The State of Western Australia v Woodman
[2024] WASC 439
•25 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WOODMAN [2024] WASC 439
CORAM: FORRESTER J
HEARD: 25 OCTOBER 2024
DELIVERED : 25 OCTOBER 2024
PUBLISHED : 25 NOVEMBER 2024
FILE NO/S: SO 12 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
AMBROSE VINCENT DOUGLAS GRAHAM WOODMAN
Respondent
Catchwords:
Criminal law - High risk serious offender - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Whether an interim supervision order is desirable - Turns on own facts
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentencing Act 1995 (WA)
Result:
Orders made pursuant to s 46(2) of the High Risk Serious Offenders Act 2020 (WA)
Interim detention order imposed
Category: B
Representation:
Counsel:
| Applicant | : | Ms T Loo |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | State Solicitor for Western Australia |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
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 25 October 2024 and has been lightly edited from the transcript).
On 27 November 2023, the respondent was sentenced to a total effective sentence of 18 months' imprisonment for three offences of aggravated common assault, breaching a police order, four offences of aggravated unlawful assault occasioning bodily harm, unlawfully impeding the breath of another, two offences of being armed in circumstances likely to cause fear, aggravated threat to harm and criminal damage. A serial family violence offender declaration was made in respect of the respondent.
The respondent's sentence expires on 31 December 2024. He was eligible for parole on 31 March 2024 but parole was denied.
On 11 October 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) (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 to believe that the court might find the respondent is a high risk serious offender within the meaning of the Act.[1]
[1] High Risk Serious Offenders Act2020 (WA) s 46(1) (Act).
The respondent's counsel conceded that the requirements of the Act were met. I am satisfied that that concession was entirely appropriate and that the requirements of s 46 are met.
I am also satisfied that it is necessary and desirable for the protection of the community that an interim detention order be imposed, pending the final determination of the application, or until further order of the court.
The law
Pursuant to s 46 of the Act, the main purpose of this hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that Mr Ambrose 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. This is to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[2]
[2] Act s 7(1).
The definition of serious offence is contained in s 5 of the Act. Apart from offences which appear in the Schedules to the Act, an offence is a serious offence if the sentencing court has declared it to be a serious offence under s 97A of the Sentencing Act 1995 (WA).
Relevantly, pursuant to that provision, a sentencing court may declare an offence to be a serious offence if:[3]
(a)a court is sentencing an offender to imprisonment for an indictable offence; and
(b)the offence —
…
(ii) involved the use of… serious violence against another person; or
(iii)resulted in serious harm to, or the death of, another person.
[3] Sentencing Act 1995 (WA) s 97A(2).
A court is required to declare an offence to be a serious offence if, in addition, it is sentencing an offender to imprisonment for the offence, the offence is a family violence offence, and the offender is a serial family violence offender.[4]
[4] Sentencing Act s 97A(6).
I am satisfied that the respondent is serving a custodial sentence in respect of a serious offence, in that at least one of the offences Mr Woodman is presently serving a term of imprisonment has been declared to be a serious offence pursuant to s 97A of the Sentencing Act.
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, then, is to say that it is possible, and belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief therefore requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[5]
[5] 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 its application, the State relied upon the affidavit of Joseph Marc Lloyd affirmed on 11 October 2024. Mr Lloyd's affidavit contains Mr Woodman's criminal history, as well as a program completion report, pre‑sentence report and treatment assessment report.
The State also relied upon a supplementary affidavit of Joseph Marc Lloyd affirmed on 24 October 2024, which annexed additional transcripts.
The State also relied upon the affidavit of Heather Applin affirmed on 22 October 2024. Ms Applin deposes as to conversations she has had with others regarding accommodation for the respondent. Annexed to her affidavit is a parole assessment report and a victim mediation unit addendum report.
Finally, the State relied upon the Affidavit of Martyn James Clancey‑Lowe sworn 25 October 2024. Mr Clancey‑Lowe is the Executive Manager of the Serious Offender Registry and has deposed as to the availability of GPS monitoring at a location of proposed accommodation for the respondent.
I have considered all of the contents of the affidavits, and need not set them out in detail. The pertinent details are as follows.
The respondent has a long history of family violence against multiple intimate partners. He also has an extensive record of breaches of family violence restraining orders, protective bail conditions, police orders, suspended sentences and community‑based orders. Relevantly, other than the below, the respondent has been convicted of one other serious offence, namely aggravated indecent assault in 2002, when he was 13 years of age.
The respondent is now 36 years of age. The sentence he is currently serving relates to offences committed in August and September 2022 and April, June and July 2023, against two different intimate partners.
The respondent was declared a serial family violence offender and a number of offences were declared serious offences for the purposes of the Act under s 97A of the Sentencing Act. I shall return to this later in my reasons.
The transcript of the statement of facts read at sentencing is not yet available. However, for the purposes of the preliminary hearing, I have been advised that the respondent accepts that the court may rely upon the statements of material facts produced at the time of charge of the respondent.
Index offences
Unlawful assault causing bodily harm in circumstances of aggravation on (s 317(1) Criminal Code (WA))
The respondent and victim (AM) had been in a family relationship for approximately eight weeks. AM had a child aged 5 years that resided with her.
On 30 August 2022, AM and the respondent were at a house in Cable Beach when she attempted to hide in the laundry after a physical altercation with the respondent.
The respondent found AM and dragged her from the laundry. Using a fork, he punctured her left lower leg causing immediate pain, discomfort and bruising.
The respondent carried AM into the guest room where she fell asleep from exhaustion and pain. AM woke in the morning, but was unable to leave due to feeling scared of the consequences if she did, as well as the pain in her leg.
Unlawful assault causing bodily harm in circumstances of aggravation on (s 317(1) Criminal Code), non-fatal strangulation (s 298(b) Criminal Code) and being armed in a way that may cause fear (s 68 Criminal Code)
On Friday 16 September 2022, the respondent and AM were at a home in Broome. After returning from buying food, Mr Woodman became angry with AM about the food that they had bought not being good enough.
The respondent pushed AM against a wall and, using a cricket bat, applied pressure to her neck, restricting her ability to breathe or yell properly. AM struggled with the respondent and he removed the bat from her neck.
The respondent then struck AM in her right shoulder causing her immediate pain and bruising to the area.
Shortly afterwards, AM was walking along a street in Broome when the respondent approached AM from behind with a sharp edged implement which resembled a tomahawk. AM saw some relatives and approached them in an attempt to get away and they challenged the respondent and AM was able to get away.
Unlawful assault causing bodily harm in circumstances of aggravation (s 317(1) Criminal Code)
Two days later, on 18 September 2022 at around 4.00 am, AM was drinking with friends. The respondent went to see her, despite a 72 hour police order being in place. The respondent tried to enter the address but AM declined, as she was aware of the police order being in place.
The respondent entered the premises through another unlocked door and sat on a mattress next to AM. AM told the respondent to leave.
The respondent questioned AM about what she had in her bag. She replied it was only clothes. AM left the room and went to the shower to hide. The respondent followed her, grabbed her and carried her outside.
Once outside the respondent and AM became involved in a struggle over the bag which was wrapped around AM. AM fell to the floor during the struggle before managing to get back to her feet. The respondent produced a pair of scissors and struck AM to the top of her left shoulder causing puncture wounds and bruising. AM released her grip of the bag and the respondent ran from the scene taking the bag with him.
The respondent was also convicted and sentenced for simple offences against AM, which were still offences of family violence, but were not able to be declared serious violent offences, including aggravated common assault and breach of a police order.
Unlawful assault causing bodily harm in circumstances of aggravation (s 317(1) Criminal Code)
The respondent and KK were in a family domestic relationship. They had met in December 2022 before more formally commencing a relationship in March 2023.
At about 5:00 pm on 30 April 2023, the respondent and KK were at the respondent's family home in Fitzroy Crossing.
The respondent became angry with KK, accusing her of having sex with another person before walking off to his bedroom. In an attempt to calm the situation, KK asked Mr Woodman to let her into the bedroom. It took KK five minutes of knocking before the respondent let KK into the room.
Once KK was in the room, the respondent again accused her of having sex with another person. She denied the allegation. The respondent continued to aggressively accuse KK before punching her multiple times to the right side of her ribs. The punches caused her immediate pain.
During the night KK woke in significant pain and could not get out of bed by herself. Due to the pain in her ribs, she was unable to get out of bed without assistance for two days. The respondent eventually arranged for her to be collected and taken to hospital.
KK required medical treatment in Perth due to her injuries, which included a pneumothorax.
Being armed in a way that may cause fear (s 68 Criminal Code), criminal damage (s 444 Criminal Code) and threat to harm (s 338B Criminal Code)
On 1 July 2023, the respondent attended KK's home while she was sleeping. She woke and let him in. When she asked the respondent to turn off the lights, he said, 'Oh, it's going to be like that is it?' KK explained she was trying to sleep and as respondent was turning the lights off, she got up to shut the window blinds.
The respondent became angry at KK and began making threats to damage her unit and assault her. When KK replied, 'Why not, you do something to me every other day', referring to previous incidents of family domestic violence, the respondent became violent and punched KK in the sternum. The strike caused immediate pain and winded KK, causing her to drop to the floor.
The respondent yelled at KK as she sat on the ground and threatened to stab her with a needle. The respondent also raised his left leg in a manner threatening to kick KK, but did not. He flung some furniture around and then left. However, he returned with his sister, and told her to assault KK.
KK called the police. While she was doing so, the respondent repeatedly hit her security door with a boot he was holding, which damaged the door.
The respondent was also convicted and sentenced for simple offences committed against KK, which were not declared serious offences, but were still offences of family violence, being common assault.
Other serious offences
The respondent was 13 years old when he committed his only other serious offence; an offence of aggravated indecent assault against a 19 year old woman, in company with two other juveniles. On 14 November 2001, the respondent and his co‑offenders accosted the woman at a phone box, and the respondent put his arm around the complainant's shoulders and tried to kiss her. One of the co‑offenders grabbed her breast and she pushed him away. The respondent then grabbed the woman and kissed her cheek. The respondent and one of the others then grabbed the complainant on her buttocks, breasts, upper thighs and crotch, including touching her vagina on the outside of her underwear. They stopped when she walked into a brightly lit area but all three further assaulted her when she walked into a more dimly lit area. Eventually the complainant broke free and walked home, too scared to run away.
Other offences
The respondent committed the offence of common assault against a further intimate partner, KC, in June 2006 and again in July 2006. In July 2008, he committed the offence of aggravated assault occasioning bodily harm against KC and her 2 month old child, causing the latter a depressed skull fracture. He was placed on bail conditions protecting KC from him, but he breached those conditions on 23 August 2008 and 9 December 2008, on the latter occasion also committing the offence of aggravated common assault. On 8 November 2009, he held a large rock over KC, who was on the ground, and twice threw it to the ground near her head, resulting in convictions for doing an act likely to endanger the life, health or safety of another and threat to harm.
On occasions in May 2016 and June 2016, the respondent breached a violence restraining order in place for the protection of KC, and punched her in the head. In July 2019, the respondent committed the offence of assault occasioning bodily harm against KC, assaulting her with a drawer and punching her to the head and body and dragging her around by the hair. He later punched and kicked her in the stomach.
The respondent also committed the offence of assault occasioning bodily harm against another intimate partner, LW, in July 2019, by striking her with a broomstick a number of times. Further, he committed the offence of aggravated common assault against another intimate partner, JC, in May 2020, punching her in the head and face, as well as kicking her body while she lay on the ground. At the time, he was subject to a violence restraining order for the protection of JC.
There was a significant gap in the respondent's violent offending, between November 2009 and June 2016, and a shorter gap between July 2016 and April 2019.
Risk assessment and treatment
In relation to risk assessment and treatment, the respondent has been the subject of a number of reports.
While incarcerated in 2021, the respondent completed the Not Our Way program, a program targeting the criminogenic needs related to family violence offending for Aboriginal men. At that time, the respondent attributed the gap in his offending after 2016 to being subject to an order and participating in the Breathing Space program for family violence perpetrators.[6]
[6] Affidavit of Joseph Marc Lloyd affirmed 11 October 2024, Annexure AO (Lloyd Affidavit).
The author of the Not Our Way Completion Report reported that the respondent had poor insight into family violence generally and the impact and experience on his victims. He engaged in victim blaming and justification and failed to demonstrate understanding of a healthy and equal relationship. His attitudes were supportive of using violence to solve problems. He acknowledged that alcohol and other drug use was a contributing factor in his offending but again blamed his cycle on external factors and took little responsibility for his use. He failed to understand safe alcohol and other drug limits.[7]
[7] Lloyd Affidavit, Annexure AO.
According to the author of the treatment report for the Not Our Way program:
[D]espite making gains in relation to a theoretical understanding of the impacts of violence, [alcohol and other drug use] abuse and emotions, the respondent continues to place blame on external factors for his behaviours. Overall, the respondent made minimal gains in relation to his identified treatment needs and would benefit from further engagement in a program or individual counselling.
The respondent continued to have treatment needs in his emotional management skills, challenging the attitudes and beliefs that support his use of violence, victim empathy, responsibility taking and safety planning regarding his alcohol and other drug use.[8] The report authors assessed that his lethality factors, including his unemployment, breaching protective orders, use of weapons, substance use, controlling behaviours, extensive record of family violence and an escalation of violence remain a risk.[9]
[8] Lloyd Affidavit, Annexure AO.
[9] Lloyd Affidavit, Annexure AO.
Prior to sentencing in 2023, the respondent was the subject of a pre‑sentence report. The author found the respondent presented 'with priority treatment needs pertaining to family violence, entrenched illicit substance use, unaddressed intergenerational and personal trauma, lack of consequential thinking and insight into his offending behaviour.' He attempted to justify his behaviour and externalised blame.[10]
[10] Lloyd Affidavit, Annexure AP.
The respondent was also the subject of a Treatment Assessment Report dated 15 April 2024. The author found that the respondent presented a 'very high' risk for general reoffending on the LS/RNR and a 'high' risk of violence reoffending on the VRS. It was recommended that the respondent again participate in the Not Our Way program as a priority, as well as the Pathways substance abuse program, if his substance abuse was not otherwise addressed in the Not Our Way program.[11]
[11] Lloyd Affidavit, Annexure AQ.
A Parole Assessment report dated 11 February 2024 indicates that the respondent has not participated in any programmatic intervention during his recent sentence. The relative brevity of his sentence means he has not been assessed, and he has not voluntarily engaged in any programs. There are no realistic programs available if he were to reside in his proposed accommodation, or even in Fitzroy Crossing (if that were otherwise suitable). It is most unfortunate that programmatic intervention has not been offered to him in his custodial sentence.
Assessment
On the materials before me, there is a compelling argument that the respondent is a very high risk of committing a family violence offence such as assault occasioning bodily harm, going armed in such a manner as to cause fear, criminal damage, doing an act likely to endanger life, health or safety, and/or making threats to harm or kill. I am less satisfied as to the level of risk of the respondent committing a 'serious' offence within the meaning of Schedule 1 of the Act, although in my view there is a clear argument that there is a risk of such offending, given the respondent's propensity for using weapons in his offending, and the non‑fatal strangulation offence.
Serious offences
The prosecution notices for which the respondent was sentenced do not indicate that any of the offences were declared to be a serious offence, and the transcript does not clarify the issue. The warrant of commitment does, however, state which offences were ordered to be serious offences, namely the offences of aggravated assault occasioning bodily harm, aggravated common assault and unlawfully impeding another's breath. The respondent accepts those orders were made.
In order to be declared a serious offence, an offence must be indictable. The offences of aggravated common assault were not indictable, therefore, not able to be declared to be serious offences. Further, the offences of going armed in a way that may cause fear, threats to harm and criminal damage should probably have been recorded as serious offences. It is a matter for the State to deal with that issue. However, I am satisfied that the respondent is presently a serious offender under custodial sentence.
These are the respondent's first adult 'serious offences'. While serious, I do not regard the aggravated indecent assault committed when the respondent was 13 years of age as being pertinent to the assessment of risk in this case. I do take into account that he has committed numerous family violence offences in the past.
The question arises whether the respondent is a risk of committing a serious offence if the offence he is at risk of committing will only be a serious offence if it is declared to be such an offence on sentencing. Given the respondent has been declared to be a serial family violence offender, if he does commit an indictable family violence offence in the future, he is very likely to be imprisoned and the court will be required to declare the offence to be a serious one.
For the purposes of the preliminary hearing, it is not necessary to finally resolve this issue, because the escalation in the respondent's behaviour satisfies me that there are reasonable grounds for believing that a court might find that the respondent is a high risk serious offender on the basis of his potential risk of committing one of the offences referred to in Schedule 1 of the Act.
I will therefore make orders for the hearing of the restriction order application.
Interim detention order or interim supervision order
Turning then to the application for the detention order.
Ms Applin is a Senior Community Corrections Officer. She has deposed as to her discussions regarding proposed accommodation for the respondent if he is released. The respondent proposes to reside in the Bawoorooga Community, with his father. However, the remoteness of the community raised issues, and he proposed alternative addresses, being with his mother in Fitzroy Crossing or his brother in Halls Creek.
The respondent's mother has been reported as saying she did not believe that Fitzroy Crossing was an appropriate environment for the respondent, and she was not willing to have the respondent reside with her. Some of the victims may also come across the respondent if he were to reside in Fitzroy Crossing, and accordingly that location is not considered suitable.
The respondent's brother was also unable to accommodate the respondent.
Ms Applin has been unable to contact the respondent's father or even obtain current contact details for him. An assessment has subsequently been made as to whether electronic monitoring would be possible and while there is internet connection at the respondent's father's address, it is only active within a very short distance of the home itself and the respondent would not be able to be monitored if he left the property.
Further, there are issues with the ability by Community Corrections to carry out supervision of the respondent or for him to get the programmatic intervention he would need if he were to reside at that community, given the remoteness of the proposed address. Police officers would require a minimum of two hours to respond to any requirement to attend.
The State submits that I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act, until the conclusion of the hearing of an application for a restriction order. In the alternative, they submit Mr Woodman should be released subject to the conditions set out in s 30(2) of the Act, as well as any other conditions the court considers appropriate.
To make a detention order, I must be positively satisfied that such an order is appropriate.
Mr Woodman's history of offending and recidivism, which I have already detailed, gives rise to concerns as to the safety of the community and the need for very close supervision. In particular, Mr Woodman's very poor compliance with court orders is of significant concern. The level of violence that has been inflicted in the past upon the respondent's intimate partners suggest that he is at very significant risk of causing serious injury, particularly given his use of weapons.
As noted in his pre‑sentence report, Mr Woodman's most recent offending was considered an increase in severity of offending behaviour, involving stabbing intimate partners with scissors, forks, strangulation with a cricket bat and physical violence. Given the increase in severity and level of violence perpetrated against intimate partners, the risk of further harm to intimate partners is considered elevated.[12]
[12] Lloyd Affidavit, Annexure AO.
In my view, none of the accommodation options presently being proposed are sufficiently suitable to enable the respondent to be released. I am satisfied in those circumstances that an interim detention order is the only appropriate option available at this point.
Mr Woodman may be brought back before the court if suitable accommodation is identified and the court may reevaluate whether an interim detention order is suitable.
Accordingly, I order that the respondent be detained until the hearing of the restriction order application, or until further order of the court.
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
25 NOVEMBER 2024
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