The State of Western Australia v El Waly [No 2]
[2025] WASC 394
•19 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- EL WALY [No 2] [2025] WASC 394
CORAM: PALMER J
HEARD: 19 SEPTEMBER 2025
DELIVERED : 19 SEPTEMBER 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) - Application for restriction order - Whether the respondent is a high risk serious offender - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by supervision of the respondent
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order made
Representation:
Counsel:
| Applicant | : | Ms F Allen |
| Accused | : | Mr T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Accused | : | Geoffrey Miller Chambers |
Cases referred to in decision:
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1
The State of Western Australia v Blurton [No 4] [2025] WASC 139
The State of Western Australia v Clarke [No 2] [2023] WASC 53
The State of Western Australia v El Waly [2024] WASC 519
The State of Western Australia v Williams [No 2] [2024] WASC 215
Table of Contents
Introduction
The restriction orders that may be made and when they are made
An overview of the evidence relied upon by the State
Mr El Waly's antecedents and criminal record
Mr El Waly's personal background
Mr El Waly's criminal record
Whether there is any pattern of offending behaviour
Medical, psychiatric or other assessment relating to Mr El Waly
Mr El Waly's psychiatric history
The Pre-Sentence Report dated 3 April 2018
Parole Review Report dated 21 February 2022
Parole Assessment Report dated 31 March 2022
Mr Carmichael's report dated 22 March 2024
Mr Carmichael's report dated 20 August 2024
Community Supervision Assessment report dated 14 October 2024
Updated performance report by Ms Stuart dated 6 January 2025
Updated Community Supervision Assessment by Ms Stuart dated 7 August 2025
Reports prepared under s 74 of the HRSO Act
Dr Wynn Owen's report dated 19 August 2024
Dr Bannister's report dated 16 August 2024
Dr Wynn Owen's report dated 7 August 2025
Dr Bannister's report dated 10 September 2025
Rehabilitation
Propensity to commit serious offences in the future, the risk of committing such offences and the need to protect the community
Other relevant matters
Accommodation
Mental health
Whether Mr El Waly is a serious offender
Is there an unacceptable risk that Mr El Waly will commit a serious offence?
Is it necessary to make a restriction order to ensure adequate protection of the community
Conclusion: Mr El Waly is a high risk serious offender
Whether a supervision order should be made?
Conclusion
PALMER J:
Introduction
These reasons concern whether the respondent (Mr El Waly) should be made the subject of a restriction order under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
On 2 January 2024, the applicant (the State) applied for:
(a)a restriction order;
(b)an order that Mr El Waly be examined pursuant to s 46(2)(c)(i) of the HRSO Act; and
(c)an order under s 46(2)(c)(i) of the HRSO Act that Mr El Waly be detained until the determination of the restriction order application.
A preliminary hearing was held before Fiannaca J on 29 February 2024 and 27 March 2024 following which his Honour made orders that Mr El Waly be examined and that he be detained pending the determination of the State's application for a restriction order. Fiannaca J delivered detailed reasons for his decision: The State of Western Australia v El Waly [2024] WASC 519 (the Preliminary Hearing Reasons).
The question of whether a restriction order should be made remains outstanding.
The State has applied for a restriction order under s 35 and s 48 of the HRSO Act.
Section 35(1) of the HRSO Act provides that 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.
It is not in issue that at the time the State's application was made Mr El Waly was a 'serious offender under custodial sentence' in respect of whom the State may make an application for a restriction order.
Section 48(1) of the HRSO Act provides that if the court hearing a restriction order application finds that the offender is a 'high risk serious offender', the court must make a continuing detention order in relation to the offender or, except as provided in s 29 of the HRSO Act, make a supervision order.
On the hearing of the application therefore, two principal issues arise:
(a)is Mr El Waly a high risk serious offender?; and
(b)if so, should the court make a continuing detention order, or a supervision order?
Mr El Waly conceded that he is a high risk serious offender. I am satisfied that that concession was properly made and that the evidence before me establishes that he is a high risk serious offender.
The State submitted that it was open to the court to conclude that the risk to the community posed by Mr El Waly can be adequately managed by the imposition of a supervision order and it proposed a draft set of terms for such an order. Mr El Waly submitted that a supervision order should be made on the terms proposed by the State. I am satisfied that a supervision order should be made on those terms.
I explain my reasons for my conclusions below.
The restriction orders that may be made and when they are made
As I have mentioned, s 48(1) requires a court to make an order if the court finds that an offender is a high risk serious offender. Section 7(1) of the HRSO Act provides that a person is a high risk serious offender if:
The court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
The court, in considering whether a person is a high risk serious offender for the purpose of s 7(1) of the HRSO Act, must have regard to the following matters listed in s 7(3):
(a) any report prepared under section 74 Act for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b) any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c) information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d) whether or not there is any pattern of offending behaviour by the offender;
(e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g) the offender's antecedents and criminal record;
(h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
In considering whether it is satisfied as required by s 7(1), the court must disregard the possibility that the respondent might be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[1]
[1] HRSO Act, s 7(4).
The legal principles regarding restriction order applications were considered by the High Court in Garlett v The State of Western Australia.[2] Kiefel CJ, Keane and Steward JJ recognised two distinct evaluative steps in s 7(1) of the HRSO Act:
(a) an evaluation of whether there is an unacceptable risk that the respondent will commit a serious offence in the future, in the absence of any measures that would provide protection of the community against that risk; and
(b) if so, an evaluation of whether it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against that unacceptable risk.
[2] Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1 (Garlett).
Edelman J interpreted the provisions as encompassing five stages. It has been observed, however, that Edelman J's approach was not materially different to the balancing exercise in the joint judgment.[3]
[3] The State of Western Australia v Blurton [No 4] [2025] WASC 139 [30] (Lemonis J).
Whether a risk is 'unacceptable' requires a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[4]
[4] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [27]; Hansen [No 2] [35].
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.[5]
[5] Garlett [73] (Kiefel CJ, Keane and Steward JJ).
The extent to which deterrent factors have operated to reduce risk in the past feeds into the assessment of current and future risk, as does the offender's historical and current response to rehabilitation.[6]
[6] The State of Western Australia v Williams [No 2] [2024] WASC 215 (Williams [No 2]) [39]- [40].
If the risk is found to be 'unacceptable', the nature and extent of that unacceptable risk then informs the assessment of whether a restriction order is necessary to ensure adequate protection of the community.[7] This assessment requires recognition that an offender's entitlement to be at liberty is not lightly to be denied.[8]
[7] Williams [No 2] [40].
[8] Garlett [73] (Kiefel CJ, Keane and Steward JJ); Williams [No 2] [40].
The relevant legal principles regarding restriction order applications were helpfully summarised by Tottle J in The State of Western Australia v Clarke [No 2][9] as follows:
[9] The State of Western Australia v Clarke [No 2] [2023] WASC 53 [4].
The statutory framework and the relevant principles have been the subject of frequent exposition in decisions of this court and were recently considered by the High Court in Garlett v The State of Western Australia. The central provisions and the principles applicable to their application are as follows:
(a) The objects of the Act are twofold: first, to ensure the adequate protection of the community and of victims of serious offences and, secondly, to provide for the continuing control, care or treatment of high risk serious offenders.
(b) The powers conferred by the Act are not to be exercised for the purpose of imposing additional punishment on an offender. The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection for the community.
(c) The Act provides for the community to be protected by making restriction orders in respect of high risk serious offenders. There are two types of restriction orders: a continuing detention order, the effect of which is to detain an offender in custody after he has served his sentence; and, a supervision order, the effect of which is to release the offender into the community subject to compliance with conditions designed to monitor and control an offender's behaviour. Thus, the community may be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced or by control continuing to be exercised over the offender in the community.
(d) A high risk serious offender is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
(e) An offence is a serious offence if, among other offences, it is specified in sch 1 div 1 of the Act or it is specified in sch 1 div 2 of the Act and is committed in the circumstances indicated in relation to that offence in div 2.
(f) For the purpose of considering whether the court is satisfied that an offender is a high risk serious offender the court must have regard to each of the matters specified in s 7(3) of the Act.
(g) The State carries the onus of satisfying the court that an offender is a high risk serious offender.
(h) The court must make a restriction order if it finds that the offender is a high risk serious offender.
(i)The expression 'high degree of probability' connotes a standard of proof that is higher than the civil standard but less than the criminal standard and is otherwise incapable of further definition.
(j) The court must assess the level of risk that the offender will commit a serious offence or serious offences of the nature identified in the evidentiary materials supporting the application.
(k) The requirements that the risk be 'unacceptable' and that the restriction order be 'necessary' to ensure 'adequate' protection of the community direct attention to whether the identified risk to the community can be tolerated. That assessment must be made in light of the whole of the burden which would be placed upon the liberty of the offender by the making of a restriction order, including the imposition of any standard supervision order conditions. In this respect the Act does not envisage the possibility that a restriction order will be made to prevent the commission of a serious offence unless the risk of further re-offending involves a real threat of harm to the community. The evaluative exercise the court must undertake involves balancing the level of the risk that the offender will commit a serious offence together with the magnitude of the harm associated with that risk against the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed.
(l) The court may assess the level of risk that an offender will commit a serious offence at less than 50% yet still find that to be an unacceptable risk.
(m) In deciding whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure the adequate protection of the community.
(n) Section 29 of the Act limits the power of the court to make a supervision order rather than a continuing detention order. The section provides the court cannot make a supervision order unless it is satisfied on the balance of probabilities that a respondent will substantially comply with the 'standard conditions' of a supervision order. There are seven standard conditions specified in s 30(2). They include a condition to the effect that the offender will not commit a serious offence during the period of the order.
I respectfully agree with and adopt his Honour's summary.
An overview of the evidence relied upon by the State
The State relied on books of documents that it has filed in support of its application. The State has filed five volumes of documents that it tendered at the hearing of its application pursuant to s 84(5) of the HRSO Act.
The State also lead evidence from three witnesses who have prepared various written reports that are contained within the books of documents:
(a)Dr Peter Wynn Owen, a psychiatrist who has reviewed Mr El Waly and has extensive experience preparing reports for the purposes of the HRSO Act;
(b)Dr Ben Bannister, a psychologist who has reviewed Mr El Waly with extensive experience in the areas of offender management, reintegration and rehabilitation, including in the context of preparing reports for the purposes of the HRSO Act; and
(d)Ms Pauline Stuart, a Senior Community Corrections Officer in the Community Offender Monitoring Unit of Corrective Services who prepared various reports relating to Mr El Waly.
Mr El Waly's antecedents and criminal record
In considering whether or not Mr El Waly is a high risk serious offender, the HRSO Act requires me to have regard to Mr El Waly's antecedents and criminal record.[10] Those matters were described in detail by Fiannaca J in the Preliminary Hearing Reasons.[11] I respectfully adopt the findings made (which were substantiated by the evidence relied upon by the State before me). I do not propose to repeat everything said by Fiannaca J but it is relevant to make the following brief observations.
Mr El Waly's personal background
[10] HRSO Act, s 7(1) and 7(3)(g).
[11] Preliminary Reasons, pars 33 to 65, 70 - 93.
Mr El Waly is currently 45 years old but he will soon be 46.
Mr El Waly is the youngest of 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.[12]
[12] Preliminary Reasons, par 71.
In Australia, the family lived in Perth, where Mr El Waly completed his schooling to year 10. Mr El Waly 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.[13]
[13] Preliminary Reasons, par 71.
Mr El Waly has previously been married for a short period and has no children.[14]
Mr El Waly's criminal record
[14] Preliminary Reasons, par 73.
Mr El Waly has a significant and lengthy criminal history.
On 27 July 2002, when Mr El Waly was 22 years old, he assaulted a young woman that he met at a nightclub and whom he offered a lift home. When the young woman declined Mr El Waly's advances, he forced her arms above her head, told her that he was going to have sexual intercourse with her, grabbed her around the throat, kissed her lips and bit her lips, neck and breasts.
Mr El Waly was subsequently convicted in the District Court of Western Australia (on guilty pleas) 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. He was sentenced to a total effective sentence of 6 months' imprisonment.[15]
[15] Preliminary Reasons, pars 41, 44 - 52.
On 23 July 2005, when Mr El Waly was 25 years old (and one year after he was released after serving the sentence mentioned in the previous paragraph), he assaulted a young intoxicated woman who he had met on the street in Northbridge. He had offered her a lift home but she refused. He then followed her in his car, intercepted her and pushed her into the back seat of his car. He forced her arms above her head, pulled down her jeans and forced his penis into her vagina.
Mr El Waly was subsequently convicted in the District Court of Western Australia (on guilty pleas) of one count of sexual penetration without consent and he was sentenced by McCann DCJ (on 28 May 2018) to imprisonment for 3 years and 3 months, to be served cumulatively with a sentence he was already serving for an offence that he had committed in Victoria (discussed below).[16]
[16] Preliminary Reasons, pars 39, 53 - 58.
On 20 July 2006, when Mr El Waly was 25 years old, he abducted and raped a 20 year old legally blind woman who he saw on the street. Mr El Waly was convicted after a trial by jury in the County Court of Victoria of rape and abduction/detention for sexual penetration. He initially received a total effective sentence of 13 years and 6 months' imprisonment but on appeal that term was reduced to a total effective sentence of 12 years and 4 months.[17]
[17] Preliminary Reasons, pars 36, 59 - 65.
On 24 November 2014, Mr El Waly 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. The offence involved the respondent indecently exposing himself to a female prison officer at Barwon Prison in 2013.[18]
[18] Preliminary Reasons, pars 37, 59 - 65.
Although the offences in Victoria were committed after Mr El Waly committed the sexual assault in Northbridge, he was not convicted of the Northbridge offence until 29 May 2018. It is for this reason that Mr El Waly's sentences for the earlier Western Australian offences were ordered to be served cumulatively on the sentences he was already serving.
Whether there is any pattern of offending behaviour
In considering whether or not Mr El Waly is a high risk serious offender, the HRSO Act requires me to have regard to whether or not there is any pattern of offending behaviour by the offender.[19]
[19] HRSO Act, s 7(3)(d).
Fiannaca J has previously considered whether there was a pattern to Mr El Waly's offending.[20] He concluded that it would be open to the court to find at the restriction order hearing that Mr El Waly has demonstrated a propensity to commit serious sexual offences, accompanied with other forms of violence, against vulnerable women. He considered that the propensity may be inferred from not only the nature, repetition and similarity of the sexual offending by Mr El Waly, but also the fact that the offending occurred over a relatively short period of time in Mr El Waly's life, including soon after being imprisoned for such offending.[21]
[20] Preliminary Reasons, pars 37, 59 - 65.
[21] Preliminary Reasons, par 66.
Fiannaca J referred to remarks that McCann DCJ made when he sentenced Mr El Waly in 2018, when his Honour said: [22]
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.
[22] Preliminary Reasons, par 67.
Fiannaca J said that on the evidence available to him those observations appeared to be well founded. His Honour identified the pattern of Mr El Waly's conduct as follows:[23]
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.
[23] Preliminary Reasons, par 69.
The State submitted that such a pattern emerged from Mr El Waly's offending, although it emphasised, on the basis of the evidence given by Dr Wynn Owen and Dr Bannister (discussed below), that Mr El Waly's offending appeared opportunistic and was not marked by much forward planning.
With respect, I agree with Fiannaca J, that the pattern described by his Honour is evident in Mr El Waly's offending.
Medical, psychiatric or other assessment relating to Mr El Waly
The HRSO Act also requires me to have regard to any other medical, psychiatric, psychological, or other assessment relating to Mr El Waly, in considering whether or not Mr El Waly is a high risk serious offender.[24]
Mr El Waly's psychiatric history
[24] HRSO Act, s 7(1) and 7(3)(b).
Mr El Waly's psychiatric history was described by Fiannaca J in the Preliminary Hearing Reasons.[25] I respectfully adopt the findings made (which were substantiated by the evidence relied upon by the State before me). I do not propose to repeat what was said by Fiannaca J.
[25] Preliminary Reasons, pars 76 - 96.
The State drew attention to the following reports that were in the books of materials tendered by the State.
The Pre-Sentence Report dated 3 April 2018
The State referred to a pre-sentence report prepared on 3 April 2018, in relation to Mr El Waly's sentencing in the District Court for the offence he committed in Northbridge in 2005.
The author of the report expressed the view that Mr El Waly lacked any insight into this offending and seemed to lack genuine empathy for his victim. The report recorded that Mr El Waly claimed he could not recall committing the offence because he was intoxicated and could only recall being at a night club before the offence. The report said that Mr El Waly said it was 'like a dream and embarrassing', that he was 'sorry for the lady' and that he 'respects women'.
The report noted that while it was recommended that Mr El Waly complete the Sex Offender Treatment Program, it was unlikely that he would be offered a position in that program due to his 'protection' status, and that individual counselling may be considered at a later stage.
The report records that Mr El Waly told the author that he was diagnosed with schizophrenia in 2008. The report referred to records from prison in Victoria that addressed his mental health treatment.
Parole Review Report dated 21 February 2022
The State also referred to a Parole Review Report that was prepared on 21 February 2022.
This report indicates that there is a Violence Restraining Order against Mr El Waly in favour of the victim of the sexual penetration without consent offence. It also states that Mr El Waly is not subject to deportation or removal.
The report addressed Mr El Waly's performance in prison. It lists numerous charges during his time in prison in Western Australia, involving behaving in a disorderly manner, using indecent and insulting language towards prison officers and nurses, and assaulting prison officers. The report also refers to several negative offender notes recorded against him for poor behaviour, non-compliance, and general belligerent behaviour.
The report noted that Mr El Waly had been unable to participate in any treatment programs.
The report recommended that Mr El Waly be denied parole because there were no protective strategies in his current release plan to prevent re-offending, his offending behaviour remained unaddressed, his prison conduct had been poor and he was unlikely to comply with parole conditions given his poor response to instructions and orders while in custody.
Parole Assessment Report dated 31 March 2022
The State referred to an adult Community Corrections Parole Assessment Report that was prepared by a Senior Community Corrections Officer on 31 March 2022.
The author of the Parole Assessment Report discussed Mr El Waly's offences with him and he expressed remorse. The author of the report considered that Mr El Waly's answer appeared rehearsed and insincere. She considered that Mr El Waly did not appear to understand the seriousness of his offending behaviour, stating it was 'inappropriate' and believed it 'was out of character.' She said that he used similar language regarding both victims and said he 'tried to hook up' and 'wanted to have sex'.
The author of the Parole Assessment Report referred to a Victim Mediation Report dated 17 March 2022, which stated, when discussing the offence of sexual penetration without consent with Mr El Waly, Mr El Waly told the author of that report that his drink was spiked on the night of the offence, causing him to act out of character.
The author of the Parole Assessment Report said that the Victim Mediation Report recorded that Mr El Waly became uncooperative, impertinent, deflected questions, asserted that the questions asked were 'abusive' and used derogatory language with the result that the interview was terminated.
The report noted that Mr El Waly had not previously been subject to a period of community disposition.
The report referred to the numerous charges that Mr El Waly had incurred in prison and to the discharge summary from the Franklin Centre that referred to incidents of aggression toward prison officers, spitting, throwing food and being verbally abusive and threatening.
The author of the Parole Assessment Report said that Mr El Waly denied being diagnosed with schizophrenia.
The author noted, however, that Mr El Waly was admitted to the Frankland Centre on 23 February 2022, with a diagnosis of paranoid schizophrenia. She said that the Centre's Discharge Summary indicates that when unwell, Mr El Waly expresses hatred of women with strong sexually violent themes, and would be a high risk of further sex offences against women if he is unwell and not in prison.
The author of the Parole Assessment Report assessed the risks posed by Mr El Waly and considered that those risks relate to sexual offending, antisocial attitudes, poor decision making skills about male privilege, lack of victim empathy, impulsivity and poor maintenance of mental health. She thought that Mr El Waly also lacked insight into the seriousness of his behaviour and had not engaged in any intervention to address that lack of insight.
The author of the Parole Assessment Report considered the likelihood that Mr El Waly would comply with any parole conditions. She said that although Mr El Waly verbally agreed to comply with any parole conditions, his willingness to address his offending behaviour did not present as genuine. She considered that he failed to demonstrate how he had changed. She also observed that Mr El Waly had demonstrated a poor response to instructions and orders whilst in custody, suggesting he is unlikely to comply with the obligations of parole.
The author of the Parole Assessment Report did not consider that Mr El Waly was suitable for parole. She observed that Mr El Waly did not have protective strategies in place to prevent recidivism, his treatment needs remained unaddressed and his poor prison conduct suggests he is at an increased risk of reoffending. She also observed that the fact that he denied any mental health issues suggested he was unlikely to comply with any medication requirements and is a high risk of further sex offences against women if he became unwell.
The author of the Parole Assessment Report considered that it would be unsuitable for Mr El Waly to live with his mother if he was given parole.
Mr Carmichael's report dated 22 March 2024
The State referred to a 'Treatment Options Report' dated 22 March 2024 prepared by Mr Carmichael. That report indicates that at that stage, Mr El Waly had had limited involvement in criminogenic intervention treatment in custody.
Mr Carmichael sets out the history of Mr El Waly's assessment for such treatment and indicated that on 20 March 2024, Mr El Waly had been interviewed at Hakea Prison by Senior Counselling Psychologist, Mr David Summerton, for the purposes of an Individual Psychological Treatment Assessment Report.
Mr Carmichael said that it was intended that Mr El Waly would commence individual psychological intervention with Mr Summerton on a weekly to fortnightly basis.
Mr Carmichael's report dated 20 August 2024
The State also referred to a further Treatment Options Report on 20 August 2024 that Mr Carmichael prepared.
Mr Carmichael said that since he prepared his last report, Mr El Waly had attended 10 sessions of counselling with Mr Summerton.
Mr Carmichael reported that Mr Summerton thought that impression management had initially been a barrier to treatment but this had been much reduced and that Mr El Waly had been candid in addressing his offending and related criminogenic targets.
Mr Carmichael reported that Mr Summerton would continue to provide Mr El Waly with individualised psychological intervention.
Community Supervision Assessment report dated 14 October 2024
The State referred to an HRSO Community Supervision Assessment report (CSA Report) that was prepared by a member of the Community Offender Monitoring Unit.
The CSA Report addresses various matters including Mr El Waly's court history, his prison behaviour, the treatment that he has received, a proposed community supervision plan, proposed accommodation and available community support.
In relation to Mr El Waly's prison behaviour, the report noted that Mr El Waly incurred numerous incident reports during his imprisonment in Victoria between 2010 and 2014. It said that these incidents involved Mr El Waly assaulting staff by throwing meals and spitting at them, damaging prison property, behaving in an intimidating manner, refusing staff directions, being verbally abusive and threatening staff, threatened assault by other prisoners, being a victim of an assault and assaults upon other prisoners.
The report said that Mr El Waly had incurred numerous prison charges since his transfer to Western Australia. It said that from his arrival in Western Australia in 2017, Mr El Waly has accumulated nine prison charges for using insulting/threatening language/manner towards prison officers. The report stated that several incident reports had resulted in prison charges whilst others have not. It said that Mr El Waly made derogatory comments to female prison officers.
The report recorded Mr El Waly's belief that his poor prison behaviour was a consequence of his poor mental health at the time.
The report provided details of the charges in Western Australia. There were 10 charges in 2017. There was one in 2021 two in 2023 and one in January 2024.
The report records that the TOMS prison database further records notes on Mr El Waly's behaviour in the custodial environment where prison charges have not eventuated. The report says that his abusive and belligerent attitude and on occasion borderline aggressive behaviour has been commented upon regularly. The report states that notably, the TOMS prison database records Mr El Waly's last negative note on 7 February 2024 when he was abusive towards staff in the medical centre, resulting in his mental health appointment being cancelled due to his behaviour and not wanting to speak with a female nurse.
The report states that TOMS indicates that since 13 February 2024, Mr El Waly has reportedly been polite and respectful towards prison staff. It says that similar notes are reflected on 1 July and 22 July 2024 and that Mr El Waly stated he acknowledges the benefit of his mental health medication injection and has committed to taking it monthly when it is due.
In relation to the treatment that Mr El Waly was receiving, the report referred to the fact that Mr El Waly was receiving counselling from Mr Summerton. The report stated that Mr El Waly had received 14 sessions by then and that Mr El Waly had said that he was enjoying the sessions which he described as excellent.
The report noted that Mr El Waly had not previously been subject to community supervision in Western Australia and discussed the consideration that had been given to Mr El Waly's release by the Prisoners Review Board. In that context, the report noted that there had been consideration given to Mr El Waly living with his mother.
The report indicated that if Mr El Waly was declared a high risk serious offender and a supervision order made, he proposed to live with his mother. The report discussed the proposed accommodation and concerns were expressed about the suitability of Mr El Waly living with his mother.
The report included proposed supervision order conditions to monitor and address Mr El Waly's risk factors in the event that he is considered for release under a supervision order.
Updated performance report by Ms Stuart dated 6 January 2025
The State referred to an Updated Performance Report that was prepared by Pauline Stuart, a Senior Community Corrections Officer in the Community Offender Monitoring Unit of Corrective Services on 6 January 2025.
The report records that Mr El Waly had incurred no adverse incidents or charges since 11 January 2024 as documented in the Community Supervision Assessment report dated 14 October 2024. The Updated Performance Report records that there is nothing in TOMS to indicate that Mr El Waly has not continued to be polite and respectful to prison staff.
The report states that Mr El Waly had continued to see Mr Summerton and had seen him 16 times by then. Mr El Waly told the author of the report that he found his counselling sessions with Mr Summerton beneficial, stating that they have been reviewing what his release to the community might look like after the many years he has spent incarcerated.
The report indicated that although Mr El Waly's preference remained to live with his mother, he would consider living alone in the vacant one-bedroom unit owned by his mother which was in an apartment complex, not far from his mother.
The report stated that the WA Police has conducted a desktop analysis of the address of the unit which indicated that:
(a)the complex had 83 units;
(b)there may be a number of vulnerable women who live nearby;
(c)the unit is close to an entertainment precinct, with a high likelihood of significant foot traffic of young females in the area; and
(d)the nearest police station is Kensington Police Station, with the closest 24 hr police station being Cannington Police Station.
Updated Community Supervision Assessment by Ms Stuart dated 7 August 2025
The State also referred to an Updated Community Supervision Assessment report that was prepared by Ms Stuart on 7 August 2025.
The report indicated that on 1 April 2025, while Mr El Waly was in prison, he was accused of a sexual assault against another prisoner. The report states that the matter was referred to WA Police but they have indicated that no charges would be laid due to insufficient evidence. The report said that prison staff continue to comment that Mr El Waly maintains a polite and respectful attitude.
The report states that Mr El Waly had continued to attend counselling with Mr Summerton and that since 7 January 2025, he had attended nine sessions on a fortnightly basis. The report said that Mr Summerton had confirmed that he would continue to work with Mr El Waly after his release.
The report states that due to Mr El Waly having reintegration needs and limited community support, he was referred to Uniting WA for assistance with reintegration and accommodation through the 'HRSO Supported Accommodation Program'. The report recorded that Mr El Waly completed the minimum engagement period of six months at the end of July 2025 and has received multiple visits from Uniting WA without incident. The report states that the unit is fully furnished and that in the first two weeks of Mr El Waly's release, Uniting WA will provide Mr El Waly with practical support including initial transport to mandatory appointments, obtaining a mobile phone, opening a bank account and attending Centrelink. The report also said that Mr El Waly will be able to access reintegration support with Uniting WA for 24 months post release under a supervision order.
Reports prepared under s 74 of the HRSO Act
In considering whether or not Mr El Waly is a high risk serious offender, I am also required to have regard to any report prepared under the HRSO Act.[26]
[26] HRSO Act, s 7(1) and 7(3)(a).
The State relied on two reports prepared by Dr Wynn Owen on 19 August 2024 and 7 August 2025 and two reports prepared by Dr Ben Bannister on 16 August 2024 and 10 September 2025.
Dr Wynn Owen's report dated 19 August 2024
Dr Wynn Owen interviewed Mr El Waly on 31 July 2024 and 1 August 2024 for a total of four hours. He was also provided with various materials that he sets out in his report.
Dr Wynn Owen diagnosed Mr El Waly as suffering from:
Schizophrenia, Paranoid type, multiple episodes, currently in remission. Post Traumatic Stress Disorder. Antisocial personality traits.
Dr Wynn Owen reviewed the materials provided to him, assessed Mr El Waly clinically and applied risk assessment tools Static-99R, Risk for Sexual Violence Protocol (RSVP) and Hare Psychopathy Checklist, Revised (PCL-R). His opinion was that Mr El Waly presents a high risk of committing a serious offence in the future if not subject to a restriction order.
Dr Wynn Owen's opinion was based on Mr El Waly's high Static-99R likelihood score, ongoing evidence of misogynistic cognitive distortions, antisocial personality traits, and the presence of a fluctuating/relapsing major mental illness with associated intermittent lack of insight and a history of poor medication compliance. Dr Wynn Owen also considered it significant that there is no history of effective criminogenic intervention and that Mr El Waly has a range of outstanding criminogenic treatment needs.
The Static-99R is an actuarial tool designed to indicate the likelihood of future sexual offending which is widely accepted by the scientific community and is considered to have been validated through use in clinical and criminal justice settings. Mr El Waly's score was in the 'Well Above Average Risk' range. Dr Wynn Owen observed that individuals released from prison with the same Static-99 score as Mr El Waly had an average five year sexual recidivism rate of 30.7% and a reoffence likelihood of 42.8% at 10 years.
Dr Wynn Owen also scored Mr El Waly on the PCL-R. He said that Mr El Waly's total score on the PCL-R did not meet the threshold score of 30 required for a finding of a psychopathic disorder, or come within the standard error of that score.
Dr Wynn Owen considered that a number of risk factors were present for the purposes of RSVP.
He considered that Mr El Waly's history of offending revealed that three of the five of the RSVP historical risk factors were present: chronicity of sexual violence, escalation of sexual violence and coercion in sexual violence. Dr Wynn Owen observed that the risk factor chronicity of sexual violence is strongly associated with risk of future sexual offending.
Dr Wynn Owen's opinion was that four of the five RSVP psychological adjustment risk factors are partially, or definitely present. The risk factors that were definitely present were attitudes that support or condone sexual violence, problems with self-awareness and serious problems with stress or coping. He considered that the risk factor minimisation or denial of sexual violence was partially present.
Dr Wynn Owen considered that three of five 'Mental Disorder' risk factors are definitely present: 'Major Mental Illness', problems with substance abuse and violent ideation.
His opinion was that three of the four 'Social Adjustment' risk factors were also present: problems with intimate relationships, problems with non-intimate relationships and non-sexual criminality.
He identifies all three 'Manageability' risk factors are present: problems with planning, problems with treatment and problems with supervision.
Dr Wynn Owen considered possible scenarios in which Mr El Waly might re-offend.
He considered that there was a risk of Mr El Waly repeating an offence similar to that already committed. He said this might occur in the context of Mr El Waly being unable to control sexual impulses, identifying a vulnerable female (intoxicated, cognitively or physically impaired), approaching her with a feigned offer of assistance then taking her to a previously identified private place and sexually assaulting her. He said that such an assault is likely to include sexual penetration, involve threats of harm and physical coercion.
Dr Wynn Owen considered that it was possible that Mr El Waly's offending might escalate and involve a greater degree of physical force, if Mr El Waly was intoxicated at the time of committing the offence.
Dr Wynn Owen observed that there was also a possibility that the nature of Mr El Waly's offending might change and he might offend against females known to him, if his access to other potential victims was restricted.
Dr Wynn Owen considered that Mr El Waly will need ongoing mental health care for the foreseeable future. He observed that Mr El Waly's intermittent medication compliance in prison and variable insight into the diagnosis and need for treatment, indicate that Mr El Waly should be considered for involuntary treatment under the Mental Health Act if he is in the community.
Dr Wynn Owen's opinion was that Mr El Waly currently meets the criteria for a Community Treatment Order, but this would be a decision for the referring prison psychiatrist and his nominated treating psychiatrist in planning release should he be released on a supervision order.
Dr Wynn Owen considered that Mr El Waly should be referred to the Community Forensic Mental Health Service for management of schizophrenia if released and that he should continue counselling with Mr Summerton to address outstanding treatment needs.
Dr Wynn Owen expressed the opinion that any supervision order conditions should reflect high risk situations specific to Mr El Waly, including:
(a)abstinence from alcohol including exclusion from premises where alcohol is consumed;
(b)no unsupervised contact with women;
(c)notification of commencement of any friendship/relationship with a woman; and
(d)adherence of directions of treating psychiatrist.[27]
[27] BoM, Vol 3, 837 [72.II].
Dr Wynn Owen recommended a supervision order of a maximum five years, based on research into sex offender desistance/risk reduction with time offence free post release, time between serious offences and Mr El Waly's current age and physical health.
Dr Bannister's report dated 16 August 2024
Dr Bannister interviewed Mr El Waly twice on 8 July 2024 and 1 August 2024 for four hours and five minutes, reviewed various materials provided to him and spoke to various individual's involved with Mr El Waly.
Similarly to Dr Wynn Owen, Dr Bannister's opinion was that Mr El Waly poses a high risk of serious offending if he is not subject to a restriction order.
Like Dr Wynn Owen, Dr Bannister scored Mr El Waly using the PCL‑R. He also concluded that Mr El Waly did not meet the threshold score of 30 required for a finding of psychopathic disorder, but he thought that he did score in the moderate range.
Dr Bannister also assessed Mr El Waly's risk of recidivism using the Violence Risk Scale: Sex Offender Version (VRS-SO).
The VRS-SO is a structured clinical judgment tool designed to assess risk and predict sexual recidivism, to measure and link treatment changes to sexual recidivism, and to inform the delivery of sexual offender treatment.
It comprises 7 static (historical) and 17 dynamic (changeable) factors that have been empirically or conceptually linked to sexual recidivism. The static variable scores are added to give the static risk score, the dynamic variable scores are added to give the dynamic risk score, and both static and dynamic variable scores are added to give the overall risk profile.
Mr El Waly's total score for static variables was 13 out of a possible 21, placing him in the percentile range of 78.9. Dr Bannister explained that that means that Mr El Waly's static risk score was equal to or more than the score of 78.9% of the original normative sample.
The static variables that Dr Bannister identified were: age at release, age at first sexual offence, the type of sex offender, the number of prior sex offences, that the victims were unrelated to Mr El Waly, the number and gender of victims and the number of prior sentencing dates.
Mr El Waly's total score for dynamic variables was 35 out of a possible 51, placing him in the percentile range of 92.5. Dr Bannister explained that that means that Mr El Waly's dynamic score was equal to, or more than, 92.5% of the original normative sample. The dynamic variables that Dr Bannister identified were:
(a)sexually deviant lifestyle;
(b)repetitive compulsive sexual activity;
(c)offence planning;
(d)criminal personality;
(e)cognitive distortions;
(f)interpersonal aggression;
(g)emotional control;
(h)insight;
(i)substance abuse;
(j)community support;
(k)released to high risk situations;
(l)sexual offending cycle;
(m)impulsivity;
(n)compliance with community supervision;
(o)treatment compliance;
(p)deviant sexual preference; and
(q)intimacy deficits.
Dr Bannister assessed Mr El Waly's prorated total combined static and dynamic risk variable score for these variables as 48 out of a possible 72. Dr Bannister said that statistically this places Mr El Waly in the 92.7th percentile (meaning Mr El Waly scored the same or higher than 92.7% of the normative sample). Dr Bannister explained that this is in the high-risk category of sexual reoffending as defined by the VRS-SO.
Dr Bannister said that the score suggests that Mr El Waly will have a 19.2% - 29.5% chance of sexually reoffending within five years if he is not subject to an order.
Dr Bannister considered the likelihood that Mr El Waly would engage in future serious offending. He said that the most likely risk scenario for Mr El Waly is a breach of the conditions of a supervision order. He thought this might be brought about due to Mr El Waly's underestimation of the seriousness of the obligations imposed by an order.
Dr Bannister said that the most serious risk scenario would involve Mr El Waly engaging in alcohol use and decompensating in relation to his mental illness, as demonstrated by refusing medication or demonstrating increasingly aggressive and confrontational interactions, negatively impacting on his ability to successfully self-manage his sexual compulsivity.
Dr Bannister considered that Mr El Waly presents with a range of outstanding treatment needs, including sexual compulsivity, cognitive distortions, interpersonal aggression, emotional control, insight, alcohol use, and impulsivity. Dr Bannister said that Mr El Waly's risk assessment also identified that he lacks comprehensive and detailed relapse prevention plans (or indeed specific strategies to avoid or appropriately manage risk factors within such situations).
Dr Bannister expressed the view that the key factors in ameliorating Mr El Waly's risks will be encouraging him to establish and maintain prosocial relationships, having him be kept meaningfully engaged in daily activity and continued engagement in criminogenic treatment. Dr Bannister said that he will also require ongoing psychiatric care to ensure his mental health continues to be well-managed.
Dr Bannister recommended that any supervision order should include at least consider the following:
(a)a restriction on alcohol and associated testing;
(b)Mr El Waly should be encouraged to secure full-time employment, maintain stable and suitable accommodation, involve himself with meaningful engagement in community-based hobbies or leisure pursuits, and establish and develop pro-social networks;
(c)the climate of any intimate relationships that Mr El Waly enters into should be monitored closely, and he should be provided with information on healthy attachments and positive communication;
(d)consideration should be given to the fact Mr El Waly has spent considerable time in prison at this point, and he may need assistance with practical issues related to community living;
(e)diary or curfew conditions may be useful to help Mr El Waly to meaningfully structure his day, while concurrently providing risk mitigation functions;
(f)Mr El Waly should continue to engage in individual criminogenic treatment, preferably with Mr Summerton; and
(g)conditions relating to ensuring Mr El Waly's medication compliance.
Dr Bannister considered that the supervision order should be at least five years but should not be of a length that would discourage Mr El Waly.
Dr Wynn Owen's report dated 7 August 2025
Dr Wynn Owen reviewed Mr El Waly again on 5 July 2025. He was also provided with further materials that he identifies in his report.
Dr Wynn Owen considered that Mr El Waly has a diagnosis of schizophrenia (paranoid type), which is currently in remission, and post-traumatic stress disorder with antisocial personality traits.
Dr Wynn Owen said that Mr El Waly had remained in regular treatment with Mr Summerton and had demonstrated an improved understanding of the role of alcohol use in his offending.
Dr Wynn Owen stated that Mr Summerton reported that Mr El Waly had engaged well and was open in his disclosure. He also reported that the feelings of shame had become less of a barrier to intervention as the therapeutic engagement developed over time.
Dr Wynn Owen said that Mr Summerton considered that Mr El Waly had demonstrated a good understanding of the relationship between alcohol use and serious offending, the antecedents to his alcohol use and he has consistently stated that he will not use alcohol in future.
Dr Wynn Owen reported that Mr El Waly said that he felt able to talk openly with Mr Summerton and that the work they were doing was very helpful and that he was very happy to continue working with Mr Summerton whether in prison or if released to a supervision order.
Dr Wynn Owen said that Mr El Waly acknowledged that he started drinking and visiting nightclubs because he was dealing with the loss of his relationship and felt that he had disappointed his family. Dr Wynn Owen said that Mr El Waly understood that he made bad decisions when he drank and he expressed shame and remorse about offences he committed. Dr Wynn Owen said that Mr El Waly also now recognised how the loss of his marriage had affected his attitude towards women.
Dr Wynn Owen said that Mr El Waly reported having no libido and lacking any sexual feelings.
Dr Wynn Owen observed that Mr El Waly showed awareness of the conditions likely to be in place if released to a supervision order and was able to describe and understand the rationale for conditions related to alcohol use, unsupervised contact with women, diary and preplanning activities.
Dr Wynn Owen reported that Mr El Waly denied any current or recent symptoms of mood or psychotic disorder and said that he had experienced no paranoid thoughts since returning to prison from the Frankland Centre in early 2024.
Dr Wynn Owen thought that Mr El Waly has shown moderation of some of the risk factors he had identified using the RSVP risk identification tool when he reviewed him in 2024. He said that these changes reflect a positive treatment response and augurs well for the ongoing intervention and successful transition to the community should Mr El Waly be released to a supervision order.
Dr Wynn Owen considered that the risk factor minimisation or denial of sexual violence, deemed partially present in 2024, has moderated. He said that Mr El Waly now appears to take more personal responsibility for past offending behaviour and alcohol consumption rather than attributing this behaviour to alcohol.
Dr Wynn Owen said that the risk factor attitudes that support or condone sexual violence has not been overtly present over the last 12 months. He said that Mr El Waly at interview showed an awareness of having held such views and how they may have contributed to his offending.
Dr Wynn Owen expressed the view that the risk factor problems with self-awareness has moderated and is now only partially present. He said that Mr El Waly has developed an improved insight into the emotional state and situational context of past offending. He thought, however, that Mr El Waly lacks insight into having a mental illness and the need for medication when psychiatrically unwell.
Dr Wynn Owen said that the risk factor problems with substance abuse is present but has moderated. He said that Mr El Waly shows improved insight into the reasons for his past alcohol use that will assist in maintaining abstinence.
Dr Wynn Owen said that the risk factor violent ideation is not currently present and has moderated since his last assessment.
Dr Wynn Owen recommended that Mr El Waly continue in treatment with Mr Summerton and that if he is made subject to a supervision order, his mental health care be delivered by the Community Forensic Mental Health Team.
Dr Bannister's report dated 10 September 2025
Dr Bannister reviewed Mr El Waly again on 4 September 2025 for 45 minutes, reviewed various materials provided to him and again spoke to various individual's involved with Mr El Waly identified in his report.
Dr Bannister reported no change in Mr El Waly's sexual functioning, stating that he continued to have no sexual interest at all.
Dr Bannister said that Mr El Waly has continued to see Mr Summerton for ongoing individual psychological treatment and Mr Summerton confirmed that he had then seen Mr El Waly for a total of 29 sessions, recently reducing the frequency of sessions to monthly from fortnightly.
Dr Bannister said that Mr Summerton had noticed an increased degree of restricted affect in Mr El Waly's presentation, consistent with his medication intake, however this had not impeded their ability to progressively establish rapport over the course of their interactions. He said that the general focus of Mr Summerton's treatment had been various criminogenic issues, and anticipated his contact with Mr El Waly would increase to weekly upon his eventual release to the community.
Dr Bannister said that Mr El Waly's current risk of recidivism was re-evaluated using the VRS-SO and no individual variables were determined to have changed, and his risk rating remained the same.
Dr Bannister said that the treatment targets previously outlined for Mr El Waly continue to be relevant.
Dr Bannister expressed the opinion that the successful management of Mr El Waly's risk in the community on a supervision order will be maximised if he: maintains his stated willingness to adhere to an order, that his capacity to do so is maintained through appropriate mental health management, that he continues engaging in treatment with Mr Summerton, that the proposed conditions are enacted, and that he continues to have the practical support of Uniting WA.
Dr Bannister considered that Mr El Waly's proposed accommodation appears to be suitable. He said that any potential concerns (for example, in relation to his proximity to the Albany Highway entertainment precinct with the high likelihood of significant foot traffic of young females in the area), will be able to be managed with the order conditions proposed such as a curfew.
Dr Bannister said that based on the available information, he did not consider any other conditions are required in a supervision order.
Rehabilitation
The HRSO Act requires me to have regard to:
(a)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;[28] and
(b)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender.[29]
[28] HRSO Act, s 7(3)(e).
[29] HRSO Act, s 7(3)(f).
The State submitted that Mr El Waly has several treatment needs which are consistently reflected across a number of the assessments and reports referred to above. It argued that Mr El Waly has not completed any programs or treatment since 2002.
The State referred to an observation made by Dr Wynn Owen in his report dated 19 August 2024 about the counselling that Mr El Waly was receiving from Mr Summerton. Dr Wynn Owen said that at that stage Mr Summerton reports that Mr El Waly had engaged well and is, in his opinion, being open in therapy. It was said that Mr El Waly was volunteering information, seemed honest in his descriptions of offending. Dr Wynn Owen said Mr Summerton noted that the degree of shame, judgment and negative self-evaluation Mr El Waly experiences in relation to past offending at times 'got in the way' but he did not consider this to be insurmountable.
The State also referred to the report that Dr Bannister had prepared on 7 August 2025 where Dr Bannister said that Mr Summerton had noticed Mr El Waly attempting some degree of impression management. Dr Bannister also said that Mr Summerton had acknowledged that no direct criminogenic issues had been addressed as yet, because a therapeutic rapport was continuing to be developed.
In the State's October 2024 Submissions, the State submitted that while it is commendable that Mr El Waly had engaged meaningfully in counselling, he had not then yet had an opportunity to address his criminogenic issues and had not engaged in any meaningful therapy with respect to addressing his outstanding treatment needs.
The State's August 2025 Submissions acknowledged that Dr Wynn Owen's updated report spoke positively about Mr El Waly's engagement with Mr Summerton. The State accepted that Dr Wynn Owen noted a positive treatment response from Mr El Waly due to his engagement with Mr Summerton.
Dr Bannister's updated report was prepared after the State prepared its August 2025 Submissions. Dr Bannister's updated report acknowledges that Mr Summerton and Mr El Waly have progressively established a rapport and the focus of their treatment had been on addressing criminogenic issues.
The State submitted that while Mr El Waly's shift in attitude towards treatment and rehabilitation is positive, the weight to be given to this must be moderated by his historical 'negative attitude' towards treatment.
Mr El Waly has continued his counselling with Mr Summerton for over a year now. The evidence before me suggests that Mr El Waly has made a genuine effort to engage with Mr Summerton and has made genuine progress.
The evidence suggests that Mr Summerton's counselling has had a positive effect on Mr El Waly. As the State acknowledged, that positive effect has been noted by Dr Wynn Owen. In my view, it is also notable that there has been significant improvement in Mr El Waly's (historically poor) behaviour in prison since his counselling began.
The evidence does not suggest, however, that the counselling has been so successful that Mr El Waly does not continue to have significant treatment needs or that he would not continue to require continued support. Both Dr Wynn Owen and Dr Bannister agree that Mr El Waly has such needs and will continue to require such support.
Propensity to commit serious offences in the future, the risk of committing such offences and the need to protect the community
In considering whether or not Mr El Waly is a high risk serious offender, I am required to have regard to:
(a)whether or not the offender has a propensity to commit serious offences in the future;[30]
(b)the risk that, if the offender were not subject to a restriction order, he would commit a serious offence;[31] and
(c)the need to protect members of the community from that risk.[32]
[30] HRSO Act, s 7(3)(c).
[31] HRSO Act, s 7(3)(h).
[32] HRSO Act, s 7(3)(i).
The State submitted that Mr El Waly has a propensity to commit serious offences in the future, that there is a risk that he will do so if he is not subject to a restriction order and that there is a need to protect members of the community from that risk.
The State submitted both Dr Wynn Owen and Dr Bannister had assessed Mr El Waly as either a high risk, or well above average risk, of committing a serious offence if he is not subject to a restriction order.
The State referred to Dr Wynn Owen's evidence that Mr El Waly's STATIC-99R score as assessed by Dr Wynn Owen in 2024 places him in 'well above average risk' for being charged or convicted of another sexual offence, when compared to other sex offenders. The State submitted that Mr El Waly's score indicates a likelihood of sexual offending over the five years post release of 30.7%.
The State also relied upon an observation made by Dr Wynn Owen that Mr El Waly 'continues to revert to misogynistic language and behaviours when under stress'. It referred to Dr Wynn Owen's opinion that there is a potential link between Mr El Waly's behaviour and periods of non-compliance with psychiatric medication, as Mr El Waly is less able to manage his underlying beliefs when he is mentally unwell.
The State also relied upon Dr Bannister's assessment of Mr El Waly using the VRSO-SO assessment tool, as being a 'high risk' for being charged or convicted of another sexual offence. The State submitted that the score suggests that Mr El Waly will have a 19.2% ‑ 29.5% chance of sexually reoffending within five years if he is not subject to an order.
The State also submitted that it was relevant that Dr Bannister noted that 'dysfunctional management, in combination with an underlying anger and resentment towards women, and facilitated in part by disinhibition as a result of alcohol use and mental health issues, may have increased [Mr El Waly's] likelihood of offending'.
The State referred to Dr Bannister's observation that some of Mr El Waly's behaviours in prison included 'sexually based threats' and 'hostility to women'.
The State submitted that a restriction order is necessary to ensure that young females are protected from the risk of Mr El Waly committing similar offences in the future.
The State referred to Dr Wynn Owen's observation that Mr El Waly's offending had escalated from indecent assault to sexual penetration without consent and that there has been an increase in the frequency of the offending. The State submitted that any future serious offence could have a significant, catastrophic and long-lasting impact.
The State also referred to the sentencing remarks made by Groves DCJ when he sentenced Mr El Waly in the District Court for the offences committed in 2002 where his Honour indicated that he considered that a sentence of imprisonment needed to be imposed to protect young females from Mr El Waly's 'predatory behaviour'.
As I have already discussed, Mr El Waly's history of offending reveals a pattern of offending targeting vulnerable young women. The offending has been sustained and the seriousness of the offending has escalated.
Although Mr El Waly has received some treatment from Mr Summerton, the evidence does not suggest that such treatment has been so successful that it has eliminated the risk that Mr El Waly will offend again in the future. On the contrary, the uncontradicted evidence of Dr Wynn Owen and Dr Bannister establishes that there is a material risk that Mr El Waly may commit serious offences in the future if he were not subject to a restriction order.
I am satisfied that Mr El Waly has a propensity to commit serious offences in the future and that there is a risk that he would commit such an offence if he is not subject to a restriction order. I consider that there is an associated need to protect members of the community from that risk.
Other relevant matters
I am also required to consider any other relevant matter.[33]
Accommodation
[33] HRSO Act, s 7(3)(j).
The State made submissions about the suitability of the accommodation proposed.
The State noted that it had previously expressed concerns about Mr El Waly living with his mother. The State explained that the basis for the concern was that his mother was not aware of the sexual nature of his offending and she lives an isolated lifestyle. The State expressed concerns that his mother requires Mr El Waly's support and may not be inclined to contact Mr El Waly's supervising officer should she have any concerns about his behaviour.
The State indicated that it also holds concerns about the proposal that Mr El Waly live alone in his mother's vacant unit because it is near an entertainment precinct where there might be vulnerable young women.
The State submitted that, on balance, it accepted the opinion expressed by the experts that the unit was suitable should Mr El Waly be released on a supervision order.
Mental health
The State submitted that Mr El Waly's compliance with his medication regime would be integral to his performance on any supervision order. The State argued that while Dr Wynn Owen and Dr Bannister do not suggest that Mr El Waly's mental health caused his offending, insofar as it impacts upon his judgment, both suggest that his decline in mental health impacts on his underlying misogynistic beliefs, and that his behaviour escalates when he is unmedicated. The State contended that when Mr El Waly is not appropriately medicated, he has been known to exhibit sexually inappropriate behaviour and sexually violent thoughts.
The State accepted that Mr El Waly has been compliant with his medication regime since returning from the Frankland Centre, after his admission from 22 to 29 January 2024. The State also noted that Mr El Waly seemed more accepting of his mental health diagnoses.
The State submitted that the risk of Mr El Waly being non-compliant with his medication and thereby posing a risk to the community is demonstrate by his history of psychiatric treatment.
The State submitted that Mr El Waly appears to have required mental health treatment and multiple admissions to mental health facilities over the past 10 years. It observed that he had refused treatment on a number of occasions and displayed sexually concerning thoughts or behaviour when not appropriately medicated.
The State accepted, however, that since his return from the Frankland Centre in January 2024, Mr El Waly has been accepting his diagnosis of schizophrenia and taking his medication.
The State referred to Dr Wynn Owen's opinion that Mr El Waly requires ongoing mental health care for the foreseeable future and consideration should be given to involuntary treatment if he is in the community.
The State acknowledged, however, that Mr El Waly had made positive treatment gains through his counselling with Mr Summerton (including addressing his negative views and attitudes towards women) and compliance with his antipsychotic medication. The State accepted that Mr El Waly has demonstrated a degree of insight into his condition and the need for him to be compliant with his antipsychotic medication.
The State submitted that Mr El Waly's compliance with his antipsychotic medication regime and psychological treatment with Mr Summerton are imperative to meet his ongoing treatment needs.
Whether Mr El Waly is a serious offender
Is there an unacceptable risk that Mr El Waly will commit a serious offence?
Whether a risk is 'unacceptable' requires a balancing exercise that will take into account the nature of the risk, the likelihood of the risk being realised, and the serious consequences for an offender if an order is made.[34]
[34] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [27]; Hansen [No 2] [35].
Having considered all the material before me, I am satisfied to a high degree of probability that if Mr El Waly were to be released without any restriction, there would be an unacceptable risk that he will commit a serious offence.
The uncontested evidence of Dr Wynn Owen and Dr Bannister was that there was a high risk, or well above average risk, that Mr El Waly might commit a further serious offence. Although Mr El Waly has made some progress through treatment, Dr Wynn Owen and Dr Bannister both identified Mr El Waly as having significant outstanding treatment needs. They did not suggest that the risks that they had identified had been eliminated. I consider their evidence to be cogent.
Both Dr Wynn Owen and Dr Bannister considered that if Mr El Waly was to offend again, he would be likely to target vulnerable young women. While the consequences of making an order for Mr El Waly would be serious, the consequence for the victim of any further offending on his part would also be very serious.
Is it necessary to make a restriction order to ensure adequate protection of the community
I am also satisfied to a high degree of probability that it is necessary to make a restriction order to ensure the adequate protection of the community.
If Mr El Waly were simply to be released, the community would be exposed to the unacceptable risk that I have identified.
The cogent evidence of Dr Wynn Owen and Dr Bannister, is that if Mr El Waly were to be released on a supervision order, such an order would assist to mitigate the risk of his reoffending and increase the chances of his successful reintegration into society.
Conclusion: Mr El Waly is a high risk serious offender
Given all of these matters, I am satisfied that Mr El Waly is a high risk serious offender.
Whether a supervision order should be made?
The effect of s 48(1) of the HRSO Act is that upon finding Mr El Waly to be a high risk serious offender, I must either make a continuing detention order or a supervision order.
The State seeks a supervision order and provided a draft set of conditions for such a supervision order. However, s 48(1)(b) of the HRSO Act provides that the power to make a supervision order is subject to the operation of s 29 of the HRSO Act, which provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made. The onus of so satisfying the court is on the offender.
The State initially expressed reservations about Mr El Waly's capacity to comply with a supervision order. It referred to Dr Wynn Owen's first report where he noted the difficulty that Mr El Waly had complying with prison regulations previously, and a comment made by Dr Bannister in his first report, that if there is a breach of a supervision order, this might be because Mr El Waly underestimates the obligations imposed.
The State accepted that Dr Wynn Owen and Dr Bannister had tempered their concerns in their more recent reports. The State submitted that due to the Respondent's compliance with his medication regime and his ongoing attitude towards psychological intervention with Mr Summerton, the court can be satisfied that the Respondent will substantially comply with the standard conditions of the supervision order.
At the hearing, Ms Stuart gave evidence that she had explained the conditions to Mr El Waly on various occasions, that he understands those conditions and has indicated that he is motivated to comply with them.
I am satisfied that it is more likely than not that Mr El Waly will comply with the conditions of a supervision order. As I have already mentioned, although historically Mr El Waly has had difficulty complying with prison regulations, since he has been seeing Mr Summerton, there has been a marked improvement in his behaviour. This has been sustained for a significant period. As the State notes, he has also complied with his medication regime.
I have reviewed the draft conditions proposed by the State and consider that those are appropriate to address the issues raised on the evidence concerning Mr El Waly, his risk of offending, his treatment needs and his supervision and monitoring needs.
I am satisfied that the proposed accommodation is suitable. Dr Bannister considered the accommodation suitable. Dr Bannister considered that the conditions of the supervision order were sufficient to manage the risk of the accommodation being near an entertainment precinct. When Dr Wynn Owen gave evidence during the hearing, he agreed the accommodation was suitable. I accept his evidence in this regard and I agree.
I consider the appropriate length of time for that supervision order is five years. This is the period of time that Dr Bannister considered to be the appropriate minimum period and Dr Wynn Owen the maximum. At the hearing, Dr Wynn Owen agreed that five years was appropriate. This period of time will provide Mr El Waly with sufficient time to adapt to the community and to engage in treatment. The period will also provide Mr El Waly with an opportunity to obtain stable employment and find pro-social pursuits and hopefully reintegrate into the community.
Conclusion
For those reasons I make the following orders:
1.Having found the respondent is a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act 2020 (WA), the respondent be the subject of supervision order for a period of five years commencing on 13 October 2025 being a date not earlier than 21 days after the date of this order on the conditions set out in Annexure A.
2.Until further order, there be a suppression order regarding any publication of the address, including the town, at which the respondent will reside when the subject of the supervision order. This order does not apply to communications by any representative of a party to these proceedings for the purpose of conducting the case or providing advice in respect of the case or by any person who is responsible for supervising the respondent if the communication is necessary for that purpose or to judicial officers or court staff.
Annexure A
IN THE SUPREME COURT OF WESTERN AUSTRALIA
SO 1 of 2024
IN THE MATTER of the High Risk Serious Offenders Act 2020
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
YASER EL WALY Respondent
_________________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE PALMER
ON 19 SEPTEMBER 2025
_________________________________________________________________________
Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of five years from 13 October 2025, not being a date earlier than 21 days from the date this Order is made, on the following conditions:
You, YASER EL WALY, must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Within 48 hours of this Order starting, report to a Community Corrections Officer (CCO) at the Adult Community Corrections Centre that you were told to attend before your release from prison, and advise the CCO of your current name and address;
Report to and receive visits from, a CCO as directed by the Court;
Notify a CCO of every change of your name, home address, or place of employment at least 2 business days before the change happens;
Be under the supervision of a CCO and follow any reasonable direction given to you by the CCO (including direction for the purposes of section 31 or 32);
Not leave, or stay out of the State of Western Australia without the permission of a CCO;
Not commit a serious offence, as defined by the Act, during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Reside (live) at [REDACTED] and spend each night there. You can only stay at a different address only if the different address is approved in advance by a CCO assigned to you;
Not to leave your address without first seeking and obtaining approval in advance from your CCO;
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address between 9:00 am and 5:00 pm on the day of release;
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO;
Not start, change or increase any paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO;
Tell the CCO the name and details of any paid or unpaid employment, volunteer work, education or training that you are going to start, so it can start to be assessed and approved;
Attendance at programs
As directed by a CCO, follow the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending;
Reporting to WA Police
Report to the Officer-in-Charge (OIC) of the High Risk Serious Offender team (HRSOT) at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of this Order starting, and report to and receive visits from Police as directed by the OIC of the HRSOT or their delegate;
If asked to, let Police Officers enter and search your home and/or vehicle, search you and allow Police Officers to seize (take) any items that they believe to contravene the conditions of the Order. A Police Officer is to tell you they are using this power before acting pursuant to it;
Stay at your home and/or vehicle when Police Officers are searching your home and/or vehicle under condition 16;
When requested, tell Police the names of all of your internet service providers, all telephone services you use and all screen names, usernames, and email addresses;
Disclosure/exchange of information
Agree to the exchange of information about you between people and agencies involved in carrying out the Order;
Allow the CCO, WA Police, or other people or agencies approved by the CCO, to speak to anyone you spend time with or may spend time with and, where appropriate, to tell them information about you, including your offending history;
Restrictions on contact with victims
Unless you have the prior approval of your CCO and the Victim-Offender Mediation Unit of the Department of Justice, you must have no contact with the victims of your sexual and violent offending. Contact in this condition and conditions 22 to 23 means speaking to the victim in person or by phone, making any gestures towards the victim, messaging the victim using electronic devices, or asking someone else to speak to or send a message to the victim;
Unless contact with victims is permitted by condition 21, if you see any of the victims, you must immediately leave where you are, without speaking to them or gesturing to them, and you must look away from the victim at all times;
Report any contact with the victims on the next day you report to the CCO or Police;
Criminal conduct
Not commit any other criminal offence that can be dealt with by a sentence of imprisonment, and which involves sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under the following laws:
a.Criminal Code 1913 (WA):
·s 202 (obscene act in public)
·s 203 (indecent act in public)
·s 204 (indecent act with intent to offend)
b.Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA):
·s 17(1) (offence of consorting contrary to unlawful consorting notice);
Not possess or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, which includes cannabis. This does not apply to a drug that a doctor has prescribed for you as long as you don't use more than the doctor has told you to use;
Not breach, or commit any offence under, the Restraining Orders Act 1997;
Curfew
Comply with a curfew, requiring you to remain at and not leave your approved address, as directed by a CCO;
When subject to a curfew under this Order, during the time when you must be at your approved residence:
a.go to the front door or front yard if a CCO or Police Officer asks to see you; and
b.speak on the telephone, to any CCO or Police Officer or their representative monitoring your curfew, if they call to check you are at home;
When subject to a curfew under this Order, tell all adults at your home who may answer the telephone or door that you are on a curfew and ask them to tell you about attempts by police or a CCO to contact you;
Prevention of high-risk situations
Not get into any vehicle, except for public transport, where a female is present, unless the identity of that person has been approved in advance by the CCO;
Not hitch-hike or accept lifts in vehicles from any female who is unaware of your offending history, unless the identity of such person is approved in advance by the CCO;
Not allow any female to enter your vehicle;
Not enter any home where a female lives unless approved in advance by a CCO;
Not let any female enter your home unless the identity of that person has been approved in advance by a CCO;
Report any new social association or relationship (someone you have contact with more than once) to your CCO when you next report to them;
If told to do so by your CCO, tell anyone that you have a social association or relationship with (someone you have contact with more than once) about your past offending, which can be confirmed by a CCO or Police Officer;
Not associate with any person that you know has committed a sexual offence, unless you have the prior approval of a CCO;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer, including going with them to an appropriate place for such testing to take place;
Provide a valid sample under condition 39;
Not purchase, possess, or consume or use alcohol;
Not go to, or put any part of your body inside, any licensed premises unless permitted or required to do so for the following reasons:
a.Avoiding a serious risk of death or injury to yourself or another person; or
b.For a reason and duration approved in advance by a CCO;
c.If a CCO or Police Officer tells you to do so;
Not to be with anyone who you know, or should know, is affected by alcohol or a prohibited drug, unless the identity of that person is approved in advance by a CCO;
Not be anywhere that prohibited drugs are being used or, if the drugs are being used at your home, go to another part of your home, or ask the people using the drugs to leave;
Advise a CCO or Police Officer of every electronic device that you possess or use that can store digital data or information, whether or not it can connect to the internet (device), including each device's location;
Not let any person, except for a CCO or WA Police Officer, use any electronic device referred to in condition 45, without prior approval of a CCO;
Have a password on all electronic devices referred to in condition 45 and do not tell anyone your passwords, except for a CCO or WA Police Officer;
If asked to do so by a CCO or a WA Police Officer, let them use any electronic device in your possession which can store data so that they can investigate the device and tell them any password, screen name, username or email address that they need to use the device. If any other entity needs to access one of your devices, they must get the prior approval of a CCO;
Not delete, or allow to be deleted, any data on your devices, including calls, text messages, search histories or logs capable of identifying your activities on that device, whether or not the device can connect to the internet, without the prior approval of a CCO;
Not possess, hold a licence to possess, or apply for a licence to possess any firearm, ammunition or offensive or prohibited weapon, replica or dangerous article;
Not to impersonate a Police Officer or other person of apparent authority, including fire officers, medical personnel, paramedics, security officers, teachers, and military personnel;
Report any unsolicited interaction with a female at your home to the CCO and the Serious Offender Enforcement Squad at your next appointment;
Not to possess any pornographic material, in either hard-copy or digital form, or access or view pornography on the internet.
Pornographic materials means printed or visual or any medium of material that contains the explicit description or display of sexual organs or activity (does not include chests, breasts or nipples or backsides with clothing covering the anus);
Not enter the premises of, or access the services of, escort agencies or sex workers unless approved in advance by a CCO.
Keep a daily diary of your movements, activities and associations, if and as directed by the CCO, and show this diary to the CCO and Police upon request;
Not to access online social media unless approved in advance by a CCO;
Medications/mental health
Attend and engage in all appointments as directed. Receive visits from any medical practitioner, psychologist, psychiatrist, counsellor, mentor, support service and/or support person as directed by the CCO. Undergo medication treatment, including anti-depressant medication or anti-libidinal treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners;
To engage with mental health services (Community Forensic Mental Health Service (CFMHS)) and to follow the instructions given to you by the treating psychiatrist about treatment and medication;
Take any medication as directed by a medical practitioner and comply with all testing to monitor your compliance with that treatment, as directed by a Supervising Officer;
Allow any medical practitioner, psychologist, psychiatrist or counsellor to tell the Department of Justice about your medical treatment and their opinions about your level of risk of re-offending and compliance with medical treatment;
Let any medical practitioner tell a CCO immediately if they know, or think, that you:
a.have, or are going to, stop undergoing pharmaceutical anti-libidinal and or anti-depressant medication, or medication to manage his schizophrenia against the advice of a medical practitioner; or
b.have stopped consulting with that medical practitioner about any treatment; and
Comply with all testing to monitor your compliance with medical treatment and hormonal anti-libidinal treatment as directed by a CCO.
_______________________________
THE HON JUSTICE PALMER
I have received a copy of this Order. I have had it explained to me and understand the effect of this Order and what may happen if I contravene it.
Signed by the Respondent _________________________________
YASER EL WALY
In the presence of: _________________________________
Name and address: _________________________________
_________________________________
Date: _________________________________
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CN
Associate to the Honourable Justice Palmer
19 SEPTEMBER 2025
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