The State of Western Australia v Thorne
[2025] WASC 306
•4 AUGUST 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- THORNE [2025] WASC 306
CORAM: FIANNACA J
HEARD: 2 APRIL 2025
DELIVERED : 2 APRIL 2025
PUBLISHED : 4 AUGUST 2025
FILE NO/S: SO 21 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
TYRONE JAMES THORNE
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief that the court may find the respondent is a high risk serious offender - Interim detention order - Turns on own facts
Legislation:
Criminal Code (WA)
Criminal Investigation Act 2006
Criminal Law (Mentally Impaired Defendants) Act 1996 (WA)
Community Protection (Offender Reporting) Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)
Result:
There are reasonable grounds that the court may find the respondent to a be a high risk serious offender
The respondent is to be subject to an interim detention order pending determination of the restriction order application
Representation:
Counsel:
| Applicant | : | J Lloyd |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | T Hager |
Cases referred to in decision:
Director of Public Prosecutions (WA) v Allen [2006] WASC 160
Garlett v Western Australia [2022] HCA 30; (2022) 298 A Crim R 510; (2022) 96 ALJR 888; (2022) 404 ALR 182
The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Hansen [No 2] [2025] WASC 4
The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v Hill [No 2] [2024] WASC 70
The State of Western Australia v Narrier [2021] WASC 250
The State of Western Australia v PAS [2020] WASCA 405
The State of Western Australia v Ryan [2020] WASC 352
The State of Western Australia v Winder [2021] WASC 65
FIANNACA J:
Introduction
These are my reasons for decision in the preliminary hearing of an application by the State of Western Australia (the State) for a restriction order in respect of the respondent under s 35 of the High Risk Serious Offenders Act 2020 (WA) (the Act). The respondent has a history of serious sexual offending. At the time of the preliminary hearing, he was serving a sentence of 4 years and 6 months' imprisonment imposed in the District Court of Western Australia by Barone DCJ on 12 August 2022 for the offence of sexual penetration without consent, committed by the respondent on 21 June 2020, contrary to s 325 of the Criminal Code (WA). The sentence was backdated to commence on 5 October 2020, being the date on which he was charged, and from which he had been remanded in custody. The earliest date on which the respondent was eligible to be released from prison under that sentence was 4 April 2025, which was two days after the date of the preliminary hearing.
Under s 35(1) of the Act, the State may make an application to the Supreme Court for a restriction order in respect of 'a serious offender under custodial sentence who is not a serious offender under restriction'. Section 3 of the Act defines 'serious offender under custodial sentence' to mean, relevantly, a person who is under a custodial sentence for a serious offence, which, in turn, is defined in s 5 of the Act. Section 3 defines 'serious offender under restriction' to mean a person who is subject to a restriction order or an interim supervision order, as those terms are defined in the Act. It is sufficient to note that the offence for which the respondent was serving the sentence of imprisonment (being a custodial sentence) was a 'serious offence' within the meaning of the Act,[1] and that the respondent was not subject to a restriction order under the Act at the time of the application.
[1] I may refer to the offence as the 'index offence' because, being the offence for which the respondent was serving the term of imprisonment at the time the application was made, it provides the foundation for the making of the application.
Section 35(3) of the Act provides that, if the offender is in custody, an application under subsection (1) cannot be made unless there is a possibility that the offender might be released from custody within the period of one year after the application is made. The application was filed by the State on 23 December 2024, and therefore complied with subsection (3).
A restriction order is either a continuing detention order, being an order that the respondent be detained in custody for an indefinite term for control, care or treatment,[2] or a supervision order, being an order that the respondent, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30 of the Act.[3] Section 35(5) provides that an application under subsection (1) need not specify whether the restriction order sought is a continuing detention order or a supervision order. In the present case, the State did not specify which order is sought.
[2] The Act, s 3 (definition of restriction order and continuing detention order), s 26(1).
[3] The Act, s 3 (definition of restriction order and supervision order), s 27(1).
Section 46(1) of the Act provides:
The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, in accordance with section 7, find that the offender is a high risk serious offender.
I will refer to this as the threshold test.
If the court is satisfied that the threshold test is met, it must order that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with s 74 of the Act to be used on the hearing of the restriction order application.[4] It must also fix a day for the hearing of the restriction order application (except in circumstances that do not apply in this case).[5] The court may also make an order that other reports be prepared in accordance with s 75 of the Act.[6]
[4] The Act, s 46(2)(a).
[5] The Act, s 46(2)(d).
[6] The Act, s 46(2)(b).
Further, if the respondent is in custody and might otherwise be released from custody before the restriction order application is finally decided, as was the case in this matter, the court may order that the offender be detained in custody for a period stated in the order (an interim detention order).[7] Alternatively, if the court does not make an interim detention order, and the respondent is released pending the hearing of the restriction order application, the court may make an interim supervision order,[8] being an order that, with effect from a specified date and until the pending proceedings are finally determined, or until another specified date, the respondent is to be subject to stated conditions that the court considers to be appropriate.[9] The conditions must include mandatory conditions specified in s 30 of the Act.[10]
[7] The Act, s 46(2)(c)(i).
[8] The Act, s 58(5).
[9] The Act, s 58(6).
[10] The Act, s 58(6).
The wording of the provisions relating to the making of either an interim detention order (s 46(2)(c)(i)) or an interim supervision order (s 58(5)) is not prescriptive. Arguably, it is open to the court to make neither an interim detention order nor an interim supervision order pending the determination of the restriction order application.[11] However, the circumstances in which the court at a preliminary hearing might consider it appropriate to make no order restricting the respondent, having determined that respondent might be found to be a high risk serious offender, must necessarily be exceptional. A possible scenario might be where a post sentence supervision order (PSSO) has been made by the Prisoners Review Board[12] under the Sentence Administration Act 2003 (WA) and it is considered to be sufficiently restrictive, and of sufficient length, as to provide adequate protection of the community against the putative risk until the restriction order hearing. The respondent did not submit that this case falls into that category.
[11] The State of Western Australia v Narrier [2021] WASC 250 [59] (Derrick J).
[12] Which I will refer to interchangeably as the Prisoners Review Board and the Board.
The State sought the programming orders referred to in [7] above. Further it sought an interim detention order pursuant to s 46(2)(c)(i) of the Act. In the alternative, it sought an interim supervision order pursuant to s 58(5) of the Act. In that regard, the State filed a draft interim supervision order, setting out the conditions it proposed would be necessary and appropriate to ensure adequate protection of the community if the court considered it appropriate to make such an order.
The application was heard on 2 April 2025. It was supported by affidavit evidence filed by the State, which I will outline below. The respondent did not adduce any evidence in respect of the threshold question. The respondent conceded that, on the available evidence, it was open to the court to find that the threshold test was satisfied, in that there were reasonable grounds for the court to arrive at the relevant belief under s 46(1). Having assessed the evidentiary materials filed by the State, I was of the view that the concession was properly made. Accordingly, I set a date for the hearing of the restriction order application and made the other programming orders sought.
On the question of whether the court should make an interim detention order or an interim supervision order, the State submitted that the circumstances overall warranted the making of an interim detention order. Although it was not the only matter relied on by the State, an impediment to making an interim supervision order was the availability of suitable accommodation for the respondent in the community. While it was acknowledged by counsel for the respondent that there was an issue in respect of the proposed accommodation, which I will discuss below, it was nevertheless submitted that the court could be satisfied that an interim supervision order would provide adequate protection of the community pending the hearing of the restriction order application.
At the conclusion of the hearing, I was satisfied that it was desirable to make an interim detention order. Accordingly, I made orders in terms referred to in [146] below. I gave detailed oral reasons in respect of both the threshold question and the making of the interim detention order, and said I would publish written reasons that would elaborate further on the oral reasons. The oral reasons, edited from the transcript, are incorporated in the reasons that follow, in particular in the sections dealing with the respondent's history of offending, the expert assessments that have been made in respect of the respondent's cognitive functioning and his risk of offending, my conclusions in respect of the threshold test, and my reasons for making the interim detention order (which are substantively as stated in the oral reasons).
Legal principles
As I noted above, pursuant to s 46(1) of the Act, the main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.
At the substantive hearing of a restriction order application, a court will find that an offender is a high risk serious offender if 'it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence'.[13] However, at the preliminary hearing stage, the court does not need to be satisfied that a restriction order will be made. The threshold test is whether there are reasonable grounds for believing the court might reach the level of satisfaction required by s 7 of the Act. To say that something might occur is to say that it is possible. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. For there to be 'reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[14]
[13] The Act s 7(1).
[14] The State of Western Australia v PAS [2020] WASCA 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
On the hearing of a restriction order application, in deciding whether the respondent is a high risk serious offender, the court must have regard to the matters set out in s 7(3) of the Act. It is appropriate at the preliminary hearing, therefore, to consider what evidence there is in respect of those matters, upon which the court could rely at the substantive hearing. Those matters include, relevantly at this stage (referring to the paragraph lettering in s 7(3)):
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;[15]
(c)information indicating whether or not the respondent has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the respondent;
(e)any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation programme;
(f)whether or not his participation in any such programme has had a positive effect on him;
(g)the respondent's antecedents and criminal record;
(h)the risk that, if the respondent were not subject to a restriction order, he would commit a serious offence;
(i)the need to protect members of the community from that risk.
[15] That is, other than any report referred to in s 7(3)(a), being a report prepared under s 74 of the Act for the hearing of the application, which would not occur until after the preliminary hearing.
I bear in mind also the general principles that have been identified in the authorities concerning the proper approach to the determination of whether a person is a high risk serious offender, which a court at a restriction order hearing would have to apply. I discussed them in some detail in The State of Western Australia v Hansen [No 2] [2025] WASC 4 at [22] - [48]. It is not necessary to repeat them here. It is sufficient to note that, generally, the principles that had developed in respect of proceedings under the Dangerous Sexual Offenders Act 2006 (WA) (repealed) remain applicable in relation to proceedings under the Act, subject to the qualification that the criteria for finding that a person is a high risk serious offender under s 7(1) of the Act, as set out in [15] above, involves a two-step evaluative process.[16] The first evaluative step requires the court to determine whether, in the absence of any measures that would provide protection of the community against the risk that a respondent would commit a serious offence in the future, that risk is unacceptable, which requires the balancing of various considerations. The second evaluative step requires the court to determine whether a restriction order is necessary to provide adequate protection of the community against the unacceptable risk that has been found to exist. That requires consideration of whether there are measures, other than a restriction order, that would provide adequate protection of the community against the unacceptable risk. If there are, the risk could no longer sensibly be regarded as 'unacceptable'.
[16] The State of Western Australia v Garlett [2021] WASC 387 [135]. See also Garlett v Western Australia [2022] HCA 30; (2022) 298 A Crim R 510; (2022) 96 ALJR 888; (2022) 404 ALR 182 (Garlett v Western Australia) [73] (Kiefel CJ, Keane and Steward JJ), [220], [225] - [228] (Edelman J).
In Garlett v Western Australia, Kiefel CJ, Keane and Steward JJ put the matter in the following terms, which highlights the need to bear in mind the importance of the liberty of the individual:[17]
Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the Court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is 'necessary' to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community.
[17] Garlett v Western Australia [73].
It must be borne in mind that both forms of restriction order affect an individual's entitlement to be at liberty.
The evidence
The State filed and relied on the following affidavits in support of the application:
(1)Affidavit of Tanya-Maree Hollaway, a legal practitioner and Assistant State Solicitor with the State Solicitor's Office, affirmed on 23 December 2024 (Ms Hollaway's affidavit), which annexed numerous materials relating to the respondent's criminal history, his participation in rehabilitation programmes, psychological and psychiatric assessments that have been made previously of his risk of offending, assessments that have been made of the respondent's cognitive functioning, and a National Disability Insurance Scheme (NDIS) plan prepared for the respondent. The materials concerning the respondent's criminal history include his criminal record, which includes his juvenile offending, a chronology of his serious and relevant offending prepared by the State Solicitor's Office, prosecution notices and indictments, statements of material facts for the serious offences of which he has been convicted, transcripts of sentencing proceedings for those offences, a pre-sentence report prepared for sentencing at the District Court on 12 December 2022, and Prisoners Review Board records and decisions concerning the respondent's release on parole in respect of the sentence he was serving at the time the application was made, and his breaches of that parole.
(2)Affidavit of Ivan Ng, Governance and Systems Administrator of the Serious Offender Registry, Western Australia Police Force, sworn 19 March 2025 (Mr Ng's affidavit), which provided information in respect of the premises that had been proposed for the respondent in Yanchep, and the criminal history for one of the current occupants of the residence, Mr F, who would continue to reside at the address if the respondent were to commence residing there.
(3)Affidavit of Amy Sykes, a Senior Community Corrections Officer within the Corrective Services Division of the Department of Justice, affirmed 19 February 2025 (Ms Sykes' affidavit). Ms Sykes is based at the Community Offender Monitoring Unit (COMU). She provided further confirmation concerning the accommodation, which I will outline below.
The reports annexed to Ms Hollaway's affidavit include:
(1)a Psychiatric Report of Dr Gosia Wojnarowska, dated 29 June 2003;
(2)an Addendum Psychiatric Report of Dr Gosia Wojnarowska, dated 29 July 2003;
(3)a Psychiatric Report of Dr Gosia Wojnarowska, dated 9 September 2016;
(4)a Foetal Alcohol Spectrum Disorder Assessment Report, dated 3 August 2018, which was prepared by Dr James Fitzpatrick, Paediatrician and Director of PATCHES Paediatrics (PATCHES), and Dr Candy Cheung, Clinical Neuropsychologist registrar at PATCHES Paediatrics (the PATCHES report); and
(5)a Psychological Report of Ms Erin Sweeney, dated 4 April 2022.
Apart from arriving at a diagnosis of Foetal Alcohol Spectrum Disorder (FASD), the neuropsychological assessment (PATCHES assessment) in the PATCHES report addressed the respondent's intellectual functioning more broadly.
The State also filed a Post Sentence Supervision Order Report (PSSO Report) for the respondent, dated 10 January 2025, and the PSSO subsequently made by the Prisoners Review Board on 26 February 2025. The PSSO Report was prepared by a Community Corrections Officer at Midland Adult Community Corrections, and was countersigned on 11 January 2025 by a Team Leader at that office.
It is not necessary to set the evidence out in detail. I will refer to salient aspects of the evidence that relate to the issues discussed below.
Consideration of relevant factors
The matters the court would need to consider at a restriction order hearing, pursuant to s 7(3) of the Act, are interrelated. I will first outline the respondent's general antecedents and his offending history. I will then consider whether it will be open to the court to find that the respondent has demonstrated a propensity to commit serious offences and any pattern of offending. Next, I will consider the evidence in relation to the respondent's efforts at rehabilitation and the efficacy of such efforts. I will then refer to assessments that have been made of the respondent's risk of committing offences, which also emerge in reports about his efforts at rehabilitation. The assessment of the respondent's risk that he will commit a serious offence if not subject to a restriction order, and the need to protect members of the community from that risk involve conclusions drawn from the preceding matters.
General antecedents
The respondent's general antecedents can be discerned from various materials annexed to Ms Hollaway's affidavit. The following is a summary that relies on the sentencing remarks of Barone DCJ on 12 August 2022, the outline of the respondent's background in Dr Wojnarowska's report of 9 November 2016, the PATCHES report of 2018 and Ms Sweeney's report of 4 April 2022. Dr Wojnarowska's report was prepared for sentencing proceedings in March 2017. Ms Sweeney's report was prepared for the sentencing proceedings before Barone DCJ on 12 August 2022.
The respondent was born in Bunbury in 1985 and was 39 at the time of the hearing. He is the youngest of four children. Both of his parents were alcoholics, and his mother drank heavily when she was pregnant with the respondent. This has had a significant impact on the respondent's brain, and consequently on his cognitive functioning and behaviour. The respondent has been diagnosed with what is described in the PATCHES report as a very severe case of FASD. His condition includes features suggesting an intellectual disability, although the PATCHES report noted that, at the time of that assessment, 'a formal diagnosis of an Intellectual Disability remains to be excluded'.[18] As Ms Sweeney noted in her report, PATCHES found that the respondent's overall intellectual functioning falls within the extremely low range, and his memory profile suggests a tendency to be easily confused.[19] All of his developmental milestones were delayed. He required speech therapy due to significant delays in language development and articulation, and, although he completed Year 10 with supported education, he never learned to read or write.
[18] Ms Hollaway's affidavit, p 262, Annexure 'AQ'.
[19] Ms Hollaway's affidavit, p 276, Annexure 'AR'; p 262, Annexure 'AQ'.
The respondent had no friends of his age and always preferred to play with much younger children. He was described as hyperactive and difficult to manage at home as a child. He got into fights and, at times, was suspended from school.
As a young person, the respondent suffered trauma. He witnessed domestic violence between his parents and substance abuse by both of them. He was also often hit as a child. Despite that, when assessed by Dr Wojnarowska in 2016, the respondent indicated his parents had always been supportive of him. He also said that he was close to all his siblings.[20] However, by the time he was interviewed by Ms Sweeney in April 2022, the respondent's father had passed away some five years earlier. He told Ms Sweeney that his childhood had been unstable, but that 'things went downhill for him when his father died'.[21] I note that, during the PATCHES assessment, the respondent said his father had passed away in his arms, and this continued to cause him distress.[22] The respondent indicated to Ms Sweeney in 2022 that he was angry with his mother, who had not visited him in prison while he was on remand.[23]
[20] Ms Hollaway's affidavit, p 254, Annexure 'AP'.
[21] Ms Hollaway's affidavit, p 276, Annexure 'AR'.
[22] Ms Hollaway's affidavit, p 259, Annexure 'AQ'.
[23] Ms Hollaway's affidavit, p 276, Annexure 'AR'.
In 2016, Dr Wojnarowska noted that the respondent was unable or unwilling to answer questions about his sexual development.[24] He said he had never been in a long-term intimate relationship.[25] In 2022, Ms Sweeney said there was conflicting information about the respondent's relationship history. The PATCHES report stated that the respondent had four children from a previous relationship, and that they were all in care, but the respondent appeared to be unaware of that and said he only had one child, who was in care.[26] The respondent told Ms Sweeney he had two children to the same woman, and both were in care. Ms Sweeney described the information provided by the respondent about his relationship with that woman as 'confusing and nonsensical'.[27] I will deal later with what the respondent told Ms Sweeney about his sexual interests and behaviour.
[24] Ms Hollaway's affidavit, p 254, Annexure 'AP'.
[25] Ms Hollaway's affidavit, p 254, Annexure 'AP'.
[26] Ms Hollaway's affidavit, p 276, Annexure 'AR'; p 259, Annexure 'AQ'.
[27] Ms Hollaway's affidavit, p 277, Annexure 'AR'.
The respondent has never had employment. Because of his intellectual disability, he has been entitled to the disability pension and to NDIS funding, which was granted after the PATCHES assessment in 2018. Before his sentence in 2022, he had been provided with various support services, including accommodation, a support worker for 24 hours a day, assistance with daily living and psychological support.[28] However, it was noted that the respondent had struggled with compliance.[29]
[28] Ms Hollaway's affidavit, p 276, Annexure 'AR'.
[29] Ms Hollaway's affidavit, p 276, Annexure 'AR'.
The respondent told Ms Sweeney that he had been living in Carnarvon, but had also been transient early in 2020,[30] before he committed the offence in June 2020. That offence was committed in Perth. The respondent had been transient despite having accommodation for which he paid rent. His financial affairs were being managed under a guardianship.
[30] Ms Sweeney incorrectly referred to the year as 2022, but it is apparent from the context that she was referring to the period before the respondent committed the offence in June 2020. See Ms Hollaway's affidavit, p 276, Annexure 'AR'.
The respondent has a history of alcohol and cannabis use since adolescence. He would drink daily and would binge heavily when there was more alcohol available. He admitted to Ms Sweeney that he is easily led by others into drinking. Although his financial affairs were managed under a guardianship, it appears this did not diminish his access to alcohol. Dr Wojnarowska noted in her 2016 report that the respondent continued to drink alcohol despite being aware that it was causally linked to his offending.[31]
[31] Ms Hollaway's affidavit, p 255, Annexure 'AP'.
During the PATCHES assessment in 2018, the respondent also admitted using methamphetamines,[32] but when interviewed by Ms Sweeney in 2022, he denied using any illicit drug other than cannabis.[33] However, in March 2024, while the respondent was on parole in respect of the sentence imposed in 2022, he returned a positive urinalysis result for methamphetamine and amphetamine.[34] The respondent has previously failed to engage in drug and alcohol counselling that has been mandated as part of court orders, except for one session with a Department of Justice psychologist in 2017.
[32] Ms Hollaway's affidavit, p 259, Annexure 'AQ'.
[33] Ms Hollaway's affidavit, p 278, Annexure 'AR'.
[34] Ms Hollaway's affidavit, p 30, Annexure 'D'.
During the PATCHES assessment, the respondent admitted having attempted suicide in the past and experiencing current suicidal ideation, although he said he had no plan to act on the ideation because he wanted to care for his son.[35]
[35] Ms Hollaway's affidavit, p 259, Annexure 'AQ'.
Offending history
Overview
The respondent has a significant history of offending commencing when he was 16 years of age. Although his juvenile offending might take on significance in the psychiatric and psychological assessments that will be conducted for the purposes of the restriction order hearing, I do not consider that the respondent's general offending as a child has any significant relevance at this stage. The one conviction that is significant from the respondent's juvenile record is for a serious offence he committed in March 2003, for which he was placed on an adult intensive supervision order in April 2004. That was an offence of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code. I will return to the circumstances of that offence below.
The respondent has an extensive criminal history as an adult from 2005 to 2022, with numerous convictions for offences including stealing, burglaries, disorderly behaviour, driving offences, carrying an article with intent to cause fear, being armed so as to cause fear, criminal damage, breaching bail and community-based orders, and doing indecent acts and obscene acts in public. While the offences of being armed and criminal damage are not serious offences and are not similar to the serious offences that are relevant to the issues in these proceedings, they may reflect impulsive behaviour, a lack of emotional control, and a tendency to become aggressive, all of which are factors relevant to his risk of committing a serious offence, as will appear below. The offence of being armed so as to cause fear, which was committed in February 2009, involved the respondent losing his temper during a disagreement with a family friend, and brandishing two sharp kitchen knives at family members who were trying to calm him down. The offence of carrying an article with intent to cause fear, which was committed in May 2016, involved the respondent wielding a hatchet above his head as he walked towards the occupants of a vehicle, while screaming at them.
The respondent has two convictions for relevant serious offences as an adult. First, in 2017 he was convicted in the District Court of Western Australia of an offence of indecently dealing with a child under the age of 13 years. Secondly, in 2022, he was convicted of the index offence.
The circumstances of the three serious offences of which the respondent has been convicted are as follows.
First serious offence - Indecently dealing with child under the age of 13 years - 6 March 2003
The first serious offence occurred on 6 March 2003, when the respondent was 17 years of age. The victim, a six-year-old girl, was at a McDonald's store in the Perth metropolitan area with friends. The respondent was hiding within the play equipment. He spoke to the girl briefly before pulling her pants down and kissing her vagina. The girl ran away for help. The respondent was apprehended by one of the mothers, but he broke loose and ran off. However, he was later identified. The victim was taken to hospital. Although she did not suffer any injury, she was very upset and shaken by the incident. The respondent was dealt with in the Children's Court on 19 April 2004, when he was placed on an adult intensive supervision order for 12 months, as by then he was 18 years old.
Second serious offence - Indecently dealing with child under the age of 13 years - 1 January 2015
The second serious offence occurred on 1 January 2015, when the respondent was 29 years old. The victim again was a six-year-old girl. She was at a relative's home in Narrogin. She was asleep on a bean bag in the lounge room when the respondent approached her. He touched her knickers, moving them up and down, rubbing against her vagina as he did so. The skin-on-skin contact woke the child. She immediately became distressed, which caused the respondent to desist. The victim subsequently alerted her parents to what had happened. The police were called. DNA from a swab taken from the child's knickers produced a profile that matched the respondent's DNA profile.
The respondent was arrested on 2 May 2015 for other matters and was charged with the second serious offence. He initially pleaded not guilty and was committed for trial in the District Court. On 25 August 2016, being the morning on which a pre-recording of the child's evidence was to take place, the respondent pleaded guilty to the offence after the particulars were amended to refer to 'vaginal area' rather than 'vagina'.[36] However, I note that, when the respondent was sentenced on 16 March 2017, the sentencing judge, Eaton DCJ, described the facts essentially as set out above, referring to 'rubbing against [the child's] vagina'. The respondent was again placed on an intensive supervision order. His Honour took into account the respondent's personal circumstances and the fact that, apart from the offence for which he was being sentenced, the respondent had not committed a serious offence[37] for some 10 to 12 years.
Third serious offence - Sexual penetration without consent - 21 June 2020
[36] Ms Hollaway's affidavit, p 135, Annexure 'O'.
[37] It is obvious from the context that his Honour was using that description in a general way, not in a technical sense specific to the meaning of that term in the Act (or the Dangerous Sexual Offenders Act 2006 (repealed), which was in force at the time).
The third serious offence, being the index offence, occurred on 21 June 2020 in Perth. The respondent was convicted after trial. He had been charged with aggravated sexual penetration without consent, the circumstance of aggravation being that the respondent caused the victim bodily harm, but the jury did not find that circumstance proved. The facts of the offence may be discerned from the findings made by the sentencing judge, Barone DCJ.[38]
[38] Ms Hollaway's affidavit, pp 80 - 84.
The victim was a 45-year-old homeless woman who was in the central business district (CBD). She was not known to the respondent when he approached her outside a McDonald's store and started to talk with her. The respondent asked the victim if she had any place to sleep. When she said 'no', he told her he would show her where to sleep. He walked with her to the Council House carpark where they went down a stairwell. The respondent took out her blankets and made a bed, so she could have a place to sleep. The respondent then told the victim to lie down. He wanted to have sex with her. When the victim refused to lie down, the respondent told her to remove her pants, which she also refused to do. He then pulled her hair and pushed her to the ground. He took her pants off and got on top of her. She told him to get off her. However, he penetrated her vagina with his penis three times. The victim did not want to have sex with the respondent, and she struggled against him. The State submitted that the sentencing judge should find, as an aggravating factor, that the respondent punched the victim, based on her evidence at trial and the fact that she presented with injuries after the incident. Her Honour said that, if the standard of proof was on the balance of probabilities, she would be satisfied, but she could not be satisfied beyond reasonable doubt that the punch had occurred. For the purposes of a restriction order hearing, it would not be necessary for the court to be satisfied to the criminal standard about such a factual matter. The evidence at the trial included that, during the time she was with the respondent, the victim suffered injuries to her head, which bled.[39] Her Honour was not prepared to sentence on the basis that the injuries resulted from the respondent's forceful actions towards the victim, other than a punch, because the circumstance of aggravation relied on at trial was not particularised in that way.[40] However, in the context of proceedings under the Act, the fact that the victim suffered injuries may be relevant to the assessment of the nature of the risk posed by the respondent.
[39] Ms Hollaway's affidavit, pp 57 - 58, Annexure 'H'.
[40] Ms Hollaway's affidavit, p 58, Annexure 'H'.
Barone DCJ referred to information from the victim about the impact of the offence on her. The victim had described feeling violated and being tormented by ongoing thoughts about the incident, which she could not forget. She had tried to harm herself and had to seek medical help to deal with that. She described ongoing distress when thinking about the incident, and she had to obtain counselling to help her deal with the trauma.
The sentencing judge also noted that the offence was committed while the respondent was on bail from the Intellectual Disability Diversion Program (IDDP) Court. As her Honour pointed out to the respondent, he knew that, while on bail, he was promising the court that he would stay out of trouble.[41]
[41] Ms Hollaway's affidavit, p 84, Annexure 'H'.
In sentencing the respondent to a term of imprisonment, Barone DCJ identified the need to protect the community as a significant factor that outweighed matters personal to the respondent. Relevant to that conclusion were the 'opportunistic and spontaneous' nature of the offending, the respondent's history of sexual offending, and the psychological opinion that indicated the respondent presented a 'well above average' risk of reoffending.[42] Her Honour noted that, because of his intellectual disability, the respondent is unable to fully comprehend the consequences of his actions, and he is unable to describe any strategies to manage his sexual urges when he has been drinking, or to abstain from drinking. All of these factors impair his ability to control his behaviour.
[42] Ms Hollaway's affidavit, p 91, Annexure 'H'.
It appears from the explanations the respondent has given for his serious offending that he was affected by alcohol at the time. He has claimed not to remember the incidents because he was drunk.
Other relevant offending
In terms of other offences that appear to be sexually driven, the respondent has five convictions for doing obscene acts in public, in 2006, 2018, 2019 and 2020. The details of the 2006 offence are not known, but the other offences all involved the respondent pulling down his pants to expose his penis and then masturbating for a period of time in a public place. The offences occurred in a library, a newsagency and the lobby of the unit complex where the respondent was living.[43] On at least two occasions, in the library and in the lobby of the unit complex, the respondent's behaviour appears to have been directed at females in the vicinity. The offending in the library was observed by two 16-year-old girls and a 17-year-old girl. In the lobby incident, the respondent was facing a female who appears not to have noticed him for a few minutes. In that sense, as the learned magistrate pointed out at the sentencing for that offence on 10 August 2020, the obscene act did not occur 'right in front of the complainant'.[44] The respondent stopped when the complainant turned and observed him. In fining the respondent, the magistrate took into account his cognitive deficits, finding that they were causally related to the offending, such that the respondent's culpability was reduced.[45]
[43] Ms Hollaway's affidavit, pp 35 - 36, Annexure 'E'; p 226, Annexure 'AI' (transcript of proceedings in the Magistrates Court on 10 August 2020).
[44] Ms Hollaway's affidavit, p 226, Annexure 'AI'.
[45] Ms Hollaway's affidavit, pp 226 - 227, Annexure 'AI'.
When he was sentenced for the serious offence in 2017, the respondent was declared to be a reportable offender for the purposes of the Community Protection (Offender Reporting) Act 2004 (WA). His criminal record suggests that he had been a reportable offender before that, as he was convicted of breaches of his reporting conditions previously. In any event, the declaration meant that he was placed on the Australian National Child Offender Register (ANCOR) and was subject to reporting conditions and various restrictions under the Community Protection (Offender Reporting) Act. Since the declaration in 2017, the respondent has eleven convictions of failing to comply with his reporting obligations under that Act.
The respondent also has numerous convictions for breaching community-based orders, when such orders have been imposed in the past. As the State submitted, the overall picture is of someone who has not been able to comply with the requirements of community-based orders, or adhere to mandatory offender reporting requirements.
Attempts at rehabilitation
The respondent entered a Sex Offender Treatment and Substance Abuse Counselling Program in 2004, however he re-offended during the period of the intensive supervision order that was in place at the time.[46] As Ms Sweeney noted in her report, there was no further information about that programme, so it is not apparent whether the respondent ever engaged with the programme.[47] His continued offending indicates that he has not had successful treatment in respect of either his sexual offending or his alcohol and illicit drug use.
[46] Ms Hollaway's affidavit, p 259, Annexure 'AQ'.
[47] Ms Hollaway's affidavit, p 277, Annexure 'AR'.
With the assistance of an Aboriginal mentor, the respondent successfully completed the Intellectually Disabled Diversion Programme in 2016.[48] Again, there is no further detail about that programme.
[48] Ms Hollaway's affidavit, p 260, Annexure 'AQ'.
The respondent was referred to the Aboriginal Alcohol and Drug Service in 2017. The PATCHES report noted that he 'failed to attend all appointments and his referral was consequently discharged'.[49] He was also referred to a psychologist with the Department of Justice, but he was seen for only one session on 20 September 2017, failing to attend four other appointments.[50]
[49] Ms Hollaway's affidavit, p 259, Annexure 'AQ'.
[50] Ms Hollaway's affidavit, p 259, Annexure 'AQ'.
The respondent candidly told Ms Sweeney that he had never received any counselling about his behaviour because he never attended.[51]
[51] Ms Hollaway's affidavit, p 277, Annexure 'AR'.
Risk assessment and treatment
The respondent has been the subject of a number of reports over the past 22 years. Those reports, as a whole, indicate that the respondent's cognitive limitations affect his behaviour and are causally linked to his offending, but that he can understand the difference between right and wrong and acknowledges that his offending behaviour largely correlates with his consumption of alcohol.
Dr Wojnarowska saw the respondent in 2003 and 2016. She saw him twice in 2003 for the purposes of assessing whether the respondent was fit to plead and stand trial in the Children's Court on a number of charges, including the first serious offence of indecently dealing with a child under the age of 13 years. So, the reports of 29 June 2003 and 29 July 2003 addressed the respondent's capacities under the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) (repealed) to determine whether he understood matters that were relevant to his fitness to stand trial. In that context, after her first interview with the respondent and his mother, and having regard to other materials available to her, Dr Wojnarowska said that, at that stage, there was uncertainty in relation to the respondent's cognitive impairment.[52] Although she said that, on her clinical assessment, the respondent was fit to plead and to stand trial, Dr Wojnarowska was of the view that the respondent's cognitive limitations were of concern and that he should undergo formal psychological testing to determine his level of functioning, as the question of the respondent's fitness to stand trial was likely to be 'repeated'.[53] She noted that the psychological testing should be culturally sensitive.
[52] Ms Hollaway's affidavit, p 242, Annexure 'AM'.
[53] Ms Hollaway's affidavit, p 244, Annexure 'AM'.
The respondent was subsequently assessed by a psychologist with the Juvenile Justice Office, Ms Alise Chapman, on 28 July 2003, and the results were reported by Dr Wojnarowska in her second report, dated 29 July 2003. Dr Wojnarowska had interviewed the respondent again a week after Ms Chapman assessed him. Dr Wojnarowska noted that Ms Chapman had found the respondent's comprehension and spoken language skills to fall within the intellectual disability range, and she had reservations about his ability to enter a plea and to stand trial. However, the respondent's mother told Dr Wojnarowska that his father had given him intensive coaching about the court process during the week after the assessment, and it appears from Dr Wojnarowska's second report that the respondent had assimilated at least some of that information.[54]
[54] Ms Hollaway's affidavit, pp 246 - 248, Annexure 'AN'.
It is not necessary to consider Dr Wojnarowska's findings on the second occasion in respect of the relevant capacities for the purposes of determining if the respondent was fit to plead and stand trial, as ultimately he was found to be fit to plead, and he was convicted of the second serious offence, as I have outlined above. However, more broadly, Dr Wojnarowska said:[55]
The results from the formal cognitive assessment indicate that Tyrone's cognitive function is within the range of disability. The scattered scores, however, suggest that he has some intellectual strengths and certainly he demonstrated the ability to learn new information, as evidenced by him having more information about the Court proceedings by the time of my assessment compared to his understanding a week prior.
[55] Ms Hollaway's affidavit, p 248, Annexure 'AN'.
That suggested that there may be some scope for treatment, in that the respondent has some ability to learn new information.
The issue of the respondent's cognitive functioning was subsequently addressed by the PATCHES report in 2018, which found the existence of FASD and the other cognitive impairments.
Returning to Dr Wojnarowska's assessment in 2003, her first report included a general psychiatric assessment as well as addressing the fitness to plead issues. It is important to note that, even at that point in time, when the respondent was 17 years old, Dr Wojnarowska was of the opinion that, apart from the respondent's cognitive impairment, substance abuse was another factor that further disinhibited his actions and impaired his impulse control.[56]
[56] Ms Hollaway's affidavit, p 248, Annexure 'AN'.
As I noted earlier, Dr Wojnarowska's report in 2016 was for the sentencing proceedings in respect of the second serious sexual offence. In that context, Dr Wojnarowska said, in relation to the respondent's account of the index offence:[57]
Mr Thorne agreed with the statement of material facts. He did not have much more to say apart from stating that he was 'drunk' and wouldn't have done it if he were sober. He acknowledged that his behaviour was not appropriate, but struggled to provide explanation as to why adults should not be engaging with children in a sexual manner. He did not know what the outcome of his behaviour would be for the victim. He said that he would never do it again but was not able to present any risk management strategy.
[57] Ms Hollaway's affidavit, p 253, Annexure 'AP'.
At that point in time, Dr Wojnarowska, who was at that stage dealing with the question of the respondent's future risk of committing sexual offences, noted the following diagnoses:[58]
Although not officially diagnosed by the neurocognitive assessment and specific physical examination, the developmental and medical history and the findings on the mental state examination (dysmorphic features) support diagnosis of Foetal Alcohol Spectrum Disorder (FASD) and associated Intellectual Disability (ID). He also fulfils the criteria for Alcohol Use Disorder and antisocial personality traits.
[58] Ms Hollaway's affidavit, p 255, Annexure 'AP'.
As I have already indicated, subsequently, the PATCHES assessment in 2018 resulted in a diagnosis of FASD.
Dr Wojnarowska went on to say that the respondent does not suffer from a mental illness, and that his impulsivity and impaired judgment is associated with his intellectual disability and alcohol use.[59] She further stated:[60]
Of particular diagnostic interest is whether Mr Thorne has a deviant sexual interest in children or whether his offences against them are associated with social inadequacy, major cognitive and communication limitations and problems with impulse control during alcohol intoxication. There is no specific test to confirm or otherwise the presence of sexual deviance. But despite Mr Thorne's denial, this [area] of his functioning will require further, longitudinal assessment.
[59] Ms Hollaway's affidavit, p 255, Annexure 'AP'.
[60] Ms Hollaway's affidavit, p 255, Annexure 'AP'.
Dr Wojnarowska noted that, if the applicant has a sexual interest in children, that would be 'the most important causal factor in his sexual offending, followed by alcohol and/or cannabis intoxication as other important factors.'[61] It must be noted that, at that point in time, the respondent's sexual offences had both been against children.
[61] Ms Hollaway's affidavit, p 256, Annexure 'AP'.
Dr Wojnarowska went on to say, in the 'opinion and recommendations' section of her report 'Mr Thorne's risk of sexual re‑offending according to an actuarial instrument, STATIC 99-R places him in a low-medium range.'
Dr Wojnarowska did not provide further details about the application of that instrument, and did not refer to any other risk assessment instrument that considered dynamic factors affecting the respondent's risk of future sexual offending. Of course, the Static-99R result arrived at by Dr Wojnarowska was before the respondent's most recent sexual offending and the assessment that has since been made by Ms Sweeney, to which I will refer below, which now places the respondent within the 'well above average' range for sexual reoffending, using Static-99R.
It is nevertheless important to have regard to Dr Wojnarowska's assessment in 2016, because, even at that point in time, as is evident from the quote at [66] above, some of the matters that were regarded as being risk factors for the respondent were social inadequacy, major cognitive and communication limitations and problems with impulse control during alcohol intoxication.
It has subsequently been assessed that the respondent is also at risk as a result of using methamphetamines, which he admitted during the PATCHES assessment.[62] His substance use was one of the factors identified by the authors of the PATCHES report as having diagnostic implications for his offending behaviour, as appears in [72] below.[63]
[62] See [34] above.
[63] Ms Hollaway's affidavit, p 265, Annexure 'AQ'.
In arriving at the diagnosis of FASD, the authors of the PATCHES report relied on the history of the respondent's pre-natal exposure to alcohol, the relevant facial features for FASD and impairment in respect of seven neurodevelopmental domains, being brain structure/neurology, attention, memory, academic achievement, language, executive functions, and adaptive functioning.[64] In relation to the latter, the respondent's self-reported adaptive functioning was considered to be below age-expectations, 'suggesting that he will require substantial supports to function independently in his everyday life'.[65] The authors were of the opinion that the respondent's 'widespread cognitive impairment may have implications on his offending behaviour and risk of recidivism'.[66] The implications outlined by them included:[67]
(1)'[The respondent's] low intellect and cognitive deficits [suggest] he may be socially vulnerable and easily led or influenced by others, and he may lack awareness of the consequences of certain behaviours. His observed agreeable and easily-confused nature places him at risk of engaging in antisocial and/or criminal activities behaviours at others' urging.'
(2)'[The respondent] demonstrates reduced ability in controlling his responses which suggests he may struggle to control his responses and find it hard to contain his emotions and behaviour when he becomes distressed. Coupled with his low intellect, he may act without much prior consideration of the consequences of his behaviour.'
(3)'[The respondent] may become cognitively overwhelmed and struggle to manage situations when there are multiple demands placed on him. He may thus engage in antisocial activities without adequate understanding and planning.'
(4)'[The respondent] will likely struggle to remember information, even if it is presented repeatedly. This means that he will require assistance and reminders for any conditions or counselling appointments. If he fails to comply with Order conditions because he does not remember them, this may lead to further entrenchment with the justice system.'
(5)'[The respondent's] substance use history may place him at risk of substance-related antisocial behaviour and recidivism, and/or [of participating] in antisocial behaviour without an adequate level of consciousness.'
[64] Ms Hollaway's affidavit, pp 263 - 264, Annexure 'AQ'.
[65] Ms Hollaway's affidavit, p 264, Annexure 'AQ'.
[66] Ms Hollaway's affidavit, p 265, Annexure 'AQ'.
[67] Ms Hollaway's affidavit, p 265, Annexure 'AQ'.
Ms Sweeney's assessment in 2022 was made having regard to Dr Wojnarowska's earlier assessments, the PATCHES assessment, and, of course, the respondent's further offending. Ms Sweeney concluded that the respondent presents a high risk to the community of general offending but, also, of committing sex offences. She applied the Static‑99R actuarial risk assessment instrument and concluded from the results that the respondent fell into the 'well above average' risk category. That is, according to Static-99R, he was assessed to present a well above average risk of committing a sexual offence compared to other sex offenders. However, I note that Static-99R is concerned with all sex offences, not just serious sexual offences. Ms Sweeney noted that the factors that elevate the respondent's risk on Static-99R include 'his history of sexual offences, victim characteristics and prior non-sexual violence[,] given the number of weapon related offences and related behaviour.'[68]
[68] Ms Hollaway's affidavit, p 280, Annexure 'AR'.
Ms Sweeney also used the ARMIDILO-S[69] assessment instrument, that considers dynamic factors that affect a person's risk of committing sexual offences. Ms Sweeney found that the respondent had issues in relation to poor supervision compliance, poor treatment compliance, sexual preoccupation and sexual drive, offence management, emotional coping ability, relationships, impulsivity, substance abuse and additional issues, such as antisocial tendencies and periods of transience.[70]
[69] Assessment of Risk and Manageability for Individuals with Developmental and Intellectual Limitations who Offend Sexually.
[70] Ms Hollaway's affidavit, p 280, Annexure 'AR'.
Ms Sweeney also noted, referring to an earlier report, that the respondent's sexual offending has been considered a 'maladaptive coping behaviour in times of stress'.[71]
[71] Ms Hollaway's affidavit, p 277, Annexure 'AR'.
Ms Sweeney gave the following opinion:[72]
When assessed in 2016 deviant sexual interest was unclear, his offending considered to be more associated with social inadequacy, major cognitive and communication limitations and poor impulse control when intoxicated (Wojnarowska, 2016). Impulsivity and impaired judgement are associated with his ongoing alcohol use and intellectual disability. As he has now offended against an adult female and continues to engage in public masturbation, it would seem poor impulse control, especially when intoxicated, is a major risk factor. The PATCHES report noted his reduced ability to control his responses and difficulty he has containing emotions and behaviour when distressed, Mr Thorne often acting with limited consideration of the consequences. At such times he becomes cognitively overwhelmed, unable to manage situations and unlikely to ask for clarification. When intoxicated he will misread information from others. His memory impairment makes it difficult for him to recall details of events, which he attributes to blacking out, but also means he struggles to recall risk related issues.
[72] Ms Hollaway's affidavit, pp 280 - 281, Annexure 'AR'.
She concluded that the respondent 'continues to have high treatment needs and be of high risk to the community', going on to say:[73]
He has significant cognitive impairment, is agreeable, easily confused and continues to abuse alcohol when in the community. Whilst he has previously suggested some family support, during the current assessment this appeared less the case and he is now more reliant upon support from professional agencies, although his previous engagement with such has been less than satisfactory. His treatment needs do not appear to have been adequately addressed and will require intensive, specialist intervention. Mr Thorne could only identify alcohol as his primary risk and had no management strategy in place. He is considered unsuitable for currently available sex offender treatment programs offered by the Department of Justice due to his intellectual impairments. Given the link with alcohol abuse, Mr Thorne must abstain and will require considerable support in the community when released. It is further recommended that all staff involved in his management be familiar with current risk management tools, such as the ARMIDILO-S and use it periodically to monitor acute client and environmental risk factors.
[73] Ms Hollaway's affidavit, pp 281 - 282, Annexure 'AR'.
Propensity to commit a serious offence and any pattern of offending
Section 7(3)(c) of the Act requires consideration of whether there is information to indicate that the respondent has a propensity to commit a serious offence in the future. It is not concerned with whether he has a propensity to offend generally. As explained by Murray J in The Director of Public Prosecutions (WA) v GTR:[74]
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences, generally in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his make up or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.
[74] The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [178].
Section 7(3)(d) of the Act requires consideration of whether or not there is any pattern of offending behaviour by the respondent. A 'pattern', as it pertains to behaviour, is a recurrent way of acting by an individual towards a given object or in a given situation.[75]
[75] The State of Western Australia v Hill [No 2] [2024] WASC 70 (Derrick J).
The questions of whether the respondent has a propensity to commit a serious offence in the future and whether there is a pattern to his offending are informed by his antecedents, in particular his past offending, and by the assessments that have been made by the experts of his risk of future offending, which include assessments of his cognitive impairment.
While there have been significant gaps between the serious offences committed by the respondent, his sexual preoccupation has been evident in the periods in between serious offending, from his offences of doing obscene acts in public. That conduct involved him exposing his penis and masturbating in public places, in circumstances where it is reasonable to conclude that he did so because he was aroused by the presence of females nearby, and it is likely his actions were directed at them.
Although the offending against the two 6-year-old victims occurred in different circumstances, in both cases it involved indecently dealing with the child by touching her in the area of her genitals. The first incident occurred in a secluded area of a playground and appears to have involved a degree of grooming, as the respondent spoke with the girl first, whereas in respect of the second serious offence, he was in a relative's home and he commenced to commit the offence when the girl was asleep. Nevertheless, both instances involved the respondent taking advantage of a vulnerable child to satisfy a sexual urge impulsively. Further, there is evidence to suggest the respondent was intoxicated on both occasions, and that the intoxication contributed to his disinhibition in committing the offences.
The sexual offending in 2020 was different in that it was against an adult woman and involved penile penetration of her vagina. Further, it involved violence. However, it still had the characteristic of being against a vulnerable victim, a woman who was homeless and susceptible to his offer of assistance, in circumstances in which he acted on an impulse to satisfy a sexual urge when he had the victim in a secluded location.
Although the respondent has not been diagnosed previously as meeting the criteria for paedophilia, such a diagnosis has not been excluded. Obviously, his offending has not been exclusively against children. That would not necessarily preclude a diagnosis of paedophilia, as that condition can be of a non-exclusive type. As the State submitted, the question of sexual deviance can be explored in the psychiatric and psychological assessments that will be made for the restriction order hearing. I accept the State's submission that the relevant tendency in the respondent's case, for the purposes of s 7(3)(c) of the Act, is a tendency by the respondent to behave in a way that involves a lack of impulse control, including sexual impulses, which is attributable at least in part to his cognitive impairments and may be related to his alcohol and/or drug use, and which creates the potential for the respondent to commit serious sexual offences of the kind he has committed, both against children and against an adult, opportunistically.
A finding that a person has a propensity to commit serious sexual offences would obviously be significant in reaching a conclusion that the person is a high risk serious offender, but it is not essential to such a conclusion. The other considerations under s 7(3) of the Act might support the conclusion irrespective of whether the evidence points to a propensity to commit serious sexual offences in the relevant sense.
However, having regard to the respondent's offending history, the expert assessment in respect of the implications of his cognitive impairments for future offending, and the previous expert assessments of his risk of committing a sexual offence, in particular Ms Sweeney's assessment in 2022, I am satisfied that there is evidence upon which the court at a restriction order hearing, assisted by the psychiatric and psychological reports that will be prepared for that hearing, might find that the respondent has a propensity to commit serious sexual offences. I am satisfied that the court might find that the risk of the respondent committing such offences is affected by the matters to which I have referred, which include his cognitive impairment, his lack of impulse control, his vulnerability to being led into antisocial behaviour and, importantly, his substance use, which includes both the abuse of alcohol and illicit substance use. These are all identifiable characteristics of the respondent that have previously led him to committing serious sexual offences on three occasions.
In relation to whether there has been a pattern of offending, I am satisfied, as was submitted by the State, that a pattern may be discerned in the respondent's serious offending, namely that he has offended opportunistically against vulnerable victims, likely in the context of alcohol and cannabis intoxication, which has been a maladaptive coping mechanism in times of stress. Further, although it is relevant to the type of order that might be made, rather than whether there is an unacceptable risk of serious sexual offending, I also accept the State's submission that the respondent has demonstrated, over a long period of time, a pattern of breaching community-based orders and bail conditions, and failing to comply with mandatory reporting conditions. Most recently, he breached conditions of his parole.
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
Having regard to all of the circumstances I have outlined, in particular the respondent's offending history, his unmet treatment needs, and the psychiatric and psychological risk assessments made in 2016 and 2022, I am satisfied there are reasonable grounds to believe that the court might find, under s 7(1) of the Act, that the respondent is a high risk serious offender. That is because it would be open for the court to find that:
(1)the respondent has demonstrated a propensity to commit serious sexual offences over a period spanning many years;
(2)the respondent has unmet treatment needs in respect of factors that put him at significant risk of committing a serious offence in the future, being a serious sexual offence of a type that he has committed previously;
(3)the respondent's cognitive impairment means that he requires significant support within the community for day to day functioning and to assist him to avoid behaviours that may lead to the commission of serious offences;
(4)the significant support the respondent has had in the past has not prevented him from committing a serious offence;
(5)if the respondent were to commit a serious offence it would likely be a sexual offence that would have the potential for significant harm to members of the community, especially women and children;
(6)having regard to that potential harm, the risk that the respondent would commit a serious offence is unacceptable; and
(7)the community would not be adequately protected against that unacceptable risk unless the respondent is subject to either a continuing detention order or a supervision order.
In other words, I am satisfied the court might find that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence. In that regard, it is significant that the respondent's most recent serious offence, in 2020, occurred while he was on bail and, therefore, subject to some conditions. Therefore, the court may well find that conditions short of very restrictive conditions, as would be imposed as part of a restriction order, would not be adequate to protect the community against the risk that the respondent would commit a serious offence. In my opinion, that would include the conditions of the PSSO made by the Prisoners' Review Board in respect of the respondent. Such orders are intended to provide protection of the community when no other order is in place. The conditions imposed are the minimum conditions considered necessary by the Prisoners Review Board for prevention of harm to the community from further offending by the prisoner, and the order can be for no more than two years.[76] The PSSO made by the Board in this case was for 12 months, commencing on 4 April 2025. Having regard to the evidence in these proceedings, it would be open to the court to find at the restriction order hearing that the implications of the respondent's cognitive impairments for future serious sexual offending will be enduring, requiring protection of the community for a lengthy period into the future, beyond the scope of a PSSO. The respondent did not submit otherwise.
[76] Sentence Administration Act 2003, s 74D(3), s 74E(2).
Based on the conclusions in [88] and [89] above, the threshold test is satisfied. Accordingly, I am required to set a date for the restriction order hearing and to make orders pursuant to s 46 for the preparation of reports and other matters necessary for the conduct of the restriction order hearing.
Should an interim detention order or interim supervision order be imposed?
The question that remains is whether it is desirable, at this stage, to make an interim supervision order or an interim detention order pending the determination of the application, or to make no order. The determination involves an exercise of discretion.
At [8] to [10] above, I referred to the relevant provisions of the Act in respect of the making of an interim detention order or supervision order, and to the orders sought in this case. Before considering the issues in the context of this case, it is helpful to examine the provisions of s 58 of the Act and the relevant legal principles in more detail.
Section 58 provides, relevantly:[77]
[77] The phrase 'in any other case' in s 58(5) applies to the present case, as it does not fall within the provisions of s 58(3) or s 58(4) which relate to a person who is or has been subject to a supervision order under the Act. Section 30 specifies standard conditions that must be included in a supervision order.
(1)In this section —
specified means specified by the court in an order made under this section.
(2)This section applies if —
(a) proceedings on a restriction order application … are pending (the pending proceedings); and
(b) the offender to whom the pending proceedings relate is not in custody; and
(c) the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under this section.
…
(8)In any other case, the court may at any time in the pending proceedings order that, with effect from a specified date and until the pending proceedings are finally determined or until another specified date, the offender is to be subject to stated conditions that the court, subject to subsection (6), considers appropriate.
(9)Section 30 applies to an order under this section as if it were a supervision order.
As can be seen from s 58(2)(b), the section applies 'if the offender to whom the pending proceedings relate is not in custody'. This has been construed to apply in relation to a person who would not be in custody on a specified future date from which the order is to take effect.[78] Therefore, although at the time of the hearing the respondent was not due to be released from his then current sentence until 4 April 2025, it was open to make an interim supervision order at that stage, to take effect from that date, provided I was satisfied it was desirable to do so to ensure adequate protection of the community.
[78] See, for example, The State of Western Australia v Hart [2021] WASC 205 [32] - [33].
For the reasons set out in [9] above, while it is arguable that the court may decide to make neither an interim detention order nor an interim supervision order pending the determination of the restriction order application, such an approach would not be appropriate in this case, given the conclusion I have reached about the respondent's putative risk, his unmet treatment needs and, as I will discuss below, the lack of suitable accommodation to facilitate the mitigation of his risk. As I have already indicated, it is open to conclude that the PSSO would not provide adequate protection of the community. The respondent did not submit that the PSSO provided a proper foundation for making no order under either s 46(2)(c)(i) or s 58(5) of the Act.
The factors to be taken into account in determining whether to make an interim supervision order rather than an interim detention order, in the exercise of discretion, include the following:[79]
(1)The likelihood of the applicant ultimately satisfying the court that the respondent is a high risk serious offender, to the extent that this can be assessed.
(2)The extent to which the court can be satisfied not only that the respondent will adhere to the conditions of an interim supervision order but also that adherence to the conditions of an interim supervision order will ensure the adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community.
(3)The undesirability of depriving the respondent of his liberty prior to the restriction order application being finally determined, bearing in mind that the application may ultimately be refused.
[79] Director of Public Prosecutions (WA) v Allen [2006] WASC 160 [62] - [64]; The State of Western Australia v Ryan [2020] WASC 352 [21]; The State of Western Australia v Narrier [2021] WASC 250 [70].
As to the first of those factors, I was satisfied on the basis of the evidence in these proceedings that there is a reasonably strong prospect of the applicant satisfying the court that the respondent is a high risk serious offender.
The second and third factors identified in [96] above require consideration in the first place of the interim supervision order that has been proposed by the State in the event that the court is not prepared to make an interim detention order. Counsel for the respondent did not advance any alternative version of an interim supervision order.
The interim supervision order proposed by the State contained 44 conditions. Apart from the standard conditions, which include reporting to a Community Corrections Officer, compliance with the reasonable directions of such an officer, not committing a serious offence and being subject to electronic GPS monitoring, the conditions addressed various risk factors that have been identified in the respondent's case. They would require the respondent to attend programmes or treatment; report to police and comply with police requests to search the respondent, his home or his vehicle; agree to the exchange of information about him by agencies; comply with his reporting obligations under the Community Protection (Offender Reporting) Act; allow his Community Corrections Officer, the police or other agencies to speak with anyone with whom the respondent spends time, and to provide such person with information about the respondent; have no contact with his victims, and take action to avoid contact if he were to see any victim of his serious offending; not commit any criminal offence; not possess prohibited drugs or plants; comply with a curfew; have no contact with a child under the age of 18 years, except in specified circumstances; report any contact with any child to the Community Corrections Officer or WA Police; have no contact, membership or affiliation with clubs, associations or groups that are open to children; not begin a relationship with a person who has a child; not enter any vehicle where a female is present, or enter any place where a female lives, unless authorisation has been given by the Community Corrections Officer in advance; not allow a female to enter his home, unless approval has been given by the Community Corrections Officer in advance; report any new or continued social association; not to possess, use or purchase any alcohol; attend and submit to urinalysis testing or other testing for alcohol or prohibited drugs; provide a valid sample; not be with anyone affected by a prohibited drug; not be anywhere where prohibited drugs are used, and to remove himself if drugs are being used at his home; not go to any licensed premises unless permitted or required to do so in specified circumstances; and not assault, threaten or abuse a person working for or providing services to the Department of Justice.
More broadly, the question of whether the respondent's putative risk could be adequately managed under the proposed supervision order needs to be considered against the background that the respondent has been found to be eligible for NDIS funding, and has an NDIS support plan in place. It was in place when he was released on parole in respect of the sentence that he was serving at the time of the hearing. Unfortunately, he then breached aspects of the parole order on two occasions. On the last occasion, after parole was suspended, he was not released again on parole.
The NDIS support allows for accommodation with a support worker. The accommodation that was available to the respondent at the time of the hearing was accommodation where there would be a number of other people living in the premises. In his affidavit, Mr Ng referred to information indicating that there were five other people living at those premises at present, and, if the respondent were to be released to live at those premises, there would be one support worker for every three residents who are being provided support at those premises.
The State submitted that there are a number of reasons why the making of an interim supervision order would not provide adequate protection of the community against the respondent's putative unacceptable risk of committing a serious sexual offence.
First, the State referred to the fact that the respondent has 15 convictions of failing to comply with reporting obligations, under the Community Protection Offender Reporting Act. He has repeatedly breached community-based orders, and he committed the index offence whilst on bail. The State submitted that the index offence was an escalation in the nature of the respondent's serious offending, which has resulted from his propensity to engage in sexual offending against vulnerable female victims. Further, the respondent's parole was ultimately cancelled after a period in March 2024 during which he resumed misusing drugs and alcohol in the community, breached curfew, and was arrested for possession of methylamphetamine. The applicant submitted that this was despite substantial NDIS efforts being in place at the time to support the respondent.
The State submitted that the respondent's behaviour was consistent with his history of failing to engage, at times, with services provided to him, whether it be through the IDDP court process, the NDIS plan, or psychological support. The applicant submitted that this has been due to the respondent's substance abuse, in circumstances where the respondent is easily influenced to engage in such conduct. This is due to his vulnerability resulting from his FASD and intellectual disability.
The State referred to Ms Sykes' affidavit, which confirms that the respondent has secured NDIS-funded accommodation at an address in Yanchep, that GPS testing has occurred at that address, and that no issues were identified at the time of testing. In other words, the premises are suitable for GPS monitoring equipment to be installed, and for the respondent to be monitored by GPS monitoring at that address.
An email from Ms Mallie at COMU, dated 20 February 2025, confirmed that the property provides accommodation for three NDIS participants at any time and the other two participants will change as the NDIS sees fit. I have already referred to the fact that the accommodation provides one support worker for every three residents.
The State also referred to Mr Ng's affidavit, which indicated that one of the current occupants of the Yanchep address, Mr F, is a resident who has an extensive criminal history. At the time of the hearing, he was on bail for 31 offences. His bail conditions would mean that he would be residing at the Yanchep address every day between 9.00 pm and 6.00 am.
The State's overall submission was that the respondent would be placed in an environment with a relatively low level of support (at one support person for three residents), and that, in combination with Mr F's circumstances, the situation would likely lead to the respondent resuming his substance misuse, which would, in turn, create an unacceptable risk to the community that he would commit a further serious sexual offence.
I note, in relation to Mr F, that there is no information to indicate whether he is someone who has a substance abuse issue, such that he might pose a risk factor for the respondent in that regard. The pending offences referred to in Mr Ng's affidavit for Mr F appear to be largely, if not all, dishonesty-type offences. However, he has a history that includes a breach of a violence restraining order and a breach of bail.
Notwithstanding the absence of any information suggesting Mr F would be engaged in drug use, it seems to me that it would be a risk for the respondent to be exposed to anyone who may potentially be an antisocial influence. I will return to that issue shortly, when I deal with the submissions made on behalf of the respondent as to why an interim supervision order may be appropriate to adequately protect the community. First, I will deal briefly with the respondent's history on parole.
The conditions that were in place at the time of the respondent's release on parole included conditions that:
(1)prevented him from consuming alcohol;
(2)prevented him from going to licenced premises;
(3)required him to abide by a curfew, namely that he was to remain at his parole address between the hours of 8.00 pm and 6.00 am every night;
(4)required him to attend for random urinalysis testing for illicit substances;
(5)required him to attend programs and counselling as directed;
(6)required him to be subject to GPS monitoring;
(7)required him to comply with mental health treatment as directed by a medical practitioner;
(8)required him to engage with community support workers as directed;
(9)prevented him from having contact with the victim of his offending;
(10)required him to reside at an address approved by the Community Corrections Officer, and not to change the address without the prior approval the Community Corrections Officer; and
(11)to submit to random breath testing as required by the police. That obviously related back to the first of the conditions that he was not to consume alcohol.
The respondent was initially released on parole on 16 May 2023. On 11 September 2023, there was a hearing conducted by the Prisoners Review Board to consider amending the parole order. What is stated in the notes is that:[80]
Subsequent to your release to parole, the Board has been advised by your Community Corrections Officer that you had been attending the CBD for long periods of time and associating with negative peers. These circumstances are similar to those at the time of your committing the index offence. In order to minimise risk, the Board has determined that your Community Corrections Officer should be given the authority to impose exclusion zones as determined to be appropriate.
[80] Ms Hollaway's affidavit, p 32, Annexure 'D'.
I note that the more detailed Prisoner's Review Board Note in the Community Business Information System (CBIS) in respect of that matter contained the following additional information, which recorded troubling behaviour by the respondent towards his occupational therapist:[81]
Since release Mr Thorne has complied with all aspects of his Parole Order including negative urinalysis and breath tests, however, in the past four weeks it has been noted that Mr Thorne is commencing risk taking behaviours such as telephoning his Occupational Therapist with inappropriate sexual comments resulting in the therapist being distraught and the service for Mr Thorne terminated until a male occupational therapist can be located. In the past two weeks Mr Thorne has started attending the central business district (CBD) in Perth for long periods of time during the day and associating with negative peers which has been identified as increasing his risk and the increased possibility he will relapse to substance use. Mr Thorne's current sexual offending occurred in the CBD after consuming alcohol.
[81] Ms Hollaway's affidavit, p 296, Annexure 'AV'.
In any event, the Board imposed the additional condition that the respondent was not to enter any exclusion zone as determined and directed by his Community Corrections Officer, and he continued to be on parole subject to the previous conditions and that additional condition. The issue concerning his occupational therapist appears to have been treated as part of the respondent's overall decline in his behaviour, and was dealt with by the proposed allocation of a male therapist. The Board's determination indicated that, while there was no specific breach identified at that point in time, there was concern about the fact that the respondent was attending the CBD for long periods of time and associating with negative peers. That was within a period of four months or so after he was first released on parole.
On 20 October 2023, parole was suspended by Adult Community Corrections. On 31 October 2023, the Prisoners Review Board decided that the suspension was to remain, saying in its reasons:[82]
Adult Community Corrections suspended your parole on 20 October 2023 because you failed to comply with your curfew on 20 October 2023 and because of concerns that you were under the influence of alcohol which would increase significantly your risk of offending in the community.
The Board is informed … that when arrested on 20 October 2023, your consumption of a significant quantity of alcohol was confirmed by a WAPOL breath test.
[82] Ms Hollaway's affidavit, p 31, Annexure 'D'.
Further information in respect of the alcohol use is contained in the more detailed notes in the Prisoners Review Board Note for 20 October 2023 in CBIS, which recorded that the respondent's breath analysis test returned a positive result of 0.143 per cent blood alcohol level.[83]
[83] Ms Hollaway's affidavit, p 298, Annexure 'AW'.
The Board went on to say, in its reasons:[84]
The Board is satisfied that your non-compliance with your parole conditions elevates your risk to the safety of the community and maintains the suspension. The board adjourns further consideration of your matter so that you can achieve a meaningful abstinence from alcohol, for appropriate counselling in custody, and for detailed Adult Community Corrections recommendations that might allow you to return to parole after a suitably high supervision regime. The board also requires confirmation of the protective factors that would be available through community supports.
[84] Ms Hollaway's affidavit, p 31, Annexure 'D'.
On 29 November 2023 the Board again met, and, on that occasion, cancelled the suspension of parole, with the respondent to be released on 4 December 2023. On that occasion, the Board's reasons stated:[85]
On 31 October 2023, the Board maintained the suspension of your parole, following your alcohol use, and the breach of your curfew requirement. The Board adjourned your matter to allow you to achieve meaningful abstinence from alcohol for appropriate counselling, and for detailed Adult Community Corrections recommendations that might allow you to return to parole under a suitably high supervision regime. The Board also required confirmation of protective factors that would be available through your community supports.
The Board notes that an inter-agency meeting took place on 8 November 2023. National Disability Insurance Scheme supports and Adult Community Corrections developed a detailed re-release plan. Your plan includes supported accommodation, therapies and activities from a number of community service providers and mentoring support to continue to address your complex needs.
You are required to adhere to all your parole requirements, including GPS monitoring and your curfew requirement.
You have discussed factors that contributed to your breaches and your re-release plan is sufficiently protective. The Board therefore has determined to cancel the suspension, and re-release you on parole.
[85] Ms Hollaway's affidavit, p 31, Annexure 'D'.
I note that, at that point in time, the respondent had discussed factors that contributed to his breaches. The Board's reasons do not provide any information in respect of the person or persons with whom the discussion took place, but it is obvious that the respondent met one of the requirements that the Board had set for further consideration of whether the suspension was to remain. The Board had required confirmation of protective factors that would be available to the respondent through community supports, and it needed to be satisfied that he had achieved meaningful abstinence from alcohol, and had engaged in appropriate counselling.
On 20 March 2024, parole was again suspended by Adult Community Corrections. On 27 March 2024, the Prisoners Review Board met. On that occasion, it determined that the suspension should remain in place, and gave the following reasons:[86]
Adult Community Corrections Breach Advice, dated 20 March 2024, informed the board that, since your re-release to parole on 12 March 2024, you returned a urinalysis result that was positive for methamphetamine (4441 ug/L) and amphetamine (1170 ug/L) but have denied illicit substance use to [Adult Community Corrections]. The Board has determined to maintain the suspension of your parole to allow you to provide the board with an explanation as to your relapse to illicit substance use, and to work with your Community Corrections Officer to provide an updated parole plan which includes ways to address your relapse to illicit substance use and consideration of what disability supports may be available to you.
[86] Ms Hollaway's affidavit, p 30, Annexure 'D'.
The Board went on to note the serious nature of the offence for which the respondent was currently sentenced, and that he had previously been afforded a further opportunity for community supervision, following the suspension of his parole due to breaches of the alcohol restrictions, and the curfew condition.
On 27 June 2024, the Prisoners Review Board determined to cancel the parole order, and, as at the time of the preliminary hearing, the respondent had been serving the balance of his sentence since then. The reasons given for the cancellation were as follows:[87]
The Board has since been advised, if released your plan would mirror that which existed at the time you breached your parole conditions, apart from a change in accommodation. Although subject to 24/7 care with strict parole conditions you again breached parole by using illicit substances suggesting an unwillingness or inability to comply with conditions of parole.
Due to your serious criminal history and failure to comply with parole conditions the Board considers you to be an unacceptable risk to the community and cancels your parole. The Board notes the content of the order made on 27 March 2024 when suspension of your parole was maintained to allow you to provide an explanation for your conduct and provide an updated parole plan including ways to address your relapse to illicit substance use considering what supports may be made available to you.
[87] Ms Hollaway's affidavit, p 30, Annexure 'D'.
Having noted the content of the order made on 27 March 2024, the Board did not go on to say in its reasons whether there was any information in respect of whether the respondent had provided an explanation for his conduct.
In my view, the parole history is important because it identifies, first, the contraventions by the respondent of conditions of his parole order that involved risk-laden behaviour and, in particular, his relapse into substance use, most recently, the use of methylamphetamine and amphetamines, which were detected on 12 March 2024. As the Board noted, those contraventions, particularly the last contravention, occurred in circumstances in which there were strict conditions in place that involved 24/7 care. That had not been sufficient to prevent the respondent from relapsing into substance use.
It was submitted on behalf of the respondent that I should have regard to the fact that the respondent complied with conditions of his parole for at least two periods that were not insignificant, first between 16 May 2023 and 20 October 2023, and then when he was released on 4 December 2023 until 12 March 2024. The information before me does not indicate the frequency of his testing during that period, so it is not clear when the last time was prior to 12 March 2024 that the respondent returned a negative result of illicit substances. It was pointed out on the respondent's behalf that the breaches - that is, his possession of drugs - were dealt with by way of a fine, and that there was no suggestion that he had engaged in sexual impropriety, other than relatively early on when he had made inappropriate sexual comments to his occupational therapist, which I referred to above. It was submitted on the respondent's behalf that there was no suggestion the respondent had engaged in behaviour that constituted a sexual offence, such as the sort of indecent exposure he had engaged in persistently for periods of time in the past. In the respondent's submission, the fact that, for significant periods of time, the respondent did not contravene the conditions in a way that brought him to the attention of the Prisoners Review Board, demonstrated that he has an ability to comply with less onerous conditions.
It was submitted that the court should have regard to the fact that the conditions that will be imposed under the proposed interim supervision order, if that order were to be made, would be far more restrictive and would allow for a swifter response time in the event that the respondent was behaving in a way that indicated an elevated risk of serious sexual offending. It was submitted that, in addition to the conditions to which he was previously subject under the parole order, he would need to report to police, and the police would be able to act in a proactive way, as would his Community Corrections Officer, to bring the respondent before the court if there was a reasonable suspicion that a contravention was likely to occur, whereas under the parole order, action could only be taken if the respondent contravened the parole order.
The latter proposition is not entirely correct, as is evident from the fact that the Prisoners Review Board acted in the respondent's case when it was informed that he was attending the CBD and associating with negative peers, which increased his risk of offending. So, there is a means by which a parole order can be reviewed even if the parolee has not yet contravened a condition. As I noted earlier, on that occasion an additional condition was imposed. However, it is fair to say that there would be a difference if the respondent were subject to the proposed interim supervision order, in that, if he were to contravene a condition of that order, he could be arrested and brought back before the court on the basis of a reasonable suspicion that a contravention is likely to occur, and the court could then make an interim detention order if it considered that the interim supervision order was no longer providing adequate protection of the community.
It was properly acknowledged on behalf of the respondent that his impairment is not going to change. The vulnerabilities that he has are not going to change, although he does have support in the community through the NDIS funding.
While the conditions that would be imposed under the proposed interim supervision order would be more restrictive, and perhaps would allow for a more effective response of bringing the respondent before the court if there was a suspicion that his level of risk was elevating, the conditions would still not be so restrictive as to preclude the respondent from leaving his residence at times other than during any curfew that might be set by his Community Corrections Officer.
In my opinion, it would not be appropriate to impose what would be, in effect, home detention. It was not submitted on the respondent's behalf that it would be appropriate to impose conditions amounting to home detention. The conditions of the proposed interim supervision order, which were considered to be appropriate, do not amount to the imposition, in effect, of home detention. At most, they would allow for a curfew to be imposed by the respondent's Community Corrections Officer.
My concern is that the respondent's behaviour in the past has been impulsive when he has been affected by alcohol and/or drugs, against the background that he has reduced impulse control because of his cognitive impairments. There is no suggestion that his sexual drive has diminished in any way in recent times. Although it occurred back in September 2023, the incident in which the respondent made sexually charged comments to the occupational therapist indicates that he has a continuing sexual interest, which suggests a sexual drive.
Although the authorities have intervened previously when the respondent has contravened his parole conditions by failing to comply with his curfew condition, using alcohol, and returning a positive urinalysis result for methylamphetamine, the potential for the respondent to act impulsively and commit a serious sexual offence at a time when he may resort to drug use is a real risk, and may occur before there is any opportunity for intervention.
The conditions of the interim supervision order do not impose a requirement for the respondent to be under observation every hour of the day. That would not be practical. They place obligations on the respondent and require him to agree to the authorities being able to do things that, otherwise, they might not be able to do, for instance, exchanging information about him with other agencies or with other persons, to more effectively monitor and supervise him in the community.
In my view, there is a real concern that, having regard to the fact that the respondent has relapsed into substance use on two occasions while on parole, he would do so again, unless he can demonstrate that he understands what it was that resulted in his previous relapses and has taken steps to mitigate that risk. There is no information before me to suggest that the respondent has provided any explanation for his relapse into illicit substance use. I appreciate that there may be a difficulty in that regard, in that the respondent has previously indicated an inability to recall his offending. He has spoken about blackouts, for instance, so it is not clear whether or not he would have an adequate memory to explain the circumstances in which he came to use substances. Nevertheless, there is no indication that he has provided an explanation.
Without some indication of the circumstances that resulted in the respondent returning to substance use previously, it is difficult to assess if the conditions of the interim supervision order relating to drug testing, breath testing and the requirement for counselling and matters of that kind, would provide an adequate measure of protection of the community. If the respondent were to relapse into drug use, there may always be the risk of an offence being committed by him before that drug use is detected.
The evidence in respect of the respondent's neuropsychological assessment, together with Ms Sweeney's most recent assessment in 2022, gives rise to real doubt as to whether the respondent will adequately comprehend, or even remember, his obligations under a supervision order, even with the assistance of his support worker, his Community Corrections Officer, any psychologist he may see for counselling and the police. In any event, I am not satisfied that the conditions of the proposed supervision order, as restrictive as they are, would adequately mitigate the risk of the respondent committing a sexual offence opportunistically, on impulse, to satisfy a sexual urge if he were to relapse into alcohol and drug use.
Having regard to the seriousness of the respondent's prior offending, particularly the last offence of which he was convicted, the violence that was involved in that offence and the trauma caused to the victim of that offence, the potential harm to the community would be significant if the respondent were to offend again. That is a matter that needs to be weighed in determining whether the conditions of the interim supervision order would, at this stage, provide sufficient protection against the putative risk that the respondent would commit a serious offence.
The other issue is the suitability of the accommodation that has been proposed in Yanchep. The respondent's counsel acknowledged that the concerns in respect of one of Mr F, are relevant, and that I must weigh whether the concerns that have been raised in relation to him are sufficient to render the premises an inappropriate residence for the respondent, given that otherwise the place has been determined to be suitable for GPS monitoring and there is a support person there. This needs to be considered against the background that the respondent was previously released on parole in very similar circumstances. There is nothing to indicate that there would be a change. Indeed, the information before the court is that, in essence, the respondent would be returning to the same home and living supports. As the applicant outlined in its submissions:[88]
On 20 March 2025, the Community Offender Monitoring Unit confirmed with the applicant that they had recently inquired in relation to the respondent's NDIS plan, which was due for reassessment on 20 March 2025. COMU advised that at this stage they had not received a copy of the new plan, but had received an email from the NDIA, which states, 'As there has been no evidence of significant functional change provided for Tyrone, I can confirm that his home and living supports will be continued as in his previous plan.'
[88] Applicant's Outline of Submissions for Preliminary Hearing dated 21 March 2025, par 81.
As I said above, although there is no indication whether Mr F has been involved in illicit drug use, in my view any potential antisocial influence is a risk factor for the respondent, having regard to the assessments that have previously been made about his vulnerability to being influenced to engage in antisocial behaviour, which is a risk factor for him committing serious offences via the pathway of returning to drug use.
Although there is no information as to when the last occasion was that the respondent returned a negative result (or indeed when the last test had occurred) before the respondent's breach on 12 March 2024, when he returned a positive urinalysis result for methylamphetamine and amphetamine, it is self-evident that, in order to have returned the positive result, the respondent had to have been in possession of methylamphetamine, and that would have required him to be in contact with persons who were in a position to provide him with those drugs. It necessarily follows that he had been associating with antisocial persons, which created the potential for him to relapse into drug use, elevating his risk of committing a serious offence. As I said earlier, there is no information from the respondent as to how that came about.
Without knowledge of the circumstances in which he came to use the drugs previously, I cannot be satisfied, at this time, that the conditions of the interim supervision order would provide adequate protection of the community, particularly when there is concern about the accommodation to which he would be released, in that there is a person there who has a criminal record and is currently on bail in respect of other criminal charges.
That conclusion is not intended to reflect upon the person or persons who would be providing support to the respondent, but it is obvious that the support that was provided to him in the same way previously was not sufficient to prevent him from relapsing. I appreciate that a significant part of the problem for the respondent is something for which he is not morally culpable, namely his FASD and the cognitive impairment that is associated with that, although that impairment might also be associated with other factors in his life, including his substance use. However, the most important consideration for me at this point in time is whether, between now and when the restriction order application comes to be determined, the community would be adequately protected against the respondent's putative risk, in circumstances where I consider that there is a reasonably strong case that the court would find that there is an unacceptable risk that the respondent would commit a serious offence, and that the level of the risk is such as to require the making of a restriction order.
In summary, while the court's capacity to make the relevant assessment in respect of the second factor identified in [96] above is limited in the absence of a risk assessment by a psychiatrist or psychologist at the stage of the preliminary hearing, the applicant's history of non-compliance with community-based orders, bail conditions, reporting conditions and, most recently, the conditions of his parole order, left me with significant doubt that he would adhere to the conditions of an interim supervision order. I was not satisfied at that stage that he would. Of particular concern was his ability to abstain from alcohol or illicit substance use. That ability is compromised by his cognitive impairments. Those impairments are also likely to impair his comprehension of, and his capacity to remember, the prohibitions and his obligations under a supervision order. Further, the respondent's capacity to adhere to the conditions of a supervision order would be significantly compromised at the proposed accommodation, for the reasons I have outlined above. I was not satisfied that the proposed accommodation was suitable to enable the conditions that could reasonably be imposed in an interim supervision order to provide adequate protection of the community against the respondent's putative risk of committing a serious offence.
Therefore, while I was mindful of the third factor referred to at [96] above, I was satisfied at the preliminary hearing that it was desirable (and, indeed, necessary) to make an interim detention order in respect of the respondent until the final determination of the restriction order application.
I determined that it was appropriate that the parties have liberty to apply generally. Counsel for the respondent indicated that an application might be made for orders to set aside the interim detention order and substitute an interim supervision order if suitable accommodation can be found. The State reserved its position on whether the availability of suitable accommodation will mean that a supervision order would provide adequate protection of the community, noting that the applicant might still contend that it would not, having regard to the evidence currently available. However, the State accepted that it was appropriate that the respondent have the opportunity to ask the court to revisit the matter, if the accommodation situation changes.
Orders
Accordingly, on 2 April 2025, I made the following orders:
(1)The hearing of the restriction order application pursuant to section 48 of the High Risk Serious Offenders Act 2020 be heard on 11 August 2025.
(2)The Respondent is to undergo examinations by two qualified experts, namely one psychiatrist, Dr Gosia Wojnarowska, and one psychologist, Dr Benjamin Bannister, for the purposes of preparing reports as required by sections 46(2)(a) and 74 of the High Risk Serious Offenders Act 2020 that are to be used on the hearing of the restriction order application.
(3)The experts named in order 2 are not to include in their reports information or opinions about the Respondent based on a communication with a third person unless details of that communication sufficient to identify the person with whom the communication was held, its date and a summary of its content are included in the expert's report.
(4)The reports of the experts are to be provided to the Applicant at least 42 days prior to the hearing of the restriction order application.
(5)Any report authored by the Department of Justice, including any Proposed Management Plan, is to be provided to the Applicant at least 35 days prior to the date of the hearing of the restriction order application.
(6)The experts named in order 2 liaise with the Department of Justice as to a Management Plan (if appropriate) for the respondent to be supervised in the community.
(7)Pursuant to section 122 of the Criminal Investigation Act 2006, the experts named in order 2 may be supplied with and may view any audio-visual recordings of interviews with the respondent, or transcripts of the same, for the purpose of preparing their reports.
(8)At the hearing of the restriction order application, the reports provided by the experts named in order 2 shall stand as the evidence in chief of the experts and no further evidence in chief may be adduced without the leave of the Court.
(9)The Respondent is to be detained in custody until the final determination of the application, pursuant to section 46(2)(c)(i) of the High Risk Serious Offenders Act 2020.
(10)There be liberty to the parties to apply generally.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JH
Associate to the Honourable Justice Fiannaca
4 AUGUST 2025
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