The State of Western Australia v Bradbury [No 2]
[2025] WASC 217
•5 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BRADBURY [No 2] [2025] WASC 217
CORAM: MCGRATH J
HEARD: 5 JUNE 2025
DELIVERED : 5 JUNE 2025
FILE NO/S: SO 19 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DAVID MICHAEL BRADBURY
Respondent
Catchwords:
Criminal law - High risk serious offender - Contravention proceedings - Application for interim detention pending determination of contravention proceedings - Need to ensure adequate protection of the community
Legislation:
High Risk Serious Offenders Act 2020 (WA) s 53, s 56
Result:
Offender detained pending determination of contravention proceedings
Category: B
Representation:
Counsel:
| Applicant | : | Mr D S McDonnell |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Bradbury [2025] WASC 90
The State of Western Australia v Rao [2021] WASC 476
The State of Western Australia v Slater [No 2] [2021] WASC 465
MCGRATH J:
On 17 December 2024, the State commenced proceedings for the respondent to be subject to a restriction order under s 48 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act).
On 14 March 2025, Lemonis J heard the preliminary hearing and determined that there were reasonable grounds for believing that a court might find the respondent is a high risk serious offender pursuant to s 46(1) of the HRSO Act.[1] His Honour made an order that the respondent be released on an interim supervision order until the final determination of the application.
[1] The State of Western Australia v Bradbury [2025] WASC 90.
On 30 May 2025, the State commenced contravention proceedings under s 55 of the HRSO Act.
The issue that I must decide is whether the respondent may be released on a further interim supervision order pending the determination of the proceedings. Counsel for the respondent submitted that, given the circumstances, the interim detention of the respondent is not opposed. I find the concession of the respondent was properly made and that the respondent must be subject to interim detention pending the determination of the proceedings for the following reasons.
The alleged contraventions
The conduct upon which the applicant relies in support of the contention that the respondent has contravened the interim supervision order comprises criminal offence charges and behavioural issues. The charges and the behavioural issues are particularised in the affidavit of Ms Shae Hazzard affirmed 29 May 2025 and the affidavit of Mr Joseph Lloyd affirmed 30 May 2025.
The respondent has been charged with the following six offences:
Offence One
(1)On 20 May 2025, the respondent was charged with one offence of contravening a requirement of a supervision order contrary to s 80(1) of the HRSO Act (PE 29946 of 2025). The breach involved another male entering and remaining in the respondent's hotel room for approximately three hours. The respondent pleaded guilty to the charge and received a fine of $600.
Offences two, three and four
(2)On 23 May 2025, the respondent was charged with three offences of contravening a requirement of a supervision order contrary to s 80(1) of the HRSO Act (PE 30670 - PE 30672 of 2025). The alleged contravening comprises providing an invalid sample of urinalysis (PE 30670 of 2025), removing his electronic monitoring device (PE 30671 of 2025), and leaving his approved address during the curfew period of 7.00 pm and 7.00 am (PE 30672 of 2025). The respondent has been remanded to appear on 11 June 2025 in the Perth Magistrates Court in respect to the charges.
Offences five and six
(3)On 28 May 2025, the respondent was charged with one offence of contravening a requirement of a supervision order contrary to s 80(1) of the HRSO Act (PE 31649 of 2025) and one charge of using a prohibited drug contrary to s 6(2) of the Misuse of Drugs Act 1981 (PE 31650 of 2025).
Charge PE 31649 of 2025 concerns an allegation that without reasonable excuse the respondent contravened a requirement of the supervision order by providing a positive urinalysis test. Charge PE 31650 of 2025 arises from the positive urinalysis test result which grounds this further charge of using methylamphetamine. The respondent is currently remanded in custody and is to appear in the Perth Magistrates Court on 11 June 2025 in respect to the two charges.
Ms Hazzard deposes that the respondent has engaged in other concerning behavioural conduct including alleged contraventions of his interim supervision order which has not resulted in the preferment of criminal charges. The conduct includes attending licensed premises, providing two non‑compliant urinalysis samples for testing, providing two urinalysis samples positive to methylamphetamine, breaching his curfew by being absent from his accommodation and not complying with the directions of his community corrections officer concerning supervision meetings. Ms Hazzard states that there has been a deterioration in engagement with community corrections generally by the respondent.[2]
[2] Affidavit of Ms Hazzard, p 13 - 17.
Ms Hazzard deposes that the accommodation at the family friend's residence is no longer available. Accordingly, on 2 May 2025 the respondent was moved to emergency hotel accommodation in which he resided until his arrest for the contravention offending on 23 May 2025.[3]
[3] Affidavit of Ms Hazzard p 9.
Ms Hazzard further deposes that the respondent has no alternative accommodation and that whilst he has been accommodated in the emergency hotel, given the opportunistic and violent nature of the respondent's offending behaviour, he is not deemed suitable for ongoing emergency hotel accommodation.[4] Therefore, the respondent no longer has accommodation available in the community.
[4] Affidavit of Ms Hazzard p 9.
Relevant legislative provisions
The State brings the application under s 53 and s 56 of the HRSO Act. Section 53 of the HRSO Act provides:
State may seek orders
(1)This section applies to -
(a)an offender who is brought before the Supreme Court under a warrant issued under section 51(3) or 56(7)(d); and
(b)an offender who is charged with an offence under section 80(1).
(2)In relation to the offender, the State may apply for -
(a)an order under section 55; and
(b)an order for the offender to be detained in custody while proceedings on the application for an order under section 55 are pending.
(3)The application must state what order is sought under section 55.
Section 56 of the HRSO Act, relevantly, provides:
(1)This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect to the offender are pending (the pending proceedings).
(2)The court may at any time in the pending proceedings -
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
(3)The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
(4)The onus of proof as to the matter described in subsection (3)(b) is on the offender.
An issue that arises for determination is whether it is necessary for the respondent to establish exceptional circumstances to justify his release or whether the onus is on the State to establish that the respondent be detained pending the proceedings. The respondent was not brought before the Supreme Court under a warrant issued under s 51(3) or s 56(7)(d) of the HRSO Act. Rather, the State specifically relies upon s 53(1)(b) of the HRSO Act.
Quinlan CJ considered the relevance of s 56 of the HRSO Act to an application under s 53 in The State of Western Australia v Slater [No 2], stating:[5]
[5] The State of Western Australia v Slater [No 2] [2021] WASC 465 [15] ‑ [20].
The present application also points up another issue, which is the possible application of ss 56(2) and (3) of the Act to this case, and relationship of those provisions to s 53(2)(b).
Sections 56(2) and (3) provide:
(2)The court may at any time in the pending proceedings -
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
(3)The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
An issue which arises in this case is whether the requirement for exceptional circumstances in s 56(3) is engaged in relation to the State's application. That, in turn, depends upon whether s 56(2)(a) is engaged.
In that regard, the first question is whether Mr Slater is 'detained in custody' within the meaning of s 56(2)(a).
Prima facie, in my view, 'detained in custody', within the meaning of s 56, means detained pursuant to the provisions of the Act. Section 56(2)(a) cannot be construed as providing this Court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences. In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act in relation to a suspected or anticipated contravention of a supervision order. An order of the Court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply - including the requirements of s 56(3).
Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).
Accordingly, in The State of Western Australia v Slater [No 2], Quinlan CJ held that given the respondent was not in custody, for the reason that the respondent was not brought before the court pursuant to a warrant under s 51 of the HRSO Act, then s 56(3) had no application. For that reason, the requirement in s 56(3) that there be exceptional circumstances did not apply.[6] I subsequently applied that reasoning in The State of Western Australia v Rao.[7] The State accepted that the reasoning of the Chief Justice in The State of Western Australia v Slater [No 2] applies in respect of the present application.
[6] The State of Western Australia v Slater [No 2] [24].
[7] The State of Western Australia v Rao [2021] WASC 476.
The respondent is not in custody under the HRSO Act. The State did not make an application to a magistrate for a warrant to arrest and to take the respondent into custody to be brought before the court. Rather, the respondent was charged with offences under s 80(1) of the HRSO Act and has yet to be granted bail.
Therefore, the respondent is in custody not subject to any warrant under the HRSO Act, but rather after his arrest for contravention offences. The State's application is that the respondent be detained in custody under s 53(2)(b), while the contravention proceedings under s 55 are pending. Accordingly, s 56(3)(a) has no application in respect of the respondent for the reason that the respondent is not in custody under the HRSO Act. Therefore, for that reason, it is not necessary that the release of the respondent be justified by exceptional circumstances. Rather, the State must establish that the protection of the community against the risk of the respondent committing a serious offence under the HRSO Act requires that he be detained.
Assessment of the application
I now turn to the assessment of whether the respondent should be detained in custody until the determination of the proceedings.
Lemonis J, in determining that there were reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act, made a number of findings.[8]
[8] The State of Western Australia v Bradbury [29]; [60] ‑ [61].
First, the respondent has committed a number of serious offences in which violence was used and threatened including breaches of violence restraining orders. Second, the respondent's risk of committing serious offences in the future will be affected by the extent of the risk that he returns to illicit substance use, or returns to the company of people who are not law abiding. Third, illicit substance use has been a predominant theme of the respondent's time in the community and a significant contributing factor in his offending behaviour. Fourth, the offences for which the respondent was in prison at the time of Lemonis J's determination, were committed only six weeks after his release from prison for the offences committed against his own mother. Fifth, the respondent's criminal history demonstrates that he is capable of committing serious offences.
Lemonis J observed that there were two primary accommodation options available for the respondent.[9] First, that the respondent reside with his parents, though the State submitted that there were concerns in respect to that accommodation option given the respondent's prior offending against his mother. Second, that the respondent reside with family friends. Lemonis J ordered that the respondent was to be accommodated at the family friend's residence.
[9] The State of Western Australia v Bradbury [58] ‑ [59].
I am satisfied, on the basis of the alleged contraventions that I have outlined, that the State has established that the protection of the community against the risk of the respondent committing a serious offence under the HRSO Act requires that he be detained.
When the contravention offences are viewed together, and in light of other evidence that the State relies upon, there appears to be good reasons for the authorities to be concerned about their ability to manage the respondent in the community. The respondent has been charged with a range of offences and is displaying concerning behavioural conduct in the community. It is particularly concerning that the respondent has been using methylamphetamine and removed his monitoring device.
A significant issue that has now arisen is that the respondent no longer has suitable accommodation in the community. The respondent needs stable, appropriate accommodation to ensure that he will comply with his supervision order and thereby not be at risk of reoffending.
On the basis of the information that I have at the time of hearing this application, I am not satisfied that the respondent would substantially comply with the standard conditions if released. In particular, that he would comply with his electronic monitoring condition.
The State has established that the protection of the community against the risk of the respondent committing a serious offence under the HRSO Act requires that the respondent be detained.
Conclusion
Therefore, the respondent will be detained in custody pending the determination of the proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Hon Justice McGrath
5 JUNE 2025
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