THE STATE OF WESTERN AUSTRALIA -v- MATIAY [2021] WASC 361 (25 October 2021)

4 If I am so satisfied the State seeks interim orders pursuant to s 46(2) of the Act, including that Mr Matiay undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application.

5 The State also seeks an order that Mr Matiay be detained in custody until the final determination of the application, or alternatively the subject of an interim supervision order, until the final determination of the application.

6 Mr Matiay's counsel conceded that the requirements of s 46 are met in the present case. For the reasons that I will give, I accept that concession.

7 Mr Matiay does not presently have accommodation or support in the community available to him upon the completion of his sentence. Accordingly, Mr Matiay's counsel made no submissions in respect of whether I ought to make a detention order, interim supervision order or any other order.

8 In the circumstances, as submitted by the State, I am satisfied that it is necessary that Mr Matiay be the subject of a detention order pending the final determination of the application.

9 In saying that, efforts should be made to locate appropriate accommodation for Mr Matiay, and I will give liberty to apply to enable an application for an interim supervision order to be brought before me, if the issues that I will outline in these reasons are properly addressed. As counsel for the State and Mr Matiay advised me at the hearing today, both the State and Legal Aid were attempting to address those issues.

10 As noted above, pursuant to s 46(1) 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 Matiay is a high risk serious offender.

11 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 the person to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.

12 A 'serious offence' within the meaning of the Act, relevantly, includes stalking.

13 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]

15 Mr Matiay was most recently convicted in 2019 of assault occasioning bodily harm, obscene acts in public and stalking ('stalking' is, of course, the colloquial term for, and statutory description of, the offence of pursuing another with intent to intimidate contrary to s 338E(2) of the Criminal Code).

16 These convictions arose from two separate incidents.

17 The conviction of an obscene act in public arose from an incident which occurred on 2 July 2019. At around 7.00 pm on that date, Mr Matiay was walking near a park in Bayswater when he saw a 24 year‑old woman who was jogging. When the woman jogged past Mr Matiay a second time, he exposed his penis to her and asked for sex. The victim saw Mr Matiay again a week later at the same park, and about three months after that, while the victim was jogging at the same park, Mr Matiay approached her from behind on a bicycle and tried to speak to her.

18 The convictions of assault occasioning bodily harm and pursuing another with intent to intimidate (stalking) arose from an incident which occurred on 26 October 2019. At around 4.20 am on that date, Mr Matiay followed a 46 year‑old woman walking down St Georges Terrace in Perth. Mr Matiay followed her for approximately 20 minutes. The woman was aware of Mr Matiay's presence and, at one point, hid behind a pillar. Mr Matiay also hid behind a pillar until the woman began to walk back towards him, whereupon he again walked towards her. When the woman asked him why Mr Matiay was following her, he grabbed her hair, pulled her head towards the ground and punched her face in an uppercut motion multiple times. Mr Matiay then began to pull the woman towards an alleyway. The woman broke free from his grip and ran away.

19 The relevant offence for the purpose of the present application is the offence of pursuing another with intent to intimidate, pursuant to s 338E of the Criminal Code.

20 In support of its application, the State relied upon the affidavit of Meagan Elizabeth Hemsley affirmed on 1 September 2021 which contains Mr Matiay's criminal history and several previous reports in relation to him (including a psychological report).

21 The evidence reveals that Mr Matiay has a history of offending beginning in 2009, when he was approximately 15 years of age. I will deal only with his adult offending in these reasons. In a psychological report dated 12 May 2016, Mr Matiay reported that the longest time he has spent in the community in his adult life was six months.

22 Mr Matiay was born in Sudan in 1994 and emigrated to Western Australia in 2004. In a pre‑sentence report dated 12 November 2019 (prepared for sentencing for the most recent offending) and in the 2016 psychological report, Mr Matiay reported that his father was violent and an alcoholic and that his parents separated when he was four years old.

23 Mr Matiay did not attend school in Sudan. According to the reports, he commenced school in grade 6 in Western Australia until grade 10. The pre‑sentence report in 2019, stated that he left school as a consequence of truancy and spending significant periods in detention.

24 Mr Matiay began using alcohol at around 11 years of age, commenced intravenous methylamphetamine use at the age of 13 years and began smoking cannabis at 14 years of age. The 2019 pre‑sentence report stated that methylamphetamine continued to be Mr Matiay's drug of choice.

25 Mr Matiay has also been diagnosed with depression and anxiety, for which he takes medication.

26 In relation to his outstanding treatment needs, the 2016 psychological report stated that Mr Matiay would benefit from a violent offender treatment program, residential drug and alcohol rehabilitation (if he shows commitment and motivation to overcome drug dependency issues) and vocational guidance and support to steer him towards prosocial pursuits.

Mr Matiay's risk and need factors include substance misuse, negative peers, lack of pro-social activities, pro-criminal attitudes, poor impulse control and anti-social patterns of behaviour. Mr Matiay did not take responsibility for his offending, nor was he willing to address any of his treatment needs via a community based disposition. He justified his behaviour by indicating that he was under the influence of alcohol and illicit drugs. Departmental records previously described Mr Matiay as having a 'general degree of apathy and disinterest in treatment to address criminogenic factors and no evidence of forward planning as an incentive to curb an antisocial lifestyle'. This remains to be the case.

Mr Matiay requires intensive intervention to address his treatment needs. He would benefit from intensive substance abuse intervention such as residential rehabilitation and programs to address his violent and sexual offending.

28 A Treatment Assessment Report dated 12 August 2020, annexed to Ms Hemsley's affidavit, stated that:

Based on a current assessment, Mr Matiay presents a very high risk on the LS/RNR for general reoffending and a high risk on the VRS-SV for future violent offending. Also, based on the static 99R and stable 207 combined, Mr Matiay's composite assessment places him in level IVb for supervision and intervention. Individuals placed in the level IVb are considered to be Well Above Average of risk of sexual offending.

In view of his substance use and identified as a high criminogenic need, Mr Matiay is recommended for inclusion in the Pathways treatment program. Participation would afford him the opportunity to explore the link between his substance use and offending behaviour, identify his high risk situations, improve his coping skills, and develop a relapse prevention plan. Please note that the Education and Vocational Training Assessment recommended participation in a Pre Requisite Literacy to Treatment Program, prior to participation in a Pathways program due to Mr Matiay's identified communication skills deficits.

In view of his identified high risk of violent reoffending and criminogenic needs, Mr Matiay is also recommended for inclusion in a Violent Offender Treatment Program. Participation would afford him the opportunity to explore the link between his violent lifestyle and offending behaviour, develop his conflict resolution skills, and improve his emotional management and impulse control.

Mr Matiay is also recommended for inclusion in an Intensive Sex Offender Treatment Program in view of his identified well above average risk of sexual reoffending. Participation would afford him the opportunity to identify his offence pathways, explore his core beliefs and cognitive distortions, improve his communication, attachment and intimacy skills, and develop a self-management plan.

29 This assessment report stated that Mr Matiay 'appeared contemplative in relation to a substance use program, ambivalent about a violence treatment program, and refused to participate in a sex offending program'.

30 The most recent Individual Management Plan in evidence stated that Mr Matiay was assessed by treatment assessors on 13 August 2020 with the following recommendations made: a Pathways program be booked for the third quarter of 2021 at Acacia Prison and a Violent Offending Treatment Program be booked for the first quarter of 2021 at Casuarina Prison. While Mr Matiay was assessed as requiring participation in an Intensive Sex Offender Treatment Program, a program was unavailable.

31 There is no evidence of Mr Matiay having successfully completed any of these programs.

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

34 Mr Matiay has a history of violent offending and offending of a sexual nature (in the sense that his offending has included obscene behaviour and stalking).

35 Mr Matiay's most recent offending, which included obscene acts, stalking and violence directed towards women unknown to him, who were simply going about their business in public, presents an ominous picture of Mr Matiay's risk, if he is not able to address his unmet treatment needs.

36 The evidence indicates a pattern of relapsing into drug use and reoffending each time Mr Matiay has been released into the community. Mr Matiay has undergone little rehabilitative treatment to address his offending behaviour. The most recent reports indicate that he still remains a risk and requires further treatment to reduce this risk.

37 On the basis of Mr Matiay'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 and for Mr Matiay to be examined by a psychiatrist and qualified psychologist for the purposes of preparing reports to be used at that hearing.

38 In the meantime, the State submits that I should make an interim detention order pending the determination of the restriction order application.

39 Mr Matiay's offending is the kind of offending history that ought to be able to be managed in the community with appropriate support, safeguards, and supervision. While Mr Matiay's offending is of course serious, it is not at the level of seriousness often seen in other persons who have become subject of the Act. It ought to be possible, in my view, to manage his risk in the community.

40 There are, however, two matters that currently stand in the way of Mr Matiay being effectively managed in the community in such a way as to reduce the risk to the public.

41 The first is the availability of appropriate accommodation. The most recent assessment reports in relation to Mr Matiay's connections in the community included the following, from the 2020 Treatment Assessment Report:

Mr Matiay informed he had very little support in the community, which has endured in prison with no contact with family or friends. He was resistant to discussing his relationships, but conceded that he has regularly assaulted his mother, sisters and ex-partners in the context of interpersonal conflict and deficits in communication, emotional regulation, and impulse control. Mr Matiay explained that he wanted the freedom to live his life without expectations, obligations, or consequences, thereby justifying his reactive violence to those who challenged his lifestyle. He recalled a traumatic childhood, including exposure to violence, racism, bullying and social rejection, which has resulted in hypervigilance and hypersensitivity to other people's comments and behaviour; as well as a preference to isolate himself from the outside world. Mr Matiay informed that he is no longer concerned about other people, including his family. He informed negative life experiences had fuelled his substance abuse, and comments appear to indicate a lack of culpability and externalisation of blame on others for causing his substance abuse and subsequent offending behaviour. Mr Matiay appears to ruminate on negative events and conceded he consumed alcohol and drugs to self-medicate. He did not present with optimism with regard to his future, nor does he believe that anyone will help him.

42 Based on the evidence before me, there is presently no suitable accommodation available to Mr Matiay in the event that he is released into the community.

43 The only accommodation referred to in the evidence was a therapeutic day centre identified in an affidavit of Medine Christina Minock affirmed on 19 October 2021. That day centre is not an accredited drug and alcohol service, nor does it receive funding from the Department of Justice or any other agency. It is, rather, privately run accommodation in relation to which there is no evidence before me as to its suitability to deal with the risks posed by Mr Matiay. Mr Matiay's counsel did not submit that it was an appropriate form of accommodation.

44 The second obstacle to Mr Matiay being supervised in the community, which is also reflected in the passage from the treatment assessment report reproduced above, is Mr Matiay's apparent resistance to engaging in any meaningful way with the assistance that is available to him.

45 Mr Matiay's belief, referred to at the end of that passage, that there is no‑one who will help him is wrong.

46 On the contrary, Mr Matiay has legal representatives who have endeavoured to speak with him, without much success. To that end I was advised today that counsel will be travelling to meet with Mr Matiay in person, in order to assist him in relation to these proceedings. In addition, the Community Offender Monitoring Unit have been endeavouring to assess and locate appropriate supported accommodation. While it may not be apparent to Mr Matiay, there are indeed people who are willing to help him and to assist him in living a prosocial lifestyle. There is, however, only so much those people can do without his cooperation. Mr Matiay needs to meet them halfway.

47 In the circumstances, in light of the lack of suitable accommodation, and in light of the lack of indication that Mr Matiay is properly disposed to engage in efforts to assist him, I am not satisfied that an interim supervision order would provide sufficient protection for the community. For that reason, I will make an interim detention order pending the determination of the application. In doing so, I stress what I have said earlier in these reasons: that Mr Matiay ought to be able to be managed in the community, subject to a supervision order, and steps ought to be taken to engage with him and to arrange appropriate accommodation to enable that to occur.

48 In all of the circumstances, it is particularly appropriate in this case that there be liberty to apply in relation to a supervision order application in the event that the issues I have identified can be addressed. In the meantime, I will make orders for the hearing of the restriction order application.

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

[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).