The State of Western Australia v Wood
[2024] WASC 491
•29 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WOOD [2024] WASC 491
CORAM: FORRESTER J
HEARD: 29 NOVEMBER 2024
DELIVERED : 29 NOVEMBER 2024
FILE NO/S: SO 14 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SEAN WOOD
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 - Preliminary hearing - Whether reasonable grounds for belief that offender is a high risk serious offender - Interim Detention Order or Interim Supervision Order - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Interim detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McDonnell |
| Respondent | : | Mr A Watson |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Liberty Legal |
Cases referred to in decision:
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
FORRESTER J:
(This judgment was delivered extemporaneously on 29 November 2024 and has been edited from the transcript for clarity).
Introduction
On 2 October 2019, the respondent was sentenced to a term of 6 years' imprisonment after pleading guilty to two charges of sexual penetration of a child under 13, two charges of indecent dealing with a child under 13, and one charge deprivation of liberty. The sentence was backdated to 23 January 2019 and will expire on 22 January 2025.
On 7 November 2024, the State of Western Australia applied for a restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (Act).
This is the preliminary hearing in relation to the State's application. The main purpose of a preliminary hearing is for the court to decide whether there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the Act.[1]
[1] High Risk Serious Offenders Act 2020 (WA) s 46(1) (Act).
In my view, there are reasonable grounds for such a belief. Accordingly, I order that the matter be listed for a final hearing, and that appropriate reports be prepared. These are my reasons for doing so.
Legal principles
The State's application was made pursuant to s 35 of the Act, for a restriction order to be imposed in relation to the respondent under s 48 of the Act.
The respondent is a serious offender under custodial sentence, as that phrase is defined in s 3 of the Act.
The primary 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.[2]
[2] Act s 46(1).
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.[3]
[3] Act s 7(1).
The offences of sexual penetration of a child under 13,[4] indecent dealing with a child under 13,[5] and deprivation of liberty[6] are serious offences as that term is defined in the Act.
[4] Act s 3, sch 1 div 1 sub div 3 item 16.
[5] Act s 3, sch 1 div 1 sub div 3 item 16.
[6] Act s 3, sch 1 div 1 sub div 3 item 31.
The determination that a person is a 'high risk serious offender' requires proof to a high degree of probability. However, at the preliminary hearing stage, the threshold test is lower. At a preliminary hearing, a judge does not need 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 the 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.[7]
[7] 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
In support of the application, the State relied upon the affidavit of Tanya-Maree Hollaway affirmed 7 November 2024 and the affidavit of Ms Heather Applin affirmed 19 November 2024. Ms Hollaway's affidavit annexes the respondent's criminal history and several reports and assessments in relation to him. Ms Applin's affidavit relates largely to the respondent's potential release into the community.
Index offences
The serious offences which render the respondent liable to be dealt with under the Act (the index offences) are sexual penetration of a child under 13, indecent dealing with a child under 13, and deprivation of liberty. At the same time, the respondent was convicted of aggravated common assault, making a threat to kill, and assault with intent to commit an indictable offence.
There were three victims of the index offences, one aged 9 years old and two aged 6 years old. The victims were a part of the respondent's extended family.
On 20 January 2019, the respondent collected all three victims from their house to take them swimming. The respondent insisted the 9 year old sit in the front seat. During the journey, he stopped the vehicle, pulled down his pants and demanded the 9 year old suck his penis. The victim refused and tried to get into the backseat with the other two children. The respondent slapped her face, pulled up his pants and drove to a different location.
He then pulled his pants down again, grabbed the victim by her head and forced her to perform fellatio. He told the victim to remove her clothing which she did in fear. The respondent then ripped her underwear off before digitally penetrating her vagina. The two 6 year olds witnessed the event. The victim suffered bruising and a small laceration to the hymen as well as bruising on her upper chest, back and armpit.
The respondent later explained his conduct on the basis of his methylamphetamine use and suspected the abuse he suffered as a child might be somehow related.
The respondent was convicted of two offences of sexual penetration of a child under 13, indecent dealing with a child under 13 and a further offence of aggravated common assault.[8]
[8] The offence of aggravated common assault is not a 'serious offence' as defined by the Act.
Further, on 19 August 2017, the respondent was standing in a laneway at approximately 8.00 am. The 15 year old victim, who was unknown to the respondent, was walking along when the respondent approached her from behind and grabbed her. He placed his left hand firmly around her face smothering her mouth. He then pulled her towards him to prevent her from moving, holding her around the shoulders and chest.
He whispered into her ear, 'if you scream I will kill you' and dragged her backwards several metres towards his running car which was parked nearby. The victim bit his hand and managed to break free. She ran to another street where she alerted a person who drove her home. She had sustained a small scratch to the right side of her upper lip.
Forensic examination of the victim's clothing led to identification of the respondent's DNA and he was charged with deprivation of liberty, as well as threat to kill and assault with intent to commit a crime.[9]
[9] Threat to kill and assault with intent to commit a crime are not 'serious offences' as defined by the Act.
The respondent was sentenced on the basis that his attack upon the victim was sexually motivated. He later claimed that he was paranoid that police were following him as a result of his drug use, and he was just trying to get them to reveal themselves.
Other serious offences
The respondent has previously been convicted of other 'serious' offences within the meaning of the Act, being two charges of aggravated sexual assault, and assault with intent to steal.
On 25 May 1989, the then 21 year old respondent followed a 15 year old victim, who was unknown to him, from a bus stop to an oval. She ran from him but he chased her and attacked her from behind. He told her not to scream. There was a suggestion he mentioned a knife, although the respondent denied that and the matter was not resolved at sentencing.
The victim gave him her bag, but he then dragged her about 20 m and threw her to the ground. He undressed her lower half and then removed his clothing. He subsequently penetrated the her vagina with his penis, causing her severe pain and ejaculated into her vagina before withdrawing. He then sat on top of her with his buttocks on her chest and his legs around her head and, after threatening to strike her, forced her to let him put his penis into her mouth.
The respondent was wearing a balaclava at the time and was later identified due to the similarity of the conduct with an offence committed by him two weeks later, and by DNA tests which were then conducted in the United States of America. On 22 February 1990, he was sentenced to a term of 5 years and 7 months' imprisonment.
Other criminal history
On 7 June 1989 the respondent was wearing a balaclava, gloves, and dark clothing when he grabbed a woman from behind and placed his hand over her mouth. They both fell to the ground and struggled before the respondent ran off. He later told the police his intention was to rob the victim. The respondent was convicted of assault with intent to steal (pursuant to s 395 of the Code) and was ordered to complete 2 years' probation and 100 hours of community service.
The respondent has also been convicted of seeking a client in a public place under the Prostitution Act 2000 (WA) (2008) and possession of a prohibited drug (2017).
Conduct in custody
While in custody, the respondent has been found guilty of failing to submit a urine sample, and misconduct by fighting with another person.[10]
Personal circumstances and background
[10] Affidavit of Tanya-Maree Hollaway affirmed 7 November 2024, 18 (Hollaway Affidavit).
The respondent was born in England and emigrated with his family to Australia in 1971 at the age of 7. His parents were very strict and he was very close to his mother. His father had an alcohol problem. The respondent reported that his relationship with his father was characterised by physical, emotional and sexual abuse, and emotional neglect. He also reported that he was the victim of sexual abuse at the hands of a man who befriended him at a local park. He did not identify the behaviour as abuse until he was older.
The respondent has identified that he engaged in frequent sexualised behaviour as a child, with a compulsive quality to it.
He recalled being subject to peer exclusion and bullying at school, leaving him feeling socially isolated and, in combination with the abuse at home, undermined his self-confidence and resulted in him failing to maintain friendships.
He left school aged 15 and entered an apprenticeship to become a baker and he has been a baker for most of his working life.
The respondent described extensive substance use history beginning at age 16. His cannabis use evolved into a daily use, which he sustained for 34 years. He has somewhat inconsistently reported his drug use, but it appears he started using methylamphetamine in his mid 30's and by his early 40s this had also turned into a daily habit. His wife reported, and he acknowledged, that when under the influence he became agitated and paranoid, as well as physically and verbally aggressive.
The respondent claims to be sexually attracted to adult women. He reported that his sexual drive and arousal significantly increased when he was under the influence of methylamphetamine. At the same time, when he was under the influence, his wife refused to engage with him.
The respondent's mother died of cancer in 2014, at a time after the respondent had self-harmed and he was unable to see her before she died, reinforcing his low self-efficacy and grief. He tried to cease his substance use but his grief and relationship issues remained unaddressed and he returned to using drugs.
The respondent has described tenuous relationships with his family, maintaining no contact with his siblings. Since January 2023, he has had no had contact with his father.
The respondent has had three relationships of significance from which he has three sons. His first relationship commenced when he was 20 years of age and ended in 1989. His next partner was his current wife's older sister, the grandmother of the victims, with whom he has one child. He remains in regular contact with her and she is reportedly supportive of him and his current relationship.
The respondent entered a relationship with his current wife in 1997 and they have one son. The respondent's wife remains supportive of him. He has stated both he and his wife have used illicit drugs together throughout the relationship and reported instances of physical and verbal abuse during those periods. For approximately the last 5 years, their son has lived with the respondent's eldest sister and neither the respondent nor his wife have contact with him.
The respondent has experienced depression and suicidal ideation, with attempts at self harm over the years, including attempted hanging, overdose and stabbing. He has never properly engaged in mental health treatment.
Reports
In a 2019 psychological report by Dr Tarmala Caple, the respondent was reported to display intense self-loathing which he said was long term. Dr Caple considered that the respondent's very fragile sense of self has led to a number of cognitive, emotional, behavioural and interpersonal problems in his life. At that time, she assessed the respondent as likely to have a severe mental disorder, which required further assessment. She was of the view that the respondent used sex and drugs as mechanisms for coping, and suggested that he was caught in a vicious cycle of self-medication, poor behaviour, and self-hatred. In her opinion, he had substantial outstanding treatment needs.[11]
[11] Hollaway Affidavit, Annexure AF.
The author of a Treatment Options report dated 2 January 2024 assessed the respondent as being a well above average risk of sexual re‑offending, noting that the respondent presented with the a number of outstanding criminogenic treatment needs, namely reduced capacity for relationship stability, emotional identification with children, general social rejection, lack of concern for others, impulsive lifestyle, poor problem solving skills, negative emotionality, sexual preoccupation and deviant sexual preference. It was recommended the respondent complete the Sex Offending Intensive Program and Pathways Program to address his history of drug dependence.[12]
[12] Hollaway Affidavit, Annexure AG.
I was also provided with a psychological report dated 23 August 2023 authored by Dr Kathryn Riordan, Forensic and Clinical Psychologist.[13]
[13] Hollaway Affidavit, Annexure AK.
Dr Riordan assessed the respondent's risk of re-offending in a sexual manner using the STATIC-99R and STABLE-2007 assessment tools. The respondent's composite score placed him in the 'Well Above Average Risk' of re-offending. The most prominent areas of concern were the respondent's lack of social supports, his proclivity towards negative emotionality, poor problem solving, the use of sex as a form of coping, and his deviant sexual preferences.
Dr Riordan acknowledged that the presence of protective factors may mitigate risk potential if released into the community, and that the respondent had both abstained from substance use whilst in custody and asserted his commitment to abstinence in the community, in the context of substance use playing a significant role in his past offending behaviour.
Dr Riordan was of the view that there is strong evidence to suggest that the respondent has a long standing deviant sexual interest in pubescent and pre-pubescent females, based on some of the history provided, and the respondent's insight and awareness into this remains an outstanding treatment need, although he does have an intellectual awareness and understanding about appropriate relationships.
Dr Riordan noted it was difficult to ascertain whether the respondent's relationship with his wife would be a protective factor. The respondent has described substantial positive changes in the relationship to their communication, however this may be impacted by the complexities surrounding their relationship including their shared history of substance use, associated intimate partner violence, shared trauma with the ongoing separation from their child, experience of isolation and rejection from family and friends due to the respondent's offending, and his potential deportation.
Dr Riordan's identifies a risk that the respondent will be deported following release from custody and reported that the respondent expressed suicidal intentions if this risk was to become a reality. Dr Riordan opined that should the respondent be deported his risk of re-offending would likely increase.
The respondent disclosed to the author of a parole assessment report dated 31 August 2023 that he was experiencing symptoms of depression and engaged with a medication regime for the first time three years ago to address this, which he intends to continue. He also expressed extremely low libido which he attributes to cessation of methylamphetamine and disgust for his offending.[14]
[14] Hollaway Affidavit, Annexure AL.
The respondent proposed to live with his wife on release but in light of his criminal history, the accommodation was deemed to be unsuitable on the basis that children lived in the adjacent property. Otherwise, it was considered that the respondent would likely comply with his parole conditions.
Programs
On 16 August 2022, the respondent completed the Sexual Offender Intensive Treatment Program. He presented as eager to gain insight and build adaptive coping skills, participated in all aspects of the program and was receptive to feedback.
He was assessed for the following treatment needs: general social rejection/loneliness, negative emotionality, lack of concern for others, incapacity for relationship stability, poor cognitive, problem solving, impulsive actions, emotional identification with children, sex drive/pre-occupation and deviant sexual preferences.
After the program, the respondent demonstrated increased insight into all treatment need areas, had developed awareness of his thought patterns and demonstrated an ability to challenge them. He also developed his problem solving skills and ability to establish healthy boundaries in relationships. He showed an ability to distinguish between healthy and unhealthy fantasy and identified suitable means of meeting his sexual needs on release. His ability to utilise perspective taking and assertive communication were emerging, which, if which developed, may assist in mitigating his lack of concern for others and negative emotionality.
He also reportedly developed a realistic risk management plan that showed awareness of his risk areas and suitable skills to manage these, including release plans for both Australia and England.[15]
[15] Hollaway Affidavit, Annexure AH.
On 22 March 2023, the respondent successfully completed the Pathways Program. The respondent was reported to be a motivated and willing participant. His placement was required to address treatment need areas of substance abuse, lack of familial/marital support, negative peer influence and lack of pro-social engagement, support and employment. He also held risk in self-management deficits, including poor emotional regulation, impulsivity and poor problem solving skills.
The respondent was noted to increase insight across all areas of risk, with evidence of intrinsic motivation for change, increased problem awareness and effective utilisation of adaptive coping strategies. He also demonstrated increased insight into his substance use patterns and association to his offending behaviours including developing skills and strategies to minimise his risk. Notwithstanding this, the facilitators noted that his capacity to manage his substance use during times of heightened distress will be dependent on him challenging beliefs supportive of substances as a coping strategy and motivation for behaviour change.
The respondent presented with a comprehensive, detailed and well-considered risk management plan, although his ability to put it into action may be dependent on his management of his mental health.[16]
Respondent's proposal on release
[16] Hollaway Affidavit, Annexure AJ.
The respondent is an unlawful non-citizen and his visa has been cancelled under s 501 of the Migration Act 1958 (Cth). The respondent has appealed the cancellation decision, but there is no information as to the progress of that.
If the respondent is released pending the outcome of his appeal, he will be taken from custody to a detention centre. If the respondent's appeal is successful while in a detention centre, he would be released immediately with no notification given to the Department of Justice.[17]
[17] Affidavit of Heather Applin affirmed 19 November 2024 [12] - [13] (Applin Affidavit).
If released from custody, the respondent proposed to reside with his wife, who has indicated she is willing to allow the respondent to reside with her. Concerns have been raised that the respondent's wife has previously said that she did not believe the respondent would require supervision and that she would feel comfortable allowing him to have unsupervised time which children. However, in August 2023 she said she would supervise the respondent if he were around children under the age of 18.[18] Concerns remain with authorities about the suitability of the proposed residence given the children who may still live next door.
Submissions
[18] Applin Affidavit [9] - [10].
The applicant submits that the evidence is sufficient to constitute reasonable grounds for believing that the court might find the respondent to be a high risk serious offender within the meaning of s 7 of the Act.
The applicant further submits that the respondent should be detained on an interim detention order, having regard to his risk and the immigration issues involved.
While the respondent did not concede that the threshold had been met in relation to the respondent, it was conceded that the respondent has some problems that are difficult to overcome in relation to this application.
Disposition
I am satisfied that there are reasonable grounds to believe that the court might find the respondent to be a high risk serious offender, that is, that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
If the respondent is released, he will immediately be taken into immigration detention. He will thus be unable to comply with the conditions of an interim supervision order. While consideration of an interim supervision order does not require that the respondent satisfy the court on the balance of probabilities that he will substantially comply with the standard conditions, this is a relevant factor.
Conclusion
Ultimately, in my view, there is no other option but to make an interim detention order in respect of the respondent given his immigration status, and I will do so in accordance with the proposed order that was lodged.
That is, upon the application of the applicant dated 7 November 2024 and upon hearing counsel, it is ordered that pursuant, to s 46(2)(c)(i) of the Act the respondent be detained in custody pursuant to an interim detention order until the final determination of the application or further order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
20 DECEMBER 2024
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