The State of Western Australia v Bropho
[2025] WASC 28
•3 FEBRUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BROPHO [2025] WASC 28
CORAM: LEMONIS J
HEARD: 22 JANUARY 2025
DELIVERED : 22 JANUARY 2025
PUBLISHED : 3 FEBRUARY 2025
FILE NO/S: SO 18 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
FRANK SHANE BROPHO
Respondent
Catchwords:
Application for a restriction order under the High Risk Serious Offenders Act 2020 (WA) - Consideration of whether the State has met the requisite criterion for the Court to fix a date for hearing of the State's application - Consideration of whether an interim detention order should be made
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Criterion under s 46 of the High Risk Serious Offenders Act 2020 (WA) is met
Date set for restriction order hearing and ancillary orders made for the provision of expert evidence at that hearing
Interim detention order made
Representation:
Counsel:
| Applicant | : | Mr J M Lloyd & Ms F M Allen |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Garlett v Western Australia [2022] HCA 30
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v JPA [2024] WASC 225
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Williams [No 2] [2024] WASC 215
The State of Western Australia v Winder [2021] WASC 65
LEMONIS J:
(These reasons were delivered orally on 22 January 2025. They have been amended to correct matters of language and to include extracts from authorities and full citations.)
On 10 December 2024, the State of Western Australia applied for a restriction order in respect of Mr Frank Shane Bropho under the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act).
Mr Bropho is currently in custody serving a term of imprisonment of 8 years due to complete on 10 February 2025.
Section 46 of the HRSO Act requires that there be a preliminary hearing in respect of the State's application, which is the hearing listed before me today. The State has provided helpful written submissions for the purposes of today's hearing.
Preliminary hearing
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the court might find, pursuant to s 7 of the HRSO Act, that Mr Bropho is a high risk serious offender within the meaning of that Act. If I am not so satisfied, then I cannot fix a day for the hearing of the State's application for a restriction order.
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 to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence. A restriction order is made under s 48 of the HRSO Act and comprises either a continuing detention order or a supervision order.
Section 7 of the HRSO Act sets out the matters that the court must have regard to in assessing whether a person is a high risk serious offender. These matters are comprehensively addressed in the State's written submissions.
In TheState of Western Australia v Williams [No 2],[1] I expressed at pars 39 and 40 my view as to how to approach an assessment of whether a person is a high risk serious offender:[2]
Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the possible harm. 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'. They are by no means exhaustive.
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. And, as Kiefel CJ, Keane and Steward JJ explained, the assessment of whether the order is necessary requires recognition that an offender's entitlement to be at liberty is not lightly to be denied.
[1] TheState of Western Australia v Williams [No 2] [2024] WASC 215 [22] - [37]. See also Garlett v Western Australia [2022] HCA 30 [67] - [85].
[2] Williams [39] - [40].
In respect of the issue before me on this preliminary hearing, Quinlan CJ observed in The State of Western Australia v Winder that:[3]
For the purposes of this hearing, I do not have 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. I emphasise the word might. To say that something might occur, is to say that it is possible. Belief is an inclination of 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.
[3] The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ). See also The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J).
Mr Bropho is represented today by experienced counsel, Mr Wilson, who concedes that the criteria set out in s 46 of the HRSO Act is met.
For the reasons which follow, I accept that concession and I am satisfied that the criterion in s 46 is met. I will therefore make an order setting a hearing date for the restriction order application and ancillary orders to facilitate the hearing of that application.
The evidence
In support of the application, the State relies upon an affidavit of Mr Daniel Sean McDonnell affirmed 10 December 2024. Mr McDonnell's affidavit contains, amongst other matters, the details of Mr Bropho's criminal history as well as two treatment assessment reports respectively dated 18 January 2023 and 17 April 2024.
Mr Bropho is currently serving sentences of imprisonment totalling 8 years due to expire on 10 February 2025. The sentences are made up of the following:
1.On 24 November 2017, a judge of the District Court sentenced Mr Bropho to a term of imprisonment of 5 years and 3 months in respect of the offence of doing an act with intent to harm as a result of which act the life, health or safety of the victim was likely to be endangered. This is an offence against s 304(2)(b) of the Criminal Code (WA).
2.On 28 November 2018, a judge of the District Court sentenced Mr Bropho to a further term of 2 years' imprisonment for the offence of aggravated sexual penetration without consent which is an offence contrary to s 326 of the Criminal Code. This sentence was ordered to be served cumulatively on the sentence of 5 years and 3 months.
3.On 12 August 2021, a magistrate sentenced Mr Bropho to a term of imprisonment of 9 months for assaulting a prison officer, which is an offence contrary to s 318(1)(b) of the Criminal Code. The term of imprisonment of 9 months was ordered to be served cumulatively on the terms of imprisonment that Mr Bropho was then serving.
The offences I have described at pars 1 and 2 above are serious offences under the HRSO Act.
The offence against s 304(2)(b) involved a random and violent attack on a member of the public. Mr Bropho was in the city and the victim walked past him. There was a brief interaction between them and the victim kept walking. Mr Bropho then struck the victim to the head with a bag containing a stereo system weighing 2.45 kgs. The attack was unprovoked. The victim fell unconscious to the ground. Mr Bropho then struck the victim in the face with the same bag. The victim suffered extensive injuries, including a traumatic brain injury.[4]
[4] Mr McDonnell's affidavit, pages 118 - 119.
The sexual penetration offence involved a 19‑year‑old woman. She had been out at a nightclub and became quite drunk. She passed out at the Perth Cultural Centre. Mr Bropho came up to her with a second man and befriended her. Ultimately Mr Bropho and the victim ended up in Lake Street, where he told her to lie down and rest, which she did. Mr Bropho lay down next to her and placed a blanket over the two of them. She passed out due to being so drunk. Mr Bropho placed his hand under her jeans inside the front of her underwear and inserted his fingers or another object into her vagina. The victim suffered bodily harm as a result, consistent with multiple penetrative movement.[5] When Mr Bropho was sentenced for this offence on 28 November 2018, the sentencing judge described him as having a high risk of reoffending.[6] The sentencing judge also was of the view that the dominant sentencing consideration was the need to protect the community.
[5] Mr McDonnell's affidavit, page 72 - page 73.
[6] Mr McDonnell's affidavit page 77.
Mr Bropho has also committed the following further serious offences:
1.One offence of aggravated indecent assault, one offence of deprivation of liberty, six offences of sexual penetration without consent in circumstances of aggravation and five offences of sexual penetration without consent all committed on 21 June 2000. Mr Bropho received a total effective sentence of 13 years for these offences.
2.One offence of robbery while armed committed on 4 December 1992 and three further such offences committed on 7 and 13 December 1992. Mr Bropho received a total sentence of 7 years and 6 months for these offences.
3.One offence of doing an act causing bodily harm with intent to harm, being an offence against s 304(2)(a) of the Criminal Code. The offence followed a collision between two cars, Mr Bropho and his brother being in one of them. Mr Bropho struck the driver of the other vehicle to her back three times with a hammer causing severe bruising and threatened to kill a bystander who came to her aid. Mr Bropho then left the scene in her car, which was driven by his brother. Mr Bropho received a total sentence of 4 years and 6 months for this offending overall.
Additional offending behaviour
Mr Bropho has also committed a number of offences of violence against former intimate partners, an offence of breaching a protective bail condition and two offences of assaulting public officers. For the purposes of the application before me, it is not necessary to describe these offences in any greater detail.
Mr Bropho's personal circumstances
Mr Bropho was born on 27 April 1967. He is now 57 years of age.
Mr Bropho finished school at year 6 and has had no history of employment.
He was made a ward of the State at 15 years of age until he turned 18.
He commenced drinking alcohol and using cannabis at around the age of 17 and started using amphetamines in his mid‑20s.
He has type 2 diabetes.
He has two adult sons and eight grandchildren with whom he has intermittent contact.
Neuropsychological assessment
The State has provided separately to Mr McDonnell's affidavit a neuropsychological assessment report of Mr Bropho dated 19 November 2017. The neuropsychological report noted that there is:[7]
… a history of a reported early and possibly severe traumatic brain injury secondary to a motor vehicle accident, as well as disrupted and limited education, illiteracy, institutionalisation, homelessness, and chronic heavy alcohol and other substance use when residing within the community.
[7] Neuropsychological report dated 19 November 2017, par 85.
The neuropsychologist was of the opinion that Mr Bropho's history and his presentation highlight 'an enduring pattern of maladaptive and antisocial behaviours which seem to fall outside of typical societal norms'.[8]
[8] Neuropsychological report par 93.
The neuropsychologist was also of the opinion that her findings and observations detailed in the report are indicative of a general low level of intellectual capacity, although not at the level of an intellectual disability.[9]
Other reports
[9] Neuropsychological report par 89.
The treatment assessment reports reflect that Mr Bropho has not cooperated in the treatment assessment process and therefore has been unable to be assessed as to the appropriate programs that he needs to undertake.
For the purpose of this application the State submits, and I accept, that Mr Bropho has demonstrated a propensity for significant sexual and violent offending against intimate partners. He has also demonstrated a capacity to commit unprovoked attacks on vulnerable members of the community.
Rehabilitation efforts and gains
The treatment assessment report for Mr Bropho dated 18 January 2023 states that Mr Bropho 'presents as unwilling to address his treatment needs at this time and this is consistent with his outlook generally'.
Accommodation
In The State of Western Australia v Corbett [No 5], Hall J (as his Honour then was) said.[10]
The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending.
[10] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].
There is presently no proposed suitable accommodation for Mr Bropho if he is released into the community.
Post sentence supervision order
The Prisoners Review Board has imposed a Post Sentence Supervision Order (PSSO) in respect of Mr Bropho for the period from 10 February 2025 to 9 January 2027. Amongst other matters, the PSSO requires Mr Bropho:
1.not to use or be in possession of illicit drugs;
2.attend for random urinalysis for illicit substances as directed by a community corrections officer and provide a valid sample;
3.not to consume alcohol and to submit to random breath testing as requested by police.
My assessment
I am satisfied there are reasonable grounds to believe that the court might find that Mr Bropho is a high risk serious offender within the meaning of the HRSO Act. The following matters are of particular importance in coming to that view. The evidence presently before me demonstrates Mr Bropho has a propensity for significant sexual and violent offending against intimate partners and a capacity to commit unprovoked serious assaults on vulnerable members of the community.
Interim detention order
The State also seeks an order that Mr Bropho remain in custody pending the determination of these proceedings. In that respect, s 46(2)(c)(i) of the HRSO Act provides:
(i)if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order.
Mr Bropho does not oppose an interim detention order being made for a limited period of time, that period being sufficient for the State to obtain further information regarding possible accommodation options for Mr Bropho.
To make a detention order, I must be positively satisfied that such an order is appropriate for the adequate protection of the community.[11] In this case, it is not necessary to explain further the relevant factors that I should take into account.
[11] The State of Western Australia v JPA [2024] WASC 225 [30].
I am positively satisfied that an interim detention order should be made initially for a limited period of time. The parties agree that an adjournment to 27 March 2025 will allow sufficient time for a further report on accommodation options to be provided.
In being so satisfied, I take account in particular of the following matters. Mr Bropho has an extensive history of serious criminal offending, he has not positively engaged in treatment programs and on the last occasion that he was sentenced in the District Court, he was considered to be a high risk of further offending. Further, there is presently no appropriate accommodation available to him.
Conclusion
For these reasons, I am satisfied that the criterion in s 46 of the HRSO Act is met. I will therefore make an order fixing the date for hearing of the State's application for a restriction order.
Further, in accordance with s 46(2), I will also order that Mr Bropho undergo examination by a psychiatrist and a psychologist, and I will make orders facilitating the preparation of their reports.
In respect of those reports, I consider it is beneficial if they address the expert's opinion in respect of the following additional matters:
1.the topics that should be addressed in a supervision order, if such an order was imposed; and
2.any particular areas of treatment or support which the expert considers would assist Mr Bropho to successfully integrate into the community.
I will order that Mr Bropho be detained in custody until further order and adjourn the hearing of the matter to 27 March 2025.
I will make the additional orders proposed by the State to facilitate the final hearing of the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OM
Associate to the Hon Justice Lemonis
3 FEBRUARY 2025
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