The State of Western Australia v Winder - [2021] WASC 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WINDER [2021] WASC 65
CORAM:   QUINLAN CJ
HEARD:   5 MARCH 2021
DELIVERED          :   5 MARCH 2021
PUBLISHED           :   9 MARCH 2021
FILE NO/S:   SO 15 of 2010
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MURRAY JOHN WINDER
Respondent

Catchwords:

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

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46(2) made
Interim supervision order made

Category: B

Representation:

Counsel:

Applicant	:	T W McPhee
Respondent	:	K J Farley SC

Solicitors:

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

Cases referred to in decision:

Director of Public Prosecutions (WA) v Winder [2011] WASC 67
The State of Western Australia v PAS [2020] WASC 405

QUINLAN CJ:

(This judgment was delivered extemporaneously on 5 March 2021 and has been edited from the transcript.)

Ten years ago this month, McKechnie J made an order pursuant to the Dangerous Sexual Offenders Act 2006 (the DSO Act) that Murray John Winder was a serious danger to the community. His Honour put Mr Winder on a supervision order for 10 years.
McKechnie J said at the beginning of his reasons:[1]
Mr Winder is a 53‑year‑old who has spent many years in prison for sexual offences. A neuropsychological report revealed a notable impairment in his understanding of basic social norms, concrete and rigid thought, and reduced ability to recognise and label facial expressions. He has a moderate mental disability. It is not in issue that he is a serious danger to the community under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 7.
[1] Director of Public Prosecutions (WA) v Winder [2011] WASC 67 (Winder) [1].
His Honour later said:[2]
The release of a dangerous sexual offender into the community under a supervision order always carries a risk. Having regard to the evidence in this case, both in the written material and as supplemented by the oral evidence, I am persuaded that the risk can be adequately managed by a supervision order and that continuing detention will produce no further treatment gains or greater awareness or insight by Mr Winder. I reach this conclusion having regard to the paramount consideration of community safety.
[2] Winder [18].
McKechnie J's conclusion that Mr Winder's risk could be adequately managed by a supervision order has proven to be entirely correct.
In the 10 years since his Honour imposed the order, Mr Winder has not committed any form of sexual offence or serious offence within the meaning of the DSO Act, or the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act). Mr Winder's last sexual offence was committed more than 20 years ago.
Indeed, Mr Winder, in the last 10 years, has not committed any offences whatsoever, other than offences of failing to comply with the supervision order itself. According to the expert evidence provided to me, those breaches of his supervision order were considered to be unintentional, minor in nature, and the result of genuine forgetfulness or error on his part.
The purpose of a supervision order under the DSO Act is reflected in the objects of that Act, which mirror the objects of the HRSO Act. The objects of the DSO Act at the time that Mr Winder's supervision order was made were:[3]
(a)to provide for the detention in custody or supervision of persons of a particular class to ensure adequate protection of the community and of victims; and
(b)to provide for continuing control, care, or treatment of persons of a particular class.
[3] DSO Act, s 4.
Those objects have plainly been met by the supervision order in the present case and Mr Winder's performance under it.
This is not to say that his compliance with the supervision order has been perfect, but it can be said that the adequate protection of the community and of victims has been ensured.
The State now applies, pursuant to s 36(1) of the HRSO Act, for a further supervision order.
Section 36 of the HRSO Act relevantly provides:
36.Application for restriction order in relation to offender subject to supervision order
(1)The State may apply to the Supreme Court for a restriction order in relation to an offender who is subject to a supervision order (the current order) that is to expire within 1 year.
(2)An application under subsection (1) must specify whether the restriction order sought is a continuing detention order or a supervision order.
The nature of the restriction order sought by the State is a supervision order.
In order to make a supervision order under the HRSO Act, it is necessary for the court to conclude that the person is a high risk serious offender. A person is a high risk serious offender if the court, dealing with an application under the HRSO Act:[4]
finds 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 offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
[4] HRSO Act, s 7.
Serious offences are defined by s 5, primarily by reference to sch 1. Unlike the DSO Act, the HRSO Act is not confined to persons who have committed sexual offences.
After a restriction order application is made, the court must fix a day for the matter to come before the court for a preliminary hearing. 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 person is a high risk serious offender.[5]
[5] HRSO Act, s 46(1).
Today, I am dealing with the preliminary hearing under s 46 of the HRSO Act. For the purposes of this hearing, 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. I emphasise the word might. 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.[6]
[6] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J).
Section 46(1), as the respondent accepted before me, therefore sets a low threshold.
For the purposes of the preliminary hearing the State relies upon an affidavit of Brent Douglas Meertens sworn on 20 October 2020 (Exhibit A). I also received in evidence a copy of a letter from Mr Quentin Richards of 360 Health and Community, a mental health social worker who has provided support and counselling to Mr Winder (Exhibit B).
Mr Meertens' affidavit, in addition to setting out Mr Winder's past offending, annexes three psychological reports that were prepared during the currency of his supervision order:
(a)Report of Chantelle Place, forensic psychologist, dated 19 August 2014.
(b)Report of Rachael Williams, senior clinical psychologist, dated 28 November 2017.
(c)Report of Dr Lynley Poli, senior forensic psychologist, dated 16 March 2020.
Dr Poli's report is the most recent report, having been written almost a year ago and, in my view, provides the most relevant and up‑to‑date information in relation to Mr Winder.
It is not necessary to set out all of the report. It is sufficient that I refer to the following matters.
Under the heading 'Progress on DSO Supervision Order', Dr Poli reported that, while there had been some breaches of the supervision order:[7]
[c]omments on CBIS indicated that overall Mr Winder's actions have not appeared intentional nor have his behaviours in the community presented any concern or warranted a change to his risk level. It was noted that he has maintained general compliance to each of his order conditions.
[7] Report of Dr Poli [11].
Under the heading 'Opinions', Dr Poli refers to a risk assessment in relation to Mr Winder that she carried out using two commonly utilised risk assessment tools: the Static‑99R and the STABLE‑2007.
Dr Poli states:[8]
Mr Winder's risk of reoffending was scored using an updated version of the actuarial tool the Static‑99R. … The Static‑99R has moderate accuracy in ranking offenders according to their relative risk for sexual recidivism and is widely accepted by the scientific community and applied by evaluators.
[8] Report of Dr Poli [20].
She continues:[9]
According to the Static-99R Coding Rules, Mr Winder's score places him in the Risk Level IVa (Above Average Risk) for being charged or convicted of another sexual offence. …
As static risk assessments estimate the probability of recidivism from the time of release it was anticipated by the Static-99R's creators that reoffending estimates would be valid for approximately two years post‑release. As Mr Winder was released to the community on a DSOSO on 21/03/11, he has been in the community for nine years on 21/03/20.
[9] Report of Dr Poli [20], [21].
I note that Mr Winder has now been in the community for almost 10 years.
Dr Poli's report continues:
It is recommended that time spent offence free in the community, defined as the time period where offenders have the opportunity to re‑offend in the community but have not done so, should also be considered when determining risk. Research suggests that for every five years offence free in the community, recidivism risk roughly halves, with this pattern being especially strong for high-risk offenders. For individuals such as Mr Winder, who have remained offence free in the community for longer than two years, it is recommended that overall behaviour and contextual factors, external to the Static-99R should also be considered.
Dr Poli therefore made an adjustment based on his time offence free in the community which 'resulted in his placement in Risk Level III – Average Risk'. Dr Poli also refers to areas of concern under the STABLE‑2007, which at [24] she identified: '[fall] into the interpretive range considered to be a moderate level of stable dynamic risk and needs.'
Dr Poli's overall conclusion in relation to her risk assessment was:[10]
Mr Winder was scored as a moderate on the STABLE‑2007 and within Risk Level III – Average Risk on the Static-99R. When these measures are combined, his composite assessment places him in Level III for supervision and intervention using the standardised risk framework. Individuals placed in Level III are considered Average Risk. The rate of reoffending for individuals in Level III is generally equivalent to the average rate of sexual offending in the overall population of individuals convicted of sexually motivated offences. It is estimated that about half of the individuals at Level III will transition down to Level II, Below Average Risk, within a year or two, after a sufficient dosage of treatment or positive life changes. All will eventually transition to a Level II or Level I (Very Low Risk) should they remain offence‑free in the community for 8 to 15 years.
[10] Dr Poli's report [25].
In relation to current issues and functioning, Dr Poli said:[11]
Mr Winder has resided in the community for almost nine years during which he has been regarded as generally compliant with his DSOSO. While he has received a number of breaches, these were considered to be unintentional, minor in nature and the result of genuine forgetfulness or error on his part. He was noted to regularly attend supervision as scheduled and to usually telephone ahead of time, if he was unable to make the appointment. His SCCO's noted that he has never given them any reason to suspect or be concerned about the use of illicit substances or alcohol. In addition, he appears to have managed well in the community by securing independent stable accommodation, engaging in a range of activities that includes, volunteer work with a social group and the RFDS, assisting others around their homes and attending social competitions (darts). He has the support of a close friend and pro-social individual … although her health may be a concern in the future. Given his widespread cognitive difficulties and borderline intellectual impairment, Mr Winder is considered to have fared very well with the requirements of his order. In addition, his behaviour whilst on his order demonstrates ability to plan and the capacity for problem solving, the latter of which has previously been identified as an issue.
[11] Dr Poli's report [28].
All of the above bodes very well for Mr Winder's future.
Nevertheless, as the risk assessment indicates, there are still areas of concern in relation to Mr Winder's risk of committing a serious offence in the future.
In addition, the State emphasised Dr Poli's observation that:[12]
The overall impression gained was that Mr Winder's cognitive impairment has a significant impact on his ability to provide appropriate responses to questions. More specifically, he has difficulty attending to and comprehending questions, as well as processing his response and expressing this adequately.
[12] Dr Poli's report [30].
In all of the circumstances, given the threshold required by s 46 of the HRSO Act and Mr Winder's past 'Above Average Risk' of reoffending, in my view, there are reasonable grounds for believing that a court might, in the sense of 'possibly', find that Mr Winder is a high‑risk serious offender. Whether that occurs or not however, is a very different question and it is one which will be need to be answered on the basis of the up‑to‑date material. It is certainly not a fait accompli.
Nevertheless, as I am satisfied in accordance with s 46(1), I must make the orders required by s 46(2)(a) and otherwise make orders for the determination of the restriction order application. In the circumstances, I will make orders that Mr Winder undergo examination by a psychiatrist and qualified psychologist for the purposes of preparing reports. Those persons have been identified by the State as Dr Gosia Wojnarowska and Ms Julie Hasson.
That leaves the question of interim supervision. Given that Mr Winder's current order will cease to have effect from 21 March 2021, in my view, it is appropriate, in all of the circumstances, that pending the final resolution of Mr Winder's status under the HRSO Act, he remain (largely) subject to the same regime that he has so far successfully complied with.
For those reasons, I will make an interim supervision order. The order will be substantially in the terms made by McKechnie J, save that the first six of the conditions will be amended to reflect 'standard conditions' required by the HRSO Act. I will hear counsel in relation to the precise terms of those orders.
Before I do, I should refer to one particular matter in relation to the operation of Mr Winder's supervision order.
Mr Winder is, as is contemplated by the standard conditions of a supervision order, subject to GPS tracking and exclusion zones.
The material before me indicates that Mr Winder experiences frustration at not being able to travel to Shark Bay, which is the traditional land of his people and where his family are buried, and that the requirements of the ankle bracelet prevent him, for example, from being able to engage in cultural activities, including fishing and hunting.
In that context, Dr Poli said in her report:[13]
If Mr Winder is made subject to another DSOSO, it is respectfully recommended that consideration be given to reducing the number of conditions he is currently subject to, in particular regarding any external constraints (e.g. GPS tracking and exclusion zones). Mr Winder spoke of the difficulties he faces engaging in activities such as hunting and fishing with his brothers as a result of these constraints. As these activities are culturally appropriate and even protective (given he is connecting with culture/nature, engaging with other individuals, keeping busy and alleviating boredom), his involvement in these activities is supported. By removing his GPS tracker or reducing the number of exclusion zones he is subject to, Mr Winder will be permitted more freedom and independence. In addition, removal of urinalysis and breath testing requirements is recommended given Mr Winder's SCCO's indicated that he has not returned a positive test in almost nine years, nor has he behaved in a manner that has given cause for concern in this area. This will enable him to continue developing self-management skills that will be of benefit to him should he be in the community in the future in the absence of an order.
[13] Dr Poli's report [37].
The observations made by Dr Poli have much to recommend them. As Dr Poli makes clear, the capacity for Mr Winder to engage in culturally appropriate activities is not simply a matter in Mr Winder's interests but is in the interests of the protection of the community (which is, of course, the underlying purpose of the HRSO Act). As Dr Poli observes, those activities can be described as protective, by which I take her to mean that they help to reduce and manage any residual risk that Mr Winder may pose.
It is not possible for me to impose conditions that would expressly allow those activities to be undertaken. That is because in making an interim supervision order the Court must impose the standard conditions of a supervision order.[14] Those conditions include a condition that the person under the order be under the supervision of a community corrections officer and comply with any reasonable direction of that officer, including a direction for purposes of s 31 (being GPS monitoring). Indeed s 30(2)(g) requires that the person be subject to electronic monitoring under s 31. Section 31 confers a discretion on the community corrections officer to give directions in relation to the use of approved electronic monitoring devices.
[14] See HRSO Act, s 30(2), s 58(6).
It is therefore a requirement of the HRSO Act that I impose those conditions.
It is a matter for Mr Winder's community corrections officer to determine, having regard to all circumstances (including the protection of the community), whether or not electronic monitoring is required at all times and whether there should be exclusion zones. I have been advised that Mr Winder's community corrections officers are conscious of the matters that Dr Poli has raised in her report. I leave it to the discretion of the community corrections officers in accordance with the HRSO Act to take those matters into account in determining what appropriate directions are required in relation to Mr Winder.
Subject to those observations, I will make an interim supervision order, substantially in the terms made by McKechnie J.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
9 MARCH 2021