Attorney General v WAW - [2025] WASC 324

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ATTORNEY GENERAL -v- WAW [2025] WASC 324
CORAM:   LEMONIS J
HEARD:   29 MAY 2025
DELIVERED          :   14 AUGUST 2025
PUBLISHED           :   14 AUGUST 2025
FILE NO/S:   CLMI 6 of 2024
BETWEEN:   ATTORNEY GENERAL
Applicant
AND
WAW
Respondent

Catchwords:

Respondent is subject to a custody order made under the Criminal Law (Mental Impairment) Act 2023 (WA) - Custody order made for fixed period, which has now expired - Applicant obtained an interim custody order prior to the expiry of the custody order, and now seeks an extended custody order - Consideration of applicable principles - Consideration of interaction between the Criminal Law (Mental Impairment) Act 2023 (WA) and the High Risk Serious Offenders Act 2020 (WA)

Legislation:

Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)

Result:

Extended custody order made for a period of 2 years and 3 months

Category: B

Representation:

Counsel:

Applicant	:	Ms F Allen
Respondent	:	Ms E Zillessen

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
Garlett v Western Australia [2022] HCA 30
State of Western Australia v Chokolich [2024] WASC 346
The State of Western Australia v Patrick [No 5] [2022] WASC 61
The State of Western Australia v Williams [No 2] [2024] WASC 215

LEMONIS J:

The applicant (the Minister) applies for an extended custody order (ECO) under s 105(1) of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act) in respect of the respondent.
The Minister is currently responsible for the administration of the CLMI Act.
For introductory purposes, the background to the application can be briefly stated. I will expand on the background later in these reasons.
The respondent has a mental impairment. Self-evidently, given this is an application for an ECO, a custody order is already in place in respect of the respondent.
Her Honour, Magistrate Oliver, made the custody order on 22 November 2024 after conducting a 'special proceeding' under the CLMI Act. At the special proceeding, her Honour found the respondent not guilty of four offences on account of mental impairment under s 27 of the Criminal Code (WA) (the Code). Her Honour then made a custody order in respect of those four offences, with a limiting term of 8 months that commenced on 9 May 2024.
On 27 December 2024, the Minister filed the application for an ECO. On 31 December 2024, his Honour Justice Cobby made an interim custody order that remains in place until the Minister's application is determined.

Material provided for hearing

I received very helpful written submissions from Ms Allen, representing the Minister.
Ms Zillessen appeared for the respondent. Given the respondent's mental impairment, he was unable to instruct her.[1] In accordance with s 266(2) of the CLMI Act, Ms Zillessen exercised an independent discretion and acted in a way she reasonably believed to be in the respondent's best interests. She quite properly accepted that an ECO should be made and helpfully explained in written and oral submissions why that was the case.
[1] Respondent's submissions dated 26 May 2025, par 10.
I received a Book of Materials containing extensive material in respect of the respondent. The Book of Materials includes psychiatric reports of Dr Tate dated 14 August 2024 and 10 October 2024. These reports had been provided, respectively, in relation to the respondent's fitness to stand trial for the charges the subject of the custody order, and as to whether it was appropriate to make the custody order.[2] The Book of Materials also includes a forensic psychology report of Dr Galloghly dated 8 April 2025,[3] and a case manager's report that incorporates an extended order assessment.[4] When Cobby J made the interim custody order, his Honour also made an order under s 106(1) of the CLMI Act for the preparation and submission of those further reports.
[2] Report of Dr Tate dated 14 August 2024, Book of Materials, Vol 1, pages 75 - 90; Report of Dr Tate dated 10 October 2024, Book of Materials, Vol 1, pages 120 - 149.
[3] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, pages 1278 - 1293.
[4] Adult Community Corrections Extended Order Assessment, Book of Materials Vol 2, page 1294.
Before turning to the respondent's circumstances, I will make some introductory observations regarding the CLMI Act.

The CLMI Act

The CLMI Act replaced the Criminal Law (Mentally Impaired Accused) Act 1996 (repealed Act). There are significant differences between the CLMI Act and the repealed Act in situations where a custody order has been made in respect of a person found not guilty of an offence under s 27 of the Code.
As a starting proposition, it needs to be remembered that under the CLMI Act and the repealed Act, a custody order is made in circumstances where a person is, by reason of a mental impairment, not fit to stand trial, or not guilty on account of mental impairment under s 27 of the Code. Thus, the mental impairment goes to the core of that person's ability to engage with the criminal justice system.
Under the repealed Act, a custody order remained in place until the person was released by an order of the Governor.[5] Under the CLMI Act, the custody order must have a limiting term, which is set, broadly speaking, by way of a hypothetical sentencing exercise made on certain assumptions.[6]
[5] Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 35 (repealed Act).
[6] See State of Western Australia v Chokolich [2024] WASC 346 [49] (Chokolich).
The CLMI Act imposes limitations on the place of custody, which is to be determined by the Mental Impairment Review Tribunal (Tribunal).[7] The CLMI Act provides that the Tribunal must not determine that a supervised person is to be detained in a prison or detention centre 'unless satisfied that there is no available alternative place of custody that would be suitable'.[8] The repealed Act does not contain a similar provision to that effect.[9]
[7] CLMI Act, s 61.
[8] CLMI Act, s 62(1).
[9] Repealed Act, s 24.
The Minister responsible for the administration of the CLMI Act[10] may apply for an ECO. The requisite assessment is directed, in part, to whether there is an unacceptable risk that the person will commit a serious offence as defined in the CLMI Act. As I explain below, the test for making an ECO is similar to the test under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) as to whether a person is a high risk serious offender.
[10] Presently the Attorney‑General.
Further, as I explain below, an ECO must be for a limiting term, although the Minister may apply for a further ECO. Additionally, an ECO is subject to regular reviews, both by the Tribunal and by the court, albeit the Tribunal does not have the power to cancel an ECO. The Supreme Court may, however, on a review, cancel an ECO. The repealed Act does not provide for the court to undertake mandatory reviews of a custody order.
Important changes implemented by the CLMI Act are that a custody order is for a fixed period of time, and, while it can be extended, the extension is also for a fixed period. Further, an ECO is the subject of regular mandatory reviews, including by the Supreme Court. In contrast, a custody order under the repealed Act was for an indefinite period, and was not the subject of mandatory review by the Supreme Court. Furthermore, under the CLMI Act, a person will only serve a custody order in prison as a matter of 'last resort'. This recognises that, ordinarily, prison is not a suitable environment for a person with a mental impairment of such magnitude that it warranted the making of a custody order.

Objects and principles of the CLMI Act

Section 7(1) sets out the objects of the CLMI Act. Section 7(2) sets out the principles to which a person performing a function under the Act must have regard. Such persons include a member of a court.
For present purposes, the objects of the CLMI Act can be summarised as follows:
1.to ensure the protection of the community;[11]
2.to ensure persons with mental impairment who are charged with an offence are dealt with fairly and with dignity;[12]
3.to ensure that persons who are subject to supervision orders under the CLMI Act are afforded procedural fairness in relation to the administration and management of those orders and are reintegrated into the community in a safe manner.[13]
[11] CLMI Act, s 7(1)(a).
[12] CLMI Act, s 7(1)(b)(i) - (v).
[13] CLMI Act, s 7(1)(c)(i) and (ii).
The principles applicable to the performance of a function under the Act are predominantly directed to:
1.the extent to which the freedom of a person with a mental impairment may be curtailed;[14]
2.the fair, appropriate, supportive and dignified treatment of persons with a mental impairment;[15]
3.the manner in which the CLMI Act should be administered in respect of children with a mental impairment;[16]
4.recognising that victims of offences committed by persons with mental impairment should have the opportunity to be acknowledged and heard;[17] and
5.recognising the role of carers and families who assist persons with mental impairment.[18]
[14] CLMI Act, s 7(2)(a) and (e).
[15] CLMI Act, s 7(2)(b) - (d).
[16] CLMI Act, s 7(2)(f) - (j).
[17] CLMI Act, s 7(2)(k).
[18] CLMI Act, s 7(2)(l).
Section 8 provides that the paramount consideration when performing a function under the CLMI Act is the protection of the community.
I will set out in full the provisions of s 7(2) pertaining to the topic at [20.1] above, as they are of particular relevance to the making of an ECO:[19]
(a)that persons with mental impairment should be subject to the least possible restriction on their freedom consistent with the protection of the community;
…
(e)that persons with mental impairment in the justice system should not be subject to outcomes under this Act that restrict their freedom more severely than if they had been convicted of the offence that they have been found to have, or are alleged to have, committed;
[19] CLMI Act, s 7(2)(a) and (e).
These principles are designed to make plain that the regime put in place by the CLMI Act does not constitute a punishment.[20]
[20] See by analogy in respect of the HRSO Act, Garlett v Western Australia [2022] HCA 30 [45] ‑ [56] (Kiefel CJ, Keane and Steward JJ).
It is often the case that the objects and principles of legislation do not point in the same direction, and the weight to be given to them will usually depend on the circumstances. For example, there is a tension between s 7(2)(e) and the 'outcome' of making of an ECO, which is often an outcome more severe than if the person had been convicted of the subject offence. Section 8, however, makes plain that the paramount consideration is the protection of the community. Thus, it seems to me, the principle enunciated by s 7(2)(e) will yield if the court determines it is necessary to make an ECO to ensure the adequate protection of the community. However, as I explain at [71] below, the principle enunciated by s 7(2)(e) still informs the assessment of whether it is necessary to make an ECO.
I turn now to explain the circumstances in which a custody order was made in respect of the respondent.

The custody order

The respondent was charged with the following four offences (amongst others):
1.three offences of committing an indecent act in a public place, which is an offence under s 203(1)(a) of the Code; and
2.one offence of assaulting a public officer, which is an offence under s 318(1)(d) of the Code.
The charged offences are not serious offences as defined in the CLMI Act. The charged offences are, however, 'either way' offences under the Code, meaning they can be dealt with on indictment in a superior court, or dealt with summarily in the Magistrates Court.
Her Honour Magistrate Oliver found the respondent was unfit to stand trial pursuant to s 26 of the CLMI Act in respect of the four charged offences. It is apparent that her Honour was also satisfied on the balance of probabilities that the respondent would not become fit to stand trial within six months. Her Honour was therefore required to make an order under s 37 of the CLMI Act.[21]
[21] CLMI Act, s 35(1).
As the offences were 'either way' offences, pursuant to s 37(2) her Honour was required to either discharge the respondent from the relevant charge, or order that a special proceeding take place. Her Honour ordered that a special proceeding take place.
The purpose of a special proceeding is for the court to decide the charge against the relevant accused on the evidence available.[22] The court may find the accused:[23]
(a)not guilty (other than under s 27 of the Code);
(b)not guilty on account of mental impairment under s 27 of the Code; or
(c)committed the offence charged or another offence which, on the charge, the accused might be found to have committed.
[22] CLMI Act, s 41(1).
[23] CLMI Act, s 41(2).
The learned magistrate conducted the special proceeding on 22 November 2024. Her Honour found the respondent not guilty of each charge on account of mental impairment under s 27 of the Code. Having done so, her Honour was then required to make an order under pt 5 of the CLMI Act in respect of the respondent.[24] In contrast, where an accused is found not guilty other than by reason of s 27 of the Code, the CLMI Act provides that the accused 'is taken for all purposes to have been found not guilty at a criminal trial'.[25] That would then bring to an end the application of the CLMI Act in respect of the subject offence.
[24] CLMI Act, s 43(5).
[25] CLMI Act, s 43(1).
Having found the respondent not guilty by reason of s 27 of the Code, s 46(1) of the CLMI Act (which appears in pt 5) sets out the options available to her Honour. They were to make a custody order, make a community supervision order, or order that the respondent be released unconditionally. A custody order can only be made where the statutory penalty for the offence is or includes imprisonment,[26] which is the case in respect of these four offences.
[26] CLMI Act, s 46(3).
Her Honour made a custody order. Pursuant to s 50(2), her Honour was required to set a limiting term for the custody order. For present purposes it is sufficient to note that a limiting term is the best estimate of the term of imprisonment the court would, in all the circumstances have imposed if sentencing the respondent for the charged offences following a plea of guilty.[27] That assessment is undertaken having regard to certain mandated assumptions.[28]
[27] Chokolich [49].
[28] CLMI Act, s 50(2)(b) and s 50(3).
Her Honour set a limiting term of 8 months, backdated to commence on 9 May 2024.[29] The term therefore expired on 8 January 2025.
[29] CLMI Act, s 50(4) permits the court to order that the term be taken to have commenced on an earlier day, taking into account any time that the person has already spent in custody in relation to the offence.
On 28 November 2024 the Tribunal determined that the respondent's place of custody be at a Disability Justice Centre (the DJC). The respondent remains at that centre. The Tribunal also made a leave of absence order in respect of the respondent dated 6 December 2024. That order permits the respondent to undertake supervised visits into the community, but does not permit him to spend the night in the community.

Steps preliminary to applying for an ECO

When a custody order is made, s 103 of the CLMI Act requires the Tribunal to consider and report on the need for an ECO. If the limiting term for the custody order is less than 12 months, the Tribunal must consider the need for an ECO before the person has been subject to the custody order for half of the limiting term.[30]
[30] CLMI Act, s 103(4).
Further, the Tribunal must, as soon as practicable, make a report to the Minister on the need for an ECO. If the Tribunal is satisfied that it is necessary that an ECO be made having regard to certain defined criteria, the Tribunal must recommend that the Minister apply for such an order.[31]
[31] CLMI Act, s 103(3) and (4).
On 20 December 2024, the Tribunal made a report recommending that the Minister apply for an ECO in respect of the respondent.[32]

The application for an ECO

[32] Mental Impairment Review Tribunal Report to Minister, Book of Materials, Vol 1, pages 250 - 259.

The Minister filed the application for an ECO on 27 December 2024, before the expiry of the limiting term of the custody order. The Minister also sought an interim custody order until that application was determined. On 31 December 2024, Cobby J made an interim custody order, which remains in place until this application is determined. The delivery of these reasons effects the determination of the application.

Provisions pertaining to the making of an ECO

An ECO is an order that a person be detained in custody at a place determined by the Tribunal under the CLMI Act for the protection of the community.[33] It is, in effect, a further custody order. For an ECO to be made, there must be an existing custody order in place.[34] Thus, the procedure pursuant to which an ECO can be made does not permit the Minister to seek a custody order afresh.
[33] CLMI Act, s 109.
[34] See also s 107(1) re the making of interim custody orders. Section 107(1) permits the Minister to apply for an interim custody order where a 'current custody order' will, or is likely to, expire before an application for an ECO is determined.
As I explain below, the criteria for making an ECO is similar to the criteria under the HRSO Act for declaring a person a high risk serious offender. The ECO, like the custody order sought to be extended, must be for a limiting term. However, the Minister may apply for a further ECO, to commence at the expiry of an existing ECO.[35]
[35] See CLMI Act, s 102(a), which defines a custody order for the purposes of Part 7 to include a reference to an extended custody order unless the contrary intention appears. An application for an extended custody order is made under s 105, which appears in Part 7. Thus, an application can be made under s 105 to extend an extended custody order.
Where an application for an ECO is made, the court must order the subject person be examined by a psychiatrist, psychologist or other appropriate expert and that a report be prepared and submitted to the court.[36] The report must set out the expert's assessment of the likelihood that the supervised person will commit a serious offence if not subject to an ECO.[37]
[36] CLMI Act, s 106(1).
[37] CLMI Act, s 106(3)(a).
The Supreme Court's power to make an ECO is set out in s 110 of the CLMI Act. Section 110(1) and s 110 (2) are to the effect that the court may make an ECO for a fixed term, which is its limiting term.
Section 110(3) imposes a condition on the court's power to make an ECO, namely:
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.
My current view is that the question of whether a person 'will commit a serious offence' is assessed by reference to whether the person will do an act, or make an omission, that would constitute a serious offence, irrespective of whether the person has sufficient mental capacity to be criminally responsible for that act or omission. Thus, in making the assessment, the court does not take into account the prospect that the person might be found not guilty of the 'serious offence' under s 27 of the Code. This approach accords with an object, and the paramount consideration, of the CLMI Act being the protection of the community. That object and paramount consideration would be significantly eroded if the assessment of the risk the person will 'commit' a serious offence took into account whether the person would have sufficient mental capacity to be criminally responsible for their conduct.

Such an approach is also supported by s 11(1) of the CLMI Act, which states:
A reference in this Act to the commission of an offence includes, in relation to a person who has been acquitted of the offence on account of mental impairment, a reference to the doing of the act or the making of the omission that would have constituted the offence of which the person was acquitted. (emphasis added)
Even though s 11(1) is directed to historical offending, it recognises that in respect of the 'commission of an offence', the concern of the CLMI Act is directed to 'the doing of the act or the making of the omission that would have constituted the offence', not to whether the person has the requisite mental capacity to be criminally responsible for that act or omission.
Further, s 110(6) and s 110(7) are to the effect that in considering whether an act or omission committed outside the State constitutes a serious offence, the court is to disregard whether the person would be fit to stand trial, or convicted of the offence.

Review of ECOs

An ECO is subject to regular reviews, which are conducted by both the Tribunal administering the CLMI Act[38] and the Supreme Court.[39] After carrying out a review, the Tribunal may, amongst other matters, make a leave of absence order.[40] The Tribunal does not have the power to cancel the ECO.
[38] CLMI Act, s 66.
[39] CLMI Act, s 117.
[40] CLMI Act, s 73(1)(b).
The responsible Minister must apply for a review of an ECO to the Supreme Court to ensure that reviews are carried out as soon as practicable after the expiry of one year after the ECO commenced, and thereafter, as soon as practicable after the expiry of one year after the most recent review.[41] On such a review, the Supreme Court must either confirm the ECO, or cancel it.[42] Further, the person who is subject to an ECO may, with the leave of the court, apply to the Supreme Court for review of the order. Before granting leave, the court must be satisfied that there are exceptional circumstances.[43]

Leave of absence orders

[41] CLMI Act, s 117(2).

[42] CLMI Act, s 121(1) and s 121(2).

[43] CLMI Act, s 118(1) and s 118(2).

Part 6 div 5 of the CLMI Act provides for the making of leave of absence orders. A leave of absence order can be made during the term of a custody order. A leave of absence order permits the subject person to be in the community for certain periods and purposes specified by the Tribunal.[44]
[44] CLMI Act, s 77.
I discern there are (at least) two purposes for making a leave of absence order. First, to facilitate, where possible, the person's eventual transition into the community. Second, to make the time that a person is subject to a custody order more fulfilling. This second purpose is not necessarily standalone and would often assist in facilitating the person's eventual transition back into the community.
A leave of absence order does not have effect after the limiting term for the custody order expires.[45] However, a leave of absence order continues in effect after the making of an ECO.[46]

Comparison between the CLMI Act and the HRSO Act

[45] CLMI Act, s 77(4).

[46] CLMI Act, s 111(1).

The threshold condition set out in s 110(3) of the CLMI Act (see [44] above) is substantially similar to the definition of a high risk serious offender in s 7(1) of the HRSO Act.
Section 7(1) provides:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. (emphasis in lines 3 - 5 added)
I appreciate that s 7(1) puts the questions of 'adequate protection' and 'necessity' in the reverse order to s 110(3) of the CLMI Act. However, I do not think this makes any difference to the overall assessment that the court is required to undertake.
Importantly, s 110(3) of the CLMI Act and s 7(1) of the HRSO Act both require that the court be satisfied:
1.by acceptable and cogent evidence and to a high degree of probability;
2.that it is necessary to make the requisite order;
3.to ensure the adequate protection of the community against an unacceptable risk that the subject person will commit a serious offence.
In addition, the classification of serious offences in the CLMI Act is the same as in the HRSO Act.
There are, however, differences between the two regimes. The material differences I have discerned relevant to the present application are:
1.For an ECO to be made under the CLMI Act, it is not necessary that the person has committed a serious offence, or been acquitted of a serious offence under s 27 of the Code. By contrast, under the HRSO Act, the State's ability to apply for a restriction order is conditional upon the person having committed a serious offence.[47]
2.Under the CLMI Act, the assessment is directed to the need to make an ECO, whereas under the HRSO Act, the assessment is directed to the need to make a restriction order, which is a continuing detention order or a supervision order.[48]
3.If the court is not satisfied it is necessary to make an ECO under the CLMI Act, the court then proceeds to consider whether to make a community supervision order. That assessment requires consideration of different criteria to those referable to the making of an ECO, in particular whether the person 'should remain under supervision due to the person's rehabilitation, retraining or resocialisation requirements'.[49]
4.Where the court is satisfied under the HRSO Act that a person is a high risk serious offender, the court must make a restriction order.[50] In contrast, under the CLMI Act, where the court is satisfied that the threshold condition is met, the court may make an ECO.
5.An ECO is for a fixed period. A continuing detention order is indefinite.
6.An ECO is reviewed by a court more regularly than a continuing detention order. After the first 'annual review', an ECO is expected to be reviewed as soon as practicable after the expiry of one year from the most recent review, whereas a continuing detention order is expected to be reviewed as soon as practicable after the expiry of two years from the most recent review.[51]
7.The HRSO Act sets out matters to which the court must have regard in considering whether it is satisfied that a person is a high risk serious offender.[52] The CLMI Act does not have a similar provision in respect of the making of an ECO. Rather, the CLMI Act provides that the court may receive in evidence material directed to certain specified topics,[53] which have some similarity to the matters that the court must take into account under the HRSO Act.
8.In making the assessment under the HRSO Act, the court must disregard the possibility that the person might temporarily be prevented from committing a serious offence by being in custody, or by the imposition of bail conditions.[54] There is no similar provision in the CLMI Act.
9.The HRSO Act provides that the State has the onus of satisfying the court that the person is a high risk serious offender.[55] The CLMI Act does not contain any provisions regarding onus.
[47] HRSO Act, s 35(1) provides that an application for the restriction order may be brought in respect of a 'serious offender under custodial sentence', which is defined in s 3 by reference to the person having previously committed a serious offence. Further, while the State may also apply under s 36(2) where the person is subject to a supervision order, that supervision order will have been made on a previous application under s 35(1), or under the corresponding provisions in the now repealed Dangerous Sex Offenders Act 2006 (WA).
[48] HRSO Act, see the definition of restriction order in s 3.
[49] CLMI Act, s 110(4) and s 114(2).
[50] HRSO Act, s 48(1).
[51] HRSO Act, s 64(2).
[52] HRSO Act, s 7(2).
[53] CLMI Act, s 123(4).
[54] HRSO Act, s 7(4).
[55] HRSO Act, s 7(2).
It is, of course, important to keep these differences in mind. That being said, given that the core considerations are substantially similar (see [57] above) and the classification of serious offences is the same, I think the principles applicable to the assessment of whether a person is a high risk serious offender are an important guide in assessing whether to make an ECO.

High risk serious offender assessment under the HRSO Act

The scheme of the HRSO Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.[56]
[56] Garlett [85] citing The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56].
In assessing whether a person is a high risk serious offender, there are two distinct evaluative steps:[57]
1.an evaluation of whether there is an unacceptable risk that the offender will commit a serious offence in the future; and
2.if so, an evaluation of whether it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against that unacceptable risk.
[57] The State of Western Australia v Williams [No 2] [2024] WASC 215 [39] - [40].

In Williams [No 2], I explained those steps as follows:[58]
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. 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 feeds into the assessment of current and future risk, as does the offender's historical and current response to rehabilitation. These are all factors that inform the assessment of whether the risk is 'unacceptable '…
If the risk is found to be 'unacceptable', the nature and extent of that unacceptable risk then informs the assessment of whether a restriction order is necessary to ensure adequate protection of the community …
[58] Williams [No 2] [39] - [40].
The HRSO Act does not provide that a person who presents with a risk of committing a serious offence is, by definition, a high risk serious offender.[59] The court is required to perform the requisite evaluative exercise and come to its own determination as to whether to make a restriction order.[60]
[59] Garlett [73] and [84] (Kiefel CJ, Keane and Steward JJ).
[60] Garlett [73] (Kiefel CJ, Keane and Steward JJ).
Further, assessing whether a restriction order is necessary to protect against an unacceptable risk requires recognition of the offender's entitlement to be at liberty, an entitlement not lightly to be denied.[61]

Applicable principles pertaining to whether to make an ECO

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

Bringing together the matters that I have addressed so far, my current view is that the applicable principles pertaining to whether to make an ECO are as follows.
Consistently with the approach taken under the HRSO Act, the scheme of the provisions pertaining to the making of an ECO requires the court to do no more than is necessary to achieve adequate protection of the community. This arises from the use of the words 'adequate protection' and 'necessary' in s 110(3) of the CLMI Act, and from the principles enunciated in s 7(2)(a) and s 7(2)(e). Further, while the paramount consideration of the CLMI Act is the protection of the community, that is not the sole consideration. The consideration of the protection of the community has to be assessed by reference to the particular provision that is engaged, and not in the abstract. In that respect, the language of s 110(3) directs attention to what is necessary to achieve adequate protection of the community and nothing more.
The assessment of whether the threshold condition at s 110(3) is met requires the following two stage evaluation:
1.whether there is an unacceptable risk that the supervised person will do an act or make an omission that would constitute a serious offence, irrespective of whether the person has sufficient mental capacity to be criminally responsible for that act or omission; and
2.if so, whether it is necessary to make an ECO to ensure the adequate protection of the community against that unacceptable risk.
The evaluation of whether the risk is unacceptable requires the court's judgment as to the nature and extent of the possible harm. That assessment directs attention to the possible 'serious offences' that might be committed and the harm they may cause. It also directs attention to the likelihood that the offender might commit such offences.
A person's mental impairment is part of their characteristics and thus informs the assessment of risk. Their mental impairment will also inform the assessment of whether it is necessary to make an ECO to ensure adequate protection of the community.
It should not be assumed that if the court finds there is an 'unacceptable risk', it automatically follows that it is necessary to make an ECO to ensure adequate protection of the community. Consistent with the approach taken under the HRSO Act, the assessment of 'necessity' requires recognition that a person's entitlement to be at liberty should not be lightly denied. That approach takes account of, but does not give primacy to, the principles set at s 7(2)(a) and s 7(2)(e) of the CLMI Act.
Moreover, the assessment of necessity must have regard to the other protective options available under the CLMI Act, in particular whether the making of a community supervision order provides adequate protection of the community. If it does, then it will not be necessary to make an ECO to ensure the adequate protection of the community against the unacceptable risk.
Section 110(1) states that the court 'may' make an ECO where the threshold condition in s 110(3) is met. However, if the court is satisfied it is necessary to make an ECO to ensure adequate protection of the community, almost inevitably the court would exercise the power to make such an order. I say 'almost inevitably' in recognition that there might be some unique scenario which militates against the making of an ECO, although at the moment I cannot think of one.
The limiting term for an ECO needs to be set in accordance with the scheme of the provisions. It follows that the term should be no longer than is necessary to achieve adequate protection of the community.[62]
[62] See, in relation to a supervision order under the HRSO Act, Williams [No 2] [52].
The phrase 'high degree of probability' used in s 110(3) is also used in the HRSO Act and was used in the DSO Act. The phrase has been said to connote a standard that is more than the civil standard of 'balance of probabilities' but less than the criminal standard of 'beyond reasonable doubt'.[63] That approach should be adopted in respect of the use of the phrase in the CLMI Act.

Evidence to be adduced at the hearing and matters to consider

[63] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28].

Pursuant to s 123(2) of the CLMI Act, before the court determines an application for an ECO, it must hear admissible evidence given or called by the parties. Further, s 123(3) provides that the ordinary rules of evidence apply, except as modified by s 123(4).
It is useful to set s 123(4) out in full:
Things that the court may receive in evidence for the purpose of determining the application include the following -
(a)any document relevant to the supervised person's antecedents or criminal record;
(b)anything relevant contained in the official transcript of any relevant proceeding against the person;
(c)any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the person;
(d)any report that a psychiatrist, psychologist or other appropriate expert prepares under this Part and the extent to which the person cooperated when the expert examined the person;
(e)any other medical, psychiatric, psychological or other assessment relating to the person;
(f)information indicating whether or not the person has a propensity to engage in conduct that could constitute a serious offence in the future;
(g)information indicating whether or not there is any pattern of offending behaviour on the part of the person.
(Note omitted)
The effect of s 123(4) is that the things described in it may be received in evidence, even though they do not comply with the rules of evidence. That, of course, does not mean that information received pursuant to s 123(4) must be accepted as correct by the court hearing the application. It is a matter for the court to determine what information it accepts, and what weight to give to that information.
Section 123(4) does not set out mandatory requirements that the court must consider. This differs from s 7(3) of the HRSO Act, which sets out matters to which the court must have regard. The CLMI Act is more flexible in terms of how the court approaches its task. The CLMI Act gives the parties the ability to put information of the type referred to in s 123(4) before the court, but it is not mandatory that information addressed to each and every topic be provided, subject to one qualification. Obviously, the expert reports that have been ordered for the purposes of the hearing will need to be submitted to the court.[64]
[64] CLMI Act, s 123(4)(d).
Section 47(1) of the CLMI Act sets out matters to which the court must have regard when making an order under pt 5, which includes a custody order made pursuant to s 46(1). Those matters are not exhaustive.[65] In respect of an adult, those matters are:
(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;
[65] CLMI Act, s 47(2).
Section 47(1) is not directed to the making of an ECO, which is made under pt 7. The Minister did not suggest otherwise. In most cases, however, the factors set out in s 47(1) will likely be useful factors to have regard to in assessing the criteria of 'unacceptable risk' and 'necessity' prescribed by s 110(3).
Ultimately, my current thinking is that the Minister needs to ensure there is acceptable and cogent evidence before the court directed to the criteria in s 110(3) and which facilitates a fair hearing of the application for an ECO. That approach affords flexibility as to what needs to be put before the court. In all likelihood, that approach will often lead to a more truncated hearing in respect of applications for an ECO, in comparison to applications for a restriction order under the HRSO Act. That being said, it should not be thought that a more truncated hearing gives rise to unfairness. As a general observation, in my experience, truncated hearings often bring to light more readily the critical information that the court needs to consider.
I will now address whether an ECO should be made.

The respondent's personal circumstances

The respondent is 51 years of age.

The respondent has an established diagnosis of intellectual disability, which was diagnosed at five years of age and registered with the Disability Services Commission.[66] His intellectual disability is significant.
[66] Report of Dr Tate dated 14 August 2024, Book of Materials, Vol 1, page 76, par 2; Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1280, par 7.
The respondent has an appointed guardian from the Office of the Public Advocate and an appointed administrator from the Public Trustee. The grounds upon which the guardianship order was made include that he is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.[67] The grounds upon which the administration order was made include that he is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate.[68]
[67] Guardianship Order, Book of Materials, Vol 2, page 1385.
[68] Administration Order, Book of Materials, Vol 2, page 1384.
The available reports pertaining to his childhood indicate that he was exposed to deprivation, substance use and anti-social behaviour from a young age.[69] The reports also indicate that the respondent began drinking alcohol around the age of 13 and began consuming large quantities of alcohol while still young. Further, the respondent has used cannabis regularly throughout his life.[70]
[69] See for example, Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1280, par 6.
[70] Report of Dr Tate dated 10 October 2024, Book of Materials, Vol 1, page 133, pars 81 - 82.
The respondent left school in around year 9 or 10, having not learned to read or write. The respondent has had limited employment as a gardener and a cleaner and also washing cars.[71]

The respondent's criminal history

[71] Report of Dr Tate dated 10 October 2024, Book of Materials, Vol 1, page 134, pars 73 - 74.

The respondent has an extensive criminal history. Since the age of 19, he has committed more than 300 offences. Further, a number of other charges have been dismissed or discontinued because he was unfit to stand trial. The respondent has not previously committed a serious offence, nor has he been acquitted of a serious offence by reason of s 27 of the Code.
The respondent has spent a significant amount of his adult life in custody either serving a term of imprisonment, or pursuant to a custody order made under the repealed Act.
The respondent's criminal history that is of most relevance to this application can be grouped into three categories. First, threats of violence, including by the use of scissors. Second, threats and attempts to start a fire. Third, committing indecent acts in public, including by exposing himself.
The first category of offences includes an offence where the respondent had scissors in his hand and lunged towards a security guard at the reception desk at the Public Transport Centre in East Perth,[72] and another offence where the respondent thrust scissors in his hand at a staff member of a family recreational facility.[73] On both occasions, no contact was made by the scissors with the victim.
[72] Prosecution Notice and Statements of Material Facts, Book of Materials Vol 1, pages 441 - 450.
[73] Statement of Material Facts, Book of Materials Vol 1, page 313.
The respondent has committed at least four other offences whereby he has threatened people with scissors, including threatening police officers with scissors.[74]
[74] Applicant's submissions, pars 52(b), (e), (f) and (g).
In respect of the second category, the respondent has attempted to set fuel on fire at a service station and also threatened to burn down a liquor store.[75]
[75] Applicant's submissions, pars 52(c) and (i).
The respondent's offending in respect of the third category involves several offences of the respondent being in public, and making comments about raping people, including when he was naked and when children were present. This offending included a scenario where he had approached a playground wearing only his underwear, removed his underwear, thus exposing his penis, and remained in the vicinity of the playground for five minutes in the presence of approximately 40 young children. Once arrested by police, he said, 'if you let me go, I'll go and rape them' and 'I stripped myself off and I'm going to rape them, I can't help it'.[76]

Reports

[76] Applicant's submissions, par 53(h).

The material provided for this application includes several reports in respect of the respondent. For the purposes of resolving this application, it is only necessary to refer to the psychological report of Dr Galloghly, two psychiatric reports of Dr Tate, a neuropsychological report of Dr Vidovich, the Adult Community Corrections Extended Order Assessment Report dated 15 April 2025, and the Disability Justice Service Report that supports the making of an ECO.

Dr Galloghly's report

Dr Galloghly is a forensic psychologist and his report, dated 8 April 2024, was prepared pursuant to the order of Cobby J made under s 106 of the CMLI Act.
Dr Galloghly's report noted that the respondent had described a positive experience living at the DJC, but had indicated a desire to 'get out'. Further, the respondent reported to Dr Galloghly that he did not know why he offended, nor why he engaged in aggressive and sexualised behaviour.[77]
[77] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1286, par 43.
Dr Galloghly expressed the following opinions. The respondent 'has a well‑established intellectual disability diagnosis that is the primary driver of his behavioural and functioning impairment issues'.[78] Deficits 'in [the respondent's] learning, communication and executive functioning are highly associated with his poor emotional regulation and behavioural disinhibition'.[79] The respondent has a substance use disorder given his chronic history of alcohol and polysubstance use. The respondent's substance abuse problems have underpinned much of his violence, offending and general dysfunction.[80]
[78] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1287, par 45.
[79] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1287, par 45.
[80] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1287, par 48.
Dr Galloghly undertook a Static-99R assessment of the respondent. That assessment is an actuarial scale that assesses recidivism risk in adult male sexual offenders who have committed a sexually motivated offence.
Dr Galloghly said that the respondent placed in the well above average risk band for sexual offending. Dr Galloghly said: [81]
Much of his risk pertained to his sheer volume of sexual offences, history of violence and general offending and [the respondent's] offending of exposing himself to unrelated and stranger victims.
[81] Report of Dr Galloghly dated 8 April 2025, Book of Materials Vol 2, page 1288, par 52.
Dr Galloghly also assessed the respondent using the Risk for Sexual Violence Protocol - Version 2. The result was that his risk of sexual violence recidivism was assessed as being in the high range. Care needs to be taken in interpreting this result. The assessment undertaken proceeds on the premise that the respondent's sexual offending to date constitutes sexual violence. While the comments that the respondent has made in the context of his offending, especially the threats to rape, can be characterised as sexual violence, the respondent's offending has not included 'contact offending'. That is, he has not committed a physical sexual assault. Thus, I do not regard the respondent's result on this assessment as indicating that he has a high risk of committing a physical sexual assault. I accept he has a high risk of committing offences constituted by the making of serious threats to engage in such sexual violence. However, to date he has not acted on those threats.
Further, Dr Galloghly applied the HCR-20 Version 3 assessment in respect of the respondent's risk of future violent offending. Based on that assessment, Dr Galloghly said the respondent's risk of future violence was high.[82]
[82] Report of Dr Galloghly dated 8 April 2025, Book of Materials Vol 2, page 1290, par 57.
Dr Galloghly assessed the respondent's risk of committing a serious offence as defined in the CMLI Act as being in the high range without restrictions.
He referred to the respondent having a chronic history of offending, violence and dysregulated sexual behaviour. He said that his intellectual disability is the leading risk factor for reoffending and substance abuse was the second most significant risk factor.[83]
[83] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1290, par 58.
Dr Galloghly recognised that the respondent's past convictions do not meet the threshold of serious offences under the CMLI Act. Dr Galloghly was however of the opinion that:[84]
… his overall high risk of reoffending raises concerns about the possibility of escalating to more serious offending. This risk intensifies if he lacks adequate support, monitoring, and supervision. Factors that could contribute to an escalation include the respondent's reckless public sexual offences, particularly around children, which could potentially lead to physical offences, as well as his history of threatening behaviour involving weapons such as scissors, susceptibility to antisocial influences, and his severe behavioural regulation issues, especially when under the influence of substances.
An extended custody order enables [the respondent] to stay at the DJC until appropriate NDIS funding is secured and a suitable service is found to manage his community risk effectively. At present, these matters remain unresolved. Moving the respondent into the community without adequate support significantly heightens his likelihood of reoffending.
[84] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1291, pars 59 - 60.
Dr Galloghly observed that:[85]
[The respondent] is most likely to re-offend similarly to previous offending by taking off his clothes, exposing himself and making threats to harm others and himself. He may also respond violently when arrested. This scenario is worsened when in public and when intoxicated. DJC staff currently manage this sort of behaviour.
[85] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1292, par 66.
Dr Galloghly was of the opinion that an 'escalation in offending could result in the respondent engaging in “hands‑on” sexual offences in the presence of vulnerable potential victims', and that an escalation in violent offending may see the respondent use a weapon such as scissors or a knife to commit a violent assault. He said that the likelihood and severity of such offences increase if the respondent is intoxicated.
In terms of the management of the respondent, Dr Galloghly was of the opinion that the respondent has a complex risk profile that requires comprehensive management and will likely require 24‑hour support for the rest of his life.[86]
[86] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1292, par 72.
Dr Galloghly said that the respondent's disability negates the benefits of typical psychological treatment. Dr Galloghly was of the opinion that the respondent's past detention under custody orders and transitions to the community 'mainly failed due to his severe needs and insufficient facilities and support'.[87] Dr Galloghly regards the DJC as being ideal for the respondent's situation, and to manage his risk and eventual transition to the community.[88]

Dr Tate's report dated 14 August 2024

[87] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1292, par 70.

[88] Report of Dr Galloghly dated 8 April 2025, Book of Materials, Vol 2, page 1292, par 71.

Dr Tate's report was prepared to assist the learned magistrate in assessing whether the respondent was mentally fit to stand trial in respect of the four charges the subject of the custody order, as well as some further charges. Dr Tate was of the opinion that the respondent was not fit to stand trial due to the degree of his intellectual disability.
Dr Tate assessed the respondent as having a mild to moderate intellectual disability. She described the core features of this disability as follows:[89]
… Cognitively he was illiterate and innumerate and had impairments in memory, reasoning and executive function. Socially he was unable to form and maintain connections with others, communicate his needs adequately or empathise with others. Functionally he was unable to attend to his basic needs and activities of daily life without considerable support and his behaviour often resulted in risks to himself and others.
[89] Report of Dr Tate dated 14 August 2024, Book of Materials, Vol 1, page 85, par 63(i).
Dr Tate was of the opinion that the respondent has a substance use disorder, which may have compounded his brain injury and impaired his cognitive ability further. In respect of this disorder, she said: [90]
… His substance use has been strongly associated with risk behaviours including self harm, antisocial behaviour and violence throughout his life. His disability makes him less able to exercise good judgements about lifestyle choices, manage impulse control or learn new ways to manage stress, making sustained abstinence very difficult. the respondent requires external supports and strategies to limit access to substances and meet his needs in other ways.
[90] Report of Dr Tate dated 14 August 2024, Book of Materials, Vol 1, page 85, par 63(ii).
Dr Tate was also of the opinion that: [91]
It is apparent that [the respondent] is unable to adhere to community based orders, as he lacks the cognitive capacity to understand and retain information concerning the conditions or the ability to manage his own impulse control or abstain from substance use…
[91] Report of Dr Tate dated 14 August 2024, Book of Materials, Vol 1, page 89, par 88.
Dr Tate said that if the respondent is to be released into the community, he will require a robust management plan informed by a functional needs assessment as well as cultural and family input. She also expressed the view that a two or three person escort and dedicated transport is likely to be necessary for community access to occur safely. She recommended that he be placed in the DJC rather than prison.[92]

Dr Tate's Report dated 10 October 2024

[92] Report of Dr Tate dated 14 August 2024, Book of Materials, Vol 1, page 89, pars 89 - 90.

This report was provided to address the criteria under s 47(1) of the CLMI Act referable to the type of order that the learned magistrate should make, after having acquitted the respondent of the four offences under s 27 of the Code.
Dr Tate set out the same opinions regarding the respondent's intellectual disability and substance use disorder as set out in her 14 August 2024 report.[93]
[93] Report of Dr Tate dated 10 October 2024, Book of Materials, Vol 1, page 137, par 108.
Dr Tate expressed the opinion that the respondent appeared to have some pervasive negative attitudes towards authority and pro-criminal attitudes, that were likely influenced by family and peers.
Dr Tate assessed the respondent's risk of violent offending by reference to a tool described as the 'HCR-20 Version 3'. She said that his score indicates that he has a significantly increased risk of future violence, and that violence is more likely to occur in the context of substance use, stress or conflict.[94]
[94] Report of Dr Tate dated 10 October 2024, Book of Materials, Vol 1, page 139, par 115.
Dr Tate was of the opinion that the most likely victims would be the respondent's support workers or housemates and also authority figures like police. Dr Tate observed that the respondent's violence typically involves punching but also noted that he has carried and secreted knives and scissors and in an escalation scenario may use these to inflict life-threatening harm.[95]
[95] Report of Dr Tate dated 10 October 2024, Book of Materials, Vol 1, page 139, par 116.
I will set out in full, the paragraphs in Dr Tate's report regarding the respondent's risk scenarios of sexual offending:[96]
Risk scenarios: The most likely community scenario based on the information available [would be] the respondent dropping his trousers and exposing himself or masturbating in front of a support worker, member of the public or member of the emergency services. This is most likely to occur when disinhibited through intoxication and/or stress but could also occur at other times. He appeared to have developed a habitual pattern where he also engaged in this type of behaviour when bored or in protest, or sometimes for no apparent reason. This behaviour is likely to be fairly imminent after release without a high level of support and supervision.
[The respondent] had a reported pattern of threatening and nuisance behaviours predominantly occurring under the influence of alcohol and cannabis. Episodes of violence, obscene gestures and exposing himself also appeared more frequent when intoxicated but were also formulated as a way to signal dislike of authority figures and manage conflict. The evidence supported the forensic psychological assessment that his sexual behaviours were not believed to arise from primary hypersexuality.
In an escalation scenario it is possible he might grab, touch or try to sexually assault a female. This is more likely to occur when alone with a female, such as on public transport. This behaviour is more likely to occur if released without an adequate support and supervision plan in place although the frequency of this behaviour may be low. Escalation to serious physical violence in the context of a sexual offence is relatively unlikely but cannot be completely excluded. Any of these behaviours may be perceived as very psychologically distressing to victims, particularly if a young lone female.
[96] Report of Dr Tate dated 10 October 2024, Book of Materials, Vol 1, page 140, pars 124 - 126.
Dr Tate expressed the view that the respondent presented a significant ongoing risk to himself and others as a result of his condition. She also said that there is a high likelihood of reoffending soon after release, with indecent or obscene acts, violence and anti‑social behaviour the most likely offences that he might commit. She said that escalation to serious life threatening violence is less likely but cannot be completely excluded, particularly given his propensity to carry weapons like knives or scissors.[97]
[97] Report of Dr Tate dated 10 October 2024, Book of Materials, Vol 1, pages 147 - 148, par 165.
As at 10 October 2024, Dr Tate did not believe that release on a Community Supervision Order would be successful.[98]

Adult Community Corrections Extended Order Assessment Report dated 15 April 2025

[98] Report of Dr Tate dated 10 October 2024, Book of Materials, Vol 1, page 148, par 168.

This report is the case manager's report prepared in accordance with the order of Cobby J.[99] I have had regard to the matters raised in the Minister's counsel's written submissions regarding the report.[100]
[99] The report commences at Book of Materials Vol 2, page 1294.
[100] Applicant's submissions, par 62.
It is only necessary for the purposes of the disposition of this application to make the following observations on this report.
Since the respondent's transfer to the DJC, he has re‑established contact with his family. He contacts his mother by telephone almost daily. During these calls, he also speaks to his siblings, nieces, nephews and other extended family that are living with or visiting his mother at the time of the call. Also, on 12 February 2025, his mother, sister and nieces visited him at the DJC, which was a really positive interaction.[101]
[101] Adult Community Corrections Extended Order Assessment, Book of Materials Vol 2, pages 1296 - 1297.

The report refers to the National Disability Insurance Scheme (NDIS) plan in place in respect of the respondent. The plan commenced on 11 January 2022 and is due for review in January 2026.[102] The report states that the respondent's guardian is of the view that his current NDIS funding for accommodation and support is inappropriate and inadequate to meet his needs.[103]
[102] Adult Community Corrections Extended Order Assessment, Book of Materials Vol 2, page 1297.
[103] Adult Community Corrections Extended Order Assessment, Book of Materials Vol 2, page 1297.
The report sets out that when the respondent is at the DJC, he is supervised 24 hours a day. Further, the respondent has supervision sessions with his designated supervising officer on a monthly basis. If he were to progress to overnight leave of absences within the community, these supervision sessions would increase to weekly.[104]

Disability Justice Service (DJS) report supporting extension of orders dated 13 March 2025

[104] Adult Community Corrections Extended Order Assessment, Book of Materials Vol 2, page 1299.

I take the following matters from this report.[105]
[105] The report commences at Book of Materials Vol 2, page 1216.
The respondent has engaged in concerning behaviour while at the DJC. This included, initially, verbal aggression, removal of clothes and masturbation in view of staff and threats of property damage. The frequency and intensity of this behaviour has reduced.
A functional capacity assessment was undertaken of the respondent on 11 March 2025. The results of that assessment indicate that his strengths lie in completing routine daily tasks, and he has significant difficulty with problem solving, considering risks or consequences for actions and managing his emotions.[106]
[106] DJS Report dated 13 March 2025, Book of Materials Vol 2, page 1218, par 13.
The report notes that there is currently a leave of absence order in place in respect of the respondent. The report sets out a transition plan for the respondent. The plan commenced in April 2025 and sets out a planned progression over 15 months to enable the respondent to spend the maximum time possible in the community under his leave of absence order.[107]
[107] DJS Report dated 13 March 2025, Book of Materials Vol 2, pages 1229 - 1230.
The report concluded by stating that the DJS support a 15 month extended order to accommodate the respondent's 'disability related needs with regards to learning and embedding new skills as well as [build] a team of robust and skilled supports around him, to ensure he leads a meaningful and pro-social life as he transitions back into the community'.[108]

Neuropsychological assessment

[108] DJS Report dated 13 March 2025, Book of Materials Vol 2, pages 1231 - 1232.

The respondent's neuropsychological capacity was assessed by Dr Vidovich most recently in 2023. Dr Vidovich had previously assessed the respondent in 2012, which included assessing his level of intellectual functioning. In her 2012 report, Dr Vidovich stated that the respondent's neuropsychological profile was consistent with a longstanding history of mild to moderate intellectual disability with his test performances generally of an Extremely Low to Borderline quality and well below the mean range of his peers. She also described the respondent as illiterate and innumerate.[109] In her 2023 report, Dr Vidovich summarised her opinion as being that the respondent demonstrates marked impairment in his cognitive capacity and poor adaptive functioning, factors likely to be exacerbated in the context of his alcohol abuse.[110]

Additional matter

[109] Report of Dr Vidovich dated 12 January 2012, Book of Materials Vol 2, pages 1162.

[110] Report of Dr Vidovich dated 16 June 2023, Book of Materials, Vol 2, page 1169, par 49.

Shortly prior to the hearing of the application, additional information was provided to the court which referred to an incident that occurred on 29 April 2025 pertaining to the respondent. The respondent went accompanied by his support workers to a local deli. Once he got there, the respondent took off all of his clothes and did not listen to instructions to put them on and 'went out of line of sight'. The incident was resolved by the DJC bus being called and taking the respondent back to the centre.[111]

Assessment and disposition

[111] Email of 28 May 2025 from Ms Davie, Acting Team Leader, to CLMI Services to Ms Fleur Allen.

I am satisfied that the evidence overall is acceptable and cogent evidence upon which I can make the requisite assessment. I proceed on the basis that the Minister bears the onus.
The starting point in the requisite analysis is to assess the type of serious offences the respondent is at risk of committing. In that respect, the features of the respondent's conduct to date that I think are of particular importance in making that assessment are his use of scissors, and his attempts and threats to start fires.
I assess there is currently a significant risk of the respondent committing offences involving the use of violence. He has an extensive history of committing such offences while affected by alcohol and/or drugs. He has also been assessed at a high risk of future violence. However, 'offences of violence' are not, per se, serious offences under the CLMI Act.
The respondent's historical use of scissors has not resulted to date in any physical harm being caused. Nevertheless, the use of such items in an aggressive manner carries a real risk that physical harm will be caused, which is exacerbated when the respondent is affected by alcohol and/or drugs. And, given the nature of those items, there is a risk of harm being caused that reaches the level of grievous bodily harm, the causing of which is an offence under s 297 of the Code. The requisite degree of harm is a bodily injury of such a nature as to endanger life, or be likely to endanger life, or to cause, or be likely to cause, a permanent injury to health, without the intervention of medical treatment. An offence of causing grievous bodily harm is a serious offence under the CLMI Act.
The respondent has previously attempted to start a significant fire at a petrol station, and he has also previously threatened to burn down a liquor store. If fires of that potential magnitude had started, there would have been a significant prospect of property being damaged and people being severely injured. The destruction or damage of property by fire is an offence under s 444(1)(a) of the Code, which is also a serious offence under the CLMI Act. I assess the prospect of such offences being committed is less than the prospect of the respondent engaging in violent offending. I assess there is a moderate risk of the respondent engaging in 'fire related' offending in the future.
Given the risks that I have identified, and the nature and extent of the possible harm that could be caused, I am satisfied to the requisite standard that there is an unacceptable risk that the respondent will commit a serious offence of the type I have identified.
The Minister submitted that there is a real and substantial risk that the respondent's offending could escalate such that he may engage in hands‑on sexual offences.[112] That is, sexual offences constituted by actual physical contact with the victim. I do not accept that submission.
[112] Minister's submissions, par 60.
The respondent has an extensive history of offending that comprises more than 300 criminal offences committed over more than 30 years.[113] None of that offending has constituted any sexual contact offending. Also, the respondent does not appear to have sexually deviant interests or beliefs.[114]
[113] Minister’s submissions, par 14.
[114] Dr Galloghly's Report dated 8 April 2025, Book of Materials, Vol 2, page 1289, par 55.
My assessment of the respondent's offending behaviour where he has made threats to, or comments about, raping people, is that by engaging in such conduct, he is seeking to attract a high level of attention that warrants a rapid response. I do not regard his prior behaviour of this type as reflecting an intention to carry out such threats.
Also, in respect of sexual offending constituted by physical contact, for an offence of indecent assault to constitute a serious offence, it must be, at least, an aggravated indecent assault of an adult (s 324 of the Code), or an indecent dealing of a child under 16 (s 320(4) and s 321(4) of the Code). In respect of the indecent assault of an adult, circumstances of aggravation include that the offender does bodily harm to any person, or is armed with an offensive weapon, in connection to the commission of the offence. Dr Tate is of the opinion that escalation to serious physical violence in the context of a sexual offence is relatively unlikely although cannot be completely excluded.[115] Further, while the respondent's behaviour has been indiscriminate, there is no indication that the respondent has any sexually deviant interests, which is a relevant consideration in assessing whether he will commit a physical sexual offence against a child.
[115] Report of Dr Tate dated 10 October 2024, Book of Materials, Vol 1, page 140, par 126.
For these reasons, I am not satisfied that there in an unacceptable risk that the respondent will commit a serious offence constituted by physical sexual offending.

Is it necessary to make an ECO?

I must now assess whether it is necessary to make an ECO to ensure adequate protection of the community against that unacceptable risk. The nature of the unacceptable risk that I have identified informs the assessment of necessity. In making the requisite assessment, I recognise the respondent's entitlement to be at liberty, an entitlement not lightly to be denied.
The materials before me overwhelmingly demonstrate that it is in the respondent's best interests, and the interest of the community, that the respondent remain at the DJC. This is for his own protection, and for the protection of the community.
Ms Zillessen said in her written submissions that the DJC is currently 'the best place for [the respondent] to receive therapeutic intervention and transitional support consistent with protection of himself and the community.'[116] I agree with this observation. On the information before me, there are currently no options available in the community that provide the same level of support as the DJC.
[116] Respondent's submissions, par 14.
The latest transition plan for the respondent hopes to have him spend a significant time in the community on his leave of absence order by June 2026. Respectfully, I do think that is somewhat optimistic. Nevertheless, it reflects that at the moment the respondent is not in a position to safely transition into the community. Moreover, at present, his possible transition to living full time in the community depends upon an increase in his NDIS funding.
It is clear that his risk of committing serious offences is being adequately managed at the DJC and cannot presently be managed in the community.
For these reasons, I am satisfied to the requisite standard that to ensure the adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence, it is necessary to make an ECO.
I need to set the limiting term for the ECO. As I have said at [74] above, the term should be no longer than is necessary to achieve adequate protection of the community.
In making that assessment, I need to assess the likely time it will take for the respondent to have good prospects of making a successful transition from the DJC, to living full time in the community. This will depend on several factors. One of the more important factors is whether the respondent can demonstrate a pattern of consistent visits into the community under his leave of absence order without engaging in any significant problematic behaviour. He has not yet been able to do so. Another important factor is whether the respondent's NDIS funding will be sufficiently increased to provide him with adequate support to live full time in the community.
I also take into account that the State can apply for a further ECO. This means that I do not need to be overly cautious in setting the limiting term. On the other hand, setting a limiting term that is too short is not in the respondent's interests, as it will have him re-assessed prematurely.
The DJS Report in support of an ECO sought a limiting term of 15 months. As I have said, I think that is too optimistic having regard to the gains the respondent will need to make in order to safely transition into the community. Dr Galloghly supported a limiting term of 2 years.
Reflecting on all of these matters and, taking into account that the hearing was conducted on 29 May 2025, I have come to the view that a limiting term of 2 years and 3 months commencing upon the delivery of these reasons is appropriate.

Conclusion

For these reasons, I will make an ECO. I set a limiting term for the ECO of 2 years and 3 months commencing upon the delivery of these reasons. The interim custody order will cease upon the delivery of these reasons.
I conclude by thanking Ms Allen and Ms Zillessen for their considerable assistance in the hearing of this application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SP
Associate to the Hon Justice Lemonis
14 AUGUST 2025