Attorney General v PHB by his guardian ad litem Alan Van Der Steen

[2025] WASC 312

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   ATTORNEY GENERAL -v- PHB by his guardian ad litem ALAN VAN DER STEEN [2025] WASC 312

CORAM:   LUNDBERG J

HEARD:   22 JULY 2025

DELIVERED          :   8 AUGUST 2025

FILE NO/S:   CLMI 3 of 2024

BETWEEN:   ATTORNEY GENERAL

Applicant

AND

PHB by his guardian ad litem ALAN VAN DER STEEN

Respondent

Catchwords:

Criminal Law (Mental Impairment) Act 2023 (WA) - Application for an extended custody order in respect of the respondent pursuant to s 110(1) and s 110(3) - Respondent subject to custody order made in April 2018 under the repealed legislation - Respondent living in the community since November 2021 pursuant to orders under the repealed legislation and the successor legislation - Respondent has stable accommodation and supports funded by the National Disability Insurance Scheme - Assessment of risks and adequacy of the protection of the community - Turns on own facts

Criminal Law (Mental Impairment) Act 2023 (WA) - Alternative application for a community supervision order in respect of the respondent pursuant to s 110(4) and s 110(5) - Turns on own facts

Guardianship and administration - Respondent subject to both guardianship and administration orders made by the State Administrative Tribunal - Application for appointment of Public Advocate as guardian ad litem pursuant to O 70 r 2 of the Rules of the Supreme Court 1971 (WA) - Whether exercise of the appointment power is required

Legislation:

Criminal Law (Mental Impairment) Act 2023 (WA), s 9, s 20, s 21, s 45, s 47, s 54, s 55, s 66, s 72, s 73, s 74, s 100, s 101, s 105, s 109, s 110, s 114, s 254, s 255, s 264, s 265
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 19(4), s 35(2)

Guardianship and Administration Act 1990 (WA)
High Risk Serious Offenders Act 2020 (WA), s 7
Rules of the Supreme Court 1971 (WA), O 4, O 21, O 70

Result:

Application for an extended custody order under s 110(3) dismissed.
Application for a community supervision order under s 110(4) and s 110(5) dismissed.
Order made pursuant to s 265(6)(a) to discharge the custody order made by the District Court.
Proceedings to be amended to reflect capacity of respondent as represented by guardian ad litem.

Category:    B

Representation:

Counsel:

Applicant	:	T C Loo
Respondent	:	K Gorski

Solicitors:

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

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

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307

Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1

Prichard v M 6-8 Legal Pty Ltd [2024] WASCA 4

The State of Western Australia v Hansen [No 2] [2025] WASC 4

The State of Western Australia v Paraha [2025] WASC 20

The State of Western Australia v White [No 7] [2023] WASC 432

The State of Western Australia v Williams [No 2] [2024] WASC 215

Webb v Tang [2023] WASCA 119

Western Australia v West [No 6] [2019] WASC 427

Western Australia v ZSJ [2020] WASC 330

Table of Contents

Introduction and overview

The proceedings

Background to the Application

Issues arising on the Application

Legislative framework

Evidence on the Application

The respondent's personal circumstances and antecedents

Orders made under the Repealed Act

Orders made under the CLMI Act

Orders made under the Guardianship and Administration Act 1990 (WA)

Living in the community

Mental Impairment Review Tribunal

Report of Dr Rachael Griffiths

Reports of Dr Mandy Vidovich

Evidence of Dr Edward Petch

Evidence from the Adult Community Corrections division

Disposition

Whether a guardian ad litem should be appointed?

Whether an extended custody order should be made?

Whether a community supervision order should be made?

Conclusion and orders

ATTACHMENT A Proposed Conditions of the Community Supervision Order

ATTACHMENT B Orders made on 8 August 2025

LUNDBERG J:

Introduction and overview

1. Earlier today I made orders to dismiss an application which had been filed by the Attorney General pursuant to s 105(1) of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act).[1] 

   [1] Folio 1 (being the Application dated 25 November 2024).

2. The respondent to the proceedings is a 49 year old Indigenous man for whom life has been extremely challenging.  He was born in Port Hedland but his family is originally from the area near Wiluna, a more remote region of the State.  On any view, his upbringing was far from nurturing, with both his parents being heavy users of alcohol, and his father being a user of drugs as well as being violent.  Both parents are now deceased.  His remaining family members are fractured and he has little by way of social support from his family.

3. The respondent is a person with a 'mental impairment'.  Among other psychological diagnoses, the respondent suffers from a moderate intellectual disability (possibly in association with foetal alcohol spectrum disorder), schizophrenia, and an alcohol use disorder.

4. The respondent is presently subject to the regime in force under the CLMI Act, which has permitted him to live in the community since November 2021. That has occurred with supervision and management from the Adult Community Corrections division of the Department of Justice, together with various other supports. Initially, in April 2018, the respondent had been made subject to a 'custody order' under the predecessor legislation to the CLMI Act.

5. By the present Application, the Attorney General sought an 'extended custody order' in respect of the respondent, pursuant to s 110(1) of the CLMI Act. In the alternative, the applicant sought a 'community supervision order' in respect of the respondent, under s 110(4) and s 110(5), and in accordance with s 114(2).[2]

   [2] As there is no supervision order presently in place, the alternative relief was not for an 'extended' community supervision order under div 6 pt 7, but rather for a community supervision order under div 4 pt 5.

6. The respondent, through counsel, opposed both forms of relief.

7. Upon the dismissal of the Application, to assist the respondent's understanding and comprehension of the proceedings consistent with the terms of s 20(2) of the CLMI Act, I gave brief oral explanatory reasons for my decision, in the following terms:[3]

   [3] ts 78.

   LUNDBERG J: … [PHB], I'm going to tell you some things now about what I propose to do with this matter.  I want you to listen carefully to what I have to say.  It's very important that you listen to what I'm about to say.  

   If you've got any questions about today, you can ask your lawyer and your support team when we're finished, and I'm sure they will help explain it in clear terms for you as well, so that you understand what's happening.  This will only take a short while, but what I want to do is explain the key matters that I've had regard to.  

   So the first thing I want to say is I want to remind you why we're here today, and we're here because about seven years ago in another court, …  the District Court, a judge made a custody order about you.  And that order was made because of a serious matter which was alleged against you, which took place in September 2016.

   And what the police said was that you had entered an old woman's house to try to indecently assault her.  You were alleged to have threatened her with a syringe, and you stole her handbag and her phone.  That is what they said, and that was conduct that would have been really frightening for the victim.  But because you have got health issues, the Judge decided that you were not fit to stand trial.

   You might remember that.  And you were to be held in custody to protect the community, and you were held in a hospital and then in other places for about three years, so it was a long time.  But after that, people felt you had improved, and that you could live in the community, and you could cope in the community, and you were allowed to leave hospital, and you will remember when that happened, and that was about four years ago.

   So you have been living in the community for about four years.  That is the first thing I wanted to say.

   The second thing I want to tell you, and you will know, is that while you have been in the community, you have had a lot of great support from a lot of people.  Those people are the support workers.  You have got people called behavioural support specialists, community corrections people, doctors, psychiatrists, counsellors, the Office of the Public Advocate in perhaps more recent times…[T]he important thing is you have been doing very well while living in the community, and I have been told that your progress so far has been very good.

   But some people are worried that you might go backwards, and that life might get bad for you if you are not subject to a community supervision order in the future.  So as you might know, no one has said to me I should make you subject to a custody order.  So no one is suggesting that you should go back to hospital or to an institution.  No one says that, and I do not think that should happen either.

   But the State says you should be under a community supervision order for the next three years.  

   And that takes me to the third thing I want to talk to you about today, and you will recall that Dr Petch, you saw him give evidence in the other place we were in, down in … the big court. … Dr Petch said he was worried that you might decide to give up the NDIS support, and that would lead to you drinking alcohol and lead to other problems for you.  Dr Griffiths was worried about that too.  She did not give evidence, but I have read her report.  

   I am also worried about that, and I am worried you will go back to your old ways if I do not impose a community supervision order.  The worry I have is that you might endanger the safety of the public and the community.  The people in Perth and in Western Australia are entitled to feel safe and entitled to feel that people will not be violent towards them or threaten them.

   So I have thought about all those things since the hearing, but I know you want to be a 'free man'.  Right?  You have said that to a number of people. You have told your doctors that, and you have told others about that too. And I have listened to what the doctors have to say, particularly Dr Petch, and I have listened to what you have said to them about wanting to be a 'free man'.  I have also listened to your lawyer, Ms Gorski, who has explained to me that you do not think you should be made subject to any more orders.

   Now, I have thought about all that.  [T]here are some other matters I have also considered when weighing all of this up … I need to think about your rights, [PHB], and your personal dignity.  That is another way of saying, I need to think about the fact you want to be a 'free man'.  Okay. So I have been thinking about that.

   I also need to think about the fact that you have been subject to orders restricting your freedom for a long time.  [I]t is probably nine years now. You have had your freedom restricted for a long time.  I also know, and I recognise, you have been doing very well while living in the community, and I have already said that, and your progress has been very good.

   So I have weighed up all of those things.  That is one of my jobs, is to think about all that, and what I have decided is that it is not necessary to make a community supervision order, but I want to make sure you understand the significance of me not making that order.  It will mean you are no longer subject to supervision by Community Corrections, but you must understand the importance of continuing with the NDIS support people that you have been provided with, and cooperating with all those people who give you support.

   All of those people are here to help you, [PHB].  It would be in your interests to keep working with those people and keep taking your medication.  Everyone wants you to keep improving, and … this Court certainly doesn't want you to have to come back here in the future…

   I am going to dismiss the application that was made against you, and I am going to bring an end to your custody order… I am not going to make any community supervision order.

8. I now publish my formal reasons for dismissing the Application and making the orders this morning. I anticipate that the legal representatives for the respondent will provide him with an explanation of both my oral and written reasons to assist the respondent to understand and comprehend the proceedings, consistent with terms of s 20(2) of the CLMI Act. It is important that this be done.

The proceedings

1. The proceedings, which are civil in nature being proceedings under pt 7 of the CLMI Act,[4] were first heard on 28 January 2025.  At that time, directions were made by Quinlan CJ to require reports to be prepared and to otherwise programme the matter to a substantive hearing.[5]

   [4] CLMI Act, s 101. See also O 4 r 2A of the Rules of the Supreme Court 1971 (WA) (RSC); and Practice Direction 9.20.

   [5] Orders made on 28 January 2025 (Folio 7).

2. The evidence in support of the Application, received pursuant to s 123(4), included documentary material as to the respondent's antecedents, reports of the psychiatric and medical assessments of the respondent, transcripts of hearings, various orders made in respect of the respondent by the District Court and the State Administrative Tribunal, and the proceedings and reports of the Mental Impairment Review Tribunal and its predecessor body.[6]

   [6] See the affidavit of Ms Katherine Elizabeth Gething affirmed on 25 November 2024 and the two volumes of documents described as the Book of Materials (BOM), identified as Ex A (volume 1) and Ex B (volume 2), 

3. Among other medical reports, an experienced forensic psychiatrist, Dr Edward Petch, prepared a detailed report dated 10 June 2025, pursuant to s 106(1)(a), which was incorporated into the Book of Materials.[7]  Dr Petch gave evidence and was cross-examined.

   [7] BOM vol 2, 473 – 556.

4. An assessment report dated 26 June 2025 was prepared by Ms Tayla Evans pursuant to s 106(1)(b), which was incorporated into the Book of Materials.[8]  Ms Evans is a senior community corrections officer with the Adult Community Corrections team within the Department of Justice.  Ms Evans gave evidence and was cross-examined.

   [8] BOM vol 2, 557 – 570.

5. The respondent led evidence from Mr Alan Van Der Steen, who was not cross-examined.  Mr Van Der Steen is the person within the office of the Public Advocate with delegated authority to make decisions on behalf of the respondent.

6. I also received detailed written submissions from both parties, which helpfully set out the background to the Application, the legislative framework, and the applicable principles.[9]

   [9] Applicant's submissions dated 17 July 2025 (AS); respondent's written submissions dated 21 January 2025 (RS).

Background to the Application

1. It is convenient to commence these reasons with an explanation of the orders to which the respondent is subject, and the genesis of the Application.

2. The respondent is a 49 year old Indigenous man.  Among other psychological diagnoses, the respondent suffers from a moderate intellectual disability (possibly in association with foetal alcohol spectrum disorder), schizophrenia, and an alcohol use disorder. 

3. The respondent is a 'supervised person' under the CLMI Act, being a person subject to a 'custody order'.[10]  

   [10] CLMI Act, s 9(1).

4. In April 2018, the respondent was made subject to a custody order by the District Court under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA),[11] which I will refer to as the Repealed Act.[12] The order was made in respect of a 'serious offence'. The transitional provisions in the CLMI Act operate such that a custody order made in relation to a person under the Repealed Act has effect as if it was a custody order under the CLMI Act.[13]

   [11] BOM, vol 1, 91.

   [12] The legislation was repealed with effect from 1 September 2024 and replaced with the CLMI Act.

   [13] CLMI Act, pt 14.

5. Until November 2021, the respondent was held in custody, including at Graylands Hospital. Since then the respondent has been living in the community pursuant to a 'conditional release order' made by the Governor in Executive Council under s 35(2) of the Repealed Act,[14] and more recently pursuant to a 'leave of absence order' under s 73(1)(b) of the CLMI Act.[15]

   [14] BOM, vol 1, 115 – 116.

   [15] BOM, vol 1, 343.

6. The custody order made in relation to the respondent has a limiting term of 6 years, which was set by the District Court in October 2024.[16] That limiting term, which was backdated to 27 September 2016, has now expired. However, the custody order continues in effect until an order is made under s 265(6) of the CLMI Act.

   [16] BOM, vol 1, 121 – 139 and 140.

7. A review of the respondent's custody order was undertaken by the Mental Impairment Review Tribunal in October and November 2024.[17]  That review was undertaken pursuant to s 69(1)[18] and s 254(3)[19] of the CLMI Act, although the Tribunal also had regard to the terms of s 103 thereof.[20] 

   [17] When the CLMI Act commenced operation, the Mental Impairment Review Tribunal replaced the former Mentally Impaired Accused Review Board.

   [18] Which authorises the Attorney General to request that a review be undertaken.

   [19] Which requires the Tribunal to undertake a review of existing custody orders as soon as practicable after the commencement of the CLMI Act.

   [20] Which requires the Tribunal to review custody orders and consider the need for extended custody orders to be made.  Pursuant to s 103(4), if the Tribunal considers it necessary, it must recommend that the Attorney General apply for an extended custody order.

8. The report issued by the Mental Impairment Review Tribunal, dated 18 November 2024,[21] did not recommend that the Attorney General apply for an extended custody order in respect of the respondent, as that was not necessary to ensure the adequate protection of the community against an unacceptable risk the respondent would commit a serious offence.

   [21] BOM vol 1, 324 – 341.

9. The foregoing report precipitated an application by the Attorney General under s 105(1) of the CLMI Act. That provision, by its terms, is limited to seeking an extended custody order in respect of the supervised person. Given the terms of the recommendation issued by the Mental Impairment Review Tribunal, such an application might initially be considered as somewhat unusual. However, the bringing of an application under that provision appears to be the only available pathway under the terms and scheme of the legislation.

10. In any event, consistent with the recommendation of the Mental Impairment Review Tribunal, the Attorney General has not pressed the application for an extended custody order with any vigour.  Within the written submissions filed on behalf of the applicant, counsel accepted it was possible that the Court may not be satisfied it was necessary to make an extended custody order, and further conceded that it was open to the Court to find that it was not necessary to make such an order.[22]  Further, at the hearing itself, counsel for the applicant conceded that, having regard to the evidence, an extended custody order was not required.[23]

    [22] AS [3] and [94].

    [23] ts 16.  

11. These circumstances provide context for the alternative relief for a community supervision order which was sought in the Application, which the applicant contends is necessary to ensure the adequate protection of the community. The applicant contends the respondent should remain under a supervision regime due to his 'rehabilitation, retraining, or resocialisation requirements', being the statutory phrase employed within s 114(2).

12. Counsel for the respondent submitted that neither an extended custody order nor a community supervision order were necessary to ensure protection of the community, bearing in mind the recent, positive history of the respondent in the community and given the adequacy of the supports presently in place.[24]

    [24] RS [38] – [65] and [66] – [79].

1. At the conclusion of the hearing I indicated to both counsel I was not disposed to grant the primary relief sought by the applicant, but would reserve my decision as to whether the alternative order sought by the applicant was appropriate in all the circumstances. 

2. For the reasons which now follow, I find that the applicant has not discharged the onus of satisfying the Court that a community supervision order should be made and I will dismiss the application for relief in that regard as well. 

Issues arising on the Application

1. There are, in effect, two substantive issues which require determination by the Court on the present Application, as well as a procedural matter. 

2. The procedural matter arises from an interlocutory application filed by the respondent.  That application seeks an order that a representative of the Office of the Public Advocate, namely Mr Van Der Steen, be appointed by the Court as the respondent's guardian ad litem for the purposes of this proceeding.[25] That application was filed on 17 July 2025, and was brought pursuant to O 70 r 2(5) of the Rules of the Supreme Court 1971 (WA) (RSC). 

   [25] Folio 14.

3. The first substantive issue is whether an extended custody order should be made pursuant to s 110(1) of the CLMI Act, which requires an analysis of the whole of the evidence to assess whether the statutory criteria in s 110(3) has been satisfied. The applicant bears the onus of satisfying the Court in this regard.

4. The second substantive issue is whether, if the Court is not satisfied that an extended custody order should be made, a community supervision order should be made in respect of the respondent, pursuant to s 110(4) and s 110(5). The applicant likewise bears the onus of satisfying the Court in this regard.

Legislative framework

1. The present Application is brought pursuant to pt 7 of the CLMI Act. I will address the relevant terms of that portion of the legislation shortly, together with the terms of pt 5 which are also relevant. Prior to that, it is necessary to identify the objects of the legislation and the broad principles to which this Court must have regard when applying the regime.

2. The objects of the CLMI Act, as outlined in s 7(1), include to ensure the protection of the community and to ensure persons with mental impairment who are charged with an offence:

   (a)are identified early in their contact with the justice system;

   (b)are given a reasonable opportunity to become fit to stand trial;

   (c)are given a fair hearing even if they are unfit to stand trial in accordance with ordinary procedures;

   (d)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

   (e)are subject to the least possible interference with their rights and dignity.[26]

   [26] CLMI Act, s 7(1).

3. The CLMI Act aims to ensure that persons who are subject to supervision orders are afforded procedural fairness in relation to the administration and management of those orders and are reintegrated into the community in a safe manner.

4. When performing a function under the CLMI Act, which extends to the exercise of powers and discretions by this Court, the protection of the community is the paramount consideration.[27] Further, in considering an application such as the present, the Court is required by the CLMI Act to have regard to the principles contained in s 7(2), which relevantly include:

   (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; and

   (e)that persons with mental impairment in the justice system should not be subject to outcomes under the CLMI 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.[28]

   [27] CLMI Act, s 8.

   [28] CLMI Act, s 7(2).

5. Part 5 regulates the making of orders that can initially be made in respect of an accused who has been acquitted on account of mental impairment, or has been found to have committed an offence in a special proceeding for unfit accused.[29]

   [29] CLMI Act, s 45(1).

6. Part 7 regulates the making of 'extended' custody orders and 'extended' community supervision orders which, if made, would replace existing orders in respect of a person. The relevant provisions regarding the making of extended custody orders are s 109, s 110, s 111 and s 112. In particular, s 110 empowers the Court to make an extended custody order. Although the statute does not expressly state who bears the onus, I proceed on the basis, in accordance with orthodox principles, that the applicant for relief bears the requisite onus to satisfy the Court the order should be made.

7. Before setting out the terms of the legislation, I should briefly describe the nature of an extended custody order and an extended community supervision order (as well as a community supervision order). 

8. A custody order (and an extended order of that nature) is an order that, subject to the CLMI Act, a supervised person be detained in custody at a place determined from time to time by the Mental Impairment Review Tribunal under div 3 pt 6 for the protection of the community.[30] 

   [30] CLMI Act, s 49 and s 109.

9. As appears from s 110(4), where the court is not satisfied that an extended custody order should be made, the court is empowered to make a community supervision order, provided it is satisfied of the matters in s 114(2). The legislation states that pt 5 applies in this regard 'as if the order were being made' under that part.

10. A community supervision order (and an extended order of that nature) is an order that a person, while residing in the community, must comply with the conditions of the order for the protection of the community.[31] 

    [31] CLMI Act, s 52 and s 113.

11. The statutory prerequisites under the CLMI Act for the making of an extended custody order are described in s 110(3). The relevant terms of s 110 are as follows, noting that the term 'serious offence' is defined to mean an offence listed in schedule 1 to the CLMI Act:

    s 110 Supreme Court may make extended custody order

    (1)  The Supreme Court may, on application under section 105(1), make an extended custody order in respect of the supervised person that is to have effect for the term set by the court.

    (2)   The term set for the order is its limiting term.

    (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.

    (4)    If the court is not satisfied as to the matter in subsection (3), but is satisfied as to the matter in section 114(2), it may make a community supervision order in respect of the supervised person.

    (5)Part 5, to the extent relevant, applies to the making of a community supervision order under subsection (4) as if the order were being made under Part 5.

12. As can be seen, the prerequisites for making a community supervision order under pt 7 of the CLMI Act are determined by s 110(4) and s 110(5), which pick up the matters in s 114(2). Section 114 states:

    s 114 Supreme Court may make extended community supervision order

    (1)The Supreme Court may, on application under section 105(2), make an extended community supervision order in respect of the supervised person that is to have effect for the term set by the court.

    (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.

13. I will return to the scope of this provision when addressing the facts of this matter, in due course.

14. The construction and scope of s 110 has not been the subject of specific analysis by this Court. The submissions filed by the parties addressed the manner in which the provision should be applied, particularly in light of the similarities between the text employed within the CLMI Act and the text used in the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). 

15. The parties also observed that the CLMI Act does not, within s 110, expressly prescribe a list of materials or factors that must be considered in determining an application for an extended custody order, in contrast to the approach adopted in pt 5 of the CLMI Act and under the HRSO Act.

16. I should therefore outline the approach I consider to be proper for the purposes of applying s 110 of the CLMI Act. Of course, the task of construing the relevant provisions of the CLMI Act is to be undertaken by reference to well established principes of statutory construction.[32]  Briefly stated:

    1.The focus of statutory construction is upon the text of the statutory provisions having regard to their context and purpose. 

    2.The statutory text is the surest guide to Parliament's intention.  A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.  The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.

    3.The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.  Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted.

    [32] The following principles are drawn from the decisions of the Court of Appeal in Webb v Tang [2023] WASCA 119 (Buss P & Vaughan JA) and Prichard v M 6-8 Legal Pty Ltd [2024] WASCA 4 (Mitchell JA, Hall JA & Solomon J), and the authorities collected therein.

17. The applicant submitted that the approach adopted on the authorities to the interpretation and the application of the definition of 'high risk serious offender' in s 7(1) of the HRSO Act should also inform the analysis of s 110(3) of the CLMI Act.

18. It must be accepted that the provisions are similar in concept and structure, and employ identical language in several respects.  Both regimes refer to 'acceptable and cogent evidence' and 'a high degree of probability' in relation to the threshold or degree of proof required.  Both regimes refer to 'the adequate protection of the community' and the 'unacceptable risk' the relevant person will commit a serious offence, and when referring to the making of the applicable order, use the language of necessity (that is, it must be 'necessary' to make the order).  The definition of 'community' in both regimes is also identical.[33]  Further, the paramount consideration in both regimes is relevantly similar, being the 'protection of the community' or the 'need to ensure adequate protection of the community'.

    [33] CLMI Act, s 9(3); HRSO Act, s 4. It includes any community and is not limited to the community of Western Australia or Australia.

19. The parallels between the regimes strongly support the applicant's submission. The enactment of the CLMI Act in terms which mirror the provisions of the HRSO Act renders relevant the analysis in the authorities which have construed the HRSO Act. Nonetheless, any interpretation or analysis of the CLMI Act must remain faithful to the statutory text, its context and purpose, consistent with the principles set out above.

20. Accordingly, when approaching s 110(3) of the CLMI Act, there is considerable force in the submission that the Court should apply the approach to the HRSO Act which was outlined in the plurality judgment of the High Court in Garlett v The State of Western Australia.[34] That approach has been applied in this Court on numerous occasions when considering the application of s 7(1) of the HRSO Act.[35] 

    [34] Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1 (Kiefel CJ, Keane and Steward J) (Garlett).

    [35] See, in this Court, the recent decisions of The State of Western Australia v Hansen [No 2] [2025] WASC 4 [30] and [50] (Fiannaca J), The State of Western Australia v Paraha [2025] WASC 20 [10] – [11] (Lemonis J), and The State of Western Australia v Williams [No 2] [2024] WASC 215 (Williams [No 2]) [39] – [41] (Lemonis J).

21. In their decision Garlett, the plurality explained the correct approach as follows, referring to the concept of a 'restriction order' used in the HRSO Act, which extends to both a custody order and a supervision order under that regime:[36]

    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 harm said to be in prospect. Further, whether a restriction order is "necessary" to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community. The Court is required to perform this evaluative exercise and come to its own determination as to whether to make a restriction order; it does not automatically follow from the inclusion of an offence in Sch 1 that a restriction order must be made.

    [36] Garlett [73] (Kiefel CJ, Keane and Steward JJ).

22. Further, the plurality continued:[37]

    Whatever may be said in the abstract of the relative seriousness of an offence designated as a "serious offence" for the purposes of the HRSO Act, it is always for the Court to determine whether there is an "unacceptable risk" that the offender will commit such an offence, having regard to the evidence as to the nature of the offending and the circumstances of the offender. Importantly, the evaluative exercise contemplated by s 7 of the HRSO Act is not an exercise involving the notional ordering in the abstract of the relative culpability of categories of offences. Rather, s 7 contemplates a practical evaluation concerned with the circumstances of the particular offending and the particular offender. While the requirement of an evaluation under s 7 depends upon the offender having been convicted of a "serious offence", ss 7 and 48 do not envisage the possibility that a restriction order might be made to prevent the commission of a serious offence, whether of the same kind or of another kind, unless the risk of further offending involves a real threat of harm to the community.

    [37] Garlett [84] (Kiefel CJ, Keane and Steward JJ).

23. It is evident from the foregoing passages that it is not sufficient that there be a risk that the offender will commit a serious offence, in the context of the HRSO Act. Rather, the risk to which the provisions are directed is the risk of further offending which involves a real threat of harm to the community.

24. Applying this analysis to the terms of s 110(3) of the CLMI Act, it is evident that the following approach should be adopted:

    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.[38]  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.[39]

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.

[38] Garlett [73] (Kiefel CJ, Keane and Steward JJ).

[39] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P and Buss JA); Western Australia v West [No 6] [2019] WASC 427 [24]; and Western Australia v ZSJ [2020] WASC 330 [47].

1. The second point I mentioned above (at [47]), concerning s 110 of the CLMI Act, was the absence of an express list of criteria within that provision. 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.

2. Within pt 7 of the CLMI Act, my attention was drawn to the terms of s 123(4) which identifies the material the Court may receive in evidence for the purposes of determining an application under pt 7 of the CLMI Act (which includes an application brought under s 110(1)). I accept those matters provide a useful framework through which to consider the two-stage assessment required by s 110(3). Section 123(4) makes reference to the following matters:

   (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.

1. Additionally, counsel made reference to s 47(1) of the CLMI Act, which identifies several matters, without limitation, to which the Court must have regard when making an order under pt 5, which includes the making of custody orders, community supervision orders and orders that a person be released unconditionally. The matters identified therein relevantly include:

   (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;

2. When considering whether to make a community supervision order, under s 110(4) and s 110(5) of the CLMI Act, the terms of pt 5 will apply as if the order was being made under that part. That will mean s 47 has application to the making of a community supervision order under s 110(4).

3. However, s 47(1) does not expressly apply to applications for extended custody orders under s 110(1). Whether that is an unintended lacuna in the legislation is not clear. Had the legislature intended that the terms of s 47(1) apply more broadly, that could readily have been so expressed. In the context of the fate of the present Application, I do not consider that anything of significance turns on whether s 47(1) has direct application to the primary relief sought, for an extended custody order. I therefore need not express any concluded view on this issue.

4. In any event, I recognise the general similarity between the matters identified in s 123(4) (which does have application) and s 47(1) such that the direct application of s 47(1) to applications under s 110(1) may well be unnecessary.

Evidence on the Application

The respondent's personal circumstances and antecedents

1. As earlier noted, the respondent is an Indigenous man who was born into challenging circumstances.  On any view, his upbringing was far from nurturing, with both his parents being heavy users of  alcohol, and his father being a user of drugs as well as being violent.  Both parents are now deceased.  His remaining family members are fractured and he has little by way of social support from his family.

2. The respondent's education was limited.  He left school at the age of 14 and was intermittently employed in various labouring jobs.  In 2014, he was placed on a disability support pension because of his mental illness.  For many years, the respondent lived an itinerant lifestyle. 

3. The respondent has a long history of substance abuse involving alcohol, cannabis, amphetamines and solvents.  He also suffers from epilepsy.

4. The respondent has a lengthy criminal record in this State and in the Northern Territory, dating back to 1992. The respondent's criminal history includes, in addition to the index offence committed in 2016, one other conviction for a 'serious offence' as defined in the CLMI Act, which occurred in 2007.

5. In June 2007, the respondent was convicted of detaining another to gain a benefit contrary to s 332(2)(a) of the Criminal Code WA (Criminal Code), as well as stealing a motor vehicle contrary to s 378 of the Criminal Code.  He was 31 years of age at the time.  The circumstances of these offences can be briefly stated.

6. The complainant was a 66-year-old male pensioner.  The respondent attended the complainant's home to test drive a vehicle for sale.  They agreed the complainant would drive him around the block.  While in the car, the respondent removed a serrated knife, about 23 cm in length from his pocket and held it near the complainant.  He demanded he drive him to Northam or would cut his throat and stab him in the guts. The complainant grabbed the blade of the knife and deliberately steered the vehicle into a tree.  The respondent was sentenced to 4 years imprisonment for these offences.

7. The respondent was released from custody in 2011, and commenced re-offending shortly thereafter. 

8. The respondent was released from custody for those offences in 2011, and shortly thereafter restarted offending, including multiple substance misuse offences, stealing, and home burglaries.  In 2012, the respondent was convicted of further offences of aggravated burglary, stealing a motor vehicle, fail to stop, and no authority to drive, and was sentenced to a further 18 months imprisonment.

9. The respondent was released in mid-2014.  By April 2015, the respondent had commenced re-offending, with multiple charges of trespassing, possession, breach of bail, stealing and disorderly conduct.

10. The respondent served a further sentence for these offences and was released in 2016.  Some six weeks later, he was alleged to have committed the index offence, which I will refer to as the alleged index offence.  It is apparent the respondent was not taking his antipsychotic medication during this period, and had been abusing a variety of substances including taking alcohol, cannabis, and amphetamines, and sniffing a tile grout cleaner and glue.

11. At the time of the alleged index offence, the respondent was 40 years of age.  The facts alleged were as follows.  On 27 September 2016, the complainant was at her grandson's home.  She was 77 years of age.  The complainant's grandson went out, leaving the complainant alone with the front door unlocked.

12. The complainant was in the kitchen when she felt someone come up behind her and wrap their arms around her waist. The complainant thought this person was her grandson, but as she turned around, she saw that it was the respondent.

13. The complainant asked, 'What do you want?'.  The respondent, who was standing within arms-length of the complainant, replied 'I want you to strip.'  The complainant said no and tried to get past the respondent, but the respondent blocked her escape.

14. The respondent said to the complainant, 'I'll give you this first' and produced a packaged syringe from his pocket.  The complainant tried to back away, but the respondent kept following her, holding the syringe.  The respondent tried to grab the complainant, but she grabbed his hand instead and said, 'Come on, get out.'

15. The complainant tried to steer the respondent towards the back door, but he pulled free.  The respondent picked up the complainant's handbag and mobile phone. Whilst still holding the syringe, the respondent said to the complainant, 'Go into the bedroom'.  The complainant refused and tried to get to the front door, but the respondent grabbed her by the arms and attempted to move her in the direction of the bedroom.

16. The complainant was then pushed by the respondent into a security screen, before he left the scene, taking the complainant's handbag and phone.

Orders made under the Repealed Act

1. On 27 March 2018, Glancy DCJ (as her Honour then was) found that the respondent was not fit to stand trial in relation to the alleged index offence, being the offence of aggravated indecent assault contrary to s 324(3) of the Criminal Code. This is a 'serious offence' as defined in sch 1 of the CLMI Act. Her Honour had regard to the expert reports of Dr Pascu and Dr Bala, which were adduced in evidence on the Application.[40]

   [40] BOM vol 1, 92 and 102.

2. Her Honour also found the respondent was not fit to stand trial in respect of other alleged offences, being the offence of aggravated home burglary and commit offence in dwelling contrary to s 401(2)(a) of the Criminal Code, and threats to harm contrary to s 338B of the Criminal Code.

3. As a result, on 6 April 2018, her Honour quashed the indictment, dismissed the charges, and made a custody order under s 19(4)(b) and s 19(5) of the Repealed Act.[41]  Section 19(5) provided:

   (5) A custody order must not be made in respect of an accused unless the statutory penalty for the alleged offence is or includes imprisonment and the judge is satisfied that a custody order is appropriate having regard to —

   (a) the strength of the evidence against the accused;

   (b) the nature of the alleged offence and the alleged circumstances of its commission;

   (c) the accused's character, antecedents, age, health and mental condition; and

   (d) the public interest.

   [41] BOM vol 1, 115

4. In addressing the circumstances of the offence, Glancy DCJ noted that the case against the respondent was a strong one, and explained as follows:[42]

   As to the circumstances of the offences, if [PHB] did commit them, they were committed within six weeks of his release from custody and at a time when, according to Dr Bala's evidence, the long acting medication with which he had been treated while in custody would still have been in his system.  The victim…was an elderly woman (77 years old) who was in the home alone at the time of the offences.  She was threatened by a stranger who seemed to have an intention to commit a sexual offence against her and he became aggressive and threatened her with a syringe when she did not comply with his request that she strip.  This would have been a very frightening experience for [the victim].

   [42] BOM vol 1, 84.

5. On 1 November 2021, the respondent was released on a conditional release order made by the Governor in Executive Council, pursuant to s 35(2) of the Repealed Act.[43]  That section provided as follows:

   s 35 Governor may release mentally impaired accused

   (1) The Governor may at any time order that a mentally impaired accused be released by making a release order.

   (2) A release order is an order that on a release date specified in the order the accused is to be released —

   (a) unconditionally; or

   (b) on conditions determined by the Governor.

   [43] BOM vol 1, 115

6. The respondent has been living full-time in the community since November 2021, that is for around four years.

Orders made under the CLMI Act

1. On 17 October 2024, pursuant to s 264 of the CLMI Act, Massey DCJ set a limiting term of six years on the existing custody order, which was backdated to commence on 27 September 2016.[44] 

   [44] BOM vol 1, 140.

2. Section 264 provides as follows:

   s 264 Court to set limiting term

   (1) If an application is made under section 261, the court must set a limiting term for the existing custody order under section 50.

   (2) If an application is made under section 262, the court may set a limiting term for the existing custody order under section 50 that is not the duration of the life of the person if satisfied that —

   (a) a life term would be clearly unjust given the circumstances of the offence and the person; and

   (b) the person is unlikely to be a threat to the safety of the community when released from custody.

   (3) The limiting term is taken to have commenced on the day on which the existing custody order was made unless the court, after taking into account any time that the person had spent in custody in relation to the offence before the order was made, orders that the term be taken to have commenced on an earlier day.

3. When making the order, his Honour stated as follows:[45]

   Whilst I accept it would have been frightening, the indecent assault, that is the grabbing of [the victim] by the arms in the context of telling her to strip, in my view is towards the lower end of the range of seriousness of offending of that type, serious though it is.

   [45] BOM vol 1, 135.

4. The term of the existing custody order expired on 27 September 2022, but that order continues until an order is made under s 265(6) of the CLMI Act.

Orders made under the Guardianship and Administration Act 1990 (WA)

1. In relation to the formal orders which have been made in relation to the respondent, I should mention the orders made by the State Administrative Tribunal. 

2. In July 2020, the State Administrative Tribunal found that the respondent was not able to make reasonable decisions about matters relating to his person and was in need of a guardian.  The Public Advocate was thereupon appointed, pursuant to the Guardianship and Administration Act 1990 (WA) (GAA), as a limited guardian of the respondent, with specific powers.

3. On 5 October 2020, the State Administrative Tribunal found that the respondent was not able to make reasonable decisions about his estate and was in need of an administrator.  As a result, the Public Trustee was appointed as a plenary administrator of the respondent's estate.[46] 

   [46] BOM vol 1, 454 – 456

4. On 21 July 2025, and on the eve of the hearing of the present Application, the above orders were reviewed by the State Administrative Tribunal.[47]  The previous administration and guardianship orders were revoked and replaced with fresh regimes. 

   [47] Exhibit D.

5. In respect of the administration orders, the State Administrative Tribunal ordered that the Public Trustee be appointed as a plenary administrator of the respondent's estate. 

6. As to the guardianship orders, the State Administrative Tribunal confirmed the Public Advocate as the limited guardian of the respondent, giving specific functions including:[48]

   …as the guardian ad item of the represented person, to defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person.

   [48] Exhibit D, order 7(e).

7. These further orders will continue until 21 July 2030, and be reviewed at that time.

Living in the community

1. As noted above, the respondent has been living full-time in the community since November 2021. 

2. During his time living in the community, the respondent has been monitored by a community corrections officer.  He has had stable residential accommodation with behavioural and other supports from funding through the National Disability Insurance Scheme (NDIS), which have met his disability-related needs. As earlier mentioned, the respondent has also been subject to orders made under the GAA.

3. The respondent's accommodation is arranged and funded through the Department of Communities.  The evidence is to the effect that this accommodation arrangement can continue for the foreseeable future.

4. The funding provided to the respondent through the NDIS is implemented under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).[49] In brief terms, the NDIS Act establishes a statutory framework for a national program for the delivery of supports and services funded under the NDIS to eligible people living with disability to help them in their everyday lives, supporting their independent and social and economic participation, and enabling them to exercise choice and control over the planning and the delivery of their supports.

   [49] I refer to, but need not repeat here, the overview of the NDIS regime which I set out in The State of Western Australia v White [No 7] [2023] WASC 432.

5. When a person becomes a participant in the NDIS, they develop a plan with the NDIA.  That has been the position with respect to the respondence since 2019.

6. In her report which I have referred to below, Ms Tayla Evans has provided some further evidence as to the NDIS support provided to the respondent.  Ms Evans has confirmed that the respondent has been supported by Enable WA since 2020 and his progress is outlined in various reports received from that organisation.  Relevantly, these reports state that Enable WA assisted with setting up his accommodation in July 2020 and supported the respondent to transition from two nights per fortnight to living full-time in the community.  Further, Enable WA initially provided one-to-one support, 24 hours per day but this support has been reduced to 7 hours a day.  Over time, the respondent has progressively taken more control over his finances and regularly attends appointments with his community corrections officer.

7. Focusing on the last two years in particular, I have evidence before me that the respondent had received funding over that period pursuant to a support plan approved by the NDIA, which began on 11 July 2023 and which was reviewed on 10 July 2025.[50]  The NDIS support plan included a total funding package of almost $500,000.  Of this amount, the sum of approximately $441,000 has been allocated to 'core supports' and the sum of $3,212.00 to 'transport'.  

   [50] BOM vol 1, 457.

8. In essence, this model of support in place for the respondent has allowed him to experience a greater level of independence while still receiving essential daily assistance, including two support sessions each day totalling seven hours.

9. As described in the evidence, the support received by the respondent, through the NDIS funding, may be summarised as follows:

   (a)support service through the organisation 'Enable WA', providing the respondent with day-to-day assistance. Report from Brenton Terry (Service Coordinator) and Mitch Burkett (Service Coordinator); [51]

   (b)positive behavioural supports through a support officer (referred to in the evidence as a PBS practitioner), being a clinical neuropsychologist, who helps with different strategies in managing the respondent's behaviour;[52]

   (c)support from an occupational therapist;[53] and

   (d)support from a specialist support coordinator.

   [51] ts 54; Exhibit A, pages 379 – 382 and 434 – 453.

   [52] ts 54; Exhibit A, pages 280 – 297, 315 – 316, 386 – 409.

   [53] Exhibit B, page 571 – 601.

10. The respondent also received general support from representatives of the Office of the Public Advocate.

11. The respondent's NDIS support plan was reviewed on 10 July 2025.  The respondent tendered the latest NDIS plan prepared for the respondent, which now operates until 10 July 2026 (the 2025/2026 NDIS Plan).[54]  The evidence is to the effect that the funding plan has been rolled over for a further year, and the level of funding will remain at the present level.[55]

    [54] Exhibit C.

    [55] ts 46; Exhibit C (Participant's Plan with end date of 10 July 2026).

12. Since his release from custody, and whilst living in the community, the respondent has remained compliant with the conditions of his supervision, and it is apparent that no concerns have been raised by stakeholders regarding the respondent's behaviour.  Ms Evans' evidence was to the effect that the respondent was consistently proactive in observing the conditions of his order.  The respondent has generally engaged well with the personnel from the Adult Community Corrections division.  Indeed, the evidence is that the respondent was also compliant with the conditions of the custody order whilst he was in custody.[56]

    [56] BOM vol 1, 327, 331.

13. In general terms, over time, the respondent has demonstrated increased independence including in relation to his medication management.[57]  The respondent has been exposed to alcohol and possibly illicit substances on occasions and has successfully abstained on each occasion.[58]

    [57] BOM vol 1, 332.

    [58] BOM vol 1, 332.

14. Whether or not the respondent is subject to a community supervision order, the organisation assisting the respondent under the NDIS plan, Enable WA, will continue to provide support to the respondent to achieve his NDIS goals.

Mental Impairment Review Tribunal

1. As earlier noted, the respondent's custody order was reviewed by the Mental Impairment Review Tribunal in October and November 2024. A comprehensive report was issued by that Tribunal which is dated 18 November 2024.[59] 

   [59] BOM vol 1, 324 - 341.

2. In that report, the Tribunal did not recommend that the Attorney General apply for an extended custody order in respect of the respondent, as that was not necessary to ensure the adequate protection of the community against an unacceptable risk the respondent would commit a serious offence.[60] 

   [60] BOM vol 1, 340 - 341.

3. Further, the Tribunal did not consider that the respondent was required to remain under supervision in any form.[61]

   [61] BOM vol 1, 338.

1. In forming its conclusions, the Tribunal had particular regard to the psychiatric report prepared by Dr Rachael Griffiths dated 29 April 2024, the neuropsychological reports prepared by Dr Mandy Vidovich dated 16 April 2024 and 16 October 2024, a report from community corrections dated 23 April 2024, a report from Enable WA provided in August 2024, and submissions received from the respondent's solicitor.

2. I should also note that, on 25 October 2024, the Tribunal made a leave of absence order in relation to the respondent, pursuant to s 73(1)(b) of the CLMI Act.[62]  As a result, the respondent is not required to return to his place of custody at the end of this period of leave.

Report of Dr Rachael Griffiths

[62] BOM vol 1, 343

1. The Mental Impairment Review Tribunal had particular regard to the opinion of Dr Griffiths in her report dated 29 April 2024.[63]

   [63] BOM vol 1, 339.  The report of Dr Griffiths is at BOM vol 1, 307 – 314.

2. Dr Griffiths was of the opinion that the respondent displayed no evidence of perceptual disturbances or delusional beliefs.  The respondent had some insight into his mental illness and the need for treatment, but had no understanding of the limitations of his functioning, according to Dr Griffiths.  The respondent's intellectual impairment renders him vulnerable to difficulties coping when stressors occur, and in managing difficult situations.

3. Dr Griffiths noted that the respondent had not had problems coping with stress for at least a year (as at April 2024), but recognised that it could possibly cause problems in the next review period, although ultimately considered that was unlikely.

4. Dr Griffiths outlined the positive progress of the respondent in the community but recorded the respondent's belief that he only needed support workers because they were required as a condition of his orders, and that he would refuse to engage once the order ceased to have effect.

5. Dr Griffiths identified the risks for future violence on the part of the respondent, including impulsive violence towards an authority figure, with it being less likely that serious harm would be involved to the victim in such a scenario.  Dr Griffiths identified a risk scenario for violence involving violence in the commission of an 'acquisitive offence' such as home burglary or car theft.  Dr Griffiths found it difficult to speculate about the respondent's risk of sexual offences as there had been only one known incident in this regard, being the alleged index offence.

6. Overall, Dr Griffiths assessed the external restrictions provided by the conditional release order, and the tenancy agreement under the GAA orders, provided an excellent structure for managing identified risk factors.

7. Dr Griffiths concluded that the respondent required a longer period of supervision in the community to provide the necessary constraints to reduce the risk of the respondent's reoffending, bearing in mind the likelihood, in her view, that the respondent would likely cancel all supports and resume alcohol consumption if the CLMI Act regime was not in place. Dr Griffiths observed that, through a prolonged period of prosocial modelling through interactions and supports, the respondent might develop the insight into his risk factors and be intrinsically motivated to avoid known precipitates to violence. As a result of his cognitive impairments, Dr Griffiths concluded that the respondent is likely to need an extended period, perhaps several years, being subject to such orders to achieve this change.

Reports of Dr Mandy Vidovich

1. I refer to the neuropsychological reports prepared by Dr Vidovich, who is a clinical neuropsychologist, which are dated 29 July 2020 and 16 April 2024.[64]  Dr Vidovich also prepared a positive behavioural support plan for the respondent dated 3 November 2022, and remains the PBS practitioner assisting the respondent under his NDIS plan.[65]  The reports were adduced in evidence on the Application.  

   [64] BOM vol 1, 251, 315,

   [65] BOM vol 1, 280.

2. In her earlier report, Dr Vidovich described her interview with the respondent, explaining that he had a mildly restricted affect at the time, but was socially appropriate and not psychotic. The respondent spoke about his previous diagnosis of schizophrenia, and described his daily functioning, considering himself independent.

3. Dr Vidovich observed that the respondent's full scale IQ was extremely low, and there was limited auditory immediate attention and working memory span, although he had a sound ability to attend to and manipulate visual information. The respondent's verbal and receptive language was impoverished, and he dealt more strongly with visuospatial and perceptual tasks.  There was some capacity to learn and retain new information. According to Dr Vidovich, executive dysfunction was apparent, characterised by impairment in planning, organisation, abstract reasoning, generativity and complex attentional capacity.

4. As at July 2020, Dr Vidovich noted that the respondent was beginning to learn how to cope living on his own.  Changes were being introduced at that time into his levels of support to improve his levels of independence and daily living skills.  A positive behaviour support plan was being developed at the time to manage ongoing risk factors and psychological well-being, and managing anxiety related to change.

5. Dr Vidovich assessed the respondent as requiring help in decision making (through a guardian) as well as financial management, in particular due to the difficulties he had with budgeting and bill paying.  The respondent also required occupational therapy input to support his daily routine, a dietitian, social support, and regular medical input and psychiatric review.

6. In her more recent assessment, Dr Vidovich reports that the respondent has been very accepting of his NDIS supports and there had been no behavioural concerns.  Dr Vidovich considered the respondent was well managed by his general practitioner and the NDIS support teams.  The respondent continues to see his general practitioner to receive his medication on a quarterly basis and has remained compliant with his medication regime.

Evidence of Dr Edward Petch

1. Dr Petch is an experienced forensic psychiatrist. He prepared an expert report pursuant to s 106 of the CLMI Act, dated 10 June 2025. The report is extremely comprehensive and has been of considerable assistance to the Court, providing a detailed and yet digestible evaluation of the complex psychological position of the respondent.

2. Dr Petch gave his evidence in a considered and balanced manner, giving reasons where appropriate.  The respondent did not challenge the expertise of Dr Petch.  I accept the views and opinions expressed by Dr Petch in his report and in his evidence at the hearing.

3. In providing his opinion, Dr Petch explained that the purpose of the evaluation is primarily to evaluate the risk of the respondent committing a further violent serious offence in the community, and the level of risk without an extended custody order.  In order to achieve that and place the risk in context, Dr Petch first reached some conclusions regarding the respondent's psychiatric diagnoses.  He explained that these disorders contribute to the respondent's risk if they remain unchanged, but they also potentially provide ongoing avenues for risk management.[66]

   [66] BOM vol 2, 525.

4. The following matters are of particular significance in the report, in my view, which I draw from the summaries prepared by both parties to the Application.

5. There is evidence throughout his life that the respondent has suffered from a moderate intellectual disability and his deficits appear to be global and across multiple areas.  With ongoing persistent support, he has made slow but very significant progress.  He manages his day-to-day life very well.

6. The respondent's alcohol use disorder has been very severe and enduring, although it is currently in remission by virtue of being in a controlled environment.  He has previously reverted to alcohol use when released into the community unsupervised.

7. Although the respondent has expressed that he will not return to alcohol use even in the absence of an order prohibiting it, Dr Petch considered "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".

8. Dr Petch considers alcohol the major determinant of his risk of future serious offending.

9. The respondent's drug use is in remission by virtue of the restrictions of his custody order and has stated he no longer wishes to use drugs.  His drug use has contributed to offending because he committed offences to fund his habit and the drug use almost certainly provoked psychosis and the disturbances caused by this disorder contributed to his behaviour.

10. Dr Petch considered schizophrenia was the most apt diagnosis for his psychosis and in his opinion the respondent needs to continue with treatment indefinitely if he is to remain as well as he is at present.

11. Dr Petch considered, having regard to the internationally recognised diagnostic system of the American Psychiatric Association known as DSM-5, the respondent is suffering from:[67]

    (a)intellectual disability (moderate in severity and ongoing indefinitely);

    (b)schizophrenia (in remission with treatment);

    (c)alcohol use disorder (in remission);

    (d)multiple substance use disorders (in remission);

    (e)antisocial personality disorder (currently mild in severity); and

    (f)generalised anxiety disorder (mild in severity).

    [67] BOM vol 2, 525 – 536.

12. The respondent's total score on the Psychopathy Checklist-Revised (PCL-R) was in the lower range, and at 16 did not meet the threshold for a diagnosis of psychopathy to be made.  Dr Petch used the Historical Clinical Risk Management-20, a structured professional judgment tool, to assess the respondent's risk of violence.  Dr Petch considered that the following historical items were present, namely violence, other antisocial behaviour, relationships, employment, major mental disorder, substance misuse personality disorder, traumatic experiences, and treatment or supervision response.  The following clinical items were also present, according to Dr Petch, being impaired insight and symptoms of major mental disorder.

13. Dr Petch considered the following risk management items were highly relevant: violence, substance misuse, major mental illness, insight, current symptoms of major mental illness, current treatment or supervision response, professional services and plans, living situation, personal support, treatment and supervision response, and stress and coping.

14. Using the Risk of Sexual Violence Protocol version 2, the risk factor for the respondent that was not included in the Historical Clinical Risk Management-20 was 'physical coercion in sexual violence'.

15. According to Dr Petch, the respondent's propensity to commit serious offending is underpinned by his intellectual disability, antisocial personality disorder, alcohol use disorders and schizophrenia.

16. Dr Petch concluded that the Court would need to weigh up the limitations an extended community supervision order would continue to place on the respondent's freedom and the extent to which the practical and conceptual consequences of this upon him balances against the risk.

17. Dr Petch then addressed various risk scenarios within his detailed report.[68]  I will summarise these scenarios below and Dr Petch's assessment in relation to those scenarios.

    [68] BOM vol 2, 551 – 555.

    1.The first specific scenario examined by Dr Petch is in effect the status quo, in which a community supervision order is in operation in relation to the respondent, with essentially the same conditions as at present. 

    As to this scenario, Dr Petch opined that it was possible to assert with a degree of confidence that the current prevailing situation would continue into the foreseeable future.  Dr Petch noted this was subject to the respondent's accommodation position remaining as it presently is, and his NDIS funding remaining as it is, and on the basis the respondent continues to engage with his community activities as they are.

    Dr Petch described the current circumstances as being 'fairly optimal'.  He noted that the respondent is 'well and stable' and there have been no behavioural concerns or offending behaviour.  The respondent is presently fully compliant with the conditions of this order, particularly his abstinence from alcohol and drugs.

    2.The second scenario is one in which an extended community supervision order is not imposed, but the respondent continues with his current levels of supervision. 

    Dr Petch described this scenario as 'optimal' from the respondent's perspective.  This scenario is predicated on the respondent remaining abstinent from alcohol and drugs and his mental health remains stable.  The main material difference, relative to the first scenario, is that the respondent would not attend or be supervised by community corrections, nor have regular testing (on the assumption that no testing order is presently in place). 

    3.The third scenario is one in which an extended community supervision order is not imposed and the current levels of supervision are ceased.  The third scenario is a problematic one, according to Dr Petch. 

    This third scenario, as described by Dr Petch, is predicated on the risk that the respondent would act as he has indicated and so withdraw from his current level of support.  The respondent had indicated to Dr Petch that he did not wish for any order to be made in relation to him and he wished to be 'a free man'.  Dr Petch understood that this sense of 'freedom' was highly valued by the respondent.[69]

    Dr Petch explained that the respondent has little insight into his limitations and if he proceeded to withdraw, he would be highly likely to find, after a short period, that community living without support is difficult. 

    Dr Petch sketched out a series of actions and steps which might find the respondent, in this scenario, relapsing into substance abuse.  This of course is dependent on various factors.  However, the risk of returning to alcohol and drug abuse is a real one, in this scenario, given the respondent's limited insight and history. 

    [69] ts 43 – 44.

18. As things presently stand, according to Dr Petch, there is a current low level of risk to the community of further serious offending by the respondent.  If this residual risk is found to be acceptable to the community, Dr Petch opined that it may be possible to conclude that an extended supervision order would continue to assist in keeping the risks down to a level the Court considers acceptable to the community. 

19. Dr Petch concluded that, if the Court found no supervision order was necessary, without the containment, monitoring and supervision provided by the order that has been in place, the risk of the respondent withdrawing from his current support and relapsing into substance misuse is significant.  If that scenario were to occur, descent into serious offending is more likely to occur than not, in due course.

20. Ultimately, Dr Petch concluded that, without an extended custody order, it is more likely than not that, in due course, the respondent would commit a serious offence as defined by the CLMI Act. That said, Dr Petch concluded that the risk to the community created by the respondent was being adequately contained by the current supervision regime and its conditions. Dr Petch expressed the opinion that the respondent should remain under supervision due to his rehabilitation, retraining or resocialising requirements. In the course of cross‑examination, Dr Petch accepted that a balancing process was involved and recognised the positive progress which the respondent had made over recent months and years.

21. Dr Petch's opinion was that an order of at least 36 months was necessary in this regard.  As to the length of the order, Dr Petch explained his assessment in this regard as follows:[70]

    DR, PETCH: … if any order is imposed by this court, it will be seen by [PHB] as an imposition upon his freedom.  This is what he told me at interview quite clearly, which is he – he did not wish the order – any order to continue.  He wishes to be, in his words, a free man.  And that will enable him to make various choices and therefore I thought that any imposition made by the court should be as short as possible, which is in the spirit of the Act.

    However, I was also of the belief, having concluded that I thought an extended supervision order is necessary, that coming back to court at – at a very early date would not offer him the opportunity to have demonstrated progress sufficiently for any such order to be overturned in a future hearing.

    So I suggested 36 months, simply because I thought that would be enough time for future progress to be documented, and it wouldn't be so long that the order would remain in place longer than is absolutely necessary.  So it was purely a balance, because I recognise it's up to the court's discretion, but being asked for my opinion, it's difficult to pick out a particular number… [T]hat was just a number that I thought would be reasonable in the circumstances. 

    Given the length of time it has taken up to now for him to reach this point in his rehabilitation journey, progress is slow and steady, and I thought three years would be the time for significant progress to be made, such that if … an order is made today, in three years there may be a chance for sufficient progress to be made for there not to require a further order ...

Evidence from the Adult Community Corrections division

[70] ts 31.

1. Ms Tayla Evans is a senior community corrections officer with the Adult Community Corrections division of the Department of Justice.  Her report dated 26 June 2025 was tendered in evidence.[71] 

   [71] BOM vol 2, 557.

2. The evidence of Ms Evans was not contentious and I accept her evidence as contained in her report and as given at the hearing.

3. Ms Evans confirmed in her report that the respondent has been in the community on a conditional release order since November 2021 and has been subject to monitoring by a community corrections officer since that time, with no reported concerns.  Further, the respondent has demonstrated willingness to comply with lawful directions, including engaging with programmatic intervention.

4. Between January and November 2023, the respondent voluntarily attended 19 sessions of substance abuse counselling through the Wungening Aboriginal Corporation, which offers culturally-secure treatment for individuals with alcohol and other drug issues.

5. Since his release in November 2021, the respondent has maintained stable accommodation.  He was supported by the NDIS to secure his own Department of Communities residence.  The respondent has received support from the NDIS since November 2019.

6. Having regard to Dr Petch's recommendations, the conditions proposed by Ms Evans, if a community supervision order is to be imposed, are substantially the same as the conditions of the respondent's current leave of absence order.  The terms proposed by the applicant are set out in Attachment A to these reasons.

Disposition

Whether a guardian ad litem should be appointed?

1. The respondent seeks an order, pursuant to O 70 r 2(5) RSC, that Mr Van Der Steen be appointed as the respondent's guardian ad litem for the purposes of this proceeding. The Attorney General did not oppose the order. The order is sought because, subject to an exception not presently relevant, O 70 r 2 provides that a 'person under a disability' cannot defend 'any proceedings' except by a guardian ad litem. 

2. Order 70 r 2(5) and r 2(6) RSC are in the following terms:

   (5)   If a person under disability is a represented person, the next friend or guardian ad litem of the represented person in any proceedings must be —

   (a)    a guardian or administrator of the represented person authorised under the GAA Act Part 5 or 6 to act as next friend or guardian ad litem, as the case may be, in those proceedings; or

   (b)     some other person appointed by the Court to be the next friend or guardian ad litem, as the case may be, in those proceedings.

   (6)      An appointment by the Court under subrule (5)(b) may be —

   (a)         of its own motion; or

   (b)         on an application made under rule 5.

1. The application to appoint a guardian ad litem was supported by an affidavit from Mr Van Der Steen affirmed on 17 July 2025.  In that affidavit, Mr Van Der Steen deposed that he had no interest in the present proceedings adverse to the respondent, and sought to be appointed as the guardian ad litem of the respondent solely for the purposes of the Application.

2. I was initially disposed to grant the order,[72] but a closer review of the relevant provisions led to some further communications from the Court to the parties following the hearing.  On further analysis, I do not consider an order appointing a guardian ad litem, pursuant to the power of the Court in O 70 r 2(5)(b), is required. My reasoning is as follows:

   1.Order 70 RSC applies to the present proceeding. The provision extends to 'any proceedings'. The present Application is a civil proceeding which accords with this description. The prohibition in the rule cannot be dispensed with without a provision in the rules giving the Court the power to do so.[73]

   2.It was not in dispute that the respondent is a 'person under a disability', as that term is defined in O 70 r 1 RSC. The respondent meets that description because he is a 'represented person', being a 'person in respect of whom a guardian or administrator has been appointed under the GAA, having authority as 'the guardian ad litem of the represented person, to defend or settle specified proceedings, some proceedings, or all proceedings, that are taken against the represented person'.

   3.However, an order of the Court pursuant to O 70 r 2(5)(b) RSC would only be required if there was not already a person appointed as the 'guardian or administrator of the represented person authorised under the GAA Act Part 5 or 6 to act as next friend or guardian ad litem'. The Public Advocate, acting through Mr Van Der Steen, already holds such a position, pursuant to the orders made by the State Administrative Tribunal. This is made clear by O 70 r 3(2) and r 3(3) RSC, which state:

   (2)    Save as provided by subrules (5) and (6) or by rule 5, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary for the purpose of a proceeding to which this rule applies.

   (3)     If a person under disability is a represented person, a guardian or administrator authorised under the GAA Act Part 5 or 6 to act as next friend or guardian ad litem , as the case may be, of the represented person in the proceedings is the next friend or guardian ad litem , as the case may be.

   4.Given the pre-existing appointment of a guardian ad litem, the applicable provision in rule 2(5) is par (a).  It is therefore not necessary to exercise the power in par (b).   

   [72] ts 14.

   [73] Gething M, Joseph R and Tomasi B, Civil Procedure : Western Australia (vol 1), [70.2.2] and the authorities cited therein.

3. On this approach, it may only be necessary to regularise the proceedings by amendment to reflect that the respondent acts by the Public Advocate in its capacity as guardian ad litem. That would be in conformity with O 70 r 2(1)(b), O 70 r 2(5)(a) and O 70 r 3(3) RSC. I propose to make such an order.

4. In making this order, I recognise there may be an argument that, having regard to the terms of pt 7 of the CLMI Act and the operation of the provisions therein, the regime in O 70 RSC is thereby excluded. This point was not argued before me and so I will refrain from expressing any concluded views on the point. It is appropriate to note the following matters, however.

5. The relationship between the regimes would require an assessment of the special nature of proceedings under pt 7, in which a person having a 'mental impairment' will participate, and be bound, as a respondent to an application brought by the Attorney General. The nature of such proceedings is starkly different to the civil proceedings litigated in this Court in which questions of the appointment of next friends and guardians ad litem often arise for consideration.

6. The rationale which underlies the typical appointment of a guardian ad litem (or a next friend) is that the law considers the litigant is incapable of asserting or protecting their rights, or forming a judgment as to the necessity to bring or defend proceedings.[74]  Such appointments are also typically required because, in civil proceedings, the Court requires there be a person on the record who can consent to settlements, and who is personally liable for costs.[75]    

   [74] Gething M, Joseph R and Tomasi B, Civil Procedure : Western Australia (vol 1), [70.2.1].

   [75] Gething M, Joseph R and Tomasi B, Civil Procedure : Western Australia (vol 1), [70.10.1].

7. The relationship between the regimes also requires an analysis of the provisions found within the CLMI Act, which have specific application to proceedings under pt 7, and which may be said to operate to render the application of O 70 RSC to the proceedings as unnecessary. Specifically, there are provisions within the CLMI Act concerning the representation and protection of persons in proceedings under the legislation, which have a degree of similarity to the roles undertaken by a guardian ad litem. 

8. For example, the Court or the Mental Impairment Review Tribunal may order that a 'supervised person' be provided with 'any support measure that is reasonably available',[76] and may appoint a 'communication partner' to undertake the functions specified in s 21(2) of the CLMI Act, namely to communicate and explain to the 'supervised person' any questions put to them, and to communicate and explain to the Court any information given by the 'supervised person'. Further, in proceedings under pt 7 of the legislation, close family members or carers of the 'supervised person' may be permitted to make submissions to the Court.[77]

   [76] CLMI Act, s 20(3). The term 'support measure' is defined in s 9(1) to extend to any measure that may facilitate participation of a 'supervised person' in the proceedings, including to have a person near to them who is approved by the Court to provide them with support.

   [77] CLMI Act, s 22(2). That said, there are other provisions in the CLMI Act which apply to proceedings under pt 3, but do not apply to pt 7, which also provide a layer of support for accused persons. See s 36 (notification of the Chief Mental Health Advocate) and s 38 (appointment and role of legal practitioners) of the CLMI Act.

9. In the circumstances, in conformity with O 70 RSC and as the respondent has an appointed guardian ad litem, I propose to make an order to amend the name of the respondent to reflect the role of the Public Advocate as his guardian ad litem in these proceedings.

Whether an extended custody order should be made?

1. The applicant concedes, on the available evidence, that the statutory requirements for the making of an extended custody order under s 110(3) of the CLMI Act have not been satisfied.  That is a concession which is consistent with the recommendation which was made by the Mental Impairment Review Tribunal in November 2024. 

2. It is a concession which was well made, in my respectful view. 

3. The concession does not, of course, obviate the need for the Court to consider the issue and form its own assessment as to whether an extended custody order should be made.

4. The analysis required under s 110(3) involves two distinct evaluative steps, as explained earlier. The first evaluation that is required 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, being an extended custody order in this case. Assessments of the possible serious offences which may be committed, and the nature and extent of the possible harm, are required.

5. The most significant aspects of the evidence which are relevant to the assessment just described are the respondent's antecedents, the circumstances of the alleged index offence which was dealt with in the District Court in March 2018, the most recent psychiatric assessments of the respondent, and the demonstrated conduct of the respondent whilst he has been living in the community over the past several years.

6. The respondent's antecedents include two 'serious offences', including the alleged index offence.  The first of these occurred in 2007 and the alleged index offence took place in September 2016.  In between these offences, the respondent committed a range of offences and spent time in custody, evincing a pattern of re-offending in a relatively short time upon his release.  The alleged index offence discloses an intention on the respondent's part to commit a sexual offence and to use violence, in that case against an elderly and vulnerable woman.  The alleged offence was serious, described by Glancy DCJ as 'frightening' for the victim, but may be described, as Massey DCJ later noted, at the low range of seriousness. 

7. It may be observed there is one instance of sexual offending in the respondent's criminal history and at least two instances where the victims were vulnerable.  Overall, the respondent's antecedents do not disclose any particular pattern of offending.  I therefore accept the applicant's submission that there is no evidence of a propensity on the part of the respondent to engage in conduct that could constitute a serious offence in the future.[78]

   [78] AS [78] – [81].

8. It is apparent on the evidence that the respondent suffers from a moderate intellectual disability with a series of global deficits.  His diagnoses include schizophrenia, alcohol use disorder, and antisocial personality disorder.  The respondent will need to continue treatment for his schizophrenia indefinitely, and remains at risk of relapse in terms of the use of alcohol, which is a major determinant of his risk of future serious offending. 

9. The respondent's propensity to commit serious offending in the future is underpinned by his intellectual disability, his antisocial personality disorder, alcohol use disorder, and schizophrenia, according to Dr Petch.  That said, in his most recent report, on which he was cross‑examined, Dr Petch opined that there is at present a low level of risk of further serious offending by the respondent.  I understood the assessment of Dr Petch to be that the respondent has progressed well, although slowly, with his rehabilitation in the community.  

10. Dr Petch noted that the respondent is 'well and stable' and there have been no behavioural concerns or offending behaviour whilst he has been living in the community.  The respondent has been fully compliant with the conditions of the orders to which he is subject, particularly in relation to abstinence from alcohol and drugs, despite being faced with opportunities to consume such substances.

11. Dr Petch did, however, caution that the effectiveness of the current management plan did not mean that it was no longer required.  In his opinion, there were possible circumstances in which the respondent's risk could escalate.

12. I accept the assessment of Dr Petch in this regard, which was carefully reasoned and wholly consistent with the evidence of the respondent's reported behaviour in recent years.

13. I do not discount the risk that further offending by the respondent could involve the commission of offences in which there is serious harm to a person.  I refer in particular to the assessment of Dr Griffiths in this regard, as well as Dr Petch.  The commission of an 'acquisitive offence' was identified as an example by Dr Griffiths.  Overall, on the evidence and given the antecedents of the respondent, that risk must be assessed as low. 

14. On the available evidence, I am not prepared to find that there is an unacceptable risk the respondent would commit a serious offence in the future, in the absence of an extended custody order. The evidence points against any such conclusion. In this regard, I also remind myself of the statutory language employed in s 110(3) and, in particular for the Court to be satisfied by 'acceptable and cogent evidence' and 'to a high degree of probability' of the matters stated therein.

15. Had I found the risk to be 'unacceptable', the nature and extent of that risk would inform the evaluation or assessment as to whether an extended custody order is necessary to ensure adequate protection of the community.  

16. It is apparent the respondent has complied with the conditions of the conditional release order and his leave of absence order since he began living in the community in November 2021.  The respondent has a stable accommodation arrangement which is expected to continue into the foreseeable future. 

17. The respondent also receives considerable support from services funded through his NDIS plan, which has recently been rolled forward for a further year.  Through these services, the respondent receives assistance with daily routines, support for attending appointments, and attending events in the community.  The respondent is also supported by a positive behaviour specialist, an occupational therapist, a specialist support coordinator, and a general practitioner.

18. In essence, the respondent has progressed well over the past several years.  On the evidence, the respondent has been living in the community, in a stable environment with suitable accommodation, and adopting what evidently appears to be a pro-social approach to life, since around November 2021.

19. In the case of the respondent there are two matters which emerge from the objects and principles stated in the CLMI Act which are of particular cogency in the context of this Application, and which are not, on my assessment of the risks involved, outweighed in the present circumstances by the paramount consideration in s 8 of the legislation.

20. The first matter is that persons with mental impairment should be subject to the least possible restriction on their freedom consistent with the protection of the community. This principle is expressly identified in s 7(2)(a), and forms one of the objects of the legislation as described in s 7(1)(b). I must therefore recognise that an offender's entitlement to be at liberty is not lightly to be denied.

21. The second matter is the principle in s 7(2)(e) of the CLMI Act that persons with mental impairment in the justice system should not be subject to outcomes under the CLMI Act that 'restrict their freedom more severely than if they had been convicted' of the alleged offence.

22. In the present circumstances, the respondent was alleged to have committed a serious offence in September 2016, being the alleged index offence of aggravated indecent assault. There were additional alleged offences of aggravated home burglary and commit offence in dwelling, and threats to harm. The respondent was dealt with by the District Court in March 2018. Subsequently, a limiting term under the CLMI Act was set as 6 years, which expired on 27 September 2022, having been backdated to commence in September 2016.

23. The respondent has thus been the subject of orders restricting his liberty since around September 2016, which is almost 9 years. Over that period, the respondent was subject to a custody order under the Repealed Act for the period from March 2018 through to November 2021. He has been living in the community since that time, but subject to formal supervision arrangements under the Repealed Act and the CLMI Act over that period, all of which operate to restrict the respondent's freedom.

24. I consider that, had the respondent been sentenced in March 2018 for the alleged index offence, and the associated offences, he would very likely no longer be subject to any custodial or other disposition for those offences.  These circumstances engage the principle in s 7(2) which I have mentioned, and to which I must have regard.  I consider this is an important consideration in the present context, but I do not suggest it is a controlling or a decisive factor.

25. These matters do provide further support for the assessment I have made on the evidence that the requirements stated in s 110(3) of the CLMI Act are not presently satisfied, and certainly not to the high standard the legislation requires. Indeed, in my respectful view, the making of an extended custody order in respect of the respondent, at this stage of his life and given his progress to date, would be highly counterproductive to his health and to his further progress.

26. I will therefore dismiss the application for an extended custody order.     

Whether a community supervision order should be made?

1. The alternative relief sought by the applicant, and opposed by the respondent, was for the imposition of a community supervision order pursuant to s 110(4) of the CLMI Act. In order to make such an order, I would need to be persuaded by the applicant that, to ensure the adequate protection of the community, the respondent should remain under supervision 'due to' his 'rehabilitation, retraining or resocialisation requirements'.[79] 

   [79] CLMI Act, s 110(4) and s 114(2).

2. I must approach the analysis by reference to the terms of pt 5 of the legislation,[80] particularly the matters identified in s 47(1) of the CLMI Act, as well as the objects, principles and paramount consideration identified in s 7 and s 8 of the legislation. In the course of analysing the evidence, I have addressed the matters identified in s 47(1), including the need for protection and safety of the community, the nature and seriousness of the alleged index offence and the respondent's antecedents, the nature of the respondent's mental impairment, the relationship between his impairment and offending, and the adequacy of resources available to treat the respondent in the community. These are all matters to which I give weight in the analysis, particularly the last consideration bearing in mind the evidence that the respondent has access to stable accommodation which will continue and to NDIS supports an ongoing basis.

   [80] Given the terms of s 110(5).

3. There is no further analogous assessment under s 114(2), unlike under s 110(3), of any 'unacceptable risk' the supervised person poses to the community, although the protection of the community naturally remains the paramount consideration under the legislation. Of course, the consideration by the Court as to whether a community supervision order under s 110(4) should be made occurs only following non-satisfaction of the matters in s 110(3), which requires that risk assessment.

4. The applicant submitted that a community supervision ought be made having regard to the respondent's 'rehabilitation, retraining or resocialisation requirements', and the risk the respondent would voluntarily cease his other sources of support.[81]  That scenario might then lead to a resumption of alcohol use by the respondent, which may precipitate a general relapse on his part.  Those 'other sources' of support, which sit outside the criminal justice regime, include the NDIS supports, the respondent's access to a general medical practitioner, and the assistance provided to him through the Public Advocate, among others.

   [81] AS [105] – [112].

5. Dr Petch considered that the respondent's risk to the community appears to be currently well managed as a result of his NDIS support and the containment provided by the custody order.  However, if one of those pillars was removed, the risk would no longer be adequately managed, in his view.  Dr Petch considered that a community supervision order was required.  Dr Petch concluded that the respondent should remain under supervision due to his rehabilitation, retraining or resocialisation requirements, but recognised the balancing process required under the legislation.

6. I will first address the risk the respondent would cease his other forms of support.  This was a risk expressly addressed by the medical practitioners including Dr Griffiths in her report and by Dr Petch in his report and in his evidence during the hearing, as just noted.

1. I must accept on the evidence that the respondent has, on several occasions, reported to his medical practitioners and others, a desire to cease or cancel his supports and to resume alcohol consumption.  That desire has been expressed in different ways and with varying degrees of forcefulness.  These statements are, it would appear, founded in the respondent's desire to be a 'free man'.  The respondent highly values that freedom. 

2. I did not assess this desire as being borne from any cultural factor specific to the respondent's Aboriginality.[82]  Rather, it is driven more by a general philosophy on the respondent's part to have the right to make his own decisions and to have the freedom to choose his own path.  The respondent craves a greater degree of autonomy, in order to govern his own life.

   [82] In general terms, I did not understand the opinions of the medical practitioners to indicate that any particular treatment of, or approach to, the respondent was required from a cultural perspective. Accordingly, the principle identified in s 7(2)(d) of the CLMI Act did not have specific application in the current circumstances.

3. The challenge presented by the respondent's desire in this regard is the lack of insight on his part as to the consequences of a withdrawal from his supports.  The scenario identified by Dr Petch was one in which the Court declined to make a community supervision order, on the assumption the respondent is well supported otherwise, but he then proceeds to withdraw from those supports and that assistance.  I accept this would be a problematic scenario if it occurred.  Dr Petch identified the risks involved as significant.  I certainly cannot exclude the risk this scenario would develop, and may produce serious consequences for the respondent and for the community.  I must take these matters into account.

4. Against this, I recognise the respondent has been subject to a supervision regime for almost four years, in respect of which there has been compliance on his part and no evidence of behavioural difficulties. The assessments undertaken by Dr Vidovich are to the effect that the respondent has been very accepting of his NDIS supports and the respondent has been well managed by his general practitioner and the NDIS support teams.

5. The respondent, in his counsel's submission, highlighted that, whilst he was in custody, he was gradually transitioned to accommodation in the community until being ultimately placed on a conditional release order on 1 November 2021. 

6. The respondent drew the Court's attention to the evidence, which I accept, which demonstrates the respondent is subject to a medication regime which is overseen by a general practitioner, noting the respondent is not currently engaged with a mental health services.  The respondent has previously undertaken substance abuse counselling, which was in 2023, with which he engaged well and in respect of which his treatment is considered complete.

7. The respondent noted that he had not been referred to any further programs by his supervising officer.

8. Further, the respondent has an NDIS plan and funding approval which provides for support staff to assist the respondent with his daily activities, accessing the community, support co-ordination and a positive behaviour therapist. As I have noted, all of these services are independent of any involvement by the officers from the Adult Community Corrections division.

9. The respondent recognised that Dr Griffiths had identified a longer period by which the respondent would be held under supervision, but submitted that this was effectively a preventative restriction rather than a resocialisation need.  There is some force in that characterisation.

10. The respondent also emphasised, through his counsel, the objects and principles to which I have earlier made mention. In particular, that persons with mental impairment should be subject to the least possible restriction on their freedom consistent with the protection of the community, and that persons with mental impairment in the justice system should not be subject to outcomes under the CLMI Act that 'restrict their freedom more severely than if they had been convicted' of the alleged offence. These matters inform the assessment required under s 114(2) of the CLMI Act (through s 110(4)). The respondent's counsel noted that the respondent had already spent a substantial period of time in custody and then in the community under supervision. The respondent also referred to the report of Dr Alex van Hattem dated 9 June 2021 which highlighted that the ongoing supervision by the then Board could in fact be a source of stress for the respondent.

11. I accept these are matters I must take into account in the assessment and, in the present circumstances, they weigh against the making of a community supervision order, or further subjecting the respondent to any orders under the CLMI Act regime.

12. The second significant aspect of the respondent's submissions was the focus on the existence (or asserted non-existence) of the respondent's 'rehabilitation, retraining or resocialisation requirements'. 

13. The respondent submitted that no other rehabilitation, retraining or resocialisation requirements had been identified. 

1. The composite phrase, 'rehabilitation, retraining or resocialisation requirements', which is used in s 114(2), is used elsewhere in the legislation.[83]  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.

   [83] CLMI Act, s 86, s 104, s 106 and s 120.

2. 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.'.[84]

   [84] Cambridge Dictionary Online.

3. 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.

4. 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'.[85] 

   [85] Cambridge Dictionary Online.

5. 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).[86]  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'.

   [86] Sentence Administration Act 2003 (WA), s 4 and s 115.

6. 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. 

7. 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.  

8. As the respondent submitted, correctly in my view, s 114(2) of the CLMI Act directs attention to a causal connection between the need for supervision of a person, the protection of the community, and the person's 'rehabilitation, retraining or resocialisation requirements'.[87]  Certainly, the provision requires an identification of these 'rehabilitation, retraining or resocialisation requirements' as an integer in the analysis.  It is in this respect, at least, that the respondent emphasises the applicant has failed to demonstrate a case for the exercise of the power to make a community supervision order.

   [87] RS [31] – [34].

9. In a general sense, the fact the respondent is subject to a regime under the CLMI Act, which the applicant proposes be replaced by a community supervision order, has already provided a broad process of resocialisation for the respondent. This process, which has been directed to preparing the respondent for the resumption of his normal social activities in the community, to the extent that is possible, is consistent with the objects and principles which underpin the legislation. The process has been underway, in respect of the respondent, for some years.

10. I therefore accept that, to subject the respondent to a continuing regime under the CLMI Act, through a community supervision order, would in part be supported by a resocialisation requirement within the meaning of s 114(2). That is, there exists a broad requirement that the supervision of the respondent through the Adult Community Corrections division is needed to prepare the respondent for unsupervised re-entry into the community.

11. Against this, I recognise that the ongoing interface between the respondent and the criminal justice system could in fact adversely impact his resocialisation, which is aimed at him living appropriately in the community.  I also recognise that, subject to a proper assessment of the risks, the respondent receives considerable support outside the auspices of the Adult Community Corrections personnel.  This includes from the NDIS support team, representatives from the Public Advocate who act as administrator and guardian, and the respondent's medical practitioners. 

12. I have not mentioned in detail, as yet, the evidence of Mr Van Der Steen, but it is uncontentious that, through the Office of the Public Advocate, he provides a supportive advocacy role for the respondent and a liaison service with the NDIS support representatives.[88]  The evidence was to the effect that he would be able to advocate for changes to the supports required for the respondent on a fairly quick basis, including by directly liaising with the specific 'justice liaison' personnel which functions within the structure of the NDIA.[89]

    [88] ts 56.

    [89] ts 57.

13. On balance, then, I do not consider there to be a strong causal link between the supervision of the respondent and protection of the community, and the resocialisation requirements which were identified in the evidence. 

14. I accept that continued supervision of the respondent under the CLMI Act, through monitoring by and engagement with the Adult Community Corrections division, would assist the respondent's resocialisation process in a general sense.

15. However, that resocialisation has been underway for some years now, and will be assisted going forward by the continued involvement of NDIS support personnel and others.  The absence of a community supervision order will not bring the resocialisation process to a conclusion. 

16. The foregoing renders the assessment of the risk of the respondent ceasing those other supports quite important in the present context.  I have addressed this above in these reasons.  I recognise the risk of that scenario developing, but I assess that risk as sufficiently low, on balance, that I do not consider it drives an outcome which requires the respondent to remain within the criminal justice system.  The respondent has made statements about wishing to be unconstrained, but the evidence also demonstrates a strong history of voluntary compliance with a range of matters, together with positive and prosocial behaviour on the part of the respondent when faced with instances which might otherwise have caused a relapse.  It is appropriate in my view to give significant weight to this evidence.

17. I therefore do not consider the applicant has satisfied the onus of demonstrating that a community supervision order should be made in respect of the respondent. I will therefore dismiss the application for alternative relief under s 110(4) of the CLMI Act.

Conclusion and orders

1. In the course of the second reading of the Criminal Law (Mental Impairment) Bill 2022 (WA) in December 2022, the then Attorney General referred to the critical need for people with mental impairment who are found to have committed offences to be appropriately managed in the justice system.[90] 

   [90] Western Australia, Parliamentary Debates, Legislative Assembly, 1 December 2022, 6294.

2. The then Attorney General also observed that the 'intersection of mental impairment and the criminal justice system is complex and difficult', and a 'careful balancing of protecting the community and protecting a vulnerable cohort of people is required'.[91]

   [91] Western Australia, Parliamentary Debates, Legislative Assembly, 1 December 2022, 6294.

3. The present Application provides an example in which the balance weighs in favour of returning the respondent to treatment by the mental health system, and outside the criminal justice process. 

4. The respondent has been subject to custody orders and other supervision regimes under the Repealed Act and the CLMI Act for many years now. He has progressed well through this process and maintained a steady and positive trajectory of safe re-integration into the community. There are many supports available to him which will continue into the foreseeable future, and which the respondent must continue to accept. In the event the risk scenario identified by Dr Petch were to emerge, I reasonably anticipate that the medical and allied health practitioners involved will follow the appropriate reporting protocols.

5. Given my assessment of the risks involved, including in particular the low risk of harm to the community, I will dismiss the application for an extended custody order in respect of the respondent, which was brought pursuant to s 105 and s 110(1) of the CLMI Act. Further, I will dismiss the alternative application for a community supervision order, which was made pursuant to s 110(4) of the CLMI Act.

6. I will also order that the name of the respondent in this proceeding be amended pursuant to O 70 r 2 RSC and O 21 r 5 RSC, with effect from 21 July 2025, to indicate the respondent acts through the Public Advocate as his guardian ad litem.

7. Finally, I will order that the custody order in place in relation to the respondent be discharged pursuant to s 265(6)(a) of the CLMI Act. I invited submissions from both counsel this morning as to whether the effect of these orders should be delayed beyond today, to allow for any practical arrangements which were required to be put into effect. Neither counsel sought any delay to the operative effect of the orders and, accordingly, the orders will take effect from today.

8. I have incorporated into these reasons at Attachment B a copy of the formal orders made by the Court.

ATTACHMENT A
Proposed Conditions of the Community Supervision Order

Pursuant to section 110(4) and section 110(5) of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act), the Court, having found that, to ensure the adequate protection of the community, the Respondent should remain under supervision due to their rehabilitation, retraining or resocialisation requirements, makes a community supervision order in relation to the Respondent, for a period of [x] months from [insert date]:

You, [PHB], must:

STANDARD CONDITIONS REQUIRED BY SECTION 54 OF THE CLMI ACT

1. Be under the supervision of a Supervising Officer, which includes complying with the lawful directions of the officer;

2. Report to a Community Corrections Officer (CCO) at Midland Adult Community Corrections, Unit 1, 3-7 The Crescent, Midland, Western Australia, 6056, on the next working day after the day on which the order is made;

3. Be under the supervision of the CCO;

4. Comply with the lawful directions of the CCO until a Supervising Officer is designated for you;

ADDITIONAL CONDITIONS

Residence

5. Reside at [address suppressed] and spend each night there. You can only stay at a different address if the different address is approved in advance by a Supervising Officer;

6. Not leave the State of Western Australia without the permission of a Supervising Officer;

7. Not obtain a passport or attend an international departure point without prior approval from a Supervising Officer;

Restrictions on contact with Victims

8. Unless you have the prior approval of your Supervising Officer, have no contact with the victim of your offending on 27 September 2016. Contact in this condition means speaking to the victim in person or by phone, making any gestures towards the victim, messaging the victim using electronic devices, or asking someone else to speak to or send a message to the victim;

9. Unless contact with the victim is permitted by the previous condition, if you see any victim, you must immediately leave where you are, without speaking to them or gesturing to them, and you must look away from the victim at all times;

10. Report any direct or indirect contact with the victims of your offending to the Supervising Officer on the next working day you report to them. Contact in this condition means speaking to the victim in person or by phone, making any gestures towards the victim, messaging the victim using electronic devices, or asking someone else to speak to or send a message to the victim;

Prevention of high-risk situations

11. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the Supervising Officer, including going with them to an appropriate place for such testing to take place;

12. Not purchase, possess or consume alcohol or illicit drugs;

Medications and mental health

13. Attend all appointments, consult, and engage with any medical practitioner, psychiatrist, counsellor, psychologist, mentor, support service and/or support person, as directed by a Supervising Officer;

14. Take any medication, as directed by a Supervising Officer in consultation with a medical practitioner, medication practitioner, or psychiatrist, and comply with all testing to monitor your compliance with that treatment, as directed by a Supervising Officer.

ATTACHMENT B
Orders made on 8 August 2025

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

LM

Associate to the Honourable Justice Lundberg

8 AUGUST 2025