve adequate protection of the community but also that the court has not yet found, and may ultimately not find, the respondent to be a high risk serious offender.
In making the assessment referred to in the previous paragraph, I also need to be conscious of the fact that the hearing of the restriction order application is not going to take place until November 2023. The delay does weigh against the making of either an interim detention order or an interim supervision order bearing in mind that the respondent has not been found to be a high risk serious offender.
The State submits that the respondent should be made the subject of an interim detention order. In support of this submission the State points to, among other things, the various assessments of the risk of the respondent committing further serious offences of a sexual nature, the respondent's risk factors and significant outstanding treatment needs, the fact that the respondent committed the index offences while on parole for the first of his serious sexual offences, the respondent's prior contraventions of his reporting requirements under the CPOR Act, the respondent's failure to put forward a feasible release plan and the absence of any accommodation for the respondent in the community. The State submits that the combined force of these factors justifies the conclusion that the respondent is at high risk of committing further serious sexual offences and that the risk will not be sufficiently reduced by allowing the respondent to be released subject to the PSSO or by releasing the respondent on an interim supervision order containing more extensive conditions than the PSSO. The State submits that as things presently stand the only means of ensuring adequate protection of the community from the risk posed by the respondent is to make an interim detention order.
With respect to the absence of suitable accommodation for the respondent, the State submits that if the respondent does not have a place to live it will be almost impossible for the Department to implement either the conditions of the PSSO or the conditions of an interim supervision order.
Although the State submits that I should make an interim detention order in respect of the respondent, it does not argue that the order should, at this point, require the respondent to remain in custody until the final determination of the restriction order application. The State's position, in light of s 58(2) of the Act, is that it is appropriate for any interim detention order to be made in terms requiring the respondent to remain in custody until a date that is approximately two months from now so as to enable the respondent, if his circumstances in relation to suitable available accommodation change, to make an application under s 58(5) of the Act to be released on an interim supervision order pending the determination of the restriction order application.
Although the State submits that I should make an interim detention order it has provided for my consideration, in recognition of the possibility that I will not accept the submission, a draft interim supervision order containing a total of 48 conditions (draft order). The 48 conditions are comprised of the seven standard conditions specified in s 30(2) of the Act and 35 additional conditions that are proposed by the COMU.
Some of the conditions contained in the draft order cover much the same ground as the PSSO conditions, albeit in more detail. However, a good number of the conditions contained in the draft order impose significant obligations and restrictions on the respondent that are not imposed by the PSSO conditions.
A significant difficulty with the draft order is that it contains, as it must,[32] the standard condition specified in s 30(2)(a) of the Act that the respondent at the time of his release advise a CCO of his current address, as well as additional conditions that require the respondent to reside at a specified address and to be subject to a curfew. Although it might be argued that if the respondent at the time of being released does not have accommodation he will be able to comply with the standard condition by advising the CCO that he does not have a current address, it is obvious that in the absence of accommodation he will not be able to comply with conditions requiring him to live at a specified address and to be subject to a curfew.
[32] Act, s 58(6).
The respondent does not oppose being placed on an interim detention order that requires him to remain in custody for approximately two months. The respondent adopts this position notwithstanding that the PRB has made the PSSO. That is, the respondent does not seek to argue that the conditions of the PSSO render it unnecessary to make an interim detention order, or for that matter an interim supervision order, in respect of him.
It is no small thing to order the detention of a person who has served his full sentence and who has not yet been found to be a high risk serious offender. Nonetheless, I have come to the conclusion that it is necessary to make an interim detention order in respect of the respondent to ensure the adequate protection of the community. I have come to this conclusion taking into account the following matters:
1.My assessment of the likelihood of the respondent being found to be a high risk serious offender. Having regard to the currently available material there is, in my view, a reasonable prospect that the respondent will be found to be a high risk serious offender;
2.The apparently high or well above average risk of the respondent committing further sexual offences amounting to 'serious offences' against children and adult females;
3.The respondent's risk factors and associated criminogenic treatment needs remain largely unaddressed;
4.The respondent has not engaged in any programmes or sustained individual counselling aimed specifically at reducing his risk of sexual offending by addressing issues such as his sexual deviancy his sexual fantasies and the management of his sexual impulses;
5.The respondent does not have any prosocial supports in the community;
6.The respondent committed the index offences while subject to the supervision and conditions of a parole order for the first of his sexual offences. This raises some doubts about his ability to remain offence free even while subject to the extensive conditions contained in the draft order;
7.While on parole the respondent failed on two occasions to comply with his reporting requirements under the CPOR Act. This raises some doubt about his ability and/or willingness to comply with the conditions contained in the draft order and consequently about his ability to remain offence free while subject to the extensive conditions of the draft order; and
8.The respondent does not have available to him any accommodation in the community.
The absence of accommodation for the respondent is, in my view, the factor that weighs most heavily against the conclusion that releasing the respondent on an interim supervision order would ensure adequate protection of the community. As I have already pointed out, the absence of suitable accommodation means that it is not possible to release the respondent on an interim supervision order containing, as the draft order does, conditions requiring him to live at a specified address and requiring him to be subject to a curfew. Such conditions, if they could be imposed, would play a very important role in reducing the risk of the respondent reoffending. Further, if the respondent was released on an interim supervision order containing only those conditions set out in the draft order that are not contingent upon the respondent having accommodation, the absence of accommodation would make it very difficult, if not impossible, for those responsible for managing the respondent in the community to properly implement and monitor his compliance with these conditions all of which are directed at addressing his risk of committing further sexual offences.
Although I have decided that it is currently necessary to make an interim detention order, I propose to order, consistently with the position taken by the State, that the respondent be detained only until 9 August 2023. Given that the effect of such an order will be that the respondent will not be in custody on a future specified date, namely 9 August 2023, he will be able, if his accommodation circumstances change, to make an application prior to 9 August 2023 pursuant to s 58(5) of the Act for an interim supervision order to come into effect on 9 August 2023.[33]
[33] Act, s 58(2)(b); The State of Western Australia v CA [2020] WASC 164 [30] - [33]; The State of Western Australia v Ratcliff [2021] WASC 31 [42] - [43]; The State of Western Australia v Hart [2021] WASC 205 [32] - [33]; The State of Western Australia v CJC [2023] WASC 52 [33] - [40].
I will also order that the matter is to be listed for a directions hearing on 8 August 2023 for the hearing of any application by the respondent to be released on an interim supervision order. If ultimately no such application is made on or before 8 August 2023, or if an application is made but the court decides on 8 August 2023 that it is not appropriate to make an interim supervision order in respect of the respondent, a further interim detention order detaining the respondent in custody until the final determination of the restriction order application will be able to be made. The listing of the hearing on 8 August 2023 will therefore ensure that the respondent will not, in the absence of the making of an order releasing him on interim supervision order, be released from custody on 9 August 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JP
Research Associate to the Honourable Justice Derrick
23 JUNE 2023
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