The State of Western Australia v Dr [No 2]
[2025] WASC 293
•16 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DR [No 2] [2025] WASC 293
CORAM: STRK J
HEARD: 24 JULY 2025, 29 JULY 2025 & 16 SEPTEMBER 2025
DELIVERED : 16 SEPTEMBER 2025
FILE NO/S: SO 20 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DR
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act2020 (WA) - Application for a restriction order - Whether it is necessary to make a restriction order to ensure adequate community protection against an unacceptable risk that the respondent will commit a serious offence - Whether the risk of reoffending may be adequately managed in the community by the imposition of a supervision order - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Restriction order made
Continuing 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) |
Cases referred to in decision:
Condon v Pompano Pty Ltd (2013) 252 CLR 38
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Garlett v Western Australia (2022) 277 CLR 1
Italiano v The State of Western Australia [2009] WASCA 116
Minister for Home Affairs v Benbrika (2021) 272 CLR 68
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v Blurton [No 4] [2025] WASC 139
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v DR [2025] WASC 34
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v MAM [2022] WASC 100
The State of Western Australia v Nelson [2021] WASC 460
The State of Western Australia v Patrick [No 4] [2020] WASC 48
The State of Western Australia v Patrick [No 5] [2022] WASC 61
The State of Western Australia v Ryan [No 2] [2021] WASC 38
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v Williams [No 2] [2024] WASC 215
Vella v Commissioner of Police (NSW) (2019) 269 CLR 219
Table of Contents
Introduction
Statutory framework and legal principles
Evaluative judgments
Evidence
Antecedents and criminal history - s 7(3)(g)
Childhood and personal life
Employment and education
Alcohol and substance abuse
Relationships
Criminal record - serious offences and other relevant offences
Prison behaviour
Responses to supervision
Propensity to commit serious offences in the future - s 7(3)(c)
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(e) and s 7(3)(f)
Pathways program
Medium Sex Offender Treatment program
Dr Wojnarowska's psychiatric risk assessment and evidence
History of sexual offending
Psychiatric and medical history
Behaviour in prison
Contraventions and breaches
Previous reports
Interview with the respondent
Psychiatric diagnosis
Risk assessment
Risk scenario
Opinions and recommendations
Dr Yewers' psychological report and evidence
Background information
Forensic and treatment history
Risk management and future plans
Opinions
Risk assessment
Summary and recommendations
Overall assessment of expert evidence
Psychological and other assessments - s 7(3)(b)
Ms Cashmore's treatment options report
Ms Bennetts' community supervision assessment report
Ms Bennetts' update community supervision assessment report
Past reports
Any other relevant matter - s 7(3)(j)
Post sentence supervision order
Victim considerations
Accommodation
Anti‑libidinal medication
Analysis and findings
The risk that, if the offender were not made subject to a restriction order, the offender would commit a serious offence
Is the risk that the respondent will commit a serious offence unacceptable?
If the risk is found to be unacceptable, is it necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence?
Continuing detention order or supervision order?
Conclusion
STRK J:
Introduction
On 19 December 2024 the State of Western Australia applied for a restriction order under s 48 of the High Risk Serious Offenders Act2020 (WA) in relation to the respondent. It was the State's position that it was necessary to make a restriction order to ensure the adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
The respondent is 36 years of age and has an extensive criminal history. His criminal history includes 22 serious offences (as defined in the High Risk Serious Offenders Act), which include four offences of sexual penetration of a child who the offender knows is his lineal relative or a de facto child;[1] one offence of indecently dealing with a child over the age of 13 and under the age of 16;[2] eight offences of indecently dealing with a child under the age of 13;[3] three offences of indecently dealing with a child who the offender knows is his lineal relative or a de facto child;[4] five offences of sexual penetration of a child under the age of 13;[5] and one offence of sexual penetration of a child over the age of 13 and under the age of 16.[6] Overall, there were nine victims of the respondent's serious offending.
[1] An offence under s 329(2) of the Criminal Code (WA).
[2] An offence under s 321(4) of the Criminal Code.
[3] An offence under s 320(4) of the Criminal Code.
[4] An offence under s 329(4) of the Criminal Code.
[5] An offence under s 320(2) of the Criminal Code.
[6] An offence under s 321(2) of the Criminal Code.
When the State's application was made the respondent was serving a term of imprisonment of eight years and three months, backdated to commence on 18 November 2016. He was due to be released from custody on 17 February 2025.
On 28 August 2017 the respondent had been sentenced by Stone DCJ for eight offences of indecently dealing with a child under 13 years of age; one offence of indecently dealing with a child over 13 years of age and under 16 years of age; one offence of sexual penetration of a child under 13 years of age; three offences of indecently dealing with a child that the respondent knew was his lineal relative or a de facto child; and four offences of sexually penetrating a child that the respondent knew was his lineal relative or a de facto child.
On 12 March 2021 Quail P in the Children's Court sentenced the respondent for two further offences of sexual penetration of a child under 13 years of age. In respect of one offence, Quail P sentenced the respondent to a term of imprisonment of three months (reduced from eight months for totality purposes) to be served cumulatively on the term of eight years. In respect of the other offence, Quail P sentenced the respondent to a term of imprisonment of eight months to be served concurrently with the eight year term.
On 13 September 2024 Magistrate Sullivan in the Children's Court sentenced the respondent to a term of imprisonment of three 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 sentence of three months was ordered to be served concurrently with the term of eight years.
On 23 May 2025 Hughes DCJ in the Children's Court sentenced the respondent to a term of imprisonment of three months in respect of an offence of sexual penetration of a child under 13 years of age. The sentence of three months was backdated to commence on 17 February 2025.
Sexually offending against a child under the age of 13, against a child over the age of 13 and under the age of 16, or against a child who the offender knows is his lineal relative or a de facto child is a 'serious offence' within the meaning of the High Risk Serious Offenders Act.[7] All of the offences summarised at [2] to [7] above constitute serious offences within the meaning of the High Risk Serious Offenders Act.
[7] High Risk Serious Offenders Act s 3, s 5 and sch 1 div 1, sub-div 3 items 16, 17 and 25.
The State's application was listed for a preliminary hearing on 31 January 2025, at which it was established that there were reasonable grounds for then believing that the court might later find the respondent to be a high risk serious offender within the meaning of the High Risk Serious Offenders Act. For the reasons delivered by Lemonis J on 7 February 2025, the respondent was made the subject of an interim detention order pursuant to s 46(2)(c)(i) of the High Risk Serious Offenders Act pending the final determination of the State's application: The State of Western Australia v DR [2025] WASC 34.[8] Programming orders were also made under s 46(2)(a) and s 74 of the High Risk Serious Offenders Act requiring the respondent to undergo examination by two qualified experts, a psychiatrist and a psychologist.[9] Such orders were made to facilitate the preparation of reports to be used at the hearing of the restriction order application in circumstances where the court must have regard to such reports in determining the State's application by operation of s 7(3)(a) of the High Risk Serious Offenders Act.
[8] Interim detention order of Lemonis J made on 31 January 2025.
[9] Order 2 of the orders made by Lemonis J on 31 January 2025.
The State's application was heard on 24 July 2025, at the conclusion of which I reserved my decision to 29 July 2025. On 29 July 2025, before reasons for decision were delivered, the State applied to re‑open and lead additional evidence concerning the accommodation available to the respondent. After additional evidence was led, the State's application was adjourned part‑heard to 16 September 2025. Further, the Department of Justice was ordered to provide an accommodation update report by 2 September 2025; and it was also ordered that after conferral, the parties were to provide a written summary of the parties' respective positions to the Court by 9 September 2025, together with any supplementary submissions intended to be relied upon at the hearing.
In summary, at the hearing of the restriction order application on 24 July 2025, and after further evidence was adduced on 29 July 2025 and 16 September 2025, the State maintained that the respondent was a high risk serious offender within the meaning of the High Risk Serious Offenders Act. Further, if the court were to so find and if the respondent were able to secure suitable accommodation, then it was the State's position that it would not oppose the making of a supervision order. However, as there was no suitable accommodation available, the State advocated for the making of a continuing detention order under s 48(1)(a) of the High Risk Serious Offenders Act.
The respondent was represented by counsel at the hearing of the restriction order application. It was accepted on behalf of the respondent that on the evidence before the court it was open to the court to find the respondent to be a high risk serious offender within the meaning of the High Risk Serious Offenders Act. No submission was made in opposition to such a finding, and while the making of a continuing detention order was not consented to or accepted as being the appropriate form of order, it was not submitted that the making of a supervision order (in circumstances where there was no suitable accommodation) would adequately protect the community.
For the reasons that follow, I was satisfied by acceptable and cogent evidence and to a high degree of probability, that it was necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that the respondent will commit a serious offence. Further, to ensure the adequate protection of the community, the respondent must be made subject to a continuing detention order under s 48(1)(a) of the High Risk Serious Offenders Act.
Statutory framework and legal principles
There was no controversy as to the statutory framework or legal principles to be applied in the determination of the State's application. As to these matters, the State relied upon its written outline of submissions filed in advance of the hearing, from which parts of the following overview is drawn.[10]
[10] State's outline of submissions filed on 4 July 2025, pars 13 - 44.
The State may make an application for a restriction order where a person is a serious offender under custodial sentence pursuant to s 35 of the High Risk Serious Offenders Act. The term 'serious offender under custodial sentence' is defined in s 3 of the High Risk Serious Offenders Act, and at the time the State's application was made, the respondent was serving a term of imprisonment for a 'serious offence' as defined in the High Risk Serious Offenders Act.
The objects of the High Risk Serious Offenders Act as outlined in s 8 are:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.
Section 7(1) of the High Risk Serious Offenders Act provides that an offender is a 'high risk serious offender' if the court dealing with an application under the High Risk Serious Offenders Act finds that it is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that the person will commit a serious offence. The State has the onus of satisfying the court that an offender is a high risk serious offender.[11]
[11] High Risk Serious Offenders Act s 7(2).
In the High Risk Serious Offenders Act, a 'restriction order' means a continuing detention order or a supervision order.[12] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. A supervision order is an order that the offender, when not in custody, is to be subject to conditions in accordance with s 30 of the High Risk Serious Offenders Act.
[12] High Risk Serious Offenders Act s 3.
A 'serious offence' is an offence that is specified in sch 1 div 1 of the High Risk Serious Offenders Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[13] Schedule 1 comprises a list of serious violent and sexual offences, the majority of which attract a maximum penalty of imprisonment of seven years or more.
[13] High Risk Serious Offenders Act s 3, s 5(1) and s 5(2).
In considering whether it is satisfied of the matters in s 7(1), the court must have regard to the following matters listed in s 7(3) of the High Risk Serious Offenders Act:
(a)any report prepared under s 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; and
(j)any other relevant matter.
The matters set out in paragraphs (h) and (i) above are conclusions or findings based on s 7(3)(a) ‑ (g) and (j) of the High Risk Serious Offenders Act.
In considering whether it is satisfied as required by s 7(1), the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[14]
[14] High Risk Serious Offenders Act s 7(4).
Section 48(1) of the High Risk Serious Offenders Act provides that if the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make in relation to the offender a continuing detention order, or a supervision order (except as provided in s 29, which section is reproduced below). In deciding whether to make a detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[15]
[15] High Risk Serious Offenders Act s 48(2).
The powers conferred by the High Risk Serious Offenders Act, like the now‑repealed Dangerous Sexual Offenders Act2006 (WA), are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[16] This requires the court to choose the order that is the least invasive or destructive of the offender's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[17] The requirement in s 48(2) of the High Risk Serious Offenders Act does not exclude other considerations.[18]
[16] High Risk Serious Offenders Act s 48(2).
[17] The State of Western Australia v Latimer [2006] WASC 235 [49].
[18] The State of Western Australia v ACJ [2021] WASC 219 [32].
The High Risk Serious Offenders Act, like the Dangerous Sexual Offenders Act, does not require that there be no risk of reoffending. Rather, the issue is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[19] As further discussed below, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[20]
[19] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57].
[20] The State of Western Australia v ACJ [32], citing Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
Section 29 of the High Risk Serious Offenders Act limits a court's power to make a supervision order by providing as follows:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3) This section does not apply to the making of an interim supervision order.
Accordingly, the issues the court must decide on the application are as follows:
(a)Is the respondent a high risk serious offender within the meaning of s 7 of the High Risk Serious Offenders Act?
(b)If so, should the court make an order that the respondent be detained in custody for an indefinite term of control, care or treatment (a continuing detention order), or should the respondent be released to the community subject to conditions that the court considers appropriate (a supervision order)?
Evaluative judgments
As to the first issue, s 7(1) of the High Risk Serious Offenders Act was considered by Corboy J in The State of Western Australia v Garlett [2021] WASC 387. His Honour preferred an interpretation of the section (read with s 48) that requires that the court assess two separate matters.[21] First, whether a risk that an offender will commit a serious offence is unacceptable; and secondly, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence. That is, s 7(1) involves two evaluative judgments, and 'necessity' and 'adequacy' involve evaluative assessments.
[21] See also The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [18] ‑ [22]; The State of Western Australia v Nelson [2021] WASC 460 [12] ‑ [15]; The State of Western Australia v MAM [2022] WASC 100 [18].
The word 'unacceptable' might carry a meaning similar to that suggested by French CJ in Condon v Pompano Pty Ltd (2013) 252 CLR 38, that is, a risk that is not trivial or transient.[22] Further, the factors identified by Wheeler JA in Director of Public Prosecutions (WA) v Williams, and Buss JA in Italiano v The State of Western Australia [2009] WASCA 116, and the balancing exercise to which their Honours referred, would be most relevant to the determination of whether it was necessary to make a restriction order to adequately protect the community.[23]
[22] The State of Western Australia v Garlett [136(b)], [126].
[23] The State of Western Australia v Garlett [136(b)].
As was noted on behalf of the State in the submissions filed in advance of the hearing of its application,[24] the High Risk Serious Offenders Act was considered by the High Court in Garlett v Western Australia (2022) 277 CLR 1, which concerned a constitutional challenge to the High Risk Serious Offenders Act insofar as its provisions apply to a person who has been convicted of the offence of robbery (s 392 of the Criminal Code).[25]
[24] State's outline of submissions filed on 4 July 2025, par 23.
[25] Garlett v The State of Western Australia [6] - [7].
The Garlett v Western Australia joint judgment of Kiefel CJ, Keane and Steward JJ, and the separate judgment of Edelman J, specifically addressed in detail the application of s 7 and s 48 of the High Risk Serious Offenders Act.
Kiefel CJ, Keane and Steward JJ observed at [67] that:
[The] evaluative task required of the Court under ss 7 and 48 of the HRSO Act is difficult. But its difficulty should not be exaggerated.
In respect of the concepts of 'unacceptable risk' and 'necessary to make a restriction order' contained within s 7 of the High Risk Serious Offenders Act, Kiefel CJ, Keane and Steward JJ said at [73]:[26]
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 harm said to be in prospect. Further, whether a restriction order is 'necessary' to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community. The Court is required to perform this evaluative exercise and come to its own determination as to whether to make a restriction order; it does not automatically follow from the inclusion of an offence in Sch 1 that a restriction order must be made. (footnote omitted)
[26] See also the discussion in The State of Western Australia v Williams [No 2] [2024] WASC 215 [39] ‑ [40], reproduced at [46] of these reasons.
Kiefel CJ, Keane and Steward JJ explained at [84]:
[It] is always for the Court to determine whether there is an 'unacceptable risk' that the offender will commit such an offence, having regard to the evidence as to the nature of the offending and the circumstances of the offender. Importantly, the evaluative exercise contemplated by s 7 of the HRSO Act is not an exercise involving the notional ordering in the abstract of the relative culpability of categories of offences. Rather, s 7 contemplates a practical evaluation concerned with the circumstances of the particular offending and the particular offender. 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)
Kiefel CJ, Keane and Steward JJ endorsed the approach of Derrick J in The State of Western Australia v Patrick [No 5] [2022] WASC 61 that the 'scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community'.
Kiefel CJ, Keane and Steward JJ also observed that the point made by Derrick J is similar to the point made in the following passage from the joint judgment in Minister for Home Affairs v Benbrika (2021) 272 CLR 68 at [46] ‑ [47]:[27]
It is difficult to envisage any circumstances in which a continuing detention order would be made to prevent the risk of the commission of a serious … offence where that offence is of a kind that could not be seen to pose a real threat of harm to the community.
…
Correctly understood, a continuing detention order could not properly be made by a Court … in a case where the only risk of offending identified by the authorities did not carry a threat of harm to members of the community that was sufficiently serious in the assessment of the Court as to make the risk of the commission of the offence 'unacceptable' to that Court.
[27] Garlett v Western Australia [86].
As was also noted on behalf of the State, Edelman J in Garlett v Western Australia interpreted the relevant provisions of the High Risk Serious Offenders Act as encompassing five stages.
The first stage is that the State must identify the serious offence(s) which the offender is at risk of committing. His Honour explained at [219]:
Since the Court must assess the risk that the offender will commit 'a serious offence', the application must specify the serious offence within Sch 1 to the HRSO Act which the State alleges there is an unacceptable risk that the offender will commit. (footnote omitted)
The second stage is to assess the level of the risk (that is, the probability of the commission of the specified serious offence).[28] In relation to the concept of 'unacceptable', his Honour said at [220]:
The open-textured criterion of 'unacceptable', similar to criteria such as 'oppressive', 'unreasonable', or 'unjust', is so closely associated with notions of the 'adequate' protection of the community and the 'necessity' of the restriction order that it is best addressed at the third stage. The second stage can therefore be limited to an assessment of the level of risk that the offender will commit the specified serious offence. (footnote omitted)
[28] Garlett v Western Australia [220], [227].
In respect of expert evidence directed to the assessment of risk, Edelman J said at [224]:
The expert evidence can be taken into account cautiously, but the level of the risk is ultimately a question for the judge, based upon all the evidence and all the factors in 7(3). (footnotes omitted)
In respect of the third stage, his Honour said at [226] - [227]:
The requirements that the risk be 'unacceptable', and that the restriction order be 'necessary' to ensure 'adequate' protection of the community direct attention to whether the identified risk to the community can be tolerated. That assessment must be made in light of the whole of the burden which would be placed upon the liberty of the offender by the making of a restriction order, including any standard supervision order conditions.
Section 7 thus requires balancing, on the one hand, the level of the risk identified at the second stage (that is, the probability of the commission of the specified serious offence) together with the magnitude of the harm associated with that risk with, on the other hand, the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed. (footnotes omitted)
The fourth stage identified by his Honour was directed to the type of restriction order which should be made if the court finds the offender is a high risk serious offender.[29]
[29] Garlett v Western Australia [229] - [234].
The fifth stage was directed to the review processes provided for by the High Risk Serious Offenders Act where the offender is placed on a continuing detention order.[30]
[30] Garlett v Western Australia [235] - [237].
As was also highlighted on behalf of the State, in The State of Western Australia v Blurton [No 4] [2025] WASC 139 Lemonis J found there was no material difference between the balancing exercise which Edelman J spoke of in the passages reproduced above and the approach explained in the joint judgment.[31]
[31] The State of Western Australia v Blurton [No 4] [30].
Further, it is important to note that it is not sufficient that there is a risk that the offender will commit a serious offence. Rather, the risk to which s 7(1) and s 48 is directed is 'the risk of further offending [that] involves a real threat of harm to the community'.[32]
[32] The State of Western Australia v Williams [No 2] [30].
In The State of Western Australia v Williams [No 2] at [39] ‑ [40], Lemonis J made the following observations regarding the application of the High Risk Serious Offenders Act, having regard to the passages in Garlett v Western Australia set out above:
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)
The evaluative element introduced by the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' was identified by Corboy J in The State of Western Australia v Garlett at [135].
The effect is to make clear the possibility that the court might find that it is not necessary to make a restriction order to adequately protect the community notwithstanding that it has found that the risk of future offending is unacceptable.[33] As articulated by Quinlan CJ in The State of Western Australia v D'Rozario [No 3], no doubt such a situation would be rare.[34]
[33] The State of Western Australia v D'Rozario [No 3] [21]; The State of Western Australia v Garlett [136(d)].
[34] The State of Western Australia v D'Rozario [No 3] [21].
Following a finding that a respondent is a high risk serious offender, the court must either make either a continuing detention order, or subject to s 29 of the High Risk Serious Offenders Act, a supervision order.[35]
[35] High Risk Serious Offenders Act s 48(1).
In respect of the type of order that should be made if the court is satisfied the offender is a high risk serious offender, the joint judgment in Garlett v Western Australia quoted with approval the following additional observations of Fiannaca J in The State of Western Australia v ACJ [2021] WASC 219:[36]
The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2). As was decided in respect of s 17(2) of the [Dangerous Sexual Offenders Act 2006 (WA)], that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order. (footnotes omitted)
[36] Garlett v Western Australia [106], The State of Western Australia v ACJ [32].
The concepts and criteria with which the court is concerned in determining an application are substantially the same under both the now repealed Dangerous Sexual Offenders Act and the High Risk Serious Offenders Act, and the jurisprudence established under the now repealed Dangerous Sexual Offenders Act remains relevant, as noted by Martin CJ in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 at [5] and conveniently set out by Corboy J in The State of Western Australia v West [2013] WASC 14 at [52].
I accept the State's submission that the court should also have regard to the following further matter of principle from Director of Public Prosecutions (WA) v Williams at [86]:
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2)[of the Dangerous Sexual Offenders Act], it would have been necessary for him to have made a continuing detention order.
Evidence
At the hearing of this application, I received into evidence a book of materials in two volumes tendered on behalf of the State. The first was dated 6 June 2025 and the second was dated 4 July 2025.[37]
[37] Exhibits A and B, respectively.
The first volume contained a copy of the respondent's criminal record in Western Australia and two sentence summary reports dated 3 February 2025 and 4 June 2025; a chronology of the respondent's offending in the period 2003 to 2016 prepared by the State Solicitor's Office; various Department of Justice prison records including history of charges, incidents, placements and substance use test results; individual management plans; the interim detention order made by Lemonis J on 31 January 2025; the reasons for decision delivered by Lemonis J on 7 February 2025 at the conclusion of the preliminary hearing: The State of Western Australia v DR; various documents which concern the respondent's offending history for offences defined as 'serious offences' under the High Risk Serious Offenders Act; and various pre sentence and post sentence reports and materials, which include a copy of a Family Violence Restraining Order made on 23 May 2025, which binds the respondent for a period of 10 years.
The second volume contained further materials provided by the Department of Justice including a pre sentence report, an affidavit of Heather Aplin affirmed on 31 December 2024 and an affidavit of Amy Sykes affirmed on 22 January 2025; and reports and assessments prepared for this hearing.
The State also tendered two sentencing transcripts, the first being a sentencing transcript concerning the respondent before a Magistrate of the Children's Court on 10 April 2025; and the second being a sentencing transcript concerning the respondent before a Judge of the Children's Court on 23 May 2025.[38]
[38] Exhibits C and D, respectively.
The State called the following four witnesses on 24 July 2025, who on that date were cross‑examined (with the exception of Ms Goode):
(a)Dr Gosia Eva Wojnarowska, a forensic consultant psychiatrist and author of the psychiatric report dated 24 June 2025;
(b)Dr Tara Yewers, a counselling psychologist and author of the report dated 9 June 2025;
(c)Nicole Bennetts, a senior community corrections officer within the Community Offender Monitoring Unit and author of and one of the four signatories to a community supervision assessment report dated 3 July 2025; and
(d)Aimee Stacey Elise Goode, a team leader within the Community Offender Monitoring Unit and one of the four signatories to the community supervision assessment report dated 3 July 2025 authored by Ms Bennetts.
At the hearing on 29 July 2025 an email from Ms Goode sent to counsel for the State on that date concerning accommodation was tendered.[39] Ms Goode was also recalled to give evidence and was cross‑examined.
[39] Exhibit E.
On 16 September 2025 the State tendered an update community supervision assessment report which was dated 2 September 2025, authored by Ms Bennetts, and endorsed by Ms Goode and Sarah Turner in her capacity as the Acting Director of the Community Offender Monitoring Unit.[40]
[40] Exhibit F, which report was prepared and provided pursuant to order 2 of the orders made on 29 July 2025.
While the respondent elected not to give evidence, various documents were tendered into evidence on his behalf, being a support letter written in 2022 in favour of the respondent by a Vocational Skills Officer at Casuarina Prison and Bunbury Regional Prison; various training accreditations and certificates; and an offer of a contract of employment as a boilermaker trade assistant made to the respondent in about 2023.[41]
[41] Exhibits R1 and R2, respectively.
The findings made and recorded here therefore were grounded upon the documentary evidence, including the reports received, and the evidence and cross‑examination of the State's witnesses.
The orders made by Lemonis J on 31 January 2025 included an order that at the hearing of the restriction order application, the reports provided by the experts shall stand as the evidence in chief of the experts and no further evidence in chief may be adduced without leave of the court.[42] For completeness I note that at the hearing of the application, the State sought and was granted leave to adduce further evidence in chief from Dr Wojnarowska and Dr Yewers with no objection from the respondent.[43]
[42] Order 8 of the orders made by Lemonis J on 31 January 2025.
[43] ts 22 (24 July 2025).
Antecedents and criminal history - s 7(3)(g)
I now turn to the matters relevant to determining whether or not the respondent is a high risk serious offender pursuant to s 7 of the High Risk Serious Offenders Act. In deciding whether a person is a high risk serious offender, the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the High Risk Serious Offenders Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.[44]
[44] As observed by McGrath J in The State of Western Australia v Nelson [33].
The antecedents and criminal record are relevant in and of themselves, and to whether the person has a propensity to commit serious offences in the future. They are also relevant as to whether there is any pattern of offending behaviour.[45] It was therefore convenient to consider first the respondent's antecedents and criminal record as required by s 7(3)(g).
Childhood and personal life
[45] Again, as observed by McGrath J in The State of Western Australia v Nelson [34], referring to the High Risk Serious Offenders Act s 7(3)(c) and s 7(3)(d).
The respondent is a 36 year old Indigenous Australian male. He informed Dr Yewers that he is the older of two children born to his biological parents and that he has eight half‑siblings from his father's other relationships. The respondent grew up in Bunbury. The respondent's parents reportedly separated when he was two years old due to his father's drug abuse and violence towards his mother, after which he was primarily raised by his mother. While he reported to Dr Wojnarowska that he had no conscious memory of his father's violence towards his mother, he reported that he remembered his father's drug use and aggressive criminal behaviour when he would visit his father.
The respondent's mother had further relationships, some of which were abusive. The respondent divulged to Dr Yewers that when he was eight years old and resided with his mother and her then partner, his mother's partner repeatedly sexually assaulted him for most of the two years. The respondent reported the same to Dr Wojnarowska but reported that it occurred from the age of 11 to 13. The respondent also reported that his childhood was happy until he had been abused.
The respondent's contact with his biological father was reportedly inconsistent over the course of his childhood, but the visits with his father led to the respondent growing close with his paternal grandparents. The respondent reported to Dr Yewers that he observed recurrent violence by his father towards his father's partners. He also reported to Dr Yewers that his father served a term of imprisonment for domestic violence offences.
As to current familial relationships, the respondent reported he no longer has any contact with immediate family members aside from his paternal grandparents. The respondent reported that he regularly had phone contact with his grandparents; that while his mother had initially visited regularly, the visits waned due to a recurrence of cancer and a desire (on her part) to rebuild relationships with other family members; that he had not had contact with his father for over six years; and that the respondent had had no contact with his sister or half‑siblings.
Employment and education
Dr Yewers recorded that the respondent described an unremarkable primary school education. The respondent reported that he had enjoyed his schooling, was academically average and did not have any behavioural or disciplinary issues until high school which experience he described as fraught. He informed Dr Yewers that he was frequently truant, sold drugs at school, was suspended for swearing and was often involved in fighting (though he noted that this was to protect those who were victimised). The respondent's peers were reportedly also truant and involved in drug use.
The respondent left school after completing year 10 and undertook a welding/boiler maker apprenticeship for two years that he was unable to complete because the overseeing organisation closed.
As to employment, the respondent reported that up to the age of 22 he was employed to build retaining walls which he enjoyed, and when no further work was available, he moved into fencing and roof tiling until work availability again waned. From the age of 22 until his incarceration in 2016, the respondent cultivated cannabis and sold drugs to financially support himself and his family.
Alcohol and substance abuse
The respondent reported using alcohol from the age of 13. He recalled an incident at age 15 where he drank to the point of blacking out and later discovered he had destroyed the property of others. The respondent reflected that he found this disturbing and reported a reduction in his alcohol intake thereafter.
As to substance use, the respondent reported to Dr Yewers that he first used cannabis when he was 11 years old; that by the time he reached the age of 13, he was using the substance on a near daily basis; and that his cannabis use was heavy and consistent until he was imprisoned in 2016. He reported to Dr Wojnarowska that by year 10, he had tried many different illicit drugs such as ecstasy, speed, magic mushrooms, pills and tetrahydrocannabinol (the main psychoactive component in cannabis).
The respondent reported to Dr Yewers that he began using amphetamine and methamphetamine around the age of 18 when he started building retaining walls; that over time his use went from once or twice per month to several times per week; that he infrequently used other drugs such as dexamphetamine and ecstasy; and that his substance use ceased upon imprisonment.
Dr Yewers reported that the respondent articulated his reasons for drug use as deriving some enjoyment from it, and equally to relieve stress, calm social anxiety and elude memories related to his childhood trauma. Dr Yewers noted that collateral information available to her reported that the respondent's drug use was in part a mechanism to suppress memories of sexual abuse and to cope with stress.[46]
Relationships
Sexual development
[46] Exhibit A, book of materials vol 1, pages 190 - 191 (Pathways Program Completion Report dated 21 November 2018, pages 3 - 4), page 195 (Medium Sex Offender Treatment Program Completion Report dated 26 September 2019, page 2) and page 205 (Psychological report of S Jobson dated 23 February 2021, par 8).
The respondent reported to Dr Wojnarowska that he learned about sex from the sexual assault he experienced, and from magazines and movies.
The respondent described to Dr Yewers that his sex drive had been high since he was an adolescent, and he described numerous short term relationships between the ages of 14 and 18. He informed Dr Yewers that from the age of 13, he masturbated daily, which reduced to four or five times per week during his twenties as he had less free time when working and raising children. He further informed Dr Yewers that he frequently thought about sex, looked at pornography and reflected that he was more likely to do so if bored or if he did not have anything to do.
The respondent expressed to Dr Yewers that his sexual preference is for adult females and acknowledged a sexual interest in children. He further divulged previous sexual fantasies involving children and masturbating to the same, and he expressed he had long been disturbed by these sexual thoughts. He reflected that this made him resort to substance use, which 'blocked off rational thinking'.
The respondent described his current sex drive to Dr Yewers as moderated, presently masturbating three or four times per week due to limited opportunity. The respondent expressed that he was uncertain as to how often sexual thoughts about children arose but that it was infrequent; that he had learned the importance of not masturbating to fantasies about children, having participated in the sexual offender program; that he now replaced sexual thoughts of children with adult fantasies, which he has found helpful; and that he now feels sick to his stomach because he has a clearer understanding of the impact of his offences on victims, and of the parallels between his behaviour and his own traumatic experiences.
Past relationships
The respondent gave Dr Yewers an overview of his past relationships. He described his first significant relationship when he was aged 18 to 20 as volatile and dysfunctional. The respondent reported that this first partner was a heavy drug user and physically violent towards him; that he did not reciprocate the physical violence towards her; and that he ended the relationship.
The respondent described his second significant relationship, which commenced when he was 20 years old and spanned about seven years, as respectful, loving and stable. He reported that he and his partner had four children (three daughters and a son), who are currently aged between 10 and 14 years of age. Dr Yewers recorded that collateral information available to her had further recorded that there had been a high level of sexual activity in this relationship, the presence of sexual preoccupation and the use of sex to cope with distress.[47] The relationship reportedly ended in 2016 when the respondent was imprisoned for sexual offences. The respondent reported to Dr Wojnarowska that he had had 'frequent and fulfilling sex' with this former partner and that he could not understand why he had started to sexually offend. The respondent also reported that this former partner had increased his sexual preoccupation by bringing him pornographic material.
[47] Exhibit A, book of materials vol 1, page 114 (Psychological report of S Jobson dated 21 July 2017, par 10).
While the respondent and his former partner continued to have contact for several years after the respondent was imprisoned, his former partner had formally applied for full custody of their children and had obtained a restraining order against the respondent to prevent contact. The respondent informed Dr Yewers that he continued to have strong feelings for his former partner but had accepted that their relationship was finished and that he could not have contact with his children. Dr Wojnarowska recorded that the respondent was somewhat unrealistic in his expectations that his relationship with his former partner could be resurrected, and at the hearing of the State's application, clarified that the respondent had not expressed any immediate plans to re‑connect with his former partner, instead that it was perhaps the respondent's fantasy for a possibility in the future.[48]
[48] ts 36 (24 July 2025).
The respondent stated that his plans were to establish a functional and prosocial life in case his children were to choose to contact him in the future, and to work towards obtaining financial assets that could be given to his children as inheritance.
The respondent reported to Dr Yewers that he was not currently in a relationship and not interested in commencing one.
Criminal record - serious offences and other relevant offences
The respondent has an extensive criminal history, with convictions recorded under the Criminal Code, the Road Traffic Act 1974 (WA), the Misuse of Drugs Act 1981 (WA), and the now‑repealed Firearms Act 1973 (WA).
For the purpose of the restriction order hearing, the State prepared a chronology of the respondent's offending (identifying in red 'serious offences' under the High Risk Serious Offenders Act). The chronology included the date and nature of each offence; a high level summary of the material facts for each offence; the date of outcome; and the outcome or sentence imposed.
As to the 'index' offending for the purposes of this application (that is, offending for which the respondent was serving a term of imprisonment for a 'serious offence' as defined in the High Risk Serious Offenders Act at the time the State's application was made), I understand as follows:
(a)on 28 August 2017 after the respondent entered pleas of guilty on 17 counts, the respondent was convicted of:
(i)eight counts of indecent dealings with a child under the age of 13;
(ii)one count of indecently dealing with a child over the age of 13 and under the age of 16;
(iii)three counts of indecently dealing with a child who the offender knows is his lineal relative or a de facto child;
(iv)four counts of sexual penetration of a child who the respondent knows is his lineal relative or a de facto child; and
(v)one count of sexual penetration of a child who is under the age of 13;
(b)on 12 March 2021 after the respondent entered pleas of guilty on two counts, the respondent was convicted of two counts of sexual penetration of a child under 13 years of age; and
(c)on 13 September 2024 after the respondent entered a plea of guilty on two counts, the respondent was convicted of one count of sexual penetration of a child under 13 years of age, and one count of sexual penetration of a child over 13 years of age and under 16 years of age.
As to the 'index' offending, there were eight different victims. The offences described above at [87(a)(i)], [87(a)(ii)] and [87(a)(v)] were committed against the sister of the respondent's former partner, who was between nine and 15 years of age during the period the offending occurred. The offences described above at [87(a)(iii)] were committed against the respondent's two half-sisters, one of whom was nine or 10 years of age at the time of the offending, and the other half‑sister was four or five years of age. The offences described above at [87(a)(iv)] were committed against the respondent's two biological daughters, one of whom was five and six years of age during the period the offending occurred, and the other biological daughter was between two and three years of age. The offences described above at [87(b)] were committed against the respondent's stepbrother, who was eight years of age when the offending occured and the respondent was around 16 years of age. The offences described above at [87(c)] were committed against the respondent's two half‑sisters, one of whom was 13 years of age when the offending occurred, the other half‑sister was 12 years of age, and the respondent was 14 and 15 years of age.
The facts of the charges upon which the respondent was convicted and for which he was sentenced were outlined in various tendered documents including in the amended statement of material facts provided by the State,[49] and in the sentencing transcripts of 28 August 2017, 12 March 2021 and 13 September 2024.[50]
[49] Exhibit A, book of materials vol 1, pages 103 - 111 (Statement of material facts).
[50] Exhibit A, book of materials vol 1, pages 123 - 150 (Transcript, District Court ts 6 - 11, 18 - 20 (28 August 2017)), pages 160 - 171 (Transcript, District Court ts 2 - 3 (13 September 2024)) and pages 178 - 183 (Transcript, Children's Court sentencing ts 179 (12 March 2021)).
No concern was raised on behalf of the respondent as to the accuracy or adequacy of reports tendered by the State, including the information reproduced in the chronology. In determining this application, I had regard to the primary documents reproduced in the first volume of the book of materials concerning the respondent's offending, the two transcripts from the Children's Court tendered by the State,[51] and to the State's chronology.
Prison behaviour
[51] Exhibits C and D.
The respondent acknowledged one fight early in his sentence as a result of other prisoners targeting him over his convictions.[52]
[52] Exhibit B, book of materials vol 2, page 285 (Dr Yewers' psychological report dated 9 June 2025, par 95).
The respondent had been subject to several substance tests with one positive test to cannabis on 19 November 2016,[53] which is consistent with his self‑report of ceasing use of all substances during incarceration following the period taken to eliminate cannabis from his system.
[53] Exhibit B, book of materials vol 2, pages 285 - 286 (Dr Yewers' psychological report dated 9 June 2025, par 96).
Ms Bennetts recorded that the respondent returned a negative result to alcohol on 13 June 2025 and returned a negative result to all tested illicit substances on 17 December 2024.
In an undated support letter (which all parties accepted was written in 2022),[54] a Vocational Skills Officer at Casuarina and Bunbury Regional Prison described the respondent as the most outstanding and loyal worker she had ever employed; commended the skills the respondent had achieved as a credit to him; observed that the respondent had made progress and shown a considerable amount of change and maturity in the prior 12 months, after observing for over three years that the respondent jumped straight into things without thinking (which she took as the respondent lacking maturity or guidance); and commented on how hard the respondent had worked towards being trusted in the community, and how hard the respondent had worked towards a better and stable life.
[54] ts 26 (24 July 2025).
The respondent had not received any charges over the course of his imprisonment and was documented to be a polite and respectful prisoner with positive reports of his work ethic. Dr Wojnarowska noted that the respondent was employed as a level 1 grounds worker and that one of his supervisors had described him as the best prisoner or worker he had ever dealt with, reporting that the respondent was always polite, willing to assist and punctual.
Responses to supervision
The respondent was subject to one period of community supervision that expired in 2011 which he completed satisfactorily.
Ms Bennetts drew upon Departmental records to note that during this period of community supervision the respondent generally reported for supervision, appeared to have stable accommodation in the community, and had maintained a positive relationship with his partner at the time. Ms Bennetts also recorded that Departmental records revealed that the respondent had been absent from community work and supervision without reasonable excuse which had resulted in the initiation of breach action and further, that the respondent reportedly committed traffic‑related offences within two weeks of the imposition of the order.[55] There was however no charges that flowed from that breach initiated action.[56]
[55] Exhibit B, book of materials vol 2, pages 306 - 307 (N Bennetts' community supervision assessment dated 3 July 2025, pages 5 - 6); ts 48 - 49, 62 - 63 (24 July 2025).
[56] ts 63 (24 July 2025).
Propensity to commit serious offences in the future - s 7(3)(c)
The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law, that is, to have an inclination or tendency to do something.[57] In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 at [178], in the context of an application made under the Dangerous Sexual Offenders Act, Murray AJA stated that:
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[57] The State of Western Australia v Bellamy [2013] WASC 467 [70].
As was observed on behalf of the State, s 7(3)(c) of the High Risk Serious Offenders Act refers to 'serious offences' and not, for example, a propensity to offend generally or even a propensity for violence (not all violent offences being serious offences under the High Risk Serious Offenders Act).[58]
[58] State's submissions filed 4 July 2025, par 92, citing The State of Western Australia v Ryan [No 2] [2021] WASC 38 [73].
I accepted the State's submission that in having regard to the respondent's extensive offending history, the respondent has a propensity to commit serious sexual offences against young children when in a position of trust in an intrafamilial setting (which has included his biological children and his siblings).[59]
[59] State's submissions filed 4 July 2025, par 96.
Further, common features of his offending appear to be the vulnerability of his victims; the breach of trust; the persistent and repeated offending against the same victim over an extended period of time; the location where the offending occurred (which was typically the family home or when he was alone with a child in a car); and the age difference between himself and his victims (the difference increasing in his later offending).[60]
[60] State's submission filed 4 July 2025, par 98; Exhibit A, book of materials vol 1, pages 141 - 142 (Transcript, District Court ts 19 - 20 (28 August 2017)).
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
'Pattern', as it pertains to behaviour, is defined in the Macquarie Dictionary as a recurrent way of acting by an individual or group towards a given object or in a given situation.
I considered there to be a clear pattern to the respondent's offending behaviour, in that the respondent's conduct revealed he abused the position of trust he had over young children in an intrafamilial setting, engaged in grooming behaviours, and took advantage of the proximity and/or time alone with these young children to engage them in sexual acts.
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(e) and s 7(3)(f)
I was required to consider if the respondent had made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs, and whether or not such participation had had a positive effect.
Dr Yewers reported that the respondent had undertaken group‑based treatment programs that targeted criminogenic needs concerning drug use and sexual offending, and that the respondent had engaged in individual counselling to address personal issues concerning trauma and victimisation. This included four months of individual counselling in 2017 following his 'emotional breakdown' resulting in the disclosure of his own sexual victimisation as a child; a 100 hour Pathways program in 2018 targeting substance use problems; a Medium Sex Offender Treatment Program in 2019; and three to four sessions of individual counselling in 2025 (based on information current as at the date of Dr Yewers' report) addressing his trauma experiences.
Pathways program
Among other things, Dr Yewers noted with respect to the completion of the Pathways program in 2018 that the respondent had been described as a very quiet participant who completed all work to a high standard; that by the end of the program, the respondent was considered to have made substantial gains in relation to his substance use, emotional regulation and antisocial thinking; that the respondent demonstrated a high level of understanding of the program's content and concepts and was able to apply these to his own circumstances; and that the respondent had developed a relapse prevention plan which included counselling, employment, constructive activities and distancing from antisocial peers.
Dr Wojnarowska noted that it had been recommended that the respondent engage in individual psychological counselling in the community to address the history of trauma and other unmet treatment needs. It was also noted in the Pathways Program completion report that the respondent would benefit from continued supervision in the community as he worked towards implementing the changes and strategies he had identified during the program.[61]
Medium Sex Offender Treatment program
[61] Exhibit A, book of materials vol 1, page 193 (Pathways Program completion report dated 21 November 2018, page 6).
Dr Yewers also noted with respect to the completion of the Medium Sex Offender Treatment Program in 2019 that it had been identified that the respondent's treatment needs were in the areas of relationship difficulties, self-regulation problems and sexual issues (including sexual deviance and sexual preoccupation as a form of coping, emotional identification with children and confusing sex with intimacy). The facilitators reportedly noted that due to the program's structure, the respondent's treatment needs concerning his deviant sexual interests, sexual preoccupation, and emotional identification with children were only briefly addressed and therefore had been highlighted as outstanding treatment needs.
By the end of the program, the respondent was said to have met most program objectives, made adequate treatment gains, and acquired a greater understanding of the factors that contributed to his sexual offending. While he demonstrated improved skills in areas of open communication, emotional management and relationship building, the respondent was reported to require further support and intervention as to deviant sexual interests, substance use, relationship skills, self‑worth, emotional regulation, expansion of his repertoire of coping skills, and childhood trauma. It was also noted that the respondent may benefit from further counselling in these areas.[62]
[62] Exhibit A, book of materials vol 1, page 201 (Medium Sex Offender Treatment Program completion report dated 26 September 2019, page 8).
Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)
Dr Wojnarowska and Dr Yewers each examined the respondent and prepared independent reports as required by s 74(1) of the High Risk Serious Offenders Act.
Section 74(2) of the High Risk Serious Offenders Act required that the reports prepared by Dr Wojnarowska and Dr Yewers indicate their respective assessment of the level of risk that, without a restriction order, the respondent will commit a serious offence, and the reasons for their assessment. Section 74(3) of the High Risk Serious Offenders Act required Dr Wojnarowska and Dr Yewers to have regard to any medical, psychiatric, prison or other relevant report or information relating to the respondent that is in the possession of the Chief Executive Officer of the Department of Justice, or to which the Chief Executive Officer has, or may be given, access, in preparing their reports.
As to the extent to which the respondent cooperated with the examinations, Dr Wojnarowska reported that the respondent was polite, engaged well with the interview process, and that he answered all questions asked of him and appeared to do so openly and honestly, with minimal contradiction. Dr Yewers also reported that the respondent was polite and cooperative throughout the assessment process.
As required by s 7(3)(a), I had regard to each of the reports in the disposition of this application. Having regard to their respective qualifications (described below), I was satisfied that the experts were appropriately qualified to proffer the opinions expressed. Set out in these reasons is a summary of the reports and the oral evidence of the experts. It is not intended to be a comprehensive account of the same.
Dr Wojnarowska's psychiatric risk assessment and evidence
At paragraph 8 of her report, Dr Wojnarowska described her qualifications. In summary, Dr Wojnarowska is a medical practitioner registered with the Australian Health Practitioner Regulation Agency. She has a specialty in psychiatry, with a sub‑specialty in forensic and child and adolescent psychiatry. She received training in the use of specialised risk assessment tools and psychological tests relevant to the field of forensic and child and adolescent psychiatry. I was satisfied that Dr Wojnarowska was qualified to give the opinions expressed in her report and in the course of her evidence.
As to the sources of her information, Dr Wojnarowska recorded that she had interviewed the respondent in person on 21 May 2025 for four hours and (among other things) had reviewed an affidavit of Daniel Sean McDonnell affirmed on 19 December 2024 and the documents and information identified at paragraph 7 of her report.
History of sexual offending
Dr Wojnarowska summarised the respondent's limited history of 'generalist offending' at paragraph 12, then summarised the respondent's history of sexual offending at paragraphs 13 to 30 of her report. As to the characteristics of the offending, Dr Wojnarowska observed the age of the respondent's victims and that his offending had been described in the course of sentencing as predatory in nature.
Dr Wojnarowska observed that the majority of the respondent's victims reported the offending to have been frequent and to have occurred over long periods of time, only ceasing when the respondent was arrested; noted an escalation in offending, the respondent having progressed to offending against his young biological daughters by penetration; and observed that the respondent had groomed the victims for an extended period of time, utilising the trust his then partner had in him along with his authority as a father and an older sibling. She also recorded that drug and alcohol use, sexual preoccupation, cognitive distortions and poor social and communication skills were associated factors in the respondent's offending.
Psychiatric and medical history
Among other things, Dr Wojnarowska reported that there was no significant medical history or current health problems reported by the respondent.
Behaviour in prison
Dr Wojnarowska summarised the respondent's prison behaviour at paragraphs 38 to 40 of her report, which summary is largely consistent with my findings at [91], [92] and [95] above.
Contraventions and breaches
Dr Wojnarowska outlined the successful completion of one period of community supervision at paragraph 41 of her report, which outline is largely consistent with my findings at [96] above.
Previous reports
Dr Wojnarowska summarised previous reports including any treatment gains and recommendations in paragraphs 42 to 48 of her report, which summary is largely consistent with my findings at [104] to [109] above.
Interview with the respondent
Among other things, from her interview with the respondent Dr Wojnarowska recorded the following in her report.
(a)The respondent's account of his offences against a male victim had been inconsistent in that he initially stated in the interview that the offending took place when he was 16 and experiencing problems at home with his mother, but later in the interview reported that he never offended against his half‑brother or any other boy, and strongly denied having ever experienced sexual fantasies against child or adult males.
(b)The respondent claimed his offences against his female victims had been opportunistic, not planned. However, he also acknowledged that his fantasies about his female victims were more than sex but involved being in a relationship with a child.[63]
(c)The respondent was emotional when speaking about the abuse he inflicted on his daughters.
(d)The respondent reported that his biggest change in attitude and understanding occurred when he completed the Sexual Offender Treatment Program in 2019. Further, that he had retained the information provided in that program and now understands the antecedents and the triggers for his offending.
(e)The respondent did not deflect personal responsibility and was able to reflect on internal and external factors that had led to his offending.
(f)The respondent had a sound management plan to minimise the chance of reoffending.
(g)The respondent had reported that he was not interested in pornography and had not accessed the material available in prison.
[63] Exhibit B, book of materials vol 2, page 264 (Dr G Wojnarowska's psychiatric report dated 24 June 2025, par 63); see also Dr G Wojnarowska's evidence at ts 27 (24 July 2025).
However, I noted that Dr Wojnarowska also recorded that the respondent still had not accepted that his sexual interest in children had been the most powerful factor leading to his offending.
As to the presentation of the respondent, among other things Dr Wojnarowska recorded in her report that he was polite and engaged well; appeared to be of a normal cognitive ability with good insight into his current circumstances; and answered all questions asked of him, and appeared to do so openly and honestly with minimal contradiction. He displayed no evidence of impression management or significant cognitive distortions, nor were depressive cognitions or self-harm thoughts reported to be present.
Psychiatric diagnosis
Dr Wojnarowska proffered the following opinions as to the respondent and made the following psychiatric diagnoses:
73.[The respondent's] offending history presents the pattern of chronic and persistent offending against prepubescent, mainly female children. He reported that at the time, despite being in what he described a fulfilling relationship, he was attracted to his victims, both psychologically and physically. He acknowledged that he has always known that what he was doing was both morally and legally wrong, but that did not stop him at any point from engaging in misconduct. His intimate relationships with adult females, albeit dysfunctional, are well documented and the last one lasted 8 years, ending with his imprisonment. As such, [the respondent] fulfils the criteria for Paedophilia, non-exclusive type, attracted predominantly to female children.
74.[The respondent's] personal history indicates the presence of mix Cluster C (dependent and avoidant) and Cluster B (antisocial) personality traits, with none reaching the threshold for a personality disorder.
75.[The respondent] also fulfils the criteria for Substance Use Disorder (cannabis and amphetamines dependence). This condition is currently in remission since he has been in custody as evidenced by negative results of drug screening. [The respondent] has received drug and alcohol counselling however this remains an important factor for his management in the community. (original emphasis)
Risk assessment
Dr Wojnarowska recorded in her report at paragraph 76 that undertaking a sexual violence risk assessment is the process of evaluating people to characterise the risks of them committing sexual violence in the future, as well as the steps that could be taken to minimise these risks.
In undertaking the risk assessment, Dr Wojnarowska reported that she used three tools as part of her assessment of the respondent, namely the Hare Psychopathy Checklist - Revised (PCL‑R), the Static‑99R and the Risk for Sexual Violence Protocol - Version 2 (RSVP).
PCL-R
Dr Wojnarowska described the PCL‑R as a tool that assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. Dr Wojnarowska reported that the respondent's score on the PCL‑R was in the 'very low range', below the threshold for psychopathy.
Static-99R
I understood Static‑99R to be an actuarial tool intended to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information found to correlate with sexual recidivism in adult male sex offenders. Dr Wojnarowska explained in her report that the Static‑99R contains 10 items, which are added together to create a total score; that the Static‑99R does not measure all relevant risk factors and a person's risk for sexual recidivism may be higher or lower than indicated by the Static‑99R based on factors not included in the tool; and that the Static‑99R has moderate accuracy in ranking offenders according to their relative risk for sexual recidivism.
Dr Wojnarowska recorded in her report that the respondent's Static‑99R score was Level III, or in the 'average risk' range, and explained that offenders released with the same score as the respondent had an average five year sexual recidivism rate of between 5% to 15%.
RSVP
Dr Wojnarowska also employed the RSVP, which she explained produces a structured professional judgement assessment guided by psychological theory and is intended to help evaluators conduct comprehensive assessments of risk of sexual violence in clinical and forensic settings.
She recorded that as to the respondent, she had observed various risk factors to be present including chronicity of sexual violence; coercion in sexual violence; problems resulting from child sexual abuse; sexual deviance; and problems with substance use. She further observed the following risk factors to be partially present: escalation; problems with stress and coping; problems with intimate relationships; and problems with non‑intimate relationships and employment.
Further, as to the respondent's future plans, Dr Wojnarowska recorded the following in her report.
(a)The respondent had planned accommodation with his grandparents (with whom he had always had a good relationship) in the community.
(b)As to relationships, the respondent was confident he would be able to manage his high sexual drive without a partner. Dr Wojnarowska opined that the respondent was somewhat unrealistic in his expectations that the relationship with his former partner could be resurrected.
(c)There were no concerns regarding the respondent's employability in the community.
(d)As to substance use, the respondent denied experiencing any cravings.
(e)As to future treatment, the respondent was cognisant he required long-term psychological treatment to maintain the treatment gains obtained, and he was cognisant to focus on areas he was unable to address, such as deviant sexual interest in children and trauma‑related problems from his formative years.
(f)The respondent viewed adherence to any supervision order conditions as his priority.
Risk scenario
In her report, Dr Wojnarowska outlined the risk scenarios specific to the respondent in the following terms:
111.Based upon [the respondent's] offending history, it is likely that his future reoffending would be similar in nature and frequency to his previous offending.
112.If no restrictions are placed on his movements in the community, it is likely that after a period of time living by himself, he would search for a partner who may or may not have her own children. I do not believe that he would specifically target a mother of young children but given his relatively young age, this would be a likely scenario. If his prospective partner does not have her own children, it is likely that she has an immediate or more distant family members that have young children. Once exposed to them, [the respondent] would start to fantasise and then would develop a 'special' relationship with them, creating an impression of a trustful adult that is capable of and happy to take care of them and baby sit when required. The abuse would start with grooming, 'accidental' touching or massage. The female children under 10 are most likely to be targeted after a period of grooming involving them and their parents/carers.
113.If [the respondent] starts living or dating a mother of young children, the period of grooming will be much shorter and the risk of re offending would be more imminent.
114.There is a possibility that he would want to have his own child with a new partner, in which case the child protection services would intervene regardless, unless he decides to leave the state of WA and or change his surname.
115.[The respondent] is not likely to offend against a male child if he has a choice of female victims. He is also not likely to approach a stranger but if he has an opportunity to groom a stranger child, for example a child that he would encounter on several occasions, in a park or a shopping centre, he is likely do so. He is not likely to assault a complete stranger.
116.The physical harm to the child can be significant due to their young age, [especially] if penetrative acts, be it penile or digital are used.
117.The frequency of his offending is likely to be high, [especially] if he returns to drug and alcohol use and his social circumstances are not favourable for him (unemployment, social isolation, perceived social rejection).
118.The warning signs may include avoidant behaviours such as isolating himself, not communicating his emotions, to others, and engaging in extensive compulsive sexual behaviour and pornography watching.
Opinions and recommendations
In her report, Dr Wojnarowska opined that after the application of the assessment tools and her clinical assessment, it was evident that the respondent was at risk of engaging in serious sexual offending in the future if not made subject to the High Risk Serious Offenders Act (that is, a restriction order). In respect of that opinion, Dr Wojnarowska in a written communication dated 2 July 2025 categorised the respondent's risk of engaging in serious sexual offending as high.[64]
[64] Exhibit B, book of materials vol 2, page 267 (Email correspondence dated 2 July 2025 between Dr Wojnarowska and A Goode, Team Leader at the Community Offender Monitoring Unit); ts 28 (24 July 2025).
Analysis and findings
As was acknowledged by Kiefel CJ, Keane and Steward JJ in Garlett v The State of Western Australia [67], it is, no doubt, true to say that the evaluative task required of the court under s 7 and s 48 of the High Risk Serious Offenders Act is difficult. Section 7 requires balancing, on the one hand, the level of the risk identified (that is, the probability of the commission of the specified serious offence) together with the magnitude of the harm associated with that risk with, on the other hand, the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed.[127]
[127] Garlett v The State of Western Australia [227], citing Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 [88]; Director of Public Prosecutions (WA) v Williams [63] - [65]; and Italiano v The State of Western Australia [4], [46].
At the hearing of the application, counsel for the respondent did not seek to persuade the court that the respondent was not a high risk serious offender within the meaning of the High Risk Serious Offenders Act.[128]
[128] ts 24 (24 July 2025).
The position advocated by counsel for the State and the respondent was not of course the end of the matter. It is well established, and I proceeded on the basis that the responsibility for deciding whether or not the offender is a high risk serious offender (as defined) and, if so, what order should be made is that of the judge alone.[129]
The risk that, if the offender were not made subject to a restriction order, the offender would commit a serious offence
[129] Director of Public Prosecutions (WA) v GTR [62].
I proceeded on the basis that in considering whether the respondent is a high risk serious offender as required by s 7(1) of the High Risk Serious Offenders Act, regard was required to be had to the risk that, if the respondent were not subject to a restriction order, he would commit a serious offence: s 7(3)(h). This called for a conclusion or findings based on the matters listed in s 7(3)(a) ‑ (g) and (j).
On acceptable and cogent evidence, I found that the State had established to a high degree of probability that there was a high risk that upon release, the respondent would commit a serious offence against a young child, likely known to him, involving sexual violence, with the potential for significant psychological and physical harm.
In so finding, I particularly had regard to the following:
(a)the respondent's significant history of sexual violent offending against young children. The respondent's criminal history includes 22 serious offences (as defined in the High Risk Serious Offenders Act);
(b)the respondent has a propensity to commit serious sexual offences against young children when in a position of trust over them in an intrafamilial setting over a prolonged period;
(c)there has been a pattern to the respondent's offending behaviour - he repeatedly abused the position of trust he had over young children in an intrafamilial setting, engaged in grooming behaviours, and took advantage of the proximity and/or time alone with these young children to engage them in sexual acts;
(d)the respondent has unmet treatment needs including his deviant sexual interests, sexual preoccupation, emotional identification with children, substance use, relationship skills, self‑worth, emotional regulation, expansion of his repertoire of coping skills, and childhood trauma. I accepted that while the respondent had made gains from the completion of the Pathways program in 2018 and the Medium Sex Offender Treatment Program in 2019, he requires further support in these areas;
(e)the lack of prosocial peer and family support available to respondent in the community;
(f)Dr Wojnarowska's observation that the respondent had not accepted that his sexual interest in children had been the most powerful factor leading to his offending; and
(g)Dr Wojnarowska's opinion that the respondent is at a high risk of engaging in serious sexual offending in the future if not subject to the High Risk Serious Offenders Act,[130] and Dr Yewers' opinion that the respondent presented with a significant risk of committing a serious offence if not subject to a restriction order.[131]
Is the risk that the respondent will commit a serious offence unacceptable?
[130] Exhibit B, book of materials vol 2, page 268 (Email correspondence dated 2 July 2025 between Dr Wojnarowska and A Goode, Team Leader at the Community Offender Monitoring Unit), page 265 (Dr Wojnarowska's psychiatric report dated 24 June 2025, par 119).
[131] Exhibit B, book of materials vol 2, page 300 (Dr Yewers' psychological report dated 9 June 2025, par 150).
I proceeded on the basis that the court was not free to characterise as 'unacceptable' any level of risk which it should choose. Rather, an evaluation of the level of risk according to the objects of the High Risk Serious Offenders Act was required, informed by the need to ensure adequate protection for the community.[132]
[132] The State of Western Australia v Garlett [139], cited with approval in The State of Western Australia v D'Rozario [No 3] [22].
Having regard to the evidence, I was satisfied that the respondent posed a risk that was 'unacceptable'. I weighed in the balance my findings as to the matters prescribed in s 7(3)(a) ‑ (g) and (j). I particularly had regard to the nature of the risk posed to the community by the respondent, given the gravity and nature of the serious offence the respondent was likely to commit; the likelihood of the respondent committing a serious offence; and the consequences to the respondent of a finding being made that an unacceptable risk exists, which are discussed in more detail below.
The nature of the risk posed to the community
In considering whether the respondent posed a risk to the community that was 'unacceptable', I considered the gravity and nature of the serious offence the respondent was likely to commit and the risk to the community that type of offending posed.
Among other things, I was informed by the respondent's significant history of sexual violent offending against young children. The respondent's criminal history includes 22 serious offences (as defined in the High Risk Serious Offenders Act).
I was also informed by the 'risk scenarios' identified and discussed by Dr Wojnarowska (see [134] above) and Dr Yewers (see [180] above).
I accepted that, as Dr Wojnarowska opined, the respondent's future reoffending would likely be similar in nature and frequency to his previous offending; and that the physical harm to the child could be significant due to their young age, particularly if there was an occurrence of penetrative acts, be it penile or digital.
Having regard to all of the evidence, particularly to the respondent's offending history, I considered the nature of the serious offence that the respondent is likely to commit to be grave and the risk to the community great as:
(a)the respondent is likely to abuse the position of trust he has over young children in an intrafamilial setting, engage in grooming behaviours, and take advantage of the proximity and/or time alone with these young children to engage them in sexual acts; and
(b)there is a risk of psychological and physical damage and trauma to young children through the grooming behaviours, the breach of the position of trust, and sexual offending, along with the risk of considerable fear and trauma for victims.
The likelihood of the respondent offending
In considering whether the respondent posed a risk that was 'unacceptable', I turned to consider the likelihood of the respondent offending. Having given careful consideration to all of the evidence, I considered the likelihood of the respondent committing an offence similar in nature to his previous offending to be high. I was satisfied of the same having weighed all of the evidence, including the following.
First, the respondent has a significant history of sexual offending against young children in an intrafamilial setting.
Secondly, the respondent has a propensity to commit serious sexual offences against young children he is in a position of trust over in an intrafamilial setting over a prolonged period.
Thirdly, there is a clear pattern to the respondent's offending behaviour - he has repeatedly abused the position of trust held over young children in an intrafamilial setting, engaged in grooming behaviours, and taken advantage of the proximity and/or time alone with these young children to engage them in sexual acts. As submitted by the State, the respondent's offending has continued from childhood, through his teenage and adult years, and into fatherhood.[133]
[133] State's outline of submissions filed 4 July 2025, par 100.
Fourthly, the respondent has unmet treatment needs including his deviant sexual interests, sexual preoccupation, emotional identification with children, substance use, relationship skills, self-worth, emotional regulation, expansion of his repertoire of coping skills, and childhood trauma.
Fifthly, Dr Wojnarowska's observation that the respondent had not accepted that his sexual interest in children had been the most powerful factor leading to his offending.
Sixthly, I had regard to the lack of prosocial peer and family support available to respondent in the community.
Finally, I weighed the opinions of Dr Wojnarowska and Dr Yewers in the balance when I evaluated the likelihood of the respondent reoffending (which opinions are summarised above).[134] I accepted their evidence, which was unchallenged. Their evidence, while not determinative, was persuasive.
The consequences to the respondent of making a finding that an unacceptable risk exists
[134] Exhibit B, book of materials vol 2, page 268 (Email correspondence dated 2 July 2025 between Dr Wojnarowska and A Goode, Team Leader at the Community Offender Monitoring Unit), page 265 (Dr Wojnarowska's psychiatric report dated 24 June 2025, par 119); Exhibit B, book of materials vol 2, page 300 (Dr Yewers' psychological report dated 9 June 2025, par 150).
I was cognisant that upon the making of a restriction order, serious consequences would be visited upon the respondent. The making of a restriction order would be a significant impost on the respondent's right to be at liberty. I weighed the same in the balance.
Disposition
In determining whether the risk posed by the respondent remained 'unacceptable', I weighed in the balance the gravity and nature of the risk posed by the respondent and the likelihood of that risk materialising on the one hand, and the serious consequences for the respondent on the other. I did so having regard to the need to ensure adequate protection for the community.
Weighing all of these matters in the balance, I was satisfied to a high degree of probability that the respondent posed a risk that was 'unacceptable'.
If the risk is found to be unacceptable, is it necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence?
The legislative scheme requires that regard be had to the need to protect members of the community from the risk: s 7(3)(i). Again, this calls for a conclusion or findings based on the matters listed in s 7(3)(a) ‑ (g) and (j). I proceeded on the basis that a finding of unacceptable risk is not determinative of a restriction order application, and the court might find that it is not necessary to make a restriction order to adequately protect the community notwithstanding that it finds that the risk of future offending is unacceptable.[135]
[135] The State of Western Australia v Garlett [136(d)], as noted by Quinlan CJ in The State of Western Australia v D'Rosario [No 3] [21].
In this case, I considered it to be necessary to make a restriction order to ensure adequate community protection against a risk that the respondent will commit a serious offence.
In so concluding, I considered that the gravity and nature of the risk posed to the community by the respondent was such that it supported a finding of 'necessity'. This was informed by my characterisation of the nature and gravity of the risk posed to the community given the type of serious offence that the respondent is likely to commit and the likelihood of the respondent committing a serious offence, discussed at [246] above.
Having regard to all matters specified in s 7(3) of the High Risk Serious Offenders Act (to which I referred in these reasons), and notwithstanding that the respondent had already been punished for the offences for which he had been convicted, and that he would remain subject to reporting obligations under the Community Protection (Offender Reporting) Act, I was satisfied to a high degree of probability that the risk of the respondent committing a serious offence of the type I identified was unacceptable, and that it was necessary to make a continuing detention order or a supervision order in relation to the respondent to ensure adequate protection of the community against the risk. That is, I found that if the respondent was not made subject to a restriction order, the community would not be adequately protected against the unacceptable risk that he will commit a serious offence. It follows that I found the respondent to be a high risk serious offender and that it was necessary to make a restriction order.
Continuing detention order or supervision order?
Having decided that the respondent was a high risk serious offender, I was required to make either a continuing detention order or a supervision order in relation to him.[136] I was cognisant that having made that finding, there was no residual discretion to decline to make a restriction order.[137] I proceeded on the basis that I was required to choose the order that was the least invasive to the respondent's liberty while ensuring an adequate degree of protection of the community.
[136] High Risk Serious Offenders Act s 48(1).
[137] Garlett v The State of Western Australia [72].
In considering whether a supervision order would adequately protect the community, it was necessary to take into account any conditions which could be placed on a supervision order so as to ensure adequate protection of the community, the respondent's rehabilitation, care and treatment, and to ensure adequate protection of complainants of offences committed by him.[138] I was also required to be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the order as required under s 29 of the High Risk Serious Offenders Act. This required me to be satisfied that the respondent would comply with the standard conditions in a manner and to an extent that would ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[139] The standard conditions are those contained in s 30(2) of the High Risk Serious Offenders Act and include reporting, supervision and complying with any reasonable direction, electronic monitoring, and not committing a serious offence during the period of the order. The onus was on the respondent to satisfy the court that he would so comply.[140]
[138] High Risk Serious Offenders Act s 30(5).
[139] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [2019] WASC 427 [29]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] ‑ [111]; and The State of Western Australia v MAM [165].
[140] High Risk Serious Offenders Act s 29(1) and (2).
In the disposition of this part of the application, I had regard to the following matters (in no fixed order).
First, I had regard to the absence of suitable, stable accommodation available to the respondent. As to the same, I adopted the observation made by Hall J in The State of Western Australia v Corbett [No 5] [2017] WASC 115 at [80]:
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that the supervision order is presently a viable option.
The respondent had previously suggested accommodation with his grandparents (with whom he had always had a good relationship). That offer of accommodation did not remain open.[141] In any event, it is not suitable accommodation when regard is had to the regularity in which family members visit that residence, including children.
[141] ts 54, 57 (24 July 2025).
It was the State's position that no suitable accommodation option had been identified for the respondent. I understood it to be a concern that the respondent's risk of committing further serious offences was likely to increase with a lack of stable housing. I did not understand counsel for the respondent to contend that there was suitable accommodation available.[142] In light of this, counsel for the respondent floated the possibility of leaving the respondent's accommodation to the Community Offender Monitoring Unit's direction but accepted that this was unlikely to ensure adequate protection of the community.[143] Further, it was not submitted on behalf of the respondent that he had discharged his onus, given the absence of suitable accommodation.
[142] ts 24 (24 July 2025).
[143] ts 24 (24 July 2025).
The availability of suitable, stable accommodation is a protective matter that weighs in favour of a finding that the court can be satisfied that, on the balance of probabilities, the respondent will substantially comply with the standard conditions of a supervision order. That protective matter is not presently available to the respondent. The absence of suitable accommodation is a matter which weighs heavily against the court being satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order.
Secondly, I weighed in the balance the opinions expressed by Dr Wojnarowska and Dr Yewers, noting particularly Dr Wojnarowska's opinion that the risk posed by the respondent could not be managed in the community without suitable accommodation.[144]
[144] Exhibit B, book of materials vol 2, pages 267 - 268 (email correspondence dated 2 July 2025 between Dr Wojnarowska and A Goode, Team Leader at the Community Offender Monitoring Unit).
Thirdly, I weighed in the balance the respondent's diagnosis of paedophilia and his unmet treatment needs, including his deviant sexual interests, sexual preoccupation, emotional identification with children, substance use, relationship skills, self-worth, emotional regulation, expansion of his repertoire of coping skills, and childhood trauma. I also noted Dr Wojnarowska's observation that the respondent had not accepted his sexual interest in children, which she considered to be the most powerful factor leading to his offending.
Fourthly, I weighed in the balance the respondent's diagnosis of substance use disorder, albeit I also noted that the respondent had abstained while in custody, and the respondent's stated intention to remain largely drug free in the future.
Fifthly, I accepted that the respondent had made treatment gains and that he had also expressed willingness to participate in further treatment. As to the opportunity for individual intervention, one could expect treatment would be made available to the respondent upon release on a supervision order (albeit subject to the evaluation and resourcing constraints of Community Offender Monitoring Unit). Further, anti‑libidinal treatment using Selective Serotonin Reuptake Inhibitors (SSRI) was recommended by Dr Wojnarowska and the respondent had not indicated an unwillingness to be treated with the same.[145]
[145] ts 73 (24 July 2025).
Sixthly, the respondent's conduct in prison has also reportedly been positive, and while the respondent has only been subject to one period of community supervision that expired in 2011, he has a relatively good history of compliance.
Seventhly, I weighed in the balance the respondent's attitude towards the conditions of the supervision order. The respondent had made clear to Dr Wojnarowska that his adherence to supervision order conditions would be his priority, expressed no anxiety related to adhering to them, and expressed no objection to any condition.[146] He expressed his intention to comply with all conditions in similar terms to Dr Yewers.[147] There were no cognitive deficits or psychological traits present that suggested that the respondent would have difficulty in comprehending the proposed conditions or following directions if made subject to a supervision order.[148]
[146] Exhibit B, book of materials vol 2, page 264 (Dr Wojnarowska's psychiatric report dated 4 June 2025, par 110).
[147] Exhibit B, book of materials vol 2, pages 286, 288 (Dr Yewers' psychological report dated 9 June 2025, pars 98, 108); ts 46 - 47 (24 July 2024).
[148] ts 35 - 36, 46 (24 July 2025).
Eighthly, the respondent appeared to have relatively good prospects of employment, which is a protective matter that weighs in favour of a finding that the court can be satisfied that, on the balance of probabilities, the respondent will substantially comply with the standard conditions of a supervision order.
I accepted that there is no requirement that there be no risk of reoffending,[149] and the respondent's engagement in training opportunities while in custody, and his conduct in custody, have been very positive. Unfortunately, in this case, the absence of suitable accommodation was a matter which weighed heavily against the court being satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order.
[149] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].
The State's position was that should the respondent have suitable accommodation, the community could be adequately protected by the respondent being placed on a supervision order on the conditions that had been proposed and were recorded in Ms Bennetts' report.[150] On the evidence before the court, I found that the respondent had not discharged his onus pursuant to s 29 of the High Risk Serious Offenders Act and therefore, to ensure the adequate protection of the community, the respondent must be made subject to a continuing detention order under s 48(1) of the High Risk Serious Offenders Act.
[150] State's outline of submissions filed on 4 July 2025, par 142.
Conclusion
For these reasons I was satisfied, by acceptable and cogent evidence and to a high degree of probability, that it was necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence. Having regard to all of the evidence and to my findings (here recorded), I was satisfied that the respondent was a high risk serious offender under the High Risk Serious Offenders Act.
Further, I determined that the risk of reoffending could not be adequately managed in the community with the imposition of a supervision order. Accordingly, I made a continuing detention order, with effect from 16 September 2025.
Going forward, every effort should be made to assist the respondent to secure stable accommodation an appropriate distance from his victims. As this will mean that the respondent will likely have to reside in a location without any family or support networks, it is also imperative that every effort be made to assist the respondent to identify, and to the extent possible, begin to develop prosocial supports, to foster his interest in recreational activities, and to identify, and if possible secure, appropriate employment. The possibility of identifying and engaging a mentor for the respondent prior to the review hearing ought also be explored.
The respondent should also be encouraged to continue to engage with Uniting WA. Before the review hearing, individual therapeutic intervention ought commence and, subject to the respondent's continued agreement, he should be evaluated for, and if suitable, commence anti‑libidinal treatment using Selective Serotonin Reuptake Inhibitors (SSRI).
As the respondent has experienced suicidal ideation in the past, his mental health should be carefully monitored following delivery of these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KO
Associate to the Judge
16 SEPTEMBER 2025
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