THE STATE OF WESTERN AUSTRALIA -v- UNDERWOOD [2022] WASC 1 (18 January 2022)

4 In this case, the State seeks that Ms Underwood be subject to an interim detention order.

5 At the hearing on 16 December 2021, I expressed concerns as to the amount of information available to me in relation to how Ms Underwood might be safely managed in the community. On the face of the material before me, I indicated that the Court would benefit from more information as to any potential community supervision program that may be suitable for Ms Underwood, before the preliminary hearing is determined.

6 Counsel for Ms Underwood also expressed concern, in light of his contact with Ms Underwood, that she did not have a full understanding of the proceedings. As will be apparent, Ms Underwood has a complex psychiatric presentation.

7 I therefore adjourned the preliminary hearing to 17 January 2022.

8 On that day, following submissions from the parties, I was satisfied that there are reasonable grounds for believing that the Court might find that Ms Underwood is a high risk serious offender. I also ordered that Ms Underwood be detained in custody pending the hearing of the restriction order application.

Ms Underwood, I can see that you have had a really hard life and that you have been treated really badly by other people. None of that is your fault but it has meant that you have committed a lot of crimes that have really hurt other people. And over the past five or six years the people you have hurt have been getting worse injuries.

I am satisfied that a court might find that you are what the law calls a high risk serious offender, so the law says that I have to order that doctors and psychologists speak to you and prepare reports about you. I am going to do that and then a judge is going to look at all of that and then decide whether you are a high risk serious offender.

From what I have seen, you need a lot of help and you haven't been getting all of the help that you need. Again, that's not your fault, but it does mean that you have kept committing crimes and hurting people.

And my main concern is that if you leave prison now, when you haven't been properly treated, that you will hurt someone so badly that you might end up in prison for a very, very long time. That would be bad for you, bad for your kids and bad for the whole community.

And I think that it is just too risky for you to leave prison now. If you could be released to another place, which isn't a prison but where you and everyone else can be safe, I would do it. But the evidence that I have doesn't identify such a place. Maybe there is one. Maybe everyone can work harder to find one. But right now I am going to make an order that you stay in custody until the judge hears the case. If someone finds a better way to manage you in the community they can come back to court and ask for you to be released on supervision, but right now I am going to make an order that you stay in.

I will give more reasons later but that's all I need to say to you now.

10 I said that I would publish my reasons later. These are my reasons.

11 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 Ms Underwood is a high risk serious offender.

12 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 from the community against an unacceptable risk that the person will commit a serious offence.

13 A 'serious offence' within the meaning of the Act, relevantly includes an act or omission causing bodily harm or danger, done with intent to harm (contrary to s 304(2) of the Criminal Code). Ms Underwood is currently serving a term of imprisonment for such an offence. She also has previous convictions for other serious offences and for other offences of violence.

14 According to s 46(1) of the Act, 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]

(a) an affidavit of Daniel Sean McDonnell affirmed on 12 November 2021, which contains Ms Underwood's criminal history and several previous reports in relation to her, including a number of pre‑sentence reports and program completion reports;

(b) an affidavit of Daniel Sean McDonnell affirmed on 6 December 2021, which contains additional reports in relation to Ms Underwood including a psychiatric report of Dr Larissa Harding dated 8 September 2020;

(c) an affidavit of Ms Nadine Minnock affirmed on 9 December 2021. Ms Minnock is an Acting Team Leader based at the Community Offender Monitoring Unit; and

(d) an affidavit of Ms Minnock affirmed on 12 January 2022.

16 Ms Underwood is now 41 years old. She was born in Western Australia and has one biological sibling. As I will come to later, Ms Underwood describes a traumatic childhood that appears to have profoundly affected her psychological make‑up.

17 The evidence reveals that Ms Underwood has a long history of offending, including violent offending. While many of the violent offences for which she has been convicted are not classified as 'serious offences' within the meaning of the Act, they nevertheless provide relevant evidence in relation to Ms Underwood's risk generally.

18 The offence for which she was most recently sentenced was that of doing an act causing bodily harm with intent to cause harm, contrary to s 304(2) of the Criminal Code.

19 The circumstances of that offence were as follows.

20 On 20 November 2018 at approximately 6.40 pm, the victim was standing near the loading bay of the Coles supermarket in Galleria Shopping Centre, Morley, when he saw Ms Underwood approaching from the other side of the carpark and yelling at him. The victim told Ms Underwood to go away. Ms Underwood returned to a nearby shopping trolley containing a backpack and retrieved a silver serrated knife from the backpack. The knife was approximately 30 cm long with a sharp, two‑pronged end.

21 Ms Underwood ran at the victim and began stabbing and slashing him. Ms Underwood and the victim were not known to one another and the attack was entirely unprovoked. The victim eventually managed to grab the knife off Ms Underwood, and Ms Underwood walked away.

22 The victim received lacerations to his hand, ear, lip, left upper arm, right arm and puncture wounds to his left abdomen and chest. He required significant treatment, including stitches and surgery for his hand and ear. As the learned sentencing judge recognised, the nature of the attack was such that the effect on the victim could have been much worse.

23 The offence was committed within a week of Ms Underwood having been released from an earlier term of imprisonment for violent offending.

24 Ms Underwood pleaded guilty and was sentenced on 13 November 2020. It is apparent from the transcript of the hearing and the psychiatric report of Dr Harding that, while Ms Underwood did not seek a trial of issues and accepted that she fell to be sentenced on the basis of the facts stated by the State, she did not accept those facts. Rather, as Dr Harding reported, Ms Underwood maintained that she had been 'defending herself' and that her victim was the brother of a policeman who had arrested her in the past. Other material in evidence before me (such as a pre-sentence report) record that Ms Underwood was suspicious of the victim's behaviour and believed she was being 'set up'. None of Ms Underwood's accounts of the offence appear to have any basis in reality.

25 Ms Underwood was sentenced to 3 years 2 months imprisonment, backdated to 20 November 2018.

26 The random nature of the offence committed by Ms Underwood on 20 November 2018 was not an isolated event. Ms Underwood's offending dates back to 1995 and includes unlawful wounding in circumstances of aggravation, acts or omissions causing bodily harm, unlawful act with intent to cause harm, unlawful assault causing bodily harm in circumstances of aggravation, assault of a public officer, armed robbery, criminal damage by fire and indecent assault.

27 By way of illustration, a few of the more recent examples of Ms Underwood's history of violence may be noted.

28 On 5 November 2016, following a verbal altercation with him, Ms Underwood attacked her partner in public. She attacked him with a large kitchen knife causing a 7 cm laceration to his left wrist and a 3 cm laceration to his right wrist. When the victim picked up his bag for protection and held it against his body, Ms Underwood stabbed the bag four times with the knife. Ms Underwood was convicted and sentenced for unlawful wounding on that occasion. Ms Underwood was also convicted of assaulting this partner in 2013. She had kicked him to the head a number of times and stomped on his head.

29 The previous year, on 28 September 2015, Ms Underwood was drinking with family and friends and got into an argument with another woman (who was older than her). Ms Underwood pushed the woman to the ground and assaulted her with a heavy garden ornament, striking her twice to the head and face. The victim suffered lacerations and facial fractures, and was left with scarring. On that occasion Ms Underwood was convicted and sentenced for doing an act causing bodily harm.

30 The numerous other attacks by Ms Underwood on strangers include striking a 69‑year‑old shire ranger on the face with a large rock (in 2011), assaulting a woman who was with her son, by repeatedly punching the woman to the face and head (2006), and attacking a stranger in a hotel with a glass ashtray causing a deep cut to the victim's face (in 2003). Ms Underwood also has multiple convictions for assaulting public officers.

31 Ms Underwood had a traumatic and unstable upbringing, marred by domestic violence and sexual abuse. That upbringing deprived her of the love, safety and protection that all children should be entitled to expect and has, evidently, profoundly affected her personal and social development. She has a long history of substance abuse, that has included alcohol, heroin, cocaine and methylamphetamine.

32 The pre-sentence report prepared prior to her most recent sentencing hearing aptly summarises Ms Underwood's personal history and the effect that it has had on her:

Ms Underwood has suffered significant trauma and grief throughout her life and has self medicated with illicit substances and alcohol to alleviate the associated thoughts. Her trauma and substance use appears to have impacted on her mental health which she has not addressed via professional assistance. Her substantial use of substances particularly alcohol has been problematic for most of her adult years and when intoxicated behaves in a belligerent manner which is evidenced by her Court history and current offence. She has undertaken programs previously to address her substance use however as her use is so entrenched she has not been able to maintain any strategies she may have learnt. She also associates with others who consume substances and behave in an anti-social manner and therefore she has minimal chance or opportunity of making any pro-social changes until such time [as] she removes herself from her peers. Ms Underwood's extensive history of violence is extremely concerning. Given Ms Underwood's life experiences she appears to normalise violence as a means of conflict resolution and becomes hypervigilant when she perceives she is being threatened. She then reacts violently which she justifies. Her violence may be exacerbated when she is intoxicated.

Ms Underwood has a raft of complex issues and risk factors as indicated above which will require intensive, long term intervention to address, most notably her mental health and associated trauma, substance abuse and violence.

33 Ms Underwood has three children of her own. They are aged between approximately 13 and 23 years but were all removed from her care by the Department of Communities, Child Protection and Family Support. According to the pre-sentence report Ms Underwood has not seen her youngest child since he was a baby.

34 Dr Harding's report of 8 September 2020 is the only psychiatric or psychological report in the evidence before me.

35 Dr Harding's discussion and opinions in relation to Ms Underwood's presentation were as follows:

Although Ms Underwood did not present with acute depressive, manic or psychotic symptoms, her thoughts were showing a pre-occupation with sexual assaults and being persecuted and assaulted by Police. She did not present with any logical or consistent explanation of her claims. Her presentation is complex, and her claims warrant further assessment to exclude chronic persecutory (psychotic) phenomenon. At this stage, I cannot rule out a secondary goal and suggest arranging a psychological assessment to conduct a psychometric testing including MMPI-II (Minnesota Multiphasic Personality Inventory) and a malingering assessment.

Ms Underwood's [sic] has Cluster B Personality Disorder (combination of Antisocial and Borderline Type) characterised by the presence of a pervasive pattern of disregard of the rights of others, deceitfulness, failure to conform to social norms with respect to lawful behavior; and affective instability from an early age. She has ongoing impulsivity and aggressiveness manifested by multiple physical altercations, reckless disregard for safety of self and others, and consistent irresponsibility. Her record and presentation demonstrated a lack of guilt or remorse. Some of her inconsistencies in reporting might have been related to minimization and justification of her behavior, and a propensity for impression management and blaming of external factors/others.

Ms Underwood's symptoms began in teenagerhood and stemmed from adverse childhood experiences, parental neglect, and significant developmental trauma. Ms Underwood learnt from an early age to regulate her symptoms and cope with trauma by using solvents, illicit substances (cannabis, opiate, benzodiazepines, and methamphetamines) and alcohol. She became addicted to alcohol and substances and was likely supporting her habits by antisocial behavior.

Ms Underwood fulfills criteria for Alcohol and Substance Use Disorder characterised by a long-standing and problematic pattern of alcohol and various illicit substance use with development of tolerance and withdrawal.

Ms Underwood reported ongoing symptoms consistent with some but not all features of PTSD (Post-Traumatic Stress Disorder). Ms Underwood previously engaged with trauma counselling services such as SARC and a counselor/psychologist in custodial settings. She described psychological treatment as beneficial and indicated her interest and motivation to start this treatment if it would be recommended or offered.

36 Dr Harding also made numerous recommendations in relation to assessment and treatment:

I suggest psychological testing to rule out malingering. I also suggest a psychiatric re‑evaluation for assessment of risk of violence following the suggested psychological tests.

Ms Underwood is not linked with mental health services at this stage. However, given the complexity of her presentation, associated risk and diagnostical dilemma I suggest monitoring of her mental state by prison mental health services and by the prison psychiatrist.

Ms Underwood has ongoing problems related to past sexual and multiple traumas and ongoing personality disturbances. The main treatment for these problems is psychotherapy. She would benefit from psychological input and I respectfully suggest referring her to a counselling and anger management course (in custody and in the community).

Ms Underwood would benefit from drug and alcohol counselling in custody and attendance at a residential rehabilitation facility such as Harry Hunter Rehabilitation Centre after her release.

Ms Underwood would require significant social support and assistance with accommodation and reintegration into the community.

37 Despite the clear need for further psychiatric evaluation and for intensive, long term professional intervention by mental health professionals, no meaningful steps appear to have been taken in that regard. Psychological testing has been recommended; it has not occurred. Psychiatric re‑evaluation has been recommended; it has not occurred. Psychotherapy has been recommended; it has not occurred. Counselling and an anger management course have been recommended; they have not occurred. Drug and alcohol counselling have been recommended; they have not occurred.

38 The most recent reports in evidence are a Treatment Assessment Report and Individual Management Plan dated 3 March 2021 and 16 March 2021 respectively.

39 The Treatment Assessment Report includes an assessment of Ms Underwood's risk of re‑offending and concludes:

Based on the current assessment, Ms Underwood presents as very high risk on the LS/RNR for general offending and as high risk on the VRS‑SV for violent reoffending. Given Ms Underwood's poor emotional control, her poor problem solving, antisocial attitudes, cognitive distortions, her lack of victim empathy, ongoing alcohol misuse and pattern of violent behaviours, it is recommended that she complete the Choice Change and Consequences (CCC) program. It is expected that the CCC will be the best fit to address her current treatment needs.

Responsivity matters: Ms Underwood denies responsibility for her current offending and displayed a tendency to minimise her previous offences. A history of unaddressed trauma is linked to her offending behaviours.

40 A little under two weeks later, the Individual Management Plan recorded that the Choice Change and Consequences program recommended for Ms Underwood was unavailable prior to her date for release.

41 At the hearing before me, Ms Underwood provided documentation indicating that she attended a violence prevention program conducted by the National Drug Research Institute, Beyond Violence. Beyond Violence is being trialled in Australia and Ms Underwood was one of five women who participated in the program at Bandyup Prison. In a letter dated 21 October 2021 the facilitators of the program spoke highly of Ms Underwood and her commitment to self‑improvement.

42 Ms Underwood also provided completion certificates for a program about emotional intelligence and a parenting program.

43 I am satisfied that there are reasonable grounds to believe that a court might find Ms Underwood to be a high risk serious offender.

44 Ms Underwood has a significant history of violent offending and has most recently committed a serious offence within the meaning of the Act. She did so within a week of being released from prison. Of most significance, in relation to the pattern of Ms Underwood's offending, are the following matters.

45 First, it appears that the level of violence (including the use of dangerous weapons) has escalated with Ms Underwood's most recent offences. In relation to the offence for which she is currently serving a sentence, the learned sentencing judge observed that there was a 'real chance that an even more serious injury might have occurred' and that 'it doesn't take much to kill someone when a knife has been involved'. I agree with those remarks. There are, in my view, reasonable grounds to believe that Ms Underwood's use of violence is increasing in its severity (and therefore in its potential consequences).

46 Secondly, Ms Underwood has a history of attacking complete strangers, in circumstances that appear random and unpredictable. As Ms Underwood's most recent offence (and indeed earlier offences) demonstrate, there appears to be little way of knowing what will 'set her off' and cause her to resort to violence. In that regard, Ms Underwood's pattern of offending, in my view, at least prima facie supports the view expressed in the most recent pre‑sentence report that 'she appears to normalise violence as a means of conflict resolution and becomes hypervigilant when she perceives she is being threatened'.

47 Thirdly, an important aspect of this last opinion is that Ms Underwood becomes hypervigilant when she perceives she is being threatened. Ms Underwood's history of offending suggests that there is a significant disconnect between Ms Underwood's perception of the intentions of others, and the threats posed by them, and the reality of those intentions and threats. On the available evidence there are reasonable grounds to believe that the 'disconnect' between Ms Underwood's perception and reality are a product of her childhood experiences, parental neglect and significant developmental trauma. While those factors, no doubt, mitigate Ms Underwood's personal moral responsibility for her behaviour, they underscore the risk that such behaviour will recur without the kind of intensive intervention that has been called for.

48 In my view, Ms Underwood's pattern of violent offending and substance abuse, along with her significant unmet treatment needs, provide reasonable grounds to believe that she is at risk of violently reoffending and committing a serious offence upon release into the community. There are reasonable grounds to believe that, without the kind of supervision and assistance that a restriction order would be expected to provide, Ms Underwood could return to violent offending and do so quite unpredictably.

49 For these reasons, I am satisfied there are reasonable grounds to believe that a court might find Ms Underwood to be a high risk serious offender.

50 For that reason, I made orders for the hearing of the restriction order application and for Ms Underwood to be assessed by a psychiatrist and qualified psychologist for the purpose of preparing reports to be used in the hearing. In this case, as proposed by agreement between the parties, I also made orders that Ms Underwood be assessed by a neuropsychologist.

51 In the meantime, the State submitted that I should make an interim detention order under s 46(2)(c) of the Act pending the determination of the restriction order application.

52 I recognise that to order that a person be detained in custody beyond their sentence pending the determination of an application under the Act is a serious step to take. I acknowledge that such an order should only be made where it is required for the adequate protection of the community. Nevertheless, in the present case, based on the material before me, I do not consider that the risks posed by Ms Underwood can presently be adequately managed in the community.

54 On the evidence that is available to me, Ms Underwood is a troubled person with a complex psychological make‑up that is a consequence of her deprived childhood. That evidence suggests that she has a significant need for intensive psychotherapeutic intervention. In that regard, I accept that Ms Underwood is motivated towards self‑improvement, as the facilitators of the Beyond Violence program attest and that she has made her own efforts in that regard.

55 Nevertheless, past experience strongly suggests that, however well‑intentioned she may be, Ms Underwood is unable to rely upon her own internal resources to address her long‑standing pattern of violence. Either the various authorities and agencies charged with responsibility for Ms Underwood's rehabilitation will assist her to do so, or it will not happen at all. Thus far I can see no evidence of any targeted psychological intervention. In those circumstances I can have no confidence that Ms Underwood will not reoffend with the same rapidity and the same degree of violence that she did on the last occasion that she was released.

56 In that context, it is not in the interests of the protection of the community, or in Ms Underwood's interests, for her to be set up to fail, by release on supervision when she is not ready for it. Needless to say the consequences of Ms Underwood offending again in the manner she has in the recent past could well be dire, if not fatal.

57 My intimation, on 16 December 2021, that there might be more information as to any potential community supervision program that may be suitable for Ms Underwood did not bear much fruit. Ms Minnock's second affidavit advised that '[w]ithout the necessary and comprehensive risk assessments provided by the experts', 'there are no measures additional to those already posed that can be put in place to mitigate the risks Ms Underwood poses'.

58 Nor can I be satisfied that Ms Underwood's risk would be adequately managed at the accommodation that has been proposed, were she to be released under supervision. The first proposed accommodation, raised at the hearing on 16 December 2021, was for Ms Underwood to reside with her long term partner. Ms Underwood's partner is a vulnerable man, who suffers from a brain injury. He has been the victim of Ms Underwood's offending in the past, including the offence committed on 5 November 2016 which (like her most recent offence) involved the use of a knife. I cannot be satisfied that that accommodation would be safe for Ms Underwood's partner or provide the kind of stability that she clearly needs.

59 More recently, Ms Underwood identified potential accommodation with her uncle in an outer metropolitan suburb. Ms Underwood's uncle lives in a two bedroom property and her sister is already residing there. Her uncle has his own health issues and is on dialysis. I am not satisfied that that accommodation would provide the kind of structure that Ms Underwood requires either.

60 Without foreclosing any residential option for the future, in my view, a person in Ms Underwood's position, with the complex needs that she has, and the risks that she poses, would best be accommodated in a residential setting, other than a prison, with appropriate professional supports. No such option appears to be available; at least none has been identified in the evidence before me. In the absence of such an option, in my view, Ms Underwood will need to live independently. I am not presently satisfied that she can do so, while also attending to the outstanding treatment needs that she has.

61 For these reasons I ordered that Ms Underwood be detained in custody pending the determination of the restriction order application. That order does not prevent Ms Underwood from applying for an interim supervision order in the meantime, in the event that circumstances change that make it desirable to make such an order.

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

[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).