ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- SCS BY HIS GUARDIAN AD LITEM THE PUBLIC ADVOCATE [2026] WASC 78 (13 March 2026)

(a) neuropsychological report of Dr Liz Vuletich, dated 11 September 2025; and

(b) psychiatric report of Dr Gosia Wojnarowska, dated 17 September 2025.

1. At the hearing, the State called evidence from Dr Wojnarowska, and Ms Nicola Lloyd, of Community Corrections.

1. On 6 February 2015, the respondent was charged with trespass and common assault.
2. On 8 May 2015, the learned magistrate determined that the respondent was unfit to stand trial and would not become fit to do so in the next six months. His Honour imposed a custody order upon the respondent, pursuant to s 16(5) of the Repealed Act.[5]
3. Under the transitional provisions of the CLMI Act, the custody order was to be treated as if it had been made under pt 5 of the CLMI Act.[6] Consequently, on 23 October 2024, pursuant to s 264 of the CLMI Act, a limiting term of seven months was imposed, to have commenced on 23 February 2015.[7] The limiting term therefore expired on 23 September 2015. However, the custody order remains in effect, pursuant to s 265(3) of the CLMI Act.
4. Prior to the imposition of the custody order, the respondent spent 81 days in custody.[8] Following the imposition of the custody order, the respondent was transferred to Casuarina Prison.[9]
5. On 9 October 2015, the Mentally Impaired Accused Review Board determined that the respondent should be detained at the Disability Justice Centre (DJC).[10] However, the respondent left the DJC, following which he was detained at Casuarina Prison, from 20 May 2016 until 7 June 2016, while security at the DJC was upgraded.[11]
6. The respondent was transferred to Karnet Prison Farm on 7 June 2016 until 5 August 2016, to facilitate planned leaves of absence.[12] Ever since 5 August 2016, when the upgrades to the DJC were completed, he has remained at the DJC.[13]
7. Accordingly, the respondent has now been subject to the custody order for 10 years and 10 months.
8. The respondent has been subject to a leave of absence order under the CLMI Act since 3 October 2024,[14] although he was permitted leaves of absence for some time before that, under the Repealed Act.
9. The respondent has not had a supported independent overnight stay since 21 November 2024, when he had to be returned to the DJC in the early hours of the morning after he reported being unable to sleep and experiencing hallucinations on an overnight stay at a caravan park.[15]
10. Until November 2025, his leaves of absence were supported by a National Disability Insurance Scheme (NDIS) provider and the plan in place for him.[16] He has only recently been assigned a new NDIS provider, and his plan with that provider is presently under development.

1. Section 7 of the CLMI Act sets out the objects of the CLMI Act, and the principles to which a person performing a function under the Act must have regard. The objects of the CLMI Act are:

(a) to ensure the protection of the community;[17]

(b) to ensure persons with mental impairment who are charged with an offence are dealt with fairly and with dignity;[18] and

(c) to ensure that persons who are subject to supervision orders under the CLMI Act are afforded procedural fairness in relation to the administration and management of those orders and are reintegrated into the community in a safe manner.[19]

1. As Lemonis J observed in Attorney General v WAW,[20] the principles applicable to the performance of a function under the Act are predominantly directed to:

(a) the extent to which the freedom of a person with a mental impairment may be curtailed;[21]

(b) the fair, appropriate, supportive and dignified treatment of persons with a mental impairment;[22]

(c) the manner in which the CLMI Act should be administered in respect of children with a mental impairment;[23]

(d) recognising that victims of offences committed by persons with mental impairment should have the opportunity to be acknowledged and heard;[24] and

(e) recognising the role of carers and families who assist persons with mental impairment.[25]

1. These principles clarify that the regime established by the CLMI Act is not punitive in nature, bearing in mind that a supervised person has been found to have a mental impairment which either rendered them unfit to stand trial or deprived them of a relevant capacity (meaning they were not of sound mind at the time of the commission of the alleged offence) or both, and thus have not been convicted of an offence.
2. However, s 8 of the CLMI Act establishes that the paramount consideration when performing a function under the CLMI Act is the protection of the community.
3. Under the CLMI Act, the Minister responsible for the administration of the CLMI Act may apply to the Supreme Court for an ECO.[26]
4. An ECO is an order under the CLMI Act that requires a person to be detained at a location determined by the Tribunal, for the protection of the community.[27] It functions as an extension of an existing custody order and cannot be made unless such an order is already in place. It does not allow the Minister to initiate a new custody order; it is limited to extending or continuing an existing one.
5. Section 110(3) provides:

Before making an extended custody order, the court must be satisfied, by acceptable and cogent evidence and to a high degree of probability, that, to ensure the adequate protection of the community against an unacceptable risk that the supervised person will commit a serious offence, it is necessary to make an extended custody order in respect of the supervised person.

1. The term 'serious offence' is defined by s 9 of the CLMI Act.
2. Pursuant to s 110 of the CLMI Act, the court may make an ECO for a fixed term, which is its limiting term, if the threshold in s 110(3) is met. While the use of the term 'may' implies a discretion, it is almost inevitable that the court would exercise the power to make the order, if satisfied that the threshold was met.[28] However, as with matters under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act),[29] there may be some cases where, notwithstanding that the risk is unacceptable, the court declines to make an ECO.
3. The threshold for making an ECO is similar to the test as to whether a person is a high risk serious offender under the HRSO Act.
4. The phrase 'high degree of probability' in the HRSO Act has been interpreted as requiring a standard higher than the civil standard of balance of probabilities but lower than the criminal standard of beyond reasonable doubt. That same interpretation should apply under the CLMI Act.[30]
5. Despite the similarity in the statement of the threshold test, as noted by Lemonis J in WAW, there are a number of differences between the regimes under the CLMI Act and the HRSO Act, including:
   1. For an ECO to be made under the CLMI Act, it is not necessary that the person has committed a serious offence, or been acquitted of a serious offence under s 27 of the Code. By contrast, under the HRSO Act, the State's ability to apply for a restriction order is conditional upon the person having committed a serious offence.
   2. Under the CLMI Act, the assessment is directed to the need to make an ECO, whereas under the HRSO Act, the assessment is directed to the need to make a restriction order, which is a continuing detention order or a supervision order.
   3. If the court is not satisfied it is necessary to make an ECO under the CLMI Act, the court then proceeds to consider whether to make a community supervision order. That assessment requires consideration of different criteria to those referable to the making of an ECO, in particular whether the person 'should remain under supervision due to the person's rehabilitation, retraining or resocialisation requirements'.
   4. Where the court is satisfied under the HRSO Act that a person is a high risk serious offender, the court must make a restriction order. In contrast, under the CLMI Act, where the court is satisfied that the threshold condition is met, the court may make an ECO.
   5. An ECO is for a fixed period. A continuing detention order is indefinite.
   6. An ECO is reviewed by a court more regularly than a continuing detention order. After the first 'annual review', an ECO is expected to be reviewed as soon as practicable after the expiry of one year from the most recent review, whereas a continuing detention order is expected to be reviewed as soon as practicable after the expiry of two years from the most recent review.
   7. The HRSO Act sets out matters to which the court must have regard in considering whether it is satisfied that a person is a high risk serious offender. The CLMI Act does not have a similar provision in respect of the making of an ECO. Rather, the CLMI Act provides that the court may receive in evidence material directed to certain specified topics, which have some similarity to the matters that the court must take into account under the HRSO Act.
   8. In making the assessment under the HRSO Act, the court must disregard the possibility that the person might temporarily be prevented from committing a serious offence by being in custody, or by the imposition of bail conditions. There is no similar provision in the CLMI Act.
   9. The HRSO Act provides that the State has the onus of satisfying the court that the person is a high risk serious offender. The CLMI Act does not contain any provisions regarding onus.[31]
6. I respectfully agree with the following observations of his Honour regarding s 110:

[T]he question of whether a person 'will commit a serious offence' is assessed by reference to whether the person will do an act, or make an omission, that would constitute a serious offence, irrespective of whether the person has sufficient mental capacity to be criminally responsible for that act or omission. Thus, in making the assessment, the court does not take into account the prospect that the person might be found not guilty of the 'serious offence' under s 27 of the Code. This approach accords with an object, and the paramount consideration, of the CLMI Act being the protection of the community. That object and paramount consideration would be significantly eroded if the assessment of the risk the person will 'commit' a serious offence took into account whether the person would have sufficient mental capacity to be criminally responsible for their conduct.

Such an approach is also supported by s 11(1) of the CLMI Act, which states:

A reference in this Act to the commission of an offence includes, in relation to a person who has been acquitted of the offence on account of mental impairment, a reference to the doing of the act or the making of the omission that would have constituted the offence of which the person was acquitted. (emphasis added)

Even though s 11(1) is directed to historical offending, it recognises that in respect of the 'commission of an offence', the concern of the CLMI Act is directed to 'the doing of the act or the making of the omission that would have constituted the offence', not to whether the person has the requisite mental capacity to be criminally responsible for that act or omission.

Further, s 110(6) and s 110(7) are to the effect that in considering whether an act or omission committed outside the State constitutes a serious offence, the court is to disregard whether the person would be fit to stand trial, or convicted of the offence.[32]

1. It follows that whether the threshold in s 110(3) is met requires an evaluation of:

(1) whether there is an unacceptable risk that the supervised person will engage in conduct, by act or omission, that constitutes a serious offence, regardless of their mental capacity and criminal responsibility; and

(2) if such a risk exists, whether making an ECO is necessary to adequately protect the community against that risk.

1. Section 123 of the CLMI Act sets out a non-exclusive list of categories of evidence which the court may receive in considering an application for an ECO.
2. Further, while s 47(1) of the CLMI Act does not in its terms apply in the case of an application for an ECO (it only applies to the making of a custody order and a community supervision order), it is generally accepted that that provision sets out a useful (again, non-exclusive) list of matters which should be considered when determining an application for an ECO, namely:

(a) the protection of the community;

(b) the nature of the offence and the circumstances of its commission;

(c) the person's character, antecedents, age and health;

(d) the nature of the person's mental impairment;

(e) the relationship between the mental impairment and the offending conduct

(f) the degree of risk that the person appears to present to themself or the safety of the community because of their mental impairment;

(g) the extent to which adequate resources are available for the treatment, care and support of the person in the community;

(h) if the person is a child - the child-specific considerations; and

(i) if the person was a child at the time of the commission of the offence - the general principles of juvenile justice set out in the Young Offenders Act 1994 (WA) s 7.

1. Determining whether a risk is unacceptable requires the court to judge the nature and extent of the potential harm. This assessment of the nature and extent of the possible harm requires, as Lundberg J observed in PHB, directing the mind to:

[T]he possible serious offences that might be committed and the harm they may cause. It also directs attention to the likelihood that the offender might commit such offences (that is, the likelihood the risk might eventuate). The extent to which deterrent factors have operated to reduce risk in the past is relevant to the assessment of current and future risk, as is the offender's historical and current response to rehabilitation. These are all factors that inform the assessment of whether the risk is 'unacceptable', but they are not exhaustive.[33]

1. Importantly, a finding that a person poses an unacceptable risk does not automatically mean that an ECO is necessary.
2. Consistent with the approach taken under the HRSO Act, the provisions governing the making of an ECO under the CLMI Act require the court to do no more than is necessary to achieve the adequate protection of the community.[34] The court must, in making its assessment of what is necessary for community protection, take a balanced and contextual based approach, focusing solely on what is necessary to achieve adequate protection, and nothing beyond that.
3. The court does not need to be satisfied that there is a high probability the offender will commit a serious offence. Instead, under the CLMI Act, what must be proven to the required standard is that an ECO is necessary to protect the community from an unacceptable risk that the offender will commit a serious offence.[35]
4. A person's mental impairment forms part of their individual characteristics and must be taken into account when assessing risk. It is also relevant to determining whether the making of an ECO is necessary to ensure adequate protection of the community.
5. Any limiting term imposed as part of an ECO must be consistent with the statutory scheme. Accordingly, the term must be no longer than is necessary to achieve adequate protection of the community.
6. If an ECO is made, it is subject to regular reviews by the MIRT, as well as the Supreme Court. While the MIRT cannot cancel an ECO, the Supreme Court can do so, upon review.[36]
7. In the absence of any provision of the CLMI Act stating which party bears the onus of proof in applications under the Act, the court must proceed, in accordance with well-established principles, on the basis that the applicant bears the onus of satisfying the court that the order should be made.

1. Part 6 div 5 of the CLMI Act provides for the making of leave of absence orders. These orders can be made during the term of a custody order and permit the supervised person to be in the community for certain periods and purposes specified by the Tribunal.[37]
2. Leave of absence orders do not have effect after the limiting term of a custody order expires, but do continue in effect after the making of an ECO.[38]

1. If the court is not satisfied it is necessary to make an ECO under the CLMI Act, the court then proceeds, pursuant to s 110(4), to consider whether to make a community supervision order. That assessment requires consideration of different criteria to those referable to the making of an ECO, in particular whether the person 'should remain under supervision due to the person's rehabilitation, retraining or resocialisation requirements'.[39]
2. The court must have regard to the matters set out in s 47(1) of the CLMI Act in determining whether a community supervision order is appropriate.

1. The respondent is an Aboriginal man, originally from One Arm Point. He was born on 23 June 1991, making him now 34 years old. He speaks some Bardi, and English.
2. The respondent has established diagnoses of Intellectual Disability, Fetal Alcohol Spectrum Disorder (FASD) and Schizophrenia.
3. The Public Advocate has been appointed as the respondent's limited guardian, with functions including deciding where he is to live and with whom, making treatment decisions, to advocate on his behalf in connection with matters concerning a number of statutory and public authorities, and to conduct legal proceedings on his behalf. The Public Trustee is his appointed plenary administrator.[40]
4. The respondent has an approved National Disability Insurance Scheme (NDIS) plan, which is next to be reviewed in April 2026.
5. The available reports pertaining to the respondent indicate that he was exposed to sexual abuse, violence and substance use at home during his childhood. Further, he endured both the death of a parent and a sibling, a lack of stability and limited education opportunities in youth.[41]
6. The reports also indicate that at an early age the respondent began drinking, smoking cannabis and abusing solvents.[42] Save for one accidental exposure, the respondent has reportedly remained abstinent while at the DJC.[43]
7. The respondent left school at age 11.[44] He is illiterate and has never been employed.[45]

1. Since the age of 16, when he was convicted of the offence of unlawfully doing grievous bodily harm, the respondent has committed more than 20 offences, the majority as an adult. His criminal history includes convictions for stealing, aggravated assault, assault public officer, assault occasioning bodily harm, assault, and carrying an article with intent to cause fear. In 2015, a psychiatrist observed that, for the most part, the respondent had been intoxicated at the time of offending.[46]
2. In 2014, after breaching a suspended imprisonment order, the respondent was sentenced to a term of imprisonment.[47]
3. On one other occasion in 2012, the respondent was found to be unfit to stand trial. On that occasion, the indictment against him was quashed.[48]
4. As Dr Wojnarowska has observed, the respondent's relevant criminal history can be grouped into two categories: (1) offending driven by delusions he holds relating to children; and (2) unpredictable, sudden violence, largely in response to people in authority.
5. Regarding conduct in the first category, in January and February 2015, the respondent, in two separate incidents, attempted to take children unknown to him, whom he apparently believed, due to his mental illnesses, were his own.
6. In the first incident, he grabbed a child by the arm at a shopping centre, and attempted to walk off with him, asserting it was his child, before being prevented by the child's father.[49] In the second incident, he tried to gain access to a Broome daycare centre, claiming he was there to pick up his daughter, but was prevented from entering the classroom, containing seven sleeping babies aged between three months and eighteen months old, by a staff member.[50]
7. In neither case was the respondent charged with a serious offence; nonetheless, each incident was serious in terms of the respondent's clear intention to take a child.
8. It was the second of these incidents which resulted in the imposition of the present custody order.
9. In respect of conduct falling within the second category, the respondent has on numerous occasions attacked others without provocation, using violence as a basic mechanism to act out frustration or distress.[51] This class of unprovoked violence has been directed towards people in authority such as police, prison guards, a nurse, a shop manager and his mother, although on one occasion he randomly assaulted a cyclist with a timber stake as she attempted to overtake him.[52]

1. The material provided for this application includes several historical reports in respect of the respondent. For the purposes of resolving this application, it is only necessary to refer in detail to the neuropsychological report of Dr Vuletich, the psychiatric report of Dr Wojnarowska, reports from the respondent's treating doctors compiled since the reports of Dr Vuletich and Dr Wojnarowska were prepared, and the Adult Community Corrections Extended Order Assessment Reports dated 7 October 2025 and 3 February 2026. All of the report authors support the making of an ECO.
2. While I have not summarised them in detail in this judgment, I have carefully reviewed the previous psychiatric and psychological reports prepared in relation to the respondent, which are contained in the Book of Materials, and which document a psychiatric history of the respondent commencing in 2007. They are consistent with the reports of Dr Vuletich and Dr Wojnarowska.
3. The reports are all aligned as to the respondent's chaotic and traumatic upbringing, his diagnoses of FASD, intellectual disability, schizophrenia, and his history of substance abuse, which have the combined result that the respondent is unable to live independently in the community. He exhibits a range of extremely challenging behaviours, often unpredictably, which are not always able to be safely managed, even by highly trained carers familiar with him. He is also highly vulnerable to exploitation.
4. The reports make clear that the respondent's risk of imminently committing an act of violence is consistently high, with there being a high risk of severe harm resulting, at least without very high levels of support. However, they also emphasise the behavioural gains the respondent has made following his placement and treatment at the DJC. This is supplemented by his NDIS package, and it is hoped this will enable him to continue to transition towards assisted and supported living in the community.
5. The overall consensus to be taken from the reports is that the respondent continues to require ongoing and intensive supervision and treatment, as his underlying mental condition has not improved.

Adult Community Corrections Extended Order Assessment Report dated 7 October 2025

1. This report is the case manager's report prepared in accordance with the order of Whitby J dated 25 March 2025.
2. It is only necessary for the purposes of the disposition of this application to refer to the following aspects of this report.
3. The DJC staff facilitate the respondent's contact with his family. They facilitate a call with his cousin every second day, where the phone is passed around by his cousin to all his family members who are present. Further, every six to eight weeks, the respondent meets his cousin and up to 10 to 12 extended family members at a visit to usually either a beach or a public park.[53]
4. There is an NDIS plan in place in respect of the respondent. The plan commenced on 9 July 2025 and is expected to be renewed without any changes on 16 April 2026. The report states that the NDIS funding has provided for accommodation and an extensive complement of support staff to be available at the accommodation.[54]
5. The report sets out that when the respondent is at the DJC, he is supervised 24 hours a day, with all leaves of absence facilitated with two carers.[55]
6. The respondent commenced the transition into the community with overnight leave on 29 September 2025. However, the report authors allege that the respondent exhibited sexual behaviours and interest in a child as recently as 1 October 2025,[56] along with numerous other incidents of threatening, violent and sexualised behaviour throughout his time in the care of the DJC.

Adult Community Corrections Extended Order Assessment dated 3 February 2026

1. The updated assessment provided further information about the reported behaviours of the respondent.
2. On 30 September 2025, during an overnight leave of absence, the respondent was said to have 'displayed sexualised behaviours' towards a young girl, aged between 7 and 12 years of age, at a playground near his accommodation. This behaviour is not described in any more detail.
3. When he returned to his accommodation, the respondent's behaviour allegedly escalated, with the respondent displaying 'verbal aggression, threats to kill and physical violence' towards NDIS support staff. That behaviour continued throughout the leave of absence, as a result of which the respondent was returned to the DJC earlier than scheduled. His next overnight leave of absence was suspended, but his daytime leaves of absence continued.
4. A new transition plan was subsequently developed in relation to the respondent. However, on 17 October 2025, the respondent's physical interactions with NDIS support staff were again described as having 'increased intensity' and a 'persistent nature', with the respondent directing sexual gestures towards them.
5. The respondent's transition plan was again amended. However, on 27 October 2025, the respondent allegedly punched a support worker in the head, for which they required medical attention.
6. On 12 November 2025, the MIRT considered the respondent's case and varied his order by reducing his leaves of absence to up to four nights per 14-day period.[57] However, in late November 2025, the respondent's NDIS support providers effectively ceased providing services to the respondent. He has since been escorted by Disability Justice Officers from the DJC on two daytime leaves of absence per week since 30 December 2025. At this stage the respondent has not since been on an overnight leave of absence.
7. A new Behaviour Support Practitioner has been engaged for the respondent since 8 January 2026, who has been working with the respondent and the DJC to develop an interim safety plan. In the interim, he continues to have monthly supervision at the DJC.
8. A new NDIS service provider has now also been appointed to assist the respondent, and a handover is presently being conducted. It is hoped this will improve the prospects of successful overnight leave at his supported accommodation.[58] If he does not use it, his allowance for it may be reduced or removed from future NDIS plans.[59]

Electronic Monitoring Report dated 8 January 2026

1. The respondent has been assessed as not having the capacity to understand the operational requirements of electronic monitoring equipment. Further, his disability and mental health related symptoms are considered likely to impact on the respondent's ability to comply with electronic monitoring. Accordingly, the respondent is not considered suitable for electronic monitoring at this time.
2. Community Corrections advised that an interagency group comprised of the respondent's previous Behaviour Support Practitioner, his Specialist Support Coordinator, Disability Justice Services, Community Forensic Mental Health Services and the Office of the Public Advocate opposed the imposition of an electronic monitoring condition on the respondent.
3. Reasons for the opposition included the fact that the respondent experiences intrusive thoughts of things being on his body, which he requests others remove, such that an electronic monitoring device would be distressing for him. He would be unable to manage the charging of the device, and it would be unlikely to mitigate his risk. Further, he would be unable to swim, which would have an impact on him culturally.
4. However, Community Corrections also note that the CLMI Act enables an electronic monitoring condition to be added by the MIRT after a review of a CSO, if it considers it to be appropriate at a later date.

Neuropsychological Report of Dr Liz Vuletich dated 11 September 2025

1. Dr Vuletich is a neuropsychologist. Her report, dated 11 September 2025, was prepared pursuant to an order of Whitby J made under s 106(1) of the CLMI Act.
2. Dr Vuletich interviewed the respondent on three occasions for the purposes of her report. She also had access to a large volume of materials, including the Book of Materials prepared by the applicant for the purposes of the application.
3. The respondent did not typically acknowledge Dr Vuletich upon her entrance into the room. However, she notes he was mostly responsive when spoken to and answered in short, slightly mumbled although generally logical responses with extraneous and erroneous information added.[60] She found him to engage quite well and often be jovial in his interactions.[61] However, she noted that he experienced rapid, seemingly unprovoked shifts in his affect and energy.[62]
4. Dr Vuletich found the respondent to be an unreliable and extremely limited historian. He was unable to give her a true account of his early history or family structure. In regard to the latter, he was largely unable to identify who was related to him or give their ages and mostly unable to state how they were connected to him.[63]
5. The respondent told Dr Vuletich that he could read and write 'ok', which she noted was inconsistent with prior reports, and which he was unable to demonstrate to her, despite his attempts to do so.[64] Further, he was unable to give her much information about his health and medications, and the little information he could give her was incorrect, except for that he snores a little.[65]
6. At her first meeting with the respondent, she noted that he was disinhibited and made multiple inappropriate and sexualised comments towards her. At one point, the respondent even attempted to touch her thigh but was verbally redirected to a more acceptable action. Regarding this inappropriate behaviour, Dr Vuletich observed that he generally responded to boundary setting, although, in later sessions, required firmer redirections and that during assessments, he required frequent redirection and prompting.[66]
7. In her report, Dr Vuletich assessed the respondent's level of intellectual functioning, concluding that his intellectual impairment is of at least moderate severity.[67] She also described the respondent as having deficits that impact upon his expressive and receptive language, and marked emotional dysregulation, as well as impairments in his social cognition and interpersonal skills.[68] Further, she opined that his insight and awareness were extremely limited.[69]
8. Dr Vuletich was of the view that the current comprehensive assessment confirms the respondent's neurocognitive impairments, which are consistent with his diagnoses of Intellectual Disability (moderate severity) and FASD. Beyond these impairments, Dr Vuletich is of the view that his cognitive and behavioural deficits are aggravated by his fluctuating psychiatric conditions, as well as the sedating impacts of antipsychotic treatments.[70]
9. Dr Vuletich agreed with earlier opinions that, as a result of the respondent's multiple overlapping disabilities, he continues to demonstrate behavioural and cognitive challenges, and there is an ongoing risk of unpredictable violent behaviour and reoffending.[71]
10. In Dr Vuletich's opinion, the respondent's history is significant, as he experienced early neglect and likely has attachment issues, was exposed to recurrent traumatic experiences throughout his life, has had a lack of stability and/or a consistent caregiver, has significant bereavements and had limited educational opportunities.[72] She noted that it is unsurprising that early in his life he turned to substance use, although he has nearly entirely abstained from that while at the DJC.[73]
11. Dr Vuletich recognised that due to his high needs, and consequential treatment and detentions, the respondent has been away from country for extensive periods of time, challenging his ability to engage in cultural practices, which is known to have an impact on the social and emotional wellbeing of Aboriginal people.[74] While she did recognise that there have been active strategies to support the respondent's connection to language and culture, she considered that he remains disconnected from both, which impacts his wellbeing.[75]
12. Dr Vuletich was of the opinion that the respondent likely experiences institutionalisation, and that shifting to a less rigid environment with more independence and self-determination is likely to increase uncertainty and to impact upon his mental health and wellbeing.[76]
13. In her interview with the respondent, Dr Vuletich observed him to respond multiple times to unseen stimuli.[77] She also noted that his verbal language abilities, in his second language, English, are functional although limited. She assessed his verbal abilities to be those of a very early primary school child. She observed that he has basic perception and spatial awareness. The respondent demonstrated substantial impairments in higher-level visuospatial and constructional tasks, due to difficulties with planning and organisation. However, according to Dr Vuletich, the respondent did surprisingly well on a memory task that allowed him to associate words and pictures together. She formed the view that he suffered from pervasive executive dysfunction.[78]
14. Dr Vuletich observed that previous psychiatric opinions have been consistent in stating that increased uncertainty, fewer restrictions, and greater autonomy in the community setting for the respondent would increase the risk to both him and the community.[79] She indicated that, should psychiatric care not be continued and closely monitored, supported and optimised for the respondent, the risks would undoubtedly increase for him.[80]
15. Ultimately, Dr Vuletich thought that it would be premature to consider the full release of the respondent to the community. She advised that to do so now would pose an unacceptable risk of rapid decline in the respondent's mental state, escalations in his behaviours of concern, and it follows, pose a risk to himself, his support staff and the community.[81]
16. In Dr Vuletich's opinion, the respondent's reintegration back into the community should be slow, closely-monitored, flexible and titrated with full stakeholder engagement from all agencies and offices involved in his care; to release him into the community now would be unrealistic and unreasonable.[82]
17. Dr Vuletich was unable to provide an opinion as to the likelihood that the respondent would commit a serious offence if not subject to an ECO.[83]

Psychiatric report of Dr Gosia Wojnarowska dated 17 September 2025

1. Dr Wojnarowska is a Forensic Consultant Psychiatrist. Her report, dated 17 September 2025, was prepared pursuant to an order of Whitby J made under s 106(1) of the CLMI Act.
2. Dr Wojnarowska interviewed the respondent on one occasion for the purposes of her report. She also had access to the applicant's Book of Materials.[84]
3. The respondent presented as being friendly and engaged with Dr Wojnarowska during her interview with him. He also willingly accepted all rules and restrictions placed on him.[85] Dr Wojnarowska observed the respondent to be neither depressed nor elevated, and as happy throughout the interview.[86]
4. The respondent's speech was limited to short answers relevant to the questions, and Dr Wojnarowska observed his thought process to be linear, and that he had no apparent thought disorder,[87] although he did describe some delusions and hearing voices at times.[88]
5. Dr Wojnarowska regarded the respondent as suffering from obvious cognitive deficits, related to memory deficits, limited vocabulary, comprehension problems and a lack of abstract thinking.[89] She further noted that his judgement was impaired and he had very little insight into his legal and psychiatric conditions.[90]
6. Dr Wojnarowska said that the respondent presented as having a mixture of psychotic symptoms such as underlying delusional beliefs and cognitive deficits associated with intellectual disability.[91] She was of the view that, because his visual hallucinations predominately occur at nighttime, the presence of an organic brain syndrome is suggested, and that this is unlikely to remit even with treatment.[92] Further, she noted that he suffers from schizophrenia, of mixed origin, likely related to FASD in combination with drug use, and this will require indefinite treatment and continuous support.[93]
7. Dr Wojnarowska observed the respondent to get uncomfortable when asked about his delusional beliefs.[94] She was of the view that only some of his behaviours are causally related to his psychotic symptoms, such as him acting on the delusional belief that he is at risk of a person he perceives to be the 'devil'.[95]
8. She further opined that the respondent's tendency to act in an oversexualised manner, or impulsively physically attack others, is not clearly driven by psychotic symptoms, and is more likely attributed to his organic brain disorder with executive dysfunction, and language impairment making him prone to misinterpreting social situations.[96] This was demonstrated when, on one occasion, the respondent attempted to divert the conversation to sexual topics and to kiss Dr Wojnarowska's hand, although she noted that he responded well to redirection.[97]
9. In evidence, Dr Wojnarowska said that she was not satisfied that all pharmacological interventions had been fully explored in relation to the respondent. She was of the opinion that a trial of clozapine had perhaps been ended too early, and that a trial of anti-libidinal medication might also be attempted.[98]

Historical Clinical and Risk Management 20, Version 3 (HCR-20v3)

1. The Historical Clinical and Risk Management 20, Version 3 (HCR‑20v3) is a broad-band violence risk assessment tool with historical, clinical and risk management factors taken into account. It is the most commonly used and valued set of clinical guidelines for violence risk assessment and management in community, correctional and forensic mental health settings in the world. It is the most widely used and best validated violence risk assessment instrument.
2. In Dr Wojnarowska's assessment, the respondent's history reveals the presence of many historical factors identified by HCR-20v3 as relevant to the risk of reoffending. These factors include psychosocial development, education and employment, medical and legal issues, mental and emotional problems, violent or antisocial behaviour, substance use, and traumatic experiences.[99]
3. In her assessment of his clinical factors, Dr Wojnarowska found the respondent to have 'no insight into his mental illness, risks, need for treatment, or his cognitive limitations' and to make inappropriate sexual comments with only a little insight into his violence and aggression.[100] Further she found that he experiences violent ideation,[101] and suffers from a major mental disorder[102] and instability.[103]
4. As to risk management factors, Dr Wojnarowska identified factors relating to professional services and plans, treatment or supervision response, the respondent's living situation, personal support and stress or coping.[104]
5. Dr Wojnarowska identified three likely risk scenarios in which the respondent would be likely to further offend. The first would involve impulsive assaults on staff members or authority figures within close proximity. The second involves the abduction of a child unknown to him. The third involves sexual assault on staff, fellow residents and community members. All three could lead to significant or severe harm and involve a risk of escalation.[105]

1. Dr Wojnarowska expressed her opinion that the risk posed by the respondent can, at present, only be managed through a custody order, saying:

[The respondent] presents a chronically moderate risk of violent and sexual offending, and he is likely to reoffend with a return to substance use or absence of order.

As evidenced in this report, [the respondent's] risk of violence is likely to significantly increase if he were discharged from the custody order into the community. It is my opinion that [the respondent] would not be suitable for long-term psychiatric inpatient treatment if he were discharged from his custody order as his primary issues relate to his intellectual disability and organic brain disorder, of which the state's psychiatric inpatient services are ill-equipped to manage. Considering the above, I do not recommend [the respondent] is discharged from his extended custody order at this time but continuous efforts to transition him to the community as per his management plan should remain in place.[106]

1. In Dr Wojnarowska's opinion, the respondent needs at least 12 months to adjust to his new NDIS providers and then more time for him to be integrated to his new accommodation. Accordingly, she recommended a limiting term of two years for the ECO.[107]

Report of Dr Christopher Watson and Dr Rachael Griffiths dated 16 January 2025

1. It is appropriate to refer specifically to the report of Dr Christopher Watson, Senior Medical Practitioner, and Dr Rachael Griffiths, Forensic Psychiatry Consultant, dated 16 January 2025. Dr Watson and Dr Griffiths are part of the respondent's treating medical team.
2. Dr Watson and Dr Griffiths formed the view that the respondent is only just manageable at the DJC. They have expressed serious concerns about the respondent's risk if he were to be released from the DJC, given that his main protective factors are his containment at the DJC, and the conditions which enable staff and police to restrict the respondent's freedom. They predict that the respondent would likely offend within a week of being released into the community.
3. Dr Watson and Dr Griffiths note that the respondent is unlikely to be able to understand or follow conditions of any order, and staff seeking to enforce such conditions could be at significant risk from the respondent.
4. In their view, it is unlikely that any psychiatric facility is available which would accept the respondent as a long-term resident, given the nature and permanence of his disability and the fact that there are few further treatment options available at this stage.[108]

Report of Dr Madeline McCreanor dated 6 November 2025

1. On 6 November 2025, Dr Madeline McCreanor, who is the A/Head of Clinical Service at the State Forensic Mental Health Service, wrote to the President of the MIRT expressing her concerns about the respondent's transition to the community and his escalating level of risk.
2. Dr McCreanor was concerned that the respondent's NDIS supports were expressing concerns about the rate of transition which were being disregarded, and reminding the MIRT of the requirement to prioritise protection of the community under the CLMI Act.
3. Dr McCreanor strongly recommended a reduction in the number of overnight leaves of absence granted to the respondent and to slow his transition into the community.[109] As I have noted above, the respondent's leaves of absence were reduced shortly afterwards.

1. I am satisfied that the evidence I have referred to above is acceptable and cogent evidence enabling me to make the requisite assessment of whether the Minister has met the onus of proof in this matter.

1. I am obliged to consider the risk that the respondent will commit a serious offence, without regard to his mental capacity, or the likelihood that he will be found to be criminally responsible for any of his future conduct.
2. The evidence is overwhelmingly to the fact that, absent any supervision, the respondent is likely to commit a serious offence. The offence likely to be committed is one of violence, and potentially, sexual violence. That could be against one of his carers or a member of the public.
3. The respondent is also assessed as being at risk of attempting to abduct a child.
4. While it has not ever been found that the respondent's motivation for his past conduct in relation to children has been sexually motivated, and the experts have not at any time suggested that any future attempt would be sexually motivated, child stealing is a serious offence, involving the intention to deprive the child's parent or guardian of the care of the child.
5. All of the experts have indicated that, under his present arrangements, the respondent poses a risk of harm to others, but his risk of doing serious harm is substantially mitigated by those arrangements. However, those arrangements are exceptionally strict. The respondent is only permitted out of his residence with supervision by two carers. The conditions under which he resides are carefully monitored, to ensure he does not have access to anything which could be made into a weapon, or be used to harm himself or property. His risk is reduced by his familiarity with his carers, but deviation from routine or unfamiliar people around him is unsettling and destabilising, and his risk varies accordingly.
6. I am satisfied that the respondent poses an unacceptable risk of committing a serious offence. The seriousness of the offences he is likely to commit, and the likely harm which would result in the event of the commission of such offences, are of such significance that such a finding is unavoidable on the evidence available to me. Further, it is highly unlikely that the respondent's risk is likely to reduce in the near future. His primary mental condition is permanent and any variability in his overall mental state and conduct does not appear to be conducive to effective treatment with medication.
7. While there is some room for optimism that a staged transition to community living will be successful for the respondent in due course, the experts are united in expressing the need for a slow, moderated transition, and recognising that this will not remove the need for constant and robust supervision.
8. Consistent with his level of cognitive functioning, the respondent does not appear to be deterred from behaving in a particular way by adverse consequences having been visited upon his past conduct.

1. In assessing whether making an ECO is necessary to ensure the adequate protection of the community against an unacceptable risk posed by the respondent, the nature of that risk informs, but does not dictate, the assessment of necessity, which must be balanced against the respondent's fundamental right to liberty, a right not to be denied lightly.
2. The respondent has been granted leaves of absence in the past, which have enabled him to stay overnight at approved accommodation. However, the respondent's behaviour, including on those overnight visits, have raised significant concerns about the speed of his transition to community living. Further, while he has approved NDIS supports in place, they are at the very early stages of engagement with the respondent, and he is not yet familiar with his new support workers.
3. The primary reason the respondent was (and remains) unfit to stand trial is his cognitive impairment, caused by his intellectual disability and FASD. While he has been diagnosed with schizophrenia, there is limited evidence as to whether that mental illness has any causal involvement in the respondent's previous offending, and it is unlikely to be a significant contributor to the finding that he is unfit to stand trial.
4. If the respondent were not made subject to an order under the CLMI Act, there would be no avenue to supervise or control the respondent's behaviour. As the experts have pointed out, the respondent is unlikely to meet the criteria for long-term admission to a psychiatric facility.
5. An involuntary treatment order is only able to be made under the Mental Health Act 2014 (WA) (MH Act) if the person has a mental illness within the meaning of s 4 of the MH Act, which creates a risk of significant risk to others.[110] Section 4 of the MH Act provides that 'mental illness' has the meaning given in s 6 of the MH Act, which in turn provides that a person does not have a mental illness merely because they have an intellectual disability.[111] In circumstances in which his schizophrenia is not substantially contributing to his risk, it is highly unlikely that the respondent would meet the criteria set out in the MH Act to be made subject to an involuntary treatment order.
6. The respondent is only able to reside at the DJC while he is the subject of a custody order, as the DJC is a 'declared place' pursuant to s 60 of the CLMI Act. While he has accommodation available to him if he is to be supervised in the community, he is, as I have said, in the very early stages of engagement with his NDIS supports at this time.
7. Further, the experts have all expressed caution about transitioning the respondent into the community too quickly. If he were made subject to a community supervision order, that transition would be immediate and complete, which is clearly highly undesirable.
8. Having regard to all of the acceptable and cogent evidence available to me, I am satisfied to a high degree of probability that the protection of the community from the unacceptable risk posed by the respondent can only be adequately achieved by making an extended custody order in relation to the respondent. A community supervision order will not suffice. Accordingly, an extended custody order is necessary.
9. In my view, the appropriate length of the order is three years. That will enable the respondent to be appropriately and slowly transitioned to community living, and to learn to regulate his behaviour and demonstrate a reduced risk of serious offending. It will also provide a sufficient degree of certainty as to the length of the order to enable proper planning to take place and to ensure stability for the respondent.
10. The Minister must apply to this court for a review of the ECO as soon as practicable after the end of one year after the order is made. Likewise, with the leave of the court, the respondent may apply to the Supreme Court for a review of the ECO.
11. Under a review, the court is entitled to cancel the ECO. It may, instead, make a community supervision order in respect of the respondent. If the respondent's transition to the community is successful on a faster timeline, the court will have the opportunity to consider such an option. However, in my view, three years is the minimum appropriate term of the ECO.

1. Pursuant to s 110 of the CLMI Act, I make an extended custody order in respect of the respondent for a period of three years from today's date.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[5] Book of Materials (BOM) Vol 1, 16 - 22.

[20] Attorney General v WAW [2025] WASC 324 (WAW) [20].

[29] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21].

[30] WAW [75]; Attorney General v PHB [2025] WASC 312 (PHB) [56].

[41] See for example, BOM Vol 3, 981 [9.5].

[42] BOM Vol. 3, 1012 [109], BOM Vol 3, 981 [9.6].

[50] BOM Vol 1, 18, Electronic Monitoring Report dated 8 January 2026.

[82] BOM Vol 3, 983 [9.17], [9.20].

[99] BOM Vol 3, 1008 - 1013 [72] - [113].

[100] BOM Vol 3, 1013 [115] - [116].

[101] BOM Vol 3, 1013 - 1014 [117] - [118].

[103] BOM Vol 3, 1014 [120] - [121].

[104] BOM Vol 3, 1015 - 1017 [127] - [137].

[105] BOM Vol 3, 1017 [138] - [140].

[106] BOM Vol 3, 1017 [142], 1019 [153].