The State of Western Australia v Tomasovich - [2021] WASC 422

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TOMASOVICH [2021] WASC 422
CORAM:   QUINLAN CJ
HEARD:   26 NOVEMBER 2021
DELIVERED          :   26 NOVEMBER 2021
PUBLISHED           :   29 NOVEMBER 2021
FILE NO/S:   SO 14 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

KAMM LUKE LEVI TOMASOVICH
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim supervision order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46 made
Interim supervision order made

Category: B

Representation:

Counsel:

Applicant	:	D S McDonnell
Respondent	:	A Fedele

Solicitors:

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

Cases referred to in decision:

The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v PAS [2021] WASC 59
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 26 November 2021 and has been edited from the transcript.)

Introduction

On 22 October 2021, the State of Western Australia applied for a restriction order in respect of Kamm Luke Levi Tomasovich under the High Risk Serious Offenders Act 2020 (WA) (the Act).
The preliminary hearing of the application came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that Mr Tomasovich is a high risk serious offender within the meaning of the Act.
The State seeks orders pursuant to s 46(2) of the Act, including orders that:
(a)Mr Tomasovich undergo an examination by a psychiatrist and by a psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application; and
(b)Mr Tomasovich be subject to an interim supervision order under the Act until the final determination of the application.
Mr Tomasovich's counsel accepted that the requirements of s 46 were met and, for the reasons I will give, I accept that that concession was properly made.
I am also satisfied that it is desirable that I make a supervision order, pending the final determination of the application. The State, in that regard, accepts that Mr Tomasovich can be adequately managed in the community, pending the final determination of the application. It does not seek an interim detention order.
Mr Tomasovich's position, expressed through his counsel, is that he welcomes an interim supervision order in order to provide him with structure upon his release into the community.

The law

As I have said, 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 Tomasovich is a high risk serious offender.
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 in relation to the person in 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, relevantly, includes armed robbery.
I do not have to be satisfied that a restriction order will be made. 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. 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.[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).

The evidence

The evidence in support of the State's application consisted of an affidavit of Daniel Sean McDonnell, affirmed on 22 October 2021, which contains Mr Tomasovich's criminal history and several previous reports in relation to him, including psychiatric reports, and an affidavit of Heather Applin, affirmed on 22 November 2021.
The evidence reveals that Mr Tomasovich's parents separated when he was young and that, while he reports a strained relationship with his father, his mother has remained supportive of him. This is somewhat inconsistent with other reports which suggest that Mr Tomasovich reports a close relationship with both his parents.[2] Indeed, conflicting narratives are a recognised difficulty in assessing Mr Tomasovich. For example, in his report of 21 January 2020, Dr Siva Bala stated that:
Making a diagnosis of mental illness is difficult in Mr Tomasovich's case due to inconsistencies in his narrative, divergent opinions from various psychiatrists and the antisocial personality disorder and history of substance use.
[2] Affidavit of Daniel Sean McDonnell affirmed 22 October 2021, 201 (Psychiatric report of Dr Bala dated 21 January 2020).
Ms Applin deposed that she had spoken to Mr Tomasovich's mother. Mrs Tomasovich confirmed that she was supportive of her son and willing for him to reside at her address if released on an interim supervision order.
Mrs Tomasovich has said that she does not allow illicit substance use in the home, nor does she allow antisocial peers to attend the property. The evidence reveals that Mr Tomasovich's mother has informed him that he must maintain his abstinence from all illicit substances and maintain compliance with his medication regime.
Mr Tomasovich has a history of violent offending, including eight convictions for armed robbery or attempted armed robbery, multiple assault of public officers, an assault occasioning bodily harm and a wounding. His criminal history dates back to 1998. The offence for which Mr Tomasovich is currently serving a sentence is one of armed robbery.
Mr Tomasovich was convicted after trial. At trial, he had relied upon a defence of not guilty by reason of unsoundness of mind, as a result of involuntary intoxication arising from the use of prescribed medication that had accidentally been prescribed by his doctor at double the intended dose. By their verdict, the jury rejected that defence.
The facts of that offending were that Mr Tomasovich committed a planned armed robbery at a branch of a bank inside a shopping centre. Mr Tomasovich entered the shopping centre with the intention of robbing the bank. On entering the shopping centre, he took a black hoodie and tracksuit from a shop. He then went to a toilet and changed into those clothes for the purpose of disguising himself, before making his way to the bank. He pretended he was carrying a gun and requested that the bank officer hand over bank notes, which she did. Mr Tomasovich then departed the shopping centre and got on a bus.
Mr Tomasovich was sentenced to 4 years and 2 months imprisonment in relation to that offence, which was backdated to 12 September 2017.
During his current period in custody, but prior to his conviction, Mr Tomasovich assaulted two prison officers. On one occasion, he punched a female officer in the face while holding a pen in his hand. She suffered a laceration to her left nostril and a fractured nose. On the other occasion, Mr Tomasovich struck a male prison officer in the face with his hand. The prison officer suffered a mild concussion, lacerations to the mouth and nose, and soft tissue injuries to his shoulder and back.
The additional sentences for those offences increased Mr Tomasovich's total effective sentence by a total of 2 months. As a consequence, Mr Tomasovich will be eligible for release on 11 January 2022.
It is apparent that Mr Tomasovich has a history of mental health issues. The diagnosis of Mr Tomasovich's mental health problems has been complicated by his illicit substance use and his antisocial personality. For a period of time, for example, he was thought to be suffering from schizophrenia.
The most recent psychiatric reports from 2019 and 2020, consider that he is no longer suffering from that disorder. In that regard, in his summary, Dr Bala said:
Mr Tomasovich has a history of antisocial personality disorder, substance use disorder (alcohol, amphetamines), and delusional disorder, persecutory type. Some psychiatrists involved in Mr Tomasovich's care have opined that he might be malingering psychotic symptoms for secondary gain such as evading legal sanctions or justifying his aggression. There appears to be no mitigation from a mental illness in terms of the offending.
As this summary indicates, Mr Tomasovich has consistently been diagnosed with antisocial personality disorder and polysubstance abuse. Dr Bala's report also includes a secondary diagnosis of delusional disorder, persecutory type. Dr Bala said in relation to that diagnosis:
The diagnosis of a delusional disorder describes individuals with persistent non‑bizarre delusions, independent of any mood disorder and not fitting criteria for schizophrenia. Mr Tomasovich's persecutory beliefs involving custodial staff and compensatory behaviour of plugging holes and vents and sleeping under the bed over a prolonged period are likely to reflect underlying probable delusional beliefs …
Mr Tomasovich's offending behaviour was not due to the presence of any delusions or hallucinations, regardless of the vexed issue of diagnosis. Although he claims to have been intoxicated by alprazolam [during his most recent offending], it is unlikely that this was the case given that he was organised enough to engage in the offending behaviour and conceal his actions. The alprazolam may have reduced his inhibitions and quelled his anxiety of being caught to the extent that he became more reckless and defiant. However, there is a history of recurrent offending in a serious manner with impulsivity and recklessness for many years in the absence of alprazolam use and given the longitudinal history, alprazolam use did not deprive him of the capacity to recognise that what he was doing was wrong.
A psychiatric report from Dr Steven Patchett from 24 April 2019, is to similar effect, and Dr Patchett also stated that '[t]here is no evidence of his offending having been linked to major mental illness.' He has, nevertheless, been admitted to the Frankland Centre for inpatient treatment for his mental condition, during periods of incarceration. His most recent admission was on 17 January 2018.
Mr Tomasovich has, as will be apparent, proved to be a management risk while in prison, such that he has been housed in the special handling unit at Casuarina Prison. A treatment assessment report from April 2020 noted that:
Due to Mr Tomasovich's violent behaviour towards Prison Staff, he is housed in the Special Handling Unit at Casuarina Prison and this is unlikely to change in the future.
I would interpolate it has not changed.
This poses a barrier to his ability to participate in treatment programs and as such, it is recommended that he be referred to Specialist Psychological Services (SPS) to address his treatment needs. This was discussed with Mr Tomasovich and he expressed his motivation to engage in individual intervention.
Before returning to treatment, I will deal with his compliance with orders in the community.
Mr Tomasovich's history of compliance with orders whilst in the community is poor. For example, he has breached four of six previous community dispositions. A pre‑sentence report from January 2020, prior to his most recent sentencing stated that:
Mr Tomasovich is assessed as unsuitable for further community based sanction. His compliance with past dispositions has been less than impressive and numerous prior periods of imprisonment have not deterred him from re-offending in a serious manner. The appended Psychiatric Report indicated that Mr Tomasovich is more likely to lead a pro-social, law-abiding lifestyle if he: engages in substance abuse counselling (for relapse prevention); he continues the use of psychiatric medication, with consideration to be given to increase the dosage of anti-psychotic medications; and he engages in individual psychological counselling to address issues from his formative years, as well as to improve his coping skills.
In terms of the risk of reoffending, Dr Bala reported that '[g]iven the entrenched history of offending, substance use, paranoid illness and antisocial personality, Mr Tomasovich is at elevated risk of re‑offending.'[3]
[3] Affidavit of Daniel Sean McDonnell affirmed 22 October 2021, 205 (Psychiatric report of Dr Bala dated 21 January 2020).
Dr Bala confirmed that Mr Tomasovich needs to address his substance use issues and indicated numerous interventions that might be employed in that regard. I have already referred to the fact that interventions have proved difficult within the prison setting because of Mr Tomasovich's management issues. Mr Tomasovich has nevertheless expressed motivation to engage in psychological counselling, which is a positive indication.
The evidence before me indicates that Mr Tomasovich has previously completed a Moving On From Dependencies program some time ago in 2005. A Cognitive Brief Intervention program in 2011 and a Cognitive Skills program in 2013. These were all, however, some time ago.

Assessment

I am satisfied there are reasonable grounds to believe that a court might find that Mr Tomasovich is a high risk serious offender.
Mr Tomasovich has a significant history of violent offending. His most recent risk assessment places him at a high risk of reoffending.
Due to his management during his most recent term of imprisonment Mr Tomasovich has been unable to participate in treatment programs. That has created something of a catch‑22, given that the necessary treatment to address Mr Tomasovich's offending behaviour is not able, it would appear, to be effectively delivered in a prison environment. On the basis of Mr Tomasovich's offending history and his unmet treatment needs, I am satisfied there are reasonable grounds to believe that a court might find that he is a high risk serious offender.
I will therefore make orders for the hearing of the application.

Interim supervision order

In the meantime, as I said earlier, the State submits that I should make an interim supervision order. It does not seek an interim detention order, on the basis that it is possible to manage Mr Tomasovich in the community.
The power to make an interim supervision order is found in s 58 of the Act. Pursuant to s 58(2), the section applies if:
(a)proceedings on a restriction order application are pending;
(b)the offender to whom the pending proceeding relates is not in custody; and
(c)the Court is satisfied that to ensure adequate protection of the community, it is desirable to make an order under that section.
In this case (a) above is clearly satisfied. Mr Tomasovich is the subject of a pending proceeding.
As to s 58(2)(b), while Mr Tomasovich is currently in custody, he will be released on 11 January 2022. For reasons I have previously been given, I am satisfied that s 58(2)(b) of the Act applies in relation to a person who would not be in custody on a specified future date, from which the order is to take effect.[4] It is therefore open to make an order for Mr Tomasovich to be subject to a supervision order, from a specified date, being the date of his release. The real issue in the present case is whether it is desirable to ensure that the adequate protection of the community is met.
[4] The State of Western Australia v Hart [2021] WASC 205 [32] ‑ [33] (Quinlan CJ).
I am satisfied that it is.
I note that, pursuant to s 29(3) of the Act, the requirement in relation to the making of a supervision order following a restriction order hearing, that the Court be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of an order, does not apply to the making of an interim supervision order. As I said in The State of Western Australia v PAS,[5] that means that in determining whether to make an interim supervision order, it is not necessary for the Court to be satisfied that the offender will substantially comply with the standard conditions. In that regard, I said:[6]
The legislative conditions for making an interim supervision order are therefore not as stringent as those that apply in relation to a supervision order made following a restriction order application. The underlying legislative rationale for that position is no doubt because a person the subject of an interim supervision order has not been found to be a 'high risk serious offender'; a person on an interim supervision order is merely a person in relation to whom there are reasonable grounds for believing a court might make such a finding.
[5] The State of Western Australia v PAS [No 2] [2021] WASC 59 (PAS No 2) [41] (Quinlan CJ).
[6] PAS [No 2] [41] (Quinlan CJ).
I have some hesitation as to whether Mr Tomasovich will, substantially, comply with all of the requirements of an interim supervision order (albeit not necessarily commit a serious offence). Whether he will comply in all respects with the supervision of a community corrections officer, remains to be seen. Nevertheless, in my view, unless Mr Tomasovich has access to the kind of treatment and supervision that he could obtain in the community, his underlying criminogenic needs will not be addressed. That, itself, is not in the interests of the long‑term protection of the community.
Mr Tomasovich has the support of his family, and, in particular, of his mother. As I have said, Mrs Tomasovich is aware of her son's poor mental health, and she accepts that he needs strict conditions, including a prohibition on illicit substances. While there was, back in 2006, a violence restraining order taken out by Mrs Tomasovich against her son, she does not consider there to be any risk to her, and the affidavit of Ms Applin indicates that there are no current restrictions on contact. Ms Applin also confirmed that Mr Tomasovich has previously resided with Mrs Tomasovich while in the community and that the WA Police have raised no immediate concerns in relation to the address at which he proposes to reside.
In my view, the adequate protection of the community is best met pending the restriction order application, by an interim supervision order.
In particular, an interim supervision order provides two things.
One, it provides strict conditions upon Mr Tomasovich's behaviour whilst in the community. Those strict conditions are such that any breach of the conditions, including reverting to illicit drug use, may be promptly responded to, by contravention proceedings in relation to the interim supervision order. Such action would result in Mr Tomasovich being returned to custody.
At the same time – and this is the second reason – an interim supervision order would more effectively facilitate Mr Tomasovich having access to the kind of medical and psychological treatment that he so clearly requires.
In all of the circumstances then, I am satisfied that it is desirable that Mr Tomasovich be placed on an interim supervision order and will make that interim supervision order.
There were no issues raised by Mr Tomasovich's counsel in relation to the conditions of the interim supervision order, other than the question as to whether a curfew was necessary.
I accept, in a general sense, that Mr Tomasovich's offending in the past has not been associated with any particular times of the day or night, in relation to which a curfew would be particularly relevant.
Nevertheless, in my view, given the need for Mr Tomasovich to demonstrate his capacity to comply with supervision, it is important, in my view, that the community corrections officers, at least, have the discretion to impose a curfew in relation to him, in order to ensure that they have as much scope as possible for the monitoring of his behaviour and performance while on supervision. The imposition of a condition to be subject to a curfew, does not require that a curfew be put in place. It, merely, enables the community corrections officer to do so, and in my view, it is an appropriate precaution in the present case.

For all of those reasons I will make orders in the terms of the minute of proposed orders.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
29 NOVEMBER 2021