The State of Western Australia v DR
[2025] WASC 34
•7 FEBRUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DR [2025] WASC 34
CORAM: LEMONIS J
HEARD: 31 JANUARY 2025
DELIVERED : 7 FEBRUARY 2025
FILE NO/S: SO 20 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DR
Respondent
Catchwords:
Application for a restriction order under the High Risk Serious Offenders Act 2020 (WA) - Consideration of whether the State has met the requisite criterion for the court to fix a date for hearing of the State's application - Consideration of whether an interim detention order or interim supervision 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
Category: B
Representation:
Counsel:
| Applicant | : | Ms T Hollaway |
| Respondent | : | Mr T McCulloch |
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 Williams [No 2] [2024] WASC 215
LEMONIS J:
On 19 December 2024, the State of Western Australia applied for a restriction order in respect of DR under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
On 31 January 2025, I made orders under s 46 of the HRSO Act, including an interim detention order. These reasons explain why I made those orders.
DR is currently in custody serving a term of imprisonment of 8 years and 3 months, backdated to commence on 18 November 2016. He is due to be released from custody on 17 February 2025.
Section 35(3) of the HRSO Act only permits the State to bring this application if there is a possibility that the offender might be released from custody within the period of one year after the application is made. That possibility arises here.
Section 46 of the HRSO Act requires that there be a preliminary hearing in respect of the State's application. The State provided helpful written submissions for the purposes of the preliminary hearing.
Preliminary hearing
The main purpose of the preliminary hearing is to decide whether there are reasonable grounds for believing that the court might find, pursuant to s 7 of the HRSO Act, that DR is a high risk serious offender within the meaning of the Act. If I am not so satisfied, then I cannot fix a day for the hearing of the State's application for a restriction order.
A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence. A restriction order is made under s 48 of the HRSO Act and comprises either a continuing detention order or a supervision order.
A restriction order does not therefore necessarily entail a person being detained in custody. A supervision order contains mandatory conditions, and may also contain additional conditions that the court thinks appropriate. A continuing detention order is an order that the person be detained in custody for their control, care or treatment. Thus, the purpose of a continuing detention order is not necessarily just that of having control over the person. The purpose can extend to the care or treatment of the person.
Section 7(3) 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],[1] I considered the judgments of Kiefel CJ, Keane and Steward JJ, and Edelman J in Garlett v Western Australia, which concerned a constitutional challenge to the HRSO Act.[2] Their Honours addressed the approach to applying s 7 and s 48.
[1] TheState of Western Australia v Williams [No 2] [2024] WASC 215 [22] - [37].
[2] Garlett v Western Australia [2022] HCA 30.
Having regard to the judgments in Garlett, I expressed the following view, to which I adhere:[3]
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.
(footnote omitted)
[3] Williams [39] - [40].
Further, in Garlett, Kiefel CJ, Keane and Steward JJ observed that:[4]
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)
[4] Garlett [84].
DR is represented by counsel, Mr McCulloch, who conceded that the criterion set out in s 46 of the HRSO Act is met.
For the reasons which follow, I accepted that concession and was satisfied that the criterion in s 46 was met. I therefore made an order setting a hearing date for the restriction order application and ancillary orders to facilitate the hearing of that application.
The evidence
In support of the application, the State principally relies upon an affidavit of Daniel Sean McDonnell of the State Solicitor's Office affirmed 19 December 2024. Mr McDonnell's affidavit contains, amongst other matters, the details of DR's criminal history, as well as several reports and assessments in relation to him. These include psychological reports, as well as program completion reports and a Post Sentence Supervision Order Report.
DR's current term of imprisonment is made up of the following sentences.
On 28 August 2017, Stone DCJ sentenced DR to a total effective sentence of 8 years backdated to 18 November 2016 for:
1.eight offences of indecently dealing with a child under 13 years of age, which is an offence under s 320(4) of the Criminal Code (WA) (Code);
2.one offence of indecently dealing with a child over 13 years of age and under 16 years of age, which is an offence under s 321(4) of the Code;
3.one offence of sexual penetration of a child under 13 years of age, which is an offence under s 320(2) of the Code;
4.three offences of indecently dealing with a child, who DR knew was his lineal relative or a de facto child, which is an offence under s 329(4) of the Code; and
5.four offences of sexually penetrating a child, who DR knew was his lineal relative or a de facto child, which is an offence under s 329(2) of the Code.
There were five different victims of DR's offending. The offences I have described at [17(1)], [17(2)] and [17(3)] were committed against the sister of DR's then partner, who was between 9 and 15 years of age during the period she was sexually abused. The offences I have described at [17(4)] were committed against DR's two half‑sisters, one of whom was between 5 and 12 years of age during the period that she was sexually abused, and the other half-sister was 4 or 5 years of age. The offences I have described at [17(5)] were committed against DR's two daughters, one of whom was 5 and then 6 years of age at the time of the offending against her. DR's other daughter was between two and three years of age at the time of the offending against her. The five offences of sexual penetration were constituted by DR penetrating the victim's vagina with his finger.[5]
[5] Mr McDonnell's affidavit, pages 27 - 29 (indictment) and pages 54 - 56 (sentencing remarks).
On 12 March 2021, Quail P in the Children's Court sentenced DR for two offences of sexual penetration of a child under 13 years of age. In respect of one offence, Quail P sentenced DR to a term of imprisonment of three months (reduced from 8 months for totality purposes) to be served cumulatively on the term of 8 years. In respect of the other offence, Quail P sentenced DR to a term of imprisonment of 8 months to be served concurrently with the 8 year term. The victim of the offending was DR's stepbrother, who was 8 years of age at the time of the offending. The offences were constituted by anal penetration of the victim. The offending occurred when DR was 16 years of age.[6]
[6] Mr McDonnell's affidavit, pages 92 - 95 (sentencing remarks).
On 13 September 2024, Magistrate Sullivan in the Children's Court sentenced DR to a term of imprisonment of 3 months in respect of an offence of sexual penetration of a child under 13 years of age, and in respect of an offence of sexual penetration of a child over 13 years of age and under 16 years of age. The sentences of 3 months were ordered to be served concurrently with the term of 8 years. There were two victims of the offending, who were also DR's half-sisters. They were 12 and 13 years of age respectively at the time of the offending. DR was approximately two years older than each victim. The sexual penetration was constituted by digital penetration.[7]
[7] Mr McDonnell's affidavit, page 82 (sentencing remarks) and pages 75 and 77 (statement of material facts).
All of the offences I have described at [17] - [20] above constitute serious offences within the meaning of the HRSO Act. Overall, there were eight victims of DR's offending.
The State submits, which I accept, that DR's criminal record demonstrates a pattern of persistent sexual offending against children for over a decade.[8]
[8] State's written submissions, par 54.
This offending aside, DR's criminal record is relatively minor, and involves cannabis related offending, traffic offences, and one offence of unlawful possession of a firearm or ammunition.
Further, DR has been charged with two additional offences of sexual offending, being indecent dealing with a child under 13 years of age and sexual penetration of a child under 13 years of age. The complainant is male and was between 9 and 10 years of age at the time of the alleged offending. DR was between 14 and 15 years of age.
Personal circumstances
DR is now 36 years of age.
I have discerned DR's personal history from reports that are before the court, principally the reports of Mr Steve Jobson, a psychologist.[9]
[9] Mr McDonnell's affidavit, pages 99 - 100 and 126 - 128.
DR is the older of two children whose parents separated when he was an infant.
It appears that during his childhood years DR was exposed to cannabis and methylamphetamine use.
From around the age of eight, DR reported he was sexually abused by a male for a period of approximately 18 to 24 months.
DR attended school until he was around 15 years of age.
DR had a consistent work history and worked in a variety of areas until his imprisonment in 2016.
DR had a significant history of using illicit substances.[10]
[10] Mr McDonnell's affidavit, page 131, par 30.
DR has four children. DR was in a relationship with the children's mother for about eight years.[11] Two of the children were victims of DR's offending.
Reports
[11] Mr McDonnell's affidavit, page 117 and 131.
The most recent psychological report in respect of DR is Mr Jobson's report dated 23 February 2021. The report was prepared for the purposes of DR's sentencing for the offences for which he was sentenced by Quail P and identified the following factors in respect of risk assessment.[12]
[12] Mr McDonnell's affidavit, pages 124 - 133 (Mr Jobson's report).
DR's sexual offending was chronic and diverse, and likely involved psychological coercion given he was considerably older than all victims.[13]
[13] Mr McDonnell's affidavit, page 131, par 29.
DR is likely to have a diagnosis of a significant mood disorder and a possible sexual interest in children.[14]
[14] Mr McDonnell's affidavit, page 131, par 30.
Mr Jobson observed there was 'some concern related to the level of sexual compulsiveness of [DR]' during his most recent intimate relationship.[15]
[15] Mr McDonnell's affidavit, page 131, par 31.
Mr Jobson also observed that DR did not appear to have had great difficulty maintaining non-intimate relationships, appears to have had a reasonable work ethic and appears to have had appropriate skills in planning and organisation.[16]
[16] Mr McDonnell's affidavit, pages 131 - 132, pars 31 - 32.
Mr Jobson was of the opinion that the most likely situation leading to reoffending would be if DR failed to address his own sexual abuse, and failed to address how his own sexual abuse might have influenced his sexual offending.
Mr Jobson considered a 'further risk factor is likely to be a relapse into illicit substance use or the extensive consumption of alcohol'. Mr Jobson considered that other identified triggers for DR's possible reoffending are related to avoidant behaviours such as isolating himself, not communicating his emotions, needs and wants to others, and engaging in extensive and unhealthy sexuality.[17]
[17] Mr McDonnell's affidavit, page 132, par 33.
Mr Jobson expressed some concern as to the possibility of a paedophilic interest, also noting that DR clearly denied such an interest. Mr Jobson considered it was certainly possible that DR's offending against children was linked to other non-paedophilic factors.[18]
[18] Mr McDonnell's affidavit, page 133, par 36.
Mr Jobson stated that while the two treatment programs attended by DR provide a broad and general approach to understanding risk factors and treatment needs, these programs do not address individual personal factors such as childhood abuse.[19]
[19] Mr McDonnells' affidavit, page 132, par 35.
The Post Sentence Supervision Order report (PSSO report) dated 27 November 2024[20] suggested that '[DR] would benefit considerably from medium‑term psychological counselling to assist him to gain a greater awareness and understanding as to the likely impact of his childhood abuse upon his apparent sexual attraction to children and subsequent sexual offending'.[21]
[20] Mr McDonnell's affidavit, pages 152 - 156.
[21] Mr McDonnell's affidavit, page 154.
The PSSO report states that DR completed the Pathways Program in 2018. The program is a 100-hour structured program which provides treatment to individuals who have a history of offending behaviour in conjunction with substance use problems. The program completion report dated 21 November 2018 states that DR made significant gains in the treatment areas of emotional regulation, substance use and antisocial cognitions.[22] The completion report also stated that DR presented as being determined to live a healthy life, free of all illicit substance use, but will require ongoing support in the community to help build his pro-social support network.[23]
[22] Mr McDonnell's affidavit, page 115.
[23] Mr McDonnell's affidavit, page 115.
Further, DR completed the medium sex offender treatment program in 2019. The program completion report for that program noted DR 'impressed as being committed to following his release plan, however he will require support in maintaining boundaries to avoid antisocial affiliations and to promote prosocial relationships'.[24] The completion report also noted that DR acknowledged sexual attractions towards children.[25]
[24] Mr McDonnell's affidavit, page 122.
[25] Mr McDonnell's affidavit, page 121.
DR does not have accommodation to live in if he is released into the community.
Parole assessment
DR has been denied parole now on two occasions at his own request.
My assessment
Conclusion regarding preliminary hearing criterion
In all of these circumstances, I was satisfied there are reasonable grounds to believe that the court might find that DR is a high risk serious offender within the meaning of the HRSO Act.
The following matters are of particular importance in coming to that view.
DR has an extensive history of child sex offending against many victims of varied ages over a significant period of time. He exploited his relationship with the victims in order to carry out the offending.
While DR has engaged significantly with treatment programs, it is not apparent that he has yet obtained significant treatment in respect of his own sexual abuse, which may well be a contributing factor to his offending.
Mr Jobson was also of the opinion that there was a possibility of a paedophilic interest. The number of victims and their varied ages are factors that support such a possibility, as is DR's acknowledgment of sexual attraction towards children which is recorded in the 2019 completion report for the Medium Sex Offender Treatment Program. However, Mr Jobson's 2021 report records that DR denied having a paedophilic interest. Mr Jobson pointed out that it is possible that DR's offending against children was linked to other, non‑paedophilic factors. For present purposes, I consider it is reasonably possible that DR has a sexual interest in children.
It is not necessary to say anything further at this stage in relation to whether DR may be found to be a high risk serious offender.
Interim detention order
The State also seeks an order that DR 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:
(i)if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order.
To make an interim detention order, I must be positively satisfied that such an order is appropriate for the adequate protection of the community.[26] At this stage, in this case, it is not necessary to explain further the relevant factors that I should take into account.
[26] The State of Western Australia v JPA [2024] WASC 225 [30].
DR does not oppose the making of an interim detention order. DR takes that position because he does not currently have accommodation to live in if released into the community. DR seeks liberty to apply at a later stage for an interim supervision order if accommodation becomes available.
I am positively satisfied at this stage that an interim detention order should be made. In coming to that view, I take account of my reasons for being satisfied that the criterion in s 46 of the HRSO Act has been met. I also take account of the following matters.
At the moment, DR does not have accommodation to live in if he is released into the community.
Further, for the reasons set out above, the causative features of DR's offending are not clear. As I have said, I consider it is reasonably possible that DR has a sexual interest in children. In all likelihood, a proper assessment of whether he does have such an interest would require the court to have a current psychiatric and psychological assessment of DR. I have now made orders for these assessments to be undertaken.
Conclusion
For these reasons, I am satisfied that the criterion in s 46 of the HRSO Act is met. I therefore made an order fixing a date for hearing the State's application for a restriction order.
Further, in accordance with s 46(2), I also ordered that DR undergo examination by a psychiatrist and a psychologist, and made orders facilitating the preparation of their reports.
In respect of those reports, I consider it would be beneficial if they addressed the expert's opinion in respect of the following additional matters:
1.the topics that should be addressed in a supervision order, if such an order were imposed.
2.any particular areas of treatment or support which the expert considers would assist DR to successfully integrate into the community.
I was also satisfied it is appropriate to make an interim detention order until further order, giving DR liberty to apply for an interim supervision order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SP
Associate to the Hon Justice Lemonis
7 FEBRUARY 2025
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