The State of Western Australia v W [No 3]
[2022] WASC 349
•24 OCTOBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- W [No 3] [2022] WASC 349
CORAM: DERRICK J
HEARD: 21 OCTOBER 2022
DELIVERED : 21 OCTOBER 2022
PUBLISHED : 24 OCTOBER 2022
FILE NO/S: SO 3 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
W
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 existing supervision order should continue pending determination of the application - Turns on own facts
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders made pursuant to s 46(2)
Order made for supervision order to continue
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | A G Elliott |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | David Jones |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v W [2014] WASC 257
Director of Public Prosecutions (WA) v W [No 2] [2015] WASC 283
The State of Western Australia v CA [2020] WASC 164
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:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
On 30 August 2022 the State of Western Australia (State) made an application for orders to be made in relation to the respondent as follows:
1.A restriction order, namely a supervision 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 36(1) and s 36(2) of the Act);
2.Orders pursuant to 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 qualified 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 58(3) of the Act that a supervision order made in respect of the respondent on 24 July 2015 is to continue until the final determination of the application.
I have today heard the State's application for the orders pursuant to s 46(2) and s 58(3) of the Act. Accordingly, the hearing that has taken place before me is a preliminary hearing conducted pursuant to s 46(1) of the Act.
The respondent concedes that the requirements of s 46(1) are met and therefore does not oppose the application for the orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. The respondent also concedes that it is appropriate for an order to be made under s 58(3) continuing the supervision order to which he is currently subject until the determination of the restriction order application. Nonetheless, it is, of course, still necessary for me to examine the evidence and to satisfy myself that the orders sought should be made.
The law[1]
[1] 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 Brent Douglas Meertens on 30 August 2022.[2] Mr Meertens is a lawyer employed by the State's solicitor. Annexed to Mr Meertens' 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.
[2] Exhibit 1.
Background to the application
On 22 July 2014 Simmonds J found that the respondent was a serious danger to the community within the meaning of s 7(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) and made a continuing detention order in respect of the respondent pursuant to s 17(1)(a) of the DSO Act (the CDO).[3]
[3] Director of Public Prosecutions (WA) v W [2014] WASC 257.
On 24 July 2015 Simmonds J, after conducting the first statutory review of the CDO under the DSO Act, rescinded the CDO and made a supervision order (the Supervision Order) in relation to the respondent for a period of five years pursuant to s 33(2) of the DSO Act.[4] The Supervision Order came into effect on 27 July 2015. Accordingly, in the ordinary course of events the Supervision Order would have expired on 26 July 2020.
[4] Director of Public Prosecutions (WA) v W [No 2] [2015] WASC 283.
On 14 November 2019, the respondent was convicted after trial of two historical sex offences committed against an 11-year-old girl in 1988. On 17 February 2020 the respondent was sentenced to 3 years imprisonment for the offences with eligibility for parole. The commencement date of the sentence was backdated to 14 November 2019.
On 21 February 2022 the respondent was released on parole and resumed living in the community subject to the conditions of the Supervision Order.
The effect of s 57(2) of the Act is that the Supervision Order is extended by the period of time that the respondent was in custody serving the term of imprisonment imposed for the offences of which he was convicted on 14 November 2019. Accordingly, the Supervision Order is still in force and is not due to expire until 1 November 2022.
The respondent's background and personal circumstances
The respondent is 72 years old.
In Director of Public Prosecutions (WA) v W[5] Simmonds J summarised the respondent's background and personal circumstances. It is not necessary for me to repeat what Simmonds J said in this regard. I respectfully adopt his Honour's summary.
[5] Director of Public Prosecutions (WA) v W [33] - [38].
The respondent's sexual offending
In Director of Public Prosecutions (WA) v W[6] Simmonds J set out in detail the facts and circumstances of the sexual offences committed by the respondent that led to his Honour finding him to be a serious danger to the community under the DSO Act. Again, it is not necessary for me to repeat Simmonds J's account of the respondent's offending. I respectfully adopt his Honour's account.
[6] Director of Public Prosecutions (WA) v W [42] - [59].
As I have already indicated, on 14 November 2019 the respondent was convicted of historical offences, specifically one offence of unlawful carnal knowledge of a girl under the age of 13 contrary to the now repealed s 185(1) of the Criminal Code (WA) (Code) and one offence of unlawfully and indecently dealing with a child under the age of 14 contrary to the now repealed s 183 of the Code. Both offences are 'serious offences' within the meaning of the Act.[7] The facts of the offences were as follows.[8]
[7] Act, s 5(2).
[8] Exhibit 1, annexure G, 21 - 23.
The victim of both offences, BJG, was 12 years old at the time. She was the daughter of friends of the respondent and his wife.
During the school holidays in January 1988 BJG went to stay at the respondent's home.
On an evening in January 1988, when BJG was ready to have a bath, the respondent walked into the bathroom and sat down on a chair. He took off BJG's shirt, put his hands around her neck and started to rub his hands down her chest. BJG froze feeling very scared. It was this conduct of the respondent that was the subject of his indecent dealing offence.
Two days after the incident in the bathroom BJG was in the lounge room of the respondent's house with the respondent and the respondent's three sons. During the evening the respondent had a shower and returned to the lounge room wearing a bathrobe. After he and his wife whispered to each other, the respondent called BJG over, opened his bathrobe and said to BJG, 'Wait until later'. After the respondent's three sons left the room, the respondent and his wife walked BJG to their bedroom, took off her clothes and positioned her in the middle of the bed. With his wife's assistance, the respondent then sexually penetrated BJG's vagina with his penis. BJG tried to push the respondent away. However, the respondent was too strong.
It was the respondent's conduct in sexually penetrating BJG that was the subject of his carnal knowledge offence.
The psychiatric evidence presented at the review hearing
At the above referred to first statutory review hearing conducted before Simmonds J, the State called Dr Mark Hall, Forensic Psychiatrist, to give evidence. Dr Hall's evidence was that the respondent remained at high risk of committing a serious sexual offence if not subject to either a continuing detention order or a supervision order.[9] Dr Hall described the respondent as a 'paedophilic sexual offender in whom denial has previously inhibited his participation in any treatment, and for whom any future offending would most likely occur in the context of intimate or close social relationships'.[10] Dr Hall expressed the opinion that 'with ongoing engagement in individual psychological treatment in the community the risk of [the respondent] committing a future serious sexual offence can be managed such that it would most likely fall into the moderate range'.[11] It is apparent that Simmonds J accepted and acted upon Dr Hall's evidence in deciding that although the respondent remained a serious danger to the community the risk that he posed could be managed in the community under the Supervision Order.[12]
Respondent's compliance with the Supervision Order[13]
[9] Director of Public Prosecutions (WA) v W [No 2] [15].
[10] Director of Public Prosecutions (WA) v W [No 2] [15].
[11] Director of Public Prosecutions (WA) v W [No 2] [24].
[12] Director of Public Prosecutions (WA) v W [No 2] [5] - [7], [29].
[13] Forensic Psychological Service Dangerous Sex Offender Update Report prepared by Dr Amanda Thompson dated 15 May 2019 (exhibit 1, annexure X, 210 - 212).
The respondent demonstrated general compliance in relation to his reporting requirements under the Supervision Order. He regularly attended his supervision appointments and counselling sessions.
During the period October 2016 to August 2019 the respondent was convicted of five offences of breaching the Supervision Order contrary to s 40(1) of the DSO Act.[14] He committed the offences on five separate dates during the period March 2016 to August 2019. For three of the offences he was fined. For each of the remaining two offences he was sentenced to suspended terms of imprisonment.
[14] Pre-sentence report dated 12 February 2020 (exhibit 1, annexure Z, 233 - 234).
Two of the respondent's contravention offences were comprised of him failing to comply with a written lawful direction by attending libraries outside of the days and times that he was permitted to attend a library. A further two of the respondent's contravention offences were comprised of him not having on his person his Global Positioning System (GPS) electronic monitoring device (on the first occasion for 12 minutes and on the second occasion for 19 minutes). The fifth of the respondent's contravention offences was comprised of the respondent having in his residence pornographic images. It was for the second of the library related offences and his offence arising out of his possession of the pornographic images that the respondent received the suspended terms of imprisonment.
Prior to being imprisoned for the historical offences, the respondent also committed a number of other contraventions of the Supervision Order that were not made the subject of charges under s 40(1) of the DSO Act. The contraventions included the following:[15]
1.On 15 September 2015 the respondent reported engaging in a casual sexual encounter with a woman in her thirties who was an acquaintance of one of the residents of his apartment complex;
2.On 23 September 2016 the respondent entered an exclusion zone for a period of thirty three minutes;
3.In December 2016 the respondent engaged in grooming behaviour of a female neighbour who had grandchildren and had contact with the grandchild of another resident of his apartment complex (the contact comprised of him giving the child a lighter); and
4.On 19 April 2017 the respondent was found to be in possession of drawings of children's faces in a sketchbook (he reported that these were given to him while he was in prison).
Respondent's participation in psychological counselling prior to and during the term of the Supervision Order
[15] Forensic Psychological Service Dangerous Sex Offender Update Report dated 15 May 2019 (exhibit 1, annexure X, 211 - 212).
After he was found to be a dangerous sexual offender the respondent commenced individual counselling with Mr David Summerton, a counselling psychologist with the Department of Justice's (Department) Specialist Psychological Services (SPS).[16]
[16] Psychological Intervention - Completion Report prepared by Mr David Summerton, Counselling Psychologist, dated 6 July 2018 (exhibit 1, annexure W, 201).
The respondent commenced counselling in August 2014 while he was still in custody. He attended 27 one-hour individual psychological intervention sessions in custody before transitioning to the community in August 2015. He attended a further 34 sessions in the community before counselling was terminated in March 2018.
During the early phases of counselling the respondent proved to be a particularly difficult individual to engage. He was prone to immediate agitation and belligerence whenever there was any focus on his offending, this being sustained by his consistent denial that he had ever engaged in any form of inappropriate sexual behaviour over the course of his life.
Mr Summerton gradually agreed with the respondent that there would be a focus on assessed or perceived risk with parallel acknowledgement of his absolute denial of his offending. The proposal was to develop a viable self-management plan such that community supervision became a realistic option.
Over time, and particularly following his release from prison, the respondent adopted a more cooperative approach to intervention within his framework of denial and used the process to his advantage as he adjusted to life in the community. He developed an adequate self-management plan largely centred on avoiding contact with children and this translated into him pursuing a 'quite narrow lifestyle'. By the end of counselling he appeared to have reached a position of relative contentment with his life.
During counselling the respondent maintained the stance that he had adopted when in prison, specifically that he had no interest in sex and did not experience sexual arousal due to his enduring sexual dysfunction and his advancing years. However, there was, in Mr Summerton's view, objective and implicit evidence to the contrary including apparent attempts by the respondent to contact women through classified advertisements, an attendance by him at a sex shop (ascertained through GPS tracking), and his presentation to female staff in an overly familiar manner.
In 2018 Mr Summerton undertook a reassessment of the risk of the respondent reoffending using the Stable-2007. Mr Summerton found that there had been some shift in dynamic factors pertaining to the respondent's risk and that he had moved from the high to moderate risk category. The respondent had been at the lower end of the high risk category so Mr Summerton's view was that the shift was not 'necessarily substantial, but noteworthy nonetheless'. Mr Summerton noted shifts in items pertaining to hostility towards women, general social rejection/loneliness, lack of concern for others, poor problem solving, negative emotionality/hostility and sexual preoccupation.
Mr Summerton did not recommend that the respondent engage in any further counselling. He considered that the respondent's risk was most suitably managed through supervision and monitoring with the understanding that his self-reporting remained questionable.
Risk assessment - April 2019
In April 2019 the respondent was assessed by Dr Amanda Thompson, a Forensic Psychologist with the SPS.[17] Dr Thompson assessed the respondent for the purpose of enabling her to prepare an updated risk assessment report for the Community Offender Management Unit (COMU). The COMU requested the report for submission to the Dangerous Sexual Offender Review Committee in preparation for the reconsideration of the then pending expiry of the Supervision Order.
[17] Forensic Psychological Service Dangerous Sex Offender Update Report dated 15 May 2019 (exhibit 1, annexure X, 206).
Dr Thompson's report is dated 15 May 2019. The report reveals the following.
As part of her assessment of the respondent Dr Thompson made use of the Static-99R and Stable-2007 risk assessment tools to assess the respondent's risk of further sexual offending. The respondent's composite risk assessment score placed him in the 'Level III Average Risk' range. The rate of reoffending for individuals in Level III is generally equivalent to the average rate of sexual reoffending in the overall population of individuals convicted of sexually motivated offences. It is estimated that offenders in this risk category will transition down to a Level II (Below Average Risk) or Level I (Very Low Risk) should they remain offence free in the community for 10 to 15 years. Factors such as the respondent's chronic health issues and increasing age may likely serve to further attenuate the respondent's future risk of reoffending.
Dr Thompson formed the view that the respondent's sexually deviant interests remained a significant area of concern with regards to his potential to engage in further sexual offending behaviour. She considered that this was particularly the case given that these issues were not able to be effectively explored and addressed during his engagement in counselling with Mr Summerton due to his denial of such interests or motivations.
Dr Thompson recommended that the respondent's dynamic risk factors continue to be monitored in supervision for the remainder of the term of the Supervision Order. She recommended that there be ongoing monitoring of any relationships formed by the respondent, particularly any that might involve actual or prospective contact with children. She considered that in view of the respondent's tendency for under disclosure, continued vigilance in monitoring his behaviour for indicators of sexual interests and motivations was warranted for the remainder of the Supervision Order.
Psychological assessment undertaken for the purposes of the respondent's sentencing for historical offences
A court ordered psychological report dated 21 January 2020 was prepared by Ms Julie Hasson, Forensic Psychologist, for the purposes of the sentencing of the respondent for the historical offences.[18] The report reveals the following.
[18] Psychological Report dated 21 January 2020 (exhibit 1, annexure Y, 222).
During Ms Hasson's interview of the respondent he vehemently denied committing the offences.
Ms Hasson assessed the respondent's risk of reoffending by making use of the Static-99R risk assessment tool. The score obtained by the respondent placed him at 'risk level III (average risk) for being charged or convicted of another sexual offence'. In routine samples of sexual offenders the average 5-year sexual recidivism rate is between 5% and 15%. In routine samples with the same score as the respondent the 5-year sexual recidivism rate is 5.6%.
Research suggests that for every five years an offender is in the community without reoffending sexually their risk of recidivism reduces by approximately half, with this trend particularly noteworthy for high risk offenders.
As a result of her assessment Ms Hasson did not identify any treatment needs for the respondent due to his extensive involvement in counselling with Mr Summerton which did not shift his stance of denial. Ms Hasson formed the view that it was unlikely that the respondent would benefit from any further opportunities to engage in treatment to address his offending. She recommended that the respondent have no contact with children under the age of 16.
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
The respondent has been convicted of a large number of 'serious' sexual offences committed against a number of male and female children who have ranged in age from 6 years to 16 years and who he gained access to through relationships with adults. The groups of offences of which he has been convicted were committed in 1978 - 1979, January 1988, 1990 - 1991, March 1998 - April 1990 and December 1996 - July 1998. In other words, the respondent offended over an extended period of time.
The respondent has not committed a sexual offence since July 1998. However, he has been imprisoned since 2001 save, of course, for the time that he has been in the community subject to the Supervision Order.
The most recent assessments of the respondent's risk of committing further sexual offences against children do not suggest that he is at an above average risk of reoffending. However, these assessments need to be viewed in light of the following matters. First, Dr Hall's 2015 diagnosis that the respondent has paedophilia (a condition that is unlikely to simply disappear over time). Second, the respondent's total lack of insight into the factors underpinning his offending. Third, the fact that the respondent's deviant sexual interest in children (which he undoubtedly has) has not been able to be addressed due to his ongoing stance of denial. Fourth, the respondent's behaviour while subject to the Supervision Order which suggests that his level of sexual interest is greater than he projects. Fifth, the respondent's contraventions of the Supervision Order some of which are a cause for concern so far as his sexual attraction to children is concerned.
It may be that the respondent is ultimately not found to be a high risk serious offender. However, taking into account the respondent's history of offending, the respondent's deviant sexual interest in children, the respondent's ongoing denials of guilt for any of his offences, the fact that the respondent's deviant sexual interest in children remains unaddressed, the most recent risk assessments undertaken in relation to the respondent, and the nature and number of the respondent's contraventions of the Supervision Order, I am satisfied that there are reasonable grounds for believing that a court might find that the respondent is a high risk serious offender. I will therefore make the orders for the hearing of the restriction order application.
Should the Supervision Order be continued?
The question that remains is whether I should make an order pursuant to s 58(3) of the Act for the Supervision Order to continue until the application for the restriction order is determined or make no further order in which case the respondent will be in the community and not subject to any monitoring or supervision after 1 November 2022. 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 must bear in mind not only that the scheme of the Act requires that the court do no more than is necessary to achieve the adequate protection of the community but also that the court may ultimately not find that the respondent is still a high risk serious offender.
The State submits that to ensure adequate protection of the community an interim supervision order should be made containing the conditions that the respondent is subject to under the Supervision Order. The respondent, as I have already indicated, does not attempt to argue to the contrary.
The restriction order application is going to be listed for hearing on 13 April 2023. The delay between now and the hearing of the application does weigh against the making of an order continuing the Supervision Order pending the determination of the application. Nonetheless, taking into account the matters that I have referred to in deciding to make orders for the hearing of the application, I am satisfied that it is necessary to make an order continuing the Supervision Order until the determination of the application. In my opinion it is necessary for the Supervision Order to continue to ensure adequate protection of the community.
In other words, I am, in accordance with s 58(2)(c) of the Act, satisfied that to ensure adequate protection of the community it is desirable to make an order under s 58(3) continuing the Supervision Order until the pending proceedings, specifically the application for the restriction order, are finally determined. I am also satisfied that the other pre-conditions for the making of an order continuing the Supervision Order specified in s 58(2)(a) and s 58(2)(b) of the Act are met.[19]
[19] 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].
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
24 OCTOBER 2022
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