The State of Western Australia v White [No 8]
[2025] WASC 194
•26 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WHITE [No 8] [2025] WASC 194
CORAM: SEAWARD J
HEARD: 13 MAY 2025
DELIVERED : 26 MAY 2025
PUBLISHED : 26 MAY 2025
FILE NO/S: SO 4 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
STEPHEN NEIL WHITE
Respondent
Catchwords:
Criminal law - Contravention proceedings - Application made by the State under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) for an amended supervision order - Whether on the balance of probabilities the respondent has contravened a condition of the supervision order - Whether the supervision order should be rescinded, affirmed, amended or extended - Turns on own facts
Legislation:
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Result:
Interim detention order rescinded
Amended supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | D S McDonnell |
| Respondent | : | D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | David McKenzie Legal Pty Ltd |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v White [2013] WASC 417
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v CA [No 3] [2023] WASC 144
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Gorham [No 2] [2022] WASC 351
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Rao [2019] WASC 93
The State of Western Australia v White [No 7] [2023] WASC 432
The State of Western Australia v ZSJ [2020] WASC 330
SEAWARD J:
Introduction
These reasons concern contravention proceedings initiated by the State of Western Australia under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) in respect of the respondent, Stephen Neil White.
Mr White was born on 31 October 1965 and is now 59 years of age.
On 20 November 2013, Mr White was declared a Dangerous Sexual Offender (DSO) under the Dangerous Sexual Offenders Act 2006 (WA) (repealed) (DSO Act) and placed on a continuing detention order. The DSO Act was repealed and replaced by the HRSO Act in August 2020.
Since 2013, Mr White has been subject to a number of statutory reviews of that continuing detention order. As at the date of the present application, Mr White is subject to a three year supervision order under the HRSO Act, which commenced on 11 December 2023. The State alleges that, contrary to s 80(1) of the HRSO Act, Mr White has contravened the supervision order on three occasions.
An interim detention order was made by Lemonis J on 25 June 2024. At the conclusion of that hearing, it was ordered that Mr White be detained in custody until the final determination of the State's application, pursuant to s 56(2)(b) of the HRSO Act.
By way of summary, the State's position that the court ought be satisfied on the balance of probabilities that Mr White contravened a condition of the supervision order on each of the three alleged occasions. Further, the State submits that if the court is satisfied on the balance of probabilities that Mr White contravened a condition of the supervision order, it is then a matter for the court as to what order to make. However, in all of the circumstances of this case, the State submits that:
(1)should the court be satisfied, on the balance of probabilities, that Mr White will substantially comply with the standard conditions of the supervision order, the risk of Mr White committing a future serious offence can be managed in the community on an amended supervision order such that it ensures adequate protection of the community against that risk; and
(2)should a supervision order be made, the State seeks an order under s 55(1)(b) of the HRSO Act, to amend the conditions of the supervision order as proposed in the draft amended supervision order as filed by the State.
The issues for determination in this matter are:
(1)whether, on the balance of probabilities, Mr White has contravened the conditions of the supervision order as alleged; and
(2)if so, whether the supervision order should be rescinded and a continuing detention order made, or whether Mr White should be permitted to remain on the supervision order; and
(3)if Mr White is permitted to remain on the supervision order, whether that supervision order should be amended and/or extended.
For the reasons which now follow:
(1)I am satisfied on the balance of probabilities that Mr White has contravened the supervision order as alleged by the State;
(2)I consider the appropriate order to make as a consequence is to rescind the interim detention order and make an amended supervision order. In reaching this conclusion, I am satisfied on the balance of probabilities that Mr White will substantially comply with the standard conditions of the supervision order; and
(3)I consider that the conditions of the supervision order made on 13 November 2023 do require some amendments, and I will amend the conditions so that they read as set out in Annexure A to these reasons.
Background Facts
Mr White has significant cognitive impairments and has spent the majority of his adult life in custody. As such, he is a highly institutionalised individual. Mr White is also subject to a guardianship order made by the State Administrative Tribunal on 5 December 2023, appointing the Public Advocate as his plenary guardian and an administration order made on the same date appointing the Public Trustee as his plenary administrator. Both orders are to be reviewed by 5 December 2028.
On 20 November 2013, Mr White was placed on a continuing detention order by Jenkins J under the DSO Act.
There have been six statutory reviews of that continuing detention order since it was imposed. At the first five statutory reviews, the court found that Mr White remained a serious danger to the community and that the only order which was compatible with the protection of the community was to affirm the continuing detention order.
The most recent statutory review, being the sixth review, was conducted by Lundberg J. By reasons published on 13 November 2023, Lundberg J concluded that Mr White remained a high risk serious offender and it was necessary for a restriction order to be made pursuant to the HRSO Act. However, Lundberg J accepted the submission made by the State that in light of the availability of sufficient funding from the National Disability Insurance Agency (NDIA) through the National Disability Insurance Scheme (NDIS), and the availability of suitable accommodation, the appropriate restriction order was the imposition of a three year supervision order containing extensive and strict conditions. That supervision order commenced on 4 December 2023: The State of Western Australia v White[No 7] [2023] WASC 432 (Sixth Review Decision).
Mr White's criminal offending history
Mr White's background and history of serious offending was set out in the initial decision of Jenkins J in the original restriction order decision,[1] and are summarised in the reasons of Lundberg J in the Sixth Review Decision at [2] ‑ [10].
[1] Director of Public Prosecutions (WA) v White [2013] WASC 417.
Mr White committed a number of offences in South Australia and New South Wales involving violence or dishonesty as a teenager. He was convicted of his first sexual offence on 19 May 1983 in New South Wales when he was aged 17. The offence was one of indecent assault on a female under the age of 16 years. He was committed to an institution for 12 months.
On 17 July 1984, Mr White raped a 73‑year‑old woman in her home in South Australia. The woman was a stranger to him. He was briefly remanded in custody and then released on bail. Mr White was later convicted of this offence and was sentenced to 8 years' imprisonment with a non‑parole period of 5 years.
On 11 November 1984 (whilst on bail for the offence committed earlier that year), Mr White attempted to rape a 30‑year‑old woman in her home in South Australia. Again, the victim was a stranger to him. He used a knife to subdue her, assaulted her, and caught her when she attempted to escape. He later pleaded guilty to this offence and was sentenced to 4 years' imprisonment with a non‑parole period of 3 years.
On 30 January 1991, Mr White was released from prison on parole. He breached his parole by committing dishonesty offences in Victoria for which he was sentenced to 8 months' imprisonment and his parole was cancelled. After serving the prison sentence imposed in Victoria, Mr White was extradited to South Australia where he was returned to custody to complete the earlier sentences. On 15 May 1995, he was again released on parole in South Australia.
There is no record of offending between the end of 1995 and July 1999. At some time in that period Mr White travelled to Kununurra, Western Australia. On 22 July 1999, Mr White was refused entry to a hotel in Kununurra because of his state of intoxication. He became aggressive towards staff and produced a folding pocketknife. He was arrested and charged with threatening words or behaviour. On 30 July 1999, Mr White pleaded guilty to that offence and was fined.
On 31 March 2001, Mr White allegedly committed another offence of damaging property. He was bailed but did not appear in the Katherine court of summary jurisdiction on 19 April 2001 and a warrant was issued. Sometime after being bailed, he travelled back to Western Australia.
On 18 June 2001, Mr White befriended a woman in Kununurra, who was looking after seven children, including a young girl who was then 5 years of age. One night, whilst in a tent where the family was sleeping, Mr White grabbed the 5‑year‑old girl and tried to pull her away from the woman. He then hit the woman to the back of the head and arm. He was able to escape with the child who he took approximately 1 km away. When the child screamed or cried he hit the back of her skull with a rock. The blow caused a life‑threatening injury. Mr White also took a length of rope from his bag, wrapped it around the child's neck and tightened it intending to strangle her. She lost consciousness. Mr White then raped the child vaginally and anally. Sometime later he carried her into the local hospital. Mr White lied about how her injuries had been incurred. Whilst the child was being treated, he left the hospital. A short time later, Mr White was arrested and remanded in custody.
On 2 October 2001, Mr White pleaded guilty to unlawful wounding, attempted murder and two counts of sexual penetration of a child under the age of 13 years. On 31 October 2001, he was sentenced to a total sentence of 13 years' imprisonment with eligibility for parole, which was increased to 17 years' imprisonment on appeal.
On 6 June 2002, Mr White pleaded guilty to the assault occasioning bodily harm on the woman who had care of the 5‑year‑old child. He was sentenced to 16 months' imprisonment to be served cumulatively on the 17 years that had already been imposed.
Evidence adduced at the Contravention Hearing
Book of materials
At the hearing of this application, I received into evidence a book of materials in two volumes tendered by the State.[2]
[2] The various documents contained in the book being admissible pursuant to s 84(5) of the HRSO Act.
The first volume (Exhibit 1) was dated 10 December 2024, and contained a variety documents including the State's application; documents concerning Mr White's criminal history and prison records; documents from the Department of Justice relating to Mr White's medical records and medical history; Mr White's NDIS Plan Approval; documents regarding Mr White's guardianship and administration orders; documents regarding Mr White's alleged contravention of the terms of the supervision order; and a number of historical assessment reports as well as the Sixth Review Decision.
The second volume (Exhibit 2) was dated 8 May 2025, and contained an updated criminal record; particulars of the contravention allegations and the following assessment reports and a letter relied upon for the purposes of the contravention hearing:
(1)the letter in lieu of the HRSO Treatment Progress by Dr Sarah Barbas, dated 13 January 2025;[3]
(2)the psychiatric report of Dr Gosia Wojnarowska, dated 27 January 2025;[4] and
(3)the performance report of Ms Jennine Merigan, dated 7 May 2025.[5]
[3] Exhibit 2.35.
[4] Exhibit 2.36.
[5] Exhibit 2.37.
The report Dr Wojnarowska was prepared pursuant to s 74 of the HRSO Act and in accordance with s 46(2)(a) of the HRSO Act.
The State also filed a draft supervision order with amended conditions, in the event that the court were to form the view that Mr White should be released on a supervision order.
Mr White did not lead any evidence.
Witnesses
At the contravention hearing, the State called three witnesses, being Dr Wojnarowska, Dr Barbas and Ms Merigan. The reports prepared by each witness were contained in the book of materials.
For Dr Barbas, as there was no examination in chief proposed beyond her letter which outlined the reasons why the Treatment Progress Report cannot be prepared for Mr White, and no cross‑examination proposed, I did not require Dr Barbas to give oral evidence.
Each of Dr Wojnarowska and Ms Merigan gave evidence explaining their respective conclusions and were subject to cross‑examination.
Dr Wojnarowska provided her report pursuant to an order made by Lemonis J that Mr White undergo an examination by a qualified expert, namely Dr Wojnarowska, for the purposes of preparing a report as required by s 74 of the HRSO Act. Dr Wojnarowska is medical practitioner with a specialty in psychiatry with a sub‑specialty in forensic and child and adolescent psychiatry. Dr Wojnarowska has over 15 years' experience in forensic psychiatry, with training in the use of specialised risk assessment tools and psychological tests relevant to the field of forensic and child adolescent psychiatry and sexual offenders. I am satisfied that Dr Wojnarowska is a suitable qualified expert.
Mr White did not call any witnesses.
Mr White
Mr White attended at the commencement of the hearing via video‑link. At the outset of the hearing, Mr White indicated a desire not to continue attending, indicating at times that he was tired and did not wish to sit through the hearing, and that he was happy to simply stay in prison.
Initially, I requested Mr White remain on the video‑link to watch the proceedings. However, as the hearing continued, Mr White had difficulty paying attention to the proceedings and was tired and was having difficulty remaining awake. Accordingly, when Mr White requested for a second time to be excused so that he could go and sleep (and there being no objection from either counsel) I excused Mr White from further attendance at the hearing. I was satisfied in all the circumstances that Mr White's difficulty in maintaining attention and following the proceedings was consistent with the evidence before the court regarding his diagnosis and IQ. I was also satisfied that Mr White's interests would be appropriately advanced during the hearing by his counsel.
Statutory framework and legal principles
The objects of the HRSO Act are:[6]
(1)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(2)to provide for continuing control, care or treatment of high risk serious offenders.
[6] HRSO Act s 8.
The jurisprudence established in respect of the DSO Act is relevant in construing and applying the HRSO Act, with necessary adaptation.[7]
[7] The State of Western Australia v ZSJ [2020] WASC 330 [31].
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[8]
[8] Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1 [55] - [56].
If an offender is charged with an offence under s 80(1) of the HRSO Act, s 53 provides that the State may make an application for an order under s 55 of the HRSO Act.
On such an application, if the court is satisfied on the balance of probabilities that the offender has contravened, is contravening, or is likely to contravene a condition of a supervision order, the court must rescind the supervision order and make a continuing detention order or, subject to s 29 of the HRSO Act, release the offender on the supervision order. In the latter case, the supervision order may be amended and, in some cases, extended.[9]
[9] HRSO Act s 55.
In an application under s 55 of the HRSO Act, it is to be assumed that the offender remains a high risk serious offender and the court is not required to make that determination again.[10]
[10] The State of Western Australia v CA [No 3] [2023] WASC 144 [28].
In deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community.[11] The court should, however, choose the order which is the least invasive or destructive of the offender's right to be at liberty.[12] The use of the word 'adequate' indicates that a qualitative assessment is required.[13]
[11] HRSO Act s 55(3).
[12] The State of Western Australia v Latimer [2006] WASC 235 [49].
[13] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], approved in The State of Western Australia v Rao [2019] WASC 93 [25], and The State of Western Australia v Garlett [2021] WASC 387 [142].
A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[14] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[15]
[14] HRSO Act s 3, s 26(1).
[15] HRSO Act s 3, s 27(1).
The court cannot release an offender on a supervision order unless satisfied, on the balance of probabilities, that an offender will substantially comply with the standard conditions of the order, the onus of establishing this lies with the offender.[16]
[16] HRSO Act s 29, s 55.
The standard conditions of a supervision order are set out in s 30 of the HRSO Act and include the requirement that the offender be under the supervision of a Community Corrections Officers and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32) and not commit a serious offence during the period of the order.[17]
[17] HRSO Act s 30(2)(f).
In Director of Public Prosecutions for Western Australia v Hart,[18] Fiannaca J observed that, in determining whether an offender 'will substantially comply with the standard conditions of the order':
[t]he court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious … offence.
[18] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52(6)].
Even if the court is satisfied that the offender will substantially comply with the standard conditions of a supervision order, the court must not release the offender unless satisfied that a supervision order will ensure an adequate degree of protection to the community.[19] When considering whether a supervision order would adequately protect the community, it is necessary to take into account any condition which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. As was observed by Hall J (as his Honour then was) in Director of Public Prosecutions (WA) v Griffiths,[20] there is no requirement under the HRSO Act that:
there be no risk of re-offending. Such a requirement could never be met and the effect would be that no person to whom the Act applies would ever be released. The requirement is that any risk be reduced to a reasonably acceptable level. This will always require a careful weighing of the nature and degree of risk and the context of methods for the management and reduction of that risk.
[19] The State of Western Australia v ACJ [2021] WASC 219 [38].
[20] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].
In The State of Western Australia v Gorham [No 2],[21] Archer J (as her Honour then was) articulated the following nine factors that were, in effect, identified by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[22] as relevant to the assessment of whether a respondent will substantially comply with the standard conditions (the State further noting that Fiannaca J had also indicated that such factors would include the respondent's history of compliance and non‑compliance):
[21] The State of Western Australia v Gorham [No 2] [2022] WASC 351 [34].
[22] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4.
(1)the respondent's attitude to the conditions of the supervision (in particular whether the respondent is likely to deliberately flout the conditions);
(2)the respondent's capacity to comply with the conditions;
(3)what measures there are in place to ensure that the respondent would substantially comply;
(4)the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act;
(5)the respondent's motivation to remain offence free and in the community;
(6)any willing participation in a sex offender treatment program;
(7)abstinence from drugs;
(8)conduct while in prison; and
(9)demonstrated gains in treatment, self-management and life skills.
Issue 1 - has Mr White contravened the supervision order as alleged?
The State alleges that since his release into the community on 11 December 2023, Mr White has contravened a condition of the supervision order on three occasions. The three alleged contraventions have been particularised by the State as follows:[23]
[23] Exhibit 2.32.
(1)Contravention 1 (PE 12376/2024): Condition 29 of the Supervision Order provides that Mr White:
Be subject to a curfew pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
On 25 February 2024, Mr White departed from his house without authorisation for a period of five to seven minutes after his curfew at 7:00 pm.
(2)Contravention 2 (PE 33062/2024): Condition 28 of the supervision order provides that the respondent:
Must not assault, threaten or abuse any member of the departmental staff or an agent providing a service on behalf of the Department of Justice.
On 8 June 2024, Mr White armed himself with a knife, in company with his support worker, after doing damage to his house and to the property of Hope Circle. Mr White pointed the knife in the direction of his support worker and advanced towards him.
(3)Contravention 3 (PE 33061/2024): Condition 23 of the supervision order provides that the respondent:
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments.
On 2 July 2024, Mr White was convicted of being armed with a dangerous weapon in circumstances likely to cause fear to any person under s 68(1) of the Criminal Code sentenced to a term of 4 months' imprisonment.
The State has lead evidence that Mr White was charged with three breaches of s 80(1) of the HRSO Act, consistent with each of the above alleged breaches, to which he then pleaded guilty and has been sentenced. I have been provided in volume 1 of the book of materials with certified copies of each of the respective prosecution notices;[24] the statements of material facts; and the sentencing transcript in relation to each alleged contravention. I have also been provided with an updated copy of Mr White's criminal record and I have a copy of the supervision order made on 13 November 2023.
[24] Certified pursuant to s 80(c) of the Evidence Act 1906 (WA).
These documents reveal that in relation to contravention 1, Mr White was charged with a breach of s 80(1) of the HRSO Act; Mr White pleaded guilty to the charge on 24 July 2024; and Mr White was sentenced to a fine of $700 in relation to the charge on 24 July 2024.
In relation to contraventions 2 and 3 (which arise out of the same facts), the documents reveal that Mr White was charged with two breaches of s 80(1) of the HRSO Act and as well as two additional charges, being (1) armed with a dangerous weapon (a knife) in circumstances that were likely to cause fear contrary to s 68(1) of the Criminal Code and (2) criminal damage contrary to s 444(1)(b)(A) of the Criminal Code. Mr White pleaded guilty to all charges on 2 July 2024 and Mr White was sentenced to a term of imprisonment of 1 month for each breach of s 80(1) of the HRSO Act. These terms were ordered to be served concurrently with the sentences for the remaining two offences, which were a term of imprisonment of 4 months (for the offence of being armed in a way that may cause fear) and a term of imprisonment of 3 months (for the criminal damage offence). Each of these two terms of imprisonment were ordered to be served cumulatively on each other. The total sentence imposed on 2 July 2024 was therefore a term of imprisonment of 7 months.
In light of the above evidence, I am satisfied on the balance of probabilities that Mr White has contravened the conditions of the supervision order made on 13 November 2023, in the manner alleged by the State. Counsel for Mr White conceded that the contraventions had been established by the State.
Issue 2 - should the supervision order be rescinded, affirmed, amended or extended?
Given that I have found that Mr White has contravened the conditions of his supervision order as alleged by the State, the second question for my determination is whether the supervision order should be rescinded and a continuing detention order made, or whether Mr White should be permitted to remain on a supervision order.
I am required to make an order which is the least invasive, while still protecting the community adequately from the unacceptable risk Mr White were to pose if he were not under restriction.
In determining this question, the paramount consideration is the need to ensure the adequate protection of the community. Moreover, I can only make an order permitting Mr White to remain on the supervision order (or an amended supervision order) if I am satisfied on the balance of probabilities that he will substantially comply with the standard conditions of the order. The onus lies on Mr White to satisfied me of this.
The State submits that the risk that Mr White will commit a serious sexual offence is able to be managed within the community subject to some amendments to the supervision order. The State does not submit that a continuing detention order should be made. However, ultimately, the responsibility for determining what order should be made is a question for the judge alone.[25] I have therefore set out the evidence before me relevant to this issue.
Evidence
[25] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [62].
The evidence which is relevant to this issue includes the previous assessment reports contained in volume 1 of the book of materials; the new reports and oral evidence lead by the State at the contravention hearing; and information regarding Mr White's NDIS plan. I have summarised each below.
Previous assessment reports
Volume 1 of the book of materials contains the following assessment reports:
(a)psychiatric report of Dr Gosia Wojnarowska, dated 29 April 2021;[26]
(b)psychiatric report of Dr Gosia Wojnarowska, dated 15 August 2023;[27]
(c)community supervision assessment report of Ms Julie Dabala, dated 25 August 2023.[28]
[26] Exhibit 1.28.
[27] Exhibit 1.29.
[28] Exhibit 1.30.
Each of these reports were summarised by Lundberg J in the Sixth Review Decision and I have not repeated that summary in detail in these reasons, in light of the updated assessment reports.
However, of significance was the evidence of Dr Wojnarowska that Mr White has a history of psychotic illness which has attracted various diagnoses including schizophrenia. Mr White had also been diagnosed with an intellectual disability and had been registered with the NDIS. Mr White had been fully compliant with his treatment with antipsychotic depot injections and it is apparent that his illness had been in remission for at least eight years.
Dr Wojnarowska explained in her reports the details of the occupational therapy functional assessment conducted in 2021 which indicated that Mr White has:
[a] history of schizophrenia, an intellectual disability, and an acquired brain injury. He has significant impairments relating to his cognitive skills including attention, executive skills, judgment, insight, future planning, self-evaluation, memory, and communication/interaction skills that result in occupational performance deficits and heightened vulnerability to safety issues.
As an overarching observation, Dr Wojnarowska indicated that it was evident that Mr White's ability to think logically and to consistently follow certain themes was significantly impaired, which was consistent with his intellectual disability and his IQ of 62.
Dr Wojnarowska concluded that on the basis of her assessment of Mr White, using standard diagnostic tools,[29] and having regard to his medical and psychiatric history, that Mr White was at a high risk of serious sexual offending if he was not subject to a restriction order under the HRSO Act. Dr Wojnarowska's opinion was that Mr White's primary risk for sexual offending would be both predatory and opportunistic towards predominantly vulnerable females of various ages. Dr Wojnarowska concluded that the potential harm which would result from any such offending would be potentially life threatening or having an equally serious long term sequelae for the victim.
[29] Being the Static-99 assessment; the Hare Psychopathy Checklist-Revised (PCL-R); and the Assessment of Risk and Manageability for Individuals with Development and Intellectual Limitations who Offend Sexually (ARMIDILO-S).
Dr Wojnarowska also made several recommendations in relation to Mr White, which included:
(a)Mr White should commence psychological counselling;
(b)Mr White would require indefinite treatment with antipsychotic medications and a referral to the State Forensic Community Mental Health Service for active management; that he should continue with antidepressant medications;
(c)Mr White should receive 24‑hour support if released into the community from his NDIS support worker;
(d)Mr White's support worker should have a direct line of communication to Community Offender Monitoring Unit (COMU) and WA Police; and
(e)if Mr White were to commence employment, it should be highly structured and supervised.
I have summarised the relevant aspects of Ms Dabala's report later in these reasons in the context of outlining the position in relation to Mr White's NDIS funding.
Updated report of Dr Wojnarowska, dated 27 January 2025
On 25 June 2024, Mr White was ordered to undergo an examination by a qualified expert, namely Dr Wojnarowska, for the purposes of preparing a report as required by s 74 of the HRSO Act to be used at the hearing of the contravention application. The order requested Dr Wojnarowska to include specific opinions on the following matters:
(1)the factors which have contributed to Mr White having difficulty adjusting to living in the community; and
(2)how those factors might be effectively managed in the community.
Dr Wojnarowska also gave oral evidence during the hearing, and expanded on, or explained, aspects of her report in evidence in chief, and was cross‑examined.
In her report,[30] Dr Wojnarowska provided a summary of Mr White's history of sexual offending; his contraventions of the supervision order; his behaviour in prison since he was remanded in custody; and his past medical and psychiatric history. It is not necessary to summarise this information.
Interview with Mr White
[30] Exhibit 2.36.
Dr Wojnarowska's most recent assessment of Mr White followed an interview with Mr White at Acacia Prison on 21 January 2025.
Mr White presented as an unkempt man who appeared mildly anxious, but engaged well with the interview. Mr White's affect was blunted and restricted. Dr Wojnarowska recorded that it was evident that Mr White's ability to think logically and consistently follow certain themes was significantly impaired, consistent with his intellectual disability and IQ of 62.
Mr White's speech was indistinct at times and consisted of short sentences with limited content. There was no evidence of formal thought disorder. Mr White had difficulty with maintaining focus and was easily distracted.
At the interview, Mr White reported to Dr Wojnarowska that he continued to be compliant with his injectable antipsychotic medications in prison and has not experienced any psychotic symptoms. Mr White denied being involved in any prison incidents since his return to prison. Mr White denied experiencing any cravings for alcohol or substances and when questioned about his sexual interest he denied having any.
Mr White did not discuss with Dr Wojnarowska any of his contraventions of the supervision order, claiming that he could not remember what occurred. Dr Wojnarowska opined that that it is possible that his intellectual disability had affected his memory of these events. When questioned again about his aggression towards staff at his accommodation Mr White said he had no intention to harm anyone and would not do it ever again.
When Mr White was questioned about his understanding of the conditions of the supervision order should he be released, he said that he was aware of them and quoted curfew, not frequenting licensed premises, not drinking or using other drugs, not viewing pornography, and meetings with his Community Corrections Officers. Dr Wojnarowska reported that Mr White was agreeable to all the conditions and felt that being subject to the conditions would be very useful for him, and he was happy to continue his medications in the community.
Dr Wojnarowska reported that Mr White was adamant that he will not re‑offend in the future, stating that he is now 'too old'. Dr Wojnarowska reported that Mr White appeared to have realistic expectations about his future life, stating that he would keep to himself and do some cleaning and gardening.
As explained by Dr Wojnarowska in her oral evidence, her assessment is based on Mr White's presentation during the interview, plus the other materials Dr Wojnarowska was provided with. Dr Wojnarowska explained that she would expect Mr White's mood and mental health to fluctuate.
Psychiatric diagnosis
Dr Wojnarowska outlined that Mr White has a confirmed diagnosis of Psychotic Disorder Not Otherwise Specified - and is in full remission. Mr White remains fully compliant with his medications and his symptoms have been well managed over the years.
In addition, Mr White fulfills the criteria for Cognitive Impairment, mild with executive dysfunction (frontal lobe impairment); Antisocial Personality Disorder; and Drug and Alcohol Use Disorder (currently in remission).
Risk Assessment
Dr Wojnarowska conducted an updated risk assessment of Mr White, using the same diagnostic tools as used during her 2023 assessment: the Static‑99R; the Hare Psychopathy Checklist-Revised (PCL-R); and the Assessment of Risk and Manageability for Individuals with Development and Intellectual Limitations who Offend Sexually (ARMIDILO-S). The same tools were used as part of Dr Wojnarowska's assessment of the respondent in 2023, and the tools were described in the Sixth Review Decision at [121] ‑ [123].
It is not necessary for the purposes of the present application to set out Dr Wojnarowska assessment utilising each of these diagnostic tools in detail.
It is sufficient to record that Dr Wojnarowska assessed Mr White's Static‑99R and PCL‑R scores were unchanged, in that:
(a)Mr White's Static-99R score of 8, meant that Mr White remained in level IVb, or the well-above average risk range; and
(b)Mr White's PCL-R score of 17, was 8 points below the threshold of a psychopathy diagnosis under the PCL-R.
In her updated report, Dr Wojnarowska provided more extensive comment in respect of Mr White's results using the ARMIDILO‑S framework. The ARMIDILO‑S is a comprehensive risk review and community management instrument designed for use with adults with cognitive impairment. It is designed to assist in the identification and management of risk for sexually inappropriate behaviour for males ages 18 and older who have (relevantly) an IQ score of below 70. Dr Wojnarowska assessed Mr White's stable client items and acute client items. Of particular relevance are the following:
(a)Mr White's supervision compliance, which includes a history of non‑compliance with parole and bail conditions. However, Mr White now declares his preparedness to be compliant with any orders that the court may impose on him and has generally been compliant with prison rules. Whilst Mr White contravened the supervision order, Mr White advised Dr Wojnarowska that he does not want to return to prison again, and will not engage in any aggressive behaviour;
(b)Mr White's treatment compliance, where Mr White is compliant with medication treatment, but due to his intellectual disability his capacity to benefit from psychological treatment is limited;
(c)No evidence of sexual deviance;
(d)Mr White's emotional coping ability, where over the years Mr White has developed some skill in emotional regulation. He appears less emotionally labile, has no recent incidents in prison and is able to verbalise how to deal with stressful situations;
(e)Mr White's impulsivity, caused by his frontal lobe dysfunction, will always be highly relevant in management of him and is best mitigated by the presence of support workers;
(f)Mr White's substance abuse history, which appears to be in remission and can be mitigated by conditions and 24‑hour support;
(g)Mr White's mental health, which is currently stable by as there is a risk of him ceasing the use of his medication in the community, will require management and follow‑up by mental health services; and
(h)Mr White does not have any social supports in the community. Mr White has a strong drive to engage in meaningful activities such as cleaning and gardening and responds well to validation of his efforts. However, there being no other protective factors, and given his many cognitive and emotional deficits, Dr Wojnarowska concludes that Mr White will face many challenges if released.
Dr Wojnarowska concluded that whilst Mr White has made some progress in terms of his emotional self‑management, compliance with treatment and insight into that treatment, Mr White remains at a high risk of serious sexual re‑offending if he is not subject to a restriction order under the HRSO Act.
Dr Wojnarowska concluded as follows in relation to the most likely risk scenario and harm to the victim:
Mr White's primary risk for sexual offending would be both predatory and opportunistic towards predominantly vulnerable females of various ages. There would not be much planning or grooming involved; he is likely to be intoxicated and angry, following an argument with someone, not necessarily a potential victim. The victim may be a stranger that he encountered on the street, in a park or any other public place. Equally possible would be [the respondent] offending against a vulnerable female that is known to him either through family connections or being an acquaintance. The vulnerability could pertain to victim's age (very young or old), or their physical or mental frailty. His anger, lack of ability to empathise and the presence of disinhibiting factors such as drugs/alcohol would be a driving force in his offending.
Harm to the victim may potentially be life threatening or have an equally serious long term sequelae. Warning signs of re-offending would include his relapse into alcohol and cannabis use and disengagement from his therapists and supervising agencies.
In her oral evidence, Dr Wojnarowska expressed the opinion that the risk that Mr White would commit a serious sexual offence could be managed if Mr White was released on a supervision order with the proposed draft conditions as filed by the State. In reaching this conclusion, Dr Wojnarowska explained that Mr White would always require a support worker to be with him, 24 hours a day, and her conclusion was proceeding on the basis that Mr White would have such support. If Mr White did have support workers 24 hours a day, Dr Wojnarowska considered that the risk of Mr White re‑offending could be managed in the community. Dr Wojnarowska's oral evidence was that she had read the updated performance report of Ms Merigan and the updated NDIS information in reaching this conclusion.[31]
Other recommendations or evidence
[31] ts 465.
Dr Wojnarowska recommended that if Mr White was placed on a supervision order, that he should again be referred to the Community Forensic Mental Health Service for management and treatment of his mental illness.
Dr Wojnarowska did not consider that any further individual psychological treatment was indicated due to Mr White's limited cognitive capacity associated with poor memory and insight. Rather, Dr Wojnarowska recommended that resources be directed at supervising and supporting Mr White's integration to the community. Dr Wojnarowska clarified that this was the counselling referred to in [85] of her updated assessment report. Dr Wojnarowska agreed that Mr White may obtain some assistance from counselling to assist him to manage his anger and day‑to‑day activities (as opposed to gaining greater insight into his offending).
Dr Wojnarowska also observed that Mr White requires indefinite treatment with antipsychotic medications and should continue with antidepressant medications. These already assist with Mr White's irritability and anger dyscontrol and have improved Mr White's ability to sustain focus and process information. Dr Wojnarowska that Mr White be referred to an appropriate team to ensure this occurs.
Dr Wojnarowska recommended that Mr White have 24‑hour community support if released on a supervision order. Dr Wojnarowska understood that the NDIS funding would provide 24‑hour support, but not supervision, and as such it was crucial that Mr White's support staff have a direct line of communication to COMU and WA Police, and be appropriately trained.
Dr Wojnarowska also gave oral evidence that she had reviewed the desk top assessment of the accommodation proposed for Mr White, and considered it to be suitable and typical accommodation and did not identify any 'red flags' with the proposed accommodation.
In considering employment, Dr Wojnarowska observed that Mr White requires a highly structured and supervised type of employment and would benefit from engagement in manual work such as gardening and cleaning.
Report of Dr Barbas, dated 13 January 2025
Volume 2 of the book of materials include a letter dated 13 January 2025 completed by Dr Barbas, a senior clinical and forensic psychologist employed by the Department of Justice, within the Forensic Psychological Assessment Team.
Dr Barbas informed the court that the requested Treatment Progress Report in relation to Mr White was unable to be provided as Mr White has not participated in any treatment intervention or program since 2021.
Dr Barbas explained that Mr White was referred to the Forensic Psychological Intervention Team on 18 June 2024 (following his release on a supervision order on 11 December 2023) for the provision of psychological intervention following concerns that were raised by the risk management team whilst Mr White was residing in the community. That referral was declined because:
Mr White had previous been provided significant individual psychological intervention, as well as group treatment programs, and his involvement in further insight-orientated treatment was unlikely to be of benefit to him due to his cognitive limitations and other prevailing responsivity issues.
Dr Barbas outlined that Mr White has not participated in any treatment intervention or program since 2021 and has consistently been deemed unsuitable for further intervention due to treatment saturation, the unlikelihood of Mr White making further treatment gains and because he has consistently struggled to accept full responsibility for his offending behaviour.
Dr Barbas' report states that should Mr White be re‑released into the community, a referral can be submitted for time limited intervention aimed at assisting him with reintegration into the community. However:
[a]ny gains made are likely to remain incremental in the context of his previous response to treatment and treatment saturation. Multiagency support, including National Disability Insurance Scheme (NDIS), continues to be the most suitable approach to assisting Mr White's psychosocial and behavioural management.
Performance Report, dated 7 May 2025
An adult community corrections performance report was prepared by Ms Merigan, a Senior Community Corrections Officer within the COMU of the Department of Justice, and was endorsed by Aimee Goode, a team leader within the COMU, and Jazmyn Tobin, the Acting Director of the COMU.
Updates since the interim detention order imposed
Ms Merigan recorded several incidents and occurrences (noting not all are negative or punishable) which had occurred while Mr White has been in custody. These include multiple circumstances of threatening to complete suicide or self‑harm or raising issues of anxiety. Mr White has one formal charge arising out of Mr White being verbally abusive to staff and throwing a plastic cup against the wall following a request that he be given prison employment, which was not able to be actioned at the time.
Mr White moved from Hakea prison to Acacia Prison on 11 December 2024. Mr White was subject to one urinalysis test in November 2024 which returned a negative result. Mr White was denied parole in July 2024, at his own request.
Proposed community supervision plan
Ms Merigan has been working with Mr White since March 2024, both in the community and whilst he has been in custody.
Ms Merigan reported that Mr White initially expressed a desire to remain within the custodial setting as this is an environment which is structured and comfortable for him and this was aligning with his institutionalisation. However, during recent visits Mr White has initiated conversations that he may consider release into the community if an alternative NDIS support provider is identified. Mr White expressed a preference for support staff who are 'more mature in mind'.
Ms Merigan recorded Mr White verbalised a desire to return to the community, to 'do the right thing' and not re‑offend. However, Ms Merigan is unable to predict with any confidence Mr White's ability to demonstrate this upon release.
Mr White's new positive behaviour support clinician is Mr H, who has met with Mr White on several occasions and appears to have built a good rapport with Mr White.
Hope Circle Disability Services is no longer engaged to provide Mr White's supported independent living program which Mr White remains funded for under the NDIS funding. Mr White's guardian has now engaged a new service provider to provide that service. That service remains providing one‑to‑one 24‑hour, seven days per week, independent living support for Mr White. There are three shifts proposed per day, being 8:00 am to 4:00 pm, 4:00 pm to 10:00 pm and then 10:00 pm to 8:00 am. The shift worker on the night shift is an active shift worker (that is, they do not sleep).
In terms of accommodation, the service provider has agreed to lease a unit to Mr White. The unit is one of four adjacent units owned by the service provider and is called their 'male hub'. Another declared HRSO individual subject to a supervision order lives in the male hub and two other offenders are known to reside in the middle units. Ms Merigan's oral evidence was that the proposed accommodation was suitable.
It is proposed that Mr White will use his Centrelink payments to pay the rent and utilities, as accommodation is not funded by the NDIS. The unit is currently being held for Mr White on an interim basis pending the determination of this application. Ms Merigan clarified that she has been informed that the accommodation can be held for a period of approximately one further month only for Mr White.
With regard to longer term accommodation, Mr White remains on the waitlist for the Community Disability Housing Program via the Department of Communities and cannot be offered a property unless he is already in the community.
The service provider has confirmed that they have a team of support workers who would be available to commence working with Mr White immediately if he is released. Training of over 12 workers occurred in the last week of April 2025 and all support workers are male.
A Behaviour Support Plan for Mr White has been completed including proposed modifications to the unit and other safety planning and protocols have been discussed and Ms Merigan gave some examples of these in her oral evidence.[32]
[32] ts 473 - 475.
Mr White will be referred to the Community Mental Health Service who will manage his medication and mental health treatment. Ms Merigan's evidence is that the Community Forensic Mental Health Service will meet with Mr White weekly and will also receive a handover from the prison mental health services.
A suitable occupational therapist for Mr White has not yet been identified, due to the difficulty in identifying a male occupational therapist. Dr Wojnarowska has been consulted as to engaging a female occupational therapist. Dr Wojnarowska gave evidence that whilst a male occupational therapist should be preferred, if one is unable to be located, a female occupational therapist could be engaged, subject to safety protocols. Dr Wojnarowska recommended that these protocols include the occupational therapist not being alone with Mr White and always carrying a personal alarm.
Ms Merigan notes that the conditions contained in the previous supervision orders align with the behaviours previously identified by Dr Wojnarowska that will requirement management in the community. Ms Merigan observes that Dr Wojnarowska has not identified any new behaviours to be managed in her January 2025 report.
Ms Merigan does however identify a number of more minor proposed amendments to the current supervision order conditions in the event that Mr White is released on a supervision order. These are discussed later in these reasons. Simplification of the drafting of the conditions was also considered by Dr Wojnarowska and Ms Merigan. However, each formed the view that Mr White has a good level of literacy and did not have any impediments to understanding the order and the meaning of the specific conditions.
Mr White's NDIS funding and plan
At the sixth review hearing before Lundberg J, significant evidence was lead in relation to Mr White's NDIS funding and the proposed plan. By way of summary, Ms Dabala, a Senior Community Corrections Officer, provided the court with evidence as to the proposed community supervision plan which would be put in place in the event that Mr White was released on a supervision order. That plan included the supports to be provided through the NDIS. The details of the then approved plan and funding are contained in [134] ‑ [136] of the Sixth Review Decision.
The amount and components of the then proposed funding are contained in the following table found at [135] of the Sixth Review Decision:
No.
Description
Amount of Funding
1
Supported Independent Living (SIL)
$668,906.66
2
SIL - Unexpected or unplanned situations
$17,273.02
3
Social and civic participation
$62,974.76
Total Core Supports
$749,153.76
4
Capacity Building Supports
$58,035.78
Total NDIS Funding
$807,189.54
Ms Dabala's evidence was that Mr White had been granted NDIS funding which would provide for supported independent living for Mr White on a 24‑hour a day, seven day a week support basis (with male carers only), initially for the first six months of his release with ongoing assessment of his support needs thereafter. The support and accommodation was to be provided by Hope Circle Disability Services and would include the support of an occupational therapist and a behavioural support practitioner. Suitable accommodation had been identified.
Ms Goode, Team Leader, COMU was called to give oral evidence at the sixth review hearing as to the varying nature of Mr White's NDIS plan, in light of the fact that the evidence before Lundberg J was that the approved funding from the NDIS was only for a 12 month period. In her evidence then, Ms Goode indicated that there was no guarantee that the then present level of approved funding would be continued under the NDIS in the following year or in later years. Ms Goode's evidence was that the NDIA would undertake a reassessment of the funding each year. The team at COMU would be given notice by the NDIA before any change in funding was implemented and would be afforded an opportunity to make submissions to the NDIA regarding future funding for Mr White. The final determination would typically be made around six to eight weeks before the end of the current plan. Ms Goode's evidence was that in the event that NDIS funding was not sufficient to continue the accommodation option which had been identified, she was hopeful that COMU would be able to identify alternative accommodation options for Mr White, and that he would be prioritised over others as he has been identified as a 'priority 1'.
Additional post hearing evidence regarding the NDIS funding was admitted by Lundberg J in the form of an email as to a number of representations made by the NDIA to COMU regarding Mr White, including that Mr White's supported independent living funding package did not have an end date, and would only be reviewed by the NDIA in the event they receive evidence Mr White has made a significant improvement or a decline that cannot be managed under the existing funding package. Further, as at the time of the sixth review hearing, Mr White's NDIS plan expired on 5 June 2024, and it would be reviewed and updated prior to that date to ensure there were continuous supports for Mr White.
Ms Merigan provided updated information regarding Mr White's NDIS funding at the contravention hearing.
In her report, Ms Merigan outlined that Mr White's current NDIS funding plan is in place from 5 September 2024 to 5 September 2025. Adopting the same table format at Lundberg J, the current funding consists of the following components:
No.
Description
Amount of Funding
1
Supported Independent Living (SIL)
$746,233.92
2
SIL - Unexpected or unplanned situations
$18,777.80
3
Social and civic participation
$68,412.24
Total Core Supports
$814,646.26
4
Capacity Building Supports
$45,407.76
Total NDIS Funding
$860,054.02
Broadly, the funding remains similar to the package that was approved at the time of the Sixth Review Decision, albeit there has been an increase in core support funding from $749,153.76 to $814,646.26.
The supported independent living component remains for 24‑hour, seven days per week one‑to‑one support. An application to increase that funding to permit two‑to‑one support has been made, but an assessment and decision not yet finalised by the NDIA. Core support does not include accommodation, rent, utilities consumables or transport. These will be met from Mr White's Centrelink payments.
There has been a slight decrease in non-core support funding, from $58,035.78 to $45,407.76. This funding is further broken down into $15,874.32 for behaviour support, including behaviour management strategies to reduce behaviours of concerns; $12,415.32 for occupational therapist or speech pathologist; and $17,118.12 for support coordination and psychosocial recovery coach. Ms Merigan was not aware of why this amount had reduced, but did not have any concerns about the amount of funding for Mr White's non‑core supports.
The total NDIS funding has increased from $807,189.54 in 2023, to $860,054.02 in the current package.
The State submitted that the position in relation to the upcoming review of the existing NDIS funding package remains the same as explained to Lundberg J in 2023.
In the event that the NDIS funding were to be cancelled or not reviewed in its entirety, or in a manner sufficient to have a significant impact upon Mr White's support in the community and his ability to continue to comply with his conditions (especially the accommodation or the requirement not to commit a serious offence), the State submitted that it would be open for the State to bring an application under s 53 of the HRSO Act (presumably following the issuing of a warrant under s 51 of the HRSO Act) on the basis that Mr White was likely to contravene a condition of his supervision order, and seek orders under s 55 of the HRSO Act.
Conclusion in relation to whether the supervision order should be rescinded or amended
The evidence before me establishes that in absence of restriction, Mr White remains at high risk of committing a serious sexual offence if his risk factors are not managed.
The question is whether that risk can be adequately managed in the community if Mr White is subject to a supervision order, or whether that risk cannot be adequately managed in the community and the former supervision orders should be rescinded and a continuing detention order instead be made.
As outlined by Hall J in Director of Public Prosecutions (WA) v Griffiths,[33] there is no requirement that there be no risk of re‑offending, but rather there is a requirement that the risk be reduced to a reasonably acceptable level. That calls for an evaluative judgment by the court.
[33] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].
In the present case, I have formed the view that the supervision order will ensure adequate protection of the community against the unacceptable risk that Mr White would, if not subject to restriction, commit a serious sexual offence. The key factors relevant to my conclusion in this regard are as follows:
(1)in the opinion of Dr Wojnarowska, Mr White has made some progress since her last assessment in 2023 in that he has developed some skills in emotional regulation, he appears less emotionally labile, has no recent incidents in prison and is able to verbalise how to deal with stressful situations;
(2)Mr White is compliant with his mental health and psychiatric medication and his symptoms in this regard are controlled. If released on a supervision order, Mr White will meet weekly with the Forensic Community Mental Health Service;
(3)Mr White has expressed to Ms Merigan in their recent visits that he may consider release into the community if an alternative NDIS support provider is identified. Mr White has also verbalised a desire to return to the community, to 'do the right thing' and not re‑offend. Mr White has expressed to Dr Wojnarowska his preparedness to be complaint with any court orders, that he does not want to return to prison and he will not engage in any aggressive behaviour;
(4)Mr White has secured extensive NDIS funding from the NDIA, such that if Mr White is released on a supervision order, he will have the benefit of a substantial set of core and non‑core supports to assist him in his day to day living. These supports include an extensive independent supported living package whereby Mr White will have 24 hours a day, seven days per week one‑to‑one care in the form of a support worker. Suitable accommodation has been identified for Mr White, and a team of male support workers have been trained to provide the 24 hour per day active support. The NDIS support provider has been changed from the previous provider. The NDIS funding also funds the services of a behavioural support practitioner (who Mr White has met and has formed a good rapport), a specialist support coordinator and an occupational therapist;
(5)whilst the current NDIS funding package 'expires' in September 2025, I am satisfied, on the basis of the information before Lundberg J regarding the renewal of that package (which the State has submitted continues to apply today) that COMU will receive sufficient notice of any changes of significance in that funding package to be able to take appropriate steps to manage Mr White's risk of re‑offending, including by way of making any application to this court, if necessary;
(6)a Behaviour Support Plan has been prepared for Mr White, including safety elements;
(7)Mr White is also subject to a plenary guardianship order and a plenary administration order;
(8)extensive conditions have been proposed by the State, and are not opposed by Mr White. I have had regard to the precise conditions proposed in reaching my conclusion; and
(9)in the opinion of Dr Wojnarowska, the risk that Mr White might commit a serious sexual offence can be managed if Mr White is released on a supervision order with the proposed draft conditions as filed by the State, and if Mr White is able to have one‑to‑one support 24 hours per day, seven days per week.
In reaching this conclusion, I am also satisfied on the balance of probabilities that Mr White will substantially comply with the standard conditions of the supervision order. The key factors relevant to my conclusion in this regard, which are guided by the factors outlined in State of Western Australia v Gorham [No 2],[34] are as follows:
(1)since Mr White's release on the supervision order in December 2023, he has largely complied with the conditions of the supervision order, save for the three contraventions for which he was charged and convicted. Those contraventions, in practical terms, relate to two separate factual instances, one of not complying with his curfew, and the second being the offending on 8 June 2024. None of the contraventions constitutes a failure to comply with a standard condition (although that does not excuse the conduct);
(2)Mr White's attitude to the supervision order and the conditions is such that he understands and is aware of the conditions, and he has indicated to both Dr Wojnarowska and Ms Merigan at various points a desire not to be in prison and that he will not engage in any aggressive behaviour;
(3)the proposals for Mr White's release on a supervision order, including the supported independent living arrangements and the behaviour support plan, will provide an environment to support Mr White to comply with the conditions;
(4)Mr White is compliant with his mental health treatment and will meet weekly with the Forensic Community Mental Health Team in relation to management of his mental health (which is currently stable);
(5)Mr White has limited capacity to benefit from psychological treatment as a result of his intellectual disability and therefore his lack of any recent participation in such courses or progress in this regard is not of great weight;
(6)Mr White has had only a few incidents whilst in prison on remand and his one urinalysis returned a negative result; and
(7)as outlined by Dr Wojnarowska, Mr White has made some progress since her last assessment in 2023 in that he has developed some skills in emotional regulation, he appears less emotionally labile, has no recent incidents in prison and is able to verbalise how to deal with stressful situations.
[34] The State of Western Australia v Gorham [No 2] [2022] WASC 351 [34].
Issue 3 - other matters
Finally, I have considered the State's proposed amendments to the conditions of the supervision order, and also the term of the supervision order.
Having reviewed the amendments proposed by the State to the conditions of the supervision order, I am satisfied that each is appropriate. They are minor in nature and update the address at which Mr White must reside (condition 8) and expand the wording of condition 28 to ensure that it prohibits any assault etc of any support worker engaged under the NDIS support. In light of the contravention conduct underpinning contraventions 2 and 3, I consider this to be an appropriate amendment.
I agree with the reasons expressed by Lundberg J in the Sixth Review Decision as to why the supervision order should be for a period of 3 years, and consider those reasons remain applicable. I will therefore retain the duration of the supervision as being for 3 years from 11 December 2023.
Counsel for the State submitted that as Mr White had previously been subject to a supervision order, and given extensive planning has occurred in relation to Mr White, the State did not require a lengthy period of time to prepare for Mr White's release on a supervision order (if so ordered) and would likely be ready for Mr White to be released on or about the date of the delivery of my decision in relation to the application. I will hear further from counsel for the State as to whether that remains the case, and will specify the precise start date of the amended supervision order after hearing from counsel.
Conclusion and orders
Subject to hearing further from counsel, I propose to make the following orders:
(1)The applicant's application for orders under s 55(1)(b) of the High Risk Serious Offenders Act 2020 (WA) dated 17 June 2024 is allowed.
(2)The interim detention order made by the Hon Justice Lemonis on 25 June 2024 is discharged.
(3)The Supervision Order made by the Hon Justice Lundberg on 13 November 2023 is amended as set out in Annexure A.
Annexure A
SUPERVISION ORDER MADE BY THE HON JUSTICE LUNDBERG
ON 13 NOVEMBER 2023
AMENDED BY THE HON JUSTICE SEAWARD
ON 26 MAY 2025
Pursuant to section 68(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 3 years from 11 December 2023, not being a date earlier than 28 days from the date this Order is made, on the following conditions:
You, STEPHEN NEIL WHITE, must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, Western Australia, within 48 hours of the order being issued and advise the officer of your current name and address;
Report to and receive visits from, a CCO as directed by the Court;
Notify a CCO of every change of the person's name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32);
Not leave, or stay out of the State of Western Australia without the permission of a CCO;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Take up residence at [address redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order and be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO;
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO;
Attendance at programs or treatment
Consult and engage, attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;
Reporting to WA Police
Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or his/her delegate;
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order;
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all screen name(s), user name(s), and email addresses;
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, inclusion confidential information;
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate to disclose to them confidential information including your offending history;
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your sexual and violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice;
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual or violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times;
Report to the CCO and WA Police any direct or indirect contact with the victims of your offending (including sexual offending) on the next working day you report to the CCO or Police;
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under s202, s203, s204, s557K Criminal Code 1913 (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
You must not assault, threaten or abuse any member of the departmental staff or an agent providing a service on behalf of the Department of Justice or any worker you engage with under the NDIS support;
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave you approved address as directed by a CCO from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
When subject to a curfew under this Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Prevention of high-risk situations
With the exception of public transport, not to enter in or on any vehicle, including taxis and rideshare vehicles such as but not limited exclusively to Uber, where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by the CCO;
Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO;
Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO;
Report at your next contact with your CCO, the formation of any social association (of more than 2 contacts by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 2 contacts by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Provide a valid sample pursuant to Condition 38;
Not purchase, or possess, or consume or use alcohol;
Not to go, enter any part of your body inside, or remain at any licensed premises unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
b)For a purpose, and duration approved in advance by a CCO;
c)On the order of a CCO or Police Officer;
Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know are affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO;
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence;
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
a)The contact is authorised in advance by the CCO and such contact is supervision at all times by an adult approved in advance by the CCO;
b)The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
Provide the name, address, location and any details known by you, of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency;
Not to form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, including former victims of your previous offending, without prior CCO approval;
Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 49, without prior approval;
Enable device locking or password access of your computer, telecommunication and/or electronic devices, Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 49, or any online accounts, to any person other than a CCO or Police Officer;
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses;
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police;
Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article;
Not to attend concerts, events or venues frequented by children under 18 years, without prior approval of a CCO;
Not to be in possession of any pornographic material, in either hard-copy or digital form, or access or view pornography on the internet unless pre-approved by a CCO; Pornographic materials means printed or visual or any medium of material that contains the explicit description or display of:
a)sexual organs or activity; or
b)breasts or nipples; or
c)backsides or the anus.
Not enter the premises of, or access the services of, escort agencies or sex workers unless pre-approved by a CCO;
Whilst in any public place or in view of a public place, not be in possession of any animate or inanimate item capable of constituting an enticement to children, unless such possession is for legitimate purpose and approved in advance by a CCO;
Not be within 50 metres may change to 100m depending on experts view of any school between 7.30am to 9.30am and 2.30pm to 4.30pm on school days, unless you have a reasonable excuse;
Not access the internet for, nor collect or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not; Possession of such images depicting a child or children on items such as on household items or your immediate family, may be authorised by a CCO. Immediate family means pictures of yourself, your siblings, your parents and your spouse only;
Not access the internet for, nor collect or be in possession of any document, paper, or any other medium used for displaying words, either in the written or printed form, that describes sexual activity with a child and/or children;
Not to access online social media unless approved in advance by a CCO;
Not to attend a park where that park contains children's play equipment;
Medications/Mental Health
To engage with mental health services and to obey the instructions of the treating psychiatrist with regard to treatment and medication;
Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice;
To abide by any conditions and requirements of any National Disability Insurance Scheme (NDIS) provider that is providing you with any services and/or accommodation.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MA
Associate to the Hon Justice Seaward
26 MAY 2025
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