THE STATE OF WESTERN AUSTRALIA -v- HARPER [2022] WASC 26 (1 February 2022)

4 The State seeks orders pursuant to the Act, including orders that:

(a) a restriction order be imposed under s 48 of the Act;

(b) Mr Harper undergo examination by a psychiatrist and a qualified psychologist for the purposes of preparing reports; and

(c) Mr Harper be subject to an interim supervision order under the Act until the final determination of the application.

5 Mr Harper's counsel accepted that the requirements of s 46 are met, and for the reasons that I will give, I accept that concession.

6 For the reasons that I now give, I am satisfied that it is desirable for the protection of the community, that an interim supervision order be imposed pending the final determination of the application. Mr Harper, through his counsel, also accepted that that was an appropriate course.

8 Pursuant to s 46 of the Act, the main 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 Mr Harper is a high risk serious offender.

9 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, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.

10 A 'serious offence' within the meaning of the Act, relevantly, includes acts causing bodily harm with an intent to do harm.

11 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, and 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.[1]

12 In support of its application, the State relies upon the affidavit of James Francis Bennett affirmed on 22 November 2021 which contains Mr Harper's criminal history dating back to 2002, and several previous reports in relation to him. Those reports include a pre‑sentence report, psychological reports and program completion reports. The most recent psychological report available, which was prepared prior to Mr Harper's most recent sentence, is dated 25 January 2015.

13 The State also relies upon two affidavits of Ms Heather Applin, affirmed on 17 January and 25 January 2022 respectively. Those affidavits relate to Mr Harper's proposed accommodation upon release.

14 Mr Harper is now 29 years of age. He has no family history of mental illness but a long history substance abuse, starting from 13 or 14 years of age, including alcohol, cannabis and amphetamines.[2]

15 Mr Harper also has a long history of offending. His offending has included disorderly behaviour, driving offences, stealing, armed robbery, drug related offences, 27 counts of criminal damage, and offences involving violence, namely common assault, assault occasioning bodily harm, being armed in a way that causes fear, threats to injure, endanger or harm another person, and assault against a public officer.

16 Mr Harper's most recent two offences, for which he is serving a total effective sentence of 7 years imprisonment, were both serious violent offences.

17 The first occurred on 27 January 2013. The victim on that occasion was a young man who had engaged in consensual sexual activity with Mr Harper's then partner the day before.

18 The victim was, in effect, lured to a garage where he was attacked by Mr Harper with a hammer. Mr Harper initially struck the victim to the jaw and the back of the head. When he was on the ground, on his knees, the victim was struck on the left hand. Following a further blow to the left hand, the victim fell to the ground, where Mr Harper continued to hit him with the hammer on his face, back and leg, and kicked him in the ribs and the face.

19 It was a brutal and sustained attack which left the victim with a laceration to the back of his head requiring sutures, multiple facial lacerations, factures to his right eye socket, right cheek bone and nose, and lacerations to the inside of his cheek and tongue.

20 Following a trial, in which Mr Harper unsuccessfully maintained that his actions were in self‑defence, he was convicted of a doing an unlawful act with intent to harm which resulted in bodily harm. Mr Harper was sentenced to 4 years and 6 months imprisonment.

21 Mr Harper's most recent offence was committed on 4 October 2014 when he was on bail for the earlier charge. Mr Harper got into a fight with the victim and the victim's brother outside a nightclub in Rockingham. After the fight had effectively stopped, Mr Harper ran at the victim with a knife and struck him once in the neck before running off. The victim lost almost 900 ml of blood before an ambulance officer arrived. Mr Harper had been consuming alcohol for nine hours leading up to the offence.

22 On this occasion Mr Harper pleaded guilty to doing an act with intent to cause harm as a result of which life, health or safety of the victim was endangered. He was sentenced to a cumulative term of 3 years imprisonment.

23 In a psychiatric report prepared for his sentencing in relation to the 2013 offence, Dr Daniela Barbuzza stated:[3]

Mr Harper impressed as a somewhat angry individual with negative criticism directed at most people in his life, especially authority figures. Rather than any psychiatric disorders, he appears to display characteristics of antisocial personality disorder and perhaps borderline personality traits with his reported attempts at suicide and apparent 'cries for help'. He appears to have underlying criminal attitudes and believes that some people deserve violence. He bases this on rules that he creates that are at times inconsistent with his behaviour, being adamant about protecting females at all times while having a history of domestic violence himself. On the surface, Mr Harper's morals and beliefs may appear just and admirable however they are at times used to justify his use of increasingly more serious violence over time.

Mr Harper has a history of violence that appears to be escalating in seriousness and severity, particularly as he uses weapons, including knives, bricks and hammers, when offending. He engaged in cognitive distortions and justifications for his offending behaviour and seemed to have used manipulation to have his needs met at times, which suggests a lack of appropriate strategies to have his needs met. He also seems to have a poor sense of self worth and low self-esteem stemming from his childhood, which seems to influence his tendency to use violence to avoid appearing 'weak'. These areas should all be targeted during Mr Harper's participation in treatment.

Mr Harper is considered to present a high risk of re-offending in the absence of treatment. It is recommended that he participates in a Violent Offender Treatment Programme offered by the Department of Corrective Services. Given the relationship between Mr Harper's substance use and his offending behaviour (past and present), it is also recommended that he engages in substance use counselling and that his substance use be closely monitored upon his release to the community. This can be achieved through reporting for supervision, and urinalysis. To his credit, Mr Harper seems to have a stable employment history and good support (from his mother and partner), which are considered to be protective factors to violent re-offending, however many historical, clinical and risk management factors are present that need to be addressed within treatment if his risk of re‑offending is to be decreased.

25 During his current term of imprisonment, Mr Harper has participated in various programs, including the Cognitive Skills Think First Program in 2016 and the Violent Offender Treatment Program in 2017. He received mostly positive feedback for these programs.[5]

26 The completion report for the Think First Program stated that he had made a number of gains:[6]

Gains Dimensions

Ability to Solve Problems, Self Management, Ability to Think/Develop Alternatives, Awareness of Consequences, Social Perspective Taking, Impulsivity, Motivation to Change, Motivation to Participate in the Program.

Static Dimensions

Ability to Recognise that Problems Exist, Ability to Set and Achieve Goals/Ambitions, Egocentricity, Cognitive Style, Morals/Values Reasoning, Critical Reasoning.

Summary

At the post course interview, Mr Harper said that he had learned some skills that he hoped may help him to control his anger problem. This was reflected in the gains that he made in the areas of Social Perspective Taking and Impulsivity, where he stated that he thought that he was more able to deal with people without losing his temper. Another area of gain for Mr Harper was in the dimension of Motivation to Change, where he appeared to have an increased enthusiasm to find employment and it is noted he has since found a job within his unit.

27 The completion report for the Violent Offender Treatment Program which is dated 20 October 2017, also speaks of gains, but that other risk management issues were required:[7]

Mr Harper demonstrated an ability to develop and practice appropriate strategies to prevent aggression. He demonstrated this by a reduction in incidents and charges in the unit whilst participating in the program. He will need to continue to manage his emotions, impulsivity, challenge antisocial beliefs and attitudes and use consequential thinking in order to reduce his risk of violence and aggression for the remainder of his sentence and also when he is released to the community. If he is able to do this, he may reduce his risk of reoffending.

Through program engagement, Mr Harper demonstrated an understanding and the ability to utilise assertive communication in difficult situations. He demonstrated an understanding of the fundamentals of communication and the communication process which is considered to be a program gain.

Mr Harper demonstrated an understanding of the relationship between thinking, emotions and behaviour. He was aware that negative thoughts contributed to problematic situations (the concept of tapes), and was able to identify his own such thinking in various exercises. This was considered to be a program gain.

Mr Harper's increased insight regarding the dangers of carrying a weapon and violence is considered a program shift.

Mr Harper's risk management plan included opportunities for employment when released to the community and proposed assistance from family if he needs it. He was proposing to undertake employment based courses/training whilst completing his sentence to enhance his employment prospects. It is recommended that he continue to build upon his risk management plan to ensure his risk of reoffending is further reduced. His inclusion in this program is supported by the facilitators and Mr Harper indicated that he is willing to engage in this program.

The following recommendations are offered should Mr Harper receive a period of supervised release:

• Abide by conditions outlined from: Prisoners Review Board and Community Corrections Officer (CCO).
• Present his Risk-Management Plan to his CCO and continuing to monitor and adapt as required.
• Regular urinalysis.
• Monitor leisure activity levels including encouragement to participate in prosocial activities and building new prosocial friendships.
• Further involvement with service providers to assist him in maintaining abstinence from substance sand assist with achieving an optimum level of emotional and mental well-being.

28 In 2018, Mr Harper was enrolled to complete a Criminal Conduct and Substance Abuse Treatment Program known as the 'Pathways Program'. He was removed from the program due to too many absences, being a disruptive influence in the program, having conflict with three other group members, and his own request to be removed. Mr Harper also missed sessions due to being placed on a punishment regime for an alleged assault against another prisoner. Due to this, his treatment needs, particularly in relation to substance abuse, remain outstanding.[8]

30 I am satisfied that there are reasonable grounds to believe that a court might find Mr Harper to be a high risk serious offender.

32 Mr Harper has a significant history of violent offending, and has most recently committed serious offences within the meaning of the Act in his 2013 and 2014 offending. Those offences were vicious and brutal.

33 Mr Harper's most recent risk assessment places him at a high risk of reoffending. Due to his most recent term of imprisonment he has, to date, been unable to complete all required treatment programs. There is no evidence before me about whether he has engaged in psychological counselling sessions.

34 It is particularly important that an assessment be made of his capacity to remain substance‑use free in the community.

35 On the basis of Mr Harper's 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.

37 The State submits that I should make an interim supervision order pursuant to s 58 of the Act. It does not seek an interim detention order. I am satisfied that I have jurisdiction to do so.

38 Mr Harper is the subject of a pending proceeding and, while he is currently in custody, he will be released on 13 February 2022. For reasons I have previously given, I am satisfied that s 58(2)(b) of the Act applies in relation to a person who would not be in custody on a specified date from which the order is to take effect.[9] The real issue in the present case is whether it is desirable to ensure that the adequate protection of the community that Mr Harper be subject to an interim supervision order as the State does not seek an interim detention order.

40 There are some encouraging features of the Violent Offender Treatment Program Report. I also note that Mr Harper has the support of his family. Both his parents are aware of, and accept his need for, strict conditions upon his release. Mr Harper proposes to live with his father. While he would be subject to a post-sentence supervision order upon his release, in any event in all of the circumstances, I am not satisfied that the conditions of the post-sentence supervision order would adequately meet the requirements of community protection.

41 In particular, the post-sentence supervision order does not enable the use of either electronic monitoring or a curfew. Whether those matters are ultimately necessary will be a matter for the community corrections officer, but I note that Mr Harper's most recent offence occurred in public at night in an entertainment district. It is important, in my view, that community corrections officers at least have the discretion to impose a curfew in relation to him in order to ensure that they have as much scope as possible for the monitoring of his behaviour and performance while on supervision.

42 The imposition of a condition to be subject to a curfew does not require that a curfew be put in place. It merely enables a community corrections officer to do so. And, in my view, that is an appropriate precaution in the present case.

43 In all of the circumstances, I am satisfied that it is in Mr Harper's interests and the interests of the protection of the community that the supervision to which he is subject is as comprehensive as the State is able to provide.

44 For those reasons, I am satisfied that it is desirable to make the interim supervision order proposed.

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

[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).

[2] Affidavit of James Francis Bennett affirmed on 22 November 2021, 82 (Psychiatric Report of Dr Barbuzza dated 25 January 2015).

[3] Affidavit of James Francis Bennett affirmed on 22 November 2021, 85 (Dr Daniela Barbuzza Clinical Psychologist Report, dated 25 January 2015).

[4] Affidavit of James Francis Bennett affirmed on 22 November 2021, 87 ‑ 88 (Dr Daniela Barbuzza Clinical Psychologist Report, dated 25 January 2015).

[5] Affidavit of James Francis Bennett affirmed on 22 November 2021, 101, 116 (Think First Cognitive Skills Program Completion Report, dated 11 April 2016).

[6] Affidavit of James Francis Bennett affirmed on 22 November 2021, 105 (Think First Cognitive Skills Program Completion Report, dated 11 April 2016).

[7] Affidavit of James Francis Bennett affirmed on 22 November 2021, 115 ‑ 116 (Violent Offenders Treatment Program Completion Report, dated 20 October 2017).

[8] Affidavit of James Francis Bennett affirmed on 22 November 2021, 119 (Program Non-Completion Report, dated 10 January 2018).

[9] The State of Western Australia v Hart [2021] WASC 205 [32] ‑ [33] (Quinlan CJ).