The State of Western Australia v Binder
[2025] WASC 166
•29 APRIL 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BINDER [2025] WASC 166
CORAM: FORRESTER J
HEARD: 29 APRIL 2025
DELIVERED : 29 APRIL 2025
FILE NO/S: SO 5 of 2025
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
WAYNE MALCOLM BINDER
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Whether interim detention order or interim supervision order appropriate - Turns on own facts
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Interim detention order made
Category: B
Representation:
Counsel:
| Applicant | : | J Lloyd |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Cases referred to in decision:
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
FORRESTER J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
On 3 March 2020, the respondent was convicted on his own plea of guilty of the offence of, with intent to harm, doing an act causing bodily harm, contrary to s 304(2) of the Criminal Code (WA). On 5 March 2020, after a trial before a judge and jury, he was convicted of the offence of attempted aggravated sexual penetration without consent, contrary to s 552 and s 326 of the Criminal Code.
On 1 July 2020, the respondent was sentenced by Judge Wallace to a term of six years and six months' imprisonment in respect of those offences. The sentence was backdated to commence on 18 November 2018.[1] The respondent's sentence will expire on 17 May 2025. He has been denied parole.[2]
[1] BOM 65.
[2] BOM 22.
On 7 April 2025, the State of Western Australia applied for a restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (Act).
The preliminary hearing in respect of that application came before me today. The main purpose of such a hearing is for the court to decide whether there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the Act.[3]
[3] High Risk Serious Offenders Act 2020 (WA) (Act) s 46(1).
Having carefully considered all the evidence before me, I have determined there are reasonable grounds for such a belief. Accordingly, I will order that the matter be listed for a final hearing and that the appropriate reports in respect of the respondent be prepared. These are my reasons for that decision.
Legal principles
The State's application was made pursuant to s 35 of the Act, for a restriction order to be imposed in respect of the respondent under s 48 of the Act.
The respondent is a serious offender under custodial sentence, as that phrase is defined in s 3 of the Act, as the offences of which the respondent was convicted were 'serious offences' as defined in the Act.[4]
[4] Act s 5.
As I have noted, pursuant to s 46(1) of the Act, the primary purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the person in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[5]
[5] Act s 7(1).
A determination that a person is a 'high risk serious offender' requires proof to a high degree of probability. However, at the preliminary hearing stage, the threshold test is lower. At a preliminary hearing, a judge does not need to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. For there to be 'reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[6]
[6] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
The evidence
In support of the application, the State relied upon an affidavit of Michael Andrew Hurrelbrink, affirmed on 7 April 2025. Mr Hurrelbrink's affidavit concerns the respondent's criminal history and includes several reports and assessments in relation to him.
The State also relied upon the affidavit of Heather Applin affirmed on 22 April 2025. Ms Applin has deposed to the respondent's plans if he is released from custody.
The index offences
The offences which render the respondent liable to be dealt with under the Act (the index offences) are with intent to harm, did an act causing bodily harm and attempted aggravated sexual penetration without consent.
These two counts arose out of the same incident, which occurred on 17 November 2018. At that time the respondent, was in a family relationship with the victim, to whom I shall refer to as Ms A, who had been his de facto partner for approximately five or six years.[7] Ms A was 28 years old, and the respondent was 32 years old.[8] At the time of the index offences, the respondent was on bail for a charge of aggravated wounding, allegedly committed against Ms A, and was subject to a number of bail conditions, including protective bail conditions.[9]
[7] BOM 56.
[8] BOM 56.
[9] BOM 58 - 59.
On the day before the index offending, the respondent and Ms A had been drinking together and had travelled into the city.[10] After a disagreement, Ms A decided to make her way back to the block of flats where she and the respondent lived. She arrived in the early hours of the next morning and began drinking with the occupants of another flat until she fell asleep on the couch.[11]
[10] BOM 56.
[11] BOM 56.
At approximately 6.00 am, the respondent woke Ms A and they went upstairs to their unit. When they got inside, the respondent punched Ms A in the mouth with his fists. The punch caused her some dizziness, and she lay down on the mattress. The respondent then began verbally abusing Ms A, something he continued to do throughout what followed.
The respondent snapped the metal handle off of a mop, causing one end of it to have a jagged edge, and used the handle to beat Ms A to the head, face and other parts of her body. Despite her cries for him to stop, he continued. The assault caused Ms A to bleed profusely from her face and head.
The respondent directed Ms A, while she was fully clothed, to go to the shower to wash off the blood. He then turned the cold water tap on, while continuing to beat Ms A as she sat, cowering and leaning back in the shower.[12]
[12] BOM 56.
While this beating occurred, the respondent continued to verbally abuse Ms A, using words towards her such as 'slut'.[13]
[13] BOM 57.
The respondent then pulled Ms A's pants and underwear part of the way down her legs, exposing her vagina.[14] He attempted to insert the metal handle into her vagina. However, Ms A vigorously kicked out at the respondent while asking him to stop, and she prevented his attempt.[15] The respondent then continued to beat her with the metal handle.
[14] BOM 57.
[15] BOM 57 - 58.
The respondent's attempt to insert the jagged edge of the metal pole into Ms A's vagina resulted in lacerations and scratches to her right thigh.[16]
[16] BOM 58.
At some point, after approximately an hour of beating Ms A with the metal handle, the respondent left the bathroom and went out onto the balcony of the unit. Ms A took the opportunity to escape, running from the bathroom and out onto the street, away from the respondent.
The respondent chased after her, wielding the metal handle. However, he abandoned that at some point during the pursuit. Shortly afterwards, he was apprehended by police, who had been called to attend.[17]
[17] BOM 57.
Ms A suffered lacerations to her right ear, right thigh, right arm, right temple region and lower lip. She also had abrasions to her neck, a bruise on her right jaw and tenderness on her left hand.
Other criminal history
The respondent has not been convicted of any other offences that constitute 'serious offences' within the meaning of the Act. However, in addition to the index offences, the respondent has also been convicted of a number of other violent offences, including one count of aggravated unlawful wounding of Ms A (2018)[18] and another count of aggravated assault occasioning bodily harm against Ms A (2016),[19] one count of aggravated assault occasioning bodily harm against the respondent's previous partner, Ms N (2013),[20] and against a different partner again, Ms H, one count of aggravated unlawful wounding (2010),[21] one count of aggravated assault occasioning bodily harm (2008),[22] and one count of aggravated common assault (2005).[23]
[18] BOM 119 - 130.
[19] BOM 115 - 118.
[20] BOM 106 - 110.
[21] BOM 98 - 104.
[22] BOM 77 - 83.
[23] BOM 68 - 71.
The respondent has also been convicted of assaulting a public officer in 2007.[24]
[24] BOM 72 - 76.
It is not necessary to detail the specifics of each of the offences at this stage, but common to them was the repeated use of force and violence, frequently involving weapons, by the respondent against his former partners while he was intoxicated, and often while he was subject to an order or bail conditions for the protection of the victim.
The respondent's conduct included stabbing Ms A with a kitchen knife, punching Ms A in the head, continuing to do so even after she lost consciousness, repeatedly punching Ms N in the head, biting Ms N's ear and cheek and dragging her by the hair, ramming Ms H's head against the wall and hitting her over the head with a broom, punching, kicking and biting Ms H and hitting her over the head with a chair, and threatening to hit Ms H with a metal baseball bat. Most of the incidents resulted in bruising, swelling and bleeding. Some of the incidents occurred in breach of protective bail conditions and violence restraining orders.
Conduct in custody
During his most recent term in custody, the respondent has been found guilty of one prison charge, for being in possession of alcohol not lawfully issued to him.[25]
Personal circumstances and background
[25] BOM 21.
The respondent is now 39 years old. He has a lengthy criminal history, including for the offences I have just described.
The respondent is a Noongar man, born and raised in Perth. His parents separated when he was around eight years old.[26] He is the younger of two children born from his parents' relationship, and has two half‑siblings from his mother's subsequent relationships.[27] It is reported that in his early life, he was exposed to heavy parental alcohol use, periods of homelessness, poverty, neglect and physical assaults and that he struggled socially.[28]
[26] BOM 137.
[27] BOM 144.
[28] BOM 144 ‑ 145.
The respondent's father unfortunately passed in 2011, but his mother is still alive. His mother has also abused alcohol and cannabis. The respondent still has some contact with her, although their relationship is somewhat strained,[29] and he does not regard himself as having any particular family support.[30]
[29] BOM 137.
[30] BOM 145.
The respondent attended approximately seven different primary schools due to family instability and relocations.[31] However, he estimates that he only attended about 25% of primary school.[32] He ceased attending school in year 9.[33] He has not engaged in any further education since, and his literacy skills are limited.[34]
[31] BOM 145.
[32] BOM 145.
[33] BOM 145.
[34] BOM 145.
The respondent commenced smoking cannabis when he was about 13.[35] He initially used cannabis only on the weekends, but his habit became daily in his mid‑teens.[36] His daily cannabis use continued until he was 26 years old, when he reports he began to feel more anxious on that substance. Before his incarceration, he claimed he was rarely using cannabis, only once or twice a year.
[35] BOM 145.
[36] BOM 145.
Likewise, the respondent began sniffing paint when he was approximately 13.[37] His habit became daily and lasted until his remand in custody.
[37] BOM 145.
At the age of 15, the respondent began binge drinking.[38] He reports that his drinking became daily use when he gave up his daily cannabis use. Before his incarceration, he described himself as alcohol dependent.
[38] BOM 145.
At 28 years of age, the respondent began to consume methylamphetamines, although he claims that his use was limited as he did not enjoy its effects.[39]
[39] BOM 145.
A significant proportion of the respondent's alcohol and substance abuse appears to have been enabled and encouraged by relatives.[40]
[40] BOM 138 - 139.
The respondent completed two residential substance abuse programs in 2012 and 2013,[41] which he found useful. However, he still quickly relapsed into drug use, enabled by antisocial peers and family,[42] and then while struggling to cope with the passing of his father.[43]
[41] BOM 171 - 172.
[42] BOM 139.
[43] BOM 172.
The respondent reported a family history of schizophrenia, although he said that he had only had psychotic symptoms when using substances. He claimed to have chronic depression, which a psychologist, Ms Sampson, considered to be consistent with his presentation, and he reported previous self‑harm attempts.[44]
[44] BOM 146.
The respondent has never worked due to his substance use and lifestyle instability and what has later become clear is a cognitive impairment.[45] He has acquired his income from government benefits throughout his adult life and before his incarceration was allocated a unit, which he has since lost, through Homeswest.[46]
Reports
[45] BOM 145.
[46] BOM 145.
I have a copy of a psychological report from Ms Tanina Oliveri dated 23 July 2012. Ms Oliveri described the respondent at age 26 as guarded and suspicious, and presenting as over‑controlled. Ms Oliveri suspected that the respondent experienced explosive anger as a result, which is entirely consistent with his past offending, and noted that he could easily be viewed by others as intimidating. She was unable to conduct relevant testing due to the respondent's attitude.[47]
[47] BOM 139.
I also have the report of Ms Jane Sampson dated 6 April 2020, which was prepared for the respondent's sentencing for the index offences. Ms Sampson described the respondent as co‑operative but interpersonally detached, with an apparently low mood and grave manner. The respondent was in denial as to the offence of attempted aggravated sexual penetration without consent.
Ms Sampson observed that the respondent had very poor verbal skills, and needed simplified language to be used. The respondent acknowledged some learning difficulties.[48] The Wechsler Abbreviated Scale of Intelligence was administered, and the respondent's overall performance on the test placed him in the 'extremely low' range of intellectual capacity where 99.8% of others his age would be expected to perform higher. The respondent's verbal comprehension and perceptual reasoning scores were also in the 'extremely low' range.
[48] BOM 144.
In Ms Sampson's view, the respondent has cognitive limitations in the range of intellectual disability.[49] His substance use has likely impacted on his cognitive functioning, which is in turn likely to have impacted on his emotional regulation, judgement, impulsivity, abstract thinking, learning, problem solving, life skills, stability, consequential thinking, perspective taking, ability to sustain relationships and employment capacity.[50]
[49] BOM 148.
[50] BOM 147.
Ms Sampson was of the opinion that the respondent had very limited self‑awareness and insight. He does not have the cognitive abilities to negotiate relationship difficulties, instead resorting to aggressive behaviour. His substance abuse is a negative coping strategy. The drivers of his behaviour appear to be cognitive challenges, poor relationship skills and selection, sexual jealousy, derogatory attitudes towards females, humiliation of the victim, poor self‑awareness, possible disinhibition as a result of substance use, poor judgement and poor consequential thinking.[51]
[51] BOM 148.
The respondent's risk of re‑offending in a similar way was assessed using the STATIC 99‑R as being in the above average category. When using the Risk for Sexual Violence Protocol (RSVP) risk assessment tool, Ms Sampson assessed the respondent as being a high risk of sexually re‑offending. He was also assessed to be at high risk of re‑offending in a similar manner on the basis of the Spousal Assault Risk Assessment.[52]
[52] BOM 148 - 149.
Ms Sampson recommended that the respondent be considered for family violence intervention programs, but noted that he may be unsuitable due to his likely cognitive disability. He would be best suited to individually tailored intervention. He also required intervention to address his substance abuse.[53]
[53] BOM 150.
A neuropsychological report dated 18 June 2020 by Dr Jonson Moyle was also provided. Dr Moyle administered a number of tests, with the result that the respondent's premorbid intellectual abilities were estimated to be within the extremely low to borderline range, consistent with that seen in people with an intellectual disability.[54]
[54] BOM 155 - 156.
As to the respondent's attention, working memory and processing speed, his results overall placed him within the lower end of the average range. Dr Moyle advised that people working with the respondent should, however, be aware that his simple attention capacity may mask some of his cognitive deficits.[55] His performance in relation to language, visual spatial skills, memory and executive functioning were also impaired to varying degrees.[56]
[55] BOM 156.
[56] BOM 157 - 158.
The results suggested that the respondent would require assistance with following instructions without external guidance and supports, that he may struggle to track conversations, that he may therefore be vulnerable in a social setting and open to manipulation, that he will struggle to learn and retain verbal and non‑verbal material, and will struggle to problem solve, particularly when emotionally heightened.[57] A prolonged abstinence from alcohol and illicit substances is recommended.
[57] BOM 159.
Due to the respondent's cognitive impairments, he was assessed as requiring individual intervention. However, when referred to one‑on‑one intervention, Corrective Services declined to accept that referral, on the basis that he would be unlikely to engage and that his cognitive limitations made him unsuitable for psychological therapy.[58] That is unfortunate, because it suggests that, in a custodial setting, Corrective Services either do not have, or are unwilling to provide, the sort of intervention that the respondent requires.
[58] BOM 169.
Pre-sentence reports from 2012 and 2020 suggest that the respondent has difficulty accepting responsibility for his offending and an inconsistent response to supervision.[59]
Post-sentence supervision order report
[59] BOM 171 - 179.
I have been provided with a post‑sentence supervision order report in relation to the respondent, dated 7 April 2025. Regrettably, the respondent declined to participate in an interview in relation to that report, apparently in protest that he was being considered for such an order.
During his sentence, the respondent has participated in voluntary programs such as the Family and Domestic Group program, Alcohol and Other Drugs program, and engaged with the Waalitj Foundation for employment support. That he has done so is to be commended. However, those courses have not addressed his significant criminogenic needs.
The respondent's NDIS application has been accepted, but he still requires meetings to further develop his plan.
Respondent's plan on release
According to the affidavit of Ms Applin, the respondent has engaged with Outcare for accommodation and support. A further meeting is, I understand, due to take place on 1 May 2025. The respondent proposed to reside with his maternal aunt, but she has indicated she is unable to accommodate him at her house. However, there is vacant accommodation available for the respondent to live in Toodyay, and his maternal aunt can stay with him several times a week to support him. GPS monitoring is apparently available at that location, and there are no difficulties which arise in relation to the victim, should he reside there.
Post Sentence Supervision Order
I have been advised that on 23 April 2025, the Prisoners Review Board made a post‑sentence supervision order in respect to the respondent, having regard to his unmet treatment needs, extensive criminal history, lack of sufficient protective strategies to reduce his risk and the fact that the offence was a family violence offence. The conditions include reporting, to advise of his residence and employment, provisions relating to victim contact, electronic monitoring, drug and alcohol use, drug and alcohol testing and supervision, including programmatic intervention.
If I make an order - either an interim detention or supervision order, that post‑sentence supervision order will be cancelled.
Submissions
The State submits that the case on the preliminary hearing is a strong one.
It submits that the court cannot be confident that the respondent will adhere to community supervision requirements at this stage, and points to the respondent's refusal to engage with the authors of the post‑sentence supervision order report.
Ultimately, the State submits that, until the respondent is able to be adequately supported on an NDIS plan, and has appropriate accommodation supports, adequate protection of the community can only be achieved by making the respondent subject to an interim detention order.
On behalf of the respondent, it is conceded that the low threshold for the making of orders at this stage has been met.
Disposition
Having regard to the matters set out in s 7(3) of the Act on which there is evidence before me, I am satisfied that there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the Act.
I make that finding despite the fact that the only serious offences that the respondent has committed are the index offences. That is because the respondent's criminal history is predominantly for family violence offences, and his behaviour has consistently increased in severity over time. His willingness to use weapons in the course of his outbursts of rage mean that he has the capacity to inflict very serious injury. That likelihood is only increased if he is intoxicated. Indeed, the respondent has, on one prior occasion, inflicted very serious injury in the nature of a serious offence. That is not to minimise the seriousness of the injuries he has inflicted on other victims. In future, the respondent will likely find that any offences of that nature are declared to be serious violent offences - and then, an application will be made for him to be declared a serial family violence offender.
I have had regard to materials other than the respondent's criminal history. He has significant unmet treatment needs, complicated by cognitive impairments which make treatment of those needs difficult. There is little by way of recent information which is available to the court, but the respondent does not appear to take responsibility for his conduct, lacks insight into his offending, and will need to abstain from substances if he is to have any chance of remaining offence‑free. All of those things are made more difficult by his overlying cognitive impairment.
The community is entitled to be protected from the respondent. Potential domestic partners, in particular, need to be protected from him.
In my view at least, strict supervision and intensive programmatic intervention is required. Sadly, in the more than 6 years of his sentence, the latter has not been provided.
Conclusion
I will make the necessary orders for reports and for a final hearing.
Interim supervision order or Interim detention order
As to the appropriate interim order, while I am satisfied that there is a high likelihood that the respondent will commit a violent offence, the likelihood that he will commit a serious offence is not as clear. However, given the escalation in the respondent's conduct, there is a real risk of such offending occurring, and that risk is one which requires close attention to community protection.
The reports give me little confidence at this stage that the respondent is capable of abstaining from the use of alcohol or illicit substances. If he does use any substances, his risk of re‑offending violently is high.
The respondent's cognitive impairments also make it less likely that he is going to be able to comply with the requirements of an interim supervision order, at least at this stage, when he does not have adequate community supports. I say that acknowledging the offer of assistance of his aunt. While that would go some way to ensuring the respondent's compliance with the order, she is simply unable to supervise him to the degree which is necessary and should not be expected to.
On the information available to me, I am unable to be satisfied that the respondent can be adequately managed in the community. Accordingly, I will make an interim detention order.
It is important to impress upon the State that it is incumbent on the Department to ensure that the respondent is given access to supports and intervention to prepare him for release from custody. It is unclear why the respondent was denied one‑on‑one treatment when that was what was recommended by experts, and that decision should be reviewed.
I also note that it is open for the respondent to apply for an interim supervision order at any time during the pending proceedings, when the concerns I have expressed are addressed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BF
Associate to the Hon Justice Forrester
6 MAY 2025
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