The State of Western Australia v Paraha

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PARAHA [2025] WASC 20
CORAM:   LEMONIS J
HEARD:   22 JANUARY 2025
DELIVERED          :   30 JANUARY 2025
FILE NO/S:   SO 16 of 2024
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

TONY JAMES PARAHA
Respondent

Catchwords:

Application for a restriction order under the High Risk Serious Offenders Act 2020 (WA) - Respondent serving a term of imprisonment for manslaughter that expired on 26 January 2025 - Consideration of whether the State has met the requisite criterion for the court to fix a date for hearing of the State's application - Consideration of whether appropriate to impose an interim detention order

Legislation:

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 restriction order hearing and ancillary orders made for the provision of expert evidence at that hearing
Interim detention order made
Further hearing set for determination of whether an interim supervision order should be made

Representation:

Counsel:

Applicant	:	Mr J Lloyd and Ms F Allen
Respondent	:	Mr R Wilson

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid (WA)

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

Garlett v Western Australia [2022] HCA 30
The State of Western Australia v Corbett [No 5] [2017] WASC 115
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

LEMONIS J:

On 3 December 2024, the State of Western Australia applied for a restriction order in respect of Mr Tony James Paraha under the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act).
On 22 January 2025, I made orders under s 46 of the HRSO Act and also made an interim detention order in respect of Mr Paraha. These reasons explain why I made those orders.
Section 46 of the HRSO Act requires that there be a preliminary hearing in respect of the State's application, which was the hearing listed before me on 22 January 2025. The State provided helpful written submissions for the purposes of that hearing.
Mr Paraha was most recently serving a sentence of imprisonment that expired on 26 January 2025. As Mr Paraha was in custody, s 35 of the HRSO Act only permits the State to make its application if there is a possibility that Mr Paraha might be released from custody within the period of 1 year after the application is made. That possibility arises here.
Further, the State sought an order under s 46(2)(c)(i) of the HRSO Act that Mr Paraha be detained in custody until these proceedings are finally determined.
The main purpose of the preliminary hearing is to decide whether there are reasonable grounds for believing that the court might find, pursuant to s 7 of the HRSO Act, that Mr Paraha is a high risk serious offender within the meaning of the Act. If I am not so satisfied, then I cannot fix a day for the hearing of the State's application for a restriction order.
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. A restriction order is a continuing detention order or a supervision order. So, to state the obvious, a restriction order does not necessarily entail a person being detained in custody. A supervision order contains mandatory conditions, and also additional conditions that the court thinks appropriate directed to matters that include the adequate protection of the community. A continuing detention order is an order that the person be detained in custody for their control, care or treatment. Thus, the purpose of a continuing detention order is not necessarily just having control over the person. The purpose can extend to the care or treatment of the person.
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.
The HRSO Act was considered by the High Court in Garlett v The State of Western Australia,[1] which concerned a constitutional challenge to the HRSO Act. The joint judgment of Kiefel CJ, Keane and Steward JJ, and the separate judgment of Edelman J, addressed the application of s 7 and s 48 in detail.
[1] Garlett v Western Australia [2022] HCA 30.
Having regard to Garlett, in TheState of Western Australia v Williams [No 2],[2] I expressed the following view, to which I adhere:[3]
Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the possible harm. The assessment of the nature and extent of the possible harm directs attention to the possible serious offences that might be committed and the harm they may cause. It also directs attention to the likelihood that the offender might commit such offences (that is, the likelihood the risk might eventuate). The extent to which deterrent factors have operated to reduce risk in the past feeds into the assessment of current and future risk, as does the offender's historical and current response to rehabilitation. These are all factors that inform the assessment of whether the risk is 'unacceptable'. They are by no means exhaustive…
If the risk is found to be 'unacceptable', the nature and extent of that unacceptable risk then informs the assessment of whether a restriction order is necessary to ensure adequate protection of the community. And, as Kiefel CJ, Keane and Steward JJ explained, the assessment of whether the order is necessary requires recognition that an offender's entitlement to be at liberty is not lightly to be denied.
[2] TheState of Western Australia v Williams [No 2] [2024] WASC 215.
[3] Williams [39] - [40].
Further, in Garlett, Kiefel CJ, Keane and Steward JJ observed that:[4]
While the requirement of an evaluation under s 7 depends upon the offender having been convicted of a "serious offence", ss 7 and 48 do not envisage the possibility that a restriction order might be made to prevent the commission of a serious offence, whether of the same kind or of another kind, unless the risk of further offending involves a real threat of harm to the community. (footnote omitted).
[4] Garlett [84].
This observation makes plain that the HRSO Act does not provide that a person who presents with a risk of committing a serious offence is necessarily a high risk serious offender.
In respect of the issue before me on this preliminary hearing, Quinlan CJ observed in The State of Western Australia v Winder that:[5]
For the purposes of this hearing, I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. I emphasise the word might. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
(footnotes omitted)
[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).
Mr Paraha was represented by experienced counsel, Mr Wilson, who conceded that the criterion set out in s 46 of the HRSO Act was met.
For the reasons which follow, I accepted that concession and was satisfied that the criterion in s 46 is met. I therefore made an order setting a hearing date for the restriction order application and ancillary orders to facilitate the hearing of that application.
I was also satisfied that it was appropriate for there to be an initial interim detention order to enable further information to be obtained regarding accommodation options for Mr Paraha. I adjourned the matter to a date after that information is expected to be available, to then consider whether an interim supervision order should replace the interim detention order until the final determination of these proceedings.

The evidence

In support of the application, the State principally relies upon an affidavit of Ms Tanya-Maree Hollaway of the State Solicitor's Office affirmed on 3 December 2024.
Ms Hollaway's affidavit, amongst other matters, contains details of Mr Paraha's criminal history, as well as several reports and assessments in relation to him. These include both psychological and psychiatric reports. The State also relies on a Post Sentence Supervision Order Report prepared following an interview with Mr Paraha on 3 December 2024.
The details of Mr Paraha's offending, insofar as it constitutes a serious offence within the meaning of the HRSO Act, are as follows.
On 4 July 1991, Mr Paraha committed an offence of indecent assault in circumstances of aggravation, which was then an offence under s 324C of the Criminal Code (WA). He pleaded guilty to this offence.
Mr Paraha was 25 years of age. The victim was 22 years of age and went for a walk along the beach near Esperance. Mr Paraha had been fishing off the beach. He saw the victim as she walked past him. About 20 minutes later, the victim returned and walked past Mr Paraha again. Mr Paraha ran after the victim and grabbed her around the shoulders. She struggled to break free and Mr Paraha punched her in the face. They both fell to the sand. The victim continued to struggle and was shouting for help. Mr Paraha put one hand over her mouth or her throat and punched her to the head with his other hand. The victim had hold of Mr Paraha's hair and kept pulling his head down. Mr Paraha reached down with one hand and grabbed her in the crotch area and pulled down her tracksuit pants and underpants as far as her thighs at least. At that stage, Mr Paraha stopped, apologised, ran off to his vehicle and drove off in it.[6]
[6] Ms Hollaway's affidavit, page 60.
Mr Paraha was sentenced to a term of imprisonment of 18 months and was made eligible for parole.
On 15 January 2010, Mr Paraha committed an offence of sexually penetrating an incapable person, whom he knew or ought to have known was an incapable person, which is an offence under s 330(2) of the Criminal Code. Mr Paraha was then 44 years of age.
The victim was a 39-year-old woman with Down's syndrome. She had an IQ in the extremely low range. Mr Paraha had met her about two weeks prior to the offence and had given her a false name.
In the evening of 15 January 2010, Mr Paraha spoke to the victim by telephone and then went to her residential unit. After a while, Mr Paraha went into the bedroom complaining he had a sore back and wanted to go to sleep. The victim came into the bedroom about half an hour later. Mr Paraha told her to take off her pants and get onto the bed, which she did. Mr Paraha fondled her breasts on the outside of her clothes and kissed her. He then removed his pants and inserted his penis into the victim's vagina and had sex with her. The victim said she did not like it. Mr Paraha stopped, put his pants on and left. Mr Paraha was aware of the victim's disability.[7]
[7] Ms Hollaway's affidavit, page 80.
Mr Paraha pleaded guilty and was sentenced to a term of imprisonment of 2 years and made eligible for parole.
The third and final serious offence is the offence of manslaughter for which Mr Paraha was serving his most recent term of imprisonment. This is an offence under s 280 of the Criminal Code. The offence was committed on 13 January 2016.
The circumstances of that offence involved the tragic death of an eight week old baby girl, Narelle. She was the daughter of Mr Paraha and his then partner. Narelle died from a traumatic brain injury. At the time of her death, she had sustained numerous injuries including multiple skull fractures. These injuries were described by the sentencing judge, Tottle J, as shocking and horrific in severity and extent. Mr Paraha was not sentenced on the basis that he had inflicted those injuries. He was sentenced on the basis that despite being aware of Narelle's physical state, he did not take any steps to ensure that the necessaries of life were provided to her and prevented her from having access to medical assistance that was required to treat her injuries and manage her condition.[8] Thus, Mr Paraha's criminal culpability was criminal negligence.
[8] Ms Hollaway's affidavit, pages 37 - 38.
Mr Paraha pleaded guilty and was sentenced to a term of imprisonment of 9 years backdated to 27 January 2016 and was made eligible for parole.

Other offences and relevant conduct

While Mr Paraha has a relatively lengthy criminal record, he has not otherwise been sentenced to a term of imprisonment, whether suspended or to be served. The additional offence he has committed that appears most pertinent to the application before me is a breach of a violence restraining order, for which he was sentenced to a 12 month community based order on 6 December 2002.
In the personal history that Mr Paraha gave to Dr van Hattem, a psychiatrist, he described multiple assaults for which he was never charged, which included assaulting drug dealers who had sold heroin to his ex-partner and assaulting a person who smoked cannabis in front of his children.

Personal circumstances

Mr Paraha is now 59 years of age.
As described in the psychiatric report of Dr van Hattem dated 10 May 2023, in Mr Paraha's early childhood, he experienced trauma and was moved between several living situations. The trauma included being subject to physical and sexual assaults.
Mr Paraha completed year 10 at school, performing poorly in English and maths. He later attended TAFE, at which point he was diagnosed with dyslexia.
Mr Paraha started using cannabis at 14 years of age.
At around 35 years of age, Mr Paraha began injecting methylamphetmine, which use continued up to the point in time that he committed the offence of manslaughter. The sentencing remarks of Tottle J delivered on 13 January 2017 for the offence of manslaughter state that Mr Paraha used cannabis on a daily basis, and that Mr Paraha had told the psychologist who prepared a report for sentencing that he used methylamphetamine most days over the last 16 years.[9]
[9] Ms Hollaway's affidavit, page 48, par 93 of the sentencing remarks.
Mr Paraha has had been employed in a number of different roles over his life, which include working in mines, driving a forklift, shearing and driving heavy machinery. He has also had multiple periods of unemployment.
Mr Paraha has 16 children from 7 mothers. The children range in age from 7 to 35 years of age.

Reports and mental health diagnoses

The most recent report that is of assistance is Dr van Hattem's report.
Dr van Hattem diagnosed Mr Paraha with a personality disorder with what are described as mixed cluster B features, including narcissistic and dissocial features. Dr van Hattem was of the opinion that Mr Paraha may have a relatively mild bipolar disorder which only requires hospitalisation after particularly extreme precipitating factors.
Mr Paraha has however previously been diagnosed with bipolar disorder, for which he has been hospitalised. In 2011, Dr Febbo, a consultant psychiatrist, reviewed Mr Paraha and stated that his history 'is in keeping with a bipolar disorder'.[10]
[10]Ms Hollaway's affidavit, page 161, Dr Febbo's report dated 27 August 2011.
There is an apparent difference of opinion between Dr Febbo and Dr van Hattem as to whether Mr Paraha has bipolar disorder. In any event, the difference is not material to the disposition of the application.
Dr van Hattem concluded that:[11]
If Mr Paraha were to trial mood-stabilising medication and it produced a significant effect on his disinhibition and self-centred grandiosity, it may reduce his risk of future offending. In my opinion, there would still be a significant risk of reoffending even if that were to occur.
In my opinion, the majority of risk associated with Mr Paraha is based on static and personality factors, and cannot be fully mitigated.
In my opinion, Mr Paraha will require stable accommodation, access to adequate finances, and a clear and confirmed plan for social engagement and structuring his time in a pro-social manner.
[11] Ms Hollaway's affidavit, page 143, pars 63, 64 and 67 of Dr Van Hattem's report.
Dr van Hattem said that the statistical risk assessment undertaken indicated that Mr Paraha was at a significantly higher risk of committing future violent or serious offences than other men charged with at least one violent offence. There are, however, a number of matters that require caution with such a statistical assessment. First, such an assessment is not modified based on time spent in prison. Second, the statistics represent proportions within groups, so are not directed to the particular individual. Dr van Hattem says that when and how an individual person reoffends is more strongly influenced by dynamic risk factors, which can potentially be ameliorated. Third, such an assessment does not identify the type of harmful behaviour Mr Paraha might commit in the future. And finally, as Edelman J observed in Garlett:[12]
Great caution is required in the treatment of this evidence because risk prediction for serious violence, including sexual violence, has been said to be "plagued by high false‑positive rates".
(footnotes omitted)
[12] Garlett [223].
The other most recent report is the recent Post Sentence Supervision Order Report. It refers to a number of adverse incidents involving Mr Paraha in custody. However, the material does not provide sufficient detail of those incidents for me to discern the extent to which they involved any harm being caused.

Propensity to commit serious offences and pattern of offending

The State quite properly submits that while Mr Paraha's three serious offences demonstrate he is capable of committing serious offences, they do not demonstrate a clear tendency to offend seriously in a particular way, or upon a particular type of victim. Mr Paraha's serious offences occurred in the context of substance use. Otherwise, there does not appear to be a clear pattern of offending behaviour.

Efforts to address the cause of the offending behaviour

Mr Paraha attended 27 out of 31 sessions of the Stopping Family Violence Program, but was ultimately removed from the program following an incident where he threatened and intimidated the program facilitator. On the evidence before me I am not satisfied he has made any substantial gains from that program.
On the other hand, Mr Paraha has attended 168 Narcotics Anonymous meetings in custody. Further, on the evidence before me, there is no suggestion Mr Paraha has used illicit substances while in custody. That being so, there is no evidence before me that he has used illicit substances now for nearly nine years.

The risk that if Mr Paraha were not subject to a restriction order he would commit a serious offence.

This consideration is directed to the risk of committing a serious offence, not any offence. It is quite difficult to identify the type of serious offence that Mr Paraha might commit. I consider that there is a risk that Mr Paraha will commit further offences if not subject to a restriction order. However, as the State accepts, he does not have a tendency to commit serious offences of a particular type.
Also, on the evidence currently before me, a material contributing factor to Mr Paraha's commission of serious offences was his use of illicit substances. As I have indicated, there is no evidence that he has used illicit substances in the approximately nine years he has been in custody. It is not clear to me from the evidence the extent to which this reduces Mr Paraha's risk of reverting to illicit substance use if released into the community. I expect that is a matter that will need to be addressed at the final restriction order hearing.

While I think there is a risk Mr Paraha will commit a serious offence if not subject to a restriction order, I cannot with any confidence discern the nature of the serious offence that might be committed, nor the likelihood that he might do so.
The same observations apply to the need to protect members of the community from the risk of further serious offences. As was made plain in the joint judgment in Garlett, s 7 is concerned with the nature and extent of the harm that might be caused. It is very difficult here to assess the nature and extent of the harm that might be caused from possible further serious offending.

Suitable accommodation

The State submits that Mr Paraha currently has no suitable accommodation in the community. What constitutes suitable accommodation, and how that accommodation impacts on the ultimate disposition, depends on the circumstances. 'Suitable' does not mean 'ideal'.
The State in its written submissions refers to the following observations of Hall J (as his Honour then was) in The State of Western Australia v Corbett [No 5]:[13]
The absence of suitable accommodation makes it impossible to be satisfied that a supervision order is presently a viable option.
[13] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].
However, these observations were referable to the case before his Honour. They are not of general application.
In the sentence immediately preceding the extract at [54], his Honour observed:[14]
The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending.
[14] Corbett [80].
Consistently with this observation, accommodation is predominantly relevant to risk assessment. The overall nature of the available accommodation may reduce the risk of reoffending, it may increase the risk of reoffending, or it may be neutral. Accommodation also has features that may not necessarily point in the same direction regarding risk, for example location, type, other occupants, cost and available support services.
The potential impact that the proposed accommodation has on risk is taken into account in the overall assessment of whether a person is a high risk serious offender within the meaning of s 7, and if so, the type of restriction order which ought be made.
Presently there is no available accommodation for Mr Paraha if he were released into the community.

Post Sentence Supervision Order

The Prisoners Review Board has imposed a Post Sentence Supervision Order (PSSO) in respect of Mr Paraha for the period starting 26 January 2025 and ending 25 January 2027.
Amongst other matters, the PSSO requires Mr Paraha:
1.not to use or be in possession of illicit drugs;
2.to attend for random urinalysis for illicit substances as directed by a community corrections officer and provide a valid sample;
3.to comply with mental health treatment as directed by a medical practitioner or a Community Mental Health team member;
4.to be subject to electronic monitoring.

My assessment

Having considered all of these matters, I was satisfied that there were reasonable grounds to believe that the court might find that Mr Paraha is a high risk serious offender. Accordingly, I was satisfied that the criterion in s 46 of the HRSO Act is met.
I therefore made an order fixing the date for hearing of the State's application for a restriction order. In accordance with s 46(2), I also ordered that Mr Paraha undergo examination by a psychiatrist and a psychologist, and made orders facilitating the preparation of their reports.
In respect of those reports, I consider it would be beneficial if they addressed the expert's opinion in respect of the following matters:
1.The type of harmful behaviour the expert considers Mr Paraha might commit if released into the community.
This assists in identifying the possible serious offences within sch 1 of the HRSO Act which Mr Paraha might be an unacceptable risk of committing.[15]
2.The topics that should be addressed in a supervision order, if such an order were imposed.
This assists in ensuring that any supervision order focuses on the core preventative and supportive measures designed to reduce Mr Paraha's risk of reoffending.
3.Any particular areas of treatment or support which the expert considers would assist Mr Paraha to successfully integrate into the community.
Where a person such as Mr Paraha has spent a significant period of time in custody, successful integration into the community can often be challenging. If Mr Paraha can successfully integrate into the community, then almost invariably his risk of reoffending will reduce.
[15] See Garlett [219] (Edelman J).

Interim detention order

The State also sought an order that Mr Paraha remain in custody pending the determination of these proceedings. The order is sought pursuant to s 46(2)(c)(i) of the HRSO Act, which provides:
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.
In the alternative, the State sought an interim supervision order in respect of Mr Paraha pursuant to s 58(5) of the HRSO Act.
Mr Paraha did not oppose an interim detention order being made for a limited period of time, that period being sufficient for the State to obtain further information regarding possible accommodation options. If there is accommodation available, Mr Paraha will then contend that an interim supervision order is appropriate.
Without the benefit of full argument on the issue of the imposition of an interim detention order, I will not at this stage express a view as to the factors that might be taken into account in assessing whether such an order should be made. For present purposes, it is sufficient to say that to make an interim detention order, I must be positively satisfied that it is appropriate for the adequate protection of the community.[16]
[16] The State of Western Australia v JPA [2024] WASC 225 [30].
Mr Paraha does not have a tendency to commit serious offences in a particular way, or upon a particular type of victim. It is not presently possible to discern the nature and extent of the harm that Mr Paraha presents a risk of causing if released into the community.
Also, Mr Paraha's offending has occurred in the context of extensive illicit drug use. However, he has engaged substantively with a Narcotics Anonymous program in prison, and there is no suggestion he has used illicit drugs in prison. The extent of his risk going forward will be significantly impacted by the extent of the risk that he will return to illicit drug use if released into the community.
On the other hand, Mr Paraha has demonstrated a capacity to commit serious offences, and he does not have accommodation available at the moment.
I was satisfied that it was appropriate to make an interim detention order for a short period of time to enable additional information to be obtained regarding accommodation options.
Accordingly, I ordered that Mr Paraha be detained in custody until further order. I adjourned the hearing of the matter to 27 March 2025, at which time consideration can be given to whether the interim detention order should be replaced with an interim supervision order.

Conclusion

For these reasons, on 22 January 2025 I made:
1.the necessary orders under s 46 of the HRSO Act;
2.an interim detention order;
3.orders adjourning the hearing of the matter to 27 March 2025 and facilitating the provision of information regarding available accommodation prior to that hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SP
Associate to the Hon Justice Lemonis
30 JANUARY 2025

[2025] WASC 20

30 JANUARY 2025

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Jurisdiction

Interim Detention Order

High Risk Serious Offenders Act 2020 (WA)