The State of Western Australia v El Waly

[2024] WASC 519

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- EL WALY [2024] WASC 519

CORAM:   FIANNACA J

HEARD:   29 FEBRUARY 2024 & 27 MARCH 2024

DELIVERED          :   27 MARCH 2024

PUBLISHED           :   11 AUGUST 2025

FILE NO/S:   SO 1 of 2024

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

YASER EL WALY

Accused

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Whether interim detention order is desirable - Turns on own facts

Legislation:

Crimes Act 1958 (Vic)

Criminal Code1913 (WA)

High Risk Serious Offenders Act 2020 (WA)

Result:

There are reasonable grounds that the court may find the respondent to a be a high risk serious offender

The respondent is to be subject to an interim detention order pending determination of the restriction order application

Representation:

Counsel:

Applicant	:	Ms T Hollaway
Accused	:	Mr T McCulloch

Solicitors:

Applicant	:	State Solicitor's Office
Accused	:	Legal Aid WA

Cases referred to in decision:

Director of Public Prosecutions (WA) v Allen [2006] WASC 160

El Waly v R [2012] VSCA 184; (2012) 46 VR 656

Garlett v Western Australia [2022] HCA 30; (2022) 298 A Crim R 510; (2022) 96 ALJR 888; (2022) 404 ALR 182

The State of Western Australia v Garlett [2021] WASC 387

The State of Western Australia v Hansen [No 2] [2025] WASC 4

The State of Western Australia v Hart [2021] WASC 205

The State of Western Australia v Narrier [2021] WASC 250

The State of Western Australia v PAS [2020] WASCA 405

The State of Western Australia v Ryan [2020] WASC 352

The State of Western Australia v Winder [2021] WASC 65

Table of Contents

Introduction

The application and its history

Legal principles

The evidence

The respondent's criminal record

27 July 2002 - Assault occasioning bodily harm, aggravated indecent assault, indecent assault and stealing

23 July 2005 - Sexual penetration without consent

20 July 2006 - Rape & abduction/detention for sexual penetration

Propensity and pattern of offending

The respondent's general antecedents

The respondent's psychiatric history

Psychiatric assessment in 2010

Psychiatric assessment in May 2018

Discharge summaries from Frankland Centre - March 2022, January 2024

Prison medical records - March 2024

Risk assessment and treatment

June 2017 - Treatment assessment report

April 2018 - Pre-sentence report

May 2018 - Psychiatric report

Other reports and materials

February 2022 - Parole review report

March 2022 - Parole assessment

December 2022 - Individual management plan

July 2023 - Individual management plan

Documents from the Department of Justice, Corrections in Victoria

March 2024 - Proposed High Risk Serious Offender Treatment Options Report ('Treatment Options Report')

Conclusion as to the threshold question

The appropriate interim order - Considerations

The appropriate interim order - Applicant's submissions

The appropriate interim order - Respondent's submissions

The appropriate interim order - Conclusion

Orders

FIANNACA J:

Introduction

1. These are my reasons for orders made in the preliminary hearing of an application by the State of Western Australia (the applicant) for a restriction order in respect of the respondent under s 35 of the High Risk Serious Offenders Act 2020 (WA) (the Act) on the basis that he is a high risk serious offender under the Act.

2. The respondent has a history of serious sexual offending.  At the time of the preliminary hearing, he was serving a sentence of imprisonment that was an aggregate of terms of imprisonment imposed for serious sexual offences by the Supreme Court of Victoria (on appeal from a sentence imposed in the County Court of Victoria) on 16 August 2012 and by a judge of the District Court of Western Australia on 29 May 2018.

3. The main purpose of the preliminary hearing is for the court to decide whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender, as defined in s 7 of the Act.[1]  I will refer to this as the threshold test.

   [1] The Act s 46(1). 

4. The application was heard on 29 February 2024 and 27 March 2024.  It was supported by an affidavit of Ms Fleur Marie Allen, affirmed on 2 January 2024 (Ms Allen's affidavit).  Ms Allen is a Senior Assistant State Counsel in the employ of the State Solicitor's Office.  Ms Allen's affidavit annexed numerous documents concerning the respondent's court history and assessments that have been made of him in respect of his past sexual offending.  The application was also supported by an affidavit of Ms Cassie McNally, affirmed on 12 February 2024 (Ms McNally's affidavit).  Ms McNally is a Team Leader employed by the Department of Justice, Corrective Services Division, in the Community Offender Monitoring Unit.  Further materials were received by the court both on 29 February 2024 and 27 March 2024.

5. At the hearing, on 29 February 2024, the respondent did not offer any evidence that would affect the threshold test.  Counsel for the respondent conceded that the threshold test was met on the materials contained in the annexures to Ms Allen's affidavit.  I was satisfied the concession was properly made.  Accordingly, I made orders as required by s 46(2) of the Act, in terms set out at the end of these reasons.  I indicated that I would give written reasons in due course for doing so.

6. The application was adjourned to 27 March 2024 to deal with the outstanding aspect of the application, which was whether the court should make an interim detention order (IDO), as was sought by the applicant, or an interim supervision order to take effect upon the completion by the respondent of the sentence he was serving, which the respondent submitted was the appropriate order in all of the circumstances.  Having considered the additional materials received from the applicant and the respondent at that hearing, and having heard further submissions from the parties, I concluded that it was appropriate to make an IDO, which I did at the conclusion of the hearing, in the terms set out at the end of these reasons.  I gave detailed oral reasons at the time of making the order, but said I would provide written reasons which would elaborate upon the oral reasons and would include my reasons for making the orders on 29 February 2024, which had not yet been published.

7. These are my reasons for making the orders on 29 February 2024 and 27 March 2024.  They incorporate the detailed oral reasons I gave on 27 March 2024, edited from the transcript.

The application and its history

1. Section 35 of the Act provides:

   (1) The State may apply to the Supreme Court for a restriction order in relation to a serious offender under custodial sentence who is not a serious offender under restriction.

   (2) Subsection (1) applies whether the custodial sentence was imposed before or after the commencement of this section and whether or not the offender is in custody.

   (3) If the offender is in custody, an application under subsection (1) cannot be made unless there is a possibility that the offender might be released from custody within the period of 1 year after the application is made.

   (4) An application under subsection (1) need not specify whether the restriction order sought is a continuing detention order or a supervision order.

2. Section 3 of the Act defines 'serious offender under custodial sentence' to mean, relevantly, a person who is under a custodial sentence for a serious offence, which, in turn, is defined in s 5 of the Act.  Section 3 defines 'serious offender under restriction' to mean a person who is subject to a restriction order or an interim supervision order, as those terms are defined in the Act.

3. The application was filed by the applicant on 2 January 2024.  It is sufficient to note that, at that time, the respondent was a serious offender under custodial sentence.  He was serving an aggregate term of imprisonment of 15 years and 8 months, comprised of sentences imposed by the Supreme Court of Victoria, the Geelong Magistrates Court and the District Court of Western Australia.[2]  The nature of the offending will be discussed further below. 

   [2] Ms Allen's affidavit, p 19, Annexure 'D'.

4. The earliest date on which the respondent was eligible to be released from prison under that aggregate sentence was 7 April 2024.[3] Therefore, at the time of the hearing, the requirements of s 35(1) and s 35(3) of the Act were satisfied.

   [3] Ms Allen's affidavit, p 19, Annexure 'D'.

5. I referred above to the threshold question to be determined at a preliminary hearing.  In essence it requires consideration of whether it is possible that, on the hearing of a restriction order application, the court would be satisfied that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[4]  A restriction order is a continuing detention order, being an order that the offender be detained for an indefinite period for control, care or treatment, or a supervision order, being an order that the offender be subject to specified conditions (including conditions mandated by the Act) for a specified period while the offender is in the community.

   [4] The Act s 7(1).

6. If the court is satisfied that the possibility exists that the court would find the respondent to be a high risk serious offender, then, pursuant to s 46(2) of the Act, the court must:

   (1)make an order that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application (s 46(2)(a)); and

   (2)fix a day for the hearing of the restriction order application (s 46(2)(d)).

7. Under s 46(2)(b), on the application of the State, the court may also make an order for one or more other reports to be prepared. 

8. Finally, under s 46(2)(c)(i), if the respondent is in custody and might otherwise be released from custody before the restriction order application is finally decided, as was the case here, the court may order that the respondent be detained in custody for a period stated in the order (that is, an IDO). Alternatively, if the court does not make an IDO, and the respondent is released pending the hearing of the restriction order application, then, under s 58(5) of the Act, the court may make an interim supervision order, being an order that, with effect from a specified date and until the pending proceedings are finally determined or until another specified date, the offender is to be subject to stated conditions that the court considers to be appropriate, subject to the inclusion of certain mandatory conditions specified in s 30 of the Act.[5]

   [5] The Act s 58(6).

9. As I noted above, the respondent conceded that the threshold question is satisfied in this case.  Nevertheless, it is necessary for me to give reasons why I consider that the concession is properly made.

10. In its application, the applicant sought an IDO until the final determination of the application.  One of the grounds on which that order was sought was that there was no suitable accommodation to which the applicant could be released, where the respondent's putative risk of committing a serious offence could be managed in a way that would ensure the adequate protection of the community against that risk.  However, the applicant further submitted that, even if suitable accommodation were available, an IDO was necessary because the court could not be satisfied that an interim supervision order would provide adequate protection of the community against the putative risk that the respondent would commit a serious offence if he were to be released into the community.  This was due to the respondent's outstanding treatment needs and his non-compliance in respect of managing his mental health, together with his history of sexual offending.

11. On the respondent's behalf, it was submitted that an interim supervision order, with electronic monitoring, would provide adequate protection of the community pending the final determination of the application.  In that context, it was submitted that there were limitations to his ability to receive proper care for his mental health at the prison where he was being held.  The respondent has been diagnosed with paranoid schizophrenia.  It was also submitted that the respondent was not able to receive appropriate treatment in the custodial setting to address the factors relevant to his risk of sexual offending.  In accordance with established principle, counsel for the respondent submitted that the court should make the order that is least restrictive of the respondent's liberty, consistent with the adequate protection of the community.  If released, the respondent proposed to live with his mother, Ms K, at an address provided to the court.  The suitability of that address as accommodation where the respondent's risk could be adequately managed was questioned by the applicant.

12. At the conclusion of the hearing on 29 February 2024, I agreed to adjourn the application for the IDO to 27 March 2024, and made orders for the Department of Justice to prepare a report detailing what treatment had been provided to the respondent to that point, and what treatment would be made available to him should he be kept in custody on an IDO.  I had not determined at that stage that an IDO should be made, as I considered that counsel for the respondent should have the opportunity to make further submissions once information was available about the suitability of treatment which would be made available to the respondent in a custodial setting.  The adjournment also provided an opportunity for the respondent to file any evidence he wished to rely on concerning his participation in courses while in custody, a matter that had been raised by his counsel as indicative of steps taken by the respondent towards rehabilitation.

13. Prior to the hearing on 27 March 2024, the court received a Proposed High Risk Serious Offender Treatment Options Report dated 22 March 2024 ('Treatment Options Report'), additional progress medical notes in respect of the respondent for the period from 1 March 2024 to 21 March 2024, and an affidavit from the respondent's counsel, Mr Thomas James McCulloch, affirmed 26 March 2024 (Mr McCulloch's affidavit), which annexed two 'Completion Advice' reports and a 'Participation Advice' report in respect of three programs in which the respondent participated while incarcerated in Victoria in 2008 and 2010. 

14. As I noted earlier, having considered those materials, and having heard further submissions from the parties, at the conclusion of the hearing on 27 March 2024, I was satisfied that it was necessary for the respondent to be detained on an IDO.  Consequently, I made that order. 

Legal principles

1. In deciding whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender, it is necessary to consider the manner in which the determination of that issue must be undertaken at the substantive hearing of the restriction order application. 

2. At such a hearing, a court will find that an offender is a high risk serious offender if 'it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence'.[6]  However, at the preliminary hearing stage, the judge does not need to be satisfied that a restriction order will be made.  The threshold test is whether there are reasonable grounds for believing the court might reach the level of satisfaction required by s 7 of the Act.  To say that something might occur is to say that it is possible.  Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition.  For there to be 'reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[7]

   [6] The Act s 7(1).

   [7] The State of Western Australia v PAS [2020] WASCA 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

3. In the context of this application, a 'serious offence' within the meaning of the Act, relevantly includes the offence of aggravated sexual penetration without consent, under s 326 of the Criminal Code 1913 (WA) (Criminal Code), the offence of rape, under s 38 of the Crimes Act 1958 (Vic)[8] and the offence of abduction or detention, under s 55 of the Crimes Act 1958 (Vic).[9]

   [8] Pursuant to s 5(4) of the Act, this offence constitutes a 'serious offence' as, if it was committed in Western Australia, it would have been an offence of sexual penetration without consent, pursuant to Schedule 1, Division 1, Subsection 3, Item 21.

   [9] Pursuant to s 5(4) of the Act, this offence constitutes a 'serious offence' as, if it was committed in Western Australia, it would have been a serious offence of kidnapping or depravation of liberty, pursuant to Schedule 1, Division 1, Subsection 3, Items 30-31.

4. On the hearing of a restriction order application, in deciding whether the respondent is a high risk serious offender, the court must have regard to the matters set out in s 7(3) of the Act.  It is appropriate in the preliminary hearing, therefore, to consider what evidence there is in respect of those matters, upon which the court could rely at the substantive hearing.  Those matters include, relevantly at this stage (referring to the paragraph lettering in s 7(3)):

   (b)any other medical, psychiatric, psychological, or other assessment relating to the offender;[10]

   (c)information indicating whether or not the respondent has a propensity to commit serious offences in the future;

   (d)whether or not there is any pattern of offending behaviour by the respondent;

   (e)any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation programme;

   (f)whether or not his participation in any such programme has had a positive effect on him;

   (g)the respondent's antecedents and criminal record;

   (h)the risk that, if the respondent were not subject to a restriction order, he would commit a serious offence;

   (j)the need to protect members of the community from that risk.

   [10] That is, other than any report referred to in paragraph (a), being a report prepared under s 74 of the Act for the hearing of the application, which would not occur until after the preliminary hearing. 

5. The matters in s 7(3) overlap.  For instance, the respondent's antecedents and criminal record will inform the question of whether the respondent has a propensity to commit serious offences in the future and whether there is any pattern of offending behaviour by him.  All three of those matters inform the question of whether there is a risk that, if the respondent were not subject to a restriction order, he would commit a serious offence and the need to protect members of the community from that risk.

6. I bear in mind also the general principles that have been identified in the authorities concerning the proper approach to the determination of whether a person is a high risk serious offender, which a court at a restriction order hearing would have to apply.[11]  It is not necessary to repeat them here.  It is sufficient to note that, generally, the principles that had developed in respect of proceedings under the Dangerous Sexual Offenders Act 2006 (WA) (repealed) remain applicable in relation to proceedings under the Act, subject to the qualification that the criteria for finding that a person is a high risk serious offender under s 7(1) of the Act, as set out in [23] above, involves a two-step evaluative process.[12]  The first evaluative step requires the court to determine whether, in the absence of any measures that would provide protection of the community against the risk that a respondent would commit a serious offence in the future, that risk is unacceptable, which requires the balancing of various considerations.  The second evaluative step requires the court to determine whether a restriction order is necessary to provide adequate protection of the community against the unacceptable risk that has been found to exist.  That requires consideration of whether there are measures, other than a restriction order, that would provide adequate protection of the community against the unacceptable risk.  If there are, the risk could no longer sensibly be regarded as 'unacceptable'. 

   [11] I discussed them in some detail in The State of Western Australia v Hansen [No 2] [2025] WASC 4 at [22] - [48]. Although that decision was published after I gave my decision in this case, the principles set out in Hansen [No 2] reflect the principles I considered to be applicable at the time I gave my decision in this case.

   [12] The State of Western Australia v Garlett [2021] WASC 387 [135]. See also Garlett v Western Australia [2022] HCA 30; (2022) 298 A Crim R 510; (2022) 96 ALJR 888; (2022) 404 ALR 182 (Garlett v Western Australia) [73] (Kiefel CJ, Keane and Steward JJ), [220], [225] - [228] (Edelman J).

1. In Garlett v Western Australia, Kiefel CJ, Keane and Steward JJ put the matter in the following terms, which highlights the need to bear in mind the importance of the liberty of the individual:[13]

   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.

   [13] Garlett v Western Australia [73].

2. It must be borne in mind that both forms of restriction order affect an individual's entitlement to be at liberty. 

The evidence

1. The evidence in the application consists of:

   (1)Ms Allen's affidavit and its annexures;

   (2)Ms McNally's affidavit;

   (3)medical records in respect of the respondent from Hakea Prison;

   (4)two discharge summaries from the State Forensic Mental Health Service at the Frankland Centre, for periods of admission to that facility in February 2022 and January 2024 respectively;

   (5)a Victim-Offender Mediation Unit Report dated 17 March 2022;

   (6)the Treatment Options Report; and

   (7)Mr McCulloch's affidavit and its annexures. 

2. The annexures to Ms Allen's affidavit include: records of the respondent's criminal history in Western Australia and Victoria; a record kept by the Board Secretariat of the Prisoners Review Board in relation to parole decisions concerning the respondent; court documents, transcripts and particulars concerning the respondent's convictions and sentencing for sexual offences in Western Australia and Victoria; a treatment assessment report dated 21 June 2017; a pre-sentence report dated 3 April 2018; a psychiatric report of Dr Peter Wynn Owen dated 6 May 2018; a Parole Review Report dated 23 February 2022; a Parole Assessment Report dated 31 March 2022; two individual management plans in respect of the respondent, dated 23 December 2022 and 14 July 2023; and a chronology prepared by the State Solicitor's Office of the respondent's serious and other relevant offending.

3. Ms McNally's affidavit related to enquiries made about the proposed accommodation for the respondent and matters concerning treatment of his mental illness.

The respondent's criminal record

1. The respondent has a significant and lengthy criminal history, which includes convictions for:

   (1)offences in Western Australia from 2001 to 2005 of common assault, using threatening words or behaviour, assault occasioning bodily harm, aggravated indecent assault, indecent assault, stealing, and sexual penetration without consent (for which he was dealt with in May 2018, although the offence was committed in 2005); and

   (2)offences in Victoria from 2009 to 2014 of 'reckless conduct endanger serious injury' (which appears to have involved the respondent deliberately driving a delivery truck at a person, striking them and causing injury[14]), rape, abduction/detention for sexual penetration, and wilful and obscene exposure. 

   [14] Ms Allen's affidavit, p 96 (Annexure 'T') - Dr Wynn Owen's report of 6 May 2018.

2. The materials filed by the applicant also refer to a criminal record in Queensland from when the respondent was 19 years old, but that criminal history has not been included in the materials.

3. The offences of rape (s 38 of the Crimes Act 1958 (Vic)), abduction/detention for sexual penetration (s 55 of the Crimes Act 1958 (Vic)), aggravated indecent assault (s 324 of the Criminal Code)[15] and sexual penetration without consent (s 325 of the Criminal Code) are 'serious offences' for the purposes of the Act.[16]

   [15] This offence was not identified as a 'serious offence' in the applicant's chronology of the respondent's offending.  This appears to have been because the offence was perceived to be an offence of indecent assault under s 323 of the Criminal Code.  However, the indictment and the sentencing judge's description of the offence clearly show that count 3 in the indictment was an offence under s 324, the circumstance of aggravation being the causing of bodily harm to the victim. 

   [16] The Victorian offences of rape and abduction/detention for sexual penetration equate to offences of sexual penetration without consent (s 325 of the Criminal Code) and deprivation of liberty (s 333 of the Criminal Code) respectively, both of which are serious offences in sch 1 div 1 of the Act.

4. The offences in Victoria of rape and abduction/detention for sexual penetration were committed by the respondent on 20 July 2006.  It appears he was extradited from New South Wales to Victoria to face those charges on 7 August 2008.[17]  He was convicted in the County Court of Victoria in Melbourne after a trial by jury, and was sentenced on 6 December 2010 to a total effective sentence of 13 years and 6 months' imprisonment.[18]  He successfully appealed against the sentence in the Victorian Court of Appeal, which, on 16 August 2012 reduced the total effective sentence to 12 years and 4 months' imprisonment, being 10 years and 10 months for the rape offence, and 3 years for the offence of abduction/detention for sexual penetration, of which 1 year and 6 months were to be served cumulatively on the sentence for the rape offence.[19]  The Court of Appeal ordered that the respondent serve a non-parole period of 9 years and 4 months, and declared that the respondent had already served 1379 days (more than 3 years and 9 months) by way of pre-sentence detention.[20]

   [17] Ms Allen's affidavit, p 15 (Annexure 'C').

   [18] Ms Allen's affidavit, pp 44 - 65 (Annexure 'L').

   [19] Ms Allen's affidavit, pp 11, 12, 25 (Annexures 'B' and 'F'); El Waly v R [2012] VSCA 184; (2012) 46 VR 656.

   [20] Ms Allen's affidavit, p 11 (Annexure 'B').

5. On 24 November 2014, the respondent was sentenced in the Geelong Magistrates Court to one month's imprisonment, cumulative upon the sentence he was already serving, for a Common Law offence of wilful and obscene exposure.  It appears the offence involved the respondent indecently exposing himself to a female prison officer at Barwon Prison in 2013.[21]  The sentence imposed on that occasion brought the total sentence the respondent was serving in Victoria to 12 years and 5 months' imprisonment. 

   [21] Frankland Centre Discharge Summary, 3 March 2022, p 2; Medical Record from Hakea Prison printed 25 March 2024, p 1.  Although the information does not appear in any of the other materials filed by the applicant, it correlates with the fact that the respondent was serving the sentence imposed in 2010 at that time.

6. The respondent was subsequently transferred to Western Australia in 2017, where he was received at Hakea Prison on 7 March 2017[22] and continued to serve the sentences imposed in Victoria.  The Parole Review Report dated 23 February 2022 states that the interstate transfer occurred for 'welfare reasons', which are not specified.[23]  The discharge summary from the Frankland Centre dated 3 March 2022 indicates that the explanation for the transfer was that the respondent's father was unwell.[24]  Although that information does not appear in the materials annexed to Ms Allen's affidavit, I will take it to be correct.

   [22] Ma Allen's affidavit, p 88 (Annexure 'S') - Pre-Sentence Report of 4 April 2018.

   [23] Ms Allen's affidavit, p 104 (Annexure 'U').

   [24] Frankland Centre Discharge Summary, 3 March 2022, p 2.

7. On 29 May 2018, after pleading guilty and being convicted of the offence of sexual penetration without consent, which he had committed on 23 July 2005, he was sentenced in the District Court to imprisonment for 3 years and 3 months, to be served cumulatively on the sentence he was already serving, with eligibility for parole.[25]  That brought the total of the sentences imposed in Victoria and Western Australia to 15 years and 8 months' imprisonment.

   [25] Ms Allen's affidavit, p36 (Annexure 'I').

8. Taking into account the time that was allowed by the Victorian Court of Appeal as time served by way of pre-sentence detention, it would appear that the aggregate sentence was taken to have commenced on 7 August 2008, the date he was apprehended in New South Wales to be extradited to Victoria.[26]  That accords with 7 April 2024 being the date on which the respondent was due to be released from prison, having served the full term of each of his sentences.  The respondent was denied release on parole for reasons I will discuss below. 

   [26] Ms Allen's affidavit, p 15 (Annexure 'C').

9. Prior to the offending on 23 July 2005, the respondent had been convicted on his pleas of guilty in the District Court of Western Australia on 9 February 2004 of one count of assault occasioning bodily harm, one count of aggravated indecent assault (the circumstance of aggravation being the doing of bodily harm to the victim), one count of indecent assault and one count of stealing.  The offences were committed by the respondent on 27 July 2002.  He was sentenced on 10 February 2004 to a total sentence of 6 months' imprisonment, consisting of a sentence of 6 months for the aggravated indecent assault, and concurrent sentences of 3 months' imprisonment for the offences of assault occasioning bodily harm and indecent assault.  He was fined for the stealing offence. 

10. While the serious offences of which the respondent has been convicted provide the foundation for the application under the Act, the other offences for which the respondent was sentenced on 10 February 2024 are also relevant to the assessment of his risk of committing a serious offence in the future.  Overall, the history reveals an escalation in his sexual offending between 2002 and 2006.  On each occasion, the respondent has preyed on vulnerable women.

11. It is appropriate to outline the offending chronologically.

27 July 2002 - Assault occasioning bodily harm, aggravated indecent assault, indecent assault and stealing

1. On the evening of 26 July 2002, the respondent, who was 22 years old, was at a nightclub in Subiaco with friends when he met the victim, a 25-year-old woman.[27]  They engaged in conversation and danced together for a short period of time.  The pair then went to a hotel nearby.  The police Statement of Material Facts stated that the respondent followed the victim to the hotel, but, in any event, they continued to socialise.  It appears they consumed alcohol at both venues.  The victim then left the second venue around 12.45 am on 27 July 2002, telling the respondent that she was going to catch a taxi.  The respondent followed her and offered her a lift home, which she accepted.  The victim told the respondent that her vehicle was parked in Wembley.  The respondent began driving towards Wembley, but passed the turnoff, telling the victim he wished to go for a bit of a drive first.  He drove the victim to an area of dense bush and parked the car. 

   [27] Ms Allen's affidavit, pp 67 (Annexure 'N') and 76 (Annexure 'P') (reference to the victim's age in the sentencing judge's sentencing remarks).

2. The victim said she wanted to go home.  However, the respondent reclined both of their seats and jumped on top of the victim, saying he was going to give her a massage.  He forced her arms above her head and tried to push her top up.  He told her he was going to have sexual intercourse with her.  He then grabbed the victim around the throat and restrained her as she was trying to get out of the car, telling her that she was not getting out.  When the victim told the respondent that she could not breathe, he removed his hands from her throat.  He then undid her jeans and slid them down.  He then kissed the victim on the lips.  He bit her lips and neck.  He then lifted the victim's top and sucked and bit her breasts.  The victim tried to resist the respondent, but was not able to stop him physically because of his strength.  However, she managed to negotiate with the respondent to release her, as a result of which the respondent opened the car door and told her to go.  When she tried to retrieve her handbag and mobile telephone, the respondent pushed her out of the car and drove off with those items still in the car.  The victim went down the road and was picked up by a young couple in another vehicle.  She was crying and very distressed.[28]

   [28] Ms Allen's affidavit, p 78 (Annexure 'P').

3. The respondent was arrested on 9 August 2002.  He was still in possession of the victim's mobile telephone.  When his house was searched, police found the victim's handbag and purse in his bedroom.

4. The victim suffered substantial bruising to her neck and breasts, and bruising and swelling of her lips, as a result of the attack.[29]  She also had injuries to her right arm and to her left hand and wrist, consistent with her trying to resist the respondent.  The doctor who examined the victim shortly after the events said that the injuries to her neck indicated the application of significant blunt force, which had the potential to be life threatening.[30]

   [29] Ms Allen's affidavit, p 76 (Annexure 'P').

   [30] Ms Allen's affidavit, p 76 (Annexure 'P').

5. I note that, at the sentencing hearing, the respondent claimed, through his counsel, that he and the victim had gone to the hotel together and that, when they 'went off in the car … there was consensual petting', claims that were inconsistent with the victim's account.[31]  It appears the sentencing judge did not it consider it necessary to resolve those inconsistencies, because the facts were otherwise 'substantially admitted', in particular the elements of the offences.[32]

   [31] Ms Allen's affidavit, pp 73 - 74 (Annexure 'P').

   [32] Ms Allen's affidavit, pp 73 - 74 (Annexure 'P').

6. Having regard to the indictment,[33] the offence of assault occasioning bodily was constituted by the grabbing of the victim's arms and her throat and other applications of force that resulted in the injuries to those parts of her body.  The aggravated indecent assault was constituted by the biting of the victim's lips and breasts, which resulted in bodily harm.  The indecent assault was constituted by the removal of the victim's jeans.  The stealing, of course, related to the victim's mobile telephone, handbag and purse, although that offending appeared to be incidental, once the respondent realised he was not going to get his way sexually.  The circumstances suggest an element of vindictiveness in that conduct.

   [33] Ms Allen's affidavit, p 66 (Annexure 'M').

7. In describing the seriousness of the offending, the learned sentencing judge, Groves DCJ, noted that the victim had asked the respondent to stop what he was doing on more than one occasion, and made it quite apparent that she did not want to engage in sexual activity, but the respondent persisted despite the protestation.  His Honour further noted that, having courageously resisted strongly, the victim managed eventually to appeal to the respondent's 'better nature' to desist, and that, when it was apparent to him that he 'was not going to have [his] way with her', he pushed her out of the vehicle.[34]

   [34] Ms Allen's affidavit, p 78 (Annexure 'P').  The transcript records the learned sentencing judge saying that the victim 'desisted strongly', but from the context it is apparent his Honour said (or at least intended to say) 'resisted'.

8. In deciding that a term of imprisonment was necessary, his Honour referred to the fear, distress and injuries caused to the victim, and the fact that 'young females in the community must be protected from this kind of predatory behaviour'.[35]

   [35] Ms Allen's affidavit, p 78 (Annexure 'P').

9. As stated above, the respondent was sentenced to 6 months' imprisonment on 10 February 2004 (backdated to commence on 9 February 2004),[36] when he was 24 years old.

23 July 2005 - Sexual penetration without consent

[36] Ms Allen's affidavit, p 79 (Annexure 'P').

1. The respondent committed the offence of sexual penetration without consent on 23 July 2005 when he was 25 years old, and within one year, it would seem, after his release from the sentence of 6 months' imprisonment for the earlier sexual offending.

2. The offence occurred in the early hours of a Saturday morning (said in the Statement of Material Facts to be between 1.30 am and 2.00 am).[37]  The victim was a 21-year-old female who was intoxicated and walking home alone in Northbridge.  The respondent met the victim at the corner of two main streets and offered her a lift home.  The victim declined the offer and continued to walk towards her home.  The respondent then followed the victim in his car, a Mercedes Benz, passing her and then reversing his car into a vacant block in East Perth, along the route the victim was taking.  The block was in darkness.  The victim was not aware she had been followed.  As she passed the location where the respondent had parked, she was taken by surprise when he appeared and pushed her into the back of his car.  He then got on top of her and forced her arms above her head.  As he held her arms, he removed her jeans and underwear.  He then forced the victim's legs apart and forced his penis into her vagina.  It appears from the evidence obtained in the investigation that the respondent used a condom.  The victim tried to get out of the vehicle, and tried to persuade him to stop, but the respondent continued to hold her down and to penetrate her vagina with his penis.  He then suddenly opened the car door and let the victim out.  She got dressed and ran to a friend's house. 

   [37] Ms Allen's affidavit, p 30 (Annexure 'H').

3. When examined by a doctor he same morning, the victim was found to have bruises on her arms and legs, which were the result of the respondent's assault on her.

4. Police investigating the incident found a used condom at the scene.  The initial analysis for DNA revealed that DNA matching the victim's profile was on the outside of the condom, and that the profile of the DNA found on the inside was not known at that stage. 

5. On 27 April 2006, police executed a search warrant at the respondent's home, where they located a Mercedes Benz vehicle that was believed to be the vehicle used in the offence.  The respondent was arrested, and a DNA sample was obtained from him.  Further analysis revealed, on 5 May 2006, that the profile of the DNA found inside the condom matched the respondent's DNA profile.  However, it appears that before the respondent could be charged, but at a time when 'he was aware that the suspicions had alighted upon him', he left the state.[38]  The respondent went to Victoria and, within three months, he committed the offence of rape in Melbourne.

   [38] Ms Allen's affidavit, p 34 (Annexure 'I') - sentencing judge's remarks, 29 May 2018.

6. In sentencing the respondent on 29 May 2018, the learned sentencing judge, McCann DCJ, said:[39]

   In short, Mr El Waly ambushed and violently raped a vulnerable girl in the early hours of the night after she had been socialising in Northbridge.  Considerable force was used even though it was not necessary. 

   This is a particularly worrying aspect of the case because it seems to me the infliction of violence is a part of the sexual gratification of the behaviour.  So, it's a very a serious example of this kind of offending with a complete absence of extenuating or mitigating factors, save, possibly for the fact that Mr El Waly used a condom.

20 July 2006 - Rape & abduction/detention for sexual penetration

[39] Ms Allen's affidavit, p 34 (Annexure 'I').

1. The respondent's next sexual offending occurred on 20 July 2006 in a suburb of Melbourne.  He was convicted after a trial by jury in 2010.  The facts of the offending may be discerned from the learned trial judge's sentencing remarks. 

2. At the time of the offences, the respondent was 26 years old.  The victim was a 20-year-old female who was vision impaired (described as 'legally blind').[40]  She had no sight in her right eye and limited sight in her left eye.  The victim was walking down a footpath by herself, using her white cane.  As the learned sentencing judge said, there could be no doubt that it was obvious she was blind.[41]  It was the first time the victim had been out in public on her own.  She was going to a medical clinic at a particular shopping centre.  She was not far from the shopping centre when the respondent approached her, driving a tray truck that belonged to a transport company for whom he was working.  The sentencing judge noted that, in order for the respondent to get from the part of the road where he had been driving to where he stopped near the victim, he had to drive down the wrong side of a service road, which showed how far he was prepared to go to get to the vulnerable victim.[42]

   [40] Ms Allen's affidavit, p 45 (Annexure 'L') - trial judge's remarks at sentencing, 6 December 2010.

   [41] Ms Allen's affidavit, p 45 (Annexure 'L') - trial judge's remarks at sentencing, 6 December 2010.

   [42] Ms Allen's affidavit, p 45 (Annexure 'L') - trial judge's remarks at sentencing, 6 December 2010.

1. The respondent sought to engage the victim in conversation, falsely stating he was from a 'care centre' and would assist her.  The sentencing judge noted this made it clear the respondent knew the victim had impaired vision.  The respondent got out of the truck and grabbed the victim.  He walked her to the passenger side of the truck where forced her into the truck.  He then got into the driver's side and drove off.  He told the victim he was taking her to a shopping centre, but instead drove her eventually to a new housing estate where there were empty houses under construction.  He then guided the victim into a garage of one such house and pulled the garage door down, securing it closed with a large rock he found on the site.  The victim was terrified, and the respondent commenced to threaten her.  He grabbed the victim's cane and threw it away, and also flung her bag off her.  He then started to hug the victim and rub her inner thighs.  The victim protested and attempted to kick the respondent in the groin, following which the respondent threatened to drug the victim if she did not calm down.  He then put the victim on the floor, removed her clothing and raped her, while she lay there helpless. 

2. There was a question at trial as to whether penetration had been penile or digital.  The trial judge was satisfied beyond reasonable doubt that the respondent penetrated the victim with his penis while wearing a condom.[43]  He was satisfied on the basis of the victim's evidence that, with her limited vision, she saw the respondent putting a condom on his penis, and on the basis that it was 'plain that [the respondent] ejaculated into the condom and then threw it away later'.[44] 

   [43] Ms Allen's affidavit, p 47 (Annexure 'L') - trial judge's remarks at sentencing, 6 December 2010.

   [44] Ms Allen's affidavit, p 47 (Annexure 'L') - trial judge's remarks at sentencing, 6 December 2010.

3. The respondent then guided the victim back to his car and drove her to near a doctor's surgery and dropped her off.  During the drive to the doctor's surgery, the respondent apologised to the victim for his behaviour and said he felt the need to have sex and was 'just looking for someone to do it with'.  In sentencing the respondent, the trial judge said:[45]

   This brutal attitude of once you felt the need you would simply find a woman and rape her if necessary reveals a dark side to your character.

   [45] Ms Allen's affidavit, p 47 (Annexure 'L') - trial judge's remarks at sentencing, 6 December 2010.

4. Once she was out of the truck, the victim promptly reported the rape to her doctor.  During the police investigation that followed, the victim was able to take police to the relevant garage.  There police found a used condom from which DNA was extracted.  Through the cooperation of the state police, the profile of the DNA from the condom was found to match the respondent's DNA profile obtained in Western Australia.  However, it appears that, prior to that, the respondent had moved to New South Wales.  He was arrested there and extradited to Victoria two years later. 

5. It is apt to note that, in sentencing the respondent, the judge referred to the impact of his offending on the victim, noting that it had devastated her, transforming her from being a vibrant young woman dealing with her disability, to being introverted and frightened, as well as affecting her relationships with friends and family.[46]  These impacts were significant and underline the need for protection of the community, which is an obvious relevant consideration under s 7(3) of the Act, notwithstanding that his Honour also noted the persistence of the victim's courage and humanity.[47]

   [46] Ms Allen's affidavit, p 50 (Annexure 'L') - trial judge's remarks at sentencing, 6 December 2010.

   [47] Ms Allen's affidavit, p 50 (Annexure 'L') - trial judge's remarks at sentencing, 6 December 2010.

Propensity and pattern of offending

1. Having regard to the respondent's past offending, it would be open to the court to find at the restriction order hearing that the respondent has demonstrated a propensity to commit serious sexual offences, accompanied with other forms of violence, against vulnerable women.  The propensity may be inferred from not only the nature, repetition and similarity of the sexual offending by the respondent, but also the fact that the offending occurred over a relatively short period of time in the respondent's life, including soon after being imprisoned for such offending.  Although the last of the respondent's sexual offences of that kind was in July 2006, he has not had the opportunity to offend in a similar way since his arrest in New South Wales on 7 August 2008, as he has been incarcerated since that time, either on remand or serving sentences of imprisonment.

2. I will deal with the psychiatric opinion below, but it is appropriate to note that the respondent's propensity was identified by McCann DCJ when sentencing the respondent in the District Court of Western Australia on 29 May 2018, when his Honour said:[48]

   I think he is a serial offender.  There have now been three criminal convictions of this kind, and the psychiatric report, whilst excluding any sociopathy or psychopathy, deems him to be an above average chance of reoffending in a similar way, which finding I accept.  So, he's an offender who gets pleasure out of this behaviour, commits these offences in the same way, and lacks social controls.

   [48] Ms Allen's affidavit, p 34 (Annexure 'I') - sentencing judge's remarks, 29 May 2018.  (I have amended the syntax in the transcript where, with respect, I consider it to be inapt.)

3. On the evidence available at the preliminary hearing, those observations appear to be well-founded.

4. There has been a pattern to the respondent's offending.  First, it has been predatory.  Secondly, he has targeted vulnerable women.  All three women were alone.  In two instances they were women who were affected by alcohol, and, in the other instance, the woman had a physical disability, which the respondent exploited.  All three offences involved the respondent either luring or forcing the victim into his vehicle.  In the instances where he lured the victims, he used deception to do so.  In the first two instances, the offending occurred in his vehicle.  In all of the offending, he managed to isolate his victims to avoid detection.  In each case he used physical force of a similar nature to impose himself on the victim and overcome physical resistance, causing injuries to at least the first two victims.  In the first instance, he did not reach the point of penetration, but in the other two instances he penetrated the victim with his penis until ejaculation, while wearing a condom. 

The respondent's general antecedents

1. There are indications in the materials annexed to Ms Allen's affidavit that the respondent has been inconsistent in describing some aspects of his background and his personal circumstances generally, and he has been assessed to be an unreliable historian in that regard.[49]  Part of the problem in determining the truth of his accounts about his history is that he has a 'tendency to want to talk about himself in a very grandiose/self-aggrandising manner', as it was described by Dr Wynn Owen in 2018.[50]  However, apart from information concerning his mental health problems, it seems to me that there is nothing of significance in the respondent's background, as described by him, that would explain his offending, although an offender's general history will always be taken into account in assessing his risk.  It is sufficient to note the following.

   [49] See, for example, the summary provided by Dr Wynn Owen in his report of 6 May 2018: Ms Allen's affidavit, p 94 (Annexure 'T').

   [50] Ms Allen's affidavit, p 94 (Annexure 'T').

2. The respondent is now 44 years old.  He is the youngest of his parents' three children.  His parents are from different parts of the Middle East.  He lived with his family for a period in Syria, before the family migrated to Australia when he was 12 years old.[51]  He has said he saw disturbing public events in Saudi Arabia and that his family was forced to leave Syria by the authorities.[52]  He told Dr Wynn Owen that he had been physically abused by a male relative.[53]  In Australia, the family lived in Perth, where the respondent completed his schooling to year 10.  He then worked in the horse racing business, with aspirations to be a jockey, which ended when he grew and was deemed to be too big.  He subsequently worked mainly in the construction industry and driving delivery trucks. 

   [51] He told the author of the pre-sentence report prepared for the sentencing proceedings in 2018 that the family moved to Australia when he was 15, but he has provided information on other occasions, including to Dr Wynn Owen for a psychiatric report for the same proceedings, that the family moved when he was 12.

   [52] Ms Allen's affidavit, p 53 (Annexure 'L'), p 99 (Annexure 'T').

   [53] Ms Allen's affidavit, p 98 (Annexure 'T').

3. At the time of being sentenced in 2004, the respondent described himself as a 'very religious man', to explain that his going to a nightclub and drinking alcohol was unusual, but the description has a hollow ring in light of his offending.

4. The respondent has previously been married for a short period.  He has no children.  He told Dr Wynn Owen that he has had a number of significant relationships lasting one to two years, the first occurring when he was 20 years old.[54]  Dr Wynn Owen got the impression from the respondent that the relationships were 'superficial at best', that there were ongoing difficulties with communication, and that the respondent 'demonstrates retrospective idealisation of partners'.[55]  During his admission to the Frankland Centre in 2022, the respondent gave further details of his relationships, referring in particular to the fact that a girlfriend with whom he had moved back to Western Australia from Queensland in 2000 left him because his family was 'horrible' to her.[56]  He said he had difficulty maintaining relationships after that.

   [54] Ms Allen's affidavit, p 99 (annexure 'T').

   [55] Ms Allen's affidavit, p 99 (annexure 'T').

   [56] Frankland Centre Discharge Summary, 3 March 2022, p 4.

5. The judge sentencing the respondent in Victoria in 2010 noted that, after the offending in July 2006, the respondent commenced a relationship with a woman named VS, and they moved to New South Wales so she could be near her family.  The relationship ended after two years or so, but VS remained supportive of the respondent and wrote a letter of support to the court in which she referred to the respondent's 'worthwhile characteristics'.[57]  The respondent's parents were also supportive of him.  His father is now deceased,[58] but his mother remains supportive.

   [57] Ms Allen's affidavit, p 54 (Annexure 'L').

   [58] ts 33, 29/2/24.

6. The judge also noted that there had been tragedy in the respondent's family in the preceding years.  His grandmother had died violently in Gaza in 2006, and his brother had died in a fire in Perth earlier in 2010.

The respondent's psychiatric history

1. The evidence in respect of the respondent's mental health is complicated.  As with other aspects of his history, there appear to be inconsistencies in what he has said about his mental health and past diagnoses.  The existence of a mental illness has been questioned by psychiatrists who have examined the respondent for court proceedings, but he has been on anti-psychotic medication in the past, and the most recent assessments appear to have resulted in a diagnosis of schizophrenia, as will appear below.  It is necessary to outline the history in respect of the respondent's mental health, as it has a bearing on my decision that he should be subject to an IDO. 

Psychiatric assessment in 2010

1. The judge sentencing the respondent in Victoria in 2010 noted that the psychiatrist who had examined the respondent to provide a report for the sentencing hearing had said that the respondent gave an 'unusual and inconsistent psychiatric history'.[59]  The respondent had reported a four-year history of auditory and visual hallucinations, and a long history of depression and anxiety.[60]  According to the psychiatrist, Dr Butt, the respondent had given an account of 'symptoms of isolated auditory and visual hallucinations' that was 'inconsistent with usual presentations of psychotic illnesses'.[61]  The respondent had also told Dr Butt that psychiatric staff at the Remand Centre had initially diagnosed him with schizophrenia, which was then altered to post-traumatic stress disorder (PTSD).  It appears that the respondent was in fact on anti-psychotic medication, Seroquel.  However, Dr Butt reported that, after discussion with a psychiatrist who was treating the respondent in the Remand Centre at that time, it had become clear that neither schizophrenia nor PTSD had been confirmed as a valid diagnosis, and it was planned to reduce the anti-psychotic medication, as it was considered that there was 'no indication for it to be prescribed'.[62]  

   [59] Ms Allen's affidavit, p 55 (Annexure 'L').

   [60] Ms Allen's affidavit, p 55 (Annexure 'L').

   [61] Ms Allen's affidavit, p 55 (Annexure 'L').

   [62] Ms Allen's affidavit, p 55 (Annexure 'L').

2. Dr Butt had found no evidence of psychotic illness when she interviewed the respondent, and she considered that psychotic symptoms had not been a feature of the respondent's presentation to psychiatric services in the prison.  Consequently, she was of the opinion that the respondent did not suffer from a psychotic illness or other forms of major mental illness (including a severe anxiety or depressive disorder), and did not need treatment from mainstream mental health services.[63]  Dr Butt was of the opinion that the depression and anxiety the respondent had described did not seem to impair his functioning in major areas of his life.[64]  The court accepted Dr Butt's opinions.

Psychiatric assessment in May 2018

[63] Ms Allen's affidavit, p 55 (Annexure 'L').

[64] Ms Allen's affidavit, p 55 (Annexure 'L').

1. When examined by Dr Wynn Owen, a consultant forensic psychiatrist, in May 2018, for the purposes of a psychiatric report to be used at the sentencing in the District Court that month, the respondent reported 'being diagnosed with psychosis in the 1990s by a Brisbane GP when experiencing auditory and visual hallucinations and being referred an Emergency Department where he was apparently assessed and sent home with no treatment'.[65]  Dr Wynn Owen noted that there were no records available to clarify the respondent's account, but he was of the view that '[the respondent's] assessment and discharge with no follow up are highly suggestive that no major illness was found to be present'.[66]  He further noted that, in 2004, when interviewed for a pre-parole risk assessment report, the respondent had said he was treated by his Brisbane GP for depression, but did not mention psychosis.[67]

   [65] Ms Allen's affidavit, p 97 (Annexure 'T').

   [66] Ms Allen's affidavit, p 97 (Annexure 'T').

   [67] Ms Allen's affidavit, p 97 (Annexure 'T').

2. Dr Wynn Owen also noted that the respondent reported being diagnosed with schizophrenia, and then PTSD, in the Victorian Forensic Mental Health Facility, Thomas Embling Hospital, to which he was transferred from prison in 2014.  The reference to 2014 is correct, having regard to other information in the available materials.[68]  Dr Wynn Owen questioned the accuracy of the respondent's account, but he appears to have done so by referring to the report of Dr Butt, which was prepared for the sentencing hearing in 2010, some four years earlier.  Dr Wynn Owen noted that, 'although tentative diagnoses were made at the time of transfer out of prison', Dr Butt had found that the respondent was not suffering from any major mental illness.[69]  It is not clear whether Dr Wynn Owen intended to convey that Dr Butt's earlier opinion tended to negate any tentative diagnoses in 2014, or whether he inadvertently conflated two separate occasions.  As will appear below, the diagnosis made in 2014 was of a delusional disorder, with a differential diagnosis of schizophrenia.

   [68] Frankland Centre Discharge Summary, 3 March 2022, p 2.

   [69] Ms Allen's affidavit, p 97 (Annexure 'T').  I note that the respondent was also adamant to the author of the Treatment Assessment Report dated 27 June 2022, that he had been diagnosed with Schizophrenia and PTSD: Ms Allen's affidavit, p 85 (Annexure 'R').

3. The respondent told Dr Wynn Owen that he was on a daily dose of Seroquel, but Dr Wynn Owen was not able to verify that claim, and he noted that no information had been made available concerning the rationale for prescribing such medication, if in fact it had been prescribed.[70]  He noted that the respondent said he had been told by health staff at Casuarina Prison that he was not mentally ill.[71]

   [70] Ms Allen's affidavit, p 97 (Annexure 'T').

   [71] Ms Allen's affidavit, p 98 (Annexure 'T').

4. In any event, Dr Wynn Owen did not diagnose the respondent with a major mental illness.  However, he did diagnose the respondent with having an antisocial personality disorder, which entails a 'pervasive disregard for and violation of the rights of others', and includes the characteristics of failing to conform to social norms, deceitfulness, impulsivity and lack of remorse.[72]  Dr Wynn Owen also assessed the respondent using the Hare Psychopathy Checklist (Revised).  Although the respondent did not meet the diagnostic threshold for psychopathy, his score was quite high, particularly in respect of the factor with characteristics that include 'glibness and superficial charm, [a] grandiose sense of self-worth, pathological lying, a lack of remorse or guilt and a callous lack of empathy', which are sometimes identified as 'true psychopathy', which Dr Wynn Owen considered to be very apparent in the respondent's presentation at interview.[73]

Discharge summaries from Frankland Centre - March 2022, January 2024

[72] Ms Allen's affidavit, p 100 (Annexure 'T').

[73] Ms Allen's affidavit, pp 100 - 101 (Annexure 'T').

1. Notwithstanding the doubt cast by the foregoing materials on whether the respondent's reported psychotic symptoms revealed genuine psychosis, and whether he has suffered from a major mental illness, the most recent medical information, contained in the discharge summaries from the Frankland Centre, and from the medical records from the prison health system, tends to confirm that the respondent does have a mental illness for which he needs to be medicated.  The situation is complicated by the fact that the respondent has on occasion sought to explain the appearance that he is mentally unwell by referring to the difference between his Islamic culture and Western culture, and suggesting that 'it may appear that his beliefs are psychotic'.[74]  The medical notes refer to recurring explanations by the respondent about his complex religious beliefs, along with persecutory themes in his conversations. 

   [74] Medical Record dated 23/01/2024, entry for 03/12/2023.

2. Since he has been incarcerated in Western Australia, after his transfer from Victoria, the respondent has been transferred on four occasions to the Frankland Centre, the secure forensic mental health facility for prisoners at the Graylands Hospital.  The Discharge Summary of 3 March 2022 (in respect of his third admission) provides background information that appears to have been collated from information provided by the respondent and from various medical records.  It is sufficient for present purposes to note the following.

3. The first diagnosis by a psychiatrist appears to have been in 2004, when the respondent was referred as a result of a motor vehicle accident, and the psychiatrist had an 'impression' that the respondent had PTSD and prescribed antidepressants.  The next entry indicates that there was a diagnosis of schizophrenia in 2008 as part of a 'forensic in-reach', at which time it was noted that there was a 'diagnosis of longstanding PTSD and congruent hallucinations, [a] reactive paranoid state, [and a] history of severe trauma'.[75]  The summary notes that the respondent was seen by 'multiple' psychiatrists over the following period of two to three years, but there was no evidence of psychosis.[76]  In 2013, there appears to have been a diagnosis of 'narcissistic and borderline personality traits'.[77] 

   [75] Frankland Centre Discharge Summary, 3 March 2022, p 1.

   [76] Frankland Centre Discharge Summary, 3 March 2022, p 2.

   [77] Frankland Centre Discharge Summary, 3 March 2022, p 2.

1. The respondent was admitted to the Thomas Embling Hospital in Victoria from 25 August 2014 to 6 November 2014.  Prior to his admission, he had been involved in multiple incidents of aggression towards prison officers, disorderly behaviour, verbal abuse and threats, and property damage.  He had also assaulted another prisoner.  He was diagnosed with a delusional disorder, with 'persecutory, grandiose and erotomanic subtypes', characterised by widespread delusional beliefs, some of which were quite bizarre.[78]  A differential diagnosis of schizophrenia was provided.[79]  The respondent was also considered to display narcissistic and antisocial traits.[80]  He was commenced on depot antipsychotic medication, a long-acting injectable medication.  That changed to oral medication in early 2017. 

   [78] Frankland Centre Discharge Summary, 3 March 2022, p 2.

   [79] Frankland Centre Discharge Summary, 3 March 2022, p 2.

   [80] Frankland Centre Discharge Summary, 3 March 2022, p 2.

2. The respondent was then transferred to Western Australia, where, in May 2017, he complained of side-effects from the medication.  His medication was changed to different antipsychotic medications in 2018.  Since then, there is a history of the respondent refusing to take his medication from time to time. 

3. The respondent's first transfer to the Frankland Centre was an involuntary admission from 28 September 2018 to 15 October 2018.[81]  This was after he had been sentenced in the District Court in May 2018.  The respondent was exhibiting persecutory beliefs in respect of the mental health services and the criminal justice system, and in the early stages of his admission he required restraint.[82]  During that admission, he was diagnosed with paranoid schizophrenia and put on depot antipsychotic medication.[83]

   [81] Frankland Centre Discharge Summary, 3 March 2022, p 2.

   [82] Frankland Centre Discharge Summary, 3 March 2022, p 2.

   [83] Frankland Centre Discharge Summary, 3 March 2022, pp 1, 2.

4. The respondent was again transferred to the Frankland Centre on 7 October 2020 for the purpose of administration of the depot medication.[84] 

   [84] Frankland Centre Discharge Summary, 3 March 2022, p 2.

5. The next transfer was on 23 February 2022.  The Discharge Summary of 3 March 2022 relates to that admission.  The basis on which he was transferred was that there had been a marked decline in his social interaction and personal hygiene, and he had been expressing persecutory thoughts about the actions of officers and other prison staff.  He had also been refusing to engage with mental health staff in prison, and refusing treatment.  He appeared not to have the capacity to make decisions about his treatment.[85]  On his first day of admission, he required seclusion and restraint as a result of increased agitation, stripping off his clothes and making sexual gestures and threats to staff.[86]  On the initial review, he was 'perseverating and repeating sexual obscenities', did not answer questions, and was staring and displaying 'pronounced oral movements whilst speaking'.[87]  However, his mental state improved following recommencement of medication, which appears to have included anti-anxiety medication.  When reviewed subsequently, the respondent expressed 'grandiose and persecutory beliefs, including thought insertion'.[88]  However, he denied having a mental illness and claimed that all medication affected his sexual function.[89]  He also made threatening remarks to the interviewer and implied that he was innocent of his crimes.[90]

   [85] Frankland Centre Discharge Summary, 3 March 2022, p 1.

   [86] Frankland Centre Discharge Summary, 3 March 2022, p 3.

   [87] Frankland Centre Discharge Summary, 3 March 2022, p 3.

   [88] Frankland Centre Discharge Summary, 3 March 2022, p 3.

   [89] Frankland Centre Discharge Summary, 3 March 2022, p 3.

   [90] Frankland Centre Discharge Summary, 3 March 2022, p 3.

6. Of particular significance, the summary stated:[91]

   When unwell [the respondent] expresses hatred of women with strongly violent themes.  He is at high risk of further sex offences against women when he is unwell and outside of a prison environment.  It is hoped that [the respondent] can be categorised as a High Risk Serious Offender under the relevant legislation to manage his risk on release from prison.

   [91] Frankland Centre Discharge Summary, 3 March 2022, p 3.

7. It is also appropriate to note that the summary referred to a meeting with the respondent's parents during a previous admission, at which time they 'were not of the view that [the respondent] suffered a mental illness', and also believed the respondent had been wrongly convicted, claiming the respondent was trying to help the girl and she got him into trouble.[92]  Although the respondent's father is no longer alive, his mother has been put forward as a pro-social support. 

   [92] Frankland Centre Discharge Summary, 3 March 2022, p 4.

8. The respondent's next admission to the Frankland Centre was on 22 January 2024.  The principal diagnosis was again given as paranoid schizophrenia.[93]  The respondent had been refusing medication which had led to a relapse of his psychosis and sexually disinhibited behaviours in the prison.[94]  On arrival, he was described as 'driven, pacing, thought disordered' and 'responding to unseen stimuli'.[95]  It may be inferred from the summary and the entry for 22 January 2024 in the Medical Record from Hakea Prison dated 23 January 2024 that the respondent had been on oral medications, which he had been refusing.  He was described as having exhibited 'recent abusive and disinhibited behaviours'.[96]  He was discharged from the Frankland Centre on 29 January 2024 after he had been recommenced on a depot antipsychotic medication (paliperidone), with instructions for ongoing depot administration.[97]

Prison medical records - March 2024

[93] Frankland Centre Discharge Summary, 29 January 2024, p 1.

[94] Frankland Centre Discharge Summary, 29 January 2024, p 1.

[95] Frankland Centre Discharge Summary, 29 January 2024, p 1.

[96] Medical Record dated 23/01/2024, entry for 22/01/2024 8:37 AM.

[97] Frankland Centre Discharge Summary, 29 January 2024, p 2.

1. The Progress Notes for the period from 1 March 2024 to 21 March 2024 provide the following information of relevance:

   (1)As of 1 March 2024, it was recorded that the respondent was being seen by the Mental Health team monthly when he was being given his depot antipsychotic medication.

   (2)The respondent had a review booked with a psychiatrist on 21 March 2024, but there would not be a psychiatrist visiting regularly after the end of March.  A request was being made as to whether the respondent could be managed from a mental health perspective at Acacia Prison where there would be a psychiatrist attending two days a week.

   (3)At the depot administration on 20 March 2024, the respondent questioned the dose of the medication and said he would like to discuss a reduction of the dose with the psychiatrist.  He had awareness of the purpose of the medication, denied any adverse reactions to the current medication, and was happy to continue with treatment.

   (4)Dr Kevin Smith, the psychiatrist who saw the respondent on 21 March 2024, noted that the respondent responds well to medication and 'can stay well on low doses if he is compliant'.  He further noted that the respondent's compliance with his medication fails 'due to hypochondriacal complaints, including that his sexual function is reduced'.  He commented that the respondent's illness 'can be deceptive, but he typically becomes paranoid and hostile when he relapses'.

   (5)The respondent was well when seen by Dr Smith and said he had accepted the depot medication, but quickly reminded Dr Smith that he had reduced the dose in the past, going on to say that the medication made him feel sedated, although he also thanked Dr Smith, saying it was doing a 'lovely job', which Dr Smith interpreted as grooming by the respondent.  When asked to stay on the same dose for now, the respondent agreed, even though he again suggested that the lower dose Dr Smith had prescribed previously worked better.

2. The impression with which I was left by the medical evidence was that, while the respondent gave the impression that he would abide by the treating psychiatrist's recommendation, he was not entirely satisfied that he needed to be on the prescribed dose.  This raises concerns about his preparedness to be compliant with his treatment outside the prison setting.

3. The evidence also tends to establish that, notwithstanding previous doubts about whether the respondent suffered from a mental illness, his overt psychotic symptoms have not been doubted by the medical professionals treating him in recent years, and the diagnosis of paranoid schizophrenia appears to have been consolidated, as has the need for anti-psychotic medication.  It is apparent that the respondent would prefer not to have to be on the medication, so the psychotic symptoms he has displayed may be taken to be genuine.  The medication appears to have resulted in the alleviation of his psychotic symptoms and behavioural problems.  At the stage of the preliminary hearing, I was satisfied that the respondent's mental health is a significant issue in his management.  Although, as will appear below, the respondent's past offending may not have been affected by mental illness or psychological disturbance, the evidence would now suggest that his mental illness may be a factor affecting his future risk, given the sexualised nature of his behaviour and the disturbing views he has expressed about women when psychotic.

Risk assessment and treatment

1. There have been a number of assessments made of the respondent's risk of future sexual offending.

June 2017 - Treatment assessment report

1. The Treatment Assessment Report, which was created on 16 June 2017 and 'performed' on 21 June 2017,[98] appears to have been prepared not long after the respondent was transferred to Western Australia.  It addressed his assessed level of risk and the need for treatment in respect of factors relevant to his sexual offending.

   [98] Ms Allen's affidavit, p 83 (Annexure 'R').  The date of 27 June 2022 at the bottom of each page appears to be the date of printing.

2. The Static-99R assessment instrument was used to determine the respondent's risk of reoffending.  The instrument is designed to assist in the prediction of sexual and violent recidivism for sexual offenders, using static (unchangeable, largely historical) risk factors that correlate with 'sexual reconviction' of adult males.[99]  These risk factors have been empirically shown to be associated with sexual recidivism.[100]  The assessment was completed by the 'Psychologist/Treatment Assessor' on 19 June 2017.[101]  The respondent's score indicated that he poses a high risk of sexual reoffending.[102]

   [99] Ms Allen's affidavit, p 85 (Annexure 'R').

   [100] Ms Allen's affidavit, p 85 (Annexure 'R').

   [101] Ms Allen's affidavit, p 85 (Annexure 'R').

   [102] Ms Allen's affidavit, p 85 (Annexure 'R').

3. The same assessor also used the STABLE-2007 instrument, which 'is empirically based and measures sex offender risk factors that can change over time, and identifies dynamic intervention needs.'[103]  It is used as a clinical guide to identify possible treatment needs.[104]  The respondent's score was interpreted as placing him in the 'High Need' category for sexual offenders, which suggests that he might benefit from inclusion in a sex offender treatment program.  The respondent's responses to the STABLE-2007 questions indicated that he was sexually pre-occupied and more sexually driven than the norm.[105]  The report noted that the respondent's history of sexual offending indicates that he has a 'deviant sexual interest in having sexual intercourse with young women without their consent'.[106]  It also noted that the respondent had not participated in a sex offender treatment program in Victoria, and he said that such a program had never been offered to him.[107]

   [103] Ms Allen's affidavit, p 86 (Annexure 'R').

   [104] Ms Allen's affidavit, p 86 (Annexure 'R').

   [105] Ms Allen's affidavit, p 86 (Annexure 'R').

   [106] Ms Allen's affidavit, p 86 (Annexure 'R').

   [107] Ms Allen's affidavit, p 87 (Annexure 'R').

4. The combination of the Static-99R and STABLE-2007 scores placed the respondent in the 'Very High' risk/need category, and it was recommended that he participate in the Intensive Sex Offending Program.[108]

April 2018 - Pre-sentence report

[108] Ms Allen's affidavit, pp 86, 87 (Annexure 'R').

1. The respondent's treatment needs were further considered in the pre-sentence report of 3 April 2018, which was prepared for his sentencing in the District Court on 29 May 2018.  The respondent was assessed as requiring treatment intervention in relation to sex offending, an antisocial attitude, relationship skills, victim empathy, poor decision making skills, issues related to male privilege, impulsivity, emotional regulation and his mental health.[109]  The report referred to the specialised assessments that had been made, as indicated by Departmental records.  They included the assessment that the respondent is in the very high category for risk and need for intervention, and the recommendation that he be included in the sex offender treatment program, although it was noted that he was unlikely to be offered a position within that program because of his protection status within the prison.[110]  I note that, in sentencing the respondent on 29 May 2018, McCann DCJ questioned the respondent's capacity to benefit from 'these sort of cognitive programs' because of his antisocial personality traits.[111]

May 2018 - Psychiatric report

[109] Ms Allen's affidavit, p 88 (Annexure 'S').

[110] Ms Allen's affidavit, p 89 (Annexure 'S').

[111] Ms Allen's affidavit, p 36 (Annexure 'I').

1. In his psychiatric report prepared for the sentencing hearing on 29 May 2018, Dr Wynn Owen discussed the respondent's mental health history and made the diagnosis and assessment of the respondent's personality referred to above. 

2. Dr Wynn Owen reported that the respondent denied any deviant sexual thinking, in particular denying that he had rape fantasies.  However, as I noted above, Dr Wynn Owen doubted the accuracy of the respondent's self-reporting generally, and noted the presence of psychopathic traits that included glibness, pathological lying, lack of remorse or guilt, and a callous lack of empathy.

3. Dr Wynn Owen also used the Static-99R instrument to determine the respondent's risk of reoffending according to static factors.  The respondent's score placed him in the 'well above average risk' category, which 'indicates a likelihood of sexual offending over the 5 years post release of 27.2% (i.e. of 100 offenders with this score released, 27 reoffended within 5 years, 73 did not)'.[112]  However, Dr Wynn Owen went on to say that the respondent's pattern of offending 'demonstrates frequency and escalation' and, as he has received no specific treatment, he is probably in the 'high risk, high needs' group of offenders, a sub‑group that has 'a 30% likelihood of a further sexual offence within 5 years of release (compared to a baseline reoffending risk among all sex offenders of approximately 10%)'.[113]

   [112] Ms Allen's affidavit, p 102 (Annexure 'T').

   [113] Ms Allen's affidavit, p 102 (Annexure 'T').

4. Dr Wynn Owen recommended that the respondent participate in an Intensive Sex Offender Treatment Program, and that he be considered for participation in a drug and alcohol treatment program.[114]

   [114] Ms Allen's affidavit, p 103 (Annexure 'T').

Other reports and materials

February 2022 - Parole review report

1. The Parole Review Report of 23 February 2022[115] was evidently prepared for consideration of the Prisoners Review Board at its hearing of the respondent's application for release on parole on 22 April 2022.[116]  The Board denied the respondent release on parole, citing the respondent's 'extensive criminal history including violence and sex offending which suggests a high risk of reoffending', and the respondent's poor prison conduct, which, in the Board's opinion,  suggested an unwillingness or inability by the respondent to comply with directions.[117]  The Board also cited deficiencies in the respondent's release plan, which did not include sufficient protective strategies to reduce his risk to the safety of the community or any way to adequately address his unmet intensive treatment needs.[118]

   [115] Ms Allen's affidavit, p 104 (Annexure 'U').  The report states that it was 'created' on 21 February 2022, and 'performed' on 23 February 2022, and is dated and time-stamped at the bottom (presumably when it was printed), the date being 27 June 2022.  However, clearly it was produced prior to the Prisoners Review Board decision, on 22 April 2022, hence my adoption of the 23 February 2022 as the date of the report.

   [116] Ms Allen's affidavit, p 22 (Annexure 'E') - History of Board Secretariat Decision Slips - Offender.

   [117] Ms Allen's affidavit, p 22 (Annexure 'E').

   [118] Ms Allen's affidavit, p 22 (Annexure 'E').

2. The Board noted the respondent had been dealt with for 12 prison charges.  The conduct that is the subject of those charges was described in the Parole Review Report.  It consisted of two instances of assaulting a prison officer, two instances of using indecent language towards a prison officer, five instances of using insulting language towards prison staff, including towards a duty nurse, one instance of using 'insulting/abusive language' towards a prison officer, one instance of behaving in a disorderly manner, and one instance of committing an act of misconduct subversive of the order and good governance of the prison, by attempting to incite other prisoners.  All but one of the incidents occurred in October and November 2017, which was some seven or eight months after his transfer to Western Australia from Victoria.  The last of the incidents occurred in August 2021.  For that matter he incurred a loss of gratuities, but for all of the other prison offences he received periods of confinement in a punishment cell.[119]

   [119] Ms Allen's affidavit, pp 106 - 108 (Annexure 'U').

3. Although most of the conduct for which the respondent was charged in prison occurred within a relatively narrow period of time in 2017, the Parole Review Report also noted that he had received seven loss of privileges during his incarceration, and that he had several negative offender notes recorded against him for poor behaviour, non-compliance with orders and general belligerent behaviour.[120]  The respondent has not participated in prison employment due to his placement in punishment cells and lengthy periods in the management unit.  It was also noted that, while he had previously held employment for short periods, he was not employed at the time of the assessment, due to his placement in the Management Unit (which appears to include placement for protection) for lengthy periods.[121]  The report commented that the respondent attempted to maintain a low profile with his peers in the unit, but he occasionally demonstrated poor behaviour due to his schizophrenia and his ongoing issues with medication.[122]

   [120] Ms Allen's affidavit, p 108 (Annexure 'U').

   [121] Ms Allen's affidavit, p 108 (Annexure 'U').

   [122] Ms Allen's affidavit, p 108 (Annexure 'U').

4. The respondent proposed to live with his mother, who confirmed the respondent would be living with her.[123]  The respondent had been maintaining contact with family and friends through the prisoner telephone system.  He said he had asked his mother not to visit because she is elderly and frail.[124]

   [123] Ms Allen's affidavit, p 110 (Annexure 'U').

   [124] Ms Allen's affidavit, p 109 (Annexure 'U').

5. Release on parole was not recommended, essentially for the reasons adopted by the Board.

March 2022 - Parole assessment

1. The Parole Assessment, dated 31 March 2022, was prepared by a Senior Community Corrections Officer, Tracy Lilly, and was endorsed by a Team Leader at an Adult Community Corrections Centre.

1. As to the first of those factors, I was satisfied on the basis of the evidence in these proceedings that there is a strong prospect of the applicant satisfying the court that the respondent is a high risk serious offender.

2. The second and third factors identified in [143] above require consideration in the first place of the interim supervision order that has been proposed by the State in the event that the court is not prepared to make an IDO.  Counsel for the respondent did not advance any alternative version of an interim supervision order. 

3. The interim supervision order proposed by the State contained 43 conditions.  Apart from the standard conditions, which include reporting to a Community Corrections Officer, compliance with the reasonable directions of such an officer, not committing a serious offence and being subject to electronic GPS monitoring, the conditions addressed various risk factors that have been identified in the respondent's case.  They would require the respondent to attend programmes or treatment; engage with mental health services and take prescribed medication; report to police and comply with police requests to search the respondent, his home or his vehicle; agree to the exchange of information about him by agencies; allow his Community Corrections Officer, the police or other agencies to speak with the respondent's associates or potential associates, and any partner or potential partner, and to provide any such person with information about the respondent; have no contact with his victims, and take action to avoid contact if he were to see any victim of his serious offending; not commit any criminal offence; comply with a curfew; not possess prohibited drugs or plants; not enter any vehicle where a female is present, or enter any place where a female lives, unless authorisation has been given by the Community Corrections Officer in advance; not allow a female to enter his home, unless approval has been given by the Community Corrections Officer in advance; report any new or continued social association; not to possess, use or purchase any alcohol; attend and submit to urinalysis testing or other testing for alcohol or prohibited drugs; provide a valid sample; not be with anyone affected by a prohibited drug or under the influence of alcohol; not be anywhere where prohibited drugs are used, and to remove himself if drugs are being used at his home; not go to any licensed premises unless permitted or required to do so in specified circumstances; and not assault, threaten or abuse a person working for or providing services to the Department of Justice.

4. The question of whether the respondent's putative risk could be adequately managed under the proposed supervision order needs to be considered having regard to the nature and level of his risk of committing a serious offence, the history of the respondent's behaviour in custody, which has indicated from time to time that he has problems with authority and compliance with obligations, even within the constrained setting of a prison, the respondent's mental health issues and the level of insight he has, if any, into his offending, and the circumstances in which the supervision order would be administered, including the respondent's proposed accommodation.

5. At [17] and [18] above, I summarised the submissions of the applicant and the respondent in respect of whether an IDO or interim supervision order was appropriate.  Those submissions are further elaborated below.

The appropriate interim order - Applicant's submissions

1. The applicant submitted that the respondent should be detained on an IDO as the court could not be satisfied that the risk he poses to the community could be sufficiently mitigated by an interim supervision order.  The applicant relied on four main factors in support of that submission: (1) the nature of the respondent's past violent sexual offending; (2) the fact that the respondent has significant outstanding treatment needs; (3) the potential significance of the respondent's mental illness to his offending, and the fact that he has previously been non-compliant with treatment of his mental illness; and (4) the unsuitability of the proposed accommodation for the purposes of managing the respondent's risk. 

2. The applicant submitted that the respondent's past violent sexual offending has been particularly serious, involving the targeting of vulnerable young women, including a visually impaired woman, and the use of force.  The applicant noted there had been an escalation of offending by the respondent.  It submitted that, having regard to the nature of the respondent's prior sexual offending and its escalation, the potential for serious harm to a potential victim is significant.

3. The applicant submitted that the respondent's level of risk of sexual reoffending, as assessed by Dr Wynn Owen, which I have outlined above, also militates against release of the respondent on a supervision order. 

4. The applicant also relied on the respondent's previous decompensation in his mental health, which has resulted in his admissions to secure forensic mental health facilities in Victoria and Western Australia, noting that his psychotic relapse and disinhibited sexual behaviours may be attributed to the respondent's refusing medication in the prison environment.  The applicant submitted that the court could not be confident that the respondent has adequate capacity to make his own decisions about his treatment, or that he would be compliant with his medication, particularly having regard to his previous denial of his mental illness. 

5. In regard to the proposed accommodation, the applicant submitted that it is not suitable because the respondent's mother, the person with whom he would be residing and would be expected to provide pro-social support, could not be relied on to be a protective factor, given that she either does not know of the sexual nature of the respondent's offending or thinks he is innocent.  Further, it was submitted that, as the respondent's mother lives an isolated lifestyle and requires the respondent's support, it is unlikely that she would report concerns to Community Corrections because of her fear that he would be returned to prison. 

The appropriate interim order - Respondent's submissions

1. The respondent's counsel submitted that it was desirable that the respondent be placed on an interim supervision order, noting that he had expressed his willingness to abide by any conditions that the court deems appropriate. 

2. It was submitted that there is no evidence linking the respondent's mental illness to his sexual offending.  Counsel referred to Dr Wynn Owen's assessment in 2018, which I have outlined above.  It was submitted, in effect, that to the extent that the more recent psychiatric assessments in 2022 and 2024 have confirmed a diagnosis of paranoid schizophrenia and an increased risk of offending when the respondent is mentally unwell, a significant period of time has elapsed since the respondent's sexual offending, and a link between his mental illness and his sexual offending was not established at a time proximate to the offending.  In any case, it was submitted that the respondent's mental health has stabilised with treatment, and it may be expected that his desire for freedom in the community would be significant motivation for him to remain compliant with his treatment.  Further, it was submitted in effect that, as the respondent's mental health will be monitored, any deterioration should be detected before the risk of reoffending becomes imminent, and action could be taken to bring the respondent before the court.

3. It was submitted on behalf of the respondent that, on the available evidence, the treatment available to him in prison for his mental illness is limited in the prison where he is being held, compared to the treatment that would be available to him in the community.  It was also submitted that the respondent was not able to receive appropriate treatment in the custodial setting to address the factors relevant to his risk of sexual offending.

4. It was submitted on behalf of the respondent that, notwithstanding the issues identified by the applicant in respect of the proposed accommodation, particularly concerning Ms K, a family home environment would still be a protective factor, especially as the respondent will have some responsibility for caring for his mother.  It was submitted that I should regard the evidence as being neutral as to what Ms K would do if the respondent's behaviour suggested an increased risk of offending.  In other words, I could not be satisfied one way or the other as to what Ms K would do in that situation. 

5. It was submitted on behalf of the respondent that the conditions of the proposed interim supervision order were very stringent and would allow for a very significant degree of monitoring and supervision.  The requirement that the respondent be subject to electronic monitoring would ensure that all of his movements would be monitored.  It was submitted that the combination of conditions would be sufficient to mitigate the risk the respondent might pose to the community.

6. In accordance with established principle, counsel for the respondent submitted that the court should make the order that is least restrictive of the respondent's liberty, consistent with the adequate protection of the community.

The appropriate interim order - Conclusion

1. Having regard to the materials in evidence and the parties' submissions, I came to the view that it was necessary to make an IDO in respect of the respondent until the final determination of the restriction order application.  I was not satisfied that an interim supervision order would provide adequate protection of the community at the time of the adjourned preliminary hearing.  Essentially, I agreed with the applicant's submissions.

2. The first matter that weighed in favour of an IDO was the seriousness of the offending of which the respondent has been convicted and the significant risk such offending would pose to the community if the respondent were to reoffend in a similar way. Associated with that was the fact that the respondent had significant unmet treatment needs. All of the expert reports indicated that the respondent had treatment needs in respect of factors that put him at risk of committing serious sexual offences. There was no evidence in the preliminary hearing to suggest that the respondent had undertaken treatment that had mitigated his risk to such an extent that, although the threshold test was met, his risk could be managed adequately within the community pursuant to an interim supervision order, at the time of the preliminary hearing. Two matters that were of particular concern, demonstrating a lack of treatment gains, were the attitudes the respondent had expressed previously in relation to women, which I have outlined above,[153] and his conduct of a sexual nature directed at female staff within the prison.

   [153] See [91] above.

3. I appreciate that the absence of any evidence that the respondent has made treatment gains is due, at least in part, to the fact that he has not had the opportunity to engage in treatment.  Nevertheless, having regard to Dr Wynn Owen's assessment of the level of the respondent's risk of committing a serious sexual offence, the absence of any indication of treatment gains or of a change in the respondent's attitude and an acceptance of responsibility for his offending were significant matters that weighed against making an interim supervision order at the time of the preliminary hearing.  Because of those matters, I could not be satisfied that the respondent had adequate internal resources to ensure that he would comply with the conditions of a supervision order and would avoid circumstances that put him at risk of committing a serious sexual offence of the kind that he has committed in the past, which on occasions has involved a degree of violence. 

4. The second matter to which I had regard was that the respondent's compliance with his mental health treatment has not been consistent.  I outlined above the evidence of his non-compliance in the past.  I accept that in more recent times, relative to the time of the preliminary hearing, the respondent had been compliant with his medication, and he had indicated an acceptance of his mental health diagnosis, whereas in the past he had not accepted the diagnosis.  However, the respondent's compliance in relatively recent times had been within a custodial setting, where his conduct is more easily regulated and regimented than it would be in the community, even if he were subject to an interim supervision order in the community.  Further, I was of the view that that there had been an incentive for the respondent to comply while in custody because of these proceedings and his desire to be released. 

5. I accepted the respondent's submission that, if released on an interim supervision order, his desire to remain out of prison would provide him with an incentive to continue complying with his mental health treatment.  However, at the time of the preliminary hearing, I did not have confidence that the respondent would remain compliant in the community without the structured behavioural obligations and constraints of the prison system.  That said, while it was a relevant factor, I did not consider that matter to be the most significant factor in determining which interim order should be made. 

6. In relation to the respondent's submission that his sexual offending has not been found to be related to his mental illness, I note that Dr Wynn Owen arrived at his opinion in 2018 at a time when a diagnosis of schizophrenia had not yet been accepted in respect of the respondent.  By the time of the preliminary hearing, there was an established diagnosis, as outlined above, and the respondent's psychosis had been assessed to be associated with his expressions of hatred towards women, with strong, sexually violent themes.[154]  Moreover, there are indications that the respondent's problematic behaviour within the prison system, including his behaviour towards female staff, as outlined above, appears to have occurred at times when he has not been compliant with his medication, and his mental illness may well have had a role to play in his behaviour, at least in terms of affecting his judgment.  That is not to say that his behaviour at such times has been due to delusional symptoms or other positive psychotic symptoms.  Paranoid schizophrenia can result in thought disorder and adversely affect a person's judgment in ways that may not involve delusions or other positive psychotic symptoms, if the condition is not adequately controlled by medication.  It was in that context that I understood the respondent's misogynistic and sexually violent views were said to be associated with his psychosis. 

   [154] See [91] above.

7. In summary, while I took into account the respondent's submissions as to why his mental illness might not be a significant factor in assessing the level of his risk and whether he would comply with the conditions of a supervision order, I was satisfied that it was a relevant factor as outlined above. 

8. I turn next to the applicant's submission that the proposed accommodation would not provide a level of protection that would augment in an effective way the protection provided by the supervision and monitoring under an interim supervision order. 

9. Suitable accommodation is integral to the effectiveness of a supervision order, including an interim supervision order.  Apart from the requirement that the location and premises must allow for electronic monitoring to be conducted effectively, the location of the premises and the presence of other inhabitants may bear upon the capacity of the supervised person to adhere to the conditions of a supervision order.  If the premises are occupied by one or more other persons who can provide prosocial support and hold the supervised person to account in the event that his behaviours suggest an increase in his risk of reoffending, the presence of that other person or other persons may be regarded as a protective factor that enhances the efficacy of the conditions of a supervision order.  They can be expected to contribute in a meaningful way to the supervision of the supervised person.

10. The State's submission was that, although the fact that the respondent would be living with his mother would ordinarily be expected to be a protective factor, it would not be a protective factor in his case because the respondent's mother has previously indicated that she does not believe the respondent is guilty of the offences of which he has been convicted.  There is also some indication in the evidence to which I have referred that Ms K has been sceptical about the diagnosis that the respondent has a mental illness. 

11. I agreed with the applicant's submissions in respect of those matters.  I was not satisfied that Ms K could be relied upon to assist in the process of supervision by informing the authorities if it became apparent that the respondent was engaging in conduct that increased his risk of committing a serious offence.  It is questionable whether Ms K would be capable of identifying such behaviour or such circumstances, given the attitude she has previously expressed in relation to the respondent's offending.  Further, the evidence indicated that Ms K would be reliant upon the respondent, as she lives on her own.  Her self-interest had the potential to be a disincentive to cooperation with the authorities if there was a risk that the respondent would be taken into custody again.  In light of those considerations, I was not satisfied at the time of the hearing that Ms K was someone who would inform the authorities if there was any indication that the respondent was behaving in a manner that indicated an increased risk that he would commit a serious offence. 

12. Accepting the respondent's submission that I should regard the evidence as being neutral in relation to whether Ms K would take any action in such circumstances, it seemed to me that the respondent should then be regarded as being in no different a situation than if he were to be released to reside on his own.  As I have already indicated, I had no confidence that the respondent had the internal resources to be able to avoid situations in which his risk of committing a serious sexual offence would be elevated, to the point that he may act on his urges as he has done in the past. 

13. Although the conditions that had been proposed for an interim supervision order were very stringent and allowed for a very significant degree of monitoring and supervision, I was not satisfied they would provide adequate protection of the community against the putative risk presented by the respondent.  I was of that view because of the likely imminence of the respondent reoffending, having regard to the circumstances in which he has offended in the past and the degree of risk posed to any potential victim.  In order for the authorities to intervene before any such risk was realised, they would need to detect 'red flags' in his behaviour.  Attitudes or views expressed by the respondent, which might suggest an increased risk, may not be sufficient to enable the authorities to intervene in time, given the opportunistic nature of the respondent's past offending, which involved an inability to control his sexual urges and violent proclivity. 

14. While I accepted that a supervision order would provide a degree of protection of the community, I was not satisfied that it would provide adequate protection as at the time of the hearing.  Had there been some indication of a change in the respondent's attitude in respect of his prior offending, and some progress in his treatment, the circumstances might have been different, but as at the time of the preliminary hearing, there was nothing to indicate that he had rehabilitated to a point where, although he may still be found to be a high risk serious offender, the putative risk could be adequately managed within the community on an interim supervision order. 

1. As I noted in the introduction to these reasons, at the first hearing I sought further information in respect of the treatment that the respondent would receive in custody in respect of criminogenic factors.  I was concerned that if no treatment was going to be available to him in respect of his sexual offending, he would be placed at a disadvantage at the hearing of the restriction order application.  As I have indicated above, I was satisfied on the basis of the report that was subsequently provided that treatment could and would be made available to the respondent, irrespective of the prison where he is housed.  That treatment was proposed to be provided by Mr Summerton.  I was satisfied from the contents of the Treatment Options Report that, notwithstanding there being some barriers to the efficacy of psychological intervention being provided within Hakea Prison, such intervention could and would be provided.  As I noted at the time of giving my decision, it remains to be seen whether the barriers prevent the respondent from making progress, but the treatment will give him the opportunity to make progress in his understanding of his offending, the risk that he poses, and the things that he will need to do to mitigate that risk should he be released into the community in the future.

2. On the issue of whether the respondent will receive adequate care for his mental illness if he remains at Hakea Prison, I note the following.  First, as at the time of the hearing, it was likely the respondent would remain at that prison because of his desire to remain in protection.  Secondly, the medical progress notes from the prison that were produced at the hearing indicated that there may not be regular attendance by a psychiatrist within Hakea Prison, whereas there would be at another identified prison from the end of March 2024.  However, that did not mean that the respondent would not receive care for his mental illness.  There is a mental health team that had been providing care in respect of the respondent's mental illness while he had been at Hakea Prison leading up to the hearing.  That was evident from the medical records referred to on the first hearing date, and from the progress notes produced on the second hearing date.  I was of the view that there was insufficient evidence before me to support the conclusion that the care received by the respondent from the mental health team, which included a clinical nurse consultant, as well as from time to time the attendance of a psychiatrist, had been inadequate or would be inadequate in the future.  I did not consider the respondent's submission about the adequacy of his mental health care if he were to remain at Hakea prison to be a sufficient basis to conclude that it would not be appropriate to make an IDO. 

3. Ultimately, in determining which interim order the court should make, the most important consideration is the adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community.  I was satisfied that it was necessary to make an IDO to achieve such protection, as I could not be satisfied the respondent would adhere to the conditions of an interim supervision order, or that adherence to the conditions of an interim supervision order would ensure the adequate protection of the community.  I arrived at that conclusion mindful of the undesirability of depriving a respondent of his liberty prior to the restriction order application being finally determined, bearing in mind that the application may ultimately be refused.  However, as I have said, I consider that there is a strong prospect that the respondent will be found to be a high risk serious offender.

Orders

1. On 29 February 2024, I made the following orders:

   (1)The hearing of the restriction order application pursuant to section 48 of High Risk Serious Offenders Act 2020 be heard on 29 August 2024.

   (2)The respondent undergo examinations by two qualified experts, namely one psychiatrist, Dr Gosia Wojnarowska, and one psychologist, Mr Ben Bannister, for the purposes of preparing reports as required by s 46(2)(a) and s 74 of the High Risk Serious Offenders Act 2020 that are to be used on the hearing of the restriction order application.

   (3)The experts named in order 2 are not to include in their reports 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 reports of the experts be provided to the applicant at least 42 days prior to the hearing of the restriction order application. 

   (5)Any report authored by the Department of Justice, including any Proposed Management Plan or Community Supervision Assessment Report, be provided to the applicant at least 35 days prior to the date of the hearing of the restriction order application. 

   (6)The experts 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 experts 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 their reports.

   (8)At the hearing of the restriction order application, the reports provided by the experts named in order 2 shall stand as the evidence in chief of the experts and no further evidence in chief may be adduced without the leave of the Court. 

   (9)The application that the respondent be detained in custody until the final determination of the application pursuant to s 46(2)(c)(i) of the High Risk Serious Offenders Act 2020, be adjourned to Wednesday, 27 March 2024 at 10.00 am. 

   (10)The Department of Justice is to prepare a report identifying what treatment options will be provided to the respondent between 27 March 2024 and 29 August 2024, the suitability of individual treatment, and what steps have been taken to provide such treatment options before 27 March 2024. 

   (11)There be liberty to the parties to apply generally.

2. On 27 March 2024, I made the following order:

   (1)Pursuant to section 46(2)(c)(i) of the High Risk Serious Offenders Act 2020, the respondent be detained in custody pursuant to an Interim Detention Order until the final determination of the application. 

3. On 11 April 2024 Justice Smith made the following order:

   (1)Order 2 of the Orders made by his Honour Justice Fiannaca on 29 February 2024 is amended by deleting the name of the psychiatrist Dr Gosia Wojnarowska and substituting the name, Dr Peter Wynn Owen. 

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

JH

Associate to the Honourable Justice Fiannaca

11 AUGUST 2025