The State of Western Australia v Winmar - [2022] WASC 27

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WINMAR [2022] WASC 27
CORAM:   QUINLAN CJ
HEARD:   28 JANUARY 2022
DELIVERED          :   28 JANUARY 2022
PUBLISHED           :   1 FEBRUARY 2022
FILE NO/S:   SO 16 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

SEAN THEO WINMAR
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 made pursuant to s 46(2)
Interim supervision order made

Category: B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	K J Farley SC

Solicitors:

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

Cases referred to in decision:

Nil

QUINLAN CJ:

(This decision was delivered extemporaneously on 28 January 2022 and has been edited from the transcript.)

Introduction

On 18 November 2021, the State of Western Australia applied for a restriction order in respect of Sean Theo Winmar 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 Winmar 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 Winmar undergo an examination by a psychiatrist and by a psychologist for the purpose of preparing reports; and
(b)that he be subject to an interim supervision order until the final determination of the application.
Mr Winmar'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, for the reasons I will give, that a supervision order is appropriate, pending the final determination of the application. The State, in that regard, accepted that Mr Winmar could be adequately managed in the community, pending the final determination of the application and did not seek an interim detention order.

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 Winmar 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, 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 and grievous bodily harm.
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.

The evidence

The evidence in support of the application by the State, consisted of an affidavit of Daniel Sean McDonnell, affirmed on 18 November 2021, which contains Mr Winmar's criminal history and several previous reports in relation to him. The State also relies upon an affidavit of Ms Applin, affirmed on 17 January. I also have before me a copy of a post‑sentence supervision order issued by the Prisoners Review Board on 5 January this year, and a letter from a not‑for‑profit homelessness service, dated 24 January 2022.
Mr Winmar is now 45 years old. He has a long history of offending, including violent offending, and has spent a large part of his adult life in prison. He is, according to his own assessment, an 'institutionalised offender'.
Mr Winmar also has a long history of substance abuse. The reports reveal that he commenced drinking alcohol and smoking cannabis at a young age, progressing to methylamphetamine, solvents, LSD and heroin.
Mr Winmar's history of offending, including his most recent offence, includes convictions for a number of 'serious offences' within the meaning of the Act: including a conviction for doing grievous bodily harm, armed robbery and two convictions for aggravated armed robbery. In addition he has been convicted for, amongst other things, robbery, possession of a weapon with intent to cause fear, common assault, four convictions for assault occasioning bodily harm and an aggravated unlawful assault.
Mr Winmar's most recent serious offending reveals a pattern of opportunistic, and frankly ham‑fisted, armed robberies, committed in the context of his use of drugs and alcohol. The last three serious offences sufficiently illustrate this pattern.
The most recent offence occurred on 13 February 2018 at a bottle shop in Bluff Point in Geraldton. Mr Winmar ordered some alcohol and while the staff were distracted, took the items and fled the store without paying. Two employees followed him to a nearby street corner, where Mr Winmar dropped the items and produced a knife. When the employees tried to retrieve the stolen items, Mr Winmar lunged at them (or, on his account, waved the knife at them; the learned sentencing judge considered that the difference between the two actions was not relevant for sentencing purposes). For that offence of armed robbery, Mr Winmar was sentenced to 4 years imprisonment.
On 16 November 2012, Mr Winmar committed another armed robbery, on this occasion aggravated by being in company in doing bodily harm to the victim. The victim and his cousin were smoking in a shed in the early hours of the morning when Mr Winmar entered the doorway of the shed holding a knife. Two other men were standing behind Mr Winmar. He demanded cigarettes and a mobile phone from the victim. The victim gave him the cigarettes, his mobile phone and a cigarette rolling machine. The victim's cousin intervened and, after a struggle, Mr Winmar dropped the knife, the cigarettes and the mobile phone. One of Mr Winmar's companions assaulted the victim and they fled with the cigarette rolling machine. Mr Winmar was convicted of aggravated armed robbery for that offence and sentenced to 3 years 4 months imprisonment.
On 27 July 2007, Mr Winmar committed a number of offences, including doing grievous bodily harm and aggravated armed robbery. All of the offences arose out of a single series of events involving Mr Winmar and a co‑offender, Elton John Garlett. Mr Winmar and Mr Garlett were drinking at a park and, following an altercation, committed a brutal assault on the victim, including by using a large metal pole. The victim's injuries included a large scalp laceration, collapsed lung, fractured ribs, open left tibia and fibula fracture, right fibula fracture and free fluid in the upper abdomen. That was the grievous bodily harm conviction.
A passer‑by who came upon the assault was also assaulted by Mr Winmar and Mr Garlett. In the course of the assault, a screwdriver fell from this new victim's pocket. Mr Winmar picked up the screwdriver and threatened the victim with it, and Mr Garlett demanded the victim give them his pants and his shoes, which they took (together with his backpack). This constituted the conviction for aggravated armed robbery.
For all of the offences committed on 27 July 2007, Mr Winmar was sentenced to a total term of 47 months imprisonment.
Prior to his most recent sentence, Mr Winmar had completed a number of prison programs, including a Moving on from Dependencies Program (in 2008), a Violent Offender Intensive Program (in 2010), a Cognitive Skills Program (in 2014), a Pathways Program (2015) and a further Violent Offenders Intensive Program (in 2016). While the reports from those programs suggest some treatment gains and an 'incremental shift' in his attitude, it is apparent that those gains had limited effect on his further offending.
During his current term of imprisonment, Mr Winmar has again participated in a number of programs: the Pathways Program (which addresses substance use problems) and another Violent Offender Treatment Program.
The Program Completion Report from the Pathways Program stated that:
Prior to the program commencing, his main criminogenic needs were identified as being: antisocial cognition, emotional management skills, building prosocial relationships and reduce substance abuse. Mr Winmar was considered to have made some treatment gains relevant to each area of criminogenic need; however these were limited and yet to be tested in relevant high risk or community based settings.
The program completion report from the Violent Offender Treatment Program, which is dated 20 August 2019, concluded that:
Mr Winmar demonstrated a level of insight into his treatment areas of emotional control and interpersonal aggression as well as developing insight into the function of his substance use. However, facilitators note that Mr Winmar's skill application in these areas was only evidenced within the custodial setting and that his gains were of a rudimentary nature. Given Mr Winmar's extensive substance use history, his ability to reduce risk regarding substance use will be dependent on the level of support he accesses within the community. Mr Winmar continues to hold criminal attitudes and cognitive distortions which remained supportive of the use of violence and weapons. He developed little insight into what precipitates his use of violence and his own cycle of violence. Furthermore, throughout the program Mr Winmar demonstrated little insight into his power and control behaviours within intimate relationships. Therefore, treatment areas related to use of violence remained outstanding.
Facilitators acknowledge Mr Winmar's previous poor compliance with supervision orders and engagement with support services when released into the community. Although, Mr Winmar demonstrated basic skill application regarding emotional control and interpersonal aggression within the custodial setting, evidenced by the absence of prison charges, he had previously been unable to transfer such skills into the community setting. Mr Winmar's utilisation of helpful skills and strategies within the custodial setting may be due to his institutionalisation and level of comfortability he experiences within this setting. As Mr Winmar has not previously demonstrated an ability to utilise program skills within the community, he would benefit from a holistic case management approach to assist with his integration into the community.
Strategies that may assist Mr Winmar's reintegration into the community include case management support to ensure suitable accommodation, employment and support to engage in meaningful activities; continued support to assist him with his goals in relation to abstinence; support to engage in further interventions focused on family and domestic violence; support to engage in further training regarding education and vocational training; and assistance to connect Mr Winmar to social activities to assist him in creating a pro-social network.
Mr Winmar was released to parole on 29 March 2021, on condition that he attend a residential Fresh Start Recovery Programme. He had a promising start to that program, engaging with the program and securing full time employment for the first time in his life. He also re-engaged with his religion and attending church.
Regrettably, on 20 June 2021 Mr Winmar had a significant relapse. He returned from weekend leave, heavily inebriated, stating that he had used methylamphetamine and had been drinking heavily. He damaged items in his room and made threats of self‑harm and harm to other residents, as a consequence of which, the police were called. Fresh Start were not willing to have Mr Winmar return to the residential facility, and his parole was cancelled.
I turn now to my assessment.

Assessment

I am satisfied there are reasonable grounds to believe that a court might find that Mr Winmar is a high risk serious offender.
Mr Winmar has a significant history of violent offending, often associated with his entrenched pattern of alcohol and drug use. There are reasonable grounds to believe that, if Mr Winmar is unable to control his problems with drugs and alcohol, he will return to the kind of spontaneous violent offending that has seen him repeatedly imprisoned in the past.
While the recent program reports, and his first couple of months on the Fresh Start program, showed signs of a willingness to change and to live a pro‑social life, there is sufficient evidence to indicate that ceasing illicit drug use and alcohol use continues to be a significant challenge to Mr Winmar. He has, thus far, not been able to maintain abstinent for a significant period of time in the community.
Mr Winmar's ongoing problems with substance abuse, and his pattern of violent offending while intoxicated, satisfy me that 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.
Turning then to the question of an interim supervision order.

Interim supervision order

In the present case the State does not seek an interim detention order but submits that an interim supervision order is desirable for the adequate protection of the community.
I am satisfied that there is jurisdiction to make an interim supervision order by reference to s 58(2)(a) and (b). The real question is whether under s 58(2)(c) it is desirable to ensure the adequate protection of the community that he be subject to an interim supervision order.
Mr Winmar through his counsel submits that his risk to the community can be adequately met by the terms of the post-sentence supervision order made by the prisoners review board on 5 January 2022. That order does provide for Mr Winmar to not use drugs or alcohol and to submit himself to random urinalysis and to comply with the lawful directions of a community corrections officer.
Mr Winmar submits that those matters address the most significant risk factor in his case, which is his return to illicit drug use. Mr Winmar also points out that the proposed accommodation, which is at a not‑for‑profit homelessness service, will also provide stable housing and a prosocial setting.
In all of the circumstances, I am satisfied that it is desirable that there be an interim supervision order because. In Mr Winmar's case, in my view, the terms of the post‑sentence supervision order do not sufficiently address the risks that Mr Winmar might return to antisocial peers which could contribute to his returning to illicit substance use.
In that regard, an interim supervision order, unlike the post‑sentence supervision order, would enable his community corrections officer to employ both a curfew and to require electronic monitoring of Mr Winmar's whereabouts. That is important for the following reasons.
Mr Winmar's most recent offending reveals a number of matters. First, a number of Mr Winmar's previous offences have been committed in company with others. Secondly, a number of them have been committed in public places and thirdly, a number of them have been committed at night.
All of those matters combine to suggest that it is important that the community corrections officers having responsibility for Mr Winmar's supervision have the capacity to carefully monitor his movements and the times of day in which he is out in public in order to be able to anticipate whether Mr Winmar is returning to antisocial contacts, which will not be conducive to him remain substance free and offence free.
It is also relevant that in the course of his period on parole and as part of the Fresh Start Recovery Program, his relapse into substance abuse occurred in circumstances in which he was on external leave. Mr Winmar had not been forthcoming as to his whereabouts while on leave, which suggests an additional reason why the capacity to monitor his whereabouts more carefully is appropriate in all of the circumstances.
In the circumstances, given the potentially high risk of serious offending in the event that he returns to substance use in a significant way, it is in the interests of community safety that his community corrections officer has the discretion to both employ a curfew and or electronic monitoring. That is not to suggest that the community corrections officer is bound to do so, but that that discretion should be available.
For those reasons, I will make orders in terms of the State's minute of proposed orders, and the proposed interim supervision order.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Principal Associate to the Honourable Chief Justice Quinlan
1 FEBRUARY 2022