The State of Western Australia v Bropho [No 2]
[2025] WASC 389
•25 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BROPHO [No 2] [2025] WASC 389
CORAM: LEMONIS J
HEARD: 1 & 25 JULY 2025
DELIVERED : 25 SEPTEMBER 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 respondent is a high risk serious offender and appropriate order to be made if that is the case
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)
Result:
Respondent declared a high risk serious offender
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | J M Lloyd |
| Respondent | : | R G Wilson |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v GTR [2008] WASC 187
Garlett v Western Australia [2022] HCA 30
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Bropho [2025] WASC 28
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Williams [No 2] [2024] WASC 215
LEMONIS J:
The State of Western Australia has applied under s 35(1) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) for a restriction order to be made in respect of the respondent (Mr Bropho).
A restriction order is either a continuing detention order or a supervision order. The effect of a continuing detention order is that Mr Bropho is detained in custody, even though he has served all terms of imprisonment to which he has been sentenced. A supervision order permits Mr Bropho to live in the community, subject to a number of mandatory and discretionary conditions.
A precondition to the making of either order is that the court finds Mr Bropho is a 'high risk serious offender' as that term is defined in the HRSO Act.
Procedural history
Most recently, Mr Bropho was serving a total effective sentence of imprisonment of 8 years that expired on 10 February 2025. The total effective sentence was comprised of the following sentences:
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 an offence of doing an act with intent to harm as a result of which the life, health or safety of the victim was likely to be endangered. This is an offence contrary to s 304(2)(b) of the Criminal Code (WA) (Code).
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 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)(d) of the 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 points 1 and 2 of [4] above are serious offences as that term is defined in the HRSO Act and thus Mr Bropho's term of imprisonment was in respect of at least one 'serious offence'. Accordingly, Mr Bropho was a serious offender under custodial sentence within the meaning of that phrase as defined in s 3 of the HRSO Act. The State made its application on 10 December 2024. Section 35(1) permitted the State to do so as there was a possibility Mr Bropho might be released from custody within the period of one year after the application was made.
The requisite preliminary hearing was heard before me on 22 January 2025. At that time, Mr Bropho was still in custody serving the 8 year sentence. The main purpose of the preliminary hearing was to decide whether there were reasonable grounds for believing that the court might find Mr Bropho to be a high risk serious offender. I was satisfied there were reasonable grounds to so believe.[1] I was also satisfied it was appropriate to make an interim detention order until further order, or the final determination of the application. The interim detention order commenced upon the expiry of Mr Bropho's 8 year sentence. Mr Bropho remains in custody pursuant to that interim order.
[1] The State of Western Australia v Bropho [2025] WASC 28.
Relevant provisions of the HRSO Act
Section 5 defines the term 'serious offence' that is used in s 8. It does so predominantly by reference to offences specified in sch 1 div 1, and sch 1 div 2 where the offence is committed in the circumstances indicated in div 2. For the purposes of this application, I have reviewed the offences listed in sch 1 and also had regard to the balance of what s 5 prescribes is a serious offence.
Section 48 sets out the court's power to make a restriction order. It provides:
(1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must –
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
Pursuant to s 48, if the court finds the offender is a high risk serious offender the court must make a continuing detention order or a supervision order. The court's ability to make a supervision order is subject to s 29. Section 29 provides that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions of the order.
Section 7(1) defines the phrase 'high risk serious offender' as follows:
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.
The phrase 'high degree of probability' connotes a standard that is more than the civil standard of balance of probabilities but less than the criminal standard of beyond reasonable doubt.[2] The State has the onus of satisfying the court to this standard that Mr Bropho is a high risk serious offender.[3]
[2] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28].
[3] HRSO Act, s 7(2).
In considering whether I am satisfied that Mr Bropho is a high risk serious offender, I must have regard to the matters that are set out at s 7(3)(a) to (j). Section 7(3)(j) is a catch all provision, which in effect provides that I must have regard to any other relevant matter in addition to those set out at s 7(3)(a) to (i).
Section 7(4) sets out what I must disregard in making the relevant assessment. Specifically, I must disregard the possibility that Mr Bropho might temporarily be prevented from committing a serious offence by imprisonment or remand in custody, or the imposition of bail conditions.
In The State of Western Australia v Williams [No 2],[4] I analysed these provisions, in particular by reference to the joint judgment of Kiefel CJ, Keane and Steward JJ and the separate judgment of Edelman J in Garlett v The State of Western Australia.[5] Having regard to that analysis, I am of the view that the appropriate way to proceed is as follows:[6]
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. I am reluctant to attempt to provide greater definition, bearing in mind the caution expressed by the High Court in M v M against 'striving for a greater degree of definition than the subject is capable of yielding'.
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.
(footnote omitted)
[4] The State of Western Australia v Williams [No 2] [2024] WASC 215.
[5] Garlett v Western Australia [2022] HCA 30; Williams [22] ‑ [40].
[6] Williams [39] ‑ [40].
Further, in Garlett, the joint judgment quoted with approval the following observations of Fiannaca J in The State of Western Australia v ACJ:[7]
The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2). As was decided in respect of s 17(2) of the [Dangerous Sexual Offenders] Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.
(footnotes omitted)
[7]Garlett [106]; The State of Western Australia v ACJ [2021] WASC 219 [32].
Supervision order
Section 27(1) provides that a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate.
The nature, conditions and period of a supervision order are addressed by s 27 and s 30.
Section 27(2) provides that a supervision order has effect from a date, and for a period, stated in the order.
Section 30(2) sets out the standard conditions of a supervision order. A prerequisite to the making of a supervision order is that the court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of it.[8] Broadly speaking, the conditions in s 30(2)(a) to (e) and (g) impose reporting and notification obligations on the offender and subject the offender to intensive supervision. The standard condition in s 30(2)(f) is that the offender not commit a serious offence during the period of the order.
[8] HRSO Act, s 29(1).
Section 30(5) provides that a supervision order may contain any other terms that the court thinks appropriate:
(a)to ensure adequate protection of the community; or
(b)for the rehabilitation, care or treatment of the offender; or
(c)to ensure adequate protection of victims of serious offences committed by the offender.
In relation to the question of whether an offender will substantially comply with the standard conditions imposed by s 30, the joint judgment in Garlett quoted with approval the following observations of Fiannaca J in ACJ:[9]
The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro-social support available to him.
[9] Garlett [103]; ACJ [416].
Thus, the assessment of whether the offender will substantially comply with the standard conditions takes account of the protective and supportive measures provided by the terms of the order.
In respect of the additional conditions that a court might impose over and above the standard conditions of a supervision order, Edelman J in Garlett observed:[10]
The requirement of appropriateness [in s 27(1)] imposes a duty on the Court to make only the additional supervision conditions required to ensure 'adequate' protection of the community, while imposing the minimum intrusion on an offender's liberty.
(footnotes omitted)
[10] Garlett [230]; see HRSO Act, s 30(5), which also requires that conditions are 'appropriate'.
In my view, this observation applies equally to the period of a supervision order. The period should reflect the minimum intrusion necessary to ensure adequate protection of the community.
Further, in my view, the type of additional conditions which might be imposed are relevant to assessing the following three matters. First, whether additional conditions, taken together with the standard conditions, can ensure adequate protection of the community in the relevant circumstances. Second, if that is the case, what additional conditions are required to ensure adequate protection of the community, while imposing the minimum intrusion on an offender's liberty. Third, whether the additional conditions, taken together with the standard conditions and all of the relevant circumstances, satisfy the court that the offender will substantially comply with the standard conditions.
I turn now to the specifics of the application.
The evidence
The State tendered three volumes of a Book of Materials which respectively became Exhibits 1 to 3 on the appeal. Mr Wilson, counsel for Mr Bropho, tendered an email sent by him on 30 June 2025 to my associate which set out certain information regarding Mr Bropho. Further, the State called as witnesses at the hearing Dr Wojnarowska, Dr Galloghly, Mr Carmichael and Ms Bennetts. Each had prepared reports for the hearing which were contained in the Book of Materials. Each also gave oral evidence at the hearing. Mr Bropho was present by video link at the hearing. He did not give or adduce any oral evidence.
As I explain at [77] below, the hearing on 1 July 2025 was adjourned to 25 July 2025 to enable further information to be obtained regarding the accommodation options for Mr Bropho, and the treatment options available in prison for Indigenous offenders.[11]
[11] ts 69.
Mr Bropho's personal circumstances
Mr Bropho was born on 27 April 1967. He is now 58 years of age.
Mr Bropho is a Wadjuk Noongar man, whose traditional country is around the Perth metropolitan area. Mr Bropho's first language is English. He also can understand and speak some Noongar.[12]
[12] This information forms part of the instructions given by the Aboriginal Legal Service to Dr Vuletich for the purposes of a report that the ALS engaged her to provide. See Book of Materials, vol 2, page 832 [10] and page 841 [85].
Mr Bropho attended six years of schooling and has a limited history of employment.[13]
[13] Book of Materials, vol 2, page 832 [14] and page 833 [25].
Mr Bropho was made a ward of the State at 15 years of age, which continued until he turned 18.[14]
[14] Book of Materials, vol 3, page 896 [25].
Mr Bropho commenced drinking alcohol at around 17 years of age, and using cannabis by the age of 17.[15] He started using amphetamines in his mid‑20s.[16]
[15] Book of Materials, vol 2, page 834 [29].
[16] Book of Materials, vol 3, page 897 [38].
Mr Bropho has type 2 diabetes.
Mr Bropho has two adult sons and eight grandchildren with whom he has intermittent contact.
Mr Bropho also has an apparently good relationship with Mr Herbert Bropho, who is his brother. Mr Herbert Bropho has assisted in passing information to Mr Bropho's counsel in respect of the hearing of the State's application. Further, Mr Herbert Bropho has experience helping people with referrals for accommodation through Ruah Community Services and told Mr Wilson that Ruah was attempting to assist Mr Bropho to find accommodation.
Offending history
I have described already the offences in respect of which Mr Bropho was serving sentences of imprisonment at the time of the preliminary hearing. The offences contrary to s 304(2)(b) and s 326 of the Code are serious offences under the HRSO Act. The circumstances of those offences are as follows.
The offence against s 304(2)(b) involved a random and violent attack on a 59 year old man, who was 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 kg. The attack was unprovoked. The victim fell unconscious to the ground. Mr Bropho then struck the victim in the face with the bag. The victim suffered extensive injuries, including a traumatic brain injury.[17]
[17] Mr McDonnell's affidavit, pages 118 - 119.
The sexual penetration offence was committed against a 19‑year‑old woman. She had been out at a nightclub and was intoxicated. She lost consciousness 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 lost consciousness again. 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.[18] When Mr Bropho was sentenced for this offence on 28 November 2018, the sentencing judge described him as having a high risk of reoffending.[19] The sentencing judge also was of the view that the dominant sentencing consideration was the need to protect the community.
[18] Mr McDonnell's affidavit, pages 72 ‑ 73.
[19] Mr McDonnell's affidavit, page 77.
Further, Mr Bropho has also committed the following additional serious offences:
1.One offence of aggravated indecent assault, one offence of indecent assault, one offence of unlawful detention, 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. The victim was Mr Bropho's former de facto partner. The learned sentencing judge described the circumstances of this offending as follows:[20]
On this particular day, after some drinking, you turned violent and over a period of the afternoon and the night, you committed this series of brutal and degrading sexual offences against [the victim] before eventually falling asleep, whereupon she was able to escape and she immediately went to a nearby place and soon obtained police and medical help.
… they were a lengthy and degrading series of offences without the slightest justification and it seems without the slightest sense of remorse on your part.
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 Code. This offence was committed on 10 September 2009. The offence followed a collision between two cars, Mr Bropho and his brother being in one of them. Mr Bropho struck the female 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.
[20] Book of Materials, vol 2, pages 652 ‑ 653.
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.
Report of Dr Wojnarowska dated 31 May 2025
Dr Wojnarowska interviewed Mr Bropho twice. Her report sets out in some detail what Mr Bropho told her during those two interviews.[21]
[21] Book of Materials, vol 3, pages 876 ‑ 878 [58] ‑ [73].
Those matters reflect a significant lack of insight by Mr Bropho into his offending, a significant lack of remorse and quite strong anti‑authority sentiments. Mr Bropho said to Dr Wojnarowska that 'I just want to be outside and want to be a nice person'.[22]
[22] Book of Materials, vol 3, page 878 [73].
Dr Wojnarowksa is of the opinion that Mr Bropho fulfills the criteria for anti-social personality disorder and that he presents with narcissistic traits and psychopathy characterised by inflated self‑image, grandiosity, egocentricity and self‑serving behaviours.[23]
[23] Book of Materials, vol 3, page 879 [78].
Further, Dr Wojnarowska is of the opinion that Mr Bropho also fulfills the criteria for substance use disorder (alcohol and amphetamine dependence). She referred to Mr Bropho having engaged in illicit substance abuse and heavy alcohol consumption since his teenage years.
Dr Wojnarowska is of the opinion that Mr Bropho's substance use disorder has been in remission during his most recent period of imprisonment. Nonetheless, she is of the opinion that his substance use disorder remains an important treatment need for his management in the community as he is 'at high risk of imminent relapse'.[24] In Dr Wojnarowska's oral evidence, she explained that people with a substance use disorder are very likely 'to relapse once they are released to the community if they don't receive counselling or support in this area'.[25]
[24] Book of Materials, vol 3, page 879 [80].
[25] ts 44.
Dr Wojnarowska conducted a number of different assessments of Mr Bropho.
Care needs to be taken in analysing the results of these assessments. That observation is illustrated by Dr Wojnarowska's comments regarding the Static‑99R assessment as follows:[26]
Static‑99R does not measure all relevant risk factors and the person's recidivism risk may be higher or lower than that indicated by Static‑99R based on factors not included in this risk tool and has a moderate accuracy.
[26] Book of Materials, vol 3, page 879 [82].
I will address each of the assessments undertaken separately.
Static‑99R
Static‑99R is intended to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offenders.
The assessment identified Mr Bropho's static risk factors as including prior non‑sexual violent convictions, prior sex offences and convictions in respect of victims who were strangers.[27] The identification of these static factors is important. The actual percentage recidivism rate I do not consider to be of assistance on this application.
PCL‑R
[27] Book of Materials, vol 3, page 881 [90]. The paragraph also refers to 'prior sentencing dates' being a risk factor, but I do not understand what ‘prior sentencing dates’ means in this context.
This tool assesses the extent to which a person's personality structure conforms to the clinical construct of psychopathy.[28] Mr Bropho had a total score of 30, which meets the threshold for psychopathy. To be clear, the threshold is 30. The features giving rise to that score of particular concern are that Mr Bropho has traits consistent with being manipulative, lacking remorse and empathy, and not accepting responsibility.[29]
RSVP
[28] Book of Materials, vol 3, page 879 [83].
[29] Book of Materials, vol 3, page 881 [93].
This tool is intended to help evaluators conduct comprehensive assessments of the risk of sexual violence in clinical and forensic settings.[30]
[30] Book of Materials, vol 3, page 880 [84].
Dr Wojnarowska identified the following factors present for Mr Bropho:[31]
[31] Book of Materials, vol 3, pages 881 ‑ 882 [94] ‑ [104].
1.chronicity and escalation of sexual violence (partially present);
2.escalation (partly present);
3.coercion in the offending against his former partner;
4.extreme minimisation / denial of sexual offending;
5.attitudes that support or condone sexual violence;
6.problems with self‑awareness;
7.problems with stress or coping;
8.substance use problems.
SARA‑V3 and HCR‑20 (V3)
To a large extent, the factors identified in respect of these assessments are readily apparent from Mr Bropho's personal history and his significant offending history. Specific matters that it is useful to highlight are:
1.Mr Bropho has made no rehabilitation gains in prison and at the time of the report, had stated he was willing to engage in a program but only in the community, did not believe he would relapse into alcohol or substance use.[32]
2.He has a history of homelessness and had at the time of the report no accommodation plans in the community.
3.He has type 2 diabetes and his poor management of this condition is such that his health would likely degenerate in the community, which 'directly increases his risk of reoffending in the community'.[33]
Risk scenarios
[32] Book of Materials, vol 3, page 887 [130].
[33] Book of Materials, vol 3, page 887 [135].
Dr Wojnarowska identified the risk scenarios for Mr Bropho as follows:[34]
If Mr Bropho were to re‑offend it is likely to occur in the context of alcohol and/or methamphetamine use against his intimate partner. Mr Bropho may become disinhibited and overtly sexualised when intoxicated. His aggression is likely to be precipitated by an argument. He would attempt to engage his partner into… sexual activities which could escalate to attempts or successful penetration without consent. Mr Bropho has concerningly reached this threshold previously with no concern for the possible injuries to his partner.
Mr Bropho is also likely to indecently assault or attempt to penetrate a stranger who is vulnerable which he encounters in a public place such as in a park, alone at night or in an intoxicated state. His action may be highly impulsive, for example during a random encounter with a female who he finds attractive or may be [preceded] by a period when Mr Bropho is in a close physical proximity to the victim for some time, for example in a park or secluded area.
[34] Book of Materials, vol 3, page 888 [137] ‑ [138].
Dr Wojnarowska concluded that 'it is evident that Mr Bropho is a serious violent and sexual offender who is likely to engage in serious offending in the future'.[35] Further, her opinion was that if he was not subject to an order under the HRSO Act, he is at high risk of violently and sexually reoffending in a serious manner as defined by the HRSO Act.[36]
[35] Book of Materials, vol 3, page 888 [143].
[36] Book of Materials, vol 3, page 888 [145].
Dr Wojnarowska said that if Mr Bropho remains in custody, he should engage in programmatic intervention followed by individual psychological counselling.[37]
Dr Galloghly
[37] Book of Materials, vol 3, page 889 [155].
Dr Galloghly is a clinical forensic psychologist who completed a psychological report in respect of Mr Bropho. Dr Galloghly administered the Montreal Cognitive Assessment in respect of Mr Bropho's cognitive thinking. Mr Bropho scored 14 out of 30 which suggests a likely cognitive impairment. He struggled with functions related to language, attention and abstraction.[38]
[38] Book of Materials, vol 3, page 898 [48].
Dr Galloghly is of the opinion that the diagnoses associated with Mr Bropho's offending and behavioural problems are executive functioning/cognitive deficits, substance use disorder and antisocial personality disorder.[39]
[39] Book of Materials, vol 3, page 901 [67].
A matter of some importance is that in Mr Bropho's discussions with Dr Galloghly, Mr Bropho attributed his violent behaviour to the effects of substance abuse and also acknowledged having an anger problem.[40] Mr Bropho also acknowledged that mutual jealousy was often a trigger for conflict in his relationships.[41]
[40] Book of Materials, vol 3, page 900 [60].
[41] Book of Materials, vol 3, page 900 [61].
Dr Galloghly undertook a number of risk assessments of Mr Bropho. Having done so, Dr Galloghly assessed Mr Bropho as having a high risk of general, intimate partner and sexual violence recidivism. He also said that this risk is reflective of Mr Bropho's chronic history of violent offending, and his lack of treatment. Dr Galloghly identified the primary risk factors as Mr Bropho's substance abuse, and the combination of his antisocial personality structure and executive functioning deficits.[42]
[42] Book of Materials, vol 3, page 906 [80] ‑ [81].
Dr Galloghly expressed the opinion that:[43]
Mr Bropho's violence is primarily disinhibited, impulsive, reactive and likely underpinned by executive functioning deficits (particularly anger and emotional dysregulation) and antisocial personality. His tendency towards violence and the intensity of it are worsened by intoxication and his substance abuse problems. Low intelligence (including poor problem‑solving skills) and hyper‑masculinity are also associated with his violence.
[43] Book of Materials, vol 3, page 907 [90].
Dr Galloghly also considered that Mr Bropho's severe sexual offending was seemingly an extension of his overall proclivity for general and domestic violence and displayed rage and sadism.[44]
[44] Book of Materials, vol 3, page 907 [92].
In terms of treatment, Dr Galloghly considered that individual counselling is the only form of clinical intervention available to Mr Bropho.[45]
[45] Book of Materials, vol 3, page 908 [98].
In respect of Mr Bropho being abstinent from substance use while in prison, Dr Galloghly said 'prison is quite a contained and structured environment, and has different risk issues as opposed to living in the community'.[46]
Community Supervision Assessment Report dated 23 June 2025
[46] ts 49 - ts 50.
To a large extent this report covers similar ground to that addressed by Dr Wojnarowska and Dr Galloghly, including summarising Mr Bropho's offending behaviour.
Two matters of significance that arise from the report are that from discussions with Mr Bropho, it is apparent he does not have accommodation available in the community, and he does not have a substantive plan to remain abstinent from illicit substances if released into the community.
Treatment Options Report and earlier Treatment Assessment Reports
In the Treatment Options Report of Mr Carmichael dated 12 June 2025, Mr Carmichael explained that in discussions with Dr Wojnarowska, she had recommended that Mr Bropho complete, in the following order, the violence prevention program, the Not Our Way family violence program for Indigenous offenders, an intensive sexual offender treatment program, the Pathways program and individual psychological counselling. It will likely take Mr Bropho several years to complete all of these programs.[47]
[47] Book of Materials, vol 3, pages 867 [11].
There are also two Treatment Assessment Reports, dated 18 January 2023 and 17 April 2024 respectively. Mr Bropho did not participate in the necessary interview for either report, refusing to sign the Treatment Assessment Consent Form.[48]
Post Sentence Supervision Order Report
[48] Book of Materials, vol 2, pages 847 - 850.
The Prisoners Review Board imposed a Post Sentence Supervision Order (PSSO) in respect of Mr Bropho for a two year period commencing on 10 February 2025. The PSSO is imposed under the Sentence Administration Act 2003 (WA) (SA Act).
Section 74J(3) of the SA Act addresses whether a PSSO continues where certain orders are made under the HRSO Act. Section 74J(3) provides that if an offender becomes a 'serious offender under restriction' during the period of the PSSO, then the PSSO is cancelled. A 'serious offender under restriction' is a person who is subject to a continuing detention order, a supervision order or an interim supervision order.[49] Therefore, the making of the interim detention order does not result in the cancellation of the PSSO.
[49] Section 74A of the Sentence Administration Act states that ‘serious offender under restriction’ has the meaning given in s 3 of the HRSO Act. That definition does not include an interim detention order.
The PSSO provides, amongst other matters, that Mr Bropho is not to use or be in possession of any illicit drug, is not to use alcohol, is to attend programmes and counselling as directed, is to attend random urinalysis for all illicit substances and is to submit to random breath testing.[50]
[50] Book of Materials, vol 2, page 858.
The PSSO Report refers to Mr Bropho having incurred 18 formal charges in prison.[51] Mr Bropho's prison charge history for the period up to 22 May 2025 states he has been found guilty of 15 charges in prison since 12 February 2017. The most serious appear to be three assaults (2 January 2018, 25 April 2019 and 7 June 2020) and damaging property in a cell to the value of $3,369.84 (9 November 2022).[52]
Additional matters
[51] Book of Materials, vol 2, page 855.
[52] Book of Materials, vol 1, pages 31 - 33.
Mr Wilson raised that Mr Bropho's non-participation in programs was predominantly due to the cultural sensitivity of discussing certain topics with a female facilitator. It was important that Mr Wilson told me this on Mr Bropho's behalf. It provides an explanation as to why Mr Bropho did not participate in the programs. It also is important information for program facilitators to take into account in assessing what programs they make available to Mr Bropho.
In respect of the available programs, Dr Galloghly said in his oral evidence that the ideal substance abuse program was 'with an agency specialising in substance abuse for Indigenous people'.[53] Dr Wojnarowska said in her oral evidence that 'there are numerous programs that, and they're culturally specific and sensitive as well, [are] specifically designed for [the] Aboriginal population within the prison system'.[54] In Mr Carmichael's evidence, he spoke of the Not Our Way Program as being specific to Indigenous people.[55]
[53] ts 50.
[54] ts 41 - ts 42.
[55] ts 56.
At the conclusion of the hearing, I made an order that the Department of Justice provide further information pertaining to the accommodation options generally, and as to the treatment options available to Mr Bropho as an Indigenous man, including an explanation of the Not Our Way Program. The hearing was then adjourned to 25 July 2025.
The information provided pursuant to my order is to the following effect.
As to available accommodation, while there are options that can be pursued, there is, and will be, no accommodation available for Mr Bropho now and in the near future.
In respect of the treatment programs available in prison, only one program has been developed together with Indigenous stakeholders, which is the Not Our Way Program. This program is delivered in a manner that suits the learning styles of Indigenous participants. For example, a 'yarning approach' is used, which is 'a patient centred [approach] originally developed for use in Aboriginal healthcare which aims to combine Aboriginal cultural communication preferences with clinical language and understandings'.[56]
[56] Email from Mr Carmichael to Ms Goode which was forwarded to the court on 16 July 2025.
The Not Our Way Program focuses on domestic and family violence. It has a component directed to substance abuse in the context of family violence. It does not, however, address substance abuse as a standalone topic.
The information provided by the Department of Justice is to the effect that programs which focus on general violence, or on substance abuse, have not been specifically developed for Indigenous participants. In an email sent by Mr Carmichael to Ms Goode of the Community Offender Management Unit, Mr Carmichael stated the 'only program which is specific to Indigenous offenders is the [Not Our Way] Program'. It would seem this observation applies to regional Western Australia, as the Not Our Way Program operates in Broome, Geraldton and Kalgoorlie.
From my experience as a judge, I have observed that substance abuse often plays a significant role in the offending of Indigenous people. Sadly, Indigenous people are significantly overrepresented in prison. I would expect that substance abuse programs specifically designed for Indigenous offenders would likely enhance the rehabilitative prospects of many such offenders. Many Indigenous people have particular learning styles, as is illustrated by the 'yarning' approach used in the Not Our Way Program. Also, an Indigenous person may be reluctant to discuss the reasons they use substances in a forum that does not accommodate cultural considerations. A culturally specific program can be designed to overcome that reluctance. These are just two examples of areas where programs tailored for Indigenous people can enhance their rehabilitation. I expect there are many more. Increased rehabilitative gains should correspond with a reduced risk of future offending. And, for those who insist on direct economic benefits from the expenditure of public moneys, a reduced risk should correspond with a reduced need to imprison people.
All that being said, I must still assess Mr Bropho's risk of re-offending by reference to the programs that are available, and the programs that he has completed. Irrespective of whether there are genuine reasons for Mr Bropho not having participated in the programs offered to him, he has significant unmet treatment needs. And, while Mr Bropho said to Dr Wojnarowska that 'I just want to be outside and want to be a nice person', he has not demonstrated any insight into what he needs to do to achieve that goal.
Neuropsychological report of Dr Elizabeth Vuletich dated 19 November 2017
The Aboriginal Legal Service engaged Dr Vuletich to provide this report for Mr Bropho's sentencing pertaining to the offence he committed against s 304(2)(b) of the Code.
Dr Vuletich conducted a comprehensive neuropsychological assessment of Mr Bropho. She was of the opinion that the results indicated a general low level of intellectual capacity, although not at the level of an intellectual disability. Further, she was of the opinion that Mr Bropho presented with pockets of cognitive impairment.[57]
[57] Book of Materials vol 2, page 842 [89].
She identified the cognitive impairments as being executive disfunction and cognitive slowing. More particularly, she said that he showed variable and mildly compromised verbal working memory capacity. Also, his capacity to acquire or encode new verbal material into memory was also compromised, although this appeared secondary to his reduced working memory capacity and executive dysfunction.[58]
[58] Book of Materials vol 2, page 842 [90].
In respect of Mr Bropho's executive functioning, she said that his results on the tests undertaken highlighted an impaired capacity to develop effective plans and strategies in order to achieve a goal.[59]
[59] Book of Materials vol 2 page 841 [84].
I turn now to address the mandatory considerations set out in s 7(3) of the HRSO Act.
Mandatory considerations
Section 7(3)(a)
Section 7(3)(a) requires that I have regard to the reports prepared under s 74 and the extent to which Mr Bropho cooperated in the examinations required for the preparation of those reports. The relevant reports are those of Dr Wojnarowska and Dr Galloghly. I have addressed their reports and their oral evidence at [42] to [66] above. It is not suggested that Mr Bropho did not cooperate in the examinations.
Section 7(3)(b)
Section 7(3)(b) requires that I have regard to any additional assessments. These comprise the Community Supervision Assessment Report, the Treatment Options Report, the Neuropsychological Report and the PSSO Report.
I have addressed these reports at [67] to [74], and [85] to [88] above.
Section 7(3)(c) and (d)
It is useful to address s 7(3)(c) and (d) together. Section 7(3)(c) requires that I have regard to information indicating whether or not Mr Bropho has a propensity to commit serious offences in the future. Section 7(3)(d) requires that I have regard to whether there is any pattern of offending behaviour by Mr Bropho.
For present purposes, I am satisfied that the word 'propensity' refers to the person having an inclination or disposition to behave in a particular way.[60]
[60] See, for example The State of Western Australia v Jackson [2019] WASCA 118 [20].
The requisite assessment is directed to whether a person has a propensity to commit serious offences in the future. This assessment thus encapsulates, at least, an assessment of whether the person has a current propensity and then endeavouring to predict the extent to which that propensity may continue or change over time. Also, the propensity must be one to commit serious offences, as opposed to offences generally.
In my view, Mr Bropho has a propensity to commit serious offences of the following type, and this propensity is likely to continue unless Mr Bropho makes significant rehabilitative gains:
1.violence of such severity that grievous bodily harm (at least) is caused, being an offence against s 297 of the Code;
2.sexual offences, in particular sexual penetration without consent being an offence under s 325 of the Code, or aggravated indecent assault, being an offence under s 324 of the Code;
3.robbery involving the use of weapons or violence, being an offence under s 392 of the Code;
4.offences involving violence by doing an act with intent to harm as a reult of which bodily harm is caused, or the life, health of safety of the victim is endangered, being an offence under s 304(2) of the Code.
Mr Bropho's pattern of offending to date demonstrates a pattern of violent and sexual offending in the manner that I have described in points 1 to 4 of [96] above.
Section 7(e) and (f)
It is useful to address s 7(3)(e) and (f) together.
Section 7(3)(e) requires that I have regard to any efforts made by Mr Bropho to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation program. Section 7(3)(f) requires that I have regard to whether Mr Bropho's participation in any rehabilitation program has had a positive effect on him.
As I have already explained, Mr Bropho's participation in rehabilitation programs is very limited. Most importantly, he has not made substantive gains in rehabilitation. On the information before me, Mr Bropho has abstained from using illicit substances while in prison, however Mr Bropho has not developed a viable plan to prevent substance relapse if he goes back into the community. Without such a plan, there is a significant risk he will revert to substance use in the community.
Section 7(3)(g)
Section 7(3)(g) requires that I have regard to Mr Bropho's antecedents (his personal background) and criminal record.
I have addressed these matters at [29] to [41] above.
Section 7(3)(h)
Section 7(3)(h) requires that I have regard to the risk that if Mr Bropho were not subject to a restriction order, he would commit a serious offence.
The particular matters of importance in making this assessment are the extensive nature, and severity, of Mr Bropho's offending, his lack of insight into his behaviour and his lack of substantive gains in rehabilitation, his pattern of offending behaviour and his propensity to commit serious offences in the future. Having regard to these matters, if Mr Bropho were not subject to a restriction order, there is a significant risk that he would commit a serious offence of the type I have described at [96] above.
Section 7(3)(i)
Section 7(3)(i) requires that I have regard to the need to protect members of the community from the risk that I have identified at [96] and [104] above.
The nature and extent of the harm from the serious offences that Mr Bropho is at risk of committing is extensive. In that respect, his violent offending, including his violent sexual offending, has resulted in serious physical injuries, and no doubt serious distress and ongoing mental harm. There is an obvious need to protect the community from the risk of him committing further serious offences of a sexual or violent nature (or both).
Section 7(3)(j)
Section 7(3)(j) requires that I have regard to any other relevant matter. The most significant additional matters to which I need to have regard are the PSSO and Mr Bropho's lack of accommodation options at the moment.
Disposition
Mr Bropho has an extensive history of violent and sexual offending. He has significant outstanding treatment needs, has not achieved any substantive rehabilitation to date and has no accommodation available in the community.
Mr Bropho has been diagnosed with a substance use disorder in respect of his use of alcohol and amphetamines. That use is a significant aspect of his offending behaviour. I accept that Mr Bropho has not used illicit substances while in prison. However, Mr Bropho does not have a viable plan to prevent his relapse to illicit drug use, or the problematic consumption of alcohol, if he returns to the community. Further, there are presently no protective factors in place that would ameliorate the risk of such a relapse. In these circumstances, the PSSO does not provide adequate protection to the community from the risk of Mr Bropho committing a serious offence. A PSSO would only assist in reducing the risk to a tolerable level if Mr Bropho had first made rehabilitative gains in prison, in particular pertaining to his use of illicit drugs and alcohol.
In my view, there is acceptable and cogent evidence that demonstrates there is a significant risk that Mr Bropho will commit a serious offence of the type I have identified at [96] above. The nature and extent of the prospective harm that might be caused by such offending is significant, given the type of serious offences I consider Mr Bropho is at risk of committing.
For these reasons, I am satisfied to the requisite standard that is necessary to make a restriction order in respect of Mr Bropho to ensure the adequate protection of the community against an unacceptable risk that he will commit a serious offence. Thus, I am satisfied Mr Bropho is a high risk serious offender within the meaning of s 7(1) of the HRSO Act.
Accordingly, pursuant to s 48(1) of the HRSO Act, I must make either a continuing detention order or a supervision order.
I should make the order that is least invasive of Mr Bropho's right to liberty while at the same time, ensuring an adequate degree of protection of the community, having regard to the paramount consideration prescribed by s 48(2), which is the need to ensure adequate protection of the community.
Having reflected on the reasons that led me to conclude that Mr Bropho is a high risk serious offender, I am satisfied that a supervision order does not provide adequate protection of the community. In particular, and at risk of repetition, Mr Bropho has an extensive history of violent and sexual offending. He has significant outstanding treatment needs, has not achieved any substantive rehabilitation to date and has no accommodation available in the community. In addition, I am not satisfied on the balance of probabilities that Mr Bropho would substantially comply with the standard condition of a supervision order condition not to commit a serious offence. Accordingly, pursuant to s 29(1) of the HRSO Act, I cannot make a supervision order.
I will make a continuing detention order.
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
25 SEPTEMBER 2025
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