The State of Western Australia v YZW - [2022] WASC 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- YZW [2022] WASC 197
CORAM:   TOTTLE J
HEARD:   7 JUNE 2022
DELIVERED          :   7 JUNE 2022
PUBLISHED           :   9 JUNE 2022
FILE NO/S:   SO 6 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

YZW
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)
International Transfer of Prisoners Act 1997 (Cth)

Result:

Orders pursuant to s 46 made
Interim supervision orders made

Category: B

Representation:

Counsel:

Applicant	:	F Allen
Respondent	:	K E Ferridge

Solicitors:

Applicant	:	State Solicitor's Officce
Respondent	:	Assurance Legal

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

TOTTLE J:

Introduction

The respondent is due to be released from prison on 13 June 2022 having served the full term of a sentence of imprisonment that was imposed on him on 14 October 2020.
On 6 April 2022, 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 that application has now been completed. As stated in s 46(1) of the Act the main purpose of the preliminary hearing was to decide whether there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender.
The respondent accepts that there are reasonable grounds to believe that the court might find he is a high risk serious offender. For the reasons to which I refer in a moment, independently of the respondent's concession, I have concluded that there are reasonable grounds to believe that the court might find he is a high risk serious offender.
The decision I must make now is whether the respondent should remain in custody pending the final hearing of the restriction order application on 7 February 2023 under the terms of an interim detention order or whether he should be released to live in the community under the terms of an interim supervision order.
When the application was commenced the State's primary contention was that an interim detention order should be made. It took that position on the basis that global positioning technology might not be available in the town in which it was proposed that the respondent live. It has subsequently become clear that such technology is available and that the State proposes an interim supervision order which will require the respondent to observe 45 separate conditions. These conditions include 24‑hour electronic monitoring of the respondent's location under s 31 of the Act.
The respondent presses for an order that he be released into the community under the terms of the interim supervision order proposed by the State.

The law

A 'high risk serious offender' is defined under s 7 of the Act to be an offender in respect of whom the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, it is necessary to make a restriction order to ensure the adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
A 'serious offence' is defined in the Act. Relevantly it includes the offences of which the respondent has been convicted.
While the definition of a 'high risk serious offender' requires proof to a high degree of probability before a restriction order will be imposed, the threshold for a preliminary hearing under s 46(1) is much lower. 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 the mind towards assenting to, rather than rejecting, a proposition. 'Reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[1]
[1] 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 relies on a number of affidavits.[2] The primary affidavit is that of Fleur Marie Allen affirmed on 6 April 2022 which contains the respondent's criminal history and several previous reports in relation to him, including a pre‑sentence report, psychological report and parole assessment reports. The most recent psychological report available is dated 18 May 2020 which was prepared prior to the respondent's most recent sentencing hearing.
[2] Affidavit of Heather Applin affirmed 21 April 2022; Affidavit of Martin James Clancy-Rowe sworn 18 May 2022; Affidavits of Nadine Middock affirmed 25 May 2022 and 2 June 2022.

The respondent's history and personal circumstances

The evidence reveals that the respondent has a history of sexual offending as follows.
On 14 October 2020 the respondent was convicted on his own guilty pleas of four counts of indecently dealing with a child under 13 years, one count of inciting a child under 13 years to do an indecent act and one count of possession of child exploitation material. The offending occurred between 2009 and 2012. The victims of the indecent dealing and incitement to do an indecent act offences were 7 and 8 years of age and were known to the respondent through social relationships. The respondent was sentenced to a total effective term of 20 months imprisonment.
For the purposes of this application it is unnecessary to describe the offending in any detail. It was serious offending against highly vulnerable young victims. The sentencing judge described the level of offending as being somewhere above the low end and 'towards the middle of the range of seriousness' of offending of its kind.
In December 2013 the respondent was sentenced to 10 years imprisonment by the District Court of Georgia in the United States. This offending involved using the internet and a mobile phone to procure a child under 18 years to engage in sexual behaviour in circumstances of aggravation and knowingly travelling to the United States for the purpose of engaging in illicit sexual conduct with a minor. The offending took place between August 2011 to April 2012.
The respondent served his sentence in the United States prison system until February 2020 when he was transferred to Hakea Prison in Western Australia under the International Transfer of Prisoners Act 1997 (Cth). The respondent's full term of imprisonment for these convictions was complete on 13 April 2022.
The respondent has convictions for some traffic offences and two minor firearm related offences.
It is also unnecessary to describe the respondent's personal history and circumstances in any detail. It is sufficient to record that he is 43 years of age. He is a single man. His parents are alive and support him, as does his twin sister.
The respondent's parents live in a country town in Western Australia. They have said that the respondent may live with them if he is released under an interim supervision order. The respondent had a history of stable employment before he was imprisoned.
The respondent's behaviour in custody has not given rise to any concerns. Rather the reports in evidence support the conclusion that the respondent has used his time in custody constructively. The respondent has been employed while in custody and has been described as a respectful and conscientious worker. Outside of employment the respondent has been reported to be a respectful prisoner, who is polite to staff and other prisoners. The respondent has also used his time in custody to engage in vocational and educational courses.
Unlike many of the offenders who are dealt with under the Act the respondent does not have a history of substance abuse.
The respondent's risk of reoffending was formally assessed by Ms Jane Sampson in 2020 for the purposes of the sentencing in October 2020. In her report of 18 May 2020, Ms Sampson assessed the respondent as a moderate to high risk of sexual reoffending without treatment and recommended the respondent should be considered for a sex offender specific intervention program.
In coming to this conclusion Ms Sampson recorded that the respondent's offending behaviour:
... demonstrated chronicity and diversity of behaviour given that he has committed a variety of sexual offences across time and against several victims. There is some escalation in his offending across time. Physical coercion and psychological coercion are apparent in the current offences and likely grooming of the first victim and the USA victim in the prior convictions there.
In relation to the psychological adjustment realm, [the respondent] has pled guilty but he engages in minimisation of his behaviour in his focus on his depression as the main causation. He had limited awareness of his sexual motivation and he denies his deviant sexual interest in children. His repetition of child sexual offending is suggestive of attitudes that prioritise his sexual gratification over lawful behaviour. [The respondent] has problems with self-awareness and insight. He has had major coping problems for a number of years, and he was resistant to professional assistance, preferring to deny his problems and socially isolating himself. He disclosed childhood sexual victimisation.
In the domain of mental disorder, it appears that [the respondent] has a deviant sexual interest involving minors, due to his behaviour across time and victims of different ages. He reported chronic problems with depression and a previous diagnosis, but he has no current symptoms of this condition. He did not actively pursue treatment when in the community. He has used substances in the past and may have under-represented his alcohol use. He expressed intermittent suicidal ideation.
[The respondent's] social adjustment does suggest significant problems with intimate relationships. He has had only one long-term union, but this was with a woman with mental health challenges, who he relayed that he blamed for his problems. Otherwise he has not been able to sustain relationships. He has therefore not been able to meet his sexual needs in an appropriate relationship. He was socially isolated when in the community, leading to a lack of support in his life. In another category of social adjustment, namely employment, [the respondent] has a reasonable history until his period of incarceration in the USA. He has a minor history of other offending, but has committed a number of sexual offences.
A pre-sentence report dated 26 May 2020 contained similar conclusions.
A Treatment Assessment Report prepared November 2020 recommended that the respondent participate in the Medium Sex Offender Treatment Program (SOMED) to address his outstanding treatment needs.
In May 2021 the respondent waived the opportunity of being released on parole in order to participate in a Medium Sex Offender Treatment Program. At this same time the Federal Parole Assessment was also deferred to allow for the completion of the program.
The respondent was finally able to commence the SOMED on 22 December 2021 and he completed the program on 9 May 2022.
The SOMED program completion report indicated that the respondent had developed insight into the factors that contributed to his offending. The completion report recorded:
[The respondent] completed the Medium Sex Offender Treatment Program at Bunbury Regional Prison on 9 May 2022. He was observed to develop insight into the factors that contributed to his offending. The dynamic criminogenic targets identified for [the respondent] included difficulties expressing and regulating emotions, impulsivity, poor communication and problem-solving skills, maladaptive coping, sex as coping, and deviant sexual preference. [The respondent's] insight into his avoidant and maladaptive coping, poor communication in relationships and sexual issues can be considered as treatment gains. During the program, he demonstrated emerging skills in identifying and expressing emotions, communication and openness, goal planning and help seeking.
[The respondent's] Self-Management Plan (SMP) demonstrated that he developed insight into the factors that contributed to his offending. In his SMP he started to identify strategies and appropriate responses should risk factors occur, however, would benefit from strengthening his insight into his risk factors, including specific thoughts, feelings or behaviours that would be indicative of changes in risk.
On 1 June 2022 the Prisoners Review Board made a Post-Sentence Supervision Order in respect of the respondent.

Ongoing treatment

I have been informed by the respondent's counsel that the respondent's father has taken steps to enrol the respondent in a group treatment program for those who have engaged in child sex abuse and related internet offending. The program is run in the Perth metropolitan area and lasts for approximately 30 weeks. In addition, the respondent's father has arranged for him to engage in individual psychological counselling. If the respondent were to be detained in custody no further treatment would be available to him and there is a danger that his rehabilitation may regress. The availability of treatment in the community of the nature described is a factor that favours releasing the respondent. Participating in treatment of this nature not only improves the prospects of the respondent's rehabilitation in the long term but it also moderates the risk of re-offending in the period between his release and the hearing of the restriction order application.

Accommodation

The respondent is fortunate in having the support of his family which extends to being able to live with his parents if released. There are two issues in respect of that accommodation. The first is that there is a school near his parents' home. The State's evidence suggests that the school is 100 metres away whereas the respondent's counsel says that her research using Google maps indicates that the school is 400 metres away and that it is located on a street that is, in effect, a no though road such that there is no circumstance in which it would be necessary for the respondent to walk or drive by the school.
As noted earlier, the evidence establishes that global positioning technology is able to operate in the town and that the respondent's movements are capable of being monitored 24 hours a day. On that basis the school and its immediate surrounding area could be made an exclusion zone, that is an area which the respondent must not enter.
The second concern is that the police station in the town is only operational on a part time basis and then only during the day. Consequently, for long periods the nearest police support will be at least an hour away. The problem created by this reduced level of policing is that if the respondent is the subject of vigilante activity then it is unlikely that the police will be able to protect him.

Disposition

The respondent's history of sexual offending and the opinions expressed in the reports to which I have referred are matters which provide reasonable grounds for believing that a court may find that the respondent is a high risk serious offender under the terms of the Act.
I will make orders that the respondent undergo examination by a psychiatrist and a psychologist and make the other logistical and programming orders proposed by the State. These will include fixing 7 February 2023 as the date for the hearing of the restriction order application.
To order that a person be detained in custody pending the determination of an application under the Act is clearly a serious step to take. It is one not to be taken lightly, and it must be necessary for the adequate protection of the community.
I am not satisfied that an interim detention order is required to ensure the adequate protection of the community. I consider that an interim supervision order will adequately protect the community. I hold this view for the following reasons:
(a)The respondent has taken complete responsibility for all his past offending, entering early pleas of guilty to all offences - this is a positive sign in terms of the risk of re-offending.
(b)The respondent appears to be committed to his own rehabilitation. It is a measure of his commitment that he waived his right to release on parole in order to complete the SOMED program in prison.
(c)The respondent's completion of the SOMED program further ameliorates the risk he poses to the community upon his release.
(d)The respondent has family support in the community.
(e)The respondent has displayed a strong work ethic both before and during his period of incarceration which suggests that he would have positive employment prospects upon release.
(f)The respondent does not have any substance abuse issues.
(g)The respondent's serious offending commenced when he was 31 years of age, suggesting he was capable of living a law-abiding life as an adult for a period of a substantial period.
(h)The time spent by the respondent in prison is likely to have had the effect deterring him from further offending.
(i)The terms of the interim supervision order proposed by the State enable the respondent's activities to be monitored closely and for preventative action to be taken if there are any indications that the risk of the respondent re-offending has increased.
In summary, taken in combination the first eight factors satisfy me that the risk of the respondent re-offending has been moderated significantly and the ninth factor - the terms of the proposed interim supervision order provides for the residual element of risk to be monitored and controlled within the community in a manner that provides adequate protection to the community.
Counsel for the respondent proposed amendments to the terms of the interim supervision order prepared by the State. The purpose of these amendments was to moderate the stringency of the proposed curfew condition and the condition restricting contact (even supervised contact) with children under the age of 18 years of age. A Community Corrections Officer has the discretion to vary both conditions.
For the reasons I have given already it is important that the respondent participates in the community based treatment program to which I have referred and this is a matter the Community Corrections Officer should take into consideration when assessing the operation of the curfew condition.
As to the condition dealing with contact with children, it is important to appreciate that the interim supervision order is temporary. It may be that the condition relating to contact with children is overly restrictive and may cause difficulties with family gatherings as foreshadowed by the respondent's counsel but provided advance notice is given, a Community Corrections Officer has the discretion to permit supervised contact. Further, to the extent to which the condition may be overly restrictive, in that respect I prefer to err on the side of caution.
The final matter that I must address is the concern that the police may not be able to adequately protect the respondent in the event that he is subject to some form of vigilante activity. The options for guarding against this risk are very limited. The usual course is for the address of a person who is the subject of an interim supervision order or a supervision order to be the subject of a non-publication order. It is exceptional for there to be a non-publication order in respect of the respondent's name.

In this case, however, it is inevitable that if the respondent's name is published and the town in which he will be residing identified then it will not take long before his parents' address is known and the potential for some form of vigilante action will increase.
Against that background, and in the exceptional circumstances of this case, the only preventative step that can be taken is to make an order that there be no publication of the respondent's name or the town in which he will be living. The respondent will be referred to in the published version of these reasons by the pseudonym 'YZW'.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
9 JUNE 2022