The State of Western Australia v Bunwarrie [No 4]
[2025] WASC 124
•16 APRIL 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BUNWARRIE [No 4] [2025] WASC 124
CORAM: COBBY J
HEARD: 20 FEBRUARY 2025 & 21 MARCH 2025
DELIVERED : 16 APRIL 2025
FILE NO/S: SO 14 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
LENNOX JUNIOR BUNWARRIE
Respondent
Catchwords:
High risk serious offender - First review of continuing detention order - Offender with history of sexual offences - Offender remains a high risk serious offender - Determination whether to make a continuing detention order or continuing supervision order - Offender declined antilibidinal treatment - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Respondent found to be a high risk serious offender
Continuing detention order rescinded
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr D S McDonnell |
| Respondent | : | Mr R Keating (20 February 2025), Mr T Hager (21 March and 4 April 2025) |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Director of Public Prosecutions v Griffiths [2015] WASC 393
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Bunwarrie [No 2] [2022] WASC 375
The State of Western Australia v Bunwarrie [No 3] [2023] WASC 329
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Vanderplas [No 2] [2021] WASC 180
COBBY J:
These reasons concern the first review of the continuing detention order made on 28 August 2023 by Fiannaca J in relation to Mr Bunwarrie under the High Risk Serious Offenders Act 2020 (WA).
On 15 April 2024, the State of Western Australia applied, pursuant to s 64(2)(a),[1] for his detention to be reviewed as soon as practicable after 28 August 2024.
[1] All references to legislation are to the provisions of the High Risk Serious Offenders Act 2020 (WA) unless otherwise stated.
The review was initially listed for hearing in October 2024, but was adjourned by consent of the parties to allow Mr Bunwarrie to commence and complete the Pathways substance abuse program.
The review first came on for hearing on 28 February 2025, at which time the court heard evidence from the State's expert witnesses and Ms Nicole Bennetts, a senior community corrections officer who had been case managing Mr Bunwarrie since September 2024.
The court was unable to determine the application that day, as Mr Bunwarrie had only been assigned a treating psychologist that morning, an assessment of the accommodation at which it was proposed Mr Bunwarrie would live if a supervision order was made had only been requested the day before the hearing and Mr Bunwarrie had not received the medical advice necessary to allow him to consider whether to give informed consent to selective serotonin reuptake inhibitor (SSRI) treatment, notwithstanding that Fiannaca J had recommended nearly 18 months earlier that Mr Bunwarrie be considered for a course of SSRI medication and encouraged to undergo such treatment.
There was consequently no option but to adjourn the review to 21 March 2025. By that date, the assessment of the accommodation proposed for Mr Bunwarrie had been completed, but Mr Bunwarrie had still not received the medical advice necessary for him to give informed consent to the proposed SSRI treatment, so that the review was again adjourned to 4 April 2025.
Mr Bunwarrie received the necessary medical advice on 3 April 2025, with the court being informed of Mr Bunwarrie's decision not to undergo the proposed treatment on the morning of the adjourned hearing. As the court is required to give detailed reasons for its decision on a review of a continuing detention order, on 4 April 2025 I reserved my decision on the review.
For the following reasons, I find that Mr Bunwarrie remains a high risk serial offender, but that I consider, having regard to the evidence of Mr Bunwarrie's progress in his treatment, that the risk that he poses if released to the community can be adequately managed if he is made subject to a supervision order on the conditions set out at the conclusion of these reasons.
Mr Bunwarrie is a 37 year old indigenous man. He was born in Port Hedland and raised in indigenous communities in the northwest of Western Australia. His first language is Ngargumada, with English his second language. He has spent a large portion of his adult life in prison.
So far as Mr Bunwarrie's criminal record is concerned, he first came before the courts at 14 years of age and was convicted of 16 offences as a juvenile, including disorderly conduct, property, drug and drinking offences, and one count of indecent assault.
As an adult, Mr Bunwarrie has a lengthy criminal record for a variety of offences, with the only significant gaps in Mr Bunwarrie's offending being due to his terms of imprisonment.
On 9 August 2021 Mr Bunwarrie was convicted of indecent dealing with a child under 13 years and assault with intent to commission a crime, which occurred on 23 January 2020. That was his third serious offence, as that term is defined in the Act.
On 2 November 2022, Derrick J found that there were reasonable grounds for believing that a court might find that Mr Bunwarrie to be a high risk serious offender, and was satisfied that there were reasonable grounds for believing that a court might find that Mr Bunwarrie was a person in relation to whom it was necessary to make a restriction order.[2]
[2] The State of Western Australia v Bunwarrie [No 2] [2022] WASC 375.
Although the State submitted that an interim supervision order could be made in relation to Mr Bunwarrie, Derrick J concluded it was necessary to make an interim detention order pursuant to s 46(2)(c)(i) pending the final determination of the State's application that Mr Bunwarrie be declared a high risk serial offender, having regard to the well above average risk that he would commit further opportunistic and impulsive serious sexual offences, the significant harm that would likely be caused to the victim of any serious sexual offence committed by him, his past performance whilst subject to supervision in the community, Mr Bunwarrie's poor behaviour in prison and his significant outstanding treatment needs, most notably those related to alcohol and cannabis use, hostility towards females, and his sense of entitlement with respect to females.[3]
[3] Bunwarrie [No 2] [2022] WASC 375 [18].
On 28 August 2023, Fiannaca J found Mr Bunwarrie to be a high risk serial offender and ordered that he be detained in custody for an indefinite term for control, care and treatment.
His Honour's detailed reasons for making that continuing detention order are set out in The State of Western Australia v Bunwarrie [No 3].[4] Mr Bunwarrie's history of offending was there summarised by Fiannaca J, in terms which I adopt, as follows:
[4] The State of Western Australia v Bunwarrie [No 3] [2023] WASC 329.
Sexual penetration without consent - 2007
The offence
[89]Mr Bunwarrie's first serious offence, namely sexual penetration without consent, occurred on 23 February 2007 in Port Hedland, when Mr Bunwarrie was 18 years old. The victim was a 23‑year‑old woman who was known to Mr Bunwarrie through extended family. Mr Bunwarrie went to the victim's home around 11.30 pm, after he had been drinking. He entered the home and saw the victim lying asleep on a blanket with her 7‑month‑old child in her arms. It appears the victim was heavily asleep due to intoxication. Mr Bunwarrie lay alongside her, pulled her clothing down, and inserted his penis into her vagina, moving it back and forth, whilst she remained asleep. He desisted when he was interrupted by someone who entered the room. Upon seeing that Mr Bunwarrie was having sex with the victim, that person struck Mr Bunwarrie on the head with a garden rake. Mr Bunwarrie fled the area. The victim was woken and told what had happened. She was taken to hospital for an examination.
Mr Bunwarrie's account
[90]Mr Bunwarrie was arrested the following day and participated in a video interview with police. The prosecutor at the sentencing hearing stated that Mr Bunwarrie made full admissions, stating that he had sex with the victim without her permission. However, the police statement of material facts for the offence included a paragraph added by the Office of the Director of Public Prosecutions which said that Mr Bunwarrie stated the victim was awake when he had sex with her. According to that addendum, Mr Bunwarrie said that he had entered the house looking to have sex with a woman. He stated that he did not ejaculate because he was interrupted. When asked if he thought what he did was right to do and whether he was allowed to, he replied that, 'yes, it is right', and that he was 'allowed'.
[91]During an interview with a psychologist in 2007, Mr Bunwarrie claimed that he and the victim had consensual sex one year earlier, and that the victim would have wanted to have sex with him, which led the psychologist to consider that Mr Bunwarrie believed that the one previous occasion reflected ongoing consent for further sexual relations with him. He also said that he was unaware that his actions were illegal until he was told so by police. I note that Mr Bunwarrie's statements to the psychologist contradict those made by the victim, who said that she had never had sex with Mr Bunwarrie and did not want to.
[92]Mr Bunwarrie also stated to the psychologist in 2007 that he was intoxicated at the time of the offending and, as such, was not fully aware of his actions. When questioned about how much alcohol he had consumed, Mr Bunwarrie said he had only consumed five beers over an 11 hour period. However, other information he provided during the interview suggested he may have consumed a far greater quantity of alcohol. Whilst it is unclear what role alcohol played in this offence, Mr Bunwarrie indicated that he did not see alcohol or substance abuse as problematic or a contributing factor to his offending. However, in the plea in mitigation at the sentencing hearing, Mr Bunwarrie's counsel said that one of Mr Bunwarrie's main concerns was his level of alcohol consumption and that he was willing and keen to address that behaviour both in prison and in the community when released.
Sentencing remarks
[93]In sentencing Mr Bunwarrie in the District Court on 23 July 2007, Muller DCJ remarked that the victim must have felt 'absolutely degraded and humiliated when told what had happened'. His Honour said that she was entitled to feel safe and secure while sleeping with her own baby in the house, and that Mr Bunwarrie had taken advantage of her for his own sexual gratification. His Honour took into account Mr Bunwarrie's age, his dysfunctional background and the sorrow he had expressed for the victim. He imposed a sentence of 16 months' imprisonment with parole eligibility, backdated to 26 February 2007 for time spent in custody.
Sexual penetration of child over 13 years and under 16 years of age -2010
Offence
[94]penetration of a child over the age of 13 and under the age of 16, which he committed on 11 August 2010 in a remote community in the area of Marble Bar, when Mr Bunwarrie was 21 years old. The victim was a 14-year-old girl. Mr Bunwarrie and the victim were known to each other. Around 3.00 pm that day, the victim was lying on a bed and watching television in the house where she lived with her parents. Mr Bunwarrie entered the house through the open front door. He then entered the victim's bedroom and lay next to her on the bed. He tried to kiss her on the mouth, but she told him she did not want to. Mr Bunwarrie climbed on top of the victim and, with one hand, held her hands down on the bed. The victim struggled but could not move with the weight of Mr Bunwarrie on top of her. With his other hand Mr Bunwarrie penetrated the girl's vagina with his finger. She told him to stop and get off, and she struggled physically. He stopped when he was interrupted by someone who entered the room. At that stage, the victim was crying. Mr Bunwarrie left the house. The victim subsequently reported the incidence to a teacher.
Mr Bunwarrie's account
[95]Mr Bunwarrie was apprehended later that day and was interviewed by police the following day. Mr Bunwarrie denied the sexual penetration, although he admitted having touched the victim sexually. He claimed that he only touched her on the bottom with his hand, and only on top of her clothes. He said that the victim then 'just walked out', went to a teacher, and called the police. When challenged with the victim's account of the offending, Mr Bunwarrie continued to deny the offence of sexual penetration.
[96]Mr Bunwarrie was interviewed on 4 August 2011 by a psychologist, Ms Cinzia Zuin, for the purposes of a sentencing report for the sentencing hearing. Mr Bunwarrie initially continued to deny the act of digital penetration, but, as his account progressed, he admitted the offence. Ms Zuin formed the impression that Mr Bunwarrie had weighed up his initial stance of denial against an opportunity to reminisce about the sexual contact, and he chose the latter.
[97]Mr Bunwarrie told Ms Zuin that he had been working at the victim's school and that, when he noticed the victim was not at school, he left to find her for the purpose of having sex with her. The admissions then made by Mr Bunwarrie elevated the seriousness of his offending, beyond the facts stated by the prosecution. For instance, he said that, when he walked into the victim's home and saw her on the bed, he locked the bedroom door. It is unclear whether this was to avoid being interrupted, as he was during his first serious offence, to deny the victim a means of escape, as he did during his third serious offence, or both. In any event, he admitted pinning the victim down when she refused his request for sex. He also admitted that he intended to penetrate the victim with his penis, but could not, due to her struggling, so he resolved to use his finger to penetrate her instead. It is clear from Mr Bunwarrie's comments to Ms Zuin that the only reason he did not continue, and escalate his sexual offending, was because he was interrupted.
[98]In my opinion, the following account in Ms Zuin's report is important in understanding Mr Bunwarrie's attitudes and cognitive distortions at the time:
Mr Bunwarrie engaged in significant distortion and rationalization for his behaviour, especially when challenged about the victim's age. Mr Bunwarrie stated 'everyone has sex with younger childs up thatta way…the parents don't know what's going on…too busy drinking'. When asked about the victim's distress and the fact that she was underage Mr Bunwarrie appeared to dismiss this, claiming that his mistake was in doing it 'the rough way'. He appeared to lack any insight around informed consent issues, focused instead on his desire to have sex with the victim. His overall attitude was one of sexual entitlement and objectification of females as sexual objects, irrespective of age and compliance. Furthermore, he appeared to normalize sexual contact with children claiming 'everyone does this…I'm not the only one'. Mr Bunwarrie became quite annoyed when challenged by his comment 'I wanted to have sex with that young lady'. When the writer pointed out that the victim was a child and not a young lady he became quite irritated and replied 'whatever'.
[99]Mr Bunwarrie also admitted that when he went home and was confronted by his partner about his behaviour, he became very angry with her, making the comment 'she started to piss me off', so he hit her five to six times with his fists. Ms Zuin noted that Mr Bunwarrie was convicted of Unlawfully Assaulted with Circumstances of Aggravation with respect to this assault on his partner on the same day that he sexually offended against the victim. His behaviour towards his partner, in addition to his sexual offence against the 14-year-old victim tends to suggest poor attitudes towards women.
[100]Mr Bunwarrie admitted to Ms Zuin that whilst working at the local school prior to his offending, he was looking at the young girls and enjoyed the way the young girls had fun with him.[5] Whilst that admission indicated an interest in younger girls, Mr Bunwarrie also stated: 'I like younger girls ... a bit older ... doesn't matter how old they are ... if they are beautiful I want to have sex.'
[5] BOM 354.
Sentencing remarks
[101]In sentencing Mr Bunwarrie on 12 August 2011, Bowden DCJ noted that when Mr Bunwarrie had been sentenced for the sexual offence in 2007 the court recommended that he undergo a sex offender's treatment programme, but that, through no fault of his own, he did not undergo that programme. His Honour noted that enquiries revealed that a sex offer treatment programme for Indigenous offenders would be run in April and June 2012. His Honour relied on Ms Zuin's report and on the report of another psychologist, Mr Tanney (which is not in the BOM), both of which recommended that Mr Bunwarrie undergo such a programme. His Honour referred to the traumatic impact such offending has on victims, and noted Mr Bunwarrie's attitudes expressed to both psychologists that he was prepared to satisfy his lust despite knowing the victim did not like it. He said there was a need to protect young children, particularly in Aboriginal and remote communities.
[102]His Honour sentenced Mr Bunwarrie to 3 years' imprisonment, with eligibility for parole, backdated to 11 August 2010.
Indecently dealing with child under the age of 13 years - 2020
The offence
[103]Mr Bunwarrie's third serious offence was an offence of indecent dealing with a child under the age of 13 years, which occurred on 23 January 2020 in South Hedland, when Mr Bunwarrie was 31 years old. The victim was a 7-year-old girl. Mr Bunwarrie, who was intoxicated at the time, followed the victim into a house and took her into a bedroom where he pushed a bed against a wall so she could not escape. When the victim started to scream, Mr Bunwarrie punched her to the face, causing a bruise to her lower right periorbital region. Mr Bunwarrie then took off the victim's pants, lay her on a mattress and used his fingers to touch her bottom and anus, whilst the victim continued to scream. Mr Bunwarrie then let the victim up, moved the bed away from the door and let the victim out of the room, before fleeing on foot.
[104]The victim went to her house and immediately told her mother what had happened. Her mother reported the incident to the police. Mr Bunwarrie was subsequently arrested in Perth on 11 March 2020. Because of his intoxicated state, he was not interviewed.
[105]Mr Bunwarrie was charged, and subsequently convicted on his pleas of guilty, of the offence of indecent dealing with a child under the age of 13 years, and an offence of assault with intention to facilitate the commission of a crime, relating to the violence inflicted on the child before he indecently dealt with her.
Mr Bunwarrie's account
[106]Mr Bunwarrie was interviewed on 22 December 2020 by a CCO for a pre-sentence report, and it appears he admitted the offence. The report noted that, while Mr Bunwarrie acknowledged the impact the offence would have had on his victim, and expressed feelings of shame for his behaviour, he continued to justify his actions stating that he thought he did it because of the alcohol, and he 'appeared more concerned about the consequences for [him]'. The author of the report considered that Mr Bunwarrie engaged in minimisation of his offending and lacked insight into the consequences of his behaviour for his victim. Mr Bunwarrie said he did not have a particular sexual interest in children and considered his behaviour as opportunistic, arising from excessive alcohol and cannabis consumption.
[107]The author of the report noted that Mr Bunwarrie's initial regret displayed at the beginning of the interview was overshadowed by the fact that he became agitated, demanding that the report look favourable for him. She noted that although Mr Bunwarrie completed the Sex Offender Treatment Program while serving a term of imprisonment in 2012, his current offences indicated that his treatment needs in relation to the offending behaviour remained outstanding.
Sentencing remarks
[108]In sentencing Mr Bunwarrie in the District Court on 9 August 2021, Stevenson DCJ referred to the extreme vulnerability of the child victim. He noted that, despite the child being powerless, especially after Mr Bunwarrie had barricaded the door, he still found it necessary to punch her to the head, causing a bruise, because she was screaming. His Honour accepted, however, that Mr Bunwarrie had shown a degree of remorse as at the time of sentencing. His Honour referred to Mr Bunwarrie's history and noted in particular that Mr Bunwarrie needed to deal with his problem with alcohol abuse. His Honour considered that Mr Bunwarrie's age was no longer a mitigating factor. His Honour sentenced Mr Bunwarrie to a total effective sentence of 2 years and 8 months' imprisonment, with eligibility for parole, backdated to 11 March 2020.
Other convictions - not 'serious offences' under the HRSO Act
[109]Whilst not serious offences under the HRSO Act, a number of Mr Bunwarrie's offences provide important context in understanding Mr Bunwarrie's views towards women and his propensity to use violence against female victims. The first relevant offence, an indecent assault, occurred in 2006 when Mr Bunwarrie, then 17 years of age, approached a stranger in a shop, and asked her for 'a quickie'. Mr Bunwarrie was intoxicated. The victim told him to leave. However, Mr Bunwarrie approached her and touched her breast.
[110]In his interview with Dr Yewers, Mr Bunwarrie divulged that this was not an isolated incident and that, at around the age of 16, there were several occasions when he would walk past females and impulsively grope them by putting his hand on their bottom.
[111]The second relevant offence is a conviction for trespass in 2008, when Mr Bunwarrie was 18 years old. At the time Mr Bunwarrie had been on parole for only five weeks, having been released from the term of imprisonment for his 2007 sexual offence. The offence is considered relevant because Mr Bunwarrie's motivation for the offence was sexual, as was revealed by Mr Bunwarrie during interviews with psychologists in 2008 and 2011. Mr Bunwarrie revealed that he had been drinking heavily, walked past a house, noticed a 'white woman' through a security door, decided he wanted to have sex with her, and approached the house, asking if he could come inside, trying to open the security door. He asked the woman for a 'date', to which she responded 'no', before calling the police. Mr Bunwarrie went over her backyard fence, planning to make his way into the house and 'try for a second chance'. The woman said 'no'. Mr Bunwarrie left when police arrived. They arrested him shortly after. Mr Bunwarrie explained, during an interview with a psychologist in 2008, that he defined a 'date' as follows: 'go on a date, go home, have sex.'
[112]Ms Zuin, the psychologist who interviewed Mr Bunwarrie in 2011, was of the view that the disclosure by Mr Bunwarrie of the sexual motivation behind his trespass offence was a significant cause for concern, as it suggested Mr Bunwarrie was a far more dangerous sexual predator than suggested by his prior offending and that his offending transgressed boundaries of age and familiarity with victims, providing no clear pattern of victim selection.
[113]The third relevant offence was an unlawful assault occasioning bodily harm in circumstances of aggravation, which occurred in 2010 shortly after Mr Bunwarrie committed his second serious offence against the 14‑year‑old girl, discussed above. Mr Bunwarrie's then partner found out about Mr Bunwarrie's offending against the young victim on the day it occurred. She confronted him about it. When she was leaving, he pushed her over, grabbed her by the hair, and dragged her to the floor. Whilst she was on the floor, he punched her several times to the face and ears.
[114]The fourth relevant offence was another indecent assault, which occurred in 2014. Mr Bunwarrie approached a 16‑year‑old female at a supermarket and, whilst standing within her personal space, requested her mobile phone number. A store security officer saw that the girl was scared and intimidated, and intervened, escorting Mr Bunwarrie from the store. Mr Bunwarrie later re-entered the supermarket, located the same young girl and approached her, standing in front of her trolley and blocking her path. The victim moved her trolley and tried to walk past Mr Bunwarrie. As she did, Mr Bunwarrie reached out with his hand and touched the victim between the legs in the area of her crotch. He then ran his hand between the victim's legs and over her buttocks. When interviewed in 2014 by an Adult Community Corrections Officer about the offence, Mr Bunwarrie stated that, at the time of the offence, he was 'blind drunk' and 'couldn't see what I was doing'. He also said that he was 'just having fun'.
[115]The fifth relevant offence was an unlawful assault occasioning bodily harm in circumstances of aggravation, which occurred in 2015. The victim was a woman with whom Mr Bunwarrie was in a relationship. Both Mr Bunwarrie and the victim had been drinking in a park. They began to argue. Mr Bunwarrie punched the victim in the head with a lighter, causing her to suffer a three to four centimetre laceration.
[116]The sixth relevant offence was unlawful wounding in circumstances of aggravation, which occurred in 2017. It involved the same victim of the fifth relevant offence. She was still in a relationship with Mr Bunwarrie at the time. Again, both Mr Bunwarrie and the victim had been drinking in a park and began to argue. Mr Bunwarrie picked up a long wooden stick and stabbed the victim a number of times to the head and back area, causing lacerations. Mr Bunwarrie stopped stabbing the victim when witnesses physically intervened to protect the victim.
[117]The seventh relevant offence was an unlawful assault occasioning bodily harm in circumstances of aggravation, which occurred in 2018. It involved another woman who was in a relationship with Mr Bunwarrie. As with the circumstances of previous offending, Mr Bunwarrie and his partner had been drinking and began to argue. Mr Bunwarrie punched the victim several times to the face, causing her to suffer a two centimetre cut to her forehead. The Statement of Material Facts of the offence noted that the argument was related to jealousy, which seemed to be a recurring issue in their relationship.
[118]The eighth relevant offence was the assault with intent to facilitate the commission of a crime, which was associated with the offence of indecently dealing with a child under the age of 13 years in 2020. As described above, it involved Mr Bunwarrie punching the 7-year-old child in the head to facilitate his offending, as a result of which the child suffered bruising. (footnotes omitted)
His Honour's reasons for determining Mr Bunwarrie to be a high risk serial offender were that:
(1)Mr Bunwarrie had demonstrated a propensity to commit serious sexual offences, and there was some pattern to his offending that indicated that he was likely to commit a sexual offence against a vulnerable victim, and was likely to strike his victim to overcome resistance;
(2)he had been diagnosed with an alcohol use disorder, and had not adequately addressed that problem;
(3)he had a high sexual drive and was prone to act compulsively to satisfy his sexual drive, by imposing himself on a vulnerable victim;
(4)prior treatment had not mitigated the risk he posed to the community, because Mr Bunwarrie continued to demonstrate a lack of meaningful insight and empathy for his victims;
(5)he continued to exhibit attitudes that put him at higher risk of committing a serious sexual offence, including the minimisation and justification of his past sexual offending, an entrenched attitude of hostility and sexual entitlement toward women, his consistent glorification of his father's violent and misogynistic behaviour, and his pride in following that example;
(6)he had been diagnosed as having an antisocial personality disorder and found to exhibit a number of psychopathic traits, which was another factor tending to elevate his risk of committing a serious offence;
(7)Mr Bunwarrie did not have supports within the community; and
(8)his Honour accepted the assessment of Dr Peter Wynn Owen and Dr Tara Yewers that the respondent posed a high risk of committing a serious offence if he was not subject to a restriction order, and that the risk of reoffending would be relatively imminent upon release, given that he had previously committed a serious sexual offence within three months of release from prison.[6]
[6] Bunwarrie [No 3] [230].
As to whether Mr Bunwarrie displayed a pattern of offending behaviour, Fiannaca J found that, while his serious offending was varied in its circumstances, intoxication had been a relevant factor in two of Mr Bunwarrie's serious offences and a number of his other offences; each of his serious offences involved circumstances in which he became overwhelmed by a desire for sex, identified and located a vulnerable victim, entered premises or a bedroom where he was not invited, physically overcame any resistance from the victim and then engaged in sexual offending until he was either interrupted or, in the case of his youngest victim, abandoned his efforts when she continued to scream; and his offending was otherwise 'marked by little forward planning, a lack of concern for his victim, and a lack of consideration of the consequences of his offending'.[7]
[7] Bunwarrie [No 3] [133].
Although there was no suitable accommodation available to Mr Bunwarrie at that time, his Honour held that a supervision order would not have provided adequate protection to the community were Mr Bunwarrie to be released in any event, because his treatment needs were too significant.[8]
[8] Bunwarrie [No 3] [231].
His Honour further found that Mr Bunwarrie lacked adequate planning and strategies to mitigate the risk of his reoffending, and that he had significant doubts as to whether Mr Bunwarrie would substantially comply with the standard conditions of a supervision order, due to his history of poor compliance when subject to supervision and community orders and his demonstrated hostility to women in authority and authority more generally.[9]
[9] Bunwarrie [No 3] [233] - [234].
Fiannaca J was also not satisfied that Mr Bunwarrie would not commit a serious offence if released to the community, for the same reasons he found Mr Bunwarrie to be a high risk serial offender, and accordingly made a continuing detention order in respect of Mr Bunwarrie.
Having found that a continuing detention order was the only appropriate order at that time, Fiannaca J recommended that:
(1)Mr Bunwarrie be given the opportunity to engage in a group programme for sexual offenders;
(2)he be given the opportunity to engage in a group programme to deal with substance use, in particular to address his problem with alcohol abuse;
(3)he be provided with individual psychological treatment;
(4)he be considered for a course of SSRI medication and encouraged to undergo that treatment, if considered suitable; and
(5)if he did so, that appropriate monitoring of the efficacy of the medication be conducted.
The purpose of the review process was explained by Hall J in The State of Western Australia v Corbett [No 5],[10] in the context of the now repealed Dangerous Sexual Offenders Act 2006 (WA) but in terms equally applicable to the process under the present legislation, as allowing for the possibility of a change of circumstances, so that the need for continuing detention of a person can be reassessed if the risk of reoffending is assessed as having reduced or can now be adequately managed in the community.
[10] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [8] - [13].
Section 68 makes clear that the court, in carrying out a review of a continuing detention order, must first determine whether the offender remains a high risk serious offender. The court must rescind the continuing detention order if it finds that the offender is no longer a high risk serious offender.[11]
[11] Section 68(1)(a).
If the court finds that the offender remains a high risk serious offender, the court must either affirm the continuing detention order or make a supervision order in place of the continuing detention order.[12]
[12] Section 68(1)(b).
Section 68(2) mandates that the adequate protection of the community is the paramount consideration in determining whether to make a continuing detention order or a supervision order.
In determining whether a person remains a high risk serious offender for the purpose of reviewing a continuing detention order, the court is required to have regard to the matters set out in s 7(3) of the Act, being:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
The issues in the review application are therefore:
(1)is there are an unacceptable risk that Mr Bunwarrie will commit a serious offence in the future, in the absence of any measures which would protect the community against that risk;
(2)is it necessary to make a restriction order to provide adequate protection to the community against that risk; and
(3)if so, should a continuing detention order or a supervision order be made?
The evidence presented at the review hearing included a book of materials comprising two volumes, which was tendered without objection. That book included a psychiatric report concerning Mr Bunwarrie dated 27 March 2023 by Dr Wynn Owen, consulting forensic psychiatrist, psychological reports prepared by Dr Yewers, counselling psychologist, dated 20 February 2023 and 6 September 2024, together with an addendum to the latter report dated 29 January 2025, and a treatment progress report dated 9 September 2024 by Chantal Spiccia, counselling psychologist, with an addendum to that report dated 22 January 2025.
Dr Yewers and Ms Spiccia interviewed Mr Bunwarrie for some time for the purpose of preparing their respective reports, which were based on those interviews as well as their review of relevant documentation and discussion with others who had interacted with Mr Bunwarrie, although Ms Spiccia did not meet again with Mr Bunwarrie after he completed the Pathways program.
At the hearing on 20 February 2025, the State adduced oral evidence from:
(1)Dr Yewers;
(2)Ms Spiccia; and
(3)Ms Nicole Bennetts, a senior community corrections officer who had been case managing Mr Bunwarrie since September 2024.
I have no hesitation in accepting their evidence.
The court also received a Community Supervision Assessment prepared by Katrina Czechowski, a senior community corrections officer, which (amongst other things) addressed the conditions which might be imposed were a supervision order to be made, and an update of that assessment prepared by Aimee Goode, the Team Leader of the Community Offender Monitoring Unit.
In general, the evidence on the review hearing addressed:
(1)the level of continuing risk to the community posed by Mr Bunwarrie;
(2)the progress made by him since the continuing detention order was made;
(3)his further treatment needs; and
(4)what conditions should be imposed if a supervision order was to be made in relation to him and for what period.
As Mr Bunwarrie has been in custody since August 2023, his antecedents and criminal record remain essentially unchanged since he was before Fiannaca J. I accordingly adopt, without repeating here, his Honour's summary of Mr Bunwarrie's antecedents and record.[13]
[13] Bunwarrie [No 3] [53] - [86], [119] - [122].
Since the continuing detention order was made, Mr Bunwarrie has incurred one incident report, for misuse of the phone system on 23 January 2024. On that occasion Mr Bunwarrie made a short telephone call to an unknown female using another prisoner's name and account. His explanation, given consistently to several interviewers, was that he had done so out of boredom.
Mr Bunwarrie tested negative for alcohol on 33 occasions over the period 28 August 2023 to 6 June 2024.
In his 23 March 2023 report, Dr Wynn Owen opined that Mr Bunwarrie met the diagnostic criteria for antisocial personality disorder and alcohol abuse disorder. He found Mr Bunwarrie to have a moderate to high degree of psychopathy, which he concluded reflected an individual with little regard for social principles or for the impact of his behaviour upon others.
Dr Wynn Owen's evidence in 2023 was that Mr Bunwarrie continued to minimise and justify his past sexual offending, and to possess entrenched attitudes of hostility and sexual entitlement toward women, consistently glorifying his father's violent, misogynistic and abusive behaviour.
Dr Wynn Owen considered that Mr Bunwarrie presented a high risk of committing a serious sexual offence in the future if not subject to a restriction order, based on his history of sexual offending, a range of dynamic risk factors including attitudes supporting and condoning sexual violence, problems with self-awareness, substance use, problems with intimate and non-intimate relationships, unemployment and lack of meaningful activity and superficial, essentially unformed plans for release and for the future.
As at February 2023, Dr Yewers considered Mr Bunwarrie to fall in the medium range for psychopathy, although not possessing the features seen in individuals with high overall scores for psychopathy or the strong presence of affective/interpersonal features, such as egocentricity, pathological lying, callousness and the remorseless use of others.
In her report dated 20 February 2023, Dr Yewers expressed the opinion that Mr Bunwarrie had outstanding treatment needs in the areas of sex offending, alcohol misuse and domestic violence. At that time, Dr Yewers was of the opinion that Mr Bunwarrie had demonstrated limited understanding of the factors relevant to his risk of sexual recidivism, only identifying alcohol and the influence of family and peers as being relevant.
At that time, Dr Yewers considered Mr Bunwarrie's self‑management plans to be underdeveloped and to primarily comprise avoiding alcohol and alcohol-consuming persons.
Further, her view was that, despite being deemed to have made gains during the ISOTP program he completed in 2013, the fact that he committed two sexual offences after having done so suggested that he had either not retained the lessons from that program or failed to apply them.
As at 2023, Dr Yewers considered Mr Bunwarrie to demonstrate a well above average risk for sexual recidivism, having undertaken limited treatment and with some of his criminogenic needs not having been addressed at all. She considered Mr Bunwarrie to have had a high density of outstanding treatment needs, low insight into his risk, and to lack a comprehensive risk management plan, with no concrete plans for reintegration into the community.
The recent evidence of Dr Yewers and Ms Spiccia is broadly consistent with the previous opinion evidence provided to the court in relation to Mr Bunwarrie. Although both have noted improvements in Mr Bunwarrie's behaviour, there is nothing in their evidence which calls into question the court's previous findings that Mr Bunwarrie is a high risk serial offender.
Dr Yewers, in particular, is well placed to assess Mr Bunwarrie's treatment progress, having interviewed Mr Bunwarrie for nearly 41/2hours in February 2023 for the purposes of preparing her report in relation to the hearing before Fiannaca J, and again in September 2024 and January 2025.
Mr Bunwarrie completed the Intensive Sex Offenders Treatment Program (ISOTP) a second time on 13 June 2024, having attended 107 sessions, and the Pathways substance abuse program on 12 December 2024.
He was described by those conducting the ISOTP as quiet, motivated and engaged, and was considered open to self-reflection and committed to understanding his offending.
Mr Bunwarrie was assessed at the end of the program to have made gains in the areas of emotional regulation and expression, communication skills, sexual issues, consent and healthy boundaries, and to have also demonstrated an understanding of some of the risk factors which underpin his offending. He was reported to have shown a growing awareness that sexualised thoughts, feelings of entitlement to sex and sexual arousal were connected to his sexual offending, and that his distorted thinking about gender (that men should be obeyed), disrespect of women and objectification of women contributed to that sense of entitlement.
Dr Yewers' evidence was that Mr Bunwarrie reported to her, in the course of an interview on 2 September 2024 for the purposes of the present review, that the ISOTP had raised his awareness of his communication style, and that he had become aware of his need to manage his high sex drive, which he said he could do through masturbating, the use of prostitute services or distracting himself until the urge passes. She reported that Mr Bunwarrie had also identified that his 'core beliefs' around sexual entitlement contributed to his offending and those beliefs intensified when he was intoxicated.
Mr Bunwarrie was also reported by Dr Yewers as being able to identify factors contributing to his offending other than alcohol, and to have an increased understanding of consent. He told her that if a woman said no to sex when he asked, he might request oral sex and if that was refused he would 'walk away'. Mr Bunwarrie also told Dr Yewers that all females had allowed him to have sex when he wanted it, but added that one had withdrawn consent and he had accepted that. When asked about intoxicated women being able to give consent, Mr Bunwarrie said that it is 'easier to have sex with drunk womans', and in relation to sleeping women, said that he did not have consent from the woman he had offended against, which made him a 'rapist'.
Dr Yewers found that, compared to how he presented in 2023, while continuing to identify alcohol and the negative influence of family as key risk factors, Mr Bunwarrie now also recognised the importance of managing his sex drive and that he requires consent for any sexual activity. He told Dr Yewers that he would be very cautious if he perceived a woman to be flirting with him because he did not want to behave in any way which might interfere with his compliance with a HRSO order.
As noted above, the review hearing listed for October 2024 was adjourned by consent pending Mr Bunwarrie's completion of the Pathways program. That program provides treatment for individuals with a history of offending and substance use problems, and comprises 50 two hour sessions. The Pathways program is described as an intensive cognitive-behavioural skills based program, directed to both the events which lead the individual to engage in criminal conduct and substance abuse and the individual's thoughts, emotions, beliefs and attitudes that give rise to that conduct.
Mr Bunwarrie was reported as having presented to the Pathways program as enthusiastic, curious and motivated to learn about his alcohol and other drug use and its connection to his offending.
He was assessed at the end of the program as having made gains across the areas of key treatment need, emotional regulation and antisocial cognition. He was noted as being willing to question his past substance abuse and its consequences, to have expressed awareness that his intoxication negatively impacted his relationships, and as having identified high risk situations for relapse.
It was reported that Mr Bunwarrie had demonstrated new skills in problem solving, conflict resolution and assertive communication, and having gained some insight into emotional dysregulation, identifying strategies to correct thinking errors, remove himself from confrontations, and manage stress.
On one occasion Mr Bunwarrie was recorded as having exhibited a notable sense of shame and remorse regarding his offences, acknowledging the harm caused and exhibiting empathy for the victim. It was reported that reaction might signify a shift in his thinking, suggesting that he is beginning to reflect more critically on his actions and possibly indicating a readiness to confront the root causes of his criminal behaviour.
In the course of an interview with Dr Yewers in January 2025 for the purposes of this review, Mr Bunwarrie stated that he accepted that he is a sex offender, and (despite having no sexual interest in children) had offended against a child and therefore should have no contact with children.
In that interview, Mr Bunwarrie informed Dr Yewers that his preference was not to be prescribed SSRI medication to lower his libido, saying that he will be able to manage it himself. Upon being prompted by Dr Yewers, Mr Bunwarrie agreed that he could seek advice and support from his psychologist should he feel his sex drive is uncontrollable.
Dr Yewers used the Static-99R actuarial tool, the Violence Risk Scale - Sexual Offender Version (VRS-SO) and the Psychopathy Checklist - Revised (PCL-R) in assessing Mr Bunwarrie in 2023.
Her evidence is that the Static-99R is an actuarial scale that assesses recidivism risk in adult make sexual offenders who have committed a sexually motivated offence, which has moderate accuracy in ranking offenders according to relative risk for sexual recidivism. The predictive accuracy of the Static-99R tool has not been established specifically for Australian indigenous persons, although I note that a small study of the validity of the Static-99R tool in indigenous West Australian male sex offenders found the tool to have equivalent accuracy within that group, when compared to non-indigenous offenders, in predicting violence recidivism but was less accurate in relation to sex-offending, where the tool tended to underestimate risk.
The VRS-SO uses historical and dynamic risk predictors to inform the delivery of sex offender treatment, and to assess the change in risk following treatment and over time. Dr Yewers' evidence is that empirical evidence supports the view that the VRS-SO is predictive of sexual recidivism.
Items in the VRS-SO are scored on a scale from 0 to 3. Items rated '3' indicate that the risk factor is present, significant, and related to sexual recidivism. Items rated '2' indicate the presence of the risk factor to a less substantial degree. Items rated 2 or 3 are considered criminogenic and are intended to be targeted in treatment, while items rated '1' represent lower risk areas that only require monitoring or low intensity treatment. An item rated '0' is unrelated to sexual violence and does not require treatment.
Dr Yewers and Dr Wynn Owen obtained similar results for both the Static-99R and PCL-R tools in relation to Mr Bunwarrie in 2023. Dr Yewers did not repeat the PCL-R for the purposes of this review, as it reflects an individual's lifetime functioning and the results would not alter from the 2023 assessment.
In her 2024 report, Dr Yewers assessed Mr Bunwarrie's Static-99R score to have declined from 10, which was higher than 99.99% of sex offenders, in 2023, to 9 in September 2024, which I note remains higher than 99.9% of sex offenders.
In 2023 Mr Bunwarrie was assessed by Dr Yewers as having a score for the dynamic VRS-SO variables of 39 from a possible 51, indicating that his risk of recidivism was in the Well Above Average Risk Category. At that time, Mr Bunwarrie was rated '3' in relation to cognitive distortions; interpersonal aggression; lack of insight; substance abuse; lack of community support; being released into high risk situations (which is related to planning and strategies to manage risk); impulsivity; problems in complying with community supervision; problems in complying with treatment, and intimacy deficits. He was rated '2' for sexual compulsivity, sexual offending cycle, and deviant sexual preference (in that his offending indicates some deviant sexual interest in children and adolescents).
In her September 2024 report, Dr Yewers assessed Mr Bunwarrie's score as 36 from a possible 51, Mr Bunwarrie having showed improvement in the released to high risk situations, compliance with community supervision and treatment compliance items. That is, Mr Bunwarrie has increased his awareness of the factors which contribute to his sexual offending (although he does not have plans to manage his alcohol use apart from avoiding it and persons who may influence him to drink), had engaged in treatment and with his senior community corrections officers over the 12 months prior to Dr Yewers' report in September 2024, and was described as having made progress in risk relevant areas in the course of completing the ISOTP.
On the basis of Mr Bunwarrie's VRS-SO risk score of 36, addressed further below, Dr Yewers used the norms for the high risk/high need group[14] in estimating Mr Bunwarrie's risk of re‑offending, as she had done in 2023.
[14] As opposed to the routine/complete group.
In February 2023 Dr Yewers assessed Mr Bunwarrie's estimated 5-year rate of sexual recidivism to be 52.4% ( with a 95% confidence interval of between 39.8% to 64.8%) using the VRS-SO calculator. That risk has fallen to 41.8% (with a 95% confidence interval of 46.2% to 52.3%) as at September 2024. Notwithstanding that decrease in estimated risk, Dr Yewers' opinion is that Mr Bunwarrie still falls into the Well Above Average Risk category for sexual recidivism.
In 2023 Dr Yewers considered that the most likely risk scenario would involve Mr Bunwarrie committing a sexual offence when sexually aroused and the use of force or violence to gain compliance with a victim who might be known to him, or who might also be a stranger, and might be vulnerable due to age, isolation or intoxication. She considered him likely to behave impulsively and opportunistically, and unlikely to engage in sophisticated planning or grooming. In her opinion, Mr Bunwarrie would be more likely to offend if intoxicated, but intoxication was not necessary for him to offend if he was sexually aroused. His offending could range from touching to an act of penetration,
Dr Yewers' opinion as to the risk scenarios for Mr Bunwarrie has not changed after having reviewed Mr Bunwarrie following the completion of both the ISOTP and the Pathways program. She remains of the opinion is that Mr Bunwarrie continues to present with a high risk of committing a future serious offence if not subject to a restriction order under the Act.
Ms Spiccia gave evidence as to Mr Bunwarrie's treatment progress. In her report dated 9 September 2024, Ms Spiccia stated that Mr Bunwarrie was considered to have developed insight regarding his relational style, particularly regarding his rejection, abandonment, insecurity and jealousy within intimate relationships during the ISOTP, to have recognised that his primary communication style in relationships was aggressive, and that he would react to violence to perceived disrespect and/or criticism and ridicule. Mr Bunwarrie was reported to have identified distorted thinking and beliefs about women and gender roles (such as 'men are in control', 'men should be obeyed', and 'women should do as they are told') and recognised that those beliefs contributed to his sense of sexual entitlement and objectification of women. The course facilitator observed that Mr Bunwarrie expressed feelings of shame during the program in relation to the lack of respect he demonstrated in his past relationships, and showed shifts in his attitudes, as evidenced by his reports that he respects women's ideas and their boundaries and that he did not demonstrate hostility towards women during the program in his interactions with the female facilitators.
Ms Spiccia's evidence is that, over the course of the program, Mr Bunwarrie was said to have identified the links between his sexualised thoughts, sexual entitlement, sexual objectification of women and children, arousal and sexual offending, and that it was reported that Mr Bunwarrie did not demonstrate any underlying deviant sexual interests, and consistently reported sexual attraction to adult women only. It was reported that Mr Bunwarrie had developed awareness that pornography use magnified his sexual drive and distorted his beliefs about women and sex, which contributed to the development and perpetuation of his sexual entitlement and objectification of women. Mr Bunwarrie is said to have demonstrated an understanding of consent (and when consent cannot be given) through scenario planning and role plays, and was observed to challenge and reframe his distorted thought patterns regarding sexual relationships and women. Ms Spiccia recorded, however, that the course facilitators noted that Mr Bunwarrie's distorted beliefs are entrenched and are yet to be tested in the community or high risk situations.
Mr Bunwarrie was further reported to have developed a risk management plan throughout the program, which reflected his awareness of risk factors for future offending, including substance use, feelings of loneliness, rejection, jealousy and anger; cognitive distortions relating to gender roles, sexual entitlement and the objectification of women and children and sexual preoccupation, or a high sex drive. He additionally identified withdrawing from others, depression and anxiety, and increases in masturbation and using the services of sex workers as warning signs of increased risk. His risk management plan included implementing refusal and assertive communication skills to prevent substance use relapse, setting healthy boundaries with family members to avoid a return to substance use and violence, using specific techniques taught in the program to regulate his emotions, practicing self‑reflection and self‑awareness and seeking mental health support and attending substance use counselling. The ISOTP course facilitator recorded that Mr Bunwarrie tended to perceive his alcohol use as the primary contributing factor to his sexual offending and that his risk management strategies reflected this. Mr Bunwarrie was also further reported to have identified residential rehabilitation and relationship counselling as potential sources of support. The completion report in relation to the ISOTP highlighted Mr Bunwarrie's tendency to consider his substance use and early exposure to sex as the underlining reasons for his offending, rather than his identified skill deficits.
Overall, at the conclusion of the program, Mr Bunwarrie was reported to have made treatment gains in the areas of emotional regulation and expression, communication and relationship skills, and sexual issues and consent. His self‑management plan was considered to demonstrate an understanding of some risk factors and warning signs underpinning his offending behaviour, and he was observed to develop and implement some coping strategies that might mitigate those risks.
Ms Czechowski reported to Ms Spiccia that Mr Bunwarrie had engaged in supervision in a forthcoming manner and had not demonstrated any hostility or aggression during their supervision meetings. Ms Spiccia found Mr Bunwarrie to be calm, polite and forthcoming throughout her assessment of him, and that he provided information spontaneously. She regarded him as having appeared reflective in his recounting of the ISOTP content, and that Mr Bunwarrie increased the volume of his voice when describing the nature of his former relationship, but there was no other indication of hostility or hostility towards women throughout the assessment.
Ms Spiccia's opinion is that review of Mr Bunwarrie's participation in the ISOTP indicated that he had made treatment gains in all areas of identified treatment needs, being improved insight into the contributing factors of his sexual offending, the development and implementation of emotion management, communication and relationship skills, and utilising cognitively framing strategies to challenge distorted beliefs relating to sex, women and relationships. In her opinion, Mr Bunwarrie appears to have responded well to the cognitive behavioural approach and use of visual aids throughout the ISOTP, and that he has so far retained what he has learnt and the insights regarding the links between his thoughts, feelings and emotions that contributed to his offending, having identified coping strategies.
Ms Spiccia considers it is possible that Mr Bunwarrie has developed a semantical intellectual understanding of the concept and the ISOTP, but is yet to integrate and apply those insights. Her view is that he would require additional support treatment to assist him to consolidate those insights and learn skills into behavioural change were he to be released into the community.
Ms Spiccia also considers that Mr Bunwarrie has developed risk management strategies that involve both external and internal driven resources, his external strategies including distraction techniques (such as playing X-box, walking away from high risk situations, avoiding being in the presence of children and family members, and engaging the services of sex workers). The internal strategies he identified to Ms Spiccia included consequential thinking, cognitive reframing and identifying his emotional states. Although Ms Spiccia considers his risk management plans are primarily avoidance based and focused on not returning to alcohol and cannabis use, which Ms Spiccia considers indicative of a concrete thinking style which likely causes Mr Bunwarrie difficulties in understanding abstract concepts such as planning or hypothetical scenarios, she considers that his recent prison misconduct in telephoning an unknown female as evidence of his impulsivity and lack of consequential thinking, which would require monitoring and ongoing support.
In Ms Spiccia's opinion, although Mr Bunwarrie expressed remorse, empathy and acceptance of responsibility for his index sexual offending, he retains some residual cognitive distortions about women (in relation to his former partner) and blames his former partner to some degree for their relationship instability and his alcohol abuse. She also considers that he displayed some residual cognitive distortions in relation to minimising his index offence when comparing his offending behaviour to that of other participants in the ISOTP. In Ms Spiccia's opinion, given the entrenched nature of Mr Bunwarrie's beliefs in relation to women and sex, attitudinal shifts in these areas are likely to be pervasive and require ongoing treatment, support and monitoring.
Ms Spiccia indicated that there had been some shifts in Mr Bunwarrie's perception of the acceptability of previously held views about women and violence. In her view, Mr Bunwarrie has outstanding treatment needs in the areas of sexual preoccupation or high sex drive, sex as coping, a lack of a comprehensive support network and significant social influences, impulsivity and poor problem solving, relationship instability, substance use and a release plan. Mr Bunwarrie also exhibits social rejection and loneliness, hostility towards women and deviant sexual interests to a lesser degree, which Ms Spiccia considers require monitoring.
Ms Spiccia recognises in her report that Mr Bunwarrie has had limited time in which to consolidate treatment gains form the ISOTP, which limited her assessment of his ability to retain, consolidate and apply what has learned from that program. Her view, as stated in her 2024 report, was that he may have difficulty retaining or applying the insights and skills obtained through attending the ISOTP in high risk situations or the community, but that Mr Bunwarrie had demonstrated the capacity to challenge his enriched beliefs about sex and women, developed insight regarding the factors contributing to his sexual offending, implement adaptive communication skills and emotional coping strategies, and identify risk management plans, but still has a range of outstanding treatment needs.
Ms Spiccia considered that Mr Bunwarrie's presentation, engagement and treatment gains in the Pathways program did not change her opinions and recommendations for Mr Bunwarrie's future treatment, noting that the shortness of time since Mr Bunwarrie competed that program significantly limited the ability to assess any retention, consolidation or integration of his reported treatment gains.
Having regard to the evidence in respect of each of the matters set out in s 7(3), and to the evidence of Dr Yewers and Ms Spiccia in particular, I am satisfied to a high degree of probability that it is necessary to make a restriction order in relation to Mr Bunwarrie to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence if released. A comparison between Dr Yewers' assessments of Mr Bunwarrie in February 2023 and September 2024 using the Static-99R and VRS-SO tools evidences that, while Mr Bunwarrie has made treatment gains since the continuing detention order was made, the risk he presents to the community if not subject to a restriction order remains substantial.
I find that Mr Bunwarrie remains a high risk serious offender.
It being necessary that a restriction order is made in relation to Mr Bunwarrie, the question is whether he should continue to be detained or be released to the community subject to a supervision order.
The State did not oppose the making of a supervision order if the court considered that to be appropriate.
The Act does not require that there be no risk of reoffending.[15] Instead, what is required is an assessment of whether the community will be adequately protected against the risk that Mr Bunwarrie will commit a serious offence if released to the community.
[15] Director of Public Prosecutions v Griffiths [2015] WASC 393 [103].
That assessment involves a balancing exercise between the nature of the risk and the likelihood that the risk eventuates against the interest of Mr Bunwarrie.[16]
[16] TheState of Western Australia v Vanderplas [No 2] [2021] WASC 180 [23]; Italiano v The State of Western Australia [2009] WASCA 116 [46].
As at September 2024, Dr Yewers was of the opinion that Mr Bunwarrie would benefit from further treatment to consolidate his insight and to support him in enacting his strategies in reducing his offending. She was then of the view that many of his criminogenic issues were entrenched, so that it would take time, reinforcement and practice to implement and sustain behaviour change.
In her written reports, Dr Yewers recommended that any conditions imposed by the court take into account the following matters.
First, Mr Bunwarrie should be provided with individual psychological treatment, it being her view that that would be critical to maintaining his current gains and extending his insight, knowledge and associated skills. She considered his 'learnings' from recent programs he has completed will require continued review and reinforcement to ensure they result in behaviour change, but it was encouraging that he has the capacity to develop a sound working/therapeutic relationship with his treatment provider. Dr Yewers also recommended that consideration be given to Mr Bunwarrie's cultural interest needs if released.
Otherwise, Dr Yewers is of the opinion that Mr Bunwarrie would require substantial supports and scaffolding, as when released he would be living in a community with which he is largely unfamiliar and unaccustomed. He has, in Dr Yewers' opinion, proposed a lifestyle and set goals that are different to the way he has lived for much of his life, including obtaining stable employment, possible study or vocational training, and developing relationships and activities not based around alcohol. Her view is that his engaging in a supervision order would involve high scrutiny and a great deal of oversight of his conduct.
Mr Bunwarrie advised Dr Yewers in January 2025 that his current preference was not to be prescribed SSRI medication to lower his libido, and that he felt that he would be able to manage his libido himself. Dr Yewers' opinion is that Mr Bunwarrie had engaged well in the Pathways program, and appeared to have derived benefit from it. She opined that he had reportedly made gains related to increased insight into his substance use, emotional regulation and interpersonal style. She also reported that he was described as having acquired skills and strategies around challenging distorted thinking, resolving conflict and managing stress. Dr Yewers' evidence was that, when interviewed for the purposes of her January 2025 report, he demonstrated increased insight about his substance use, a capacity for self‑reflection and, more generally, an attitude of accountability for his past behaviour and future.
In her oral evidence, Dr Yewers identified the two biggest treatment gains achieved by Mr Bunwarrie was that he now acknowledged his sex drive and its contribution to his sexual offending, and his increased awareness of his thinking styles and how they contributed to his rationalising his use of alcohol and his sexual offending.
Her evidence was that Mr Bunwarrie has plans to manage his sex drive if released, and that those plans appeared to her to be appropriate. Dr Yewers was supportive of Mr Bunwarrie utilising the services of a sex worker if released to the community, conditional upon a number of things, including advance approval by his supervisory team and steps being taken to ensure the safety of that person and Mr Bunwarrie.
Dr Yewers' oral evidence was that that Mr Bunwarrie could be released to the community on a supervision order. She was clear that she considered it crucial that Mr Bunwarrie receive ongoing individual psychological treatment should he be released to the community, with that treatment to be provided by a member of the forensic psychological intervention team, skilled in the managing and communication of risk, rather than a private practitioner.
When asked to draw a comparison between Mr Bunwarrie having completed the ISOTP in 2013 and having reoffended within a year, and the present, Dr Yewers identified Mr Bunwarrie's acknowledgment of his sex drive and some of his distorted thinking about his ability to use alcohol as important, that Mr Bunwarrie would be supported if he were to be released on a supervision order in a way that he had not been when released previously, and that he would not be returning to old environments.
Although Mr Bunwarrie had not yet declined to undergo SSRI treatment at the time Dr Yewers gave evidence, Dr Yewers' evidence at the hearing was that she had had regard to Mr Bunwarrie's expressed reluctance to undergo that treatment in coming to her opinions. She remained of the view that Mr Bunwarrie could be released to the community.
Her view that if that was to occur, the supervision order should be for a period of five years.
In her oral evidence, Ms Spiccia expressed the opinion that Mr Bunwarrie was suitable for release on a supervision order in the Perth metropolitan area. She recommended that he engage in individual intervention with a consultant psychologist to provide support as he adjusts to the community, and that intervention is recommended to focus on the consolidation and application of his improved insight and learned skills, alongside addressing ongoing outstanding treatment needs associated with sexual preoccupation, self‑management, substance use, impulsivity and relationship and communication skills. In Ms Spiccia's view, Mr Bunwarrie might benefit from referral to the Sex Offending Maintenance Program to assist with maintaining ISOTP treatment plans and strengthen his risk management plans, and, in addition, he might benefit from referral to a community service provider for group or individual treatment to address substance use and to assist him to implement and maintain substance use relapse strategies.
Ms Spiccia considered that Mr Bunwarrie had demonstrated the capacity to challenge his entrenched beliefs about sex and women, developed insight regarding contributing factors to his sexual offending, implement adaptive communication skills and emotional coping strategies and identify risk management plans. Notwithstanding that, she considered that he had a range of outstanding treatment needs, requiring further intervention in the custodial or community setting.
I may only make a supervision order if Mr Bunwarrie satisfies me on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order. Those standard conditions are set out in s 30(2) of the Act.
In this regard, I adopt Fiannaca J's observations as to the meaning of 'substantially comply' in Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 in s 23(1)(B) of the DSO Act, being the equivalent of s 29 of the Act.
Critically, I must be satisfied that Mr Bunwarrie will comply with the standard conditions in a manner and to the extent that will enable the adequate protection of the community by management and mitigation of the risk that he will commit a serious offence if released. One of the standard conditions is that Mr Bunwarrie not commit a serious offence.
Mr Bunwarrie has a history of non-compliance with community supervision orders, as well as a substantial number of convictions related to breaches of various orders, which were summarised by Fiannaca J in Bunwarrie [No 3].[17]
[17] Bunwarrie [No 3] [123] - [127].
I have had regard to Mr Bunwarrie's abstention from alcohol while subject to the continuing detention order, his expressed desire to Ms Yewers to ensure that he does not breach a HRSO order if he thinks a woman is flirting with him and the fact that he has said to each of Dr Yewers, Ms Spiccia and Ms Bennett that he intends to comply with any supervision order made, and has said that he considers a supervision order will 'help [him] go in a positive direction' and 'give [him] a future'.
Assessing that evidence in conjunction with Mr Bunwarrie's treatment gains since the continuing detention order was made and the proposed conditions on which he may be released, I am satisfied that it is more likely than not that Mr Bunwarrie will substantially comply with the standard terms of the supervision order I propose to make, the term of which will be five years.
As to whether the proposed supervision order will adequately protect the community from the risk Mr Bunwarrie presents, the State has proposed 42 conditions, in addition to the standard conditions required by s 30(2) of the Act, should a supervision order be made.
The proposed conditions prohibit, amongst other things, Mr Bunwarrie's use of alcohol and prohibited drugs, require him to leave the presence of any female whom he knows or ought to know to be affected by alcohol or illicit substances, not to enter any residential address at which a female if resident with the prior approval of his community corrections officer (CCO), not to allow any female to enter Mr Bunwarrie's residence without prior approval of his CCO, and to attend for testing for drugs and alcohol as directed by his CCO or a police officer. In addition, he will be prohibited from having contact with any female under the age of 18 years without the prior approval of his CCO or where the contact is necessary to complete a commercial transaction and another adult is present.
Further, the proposed conditions will require Mr Bunwarrie to undergo individualised psychological treatment, and permit his CCO to authorise Mr Bunwarrie's use of escort agencies or sex workers. He is to report to and receive visits from his CCO when directed by the CCO.
Having regard to the impact alcohol has had on Mr Bunwarrie's offending, the need for him to manage his sex drive and the risk he poses to women and female children, I am satisfied that the proposed supervision order adequately protects community from the risk posed by Mr Bunwarrie's release on that supervision order, and will enable him to receive proper treatment.
The conditions proposed by the State are extensive and stringent. Mr Bunwarrie did not take issue with them. I am satisfied that the proposed conditions will enable those responsible for supervising Mr Bunwarrie's conduct to detect, at an early stage, anything which may indicate an increase in the risk of him reoffending, while also facilitating his reintegration into the community.
In coming to that conclusion, I have given close consideration to whether Mr Bunwarrie's refusal to undergo SSRI treatment is an indication that he presents an unacceptable risk to the community, notwithstanding the treatment gains he is said to have achieved since the continuing detention order was made and the protections afforded by the conditions in the proposed supervision order.
It can be said that Mr Bunwarrie's refusal to undergo that treatment is indicative of his continuing to have a mindset which puts his needs above those of others, and is therefore indicative of an ongoing risk that he will reoffend that is greater than it might otherwise be.
I do not have the power to require Mr Bunwarrie to undergo SSRI treatment, other than indirectly, by refusing to make a supervision order. As it would lower his libido, it would obviously reduce the risk of Mr Bunwarrie committing a further serious offence were he to accept the treatment.
Mr Bunwarrie's stated reasons for refusing SSRI treatment include concern about its effects on his health, and his desire to manage his sex drive himself. Neither reason is inconsistent with the recognition of his problems arising from his past behaviours and the other treatment gains he is said to have achieved, and Dr Yewers and Ms Spiccia were aware that Mr Bunwarrie had not given consent to the treatment when they gave evidence to the effect that he could be released to the community, with appropriate safeguards.
I also bear in mind that Mr Bunwarrie had less than 24 hours to consider whether to consent to the treatment after he received the medical advice necessary to allow him to make an informed choice about it.
Ultimately, I have concluded that the risk to the community will be sufficiently addressed by the conditions in the proposed supervision order, notwithstanding Mr Bunwarrie's refusal to undergo SSRI treatment. It remains open to him to change his mind, and his CCO will be able to assist him obtain that treatment if he does so.
Accordingly, while Mr Bunwarrie's refusal to undergo SSRI treatment causes me concern, I am not satisfied, having regard to the whole of the evidence, that I should decline to make a supervision order on that ground.
Suitable accommodation is available for Mr Bunwarrie. Uniting WA proposes to provide accommodation with associated reintegration supports to Mr Bunwarrie should he be released.
Although the report submitted by the State regarding that accommodation has raised some issues with the proposed accommodation, they concern the proximity of persons with convictions for dealing in illicit drugs and certain victims of offences. There is nothing to indicate that Mr Bunwarrie knows of those persons or their locations. In my view, none of the concerns raised by the report render the accommodation unsuitable for Mr Bunwarrie.
I therefore find, having regard to the paramount need to ensure adequate protection of the community, that a supervision order in the terms proposed by the State will enable adequate management of the risk that Mr Bunwarrie currently presents to the community, provided that he complies with those orders.
I will accordingly rescind the existing continuing detention order and make a supervision order in terms of the minute attached to these reasons.
I am conscious of the steps required to be taken to implement the release of Mr Bunwarrie. Section 27(3) requires that he not be released for at least 21 days from the making of a supervision order, unless I am satisfied that it is practically feasible to implement the order at an earlier date.
In this case, the State's application was adjourned on three occasions. Those adjournments were necessary because until the day of the first review hearing, the State had failed to provide a treating psychologist for Mr Bunwarrie and had been unable to arrange for a medical practitioner to advise Mr Bunwarrie as to the possible side effects of the proposed antilibidinal treatment. On the first occasion, I indicated that it was likely that I would order Mr Bunwarrie to be released, once I was satisfied that he had had an opportunity to consider granting informed consent to receiving the SSRI medication and had met with the consulting psychologist assigned to his treatment.
Both those things have now occurred. Further, the State has indicated that steps have been taken to permit the order to be implemented earlier than the standard 21 days.
I will therefore order that Mr Bunwarrie be released on Monday, 28 April 2025.
Finally, during the hearing of the application the State applied for an order suppressing the publication of the address of Mr Bunwarrie's proposed residence.
Members of the community have a legitimate interest in knowing that offenders are living in their community. That interest must, however, be balanced against the potential for subversion of any supervision order made.
I am satisfied that it is necessary for the proper administration of justice that the address of the proposed residence, which is being provided by Uniting WA, be suppressed. The risk that the proposed residence could become unsuitable as accommodation for Mr Bunwarrie and others if the address were to be published is obvious, in my view, when regard is had to the nature of his past offending and my finding that he is a high risk serious offender.
Having regard to the limited accommodation options available to Mr Bunwarrie, I find that it is necessary that the address of the proposed residence be suppressed in order that the supervision order can be given effect. I will accordingly order that the full address of the proposed residence be suppressed.
ANNEXURE A
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, Western Australia (WA) within 48 hours of this Order being issued and advise the officer of your current name and address;
Report to and receive visits from, a CCO as directed by the court;
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
Not leave, or stay out of, the State of Western Australia without the permission of a CCO;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;
Reporting to a CCO and supervision by a CCO
Report to, and receive visits from, a CCO at times and at places as directed by the CCO and comply with the lawful orders and directions of a CCO;
Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO;
Attendance at programs or treatment
Consult, engage and attend all appointments with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO, and then as they subsequently direct;
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;
Medications/Mental Health
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Corrective Services;
Reporting to WA Police
Report to WA Police at times and at locations as directed by a CCO or WA Police;
If requested, permit Police Officers to enter and search your residence and/or vehicle and/or search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order;
Remain at your residence and/or vehicle when Police Officers conduct a search under condition 15;
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview anyone with whom you commence a social association/friendship, domestic, romantic, sexual or otherwise intimate relationship and, where appropriate, to disclose to them confidential information including your offence history; this may include as directed by your CCO, that you fully or partially disclose your past offending and the current order to that person, which disclosure can be confirmed by a CCO or a Police Officer;
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your current offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice;
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and you must not look at the victim at all times;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
Not assault, insult or threaten in any manner any officer of the Department of Justice or agencies performing any function under this order;
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either a sexual offence or obscene or indecent act, violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under section 557K Criminal Code 1913 (WA) or section 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;
Not commit any offence under the Community Protection (Offender Reporting) Act 2004;
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse Of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider;
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or verge of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
When subject to a curfew under this order, you must ensure that all adults present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Prevention of high-risk situations
Not to remain in the presence of any female who you know, or ought to know, to be affected by alcohol or illicit substances, unless the identity of such person is approved in advance by a CCO;
Not to remain in the presence of any person who you know, or ought to know, to be affected by a prohibited drug, unless the identity of such person is approved in advance by a CCO;
Not remain in any place where prohibited drugs or alcohol are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place;
Not to enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO;
Not permit any female to enter any residential address in which you reside, unless authorised in advance by a CCO;
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
Not to possess, or consume, or purchase, or use alcohol;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Provide a valid sample pursuant to condition 37;
Not go or remain at any licensed premises, excluding grocery stores, cafes, restaurants and movie theatres, unless permitted or required to do so for the following reasons:
a.For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;
b.For a purpose, and for a duration, approved in advance by a CCO;
c.On the order of a CCO or Police Officer.
Sporting venues are to be considered pro-social, however prior approval to ensure a CCO knows and approves in advance is required.
Not enter the premises of, or access the services of, escort agencies or sex workers unless pre-approved by a CCO. Your CCO may during your Order approve you to attend and notify them within a certain period they direct afterwards (for example at your next session with them or 48 hours, your CCO will decide and direct you);
Have no contact with any female child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
a.the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
b.the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);
Where any unsupervised contact with a female child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
Provide details of any contact with a female child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency;
Report at your next contact with your CCO, the formation of any social association/friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person. Being one or more contacts of any kind;
Not form any domestic relationship with a person who has a female child, or female children under the age of 18 years in their care either full time or part time, without prior approval of a CCO;
To disclose and provide reasonable details of your activities, movements and the associations you come into contact with in the community, when reasonably requested by your CCO;
Advise a CCO of every newly gained or used telecommunication device in your possession or used within 2 business days of purchase or use and upon request, permit a CCO or WA Police to access your telecommunication device, at any location nominated by the CCO or WA Police for the purpose of ascertaining your activities or associations. To do so you must provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses;
Not allow any person other than a CCO or WA Police access to any telecommunication device referred to in condition 47 that you own or loan, without prior approval. To do so you must, enable device locking or password access of your telecommunication device/s, and not provide or disclose such passwords or other means used to access them, or any online accounts, to any person other than a CCO or Police Officer; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO; and
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguise any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that telecommunication device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
_______________________________
THE HON JUSTICE COBBY
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Hon Justice Cobby
17 APRIL 2025
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