THE STATE OF WESTERN AUSTRALIA -v- ATKINS [2021] WASC 163 (21 May 2021)

(b) Mr Atkins be detained in custody until the final determination of the application, pursuant to s 46(2)(c)(i) of the Act.

1. Although the orders are sought by consent, I must still be satisfied that there are reasonable grounds for believing that the Court might find that Mr Atkins is a high risk serious offender.

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 order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
2. A 'serious offence' within the meaning of the Act, relevantly, includes aggravated armed robbery.
3. While the definition of 'high risk serious offender' sets a relatively high bar for the imposition of a restriction order (in the sense of requiring proof to a high degree of probability), s 46(1) of the Act sets a low threshold for the purposes of a preliminary hearing. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[2]

1. The State has filed an affidavit of Fiona Marie Clare affirmed on 24 November 2020 which contains Mr Atkin's criminal history and several previous reports in relation to him (including psychological reports).
2. The evidence reveals that Mr Atkins has a history of violent offending, particularly against domestic partners. His offending includes serious offences, within the meaning of the Act, including two counts of deprivation of liberty (for which he was sentenced to imprisonment on 26 February 2013) and one count of aggravated robbery (for which he was sentenced to imprisonment on 26 February 2013) and one count of aggravated armed robbery (for which he was sentenced to imprisonment on 3 April 2019).
3. His offending history also includes two counts of aggravated assault occasioning bodily harm (for which he was sentenced to imprisonment on 26 February 2013) and one count of threat to kill (for which he was sentenced to imprisonment on 26 February 2013), and convictions for burglary, stealing, drug offences, firearm offences and breaches of violence restraining orders.
4. Mr Atkins' most recent offending was in 2017. This offending involved entering the home of the victim, with two other co-offenders, armed with a machine gun and a baseball bat and demanding drugs and money. Mr Atkins hit the victim hard across the back of the head with a baseball bat, stole drugs and money from the victim and took the CCTV camera installed in the victim's home.
5. Mr Atkins was sentenced in April 2019 to a total effective sentence of 5 years 4 months imprisonment. He is still serving this sentence, which will expire on 7 December 2022. Mr Atkins is eligible for release on parole, but has not been released.
6. There are a number of reports annexed to Ms Clare's affidavit, in the form of pre‑sentence reports, psychological reports and treatment reports. Those reports reveal a significant number of criminogenic factors that are relevant to Mr Atkins' risk of reoffending and his potential danger to the community.
7. Mr Atkins' childhood was characterised by violence, sexual abuse (both in his home life by two separate guardians as well as by one of his primary school teachers) and instability. He estimates he has spent a total of 15 years in prison throughout his life, and prior to his last offending, Mr Atkins was largely homeless.
8. Mr Atkins has a long history of drug and alcohol abuse. He was introduced to cannabis at the age of seven and began using it daily from the age of 10. He later moved to methylamphetamine which became his drug of choice when in the community.
9. Mr Atkins also suffers from mental health issues. About four years ago, Mr Atkins was assaulted whilst in prison and suffered head injuries. Thereafter, he was diagnosed with PTSD, anxiety and panic disorder.
10. Mr Atkins has previously completed four rehabilitation programs: the Think First Program in 2007, the Moving On From Dependencies Program in 2009, the Pathways Program in 2013 and the Stopping Family Violence Program in 2014.
11. As mentioned above, Mr Atkins' most recent offences were in 2017. A psychological report prepared for the sentencing hearing for those offences reported that Mr Atkins had poor stress and coping skills, and although he does not express violent attitudes, his behaviour demonstrated an inclination to violence in response to threat, particularly in relationships. The violence risk assessment scheme (HCR-20 v3) indicated that there was a high likelihood of Mr Atkins offending in the future in a similar manner to his previous offences, unless he addressed his challenges and mental health symptoms.
12. This report suggested the following treatment:

Recommendation is for Mr Atkins to access a cognitive behavioural program to address his violent offending, impulsivity, consequential thinking, traumatic history, poor emotional regulation and poor judgement. He may also be considered for a substance use program. These programs can be provided on a group basis in custody or on an individual basis in the community. Consideration for residential rehabilitation if he receives parole would be optimal for him.

1. A treatment assessment report regarding Mr Atkins was created on 31 May 2019. However, Mr Atkins refused to participate in an assessment interview and was unable to be assessed for treatment programs.

1. I am satisfied that there are reasonable grounds to believe that a court might find Mr Atkins to be a high risk serious offender.
2. My reasons are as follows.
3. Mr Atkins has a significant history of violent offending. A large portion of his violent offending is against domestic partners. However, his most recent offending indicates his capacity for violent offending against other individuals. This history could lead the Court to conclude that Mr Atkins has a propensity to commit serious offences.
4. Whilst Mr Atkins made positive treatment gains in the past, and has previously expressed a desire to engage in further treatment, he has not engaged in any treatment programs since 2014. His most recent risk assessment places Mr Atkins at a high risk of reoffending unless he engages in further treatment. During his most recent term of imprisonment he has, to date, refused to participate in any treatment.
5. On the basis of Mr Atkins' offending history and his unmet treatment needs, I am satisfied that there are reasonable grounds to believe that a court might find that he is a high risk serious offender. I will therefore make orders for the hearing of the restriction order application and for Mr Atkins to be examined by a psychiatrist and qualified psychologist for the purposes of preparing reports to be used at that hearing.

1. In the meantime, the State and counsel for Mr Atkins agree that I should make an interim detention order pending the determination of the restriction order application, pursuant to s 46(2)(c)(i) of the Act.
2. I am satisfied that I should do so. Mr Atkins remains a sentenced prisoner, although there is at least some prospect that he might be released on parole prior to the determination of this application.
3. In the circumstances, given his potentially high risk of serious violent offending and his refusal to engage in treatment, adequate protection of the community requires that he remain in detention until a complete assessment can be done of his risk.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

Principal Associate to the Honourable Chief Justice Quinlan

[1] See s 46(1) of the Act.

[2] 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).