The State of Western Australia v CK
[2025] WASC 362
•1 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CK [2025] WASC 362
CORAM: LEMONIS J
HEARD: 30 MAY 2025
DELIVERED : 1 SEPTEMBER 2025
PUBLISHED : 1 SEPTEMBER 2025
FILE NO/S: SO 8 of 2025
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CK
Respondent
Catchwords:
Application for a restriction order under the High Risk Serious Offenders Act 2020 (WA) - Consideration of whether the State has met the requisite criterion for the Court to fix a date for the hearing of the State's application - Consideration of whether an interim detention order should be made
Legislation:
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Criterion under s 46 of the High Risk Serious Offenders Act 2020 (WA) is met
Date set for hearing of application and ancillary orders made for the provision of expert evidence at that hearing
Interim detention order made
Representation:
Counsel:
| Applicant | : | T Loo |
| Respondent | : | G Chin |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
Garlett v Western Australia [2022] HCA 30
The State of Western Australia v JPA [2024] WASC 225
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Williams [No 2] [2024] WASC 215
The State of Western Australia v Winder [2021] WASC 65
LEMONIS J:
On 12 May 2025, the State of Western Australia applied for a restriction order in respect of the respondent under s 35(1) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
The application came before me on 30 May 2025 for a preliminary hearing. At the preliminary hearing, I made an order setting a date for the hearing of the State's application, and an interim detention order. These reasons explain why I made those orders.
As at 30 May 2025, the respondent was in custody serving a total effective sentence of imprisonment of 11 years and 6 months (total effective sentence), backdated to 18 December 2013.[1] That term expired on 17 June 2025. The respondent is now in custody pursuant to the interim detention order.
[1] Affidavit of Jet-Din Hang affirmed 12 May 2025, page 410.
The total effective sentence was imposed in respect of seven offences, being one offence of aggravated sexual assault and six offences of sexual penetration without consent of a person under 16 years of age. These were all offences under now repealed sections of the Criminal Code (WA). The offences were 'serious offences' as defined in the HRSO Act. At the time of the hearing on 30 May 2025, the respondent was a serious offender under custodial sentence within the meaning of that phrase as defined in s 3 of the HRSO Act. Section 35(1) of the HRSO Act therefore applied to him.
Section 35 only permitted the State to make its application for a restriction order if there was a possibility that the respondent might be released from custody within the period of one year after the application was made. That scenario applied to the respondent.
Section 43(1) of the HRSO Act required that there be a preliminary hearing in respect of the State's application, which was the hearing listed before me on 30 May 2025. The State provided helpful written submissions for the purposes of that hearing.
Preliminary hearing
The main purpose of the preliminary hearing was to decide whether there were reasonable grounds for believing that the court might find, pursuant to s 7 of the HRSO Act, that the respondent is a high risk serious offender within the meaning of that Act.[2] If I am not so satisfied, then I cannot fix a day for the hearing of the State's application for a restriction order.
[2] HRSO Act, s 46(1).
A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[3] A restriction order is made under s 48 of the HRSO Act in the form of either a continuing detention order or a supervision order.
[3] HRSO Act, s 7(1).
Section 7 of the HRSO Act sets out the matters to which the court must have regard in assessing whether a person is a high risk serious offender. These matters are comprehensively addressed in the State's written submissions.
In TheState of Western Australia v Williams [No 2],[4] I considered the judgment of Kiefel CJ, Keane and Steward JJ, and the judgment of Edelman J, in Garlett v Western Australia, which concerned a constitutional challenge to the HRSO Act.[5] Their Honours addressed the application of s 7 and s 48.
[4] TheState of Western Australia v Williams [No 2] (Williams) [2024] WASC 215 [22] - [37].
[5] Garlett v Western Australia [2022] HCA 30 (Garlett).
Having regard to the judgments in Garlett, I expressed the following view, to which I adhere:[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…
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.
[6] Williams [39] - [40].
Further, in Garlett, Kiefel CJ, Keane and Steward JJ observed that:[7]
While the requirement of an evaluation under s 7 depends upon the offender having been convicted of a "serious offence", ss 7 and 48 do not envisage the possibility that a restriction order might be made to prevent the commission of a serious offence, whether of the same kind or of another kind, unless the risk of further offending involves a real threat of harm to the community. (footnote omitted)
[7] Garlett [84].
In respect of the issue before me on this preliminary hearing, Quinlan CJ observed in The State of Western Australia v Winder that:[8]
For the purposes of this hearing, I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. I emphasise the word might. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[8] The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ). See also The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J).
The respondent was represented at the preliminary hearing by counsel, Mr Chin, who quite properly conceded that the criterion set out in s 46 of the HRSO Act was met. Further, Mr Chin did not oppose the making of an interim detention order.
For the reasons that follow, I was satisfied at the preliminary hearing that the criterion in s 46 was met and it was appropriate to make an interim detention order.
The evidence
In support of the application, the State relied upon an affidavit of Jet‑Din Hang affirmed 12 May 2025. Mr Hang is a legal practitioner employed by the State Solicitor's Office. His affidavit set out details of the respondent's criminal history. His affidavit annexed the transcript of the sentencing hearing when the total effective sentence was imposed, and also annexed several reports and assessments in relation to the respondent.
Personal circumstances
The respondent is 58 years of age. He was exposed to a violent background as a child which resulted in him being placed in foster care. He left school at the age of 14.
The respondent has an adult son and daughter who live in New South Wales.
A psychological report prepared in respect of the respondent in June 1992[9] recorded that respondent told the psychologist he had worked in a variety of trades including panel beating, welding, as a tattoo artist and also as a cleaner.
Criminal history
[9] Mr Hang's Affidavit, pages 145 - 146.
The offending for which the respondent was serving the total effective sentence is very serious.
The seven offences were carried out over multiple weeks against the respondent's stepson, then six years of age, and his stepdaughter, then 3 years of age. The offending took place between 31 July 1991 and 28 May 1992. The respondent was found guilty after trial before judge and jury. He maintains his denial that he committed the offences.[10]
[10] Mr Hang's Affidavit, page 150.
The seven offences were constituted by the following offending. Three offences involved the respondent penetrating his stepson's anus with the respondent's penis. Two offences involved the respondent penetrating his stepson's anus with the respondent's finger. One offence involved the respondent penetrating his stepdaughter's mouth by placing his penis into her mouth.
Nothing further needs to be said about those offences other than to adopt the following submission made by the State in their written submissions:[11]
[The offences] were inherently violent, being sexual offences against vulnerable children. There were particularly degrading aspects of his offending, such as urinating in the mouth of his 3-year-old stepdaughter and forcing her to drink it. As well as penetrating his 6-year-old stepson's anus with his penis, the Respondent engaged in further physical violence including tying the victim's hands behind his back and hitting the victim so hard that he was unable to hear out of one ear, and pinning the victim between the toilet and the wall. He also threatened to hit and kill the victim if he made a noise. (footnote omitted)
[11] Applicant's Outline of Submissions dated 28 May 2025, par 34.
The respondent also has a significant offending history which includes offences of property damage, possession and use of weapons, unlawful assault, driving while disqualified, escape from custody and breach of a protective order.[12]
[12] State's Submissions, par 43(c).
The respondent also committed two offences of indecent assault while he was a minor.[13] The respondent said that he engaged in this offending as a dare.[14]
Reports
[13] Mr Hang's Affidavit, page 38.
[14] Mr Hang's Affidavit, page 150.
The psychologist who prepared the report in June 1992 expressed the opinion that the respondent's inability to appropriately express his anger was of major concern.[15] There are no more recent psychological reports in respect of the respondent. There are no psychiatric reports in respect of the respondent.
[15] Mr Hang’s Affidavit, page 146.
A treatment assessment report in respect of the respondent was completed after he was sentenced to the total effective sentence. That report recorded the results of a statistical risk assessment undertaken in respect of him. The respondent's static risk level for sex offending was placed at the level of high, and his dynamic risk was placed at the level of moderate.[16] As a very general observation, I understand the difference between these risk assessments is that static risk factors are 'unchangeable factors' that contribute to risk, whereas dynamic risk factors are 'changeable factors' that contribute to risk and are amenable to therapeutic intervention.
[16] Mr Hang's Affidavit, page 149.
On the evidence before me, the respondent has not engaged in any sex offender treatment programs.
The parole assessment report completed in May 2023 stated that the respondent had reported a willingness to engage with any community‑based programs that he might be considered suitable for.[17] Such programs would include what is described as the 'Deniers Sexual Offending' program. There have however been delays in that program being made available to the respondent.
[17] Mr Hang's Affidavit, page 155.
It was unclear by the time of the preliminary hearing on 30 May 2025 whether the respondent had been offered the opportunity to participate in the program, and if so, whether he had done so. For that reason, I made an order on 30 May 2025 that the Department of Justice file an affidavit by 13 June 2025 directed to whether the respondent has participated in the program, and if so, the progress he has made.
At the time of the preliminary hearing, the respondent did not have any accommodation available in Western Australia if he were to be released from prison. The respondent's preference is to live in New South Wales, where his adult children reside. There is, however, no information before me as what, if any, supervisory regime might be available in New South Wales if the respondent were to live there.
My assessment
Conclusion regarding preliminary hearing
In all of these circumstances, and having regard to the matters outlined in the State's written submissions, I was satisfied there were reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of s 7(1) of the HRSO Act.
The following matters were of particular importance in coming to that view.
The offending the subject of the term of imprisonment was extremely serious offending, involving two young children who were in the respondent's care. The offending was not isolated. The sentencing judge found that those children were terrified of the respondent and that the respondent took advantage of their fear to commit the offences. The sentencing judge found that the offending ceased because the children were taken away by the Department of Child Protection.[18]
[18] Mr Hang’s Affidavit, page 140.
Further, on the evidence before me, the respondent has not achieved any substantial rehabilitation in respect of his offending behaviour.
In these circumstances and based on the evidence presently before the court, I was satisfied that there were reasonable grounds for believing that the respondent might present with an unacceptable risk of committing further sexual offences against children such that it was necessary to make a restriction to ensure the adequate protection of the community against that risk.
Interim detention order
The State also sought an order that the respondent remain in custody pending the determination of these proceedings. In that respect, s 46(2)(c)(i) of the HRSO Act provides that the court may:
… if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order.
Mr Chin quite properly accepted that it would be premature for an interim supervision order to be made in circumstances where the respondent does not have accommodation available in Western Australia. Further, while the respondent's preference is to live in New South Wales, there is no information before me as what, if any, supervisory regime might be available there.
Without the benefit of full argument as to the principles applicable to the imposition of an interim detention order, I will not express a view as to the type of factors that might ordinarily be taken into account in assessing whether an interim detention order should be made. For present purposes, it is sufficient to say that to make an interim detention order, I must be positively satisfied that it is appropriate for the adequate protection of the community.[19]
[19] The State of Western Australia v JPA [2024] WASC 225 [30].
I was satisfied that it was appropriate for the adequate protection of the community to exercise the discretion to make an interim detention order having regard to my reasons set out at [34] - [36] above and that the respondent has no accommodation available in Western Australia.
I made the interim order to apply until the determination of the State's application, or until further order. This enables the respondent to apply at a later stage for an interim supervision order if there is updated information available pertaining to possible accommodation options in Western Australia, and also in New South Wales.
Conclusion
For these reasons, I was satisfied that the criterion in s 46 of the HRSO Act was met and that it was appropriate to make an interim detention order. I therefore made an order fixing the date for hearing of the State's application for a restriction order and made an interim detention order.
Further, in accordance with s 46(2), I ordered that the respondent undergo examination by a psychiatrist and a psychologist, and made orders facilitating the preparation of their reports.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OM
Associate to the Hon Justice Lemonis
1 SEPTEMBER 2025
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