Attorney General v Damd by his guardian ad litem the Public Advocate - [2025] WASC 460

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ATTORNEY GENERAL -v- DAMD by his guardian ad litem the PUBLIC ADVOCATE [2025] WASC 460
CORAM:   GETHING J
HEARD:   22 OCTOBER 2025
DELIVERED          :   5 NOVEMBER 2025
FILE NO/S:   CLMI 5 of 2024
BETWEEN:   ATTORNEY GENERAL
Applicant
AND
DAMD by his guardian ad litem the PUBLIC ADVOCATE
Respondent

Catchwords:

Criminal Law (Mental Impairment) Act 2003 (WA) - Respondent subject to a limiting term which had expired - Application for an extended custody order - Turns on own facts

Legislation:

Criminal Code (WA) s 283
Criminal Law (Mental Impairment) Act 2023 (WA) s 7 s 110 s 114 s 265

Result:

Extended custody order made for a period of 2 years

Category: B

Representation:

Counsel:

Applicant	:	Mr J Lloyd
Respondent	:	Ms K Gorski

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid - Perth - Criminal Law Division

Case(s) referred to in decision(s):

Attorney General v PHB by his guardian ad litem Alan Van Der Steen [2025] WASC 312
Attorney General v WAW [2025] WASC 324

GETHING J:

Introduction

By application filed 10 December 2024, the Attorney General for Western Australia (Applicant) has applied for an extended custody order (ECO) in relation to the Respondent (whose name has been anonymised pursuant to a suppression order).
In 1993, the Respondent was charged on indictment with 10 offences, the most serious of which were three charges of attempting to unlawfully kill a person pursuant to Criminal Code (CC) s 283(1). The Respondent was tried before Walsh J and a jury in the Supreme Court sitting in Broome. On 12 April 1995, following a three‑day trial, he was found not guilty of eight counts on the indictment on the grounds of unsoundness of mind (it was not necessary for the jury to deliver verdicts on the remaining two counts as they were pleaded as statutory alternatives) (Index Offending). The effect of the jury's verdicts was that, while they were satisfied beyond reasonable doubt as to the elements of each offence, they were also satisfied that the Respondent was not criminally responsible for the acts constituting those offences by reason of his mental disease or natural mental infirmity. Walsh J ordered that the Respondent be kept in strict custody subject to the Governor's pleasure pursuant to CC s 653.
Upon the commencement of the Criminal Law (Mentally Impaired Accused) Act 1996 (Repealed Act), the Respondent became a 'mentally impaired defendant' within the meaning of pt 5 of the Repealed Act and subject to a custody order under that Act.
The Repealed Act was, in turn, repealed by the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act), which commenced operation on 1 September 2024. The transitional provisions in CLMI Act pt 14 provided that a custody order under the Repealed Act in effect immediately before the commencement day, had the effect as if it were a custody order made under pt 5.[1] The CLMI Act then required the Director of Public Prosecutions to apply to the Court under CLMI s 261 for a limiting term to be set in respect of the Respondent's then existing custody order. On 21 October 2024, McGrath J set the limiting term at 11 years.
[1] CLMI Act s 254.
As the limiting term expired prior to the date on which it was set, by CLMI Act s 265(2) the existing custody order continues to operate until an order is made under CLMI Act s 265(6). That subsection provides that the Supreme Court must:
(a)make an order discharging the person from the existing custody order; or
(b)make an order under pt 7 div 5 (which deals with ECOs).
For the reasons which follow, the appropriate order in respect of the Respondent is an ECO of two years' duration.

Evidence

At the hearing on 22 October 2025, counsel for the Applicant tendered a Book of Materials (BOM) pursuant to CLMI Act s 123(4). Counsel also tendered a copy of the Respondent's current National Disability Insurance Scheme (NDIS) plan dated 9 October 2025.
The Applicant also adduced oral evidence from:
(a)Emily Secker, a Senior Community Corrections Officer (SCCO) from Adult Community Corrections (ACC) responsible for supervising the Respondent, and the author of a Review Report to the Mental Impairment Review Tribunal (Tribunal) dated 29 August 2025 (2025 Tribunal Report);[2]
(b)Nicola Lloyd, a SCCO and the author of the ACC 'Extended Order Assessment' report dated 13 August 2025 (2025 ACC Report);[3] and
(c)Dr Edward Petch, a psychiatrist, being the author of the report prepared pursuant to CLMI Act s 106(3), dated 29 July 2025 (Petch 2025 Report).[4]
[2] BOM Vol 5, pages 1905 - 1908.
[3] BOM Vol 5, pages 2006 - 2109.
[4] BOM Vol 5, pages 1928 - 2005.
The Respondent attended the hearing with the assistance of a Communication Partner appointed pursuant to CLMI Act s 21. He did not give or adduce evidence.
The Applicant relied on written submissions filed 16 October 2025 (Applicant's Submissions). The Respondent relied on written submissions filed 10 October 2025 (Respondent's Submissions).

Legal principles

The objects of the CLMI Act are set out in s 7(1) in the following terms:
(1)The objects of this Act are as follows —
(a)to ensure the protection of the community;
(b)to ensure persons with mental impairment who are charged with an offence —
(i)are identified early in their contact with the justice system; and
(ii)are given a reasonable opportunity to become fit to stand trial; and
(iii)are given a fair hearing even if they are unfit to stand trial in accordance with ordinary procedures; and
(iv)are not found to have committed the offence unless, on the evidence available, it can be proved to the ordinary criminal standard of proof that the person committed the offence; and
(v)are subject to the least possible interference with their rights and dignity;
(c)to ensure that persons who are subject to supervision orders —
(i)are afforded procedural fairness in relation to the administration and management of those orders; and
(ii)are reintegrated into the community in a safe manner.
When performing functions under the CLMI Act, by s 7(2) the court must have regard to the following principles (so far as are relevant):
(a)that persons with mental impairment should be subject to the least possible restriction on their freedom consistent with the protection of the community;
(b)that persons with mental impairment in the justice system should have access to advocacy services;
(c)that persons with mental impairment in the justice system should be provided with the best possible treatment, care and support;
(d)that persons with mental impairment in the justice system should be dealt with in a manner that is culturally appropriate;
(e)that persons with mental impairment in the justice system should not be subject to outcomes under this Act that restrict their freedom more severely than if they had been convicted of the offence that they have been found to have, or are alleged to have, committed;
…
(k)that victims of offences committed by persons with mental impairment should have the opportunity to be acknowledged and heard;
(l)that the role of carers and families in the treatment, care and support of persons with mental impairment should be recognised.
CLMI Act s 8 then provides that the paramount consideration for the court to consider when performing its functions is the protection of the community.
CLMI Act pt 7 provides for the making of ECOs and Community Supervision Orders (CSO). Proceedings under this part are civil proceedings.[5]
[5] CLMI Act s 101.
CLMI Act s 103 provides that the Tribunal must consider the need for an ECO in respect of supervised persons, which relevantly includes a person subject to a custody order. The Tribunal must, as soon as practicable, report to the Minister on the need for an ECO in respect of the person.[6] In such a report, the Tribunal must recommend that the Minister apply for an ECO if it is satisfied that it is necessary to ensure the adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[7] Following receipt of the Tribunal's report under CLMI Act s 103, and having regard to it, the Minister may apply to the Supreme Court for an ECO under s 105(1) in respect of the supervised person.
[6] CLMI Act s 103(3).
[7] CLMI Act s 103(4).
If an application is made for an extended order in respect of a supervised person, then by CLMI Act s 106(1)(a) the court must order that the person be examined by a psychiatrist, psychologist or other appropriate expert and that a report be prepared and submitted to the court. Orders to this effect were made by the Chief Justice on 28 January 2025, along with related programming orders.[8]
[8] Pursuant to CLMI Act s 106(1)(b).
An ECO 'is an order that, subject to this Act, a supervised person be detained in custody at a place determined from time to time by the Tribunal under pt 6 div 3 for the protection of the community'.[9]
[9] CLMI Act s 109(1).
The power of the Supreme Court to make an ECO is found in CLMI Act s 110(1). It is to be made for a term set by the court. The test to be applied is contained in CLMI Act s 110(3):
Before making an extended custody order, the court must be satisfied, by acceptable and cogent evidence and to a high degree of probability, that, to ensure the adequate protection of the community against an unacceptable risk that the supervised person will commit a serious offence, it is necessary to make an extended custody order in respect of the supervised person.
A 'serious offence' means an offence listed in CLMI Act Schedule 1.
If the court is not satisfied as to the matter in CLMI Act s 110(3), it may make a CSO in respect of the supervised person.[10] If the court does not make an ECO or a CSO in respect of the supervised person, it must make an order discharging the person from their existing custody order.[11]
[10] CLMI Act s 110(4).
[11] CLMI Act s 265(6).
The test in CLMI Act s 110(3) is similar, but not identical, to the test contained in High Risk Serious Offenders Act 2020 (WA) (HRSO Act) s 7(1).[12] One difference is that the HRSO Act provides that the State has the onus of satisfying the court that the person is a high risk serious offender.[13] The CLMI Act does not contain any provisions regarding onus. However, in practical terms, unless the Applicant places sufficient material before the court for it to be satisfied of the matters in CLMI Act s 110(3) or s 114(2), the court is not empowered to make the relevant order and must discharge the person. I agree with the observation of Lemonis J in WAW:[14]
Ultimately, my current thinking is that the Minister needs to ensure there is acceptable and cogent evidence before the court directed to the criteria in s 110(3) and which facilitates a fair hearing of the application for an ECO. That approach affords flexibility as to what needs to be put before the court. In all likelihood, that approach will often lead to a more truncated hearing in respect of applications for an ECO, in comparison to applications for a restriction order under the HRSO Act. That being said, it should not be thought that a more truncated hearing gives rise to unfairness. As a general observation, in my experience, truncated hearings often bring to light more readily the critical information that the court needs to consider.
[12] See generally: Attorney General v WAW [2025] WASC 324 [54] - [60] (WAW).
[13] HRSO Act s 7(2).
[14] WAW [82].
One significant difference is that where the court is satisfied under the HRSO Act that a person is a high risk serious offender, the court must make a restriction order.[15] In contrast, under the CLMI Act, where the court is satisfied that the threshold condition is met, the court may make an ECO.[16] However, as Lemonis J observed in WAW:[17]
… if the court is satisfied it is necessary to make an ECO to ensure adequate protection of the community, almost inevitably the court would exercise the power to make such an order. I say 'almost inevitably' in recognition that there might be some unique scenario which militates against the making of an ECO, although at the moment I cannot think of one.
[15] HRSO Act s 48(1).
[16] CLMI Act s 110(1).
[17] WAW [73].
Bearing the differences in mind,[18] I again agree with the observation of Lemonis J in WAW that principles applicable to the assessment of whether a person is a high risk serious offender are an important guide in assessing whether to make an ECO.[19]
[18] WAW [59].
[19] WAW [60].
As to the test in CLMI Act s 110(3), I agree with the observation of Lemonis J that:[20]
… the question of whether a person 'will commit a serious offence' is assessed by reference to whether the person will do an act, or make an omission, that would constitute a serious offence, irrespective of whether the person has sufficient mental capacity to be criminally responsible for that act or omission. Thus, in making the assessment, the court does not take into account the prospect that the person might be found not guilty of the 'serious offence' under s 27 of the Code. This approach accords with an object, and the paramount consideration, of the CLMI Act being the protection of the community. That object and paramount consideration would be significantly eroded if the assessment of the risk the person will 'commit' a serious offence took into account whether the person would have sufficient mental capacity to be criminally responsible for their conduct.
[20] WAW [45].
I also agree more generally with his Honour's distillation of the principles pertaining to whether to make an ECO:[21]
[21] WAW [67] - [72], [74] - [75] (references omitted).
Consistently with the approach taken under the HRSO Act, the scheme of the provisions pertaining to the making of an ECO requires the court to do no more than is necessary to achieve adequate protection of the community. This arises from the use of the words 'adequate protection' and 'necessary' in s 110(3) of the CLMI Act, and from the principles enunciated in s 7(2)(a) and s 7(2)(e). Further, while the paramount consideration of the CLMI Act is the protection of the community, that is not the sole consideration. The consideration of the protection of the community has to be assessed by reference to the particular provision that is engaged, and not in the abstract. In that respect, the language of s 110(3) directs attention to what is necessary to achieve adequate protection of the community and nothing more.
The assessment of whether the threshold condition at s 110(3) is met requires the following two stage evaluation:
1.whether there is an unacceptable risk that the supervised person will do an act or make an omission that would constitute a serious offence, irrespective of whether the person has sufficient mental capacity to be criminally responsible for that act or omission; and
2.if so, whether it is necessary to make an ECO to ensure the adequate protection of the community against that unacceptable risk.
The evaluation of whether the risk is unacceptable requires the court's judgment as to the nature and extent of the possible harm. That assessment directs attention to the possible 'serious offences' that might be committed and the harm they may cause. It also directs attention to the likelihood that the offender might commit such offences.
A person's mental impairment is part of their characteristics and thus informs the assessment of risk. Their mental impairment will also inform the assessment of whether it is necessary to make an ECO to ensure adequate protection of the community.
It should not be assumed that if the court finds there is an 'unacceptable risk', it automatically follows that it is necessary to make an ECO to ensure adequate protection of the community. Consistent with the approach taken under the HRSO Act, the assessment of 'necessity' requires recognition that a person's entitlement to be at liberty should not be lightly denied. That approach takes account of, but does not give primacy to, the principles set at s 7(2)(a) and s 7(2)(e) of the CLMI Act.
Moreover, the assessment of necessity must have regard to the other protective options available under the CLMI Act, in particular whether the making of a community supervision order provides adequate protection of the community. If it does, then it will not be necessary to make an ECO to ensure the adequate protection of the community against the unacceptable risk.
…
The limiting term for an ECO needs to be set in accordance with the scheme of the provisions. It follows that the term should be no longer than is necessary to achieve adequate protection of the community.
The phrase 'high degree of probability' used in s 110(3) is also used in the HRSO Act and was used in the DSO Act. The phrase has been said to connote a standard that is more than the civil standard of 'balance of probabilities' but less than the criminal standard of 'beyond reasonable doubt'… That approach should be adopted in respect of the use of the phrase in the CLMI Act.
The application of the test in CLMI Act s 110(3) was also considered by Lundberg J in Attorney General v PHB by his guardian ad litem Alan Van Der Steen.[22] Like Lemonis J in WAW, Lundberg J was of the view that the principles relating to HRSO Act 7(3) provide useful guidance as to the test in CLMI Act s 110(3). Specifically:[23]
[22] Attorney General v PHB by his guardian ad litem Alan Van Der Steen [2025] WASC 312 (PHB).
[23] PHB [56] (references omitted).
1.An evaluation is first required as to whether there is an unacceptable risk that the offender will commit a serious offence in the future, in the absence of any measures that would provide adequate protection of the community against that risk.
2.Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the possible harm… An 'unacceptable risk' is a risk that is not trivial or transient.
3.The assessment of the nature and extent of the possible harm directs attention to the possible serious offences that might be committed and the harm they may cause. It also directs attention to the likelihood that the offender might commit such offences (that is, the likelihood the risk might eventuate). The extent to which deterrent factors have operated to reduce risk in the past is relevant to the assessment of current and future risk, as is the offender's historical and current response to rehabilitation. These are all factors that inform the assessment of whether the risk is 'unacceptable', but they are not exhaustive.
4.If the risk is found to be 'unacceptable', the nature and extent of that unacceptable risk then informs the evaluation or assessment as to whether an extended custody order is necessary to ensure adequate protection of the community. This assessment, that is whether the order is necessary, requires recognition that an offender's entitlement to be at liberty is not lightly to be denied, and the various objects and principles described in s 7(1) and s 7(2) of the CLMI Act.

5.The 'high degree of probability' standard is a higher standard than the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt, and is otherwise a standard that is incapable of further definition…
6.The Court does not have to be satisfied that there is a high degree of probability that the offender will commit a serious offence. Rather, it is the necessity to make, in the case of the CLMI Act, a custody order in relation to the offender to ensure the adequate protection of the community against an unacceptable risk that offender will commit a serious offence that must be proved to the requisite standard.

7.An evaluation of the level of risk according to the objects of the CLMI Act is required, informed by the need to ensure adequate protection of the community as the paramount consideration.

As mentioned, if the court is not satisfied as to the matter in CLMI Act s 110(3), it may make a CSO in respect of the supervised person.[24] The test to be applied is set out in CLMI Act s 114(2):
Before making an extended community supervision order, the court must be satisfied that, to ensure the adequate protection of the community, the supervised person should remain under supervision due to the person's rehabilitation, retraining or resocialisation requirements.
[24] CLMI Act s 110(4).
In PHB, Lundberg J considered how this test is to be construed, which I again agree with and adopt:[25]
The composite phrase, 'rehabilitation, retraining or resocialisation requirements', which is used in s 114(2), is used elsewhere in the legislation… The phrase is not defined, nor are the constituent words. The text should be given its ordinary and natural meaning, subject to context and purpose. Further, the absence of any prescriptive definitions of these terms emphasises that these concepts are likely to be fact sensitive.
In the context of the CLMI Act, and without being exhaustive, the term 'rehabilitation' generally refers to the restoration of a person to their former health or to a life free of drugs and alcohol. A rehabilitation requirement would include a recommended step or plan which is necessary or appropriate to return the person 'to a good, healthy, or normal life or condition after they have been in prison, been very ill, etc.'…
The term 'retraining' refers generally to the process of training someone again, and captures a broad range of vocational training and programmes, although it is possible the term also extends beyond training solely for employment purposes. A retraining requirement would include a recommended step or plan to prepare a person for future vocational endeavours.
The term 'resocialisation' refers generally to a process of educating someone for their resumption of normal social activities in the community and, again, it captures a broad range of matters directed to this purpose. A resocialisation requirement would include a recommended step or plan to educate a person 'to behave around others in a way that is considered suitable or normal, for example after difficult experiences that have affected their behaviour'…
As to this last term, the ordinary meaning of the term is largely consistent with the language used in respect of the defined term 're‑socialisation programme' in the Sentence Administration Act 2003 (WA)… Within that legislation, the defined term extends to the equipping of a prisoner for 're-entry into the general community', and addresses matters such as 'drug and alcohol use', 'mental and physical health', 'attitudes and social control', 'institutionalisation and life skills', 'housing', 'financial support and debt', and 'family and community networks'.
The use of the term 'requirements' in the provision, and elsewhere in the legislation where the composite concept is used, would at least refer to specific and identified steps or plans which the person is required to undertake or which have been appropriately recommended. I accept that the term is not confined to such matters, and its reach may be broader.
It should at least be possible, however, for the applicant to identify a causal link between the 'requirement' and the protection of the community through supervision by a representative of the Adult Community Corrections division.
[25] PHB [211] - [217] (references omitted).
Unlike the position in HRSO Act s 7(3), there are no matters which the court must have regard to in determining whether to make an ECO pursuant to CLMI Act s 110(1). I agree with the observation by Lundberg J in PHB that:[26]
The absence of an express list of materials or factors emphasises that each application for an extended custody order must be approached on its particular facts, and assessed by reference to:
(a)the statutory language employed within s 110, particularly the terms of s 110(3) itself;
(b)the context as it emerges from pt 7 of the CLMI Act and the legislation as a whole;
(c)together with the objects, principles, and the paramount consideration identified in s 7 and s 8 of the legislation.
[26] PHB [57].
The matters set out in CLMI Act s 123(4) on which the court may receive evidence provides an indication of the matters which may be relevant:
Things that the court may receive in evidence for the purpose of determining the application include the following -
(a)any document relevant to the supervised person's antecedents or criminal record;
(b)anything relevant contained in the official transcript of any relevant proceeding against the person;
(c)any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the person;
(d)any report that a psychiatrist, psychologist or other appropriate expert prepares under this Part and the extent to which the person cooperated when the expert examined the person;
(e)any other medical, psychiatric, psychological or other assessment relating to the person;
(f)information indicating whether or not the person has a propensity to engage in conduct that could constitute a serious offence in the future;
(g)information indicating whether or not there is any pattern of offending behaviour on the part of the person.
CLMI Act s 47(1) sets out matters to which the court must have regard when making an order under pt 5, which includes a custody order made pursuant to s 46(1). Those matters are not exhaustive.[27] In respect of an adult, those matters are:
[27] CLMI Act s 47(2).
(a)the protection of the community;
(b)the nature of the offence and the circumstances of its commission;
(c)the person's character, antecedents, age and health;
(d)the nature of the person's mental impairment;
(e)the relationship between the mental impairment and the offending conduct;
(f)the degree of risk that the person appears to present to themself or the safety of the community because of their mental impairment;
(g)the extent to which adequate resources are available for the treatment, care and support of the person in the community;
…
CLMI Act s 47(1) is not directed to the making of an ECO, which is made under pt 7. However, I again agree with Lemonis J that, in most cases, the factors set out in s 47(1) will likely be useful factors to have regard to in assessing the criteria of 'unacceptable risk' and 'necessity' prescribed by s 110(3).[28] Lundberg J, in PHB, adopted a similar approach.[29]
[28] WAW [81].
[29] PHB [61] - [62].
That being so, and setting out the factors in a more logical order, I have assessed the evidence in the present application under the following headings:
·The Respondent's personal circumstances;
·The Index Offending and the circumstances of its commission;
·Other instances of violence;
·The nature of the Respondent's mental impairment;
·The relationship between the Respondent's mental impairment and the instances of violence;
·Whether or not there is any pattern of offending behaviour on the part of the person; and
·The efforts made to rehabilitate the Respondent to date.
I then consider:
·Whether there is an unacceptable risk that the Respondent will commit a serious offence;
·If so, whether it is necessary to make an ECO to ensure the adequate protection of the community against that unacceptable risk; and
·If not, whether, to ensure the adequate protection of the community, the Respondent should remain under supervision under an ESO due to his rehabilitation, retraining or resocialisation requirements.

The Respondent's personal circumstances

The Respondent was born in Broome and was 19 years of age at the time of the Index Offending. He is now 52 years of age.
The Respondent identifies as part of the Bardi Yawuru people. He grew up with a large family, including eight siblings. His father is from the Yawuru Tribe whilst his mother is from the Beagle Bay community. He travelled between Derby, Djarindjin, Lombadina, One Arm Point, Beagle Bay and Broome, usually residing with family members. His mother passed away in around 2020 and he was allowed to attend her funeral. The Respondent has regular contact with his father, who in recent times has visited him regularly in prison. Since commencing his leave of absence (LOA), the Respondent now visits his father in the community, along with his siblings and extended family and enjoys visiting their homes.[30]
[30] BOM Vol 5, page 2014.
He completed his formal education when he was 15 years of age. When he left school he had a number of jobs.
The Respondent states that as a child, he was sexually abused by a man on Broome, the man whom he subsequently attempted to kill. Dr Petch opines that the 'amount of trauma he experienced in his young life may have been significant'.[31]
[31] BOM Vol 5, page 1994.
The Respondent started sniffing petrol as a child and commenced using alcohol and cannabis at approximately 14 years of age. He used oral amphetamines throughout his late teens and early 20s. He also used LSD intermittently. He had an early involvement with the criminal justice system which I discuss later in these reasons.
Since the Index Offending, he has spent some 26 years in custody. The remainder of the time he was on release orders which I will again set out in more detail later in these reasons.
Following the Index Offending, the Respondent was diagnosed with chronic schizophrenia and has been assessed as having cognitive deficits that are chronic and persistent. I will also go into more detail about the Respondent's mental impairments later in these reasons.
On 23 August 2018, the Office of the Public Advocate and Public Trustee were respectively appointed the Respondent's plenary guardian and administrator. These orders were made on the basis that the State Administrative Tribunal was satisfied that the Respondent was:
(a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b) in need of an administrator of his estate;
(c) incapable of looking after his own health and safety;
(d) unable to make reasonable judgments in respect of matters relating to his person;
(e) in need of oversight, care or control in the interests of his own health and safety; and
(f) in need of a guardian.
These orders are due for review by 1 August 2026.[32]
[32] BOM Vol 6, pages 2050 - 2051.

The Index Offending and the circumstances of its commission

The offences for which the Respondent was found not guilty on account of unsoundness of mind on 12 April 1995 were as follows:[33]
(a)attempted murder contrary to CC s 283(1) (count 1);
(b)stealing a firearm contrary to CC s 378 (count 3);
(c)stealing a motor vehicle contrary to CC s 371A and s 378 (count 4);
(d)attempted murder contrary to CC s 283(1) (count 5);
(e)making a threat with intent to prevent or hinder the doing of an act by a person who was lawfully entitled to do that act contrary to CC s 338A(c) (count 6);
(f)going armed in public without lawful occasion in such a manner as to cause terror contrary to CC s 68 (count 7);
(g)making a threat with intent to prevent or hinder the doing of an act by a person who was lawfully entitled to do that act contrary to CC s 338A(c) (count 8); and
(h)attempted murder contrary to CC s 283(1) (count 9).
[33] BOM Vol 1, pages 16 - 17, 223 - 224; BOM Vol 5, page 2023 [3].
The offence of attempted murder is a 'serious offence' as defined in Schedule 1 of the CLMI Act. The offences the subject of counts 3, 4, 6, 7 and 8 are not serious offences under the CLMI Act.
The Index Offending was committed in two incidents.
The first was on 19 October 1993. At about 9.00 pm, the Respondent went to the home of the victim in Broome. He believed that the victim had sexually abused him when he was a twelve-year‑old child. During the incident, the Respondent stood in the doorway of the victim's residence with a knife and lunged at him striking him on his hand. The victim tried to push the Respondent out of the unit. During the struggle the Respondent slashed the victim with a knife several times. The victim was taken to hospital and treated for knife wounds including three wounds on the left side of his abdomen, a slash wound across his left hand and fingers, as well as a slash wound to the back of his right arm. The Respondent made full admissions to stabbing the victim with the intention of stabbing him to death as he continued to believe the victim was a child molester.
The second was on 29 November 1993. After being released on bail for the offending which occurred on 19 October 1993, the Respondent was living with his uncle who had firearms in his house. The Respondent retrieved one of those guns without consent. He then discharged the firearm out of the window of his sister's car with two children present. He proceeded to steal the car. He drove to the unit of the same victim as the 19 October offending. The Respondent saw that the victim's car was at the address and started yelling and swearing at him. He then raised the rifle, and from a short distance fired two shots at the unit, intending to kill the victim. The victim was inside and immediately called police. The Respondent sped off, ramming the victim's car on his way. A high‑speed chase with Police then ensued. During this chase, the Respondent threatened police by lifting his rifle outside the window and pointing it at an officer, as well as a civilian.
On the same date, the Respondent then went back to the victim's house and again pointed the rifle at a police officer to prevent the officer pursuing him. The officer fled the scene. The Respondent got back in the car and police chased him. The Respondent lost control of the car, abandoned it and ran away on foot still carrying the rifle. Police were yelling at him to drop the gun. The Respondent stopped running, turned around and pointed the rifle at an officer from a short distance away with the intention of firing the rifle to kill the officer. When the Respondent failed to drop the gun, the officer fired a warning shot into the ground. The Respondent then dropped the rifle and got on the ground before he was arrested. The Respondent made admissions to attending the victim's address in order to kill him: 'Those things in my mind tell me to do it'. He also made admissions to pointing the rifle at police 'to kill them'.

Other instances of violence

The first conviction recorded on the Respondent's criminal history was in 1990[34], at age 15, however it appears that the Respondent first interacted with the criminal justice system at the age of 10.[35]
[34] BOM Vol 1, page 9.
[35] BOM Vol 5, page 1936.
Between 1990 and 1994 the Respondent committed around 30 offences. These included multiple convictions for assaults, public disorder, firearms offences, offences relating to cannabis and driving offences. This included in December 1991 when he was sentenced to six months' imprisonment and in April 1992 when he breached probation and was sentenced to 18 months' imprisonment. Following his release in June 1993, the Respondent committed the Index Offending, in October and November 1993. He spent 506 days in custody on remand for the Index Offending.
It is instructive to consider the instances of violence by the Respondent after the Index Offending in the context of the custodial arrangements which he was subject to at the time. There is a most helpful chronology of the custodial arrangements to which the Respondent was subject to and the instances of violence recorded in the Petch 2025 Report.[36] This is supplemented by the material in the 2025 ACC Report.
[36] BOM Vol 5, pages 1942 - 1943.
Throughout 1996 until October 1998 the Respondent was admitted to the Frankland Centre. During this time, the Respondent made unprovoked attacks on other patients and staff.[37]
[37] BOM Vol 5, page 1945.
Between 26 October 1998 and 26 January 2004, whilst subject to the existing custody order, the Respondent was released into the community subject to a conditional release order (CRO). However, during this time he also spent some periods in the Frankland Centre over at least six separate admissions. This was due to his psychiatric symptoms placing his family, with whom he was staying, in harm. There are comments to the effect that his illness had been exacerbated by non-compliance with his medication regime, the use of cannabis and the use of alcohol.[38]
[38] See generally: BOM Vol 1, page 368; BOM Vol 5, pages 1946 - 1947.
On 27 January 2004, the Respondent was arrested and returned to custody in relation to two charges:[39]
(a)one count of unlawful wounding contrary to CC s 301(1), committed on 27 January 2004; and
(b) one count of indecent assault contrary to CC s 323, committed on 14 January 2004.
[39] BOM Vol 1, pages 10 - 15, 258 - 266.
The unlawful wounding charge related to the Respondent leaving his residential address in Broome and walking up the street to the victim's address. The Respondent walked up to the front door of the victim's unit and knocked on the door. The victim opened the door, and the Respondent kept trying to open the security door of the unit, after several attempts he opened the security door. The victim ran from the unit towards her neighbour's house. The Respondent followed her with a long, serrated edge kitchen knife in his hand. The victim either slipped or was pushed to the ground by the Respondent who then began thrusting the knife at her in a stabbing motion several times. One of the blows hit her in her right hand causing a laceration to her fingers and another hit her on the forearm. A neighbour came to the rescue of the victim and the Respondent got off the victim and ran from the scene.
The charge of indecent assault involved the Respondent being alone with his 13-year‑old niece watching TV. His niece was lying on the couch when he took off his clothes, approached the victim, climbed on top of her whilst he was completely naked with his knees either side of her. The victim screamed, pushed the Respondent off her, and ran away to her mother's room.
Because of the further offending, on 13 February 2004 the Mentally Impaired Accused Review Board (Board) cancelled the CRO.
On 16 September 2004, the Respondent was found unfit to stand trial for the offences of unlawful wounding and indecent assault. A further custody order was imposed. The Respondent was unconditionally discharged from this second custody order by the Governor in Executive Council on 15 July 2024.[40]
[40] BOM Vol 1, pages 267, 290.
After the Respondent returned to custody he was readmitted to the Frankland Centre. Whilst there in June 2005 he assaulted another patient in response to paranoid delusions. He moved back into the prison system spending time at Hakea, Roebourne Regional Prison, Broome Regional Prison and Casuarina Prison. Whilst in prison he assaulted prison officers on 26 May 2009, 19 June 2009 and 24 June 2009. The first appears to have been connected auditory hallucinations. The second and third are recorded as being unprovoked.
On 9 March 2010 the Respondent again assaulted a prison officer, punching the officer in the face many times without warning or obvious reason. He appeared to have chronic negative symptoms of schizophrenia at the time.
On 24 December 2010 at Acacia Prison the Respondent assaulted another prisoner whilst queuing for his evening meal.

On 31 July 2014, the Respondent assaulted another prisoner.
On 25 March 2015, the Respondent assaulted another prisoner.
The medical reports for the periods in between the assaults record the Respondent's mental state to have been relatively stable.
In November 2019, the Respondent assaulted another prisoner.
Whilst at Broome Regional Prison, the Respondent incurred over 15 incidents of unprovoked physical assaults on other prisoners between 5 March 2017 and 14 June 2023. The Respondent received prison sanctions as well as a brief transfer to West Kimberley Regional Prison. However, it appeared to not improve behaviours as he continued to incur incidents of physical assaults. Further, whilst he was attending a capacity building activity at Bankwest Broome, the Respondent assaulted a security guard on 23 December 2022.
Recommendations were made to increase the Respondent's security rating and transfer to a more suitable facility. This resulted in him being transferred to Acacia Prison on 16 June 2023. Whilst at Acacia Prison the Respondent incurred several incidents of physical assault. On 21 December 2023, 28 July 2024, 28 August 2004, 1 November 2024 and 27 December 2024 he assaulted other prisoners by punching them to the face. He received prison sanctions.
The Respondent was transferred from Acacia Prison to a regional prison on 9 January 2025 following a Tribunal appearance on 8 November 2024.
Since being at the regional prison, he recorded one incident of violence. This was on 5 March 2025 when he punched another prisoner to the head without provocation.[41]
[41] BOM Vol 5, page 1906.
On 18 August 2025, the Respondent assaulted a support worker from Yadah Care Services (Yadah) whist in the community on a LOA. Yadah provides the Respondent with community, supported accommodation and social services pursuant to his NDIS funding. The incident is described in the 2025 Tribunal Report by Ms Secker in the following terms:[42]
On the 18.08.2025 an incident was reported by Yadah Care Services, where [the Respondent] punched one of his support workers to the face without warning. The support worker immediately asked [the Respondent] why he had done so, with [the Respondent] walking away with no explanation. Upon the staff member further approaching [the Respondent], he reported acknowledged his mistake, expressed remorse and apologised to the support worker with a handshake. When another staff member spoke to [the Respondent] about this incident, he again apologised and stated it occurred as he believed the support worker was going to assault his father and thought he must defend him. This behaviour is consistent with [the Respondent's] previous unprovoked use of violence, appearing to be triggered by him misreading body language. To avoid further incidents of a like nature, Yadah Care Services have implemented strategies including to ensure safe distances are kept between [the Respondent] and his relatives to avoid triggering further misunderstanding from [the Respondent].
[42] BOM Vol 5, page 1907.
The Tribunal, having considered this report, and noting the incidents at [69] and [70], confirmed its LOA order.[43]
[43] BOM Vol 5, pages 1924 - 1925.
There have been no further incidents.[44]
[44] ts 22.10.25, page 18.
Two themes emerge from this evidence. The first is that the Respondent has an entrenched tendency to resort to violence, including unprovoked violence, whist in custody. The second is the offending appears to correlate to his mental state. He appears much less likely to offend when his mental state is stable. In relation to this Dr Petch opines:[45]
He seemed to function reasonably well in prison. The routine and structure provided by the regime may have suited him. Sometimes there were difficulties in prison, but these minor and were not persistent. He never used alcohol or, I understand, drugs in prison. He did not usually cause significant difficulties in prison: in the main he was reported to have been polite, respectful to staff, and cooperative. His psychosis has fluctuated. He has been on continuous treatment. There have been times when he has been relatively stable, but at other times he has described various psychotic symptoms. The negative features of his schizophrenia slowly emerged, and his psychotic symptoms were most evident when he assaulted staff or other prisoners which occurred from time to time.
…
On the face of it this suggests from the records that I have seen that the rate of assaults may be increasing in frequency. There may be a number of explanations for this. The first is that this may be an artifact if not all previous assaults have been accurately recorded. Tolerance to the assaults may have reduced over time so latterly all assaults may have been documented whereas they were not previously. Over time the seriousness of the assaults may have changed.
It is also possible that the rate of assaults have in fact been steadily increasing. This is possible and there may be a number of possible reasons for this. [The Respondent] has been noted in the past to be sensitive to changes in dose of medication. At times he may have suffered from a variety of side effects, some of which he may have found difficult to bear and may have had an impact upon his demeanour and reduced his tolerance. Over time he may have become less tolerant to prison life which can be very challenging at times. The nature of his schizophrenia may also be changing, and he may be becoming less able to contain himself when psychotic phenomena occur.
The nature of the assaults appears to be similar over time. The characteristic assault is quick, a single punch, and is not often sustained. These would not appear to constitute serious violence as set out in Schedule 1 of the Act. (One more serious and sustained assault on a prison officer resulting in concussion and compensation might have fallen into the bracket of GBH but no changes appear to have been bought.) For the most part [the Respondent] is usually described as relatively stable and well, until shortly afterwards when an incident occurs. This is therefore difficult if not impossible to predict these assaults as they appear to come out of nowhere. Most appear to have been unprovoked. They almost always appear to be related to psychotic symptoms. [The Respondent] himself is at odds to explain what happened after some of the incidents that have taken place. Sometimes he perceived that the other person has been talking about him, and this leads to the violence. On many occasions he has not been able to explore why, even if they were talking about him, this would necessarily warrant an assault. …[T]he assaults might have been much more severe if a weapon was to hand when the assaults were initiated. Two assaults have allegedly occurred in the community, so the risk is not confined to the custodial environment. These also both occurred on innocent people without warning.
[45] BOM Vol 5, page 1995.
I do note in the Respondent's favour that whilst in custody he has been subject to over 100 breathalyser tests and 40 urine substance screenings which have all returned negative results.[46]
[46] BOM Vol 5, page 2009.

The nature of the Respondent's mental impairment

In assessing the nature of the Respondent's mental impairment, it is sufficient to consider two reports in detail.
The first is the Petch 2025 Report prepared for the purposes of the present application. In this report, Dr Petch sets out a very detailed analysis of all the materials available in relation to the Respondent. He opines that the Respondent suffers from paranoid schizophrenia, alcohol use disorder and multiple drug use disorders.
Schizophrenia is a psychiatric syndrome characterized by psychotic symptoms of hallucinations, delusions, and disorganised speech, by negative symptoms such as decreased motivation and diminished expressiveness, and by cognitive deficits involving impaired executive functions, memory, and speed of mental processing. The Respondent's psychosis consists of delusions, hallucinations and thought disorder.
As to the Respondent's cognitive deficits, Dr Perch reports:[47]
There has been chronic bluntening of affect which has been incongruous. At times he has presented as bland and jovial with a fatuous grin and laughter. There was often poor rapport, with no spontaneity. He was described as always mildly perplexed. Sometimes when well he could be friendly and warm. His level of thinking was occasionally deemed sketchy and shallow. At other times he was vague and distracted. There was often intermittent eye contact. He was thought to have been tracking unseen stimuli, and he was sometimes distracted, perplexed or preoccupied. He often wanted to leave interviews quickly and could start to become somewhat agitated. He had poor social skills and was reliant on others for support.
On testing there were impairments in verbal comprehension and processing speed, and there was impairment in executive functioning (meaning planning, mental flexibility, organisation, coordination, sequencing, inhibition and generation of novel ideas).
[The Respondent] usually had little insight into his illness, symptoms or behaviour, and judgement seemed to be chronically impaired. At times he could be highly impulsive, usually in response to a psychotic experience. After attacks, rarely could he describe what he had done or why, and he was sometimes perplexed or confused, offering little or no rational or even psychotic explanation.
[47] BOM Vol 5, page 1982.
Dr Petch concludes:[48]
In my view it is clear that [the Respondent] fulfills the diagnostic criteria for schizophrenia. It appears to be chronic, treatment resistant, and currently in partial remission at present, with treatment. There is a significant potential to relapse. Whilst he may be psychotic much of the time, experiencing the effects of his illness to a greater or lesser extent, for the most part he can control his responses to it. There are certain psychotic experiences he cannot tolerate, and when these occur he acts out, sometimes violently. This is where his risk lies.
[48] BOM Vol 5, page 1984.
When giving evidence Dr Petch explained that the schizophrenia being treatment resistant means that, despite treatment, there still remains significant residual symptoms.[49]
[49] ts 22.10.25, page 35.
Dr Petch says that one drug used for treatment resistant schizophrenia is clozapine. He outlined the difficulty between balancing the high dose required to address the Respondent's symptoms with its serious side effects: [50]
Once a number of treatments have been tried in adequate doses for long enough, schizophrenia can attract the label treatment resistant, and that was the case with [the Respondent]. Many combinations of drugs are then tried. Clozapine is an antipsychotic drug that is used for treatment resistant schizophrenia. In some people who are otherwise treatment resistant, schizophrenia does respond to this drug. In [the Respondent's] case this occurred, but only up to a point. His symptoms were significantly reduced and his degree of functionality gradually but significantly improved. However, even with high doses this was not sufficient to eradicate his symptoms altogether, so from time to time he continued to experience psychosis. When this occurred, it led to repeated bouts of unexpected and unpredictable interpersonal impulsive violence.
Unfortunately, clozapine in high doses can also cause severe and very dangerous or unpleasant side effects which can limit their desirability and the dose that can be prescribed. Clozapine also requires regular blood monitoring, because it has a rare side effect of neutropenia (destruction of white blood cells, thereby robbing the body of its mechanism for infection control, which can be lethal). Side effects of this medication experienced by [the Respondent] were at times extreme. It was difficult to balance his need for higher doses of clozapine to control his psychosis and spontaneous violence, but to limit his side effects which at times very severe and were dose dependent.
[50] BOM Vol 5, page 1983; also ts 22.10.25, page 36.
When giving evidence, Dr Petch explained that it is important that the Respondent undergo regular blood testing, ideally monthly. This is for two reasons. The first is to test for a particular adverse side effect of clozapine. The second is to ensure that the levels of clozapine in the Respondent's blood remains at a therapeutic level in order to keep the psychosis under control. He explained that things like smoking, drinking and other medications would all potentially have an impact on the way the body metabolises the clozapine. In other words, the same dose could have a lesser effect. The blood testing would also monitor whether the Respondent was taking his medication in the community.[51] In regard to this, Dr Petch was of the view that the Respondent is more likely to forget to take his medication due to disorganisation, than out of an intent to cease the medication.[52]
[51] ts 22.10.25, page 35.
[52] ts 22.10.25, page 37.
Dr Petch went on to describe the complications which can arise if a patient stops taking clozapine:[53]
If he did stop taking Clozapine for one day, two days, three days, how quickly would he destabilise?‑‑‑I don't know.
You don't know?‑‑‑I don't know. Part of the problem with Clozapine is that after about day 4, it's very difficult just to restart it. It's not as if you can just go back to the dose that you were taking before, because there is a bodily reaction to not having the drug onboard for a few days. So the level goes right down so that when you restart it, you have to start again at 12.5 milligrams, and you gradually increase very, very slowly over a period of weeks, if not months, until you get back to the therapeutic dose you were on before. That's for medical reasons. Now, there are cases where people have stopped taking medications for a week and then gone straight back to it, and it causes major cardiac problems, and has caused death. So it's quite a dangerous drug to restart, so you have to do it very slowly. The trouble is, in restarting slowly, is that then you have a more prolonged period without the medication onboard, and that's when a mental health deterioration can occur.
The consequence is that the Respondent would then be on a lower dose of clozapine than was required to optimally manage his symptoms for some period of time while the dose is gradually increased to the dose he was on before forgetting to take the medication.
[53] ts 22.10.25, pages 37 - 38.
Dr Petch opines that the development of schizophrenia predated the Index Offending:[54]
Despite his difficulties, his violence and other offending ensured prison sentences. He chose to ignore some court orders and parole conditions, and he was breached on some occasions. Some of these occasions involved hindering or violence to arresting or other officers.
His behaviour persisted into adulthood, and he started to spend some time in custody. It was during one of these stays that he may have started developing schizophrenia. At some stage before the index offences the is evidence to suggest that [the Respondent] had developed psychosis, even though his schizophrenia was not diagnosed until after the offences had occurred. The development of schizophrenia coincided with a period of heavy alcohol and drug use. Psychotic symptoms recorded at the time of the offences included multiple delusions of reference, thought insertion and thought broadcast, delusions of persecution and auditory hallucinations, including command hallucinations. After the offences, when he was taken into custody it was noted that his psychotic symptoms may have been present for six months or more. He stated that he had started to hear the voices before his previous release from prison in June 1993. His psychosis started to be treated and he showed an initial response. The psychiatrist who saw him concluded that the effect of the illness at the time of the index offences was to deprive him of his capacity to control his actions. He thought that the schizophrenia was more important than the substance misuse. The jury agreed and he was acquitted due to unsoundness of mind: the equivalent of a custody order was imposed.
[54] BOM Vol 5, pages 1994 - 1995; also ts 22.10.25, page 35.
In relation to the diagnosis of alcohol use disorder, Dr Petch explains:[55]
His alcohol use disorder is currently in remission by virtue of him being in a controlled environment. This includes the prison, but also when he is in the community. I understand that he has not used alcohol since the custody order was imposed. He has done well to remain abstinent. However, it is probable that even after a significant period of time since he last used alcohol, his predilection for alcohol remains, and relapse is still possible. Alcohol is a determinant of his risk of future serious offending. He has acknowledged that most of his serious violence and much of his other offending occurred whilst he was intoxicated. Alcohol may disinhibit him.
If [the Respondent] was indeed alcohol dependent on alcohol, it is possible that with resumption of alcohol use, symptoms of dependency may recur. Once starting alcohol consumption, he may find it difficult to stop. His psychosis may still be sensitive to its effects, and he may therefore become mentally unstable if he uses significant quantities. Alcohol may also interfere with the medication he is taking and may reduce its effectiveness. To enhance his stability therefore, if alcohol is to be consumed it should be in small quantities only. It would be preferable for no alcohol to be consumed, but he has expressed a preference to resume alcohol use, but to do so would not be without risk. He has not been through treatment programs while in prison and he does not have a relapse prevention plan.
With each passing day of sobriety, his risk of relapse of his alcohol use disorder is reducing. However, I think that without ongoing intervention, and the control in the environment that exists in the context of his custody order, support, monitoring and supervision, the risk of relapse into further alcohol use is still significant. The risks should he relapse are serious, and exponentially increases the risk of serious offending.
[55] BOM Vol 5, pages 1985 - 1986.
In relation to the diagnosis of substance abuse disorder, Dr Petch explains:[56]
[The Respondent] has a history of being dependent on solvents and drugs when he was a teenager or in his early adult life. This includes volatile solvents, cannabis, and amphetamines and occasionally LSD. Although the exact quantities he claims to have used have varied, the theme has been consistent and clear. He first used volatile solvents, his cannabis use was also reportedly chronic, but the effects of this were probably not as serious. Use of stimulants continued until he was incarcerated. Although some drugs are known to precipitate psychosis, in his case his psychosis took the form of schizophrenia. His psychosis may sometimes have deteriorated or been exacerbated by drugs.
His drug use is now in remission by virtue of the restrictions under his custody order. He has stated he no longer wishes to use. He has avoided its use. His substance misuse is currently in remission, but in a controlled environment.
The drug use has contributed to offending. He may have committed acquisitive offences to fund his habit, some of his offences were drug related, his drug use almost certainly made a contribution to his psychosis (later schizophrenia), and in turn the disturbances caused by this disorder also made a contribution to his behaviour. He was deemed unsound of mind at the time of his index offences and unfit to plead at the time of his later offences, both due to psychosis. The schizophrenia was the substantial contributing factor, but drugs will have made a contribution too. To minimise further risk, drug use should be avoided. He has not undertaken any programmes to address his substance misuse and has no relapse plan regarding its use.
[56] BOM Vol 5, pages 1985 - 1987.

The Respondent is on a detailed regime of medication, including clozapine. He also suffers from a number of medical issues, some of which appear to reflect common side effects of the clozapine.[57]
[57] BOM Vol 6, pages 49, 56.
The diagnoses by Dr Petch are consistent with the numerous other medical reports in the materials before the court going back to the time of the Index Offending. In particular, it is consistent with the report of Dr Nicholas Ho, who provided a psychiatric report to the Tribunal dated 12 August 2024.[58]
[58] BOM Vol 1, pages 361 - 378, and in particular page 372.
I also note that the Respondent has engaged in a number of incidents of self-harming behaviour over the past 20 or so years.[59]
[59] See for example: BOM Vol 1, pages 366, 369.
The second report is a neuropsychological assessment report by Dr Mandy Vidovich dated 21 December 2016.[60] Dr Vidovich concluded that the Respondent had cognitive and adaptive deficits:[61]
Anticipating [the Respondent's] level of intellectual functioning was complicated by the lack of available information regarding his educational background and his limitations as a historian. There was, however, no identified experience of closed head injury or other neurological insult, with the most prominent feature being that of his psychiatric illness. Similarly, there was no information to suggest an intellectual disability, although a low‑level of pre‑morbid functioning would seem evident in the context of features of his test profile.
Results within his current neuropsychological profile identified deficits across a number of domains. Reductions in his attentional capacity, and processing speed contributed to variability in his performances and at least mild impairment in memory functioning. Whilst scoring poorly on expressive language measures, this appeared undermined by cultural factors. Visuo-constructional skills remained preserved, however, working memory and executive deficits influenced the quality of additional non‑verbal performances. The observed executive deficits were characterised by difficulty with reasoning, problem solving, organisation and shifting set. He demonstrated limited literacy and numeracy skills.
Despite his IQ scores meeting criteria for an Intellectual Disability, when [the Respondent's] performances are considered in the context of his cultural and language background, together with the known cognitive impact of schizophrenia, some of his poorer results are readily accounted for. Whilst an assessment of his adaptive abilities was not undertaken, the likelihood of functional deficits is however high. [the Respondent's] profile of results and history are unlikely to meet the criteria set by the DSC regarding identified areas of disability. That is, significant deficits in general intellectual functioning and adaptive behaviour, need to have manifest before 18 years of age and, under the cognitive disability criteria, the impairment identified is not readily explainable by psychiatric illness or a primary psychiatric disability.
Notwithstanding his needs, it would remain questionable as to whether appropriate community support services would be available to him. His cognitive and adaptive deficits are likely to be chronic and persistent. Most relevant are the executive and memory impairments which are considered salient compromising factors with respect to his capacity to manage in the community without significant oversight. The combination of his psychiatric condition and low level of functioning make him particularly vulnerable in the absence of a well‑structured and supervised environment (ie, currently the prison). He has also been institutionalised for a lengthy period of time, further limiting his resourcefulness for independent living. I am not aware of any additional support services, given his age, and primary mental health needs, that would provide funded care options, particularly within a regional setting and would defer to the local corrections facility to make further comment with respect to such. As a final comment, consideration may wish to be given to the appointment of a Guardian given the observed level of cognitive impairment and likely restrictions with respect to decision making.
[60] BOM Vol 6, pages 2037 - 2049.
[61] BOM Vol 6, pages 2045 - 2046.

The relationship between the Respondent's mental impairment and the instances of violence

The psychiatric report relied on at the trial of the Index Offending was provided by Dr O'Dea dated 29 November 1994.[62] Dr O'Dea's conclusions were as follows:
[The Respondent] is suffering from a mental illness, namely a schizophrenic illness, that has responded satisfactorily to treatment. This illness is characterised by auditory and visual hallucinations, delusions of reference regarding the television and other abnormal perceptions, including thought sharing. These symptoms appear to be under adequate control at present while he is prescribed anti‑psychotic medication. This illness is complicated by a long history of drug and alcohol abuse. Although a number of the psychotic symptoms mentioned can be induced by amphetamine and other psychoactive substances of abuse, it is important to note that [the Respondent] continued to describe the psychotic symptoms for an extended period following apparent abstinence from the psychoactive substances he abuses. Therefore, it is more likely that he is suffering from a process schizophrenic illness rather than a drug induced psychosis.
It is likely that he has suffered from a post‑traumatic stress disorder in relation to the alleged sexual abuse in his childhood. This has been characterised by recurring intrusive thoughts and nightmares of a distressing nature regarding the alleged abuse.
Despite his psychiatric problems, [the Respondent] is currently fit to appear in court and plead to the charges.
Although the exact chronology is unclear, it appears probable that [the Respondent] has been suffering from acute symptoms of schizophrenia since prior to his release from prison in June 1993. I make this judgement on the basis of his account of his symptoms, the statements contained in the prosecution brief as outlined above, his presentation as described by Dr Bathgate on 1.12.93 and the usual course of a schizophrenic illness.
Therefore, I consider that, at the time of both of the alleged offences, [the Respondent] was suffering from a mental illness to such an extent as to deprive him of his capacity to control his actions. Also, this illness would have impaired his ability to reason and make judgements about the appropriateness or otherwise of his actions at these times.
It is encouraging to note that [the Respondent] no longer describes suffering psychotic symptoms since July 1994 and that he appears insightful of his illness and need for treatment. Therefore, if he continues to be compliant with his anti‑psychotic medication and abstinent from drugs and alcohol, the risk of relapse of his illness and his violent outbursts would be minimised.
Regardless of the outcome of the trial, [the Respondent] would benefit from ongoing treatment and supervision of his mental illness. This should involve regular psychiatric supervision of his medication, his compliance with drugs and alcohol rehabilitation, and support with community living.
[62] BOM Vol 1, pages 27 - 33.
The jury agreed with Dr O'Dea. I accept that there was a clear relationship between the Respondent's mental impairment and the Index Offending.
Dr Petch adds:[63]
The disorder has made a very significant contribution to his offending, as his perceptions, impulses, and behaviour (previously in combination with intoxication) are distorted, and coupled with disinhibition (from his disorder and intoxication) made his earlier violent offending significantly more likely. The lower-level violence seen recently has occurred in the absence of intoxication. If intoxication were to occur, this may make the psychosis worse. Coupled with the associated disinhibition, the risk of more serious violence would be likely to escalate.
[63] BOM Vol 5, page 1997.
There is also a clear relationship between the Respondent's mental impairment and his subsequent violence behaviour. As I have noted, he appears much less likely to offend when his mental state is stable.

Whether or not there is any pattern of offending behaviour on the part of the Respondent

In my assessment, the Respondent has an entrenched tendency or propensity to resort to violence, including unprovoked violence. However, the pattern over the past 20 years has been for low level violence, typically a single punch to the face. These offences occurred even though he was subject to medical treatment in a supervised environment.
Dr Petch identified multiple factors that were drivers for his offending:[64]
[64] BOM Vol 5, page 1997.
•      psychosis;
•      stress;
•      in the past alcohol (normal for him to help with coping and stress);
•      in the past solvents;
•      in the past other drugs (cannabis, methamphetamines);
•      poor emotional regulation;
•      impulsivity and recklessness;
•      poor decision making and impaired judgement, with poor critical reasoning skills;
•      lack of consequential thinking (especially when stressed, aroused, emotional or intoxicated);
•      poor response to authority;
•      poor self-management with difficulties controlling his emotions;
•      difficulties in relationships with poor social skills and problem solving;
•      systemic factors in the environment;
•      lack of community supports;
•      no structures or purpose to his day;
•      loss of employment skills;
•      poor life skills to cope with stress in the community;
•      impaired level of insight.

The efforts made to rehabilitate the Respondent to date

Early efforts

The Respondent's early efforts at rehabilitation were not successful.
Prior to the Index Offending, the Respondent had been subject to two terms of probation (December 1991 and December 1992). Both orders were cancelled. Whilst the specific reasons are unknown due to being historical data, it appears that it was because of further offending.
The Respondent was placed on a conditional release order between 26 October 1998 and 13 February 2004. However, this was cancelled due to the offending which I have set out at [54] to [56].

2024 Tribunal Orders

On 3 October 2024, the Tribunal granted the Respondent a LOA order in the following terms (Tribunal LOA Order):[65]
[65] BOM Vol 1, pages 273 - 274.
1.Escorted leave of absence for the purpose of receiving emergency, medical, dental or other such treatment which is not available at the place of custody.
2.Escorted leave of absence on compassionate, cultural and/pr religious grounds, including funerals, subject to the approval of the Superintendent or their delegate, as per Corrective Services policy.
3.Escorted leave of absence in the community for up to eight hours per day for the purpose of undertaking activities which assist with reintegration, under the supervision of service providers approved by the Department of Justice and/or service providers provided through [the Respondent's] National Disability Insurance Scheme (NDIS) plan, subject to the approval of the Superintendent or their delegate, as per Corrective Services policy.
4.Escorted leave of absence, overnight for up to three days per week, which may be taken individually or consecutively, from 8am on the first day to 8pm on the final day, to reside at a property provided by service providers approved by the Department of Justice and/or service providers provided through [the Respondent's] National Disability Insurance Scheme (NDIS) plan, subject to the approval of the Superintendent or their delegate, as per Corrective Services policy.
5.Escorted leave of absence, including overnight leave if appropriate, to participate in activities similar to those approved under section 95 of the Prisons Act 1981 (WA), subject to the approval of the Superintendent or their delegate, as per Corrective Services policy.
6.To comply with all instructions from the treating psychiatrist and/or medical practitioner and/or mental health team, including taking appropriate medications as directed.
7.To comply with the lawful directions of the Supervising Officer.
8.To have no direct or indirect contact with the victim.
9.To abstain from using alcohol and illicit drugs.
10.Not to leave the State of Western Australia except with, and in accordance with, the permission of the Tribunal.
Since that time, the Respondent has been supervised by ACC.[66]
[66] BOM Vol 5, page 2010.
As mentioned, the Respondent was transferred from Acacia Prison to a regional prison on 9 January 2025 following a Tribunal appearance on 8 November 2024. The Tribunal considered it imperative he was transferred to the regional prison as a matter of priority to commence his transition into the community and to utilise his LOA, specifically noting that support services had been arranged.[67]
[67] BOM Vol 5, page 2009.
The Respondent commenced community access on his LOA in January 2025. I will come back to how this has progressed later in these reasons. Since commencing his LOA periods, the Respondent has engaged with ACC on a regular basis. He appears to be positively engaging.[68]
[68] BOM Vol 5, page 1907.
As mentioned, the Respondent's supervising SCCO is Ms Secker. She aims to see the Respondent each week. Ms Secker is part of an interagency team working with the Respondent to oversee his rehabilitation and manage risk-related concerns. The other members of the interagency team (Interagency Group) are:[69]
[69] BOM Vol 5, page 2011; ts 22.10.25, page 14.
(a)other staff from ACC;
(b)his lawyer (who was counsel in the hearing before me);
(c)a Specialist Support Coordinator from Eunoia Lane Specialist Support Coordination (Eunoia), who coordinates some of his NDIS Services;
(d)a representative from Yadah;
(e)a Positive Behaviour Support Specialist from SAL Consulting, another service provider funded though NDIS;
(f)a representative from Kimberley Mental Health, Drug and Alcohol Service (KMHDS);
(g)the Respondent's guardian from the Public Advocate;
(h)an advocate from Mental Health Advocacy Services;
(i)a representative from Job Pathways, a job network provider; and
(j)a representative from the regional prison.

NDIS

As it apparent from the previous paragraph, the Respondent has significant NDIS funding.[70] The bulk of the funding is for supported independent living. This is to be provided by Yadah.
[70] BOM Vol 6, page 2057 and the most recent plan from 9 October 2025. See generally BOM Vol 5, page 2013.
There is also funding for:
(a)assistance with social, economic and community participation;
(b)capacity building supports to build the Respondent's skills and increase his independence;
(c)behaviour support, to be provided by SAL Consulting;
(d)improved daily living skills, to be provided by an Occupational Therapist; and
(e)funding for coordination and management.

Leaves of absence

The Respondent commenced community access on his LOA in January 2025. Initially he was leaving the prison three times per week for three hours per day, with two support staff in his company at all times. These LOA periods focused on reintegration and spending time with family, then incorporating capacity building as his community access increased. The Respondent then progressed gradually to five consecutive days of daily access between 9.00 am and 3.00 pm on weekdays and 9.00 am to 8.00 pm on Saturdays.[71]
[71] BOM Vol 5, page 1906; ts 22.10.25, pages 15 - 16.
The Respondent commenced overnight stays on 4 July 2025. Part of the Respondent's NDIS funding is used though Yadah to provide him with supported accommodation. He lives in a granny flat behind a residence occupied by support workers.[72]
[72] BOM Vol 5, pages 1906, 2013.
The Respondent's overnight stays have progressed from the week commencing 18 August 2025 to three nights per week. Since 30 June 2025, he has only required one support staff. From 8 September 2025, the overnight stays were increased to four nights a week. On the days where he returns to prison overnight, he spends most of the day in the community. The overnight stays have been successful with no issues or concerns noted. During contact with ACC, the Respondent reported he was initially nervous spending nights in the community, however, has begun to settle into this routine and is now feeling less anxious. As he has been spending regular time at his accommodation during day leave, he reports feeling comfortable in this environment and appears to have responded well to the increase in his community leave.[73]
[73] BOM Vol 5, page 1906; ts 22.10.25, pages 15 - 17, 27, 32.
The Respondent is keen to spend more nights in the community.[74]

Health

[74] BOM Vol 6, page 2012; ts 22.10.25, pages 26 - 27.

The Respondent's medical care is undertaken by the regional prison. It provides him with a Webster Pack of medications and a checklist for his support workers for his leave in the community.[75]
[75] ts 22.10.25, page 18.
When giving evidence, Dr Petch noted the particular importance of the Respondent regularly taking his clozapine, which I have set out at [83].
If an ECO were to be made, medical responsibility for the Respondent would remain with the regional prison. If a CSO was made, or there was no order, the plan is for medical responsibility for the Respondent to be passed to the local Aboriginal medical service. A referral has been made to facilitate this process.[76]
[76] BOM Vol 5, page 2012.
The Respondent has been referred to KMHDS, who will take over management of his mental health issues once he moves from a prison setting to a community setting.[77]
[77] BOM Vol 5, page 2012.
The Respondent attends a local men's group once a fortnight.[78]

Drug and alcohol issues

[78] BOM Vol 5, page 2012.

The Respondent has not used alcohol or illicit substance whilst on LOA. As noted, prison records inform that the Respondent has provided negative drug test samples throughout his term of imprisonment, last providing a sample on 16 April 2025.[79]
[79] BOM Vol 5, page 2012.
Whilst in the prison system, the Respondent has not undertaken any programs addressing his drug and substance abuse issues. Nor has he been referred to any program of this kind whilst on leave in the community.[80] However, Dr Petch was of the view that, the Respondent would not cope with a group program. Rather, given his cognitive impairments, he would require a tailor made, individually delivered, program which would provide him with information at a rate which he could understand fully.[81]

Employment

[80] ts 22.10.25, pages 29 - 30.

[81] ts 22.10.25, pages 44, 48.

As mentioned, the Respondent is engaged with Job Pathways. They have linked him with a program which assists him in basic learning and job readiness. The Respondent has an identified interest in horticulture and investigations into suitable courses are occurring.[82]

Summary

[82] BOM Vol 5, page 2012.

In my view, there are significant resources available for the treatment, care and support of the Respondent in the community. The issue is whether they are adequate or sufficient to protect the community for the risk of further offending by the Respondent.

Is there is unacceptable risk that the Respondent will commit a serious offence?

As noted at [26], the evaluation to be undertaken is whether there is an unacceptable risk that the offender will commit a serious offence in the future, in the absence of any measures that would provide adequate protection of the community against that risk.
Ms Secker concludes the 2025 Tribunal Report with the observation that ACC has ongoing concerns as to the Respondent's propensity to respond with violence when feeling threatened. In context:[83]
Since his last review by the Tribunal, [the Respondent's] re-integration into the community has generally been positive, with the exception of the above noted prison incident (05.03.2025) and community incident (18.08.2025). He appears to be adjusting to remaining overnight in the community and reports to be enjoying doing so. Efforts are being made to ensure [The Respondent] is engaged in capacity building to maximise his independence, as well as providing him with structured activities to increase community engagement and support. [The Respondent] continues to be well supported by his family and his interagency team, noting although the above two incidents have been recorded, there was a gap of five months between incidents, which demonstrates a marked improvement from his previous review, where he had been involved in two incidents of violence in a two-month period (01.11.2024 and 27.12.2024). Given the above, there remain ongoing concerns relating to [the Respondent's] propensity to respond with violence when feeling threatened, which may pose risk related issues should he engage in this behaviour whilst in the community. Strategies are to continue being implemented to minimise the risk of further incidents occurring, both within the prison and a community setting.
[83] BOM Vol 5, pages 1907 - 1908.

When giving evidence, Ms Secker confirmed this view:[84]
Is that still a concern held by Adult Community Corrections?‑‑‑I would say it is at this point in time. As mentioned in my report, the most recent incident that has demonstrated this was on 18 August, and while I mentioned in my report there has been an improvement in the frequency of these incidents, there is concerns that they are still occurring. The pattern of this behaviour is generally pretty consistent. As mentioned – I believe I mentioned it in my report, it's generally when [the Respondent] feels there is a risk to him or a risk to his family members, in particular his father in this incident. Therefore, I would suggest that it does still remain a concern, moving forward. Whilst the incidents have been less frequent of recent, given it did occur within the last approximately two months, we would still have a concern that this behaviour may present again in the future.
[84] ts 22.10.25, page 22.
Dr Petch concludes that although the Respondent has progressed with rehabilitation efforts and his violence seems to have diminished, the risk of offending continues to be an issue:[85]
As he has progressed with rehabilitation efforts, so violence seems to have diminished. As I understand it there has been no violence since the end of 2024. Detailed evaluations in 2024 identified his specific difficulties and needs, and once these started to be addressed, his demeanour changed, his psychosis continued to be held at bay, and his rehabilitation into the community could begin in earnest. With prolonged planning, day to day support and positive behaviour reinforcement, he has begun to prepare for the community, taking ever more lengthy periods of leave once he was transferred up from Acacia Prison to BRP in January 2025.
The risk of offending continues to be an issue. He is duly complaint with all aspects of his order and is readily and positively engaged with the team supporting him. Once he was able to achieve independent accommodation, SIL funding within a NDIS plan, over time and successful LOAs, his rehabilitation has continued without largely without issue. Overall, it seems to have been a positive story of successful rehabilitation thus far.
[85] BOM Vol 1, pages 1997 - 1998.
Dr Petch opines that the risk of the Respondent committing a non‑serious offence is very high, less so a serious one:[86]
In my risk assessment I have set out my conclusions that I think the risk of [the Respondent] committing a nonserious offence (as defined by the Act) of assault is very high, and there is a high probability of this occurring again at some stage, as has happened extremely frequently whilst he has been in prison. I think this risk will remain indefinitely, whether he is in prison or in the community. The risk assessment using a variety of instruments based on structured professional judgment, as well as my clinical opinion indicates that as things stand, there is a current low level of risk to the community of further serious offending by [the Respondent]. I also think that in the optimum circumstances of ongoing support and graduated and completed rehabilitation into the community from prison, the risk of a serious offence occurring in the future is also low. The propensity of [the Respondent] to commit serious offending is underpinned by his psychosis, his cognitive decline arising from his schizophrenia, and his alcohol and substance use disorders (currently in remission in the controlled environment of his community supervision order in the community).
[86] BOM Vol 1, page 2002.
Dr Petch identifies two scenarios in which the Respondent could potentially commit a more serious offence:[87]
I think that the risk of [the Respondent] committing an offence of assault at some stage whatever order is imposed by the court is significant: more likely than not. I am much less certain about a serious assault or a violent offence that would fall under Schedule 1 of the Act. This could occur on one of two ways. First, I think the most likely scenario would be that one of his spontaneous assaults in response to a fleeting psychotic symptom could get out of hand. This has occurred before when the attack has not just been a punch but been more sustained. On at least one occasion he has inflicted more serious harm to the victim, causing a head injury, concussion and compensable injures. If a weapon was close by it might be used, then the risk of a serious assault would escalate exponentially. The other way is possibly less likely: he might develop a delusional belief about someone in the community and act on it in a similar way to the index offence. I see no indication that this is a serious risk, but it is one that needs to be considered. This is more likely where there is no support, and he has returned to using drugs and alcohol and is not taking medication.
[87] BOM Vol 5, page 2000.
When giving evidence, Dr Petch went into some detail as the impulsive nature of the Respondent's tendency to violence:[88]
Can you describe what you mean by breakthrough symptoms?‑‑‑Well, what I mean is – is that the – despite taking clozapine on a regular basis, there are still some psychotic symptoms that occur all the time. Now, most of the time he's able to tolerate those symptoms, but sometimes those symptoms are either overwhelming or very distressing, and they cause unusual behaviour to occur. And that behaviour may be assaultive, or it may be impulsive, or it may be on the basis of psychotic phenomena that have already been – have always been there, but due to the circumstances, for example stress, pressure, any form of upset, might be more disturbing to him at that moment. So then that increases the spectre of impulsive behaviour that perhaps isn't under his control. So there may not be an intent to act. So for example, when there have been assaults, my understanding is that a few moments prior to the assault, [the Respondent], if I may call him that, did not know that the assault was coming. It just happened before there could be any intervention of thought. So it was an impulse, which is what we mean by impulsive. Had he been able to interject a thought, it may have been, "I had better not do this. Maybe there's some other way I can deal with the situation." By that time the assault's happened. So it's not knowing when the assault is going to occur, why it's going to occur, what is driving that assault, and the inability to read the situation beforehand. And this part of it arises from a misinterpretation of neutral events as potentially hostile. So that's why there's a very great difficulty in predicting exactly when these assaults are going to occur. And that has been the case ever since the index offence, which is why the assaults have happened in – in prison as well as now in the community a few times.
[88] ts 22.10.25, pages 38 - 39.
And in cross-examination:[89]
[Respondent's Counsel]: It would assume from that though that he can make that connection between his mental health and the risk of violence, wouldn't it?‑‑‑Yes. In hindsight, certainly. The question is whether that connection can be made at the time. Because the violence as it occurs seems to be very impulsive and occurs very quickly without intervening thought between impulse and action. And that is why I say that it is at that point that most of us will restrain our impulses when we have them. You know, a number of times, you might want to be violent to somebody, and you stop yourself. And that's the point where the risk lies for him.
[89] ts 22.10.25, page 51.
In my assessment, the Respondent has made very good progress towards his rehabilitation, in particular the outcome of living in the community with a low risk of offending, on the one hand with community supports appropriate to his mental health issues and, on the other, without the support, constraint and sanctions of the criminal justice system.
However, as Dr Petch observed, the Respondent's 'mental state is very precarious'.[90] In my assessment, if he was to cease his medication or use illicit substances or alcohol, he would become at high risk of committing an offence of violence. He committed many offences of violence whilst in prison, which is a constrained environment. As Dr Petch observed:[91]
I think that environment has been playing a part in protecting people around him, and ensuring there's not more serious offending.
[90] ts 22.10.25, page 40.
[91] ts 22.10.25, page 41.
In my assessment, the risk of more serious harm would increase outside the prison environment. The prison violence was committed without the disinhibiting effects of illicit substances or alcohol. The use of illicit substances or alcohol increases the risk of serious harm, both by interfering with the effectiveness of the clozapine and disinhibition in their own right.[92] I accept that the violence in the prison (and in recent times out of prison) was, in the main, single punch assaults, without weapons. However, the Respondent used weapons in the Index Offending and the 2004 offending. The use of a weapon could readily morph a simple assault into grievous bloody harm, a serious offence for the purposes of the CLMI Act. Further, it must be borne in mind that the Index Offending included three counts of attempted unlawful killing.
[92] ts 22.10.25, pages 43 - 44.
For these reasons, I am satisfied, by acceptable and cogent evidence and to a high degree of probability, that in the absence of any measures that would provide adequate protection of the community, there is an unacceptable risk that the Respondent will commit a serious offence. The Respondent's current response to rehabilitation is not yet at the stage for me to conclude that the risk is not unacceptable.

Is it necessary to make an ECO to ensure the adequate protection of the community against that unacceptable risk?

As noted at [25] the assessment of necessity must have regard to the other protective options available under the CLMI Act, in particular whether the making of a CSO order provides adequate protection of the community. If it does, then it will not be necessary to make an ECO to ensure the adequate protection of the community against the unacceptable risk.
The primary difference between an ECO and a CSO is that with an ECO the Respondent would remain in custody, with the ability to be released on LOA. As set out at [100], the terms of the Tribunal LOA Order is that LOA are subject to the approval of the superintendent of the regional prison. Ms Secker explained that the ability to return the Respondent to prison is part of the risk management strategy:[93]
[93] ts 22.10.25, pages 19 - 21.
So in terms of strategies to manage offending behaviours or any adverse incidents in the community, what powers does Adult Community Corrections have to manage any situation that unfolds?‑‑‑I suppose our primary role in the community, we receive a lot of our information through the liaison with the interagency team. In the initial stages of [the Respondent's] transition into the community in January and… his community access, it was acknowledged that if any incidents did occur within the community during his leave of absences, he would be able to return to the prison for a respite period or to sort of, for risk management purposes, to mitigate any further risks. With Adult Corrections, our role would also be to inform the Mental Impairment Review Tribunal of any concerns that were happening in the community as quick as possible as they happened. For example, the incident that happened on 18 August, they were made aware of that incident that occurred. It just allows for timely risk management should any concerns arise whilst [the Respondent] is in the community.
…
GETHING J: … Ms Secker, can I just understand something from a practical perspective? So…if there was another incident of the same type that occurred in August, am I right… in understanding that there is a process by which [the Respondent] could be returned to the prison immediately?‑‑‑As it stands at the moment, your Honour, we do have the prison as a sort of fail-safe, I suppose, in terms of if there is an incident, and it is determined to be in the best interest of [the Respondent] and the community, he can be returned to the prison.
So there is that power that is there?‑‑‑There is, your Honour.
… And the decision… in terms of the number of overnight stays and reducing, then increasing that, who is the operative decision-maker in determining – or the final decision-maker in determining how many nights Sonny can spend in the community?‑‑‑It has been largely determined, so far, your Honour, by the entire interagency team. … Obviously, we collaborate all the information that we have from us from a risk perspective, from all his NDIS providers in terms of… his needs. So it has really been a collaborative decision-making process in regard to that so far… with us being part of that process.
…
[Applicant's Counsel]: On that, there is the leave of absence order currently in place, which, I suppose, guides how many nights a week [the Respondent] can spend in the community; is that right?‑‑‑Yes.
And am I correct in saying the only person – body that can amend that leave of absence order is the Mental Impairment Review Tribunal?‑‑‑Yes. Correct.
So whilst you provide a recommendation to the tribunal in such proceedings as tribunal review proceedings, ultimately, it's a matter for the tribunal to manage the terms of that order and the leave of absence order?‑‑‑Yes. So as it stands at the moment, I believe [the Respondent] is permitted 13 out of 14 nights in a fortnight in the community, and as has been sort of determined through the inter-agency team, a staggered approach to getting him to that level was considered to be the best, to give him the greatest chance of a successful reintegration. So at the moment, we've progressed to where it stands at the moment, but ultimately, the maximum amount under the order imposed by the tribunal is 13 out of 14 nights.
Thank you. And yes, what you're saying is that his maximum permitted amount of nights has not yet been used, but the plan is to gradually utilise all of that time; is that right?‑‑‑Correct. Yes.
In cross-examination, Ms Secker confirmed that the Tribunal LOA Order ultimately requires the superintendent of the regional prison to approve additional leave in the community.[94]
[94] ts 22.10.25, page 27.
Further, the current position, which would continue on an ECO, means that the Respondent is subject to drug and alcohol testing each time he returns to prison from the community.[95]
[95] ts 22.10.25, page 23.
The evidence given at the hearing was to the effect that if a CSO were made, the main differences would be that:[96]
(a)the Respondent would not be able to go back to prison;
(b)the prison would not be involved in the Inter-agency Group;
(c)responsibility for drug and alcohol testing would pass to ACC; and
(d)the medical side of supporting the Respondent would move to a community provider.
[96] ts 22.10.25, pages 23, 27 - 28, 32 - 33.
Ms Secker gave evidence that if the Respondent was released on a CSO, she would still be supervising the Respondent and reporting to the Tribunal. She also said that, if so released, Yadah had the ability to take the Respondent on full time.[97]
[97] ts 22.10.25, pages 29 - 30.
If the current regime were to continue, the Respondent would be spending part of his time in the community and part of his time in prison. If he were placed on a CSO he would be immediately released to reside in the community. It is for this reason that Dr Petch does not recommend a CSO at this time:[98]
… I understand that under provisions of the extended community supervision order, he would be released straight away from custody, and would immediately reside in the community. His graduated leave of absences carefully tailored to proceed at his pace to allow him to slowly acclimatise to the community and overcome the severe institutionalisation after many years in custody could not continue. He could no longer be based in the prison. It would be a huge step for him to take, from no overnight leaves to being in the community full time. At this time I therefore cannot recommend an extended community supervision order.
This is because [the Respondent] is not yet ready to leave prison entirely, as his transition is not yet complete. He still spends significant periods in prison, such as some of the weekend, and most evenings and nights. It would be a serious shift if he were to be released at this stage into total community living, even with all the supports he has available. I do not think that [the Respondent] is ready to take this step. I would anticipate rapid clinical deterioration. Very moderate degrees of stress and disappointment have triggered the emergence psychotic symptoms in prison, leading to low level assaults. Without the containment that he is used to, even if high levels of community support is provided, as it would be likely to be, it is not likely to contain his levels of anxiety and stress. In these circumstances, the second scenario described above would be likely to ensue over a short time frame.
[98] BOM Vol 5, page 2002.
Dr Petch reiterated this opinion when giving evidence. He made the point that while the Inter-agency Group had the capacity to allow the Respondent to have 13 of 14 nights in the community, to date, they have not chosen to allow him to do so:[99]
I mean, the rehabilitation seems to be going really well. There's a lot of people involved, and they're taking it as fast as they can, I think, in good faith, and they're doing it slowly, because they recognise that degree of stress and pressure that he has experienced and he has expressed. If you go too fast for him, and he's not comfortable, and he feels unsure, and he feels unsafe, as he has expressed – like, for example, the first night, and I think subsequently, he has had to have the light on and somebody around, and noise, to mimic him feeling safe within the community of the prison. But if you do it too fast, the risk is that he will take a step backwards, and then, the risk may escalate. So it seemed to me to be sensible to continue going at the rate that the professionals who are looking after him day to day feel is safer and sensible for him, not to have to rush it. The risk as I see it, is that if he was given an extended supervision order today, he couldn't go back to the prison. So he would go from four days a week to full-time, which is too big a step because he is so institutionalised and has been in the prison now for so long. It would be much better for him in the long run, in my view, if he just takes it step by step, goes to five days when people think he is ready, then six, then seven. And then, he spends 13 out of 14, and maybe for a few months. Everyone is then happy. And then, he can go on the community order. And then, you remove the ability of services to say, hang on, we need to hook you back into prison where you feel safe, because of the risk. But I think you would be almost taking away a security blanket at this stage, if I can put prison like that, which I don't usually. For me, I think I couldn't say to the court that the risks to the community would be low enough to be satisfactory. I think the risk may be too high if he is progressed too quickly beyond the speed that he is happy with. Now, of course, if he was happy, and the community was happy, and the people looking after him were happy, he would already be on 13 out of 14, and he is not.
…
Just touching on that, you mentioned the safety of the community in returning him to prison, but is it also because he is familiar with… the prison environment?‑‑‑Absolutely.
And at some point, will that change, that he doesn't need that familiar environment, he can stay in the community and deal with ‑ ‑ ‑?‑‑‑I would definitely hope so. And then, his day-to-day support network would move from being within the prison to being in the community. And it is transitioning at the moment, but it is not quite there yet.
[99] ts 22.10.25, pages 41 - 42.

Put in the converse, Dr Petch is of the opinion that it is necessary to make an ECO to ensure the protection of the community as the Respondent is not yet at a stage in his rehabilitation journey where he is ready to live in the community full time.
I agree with this opinion of Dr Petch. It is telling that the Inter‑agency Group is of the view that the Respondent is only ready to spend eight nights in the community each fortnight, and not the full 13 nights provided for in the Tribunal LOA Order. If I were to make a CSO, allowing the Respondent to be in the community full time, I would be taking a step which the Inter-agency Group is not yet prepared to take. I readily accept that the Inter-agency Group has more expertise in rehabilitation, and more knowledge of the Respondent, than I do.
For these reasons, I am satisfied that it necessary to make an ECO to ensure the adequate protection of the community against the unacceptable risk of the Respondent committing a serious offence in the future. A CSO would not yet provide the level of protection required. The fact that the Respondent assaulted a prisoner in March 2025 and a support worker in August 2025 makes this conclusion clear.
I note that pursuant to CLMI Act s 111, the Tribunal LOA Order continues in effect according to its terms. This will allow the current rehabilitation process to continue on its very positive trajectory.
Having reached the conclusion that an ECO is necessary, I do not need to consider whether a CSO should be made.
As to the length of the ECO, I am acutely conscious of the fact that the Respondent has spent 26 of the last 32 years in custody. I also accept that the Respondent is progressing well on his current rehabilitation arrangements. Dr Petch recommended that the term of the ECO should be one year.[100] However, in my view, it should be for two years. The entrenched nature of the Respondent's tendency to resort to violence requires him to spend an extended period of time utilising his LOA within the framework of an ECO. There will be a review of the ECO as soon as practicable after the ECO has been in force for a year.[101] An option for the court at that point is to make a CSO.[102]
[100] BOM Vol 5, page 2014.
[101] CLMI Act s 117.
[102] CLMI Act s 121(3).
In my view, an ECO of two years' duration imposes the least possible restriction on the freedom of the Respondent consistent with the protection of the community.[103]
[103] CLMI Act s 7(2)(a).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OS
Associate to the Honourable Justice Gething
4 NOVEMBER 2025