The State of Western Australia v JYD
[2025] WASC 470
•11 NOVEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JYD [2025] WASC 470
CORAM: LEMONIS J
HEARD: 31 OCTOBER 2025
DELIVERED : 31 OCTOBER 2025
PUBLISHED : 11 NOVEMBER 2025
FILE NO/S: SO 14 of 2025
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JYD
Respondent
Catchwords:
Application for a restriction order under the High Risk Serious Offenders Act 2020 (WA) - consideration of whether the State has met the requisite criterion for the court to fix a date for the hearing of the State's application - consideration of whether an interim detention order or interim supervision order should be made
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Criterion under s 46 of the High Risk Serious Offenders Act 2020 (WA) is met
Date set for hearing of application and ancillary orders made for the provision of expert evidence at that hearing
Interim detention order made
Category: B
Representation:
Counsel:
| Applicant | : | G Colborne |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
The State of Western Australia v JPA [2024] WASC 225
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Williams [No 2] [2024] WASC 215
The State of Western Australia v Winder [2021] WASC 65
The State of Western Australia v XDR [2025] WASC 354
LEMONIS J:
(These reasons were delivered orally on 31 October 2025. They have been amended to include full citations and to correct matters of language.)
On 9 September 2025, the State of Western Australia applied for a restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
The respondent is currently in custody serving a term of imprisonment of 4 years and 6 months backdated to 17 June 2021. He is due to be released from custody on 16 December 2025. The term of imprisonment is in respect of a 'serious offence' under the HRSO Act, being an offence of sexual penetration of a child under 13 years of age. The respondent is therefore a serious offender under custodial sentence within the meaning of that phrase as defined in s 3 of the HRSO Act. Thus, s 35(1) of the HRSO Act applies to him.
Section 35 of the HRSO Act only permits the State to make its application if there is a possibility that the respondent might be released from custody within the period of one year after the application is made. That possibility arises here.
Section 43(1) of the HRSO Act requires that there be a preliminary hearing in respect of the State's application, which is the hearing listed before me today. The State has provided helpful written submissions for the purposes of today's hearing.
Preliminary hearing
The main purpose of the preliminary hearing before me today is for me to decide whether there are reasonable grounds for believing that the court might find, pursuant to s 7 of the HRSO Act, that the respondent is a high risk serious offender within the meaning of that Act.[1] If I am not so satisfied, then I cannot fix a date for the hearing of the State's application for a restriction order. The State also seeks an interim detention order until the final determination of the application.
[1] HRSO Act, s 46(1).
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.[2] A restriction order is made under s 48 of the HRSO Act in the form of either a continuing detention order or a supervision order. A supervision order permits an offender to be in the community subject to conditions.
[2] HRSO Act, s 7(1).
Section 7 of the HRSO Act sets out the matters to which the court must have regard in assessing whether a person is a high risk serious offender. These matters are comprehensively addressed in the State's written submissions.
Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the possible harm. The assessment of the nature and extent of the possible harm directs attention to the possible serious offences that might be committed and the harm they may cause. It also directs attention to the likelihood that the offender might commit such offences (that is, the likelihood the risk might eventuate).[3]
[3] The State of Western Australia v Williams [No 2] [2024] WASC 215 [39].
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.[4]
[4] The State of Western Australia v Williams [No 2] [40].
In respect of the issue before me on this preliminary hearing, Quinlan CJ observed in The State of Western Australia v Winder[5] that it is sufficient if there are reasonable grounds for believing that an order might be made.
[5] The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ). See also The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J).
The respondent is represented today by counsel, Mr Hager, who is very experienced in this area. Mr Hager properly concedes that the criterion set out in s 46 of the HRSO Act is met. In respect of the interim detention order, Mr Hager says that an interim supervision order, in effect, provides adequate protection of the community in circumstances which I will come to shortly.
For the reasons which I will now give, I am satisfied that the criterion in s 46 is met. I will address the making of the interim detention order after explaining my reasons for being so satisfied.
The evidence
In support of the application, the State relies upon an affidavit of Ms Fleur Allen, affirmed 9 September 2025. Her affidavit contains the details of the respondent's criminal history, as well as several reports and assessments in relation to him.
The respondent's personal circumstances
The respondent's personal circumstances are set out in detail at paragraph 87 of the State's submissions. The respondent's childhood in his early years was extremely traumatic. The respondent then had a significant period of stability in his life, living with his grandparents from when he was about four or five years of age until he was 16. Unfortunately, though, he started using methylamphetamine at about 15 years of age and in his late teens and early twenties used a number of other illicit substances.
He completed year 10 of school and at 17 years of age worked for about eight months in a manual labour type role but otherwise has not been able to sustain regular employment.
The respondent's serious offences
The respondent is now 36 years of age, being born on 10 June 1989. He has committed six serious offences as that term is defined in the HRSO Act.
Those offences are three offences of possessing child exploitation material, contrary to s 220 of the Criminal Code (WA) (Code), two offences of sexual penetration of a child under 13, contrary to s 320(2) of the Code and one offence of procuring a child under 13 to engage in sexual behaviour, contrary to s 320(3) of the Code.
The respondent committed the first serious offence on 10 June 2007, which was the day he turned 18. The victim was his then 6‑year‑old stepbrother. The respondent woke the victim up, performed fellatio on him, and the respondent put his penis into the victim's mouth. He was sentenced to a total effective sentence of 26 months.
The sexual penetration offence for which the respondent is currently in prison was committed on 31 May 2018. The respondent was living with the victim's mother. The victim was then 4 years old. The respondent forcibly placed his penis in the victim's mouth, despite the young victim physically resisting and saying no. The respondent's sentencing took place on 5 August 2022. He was sentenced on the basis that he either ejaculated or urinated into the victim's mouth.
The offences of possession of child exploitation materials were committed on 16 October 2012, 31 March 2016 and 17 December 2018. The latter two offences were the most serious and he was sentenced on 7 April 2020 for both offences. In respect of the offence committed on 31 March 2016, the respondent's mobile phone was analysed, and 740 images of child exploitation material were identified. They identified children from babies to teenagers of about 16 years of age in various sexual ways. In respect of the offence committed on 17 December 2018, the respondent's tablet was taken by police and analysed. It had 1800 files containing images in categories 1 to 5, with category 5 being the most serious. For these two offences, was sentenced to a total effective sentence of 2 years 6 months.
The nature of the offending and the period over which it has been committed demonstrates on the material presently before me that the respondent has an enduring sexual interest in children, and is prepared to act on it, and to grossly abuse positions of trust in doing so.
The most recent program and treatment reports
The most recent program that the respondent has participated in is the Sex Offender Intensive Program. He did 48 out of a possible 49 sessions in 2024 and 2025. The report in respect of his participation in that program said that:[6]
[The respondent] disclosed motivations to engage in the program inclusive of gaining emotional coping skills. Throughout the program, [the respondent] demonstrated a pattern of low participation and an avoidance of completing activities and tasks. Whilst he was somewhat receptive to exploring factors preceding the offending, he became particularly resistant and hostile when exploring factors immediately preceding the offending.
[6] Ms Allen's affidavit, page 337.
He was removed from the program on 24 April 2025 because he was unable to demonstrate a shift in his ability to explore the offending.
The most recent psychological report is dated 24 July 2022. It was provided for the purposes of the respondent's sentencing for the most recent sexual penetration offence. The psychologist said that:[7]
[The respondent] likely has child related sexual interests, although this is difficult to fully understand because he disputes any sexual intent in his offending behaviour. His offending and other interpersonal problems seem to be underpinned by personality disruptions as a result of ongoing trauma and instability in his childhood.
[7] Ms Allen's affidavit, page 316, par 27.
The psychologist said that the combined results of the assessments undertaken of the respondent were that he fell into the 'well above average' category of risk. As Mr Hager points out, this is not at a high level of risk, however it is still at a well above average category of risk. And the psychologist also said that the respondent presented with a number of factors known to underpin an individual's risk for sexual or general offending.[8]
[8] Ms Allen's affidavit, page 318, par 35.
At the respondent's sentencing on 5 August 2022, his then counsel said that the respondent accepted that he had a sexual interest in children.[9] However, at his parole assessment interview on 27 October 2023 he denied that was the case.[10] This change of position undermines the respondent's prospects of rehabilitation, as it affects his ability to understand the factors that have led to his offending.
[9] Ms Allen's affidavit, page 40.
[10] Ms Allen's affidavit, page 328.
My assessment
Conclusion on the preliminary hearing
In all of these circumstances, and having regard to the matters outlined in the State's written submissions, I am satisfied there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act. In coming to that view, I have had particular regard to the nature of the respondent's offending, the harm such offending causes to victims, his lack of treatment gains and the current assessment of his risk of reoffending.
Interim detention order
The State also seeks an order that the respondent remain in custody pending the determination of these proceedings. In that respect, s 46(2)(c)(i) of the HRSO Act provides that the court may:
… if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order.
To make an interim detention order, I must be positively satisfied that such an order is appropriate.[11] I set out the applicable principles in The State of Western Australia v XDR,[12] which I adopt without repeating.
[11] The State of Western Australia v JPA [2024] WASC 225 [30].
[12] The State of Western Australia v XDR [2025] WASC 354 [146].
On the information before me, the nature and extent of the harm which the respondent presents a risk of causing if released into the community is significant, that being a risk of sexual offending against children, and of encouraging the distribution of child exploitation material, such encouragement arising from his obtaining it. Also, three of the serious offences were committed while the respondent was subject to reporting obligations under the Community Protection (Offender Reporting) Act2004 (WA). So the existence of those obligations did not prevent serious offending occurring.
Mr Hager points out that the respondent has available accommodation with his mother, who is a very supportive influence on the respondent. Even so, there is presently a young infant who lives at those premises. Mr Hager suggests that the respondent's mother can monitor his behaviour and ensure that he does not have any unsupervised contact with that young infant. However, as a matter of practicality, the respondent's mother cannot supervise him 24 hours a day.
In my view, the absence of significant rehabilitative gains and of suitable accommodation are important factors in assessing whether or not an interim detention order ought to be made. In my view, those factors point towards the need for such an order at this point in time. Further, on the information before me at this stage, the State's case is relatively strong that the respondent is a high risk serious offender.
Having regard to these matters, taken together, I am positively satisfied that an interim detention order is appropriate. I will make the order to operate until the final determination of the application, or further order, which gives to the respondent the ability to seek an interim supervision order if circumstances change, pertaining to treatment gains and/or suitable accommodation becoming available.
Conclusion
For these reasons, I am satisfied that the criterion in s 46 of the HRSO Act is met. I will therefore make an order fixing the date for hearing of the State's application for a restriction order and the usual ancillary orders for the preparation of reports for that hearing. I also make an interim detention order in the terms I have just set out.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OM
Associate to the Hon Justice Lemonis
11 NOVEMBER 2025
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