The State of Western Australia v Dragon [No 3]

[2025] WASC 400

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DRAGON [No 3] [2025] WASC 400

CORAM:   STRK J

HEARD:   22 SEPTEMBER 2025

DETERMINED       :   22 SEPTEMBER 2025

PUBLISHED           :   23 SEPTEMBER 2025

FILE NO/S:   SO 12 of 2021

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

BRADLEY PEN DRAGON

Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Contravention proceeding - Whether detention order should be made pending determination of pending contravention proceeding - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Respondent to be detained in custody pursuant to s 56(2)(b) until next directions hearing

Category:    B

Representation:

Counsel:

Applicant	:	DS McDonnell
Respondent	:	In person

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	In person

Case(s) referred to in decision(s):

Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4

Dragon v WA Police [2024] WASC 147

The State of Western Australia v CA [No 4] [2024] WASC 28

The State of Western Australia v Dragon [2021] WASC 425

The State of Western Australia v Dragon [No 2] [2022] WASC 189

The State of Western Australia v MAR [No 4] [2023] WASC 271

The State of Western Australia v Slater [No 2] [2021] WASC 465

The State of Western Australia v Warmdean [No 5] [2024] WASC 396

Table of Contents

Introduction

Background

The respondent's offending history and the making of a restriction order

Evidence before the court on 22 September 2025

Affidavit of Ms Jones

Affidavit of Mr Lloyd

Contraventions of the supervision order

Alleged contraventions that resulted in outcomes other than formal charges

Disposition

Statutory context

Assessment - order to be made during contravention proceedings

Exceptional circumstances

Substantial compliance with the standard conditions

Conclusion and orders

Sch A - Supervision order conditions

Sch B - Orders made on 22 September 2025

STRK J:

Introduction

1. On 22 September 2025 the State of Western Australia filed an application under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) commencing contravention proceedings with respect to the respondent, who was brought before the Supreme Court under a warrant that had been issued earlier that day by a magistrate under s 51(3) of the High Risk Serious Offenders Act.[1]

   [1] High Risk Serious Offenders Act, s 53(1)(a).

2. In support of the application the State read two affidavits. The first was an affidavit affirmed by Chloe Savannah Jones on 19 September 2025, and the second an affidavit affirmed by Joseph Marc Lloyd on 22 September 2025.[2] Ms Jones is a senior community corrections officer employed by the Department of Justice, Corrective Services Division, within the Community Offender Monitoring Unit (COMU). Mr Lloyd is a government legal practitioner employed by the State Solicitor's Office, holding the position of Assistant State Solicitor.

   [2] Exhibits A and B, respectively.

3. The State also referred to a minute of proposed orders provided to the court on 22 September 2025.

4. In addition to what directions ought be made for the substantive hearing of the contravention proceedings, the issue to be determined was whether the respondent ought be detained in custody pending the determination of the contravention proceedings, or until some other date, alternatively released subject to the supervision order made on 31 May 2025.

5. The respondent was brought before the court under a warrant issued under s 51(1)(a) and (3) of the High Risk Serious Offenders Act by a magistrate on 22 September 2025. Having been brought before the court promptly, the respondent was not represented by counsel when he appeared before the court on 22 September 2025. Given the absence of representation, the State did not press for the making of all of the directions proposed in the State's minute. Rather, the State sought an order detaining the respondent in custody until such time as the application could be relisted for directions (suggesting that the matter be relisted on Monday, 6 October 2025).

6. In all the circumstances, it was appropriate the respondent have the opportunity to obtain legal advice and representation before further directions were made and a date fixed for the substantive hearing of the contravention proceedings. On the evidence before me, it was also appropriate that the respondent be made subject to a detention order until the conclusion of the next directions hearing on Monday, 6 October 2025. Set out below are my reasons.

Background

1. As to the background to the application, I note as follows.

2. On 18 October 2021 the State of Western Australia applied for a restriction order under s 48 of the High Risk Serious Offenders Act in relation to the respondent. It was the State's position that it was necessary to make a restriction order under the High Risk Serious Offenders Act in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.

3. The application was listed for a preliminary hearing on 29 November 2021, at which it was established that there were reasonable grounds for then believing that a later court might find the respondent to be a high risk serious offender within the meaning of the High Risk Serious Offenders Act. For the reasons then delivered, 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 application: The State of Western Australia v Dragon [2021] WASC 425.

4. At the hearing of the State's application on 24 May 2022, the respondent (through counsel) did not oppose the court finding him to be a high risk serious offender. It was found to be necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that the respondent would commit a serious offence. He was made subject to supervision for 10 years and ordered to comply with over 60 conditions so as to guard against the risk that the respondent posed to the community: The State of Western Australia v Dragon [No 2] [2022] WASC 189. The respondent was released on the supervision order on or about 21 June 2022, which incorporated the conditions reproduced at sch A to these reasons. The respondent's then approved address has been redacted.

5. Since the respondent's release on the supervision order he was charged and convicted of 11 offences of contravening a requirement of the order contrary to s 80(1) of the High Risk Serious Offenders Act (PE 48854 ‑ 48855 of 2022, PE 50159 of 2022, PE 7484 ‑ 7485 of 2023, PE 22542 of 2023, PE 53142 of 2023, PE 53120 of 2024, PE 4510 of 2025, PE 24374 of 2024, PE 19797 of 2025).

6. As to these offences, the respondent was sentenced as follows:

   (a)with respect to PE 48854 - 48855 of 2022 and PE 50159 of 2022 the respondent was sentenced on 17 November 2022 and was fined $1,500;

   (b)with respect to PE 7484 - 7485 of 2023, the respondent was sentenced on 10 February 2023 and was fined $1,200 (which the respondent unsuccessfully appealed);[3]

   (c)with respect to PE 22542 of 2023, the respondent was sentenced on 4 May 2023 and was fined $1,500;

   (d)with respect to PE 53142 of 2023, the respondent was sentenced on 20 November 2023 and was fined $500, which fine was suspended for six months. As the respondent reoffended, he was resentenced and the $500 fine was required to be paid;

   (e)with respect to PE 4510 of 2025, the respondent was sentenced on 14 February 2025 and was fined $2,000;

   (f)with respect to PE 53120 of 2024, the respondent was sentenced on 18 June 2025 and was fined $1,200;

   (g)with respect to PE 24374 of 2024, the respondent was sentenced on 3 September 2025 and was fined $300; and

   (h)with respect to PE 19797 of 2025, the respondent was sentenced on 17 September 2025 and was fined $1,000.

   [3] Dragon v WA Police [2024] WASC 147; exhibit B, affidavit of JM Lloyd affirmed on 22 September 2025, P.

7. The respondent has spent the following periods remanded in custody since he was released subject to the supervision order:[4]

   (a)from 24 June 2022 to 6 July 2022 (13 days);

   (b)from 15 November 2022 to 17 November 2022 (3 days);

   (c)from 26 October 2023 to 20 November 2023 (26 days);

   (d)from 30 April 2024 to 4 November 2024 (189 days);

   (e)from 21 January 2025 to 14 February 2025 (25 days);

   (f)from 15 February 2025 to 5 March 2025 (19 days); and

   (g)from 1 April 2025 to 17 September 2025 (170 days).

   [4] Exhibit A, affidavit of CS Jones affirmed on 19 September 2025, par 16.

8. By the application filed on 22 September 2025 the State seeks an order under s 55(1)(a) of the High Risk Serious Offenders Act that the supervision order be rescinded and a continuing detention order be made. The State proposed the following form of orders by a minute dated 22 September 2025:

   1.The application for an order pursuant to section 55 of High Risk Serious Offenders Act 2020 be heard on a date to be fixed.

   2.The Respondent undergo an examination by a qualified expert, namely Dr Wynn Owen, psychiatrist, for the purposes of preparing a report as required by section 74 of the High Risk Serious Offenders Act 2020 that is to be used on the hearing of the contravention application.

   3.The expert named in order 2 is not to include in his report information or opinions about the Respondent based on a communication with a third person unless details of that communication sufficient to identify the person with whom the communication was held, its date and a summary of its content are included in the expert's report.

   4.The report of the expert be provided to the Applicant at least 42 days prior to the hearing of the contravention application.

   5.Any report authored by the Department of Justice, including:

   a.any Treatment Progress Report be provided to the Applicant at least 35 days prior to the date of the hearing of the contravention application;

   b.any Performance Report be provided to the Applicant at least 28 days prior to the date of the hearing of the contravention application.

   6.The expert named in order 2 liaise with the Department of Justice as to a Management Plan (if appropriate) for the Respondent to be supervised in the community.

   7.Pursuant to section 122 of the Criminal Investigation Act 2006, the expert named in order 2 may be supplied with and may view any audio-visual recordings of interviews with the Respondent, or transcripts of the same, for the purpose of preparing his report.

   8.The Respondent be detained in custody until the final determination of the application.

   9.There be liberty to the parties to apply generally.

9. As the respondent appeared on 22 September 2025 without legal representation, as was suggested by counsel for the State, I made only an order detaining the respondent in custody. However, that order will not operate until the final determination of the application but rather to the conclusion of the next hearing. A relatively short adjournment will afford the respondent an opportunity to (if possible) secure legal advice and representation, to consider the affidavits read by the State in support of the making of a detention order pending the final determination of the application, and to be heard as to the appropriate interim order and directions. My reasons for so ordering are here recorded.

The respondent's offending history and the making of a restriction order

1. The respondent was born on 6 March 1960. He is therefore now 65 years of age.

2. In considering whether to make an interim detention order, I had regard to the respondent's offending history, which includes convictions for offences which are 'serious offences' for the purposes of the High Risk Serious Offenders Act.

3. As was recorded in The State of Western Australia v Dragon [No 2], at the time of the hearing of the State's application for a restriction order, the respondent had been convicted for various offences committed in Thailand (described at [52] to [54] of those reasons); possession of child pornography (described at [55] to [58] of those reasons); assault with intent to rob (described at [60] to [61] of those reasons); and using a carriage service to access child pornography material contrary to s 474.19 of the Criminal Code (Cth) (described at [63] and [64] of those reasons).

4. As was recorded in The State of Western Australia v Dragon [No 2] at [66] to [68], at the time of the hearing of the State's application for a restriction order, the respondent had been convicted of a number of other offences that the State contended were 'relevant proceedings' for the purposes of s 84(5) of the High Risk Serious Offender Act. Evidence of the respondent's offending history was also attached to the affidavit affirmed by Mr Lloyd.[5]

   [5] Exhibit B, affidavit of JM Lloyd affirmed on 22 September 2025, A (respondent's Western Australian criminal history); B (Chronology of offending); E (Summary of respondent's offences in Thailand); F (Thailand court documents).

5. For the reasons previously published, it was found necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against the unacceptable risk that the respondent would commit a serious offence. Further, the respondent was ordered to be subject to supervision for ten years, required to comply with conditions in addition to those required by the High Risk Serious Offenders Act, imposed so as to guard against the risk that the respondent poses to the community.[6]

Evidence before the court on 22 September 2025

[6] See sch A to these reasons.

1. At the hearing on 22 September 2025 the State read the affidavits affirmed by Ms Jones, and the affidavit affirmed by Mr Lloyd. They provided the evidentiary foundation for the interim detention order sought by the State. However, a copy of the affidavits were only provided to the respondent shortly before he was brought before the court. The following is a summary of the evidence before the court, albeit not tested by cross‑examination.

Affidavit of Ms Jones

1. Ms Jones is a senior community corrections officer employed by the Department of Justice in the Corrective Services Division. She is a member of COMU.

2. In her affidavit Ms Jones explained that her role is to case manage high risk serious offenders so declared under the High Risk Serious Offenders Act, working in conjunction with the Serious Offender Enforcement Squad from the Western Australian Police Force. She was the respondent's case manager from 9 August 2024 to 8 November 2024, and resumed as his case manager from 28 February 2025.

3. Among other things, Ms Jones deposed that since being released subject to the supervision order:

   (a)the respondent had been convicted of the various offences for which he was sentenced (the summary at [12] of these reasons is drawn from Ms Jones' affidavit);

   (b)the respondent had spent periods in custody (the summary at [13] of these reasons is drawn from Ms Jones' affidavit); and

   (c)the respondent had been issued several verbal and written warnings in response to additional instances of non‑compliance.

4. Ms Jones also described in her affidavit behaviours of the respondent that she characterised as being 'concerning'. They are summarised at [26] to [32] below.

5. At paragraphs 19 to 25 of her affidavit, Ms Jones described the respondent's response to treatment. Among other things, she deposed that on 18 July 2022 the respondent commenced psychological intervention on a weekly basis with a forensic psychologist, David Summerton of the Forensic Psychological Intervention Team (although that treatment was suspended during those periods that the respondent was remanded in custody). She further deposed that on 25 November 2024 the respondent's engagement with the Forensic Psychological Intervention Team ceased due to the view taken that there was limited prospect of treatment addressing the respondent's outstanding criminogenic needs.

6. At paragraphs 26 to 39 of her affidavit, Ms Jones described various 'accommodation issues'.

7. The respondent has resided in a number of approved locations while in the community subject to the supervision order. On 17 January 2024 the respondent graduated from the Uniting WA program, at which time it had been determined that he no longer required support from Uniting WA.[7] He had been successful in securing private accommodation, but lost that accommodation because he was unable to meet his rental payment obligations while he was remanded in custody. The real estate agency had reported that the respondent had been a good tenant and confirmed their willingness to consider renting to him in the future.

   [7] Exhibit A, affidavit of CS Jones affirmed on 19 September 2025, par 27.

8. Ms Jones reported that the respondent did not presently have stable accommodation, and is presently residing in emergency accommodation sourced by COMU. He has not independently secured private accommodation, and it would appear that he will not be able to secure accommodation through Uniting WA as he is unwilling to again receive Uniting WA reintegration support.

9. At paragraphs 40 to 46, Ms Jones described what she characterised as 'supervision issues and anti‑authoritarian views, the under reporting of sexual preoccupation and engagement in assessed risk scenarios'. In this regard, Ms Jones deposed that various Departmental records (which were not identified nor attached to her affidavit) revealed that the respondent had 'often presented with a high level of agitation and combative narrative, often overwhelming and precluding the ability for equal interaction between the Respondent and [the senior community corrections officer]'.[8]

   [8] Exhibit A, affidavit of CS Jones affirmed on 19 September 2025, par 40.

10. She deposed that on two occasions the respondent had received disciplinary action for intimidating, abusive and threatening behaviour towards Departmental staff. That is, on 15 August 2023, the respondent diarised in his diary 'Lying Natzy Screw Dogs' and signed this comment in his diary; and on 3 December 2023, the respondent received a telephone call from electronic monitoring staff, to which he responded with 'fuck off' and terminated the call. She further deposed that the respondent had diarised in his diary that he 'rang EMU to give them some truth of the constant torture of sleep deprivation. They thought I was being disrespectful. I have always been disrespectful of Nazi torturing dogs'.[9]

    [9] Exhibit A, affidavit of CS Jones affirmed on 19 September 2025, par 41 - 42.

11. Ms Jones also described the purchase by the respondent of a book from Boffins Book Store which contained images of children, and to having in his possession a DVD cover of Mad Max Beyond Thunderdome and the DVD of the movie The Tin Drum.

12. As to antilibidinal treatment, Ms Jones noted that while the respondent had been subject to antilibidinal treatment while subject to the supervision order, she was not able to confirm whether the respondent is presently receiving antilibidinal treatment while in custody. She recorded that Dr Peter Wynn Owen was contacted in September 2025 in relation to whether there were any changes as to his initial recommendation concerning antilibidinal treatment, and he is currently reviewing the respondent's case.

13. In her affidavit Ms Jones recorded that it was her opinion that the respondent is likely to further contravene the conditions of his supervision order,[10] and she further deposed that she did not consider that there were any meaningful amendments that could be made to the supervision order to allow for adequate management of the respondent's risk of serious offending in the community. In particular, she expressed concern that there was an absence of suitable accommodation available to the respondent.[11]

    [10] Exhibit A, affidavit of CS Jones affirmed on 19 September 2025, par 53.

    [11] Exhibit A, affidavit of CS Jones affirmed on 19 September 2025, pars 54, 56.

1. Ms Jones attached to her affidavit a number of documents including a copy of the signed supervision order; a copy of the suppression order made on 24 May 2022; the court's reasons for decision published on 31 May 2022; the respondent's criminal and traffic history report; a copy of the statement of material facts for various s 80(1) offences for which the respondent was charged; a copy of a Uniting WA non‑participation document; a transcript of the restriction order proceedings; a copy of a psychiatric report by Dr Wynn Owen dated 1 May 2022; and a copy of a psychological risk assessment by Julie Hasson dated 7 April 2022.

Affidavit of Mr Lloyd

1. Mr Lloyd is a government legal practitioner employed by the State Solicitor's Office, who is tasked with assisting in conducting matters under the High Risk Serious Offenders Act.

2. Among other things, Mr Lloyd described in his affidavit the background to the State's application, which included the making of a supervision order on 31 May 2022; and the convictions entered against the respondent for offences of contravening a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act.

3. Mr Lloyd attached to his affidavit a number of documents including a copy of the respondent's Western Australian criminal history dated 18 September 2025 obtained from WA Police; a chronology of the respondent's serious and relevant offending prepared by the State Solicitor's Office; a copy of most of the prosecution notices, statements of material facts and transcripts of hearing before Magistrates for the s 80(1) offences for which the respondent was convicted after being released subject to the supervision order; and a copy of the expert reports prepared and tendered at the hearing of the restriction order application (that is, the reports of Dr Wynn Owen dated 1 May 2022 and Ms Hasson dated 7 April 2022).

Contraventions of the supervision order

1. Since the respondent's release on the supervision order he was convicted of 11 offences of contravening a requirement of the order contrary to s 80(1) of the High Risk Serious Offenders Act, for which he was sentenced and received fines as outlined in these reasons at [12].

2. The circumstances of the offending are revealed by documents attached to Ms Jones' affidavit,[12] and Mr Lloyd's affidavit.[13] For present purposes it suffices for me to set out the following brief details:

   [12] Exhibit A, affidavit of CS Jones affirmed on 19 September 2025, E - H.

   [13] Exhibit B, affidavit of JM Lloyd affirmed on 22 September 2025, G - AC.

   (a)(PE 48854 ‑ 48855 of 2022) On 29 October 2022 the respondent contravened two requirements of the supervision order by failing to comply with his projected movements approved by his community corrections officer and by failing to record satisfactorily all entries required in his daily diary of movements, activities and associations. The respondent had arrived prior to his scheduled arrival time at specified locations and had failed to record all stops he had taken on his journey. The respondent was arrested on 7 November 2022, and was convicted upon his plea of guilty and sentenced on 17 November 2022 to a $1,500 global fine.

   (b)(PE 50159 of 2022) On 12 November 2022 the respondent contravened a requirement of the supervision order by failing to record satisfactorily all entries required in his daily diary of movements, activities and associations. The respondent failed to record an interaction with a man in his diary and recorded that he missed his scheduled bus because he fell asleep or blacked out contrary to CCTV footage which showed him alert while the bus stopped next to him. The respondent was arrested on 15 November 2022, and was convicted upon his plea of guilty and sentenced on 17 November 2022 to a $1,500 global fine (with the charges above).

   (c)(PE 7484 ‑ 7485 of 2023) On 7 February 2023 the respondent contravened two requirements of the supervision order by collecting items from residential bins and failing to record satisfactorily all entries required in his daily diary of movements, activities and associations. The respondent had failed to record details of a conversation with a man in his daily diary. The respondent was arrested on 10 February 2023, and was convicted upon his plea of guilty and sentenced on 10 February 2023 to a $1,200 global fine (which the respondent unsuccessfully appealed).[14]

   (d)(PE 22542 of 2023) On 3 May 2023 the respondent contravened a requirement of the supervision order by collecting items from verge collection rubbish piles. The respondent was arrested on 3 May 2023, and was convicted upon his plea of guilty and sentenced on 4 May 2023 to a $1,500 fine.

   (e)(PE 53142 of 2023) On 26 October 2023 the respondent contravened a requirement of the supervision order by copying a cover of a DVD which depicted images of children. The respondent was arrested on 26 October 2023, and was convicted upon his plea of guilty and sentenced on 20 November 2023 to a $500 fine suspended for six months from 20 November 2023. By reason of the conviction entered on 18 June 2025 with respect to PE 53120 of 2024, the respondent was resentenced in relation to PE 53142 of 2023 on 18 June 2025 to a $500 fine.

   (f)(PE 53120 of 2024) On 3 April 2024 the respondent contravened a requirement of the supervision order by making donations to a children's charity. The respondent was charged on 24 September 2024, and was convicted upon a finding of guilt at trial and sentenced on 18 June 2025 to a $1,200 fine.

   (g)(PE 24374 of 2024) On 29 April 2024 the respondent contravened a requirement of the supervision order by possessing a booklet which contained photographs of children. The respondent was arrested on 29 April 2024, and was convicted upon a finding of guilt at trial and sentenced on 3 September 2025 to a $300 fine.

   (h)(PE 4510 of 2025) On 20 January 2025 the respondent contravened a requirement of the supervision order by possessing a book which contained images of naked adolescent models. He was arrested on 20 January 2025, was convicted upon his plea of guilty on 21 January 2025, and sentenced on 14 February 2025 to a $2,000 fine.

   (i)(PE 19797 of 2025) Between 11 March 2025 and 26 March 2025 the respondent contravened a requirement of the supervision order by possessing two Blu Ray movies which contained images of children both in the movie and on the cover of the discs. The respondent was arrested on 27 March 2025, and was convicted upon a finding of guilt at trial and sentenced on 17 September 2025 to a $1,000 fine.

   [14] Dragon v WA Police [2024] WASC 147; exhibit B, affidavit of JM Lloyd affirmed on 22 September 2025, par 35, P.

Alleged contraventions that resulted in outcomes other than formal charges

1. Ms Jones deposed that since 21 June 2022 the respondent has also contravened the conditions of his supervision order for which he received non‑compliance warnings.[15] Ms Jones deposed that these additional incidents of non‑compliance included: exclusion zone violations; failure to adhere to his projection requirements; and breaching written lawful instructions by having contact with neighbours, assuming ownership of abandoned property, and being abusive, aggressive and intimidating toward Departmental staff.

   [15] Exhibit A, affidavit of CS Jones affirmed on 19 September 2025, par 17.

Disposition

Statutory context

1. Part 4 of the High Risk Serious Offenders Act concerns the restriction of offenders and div 5 concerns the contravention of a supervision order.

2. Section 53 of the High Risk Serious Offenders Act empowers the State to commence contravention proceedings. Section 53, among other things, applies to an offender who is brought before the Supreme Court under a warrant issued under s 51(3) or s 56(7)(d) of the High Risk Serious Offenders Act.

3. Section 54 of the High Risk Serious Offenders Act allows the court to order reports for purposes of contravention proceedings; and s 55 concerns the orders that might be made at the substantive hearing of an application made under s 53 if the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, or is likely to contravene a condition of a supervision order. The orders that the court may make under s 55 are to: rescind the supervision order and make a continuing detention order in relation to the offender; make an order amending the conditions of the supervision order or extending the duration of the supervision order; or affirm the supervision order without amendment or extension.

4. Section 56 of the High Risk Serious Offenders Act concerns the orders that may be made during contravention proceedings, and provides as follows:

   (1)This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect of the offender are pending (the pending proceedings).

   (2)The court may at any time in the pending proceedings —

   (a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or

   (b)if the offender is not detained in custody, order the offender to be detained in custody.

   (3)The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that —

   (a)releasing the offender is justified by exceptional circumstances; and

   (b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).

   (4)The onus of proof as to the matter described in subsection (3)(b) is on the offender.

   (5)For the purposes of subsection (3), in considering whether releasing the offender is justified by exceptional circumstances the court may, as it thinks fit, receive and take into account information put before it, whether or not that information would normally be admissible in a court of law.

   (6)In making a decision under subsections (2) and (3), the paramount consideration is to be the need to ensure adequate protection of the community.

   (7)If the court releases the offender —

   (a)the offender remains subject to the supervision order; and

   (b)the court may, before the pending proceedings are determined, make an interim order amending the supervision order to include any requirements the court considers appropriate to ensure adequate protection of the community; and

   (c)the court may order the offender to reappear before the court at any adjourned hearing of the pending proceedings; and

   (d)if it is alleged that the offender has further breached the supervision order or breached an order made under paragraph (c), the court may issue a warrant to have the offender arrested and brought before the court.

5. In this case, s 56 is engaged as the respondent is before the court in respect of pending proceedings: s 56(1) of the High Risk Serious Offenders Act.

6. I considered whether the requirement for exceptional circumstances in s 56(3) was engaged in the disposition of the State's application for an interim order that the respondent be detained in custody made pursuant to s 53(2)(b), which in turn, depended upon whether s 56(2)(a) was engaged.[16]

   [16] The State of Western Australia v Slater [No 2] [2021] WASC 465 [17], cited with approval in The State of Western Australia v MAR [No 4] [2023] WASC 271 [14].

7. In that regard, the first question was whether the respondent was 'detained in custody' within the meaning of s 56(2)(a).[17] As to how such a question is answered, I adopted the views expressed by Quinlan CJ in The State of Western Australia v Slater [No 2] at [19] ‑ [20]:

   Prima facie, in my view, 'detained in custody', within the meaning of s 56, means detained pursuant to the provisions of the Act. Section 56(2)(a) cannot be construed as providing this Court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences. In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act in relation to a suspected or anticipated contravention of a supervision order. An order of the Court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply - including the requirements of s 56(3).

   Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).

   [17] The State of Western Australia v Slater [No 2] [18], cited with approval in The State of Western Australia v MAR [No 4] [15].

8. In this case, a warrant for the arrest of the respondent under s 51 had been obtained from a magistrate. As such, the respondent was 'detained in custody' when brought before the court on 22 September 2025. Therefore, I proceeded on the basis that I was required to be satisfied on the balance of probabilities of both matters specified in s 56(3) before I could order the respondent's release under s 56(2)(a).

9. The term 'exceptional circumstances' used in s 56(3)(a) is not defined in the High Risk Serious Offenders Act. I proceeded on the basis that the term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special or an exception to the general trend of cases.[18]

   [18] The State of Western Australia v CA [No 4] [2024] WASC 28 [19].

10. The standard conditions of the supervision order referred to in s 56(3)(b) are those set out in s 30(2), which provides as follows:

    A supervision order in relation to an offender must require that the offender –

    (a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and

    (b)report to, and receive visits from, a community corrections officer as directed by the court; and

    (c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and

    (d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and

    (e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

    (f)not commit a serious offence during the period of the order; and

    (g)be subject to electronic monitoring under section 31.

11. As to the phrase 'substantially comply' referred to in s 56(3)(b), this was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 in the context of contravention proceedings.[19] In the disposition of this application I adopted and applied the reasoning of Fiannaca J.

    [19] Director of Public Prosecutions for Western Australia v Hart [52].

12. The relevant questions to be decided were therefore as follows:[20]

    1.Was the respondent's release justified by exceptional circumstances?

    2.If released, would the respondent substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?

    [20] The State of Western Australia v CA [No 4] [22], applied in The State of Western Australia v Warmdean [No 5] [2024] WASC 396 [55].

13. This approach is consistent with the State's position as articulated in the course of the hearing.

14. In making a decision under s 56(2), the paramount consideration is to be the need to ensure adequate protection of the community.[21]

    [21] High Risk Serious Offenders Act, s 56(6).

15. In the disposition of the application, I also adopted and applied the observations of Quinlan CJ in The State of Western Australia v Slater [No 2] at [25] ‑ [27]:

    [T]he real issue is that which applies generally to an interim detention order (under s 46(2)(c)) or an interim supervision order under (s 58(2)(c)); namely, whether the Court is satisfied that, to ensure adequate protection of the community, it is desirable to make either an interim detention order or an interim supervision order. That is, in effect, the test that applies to the making of an interim supervision order generally.

    This points up an important aspect of any consideration of alleged contraventions of an interim supervision order. Compliance with an interim supervision order (and, indeed, any supervision order) is an important matter, and the importance of such compliance should not be understated. Nevertheless, it must be recognised, having regard to the text and structure of the Act as a whole, that an interim supervision order is not an end in, and of, itself. An interim supervision order is a means to an end: the end being the protection of the community against the risk of serious offences.

    In that sense, a supervision order or an interim supervision order will have served its purpose if it protects the community from serious offences, even if compliance with the conditions of the order, in the particular case, has not been perfect. The Court must always keep in mind that the object of the Act to be achieved is the adequate protection of the community from the commission of serious offences.

Assessment - order to be made during contravention proceedings

1. Having come before the court pursuant to a warrant issued on 22 September 2025 under s 51(3) of the High Risk Serious Offenders Act, I turned to consider whether the respondent should be released on a supervision order or remain detained in custody.

Exceptional circumstances

1. The first question was whether exceptional circumstances existed for the purposes of s 56(2) of the High Risk Serious Offenders Act. The respondent (who was not represented) did not raise any matter which could be characterised as an exceptional circumstance, and none were apparent on the affidavit evidence before the court. On the evidence before the court on 22 September 2025, I was not satisfied on the balance of probabilities that releasing the respondent was justified by exceptional circumstances within the meaning of s 56(3)(a) of the High Risk Serious Offenders Act.

Substantial compliance with the standard conditions

1. I then turned to the question posed by s 56(3)(b) as to whether the respondent had satisfied the court on the balance of probabilities that if released, he would substantially comply with the standard conditions of the supervision order, including any amendments made to the standard conditions of the supervision order under subsection (7)(b). The onus was on the respondent to establish that he would do so on the balance of probabilities.[22]

   [22] High Risk Serious Offenders Act, 56(4).

2. I noted the evidence available with respect to the circumstances in which the contravention offences were committed while the respondent was subject to the supervision order; that the respondent had refused further support from Uniting WA; and that therapeutic intervention had been withdrawn.

3. The conditions imposed upon the respondent by the supervision order are stringent and extensive. They were tailored so as to address the respondent's risk factors. There is no suggestion that the respondent had committed a serious offence since being released subject to the terms of the supervision order. Further, it was not suggested that the respondent had refused antilibidinal treatment, and it appeared that he had graduated from the Uniting WA program and had for a period some success in maintaining private rental accommodation. That said, in the absence of suitable accommodation, there appeared to be good reasons for the authorities to be concerned about their ability to manage the respondent in the community.

1. The issue with respect to accommodation was a matter that weighed heavily in favour of the making of an interim detention order when regard was had to the paramount consideration as prescribed at s 56(6).

2. I also considered whether a variation to the conditions might tip the balance. In this regard, I noted the evidence of Ms Jones the respondent's case manager, that she did not consider there to be any meaningful amendments that could be made to the supervision order to allow for adequate management of the respondent's risk of serious offending in the community.[23] On the evidence before me, particularly given the lack of suitable accommodation, I was not satisfied that a variation or imposition of additional conditions would ensure adequate protection of the community from the commission of serious offences.

   [23] Exhibit A, affidavit of CS Jones affirmed on 19 September 2025, par 54.

3. On the evidence before the court, particularly the evidence of there being no stable accommodation, I could not be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b). Therefore, the respondent will be detained in custody until completion of the directions hearing to be relisted in a fortnight. Whether he ought continue to be detained in custody will be revisited then.

4. While the orders otherwise promoted by the State in its minute appeared appropriate, the making of such directions ought be deferred until the respondent has had an opportunity to secure legal representation, and  at which time the contravention application will be listed for substantive hearing.

5. Given the evidence read raises as a concern the stability of the respondent's accommodation, at the directions hearing I will hear the parties as to whether a direction ought also be made requiring the Department of Justice to prepare an accommodation update report, and for Dr Wynn Owen to be given a copy of that report (should he be ordered to produce an expert report for the purposes of the contravention proceeding). I will also raise with the parties whether evidence as to the written lawful instructions given to the respondent while subject to supervision ought also be collated and before the court at the substantive hearing of the contravention proceedings.

Conclusion and orders

1. For these reasons, I was satisfied that I should make an order detaining the respondent until the conclusion of the next directions hearing. (A copy of the orders made on 22 September 2025 are reproduced at sch B to these reasons.)

Sch A - Supervision order conditions

Sch B - Orders made on 22 September 2025

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CR

Associate to the Honourable Justice Strk

23 SEPTEMBER 2025