THE STATE OF WESTERN AUSTRALIA -v- WOODWARD [2021] WASC 78 (9 March 2021)

4 If the court is so satisfied, it must make programming orders, including fixing a date for the hearing of the restriction order application.[4]

5 The State also sought an order that the respondent be detained in custody until the restriction order application had been determined.

6 For the purposes of the preliminary hearing, the State filed an affidavit of Brent Douglas Meertens, affirmed on 8 October 2020 (Meertens Affidavit). That affidavit summarises the history of the respondent's offending and the various reports prepared in relation to the respondent's treatment in prison and risk of reoffending. It also annexes the relevant court records and reports.

7 In 1995, the respondent was sentenced to 7 years' imprisonment for sexual offences against his step‑granddaughter. The offending occurred in 1985 ‑ 1991, when the child was 5 ‑ 11 years old. The offending included a penile‑vaginal penetration when the child was 9.

8 In 2004, the respondent was sentenced to 2 years' imprisonment for sexual offences against his step‑grandson. The offending occurred in 1992 ‑ 1993, when the child was 4 years old. The offending included sucking the child's penis.

9 In 2011 and 2012, the respondent was dealt with on two occasions in relation to sexual offending against a 5‑year‑old neighbour. The offending included three sexual penetrations. Two were penile penetrations of the child's anus. The third was an act of cunnilingus. The respondent was sentenced to a total effective prison sentence of 10 years' imprisonment for these offences. One of the sentencing judges noted, among other things:[5]

Based on what is in the psychologist's report, there appears to be no real prospect of successfully rehabilitating you. I find that you are at high risk of reoffending.

10 The State can apply for a restriction order where the offender is serving a sentence for a serious offence as defined under the HRSO Act, there is a possibility of release within a year of the application, and the offender is not already subject to a restriction order or interim supervision order.[6]

12 The offence of sexual penetration of a child under 13 years of age is a serious offence as defined under the HRSO Act.

13 The application was filed on 12 October 2020. There is a possibility of release on 13 July 2021.

14 The respondent is not already subject to a restriction order or interim supervision order.

(1) whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender; and

(2) if the answer to the first question is yes, whether a detention order should be made to detain the respondent in custody after his current sentence expires and until these proceedings are complete.

16 The respondent did not seek to argue that there were not reasonable grounds for believing that the court might find that the respondent is a high risk serious offender. I am nevertheless required to determine this issue.

17 The respondent initially submitted that an interim detention order should not be made. However, ultimately, the respondent simply sought liberty to apply to the court to replace an interim detention order with an interim supervision order. Until at least 13 July 2021, the respondent will remain in custody on his current sentence, regardless of whether an interim detention order is made.

Might the court find that the respondent is a high risk serious offender? Legal framework

18 The first question asks whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender. That is, whether there are reasonable grounds for believing it is possible such a finding would be made.[7]

19 For there to be 'reasonable grounds' for believing something, the[8]

facts and circumstances [must] be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief. This is not to say that it requires proof on the civil standard of the existence of that matter. Facts and circumstances that suffice to establish the reasonable grounds for a belief may include some degree of conjecture.

20 Section 7(1) of the HRSO Act contains the definition of the term 'high risk serious offender'. It provides:

An offender is a high risk serious offender if the court dealing with an application under this Act finds that it 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 offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

21 In The State of Western Australia v ACW [No 2],[9] I set out the principles to be applied by a court when considering whether a person is a high risk serious offender. I have those principles in mind when considering whether I am satisfied that a court might find that the respondent is a high risk serious offender.

22 In deciding whether a person is a high risk serious offender, the court must have regard to the factors set out in s 7(3) of the HRSO Act.

23 A court making such a decision may receive into evidence, among other things, any medical, psychiatric, psychological or other assessment relating to the respondent, information indicating whether or not the respondent has a propensity to commit serious offences in the future, and the respondent's criminal history.[10]

24 Accordingly, I am required to determine whether there are reasonable grounds to believe that a court might find that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, and having had regard to the factors set out in s 7(3), that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.

(1) the facts of the sexual offending and the sentencing remarks;

(2) numerous reports prepared by psychologists, community corrections officers, and program providers; and

(3) the respondent's criminal history.

27 These materials could support the following conclusions, relevant to the s 7(3) factors:

(1) The respondent has a propensity to sexually offend against children.

(2) To the extent that there is a pattern to his offending, it is to sexually offend against children in his home, when no other adults are present.

(3) The respondent has participated in at least six sex offender treatment programs. However, the extent to which he was trying to address the causes of his behavior is unclear. His treatment gains have been limited.[11] In the most recent of the psychological reports provided to me, a report of 2011 by Ms Hasson (Hasson report), Ms Hasson said '[i]t would appear that [the respondent] has acquired little more than an intellectual understanding of his offending and has been able to meet program requirements through developing an understanding of what he is required to say when challenged about his offending'.[12]

(4) The programs do not appear to have had a positive effect on the respondent. He committed the most recent, and serious, offences against the child neighbour after having undertaken five of those programs.[13] The facilitators of the fifth program recommended that he have no unsupervised contact with young children.[14] He committed the most recent serious offences when alone with the 5‑year‑old neighbour in his home. In the Hasson report, Ms Hasson said '[h]is behavior indicates a complete disregard for or any adherence to a relapse prevention or self‑management plan to guard against further offending'.[15] She said that any therapeutic gains were questionable.[16]

(5) The respondent has a long history of serious sexual offending, over nearly 25 years.

(6) In the Hasson Report, Ms Hasson assessed the respondent as being a high risk of sexual reoffending.[17] Subsequent reports from others tend to suggest there has not been any reduction in that risk.[18] The respondent is a risk to all children, regardless of sex and whether they are within his own family unit.[19]

(7) The respondent is not remorseful[20] and lacks insight.[21]

28 The reports currently available do not address that risk in terms that distinguish between 'serious offences' under the HRSO Act and other offences. However, all of the offences the respondent committed against children, other than an offence of willful exposure, were 'serious offences'. In my view, the materials could support a conclusion that there is a high risk that the respondent would commit a serious offence if released into the community.

29 I am satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.

30 Accordingly, it is appropriate to make the orders sought by the State for the obtaining of reports and the fixing of a final hearing date. At the final hearing date, the question of whether the respondent is a high risk serious offender can be determined.

31 Having found that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender, the next question is whether a detention order should be made to detain the respondent in custody after his current sentence expires and until these proceedings are complete.

32 In considering this question, the relevant factors include (numbering added):[22]

1. [T]he relative strength of the applicant's case that the respondent represents an unacceptable risk to the community and may commit an offence before the application can be finally heard.

2. [T]he extent to which the court can be confident that any such risk will be sufficiently minimised by the respondent's adherence to the supervisory conditions and other requirements of his personal undertaking.

3. [T]he undesirability of depriving the respondent of his liberty prior to the application being finally determined. In the event that the court ultimately dismisses the application or alternatively makes a supervision order, any interim detention of the respondent will have been unnecessary and possibly damaging to the long-term interest that the community has in him maximising the chances of future rehabilitation.

33 There will be more evidence available at the final hearing than is currently available. The additional evidence will include new reports from a psychiatrist and a psychologist. Among other things, these reports will no doubt address the impact of the respondent's advancing age. He is now 78 years old. There may come a time when his mobility is impaired to the point it impacts on his ability to reoffend or on the level of control required to protect the community from the risk of reoffending. However, on the material currently available, I consider that there is a strong case that the respondent's risk of reoffending is high. If he was to reoffend in the way he has offended in the past, the impact on the victim(s) would be very serious. In my view, on the current materials, there is a strong case that he represents an unacceptable risk to the community.

34 I have considered whether the risk could be reduced or mitigated to an acceptable level by making an interim supervision order under s 58. In my view, it cannot.

35 I accept that conditions could be imposed that would reduce the risk if they were complied with. However, I doubt the effectiveness of any conditions that would be dependent upon the respondent's cooperation, insight or recognition of high risk situations. The respondent has previously shown a complete disregard of measures designed to guard against further offending, with devastating results.

36 Finally, I take into account that it is a serious matter to keep the respondent in custody after he has served the terms of imprisonment that the judges who imposed them thought represented a just punishment. I take into account that the court may ultimately not make a restriction order, or may make a supervision order as distinct from a detention order.

37 The hearing of the restriction order application is to be listed for 3 ‑ 4 August 2021. As noted earlier, until at least 13 July 2021, the respondent will remain in custody on his current sentence. Accordingly, the maximum time period during which he would remain in custody due to the interim detention order prior to the hearing would be three weeks. However, it is no small thing to detain a person in custody after the expiration of his sentence for even one day.

38 Having regard to all of the circumstances, I have come to the conclusion that an interim supervision order would not adequately ensure protection of the public.

39 Accordingly, I would make an interim detention order.

40 For these reasons, I will make orders in terms of the applicant's minute of proposed orders, with some additions to allow the respondent to file affidavit evidence if he wishes to do so, and to provide for the filing of written submissions.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Archer

[1] A 'restriction order' is a continuing detention order or a supervision order - see the definition in s 3 of the HRSO Act. See also s 26(1) and s 27(1).

[6] HRSO Act s 35 and the definition of 'serious offender under restriction' in s 3 of the HRSO Act.

[7] The State of Western Australia v Cox AKA Roe [2020] WASC 344 [15].

[8] Prior v Mole [2017] HCA 10; (2017) 261 CLR 265 [4] (Kiefel & Bell JJ). See also [73] (Nettle J) and [98] ‑ [100] (Gordon J).

[9] The State of Western Australia v ACW [No 2] [2020] WASC 480.

[10] HRSO Act s 84(5), incorporating s 7(3).

[11] Meertens Affidavit pages 254 ‑ 255.

[13] Meertens Affidavit page 232. See also page 249.

[17] Meertens Affidavit page 232. See also page 250.

[18] See, for example, Meertens Affidavit pages 254 ‑ 255.

[20] See, for example, Meertens Affidavit pages 248, 249.

[21] See, for example, Meertens Affidavit pages 252 ‑ 253.

[22] Director of Public Prosecutions for Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [2006] WASC 160 [62] ‑ [64].