The State of Western Australia v Yorkshire

[2020] WASC 295

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- YORKSHIRE [2020] WASC 295

CORAM:   MCGRATH J

HEARD:   14 AUGUST 2020

DELIVERED          :   14 AUGUST 2020

FILE NO/S:   DSO 7 of 2020

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

SIMON RODERICK YORKSHIRE

Respondent

Catchwords:

Dangerous Sexual Offenders Act - Preliminary hearing - Whether reasonable grounds for believing a div 2 order might be made

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7, s 8, s 11, s 14, s 17, s 37

Result:

Application granted
Orders sought by applicant made

Category:    B

Representation:

Counsel:

Applicant	:	Ms F M Clare
Respondent	:	Ms N R Sinton

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid WA

Case(s) referred to in decision(s):

Director of Public Prosecutions (WA) v Dodd [2015] WASC 249

Director of Public Prosecutions (WA) v Free [2010] WASC 255

MCGRATH J:

1. The State of Western Australia applies, pursuant to s 8(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act), for orders under s 14 and s 17(1) of the Act in respect of Mr Yorkshire.[1]

   [1] Application by the State of Western Australia dated 2 July 2020.

2. In accordance with s 11 of the Act, the purpose of this preliminary hearing is to determine whether the court is satisfied that there are reasonable grounds for believing that the court might find that Mr Yorkshire is a serious danger to the community under s 7(1) of the Act. That is, to determine whether the court is satisfied that there are reasonable grounds for believing that a court might find that there is an unacceptable risk that if Mr Yorkshire were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.

3. Mr Yorkshire accepted for the purposes of this preliminary hearing that there are reasonable grounds for believing that a court might, at a div 2 hearing, find that he is a serious danger to the community and therefore he did not oppose nor consent to the application.  Mr Yorkshire did not make any submissions contradicting the evidence relied upon by the State.

4. For the following reasons, I have determined that the orders sought should be made.  In these reasons for decision, I will consider the following:

   1.The relevant legal principles.

   2.The factual background and evidentiary material.

   3.An assessment of the application.

Relevant legal principles

1. Section 8 of the Act provides that the Director of Public Prosecutions may file an application for orders under s 14, and for a div 2 order, if the respondent is under a custodial sentence for a serious sexual offence, and there is a possibility that the respondent might be released from custody within the period of one year after the application is made.

2. Section 11 of the Act provides that the application must be the subject of a preliminary hearing before the court.

3. The main purpose of a preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community.[2]  That is, to determine whether the court is satisfied that there are reasonable grounds for believing that the court might find that there is an unacceptable risk that, if the offender is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.[3]

   [2] Dangerous Sexual Offenders Act 2006 (WA), s 11(3).

   [3] Dangerous Sexual Offenders Act 2006 (WA), s 7(1).

4. Section 14(1) of the Act provides that at the preliminary hearing, if the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community, the proper officer of the court must, subject to s 7(2A), fix a day for the hearing of the application for a div 2 order.

5. Further, the court must order that the respondent undergo examinations by two qualified experts named by the court, at least one of whom is to be a psychiatrist, for the purposes of preparing reports in accordance with s 37 of the Act to be used on the hearing of the application for the div 2 order.[4]

   [4] Dangerous Sexual Offenders Act 2006 (WA), s 14(2)(a).

6. In Director of Public Prosecutions (WA) v Free[5] McKechnie J made the following observations in relation to the requirements of s 14(1) which I apply in respect of this application:

   A judge does not have to be satisfied that an order will be made.  It is sufficient if there are reasonable grounds for believing that an order might be made.

   It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description.  The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made.  At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community.  It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.

   The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation.  In George v Rockett (1990) 170 CLR 104:

   'When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.'

   Further on:

   'The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.  Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.'

   The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.

   [5] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [10] ‑ [13].

7. Similar observations in relation to the requirements of s 14(1) were made by Simmonds J in Director of Public Prosecutions (WA) v Dodd.[6]

   [6] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [34] ‑ [42].

8. I will now consider the material before the court which bears upon my determination of the question posed by s 14(1) of the Act.

Factual background and evidence

1. The State's application is supported by an affidavit of Ms Clare which produces relevant documentary material and a written outline of submissions.[7]  Mr Yorkshire did not seek to rely on any documentary material nor any written outline of submissions.

Criminal history

[7]Affidavit of Fiona Marie Clare affirmed 2 July 2020; Applicant's Outline of Submissions for Preliminary Hearing filed 12 August 2020.

1. Mr Yorkshire is a 53 year old male having been born on 20 January 1967.

2. Mr Yorkshire has a criminal history that relevantly comprises sexual offending.[8]  Mr Yorkshire has been convicted of sexual offending in 1986, 1990, 2007 and 2013.  Mr Yorkshire does not have a criminal record in any other jurisdiction.[9]  I will provide an outline of Mr Yorkshire's offending.

1986 offending: one count indecent assault

[8] Western Australian Criminal Record, Annexure A to the Affidavit of Ms Clare, 14 ‑ 41.

[9] Affidavit of Ms Clare [4].

1. On 23 April 1986, Mr Yorkshire committed the offence of indecent assault against an adult woman, contrary to s 324b of the Criminal Code.[10]  Mr Yorkshire was 19 years of age at the time of the offending.  The offending involved Mr Yorkshire assaulting a street worker employed by the City of Perth to assist members of the community.  Mr Yorkshire led the victim to an alleyway where he flung her to the side and commenced taking his jeans off and telling her that he wanted to have sex with her.  Mr Yorkshire then touched her breasts and forced her to masturbate him.  The offending ceased when the victim was able to break free.

   [10] Form P.18 (Arrest/Summons) document, Annexure D to the Affidavit of Ms Clare, 56 ‑ 57.

2. On 1 September 1986, Mr Yorkshire was sentenced to a term of immediate imprisonment of 2 years without eligibility for parole.[11]

1990 offending: one count aggravated sexual assault

[11] Affidavit of Ms Clare [18].

1. On 21 February 1990, Mr Yorkshire committed the offence of aggravated sexual assault against a female under the age of 16 years, contrary to s 324E of the Criminal Code.[12]  The female victim was 15 years of age and was an acquaintance of Mr Yorkshire.   Mr Yorkshire was 23 years of age at the time of the offending.   The offending involved Mr Yorkshire threatening the victim with violence to cause her to accompany him before pushing her to the ground and asking her to have sex with him.   When the victim refused, Mr Yorkshire pulled down her jeans and underwear.  Mr Yorkshire then penetrated her vagina with his penis and continued sexual intercourse for approximately two minutes.[13]

   [12] Supreme Court Indictment 2538 of 1990 dated 5 June 1990, Annexure E to the Affidavit of Ms Clare, 58 ‑ 59; Transcript of sentencing hearing in the Supreme Court of Western Australia on 7 December 1990, Annexure H to the Affidavit of Ms Clare, 68.

   [13] Precis of Evidence dated 20 April 1990, Annexure F to the Affidavit of Ms Clare, 60 ‑ 62.

2. Mr Yorkshire pleaded not guilty to the offending and the matter proceeded to trial.   The jury could not reach a verdict in the first trial and Mr Yorkshire was convicted after a second trial.   On 7 December 1990, Wallace J imposed a term of immediate imprisonment of 4 years and 2 months without eligibility for parole.[14]

2007 offending: 1 count indecent assault

[14] Transcript of sentencing hearing in the Supreme Court of Western Australia on 7 December 1990, Annexure H to the Affidavit of Ms Clare, 68 ‑ 72.

1. On 28 February 2007, Mr Yorkshire committed the offence of unlawful and indecent assault, contrary to s 323 of the Criminal Code.[15]  The victim was a 16 year old female who was known to Mr Yorkshire.  At the time of the offending Mr Yorkshire was 40 years of age.  Mr Yorkshire and the victim were drinking with a group of the victim's friends and became intoxicated.  Mr Yorkshire approached the victim and pulled down her tracksuit bottoms to her thighs.  Mr Yorkshire then pinned the victim to the ground and exposed his penis.  The offending ceased when Mr Yorkshire was apprehended by two security officers.

   [15] Statement of Material Facts, Annexure I to the Affidavit of Ms Clare, 73 ‑ 75.

2. On 21 May 2007, his Honour Magistrate Heaney imposed an immediate term of imprisonment of 18 months.

2012 offending: two counts indecent assault; two counts sexual penetration without consent; one count deprivation of liberty; one count threatening to unlawfully harm; and one count assault causing bodily harm

1. Between 15 and 16 August 2012, Mr Yorkshire committed two offences of indecent assault contrary to s 323 of the Criminal Code; two offences of sexual penetration without consent contrary to s 325 of the Criminal Code; one offence of deprivation of liberty contrary to s 333 of the Criminal Code; one offence of threatening to unlawfully harm, contrary to s 338B of the Criminal Code; and one offence of assault causing bodily harm contrary to s 317 of the Criminal Code.[16]

   [16] District Court Indictment 550 of 2013 dated 26 June 2013, Annexure J to the Affidavit of Ms Clare, 76 ‑ 77.

2. The offending occurred between 15 ‑ 16 August 2012 and was committed as part of one episode against the same victim.[17]  The female victim was 41 years of age.  Mr Yorkshire was 45 years of age at the time. The offending occurred at Mr Yorkshire's residence after the victim voluntarily agreed to enter.

   [17] Statement of Material Facts, Annexure K to the Affidavit of Ms Clare, 78 ‑ 81.

3. Count 1 involved Mr Yorkshire, whilst attempting to unlock the door to his residence, reaching over the victim and placing his hand down her top and under her bra and onto her right breast.[18]

   [18] Transcript of sentencing proceedings in the District Court of Western Australia on 26 July 2013, Annexure M to the Affidavit of Ms Clare, 127.

4. Counts 2 and 3 were acts of sexual penetration.  Count 2 involved Mr Yorkshire placing his penis into the victim's mouth and telling her to suck it.  The victim continued to suck his penis for 20 minutes.[19]  The victim at times tried to move her head away but Mr Yorkshire pushed her head back and told her to continue.  Count 3 occurred while Mr Yorkshire was forcing the victim to perform oral sex and involved him inserting his finger into her vagina and moving it in and out, causing pain and discomfort to the victim.[20]

   [19] Transcript of sentencing proceedings in the District Court of Western Australia on 26 July 2013, Annexure M to the Affidavit of Ms Clare, 128.

   [20] Transcript of sentencing proceedings in the District Court of Western Australia on 26 July 2013, Annexure M to the Affidavit of Ms Clare, 128.

5. Count 4 occurred while the victim attempted to get dressed.  Mr Yorkshire pushed the victim back onto the mattress and placed his mouth onto her left breast, biting her breast hard and causing her pain.  The victim told Mr Yorkshire to stop because it hurt but he continued and bit her breast two more times.[21]

   [21] Transcript of sentencing proceedings in the District Court of Western Australia on 26 July 2013, Annexure M to the Affidavit of Ms Clare, 128 ‑ 129.

6. Count 5 involved Mr Yorkshire stopping the victim from leaving his residence.  When the victim attempted to leave, Mr Yorkshire opened and then slammed the door shut and shouted 'you're not going anywhere'.[22]  Count 6 involved Mr Yorkshire proceeding to take out two large serrated knives and raising them towards the victim.   Mr Yorkshire stood at the end of the couch with the knives pointed towards the victim whilst shouting.   The victim thought that Mr Yorkshire was going to kill her.  Count 7 occurred when Mr Yorkshire threw the knives down and proceeded to punch the victim in the face and head approximately five times, causing immediate pain and discomfort to the victim.[23]

   [22] Transcript of sentencing proceedings in the District Court of Western Australia on 26 July 2013, Annexure M to the Affidavit of Ms Clare, 129.

   [23] Transcript of sentencing proceedings in the District Court of Western Australia on 26 July 2013, Annexure M to the Affidavit of Ms Clare, 129.

7. On 26 July 2013, Bowden DCJ imposed a total effective term of immediate imprisonment of 8 years with eligibility for parole. 

8. Counts 2 and 3 on the indictment are 'serious sexual offences' as defined in s 3(1) of the Act.

Other criminal convictions

1. Relevantly, Mr Yorkshire has six convictions of failing to comply with reporting obligations under s 63 of the Community Protection (Offender Reporting) Act2004 (WA).[24]  The six offences occurred on different dates between 2008 and 2012.

Reports and treatment programs

[24] Western Australian Criminal record, Annexure A to the Affidavit of Ms Clare, 14 ‑ 41.

1. Given that this is a preliminary hearing, no reports were prepared.  However, a number of reports in relation to Mr Yorkshire which have been prepared for previous sentencing hearings were produced by the applicant.  I will outline the salient aspects of the principal reports.

2. In 2007, Ms Hobbs, forensic psychologist, prepared a report concerning Mr Yorkshire.[25]  Ms Hobbs stated that Mr Yorkshire's risk of reoffending utilising the Static 99R actuarial tool, which is an actuarial (historical) measure of relative risk for sexual offence recidivism, was in the 'medium-high' risk category with Mr Yorkshire having a three in ten chance of sexual reoffending within a five year period.[26]  Ms Hobbs stated that given that treatment needs are also predictive of reoffending the fact that Mr Yorkshire is assessed as having a number of significant treatment needs suggests that his risk may be elevated.

   [25] Report of Ms Hobbs dated 28 August 2007, Annexure S to the Affidavit of Ms Clare, 161 ‑ 168.

   [26] Report of Ms Hobbs dated 28 August 2007, Annexure S to the Affidavit of Ms Clare, 166.

3. Ms Hobbs stated that Mr Yorkshire has limited insight into his offending behaviour and often minimised or justified his behaviour.[27]  Ms Hobbs stated that Mr Yorkshire appeared to hold 'offence supportive' beliefs and distorted attitudes including a belief that women lead men on.[28]  Ms Hobbs stated that there appears to be a significant correlation between Mr Yorkshire's alcohol use and his use of violence.[29]

   [27] Report of Ms Hobbs dated 28 August 2007, Annexure S to the Affidavit of Ms Clare, 168.

   [28] Report of Ms Hobbs dated 28 August 2007, Annexure S to the Affidavit of Ms Clare, 167.

   [29] Report of Ms Hobbs dated 28 August 2007, Annexure S to the Affidavit of Ms Clare, 167.

4. Although Mr Yorkshire has significant treatment needs, Ms Hobbs stated that his suitability for treatment is questionable.[30]

   [30] Report of Ms Hobbs dated 28 August 2007, Annexure S to the Affidavit of Ms Clare, 168.

5. In 2014, Mr Yorkshire completed the Think First Cognitive Skills (Sex Offender) Program.[31]  The author of the report stated that from a treatment needs perspective Mr Yorkshire's risk remains outstanding.  Whilst Mr Yorkshire was able to explore the program concepts, his continual denial of the offending precluded him from relating the materials to his own offending.[32]  The report stated that it was particularly relevant for Mr Yorkshire to explore victim empathy and perspective taking.[33]  The author stated that given that Mr Yorkshire denies his offending, there is no corresponding risk management plan that may be implemented.[34]

   [31] Report of the Think First Cognitive Skills program dated 6 February 2015, Annexure V to the Affidavit of Ms Clare, 174 ‑ 178.

   [32] Report of the Think First Cognitive Skills program dated 6 February 2015, Annexure V to the Affidavit of Ms Clare, 176.

   [33] Report of the Think First Cognitive Skills program dated 6 February 2015, Annexure V to the Affidavit of Ms Clare, 177.

   [34] Report of the Think First Cognitive Skills program dated 6 February 2015, Annexure V to the Affidavit of Ms Clare, 176.

6. In 2018, Mr Yorkshire completed the Pathways Program which is an intensive cognitive-behavioural based program for offenders who have had concurring problems of alcohol and other drug use and criminal conduct.[35]  The author of the report stated that Mr Yorkshire consistently minimised his offending and his behaviour and that he needed to change his perception on alcohol abuse, build self-worth and to take responsibility for his actions.[36]

   [35] Report of the Pathways Program dated 1 March 2018, Annexure W to the Affidavit of Ms Clare, 179 ‑ 184. 

   [36] Report of the Pathways Program dated 1 March 2018, Annexure W to the Affidavit of Ms Clare, 182 ‑ 183.

7. In 2017, Mr Yorkshire completed the Intensive Sex Offender Treatment Program.[37]  The authors of the report stated that Mr Yorkshire willingly engaged in the treatment program and made some gains regarding his treatment by cognitive behavioural therapy group discussions and interactions challenging core beliefs.[38]  The treatment needs identified by the authors included Mr Yorkshire's attitude of sexual entitlement including adversarial sexual beliefs that men should control and dominate women who are deceitful, self‑regulation issues and relationship problems.[39]  The authors of the report stated that Mr Yorkshire would benefit from further support in the area of self‑esteem, coping (substance abuse), emotional regulation and childhood trauma.

   [37] Report of the Intensive Sex Offender Treatment Program dated 7 November 2017, Annexure X to the Affidavit of Ms Clare, 185 ‑ 191. 

   [38] Report of the Intensive Sex Offender Treatment Program dated 7 November 2017, Annexure X to the Affidavit of Ms Clare, 191.  

   [39] Report of the Intensive Sex Offender Treatment Program dated 7 November 2017, Annexure X to the Affidavit of Ms Clare, 188.

1. In 2017, Ms Wager, counselling and clinical psychologist, in a report prepared for the Prisoners Review Board, stated that Mr Yorkshire's risk of reoffending utilising the Violence Risk Scale ‑ Sex Offender Version (VRS-SO) was within the 'high' nominal risk category for reoffending in a sexual manner.[40]  Ms Wager stated that the dynamic risk factors for Mr Yorkshire included his cognitive distortions, for example his externalisation of responsibility and attitude of sexual entitlement, his lack of insight, poor emotional control and impulsivity related to interpersonal aggression and chronic alcohol use.[41]

   [40] Report of Ms Wager dated 13 December 2017, Annexure Z to the Affidavit to Ms Clare, 202.

   [41] Report of Ms Wager dated 13 December 2017, Annexure Z to the Affidavit to Ms Clare, 202.

2. Ms Wager stated that Mr Yorkshire's primary risk factor relates to his alcohol consumption and its effect upon his attitude of sexual entitlement.  Regrettably, Ms Wager concluded that Mr Yorkshire appears to have developed minimal insight despite his advanced age and programmatic intervention and that he articulated few risk management strategies and has limited community supports.[42]

   [42] Report of Ms Wager dated 13 December 2017, Annexure Z to the Affidavit to Ms Clare, 203.

Assessment

1. Counts 2 and 3 on District Court Indictment 550 of 2013 dated 26 June 2013 for which Mr Yorkshire is currently serving a term of imprisonment constitute 'serious sexual offences' as defined in s 3 of the Act and s 106A of the Evidence Act 1906 (WA).

2. Further, given Mr Yorkshire's expected date of release is 2 September 2020, the statutory requirement that Mr Yorkshire might be released within the next 12 months has also been satisfied. Accordingly, the threshold for the State making the application under s 8 of the Act is met.

3. Mr Yorkshire has been convicted of three serious sexual offences against both female children and female adults over an extended period.  The offending has been characterised by opportunism and violence including the use of dangerous weapons.  Mr Yorkshire has been assessed at the medium to high risk of reoffending.  Mr Yorkshire has outstanding treatments needs despite completing a number of treatment programs whilst incarcerated.  Those treatment needs include the need to address Mr Yorkshire's attitude of sexual entitlement including his adversarial sexual beliefs, his externalisation of responsibility and his abuse of alcohol.

4. Accordingly, in all the circumstances, I am satisfied that there are reasonable grounds for believing that the court might, under s 7(1) of the Act, find that Mr Yorkshire is a serious danger to the community. That is, I have a belief in the possibility that the court will be satisfied to a high degree of probability that Mr Yorkshire is a serious danger to the community. Given the nature and degree of the risk which the court might find to exist, and the likely harm to any potential victim, the adequate protection of the community at this stage requires that the respondent be detained in custody until the determination of the div 2 hearing or further order.

5. I therefore allow the application under s 14(1) of the Act and will make the orders sought by the applicant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JR
Associate to the Honourable Justice McGrath

13 AUGUST 2020