The State has filed an application under s 55 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) commencing contravention proceedings in respect of the respondent. In support of the application the State has filed an affidavit of Mr Meertens, counsel, affirmed 24 February 2023 and an affidavit of Mr Goode, Community Offender Monitoring Officer, affirmed 23 February 2023.
The issue that I must decide is whether the respondent may be released on an interim supervision order pending the determination of the new contravention proceedings. Counsel for the Mr Quartermaine submitted that given the circumstances, the interim detention of Mr Quartermaine is not opposed. I find the concession of Mr Quartermaine was properly made and that he must be subject to interim detention pending the determination of the contravention proceedings for the following reasons.
[2]
The procedural history of this matter is somewhat unusual. On 23 February 2023, I dismissed the contravention proceedings that had been commenced in respect of the respondent on 29 September 2022. On 24 February 2023, the State commenced new contravention proceedings relying upon the same factual circumstances. The proceedings have the following procedural history.
On 2 March 2021, Hill J heard the preliminary hearing and determined that there were reasonable grounds for believing that a court might find that the respondent is a high-risk serious offender pursuant to s 46(1) of the HRSO Act.[2] Her Honour made an interim order pursuant to s 46(2)(c)(i) that the respondent be detained in custody until the final determination of the application.
On 9 August 2021, Smith J heard the final hearing and determined that the respondent was a high-risk serious offender and that he should be released on a supervision order.[3] Therefore, the respondent commenced living in the community subject to the stringent conditions of the supervision order.
On 3 March 2022, the respondent was charged with two offences, namely stealing contrary to s 378 of the Criminal Code and using a prohibited drug (amphetamine) contrary to s 6(2)(H) of the Criminal Code.[4] On 4 March 2022, the respondent was charged with one charge of disorderly behaviour in a police station contrary to s 74A(2)(b) of the Criminal Code (which charge was subsequently substituted with one charge of committing an obscene act in a police station contrary to s 202(1)(b) of the Criminal Code), and one charge of assaulting a public officer contrary to s 318(1)(d) of the Criminal Code. On 3 March 2022, the respondent was charged with five charges of contravening his supervision order and on 20 April 2022, five further contravention charges were preferred pursuant to s 80(1) of the HRSO Act.
The contravention charges comprised allegations that the respondent had breached his curfew, visited a female without prior approval, failed to comply with the instruction of his treating psychiatrist, failed to meet with a clinical nurse to administer his medication, failed to attend an appointment with Uniting WA, and by committing those criminal offences.
The respondent was not granted bail in respect to the charges and therefore, was remanded in custody.
On 13 May 2022, the respondent pleaded guilty to all the charges, including the charges contravening his supervision order. The learned magistrate imposed a term of immediate imprisonment of 7 months for the charge of assaulting a public officer contrary to s 318(1)(d) of the Criminal Code. The immediate term of imprisonment was backdated to commence on 4 March 2022. Fines were imposed in respect to the charges of contravening s 80(1) of the HRSO Act and the other charges.
Accordingly, the respondent commenced serving his term of immediate imprisonment with his earliest release date anticipated to be on or about 4 October 2022.
On 29 September 2022, the State commenced contravention proceedings under s 56 of the HRSO Act, relying upon the respondent's convictions on 13 May 2022.
On 30 September 2022, Smith J ordered that the respondent be subject to an interim detention order until 14 October 2022 to permit the respondent to obtain legal representation. On 14 October 2022, Fiannaca J ordered that the interim detention order be extended pending the determination of the contravention proceedings. The contravention proceedings were listed for a final hearing on 2 February 2023.
On 1 February 2023, Allanson J delivered judgement in The State of Western Australia v ACW.[5] Allanson J dismissed the contravention proceedings for the reason that the State commenced the proceedings under s 53(1)(b) of the HRSO Act on the basis that the respondent 'was an offender charged with an offence under s 80(1)', but after the respondent had been convicted of the breach charges in the Magistrates Court. Therefore, at the time the contravention proceedings were commenced, the respondent was not a person charged with an offence.
On 2 February 2023, at the contravention hearing, the respondent submitted that the reasoning of Allanson J applies to his circumstances and that the contravention proceedings should, therefore, be dismissed. I received oral submissions at that hearing. On 9 February 2023, I received written submissions from the State.
On 23 February 2023, I dismissed the contravention proceedings. Accordingly, the respondent was released into the community but subject to the ongoing supervision order.
On 24 February 2023 the State recommenced the contravention proceedings. It was anticipated that the State would do so. In The State of Western Australia v Quartermaine,[6] I stated that whilst the then contravention period proceedings were dismissed, that did not mean the State was unable to commence proceedings against the respondent under pt 4 div 5 of the HRSO Act. That is at the hearing of the matter, both counsel for the State and the respondent submitted that the State was not estopped from recommencing proceedings and obtaining a warrant to bring the respondent before the court.
The contravention proceedings hearing will now be heard on 28 April 2023, being the first date that the experts are available to give testimony.
[3]
Section 56 of the HRSO Act provides that the section applies to a person who is subject to a supervision order in respect of whom proceedings on an application under s 53 are pending.
Section 56(2) of the HRSO Act provides as follows:
[4]
The court may at any time in the pending proceedings -
[5]
(a) if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b) if the offender is not detained in custody, order the offender to be detained in custody.
[6]
Section 56(3) of the HRSO Act provides as follows:
[7]
The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
[8]
(a) releasing the offender is justified by exceptional circumstances; and
(b) the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
[9]
Therefore, I must be satisfied on the balance on probabilities of both matters specified in s 56(3) before I can order Mr Quartermaine's release.
The term 'exceptional circumstances' used in s 56(3) is not defined in the HRSO Act. The term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special or an exception to the general trend of cases.
The standard conditions of the supervision order referred to in s 56(3)(b) are those set out in s 30(2) which provides:
[10]
A supervision order in relation to an offender must require that the offender -
[11]
(a) report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b) report to, and receive visits from, a community corrections officer as directed by the court; and
(c) notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d) be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f) not commit a serious offence during the period of the order; and
(g) be subject to electronic monitoring under section 31.
[12]
As to the phrase 'substantially comply', this was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[7] in the context of contravention proceedings. I apply the reasoning of Fiannaca J.
The relevant questions to be decided are therefore as follows:
Is the respondent's release justified by exceptional circumstances?
If released, will the respondent substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?
[13]
The conduct upon which the applicant relies in support of the contention that the respondent has contravened the supervision order comprises the criminal convictions which I have outlined.
[14]
I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.
[15]
The initial question for my determination is whether exceptional circumstances exist for the purposes of s 56(2) of the HRSO Act. Counsel for the respondent did not submit that there were any exceptional circumstances. I find that there are no exceptional circumstances within the meaning of s 56(3) of the HRSO Act.
[16]
Will the respondent substantially comply with the standard conditions of the supervision order?
[17]
I now turn to the question posed by s 56(3) as to whether the respondent has satisfied me on the balance of probabilities that if he is released, he will substantially comply with the standard conditions of the supervision order, including any amendments made to the standard conditions of the supervision order.
As to whether the respondent will substantially comply with the standard conditions of the order, the onus is on the respondent to establish that he will do so on the balance of probabilities.
When the alleged contraventions are viewed together and in light of other evidence that the State relies upon, there appears to be good reasons for the authorities to be concerned about their ability to manage Mr Quartermaine in the community.
An issue that arises is that Mr Carmichael, Senior Community Corrections Officer, states that the accommodation available to the respondent is now unsuitable. The significant concern is that the respondent is exposed to anti-social influences at the residence which appear to have contributed to the breach offences and contraventions. There is violence and drug use associated with other persons at the residence. The conclusion of Mr Carmichael is that the accommodation now appears inappropriate for his risk management and would likely be detrimental to any future supervision order.
Dr Wojnarowska has expressed the opinion that the respondent remains at a high risk of serious offending and requires disability support under the National Disability Insurance Agency. Dr Wojnarowska stated that the respondent has no insight into his cycle of offending and demonstrates negative and hostile attitudes towards women and authority.
Dr Wojnarowska stated that Mr Quartermaine must be provided with prosocial and appropriate accommodation, such as a psychiatric hostel-type accommodation with support.
On the basis of the information that I have at the time of hearing this application, I am not satisfied that the respondent would substantially comply with the standard conditions if released. In particular, I am not satisfied that the respondent would substantially comply with the conditions regarding supervision by a community corrections officer and compliance with all reasonable directions issued by such an officer.
[18]
Therefore, the respondent will be detained in custody pending the determination of the contravention proceedings.
[19]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[20]
[1] The State of Western Australia v Quartermaine [No 3] [2023] WASC 50.