ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- SJQ BY HIS NEXT FRIEND THE PUBLIC ADVOCATE [2026] WASC 36 (16 February 2026)

(a) an extended custody order in relation to the respondent under s 110(1) of the CLMI Act;

(b) the alternative to (1), a community supervision order in relation to the respondent under s 110(4) of the CLMI Act;

(c) an interim custody order in relation to the respondent under s 107(2) of the CLMI Act; and

(d) orders pursuant to s 106(1) of the CLMI Act that the respondent be examined and reports prepared.

1. The Application is supported by an Affidavit of Daniel Sean McDonnell sworn 12 February 2026 (the McDonnell Affidavit).
2. The Application for the interim detention order was listed on an urgent basis. The custody order made by Magistrate Gibbs is due to expire on 21 February 2026. The Application was filed on Thursday 12 February 2026. It was listed for directions and the hearing of the application for an interim custody order on Monday 16 February 2026.
3. On Saturday 14 February 2026, the respondent contacted my chambers notifying me an application for a writ of habeas corpus (directed to the Chief Executive Officer of the Department of Justice) and an application for a writ of mandamus (directed to the North Metropolitan Health Service), had been filed. These applications were made on the basis that the respondent was being unlawfully detained because he was being detained at Hakea Prison despite the fact that the Tribunal had determined that his place of custody was to be the Frankland Centre.

How the CLMI Act requires a court to deal with an accused acquitted on account of mental impairment

1. Section 149(1) of the Criminal Procedure Act 2004 (WA) and s 44(1) of the CLMI Act provide that if a court acquits an accused of a charge on account of unsoundness of mind, the court must deal with the accused under Part 5 of the CLMI Act.
2. Section 46(1) of the CLMI Act (which is in Division 2 of Part 5 of the Act) provides that a court making an order under Part 5 must:

(a) make a custody order; or

(b) make a community supervision order; or

(c) order that the person be released unconditionally.

1. Section 47 of the CLMI Act sets out various matters to which the court must have regard when making an order.
2. Section 49 of the CLMI Act provides that a custody order is an order that, subject to the CLMI Act, a person be detained in custody at a place to be determined from time to time by the Tribunal under Part 6, Division 3, for the protection of the community.

The Tribunal's role in determining the place of custody

1. Division 3 of Part 6 of the CLMI Act provides for the Tribunal to determine places of custody.
2. Section 61(1) of the CLMI Act provides that the Tribunal must determine the place where a supervised person is to be detained within five working days after the day on which a custody orders is made.
3. Section 62(1) of the CLMI Act provides that the Tribunal must not determine that a supervised person is to be detained in a prison or detention centre unless satisfied that there is no available alternative place of custody that would be suitable.

Applications for extended orders under the CLMI Act

1. Division 3 of Part 7 of the CLMI Act provides for applications for extended custody and supervision orders under that Act.
2. Section 105 of the CLMI Act provides that the Attorney General may apply for an extended order.
3. Section 106 of the CLMI Act provides for the preparation of reports. It provides as follows:
   1. Report to be prepared for application

(1) If an application is made for an extended order in respect of a supervised person, the court -

(a) must order that the person be examined by a psychiatrist, psychologist or other appropriate expert and that a report be prepared and submitted to the court; and

(b) may make any related orders it considers appropriate.

(2) The Minister must arrange for the examination and report.

(3) A report under subsection (2) must set out -

(a) in relation to an application for an extended custody order - the expert's assessment of the likelihood that the supervised person will commit a serious offence if not subject to an extended custody order; and

(b) the expert's assessment of the supervised person's rehabilitation, retraining or resocialisation requirements; and

(c) the reasons for the expert's assessment.

1. Section 107 of the CLMI Act provides for the making of interim custody orders. That section provides:
   1. Interim custody orders

(1) If, after an application for an extended custody order is made but before the application is determined, the current custody order will or is likely to expire, the Minister may apply to the Supreme Court for an interim custody order in respect of the supervised person.

(2) If the court is satisfied that, to ensure the adequate protection of the community, it is desirable that the supervised person continue to be subject to a custody order while the application for an extended custody order is yet to be determined, it may make an interim custody order in respect of the person, which has effect until the application for the extended order is determined.

1. Section 107(4) of the CLMI Act provides that if an interim custody order is made, Part 6 of the CLMI Act applies as if the interim custody order were a custody order. Therefore, if an interim custody order is made, the Tribunal will need to again consider the respondent's place of custody.
2. The making of a final custody order is provided for in s 110 of the CLMI Act. The circumstances in which such an order might be made were discussed by Lundberg J in Attorney General v PBH by his Guardian ad litem the Public Trustee [2025] WASC 321 and Lemonis J in Attorney General v WAW [2025] WASC 324. It is not necessary for me to repeat what they said there, today.
3. It is relevant to note that a person performing a function under the CLMI Act must have regard to the principles in s 7(2) of the CLMI Act. The objects and purpose of the Act are set out in s 7(1) of the Act.
4. Section 8 of the CLMI Act provides that the paramount consideration of a person when performing a function under this Act is the protection of the community.

1. The background to the Application is set out in the McDonnell Affidavit and its attachments. The following relevant matters emerge from that material.
2. The respondent is currently 47 years old and will turn 48 this year.
3. He has a long history of abusing illicit drugs, including cannabis, methamphetamine and heroin.
4. The respondent also has a long criminal record that commenced when he was 18 years old. That record includes convictions for stealing, assaults, breaches of violence restraining orders, drug offences, driving offences and breaches of bail.
5. He has previously been sentenced to terms of imprisonment. On 3 August 2017, he was convicted of criminal damage by fire contrary to s 444(1)(a) of the Criminal Code in the Supreme Court of Western Australia. He received a 3 year term of immediate imprisonment.
6. The respondent has been diagnosed as suffering from treatment resistant paranoid schizophrenia, complicated by a substance use disorder. He has had over 40 psychiatric admissions since first presenting with a drug induced psychosis in 1998. He lacks insight into his illness and the need for treatment.
7. On 15 January 2025, the respondent was charged with assault occasioning bodily harm contrary to s 317(1) of the Criminal Code. It was alleged that while he was an involuntary patient at Armadale Kelmscott Hospital Mental Health, he assaulted another involuntary patient fracturing the other patient's skull and nose and severely bruising his right eye.
8. On 30 June 2025, Magistrate Gibbs in the Armadale Magistrates Court found the respondent unfit to stand trial.
9. On 1 December 2025, following a special proceeding under s 41 of the CLMI Act, Magistrate Gibbs found that the respondent had committed the offence and imposed a community supervision order pursuant to s 46(2) of the CLMI Act for a period of 12 months commencing from that date.
10. On 8 January 2026, following an application made by the Tribunal, Magistrate Gibbs cancelled the community supervision order and made a custody order pursuant to s 89(1) of the CLMI Act for a period of 12 months commencing from 21 February 2025.
11. On 20 January 2026, the respondent was reviewed by Associate Professor Peter Wynn Owen, a consultant forensic psychiatrist at the request of the Tribunal. Associate Professor Wynn Owen prepared a report for the Tribunal following that review. I will say more about that report shortly.
12. On 23 January 2026, the Tribunal reviewed the respondent's matter and produced a report under s 254(3) and s 103(3) of the Act, dated 30 January 2026. The Tribunal recommended that the Attorney General apply for an extended custody order under the CLMI Act. The Attorney General subsequently made the Application.

1. The respondent maintained that he was being unlawfully detained and he opposed the making of either interim, or final orders, while he was being unlawfully imprisoned. He contended that a duly implemented order is the correct status quo on which any extension order should be heard and that the court should not be put in a position of presiding over continuing unlawful imprisonment.
2. Further, in court today when the application was heard, counsel appearing on behalf of the respondent submitted that there were alternative powers which might be exercised under the Mental Health Act 2014 (WA), and the fact that those powers might be exercised to place the respondent into a hospital as an involuntary patient was relevant to my consideration as to whether or not to make an interim order.

Whether order should be made under s 106 of the CLMI Act

1. The Attorney General has sought orders that the respondent be examined by a psychiatrist and a neuropsychologist for the purpose of preparing a report under s 106(1) CLMI Act.
2. Section 106(1)(a) of the CLMI Act provides that I must order that the respondent be examined by a psychiatrist, psychologist or other appropriate expert.
3. I am therefore required to order that the respondent be examined by a psychiatrist and I will make that order.
4. I am also satisfied that it is appropriate for the respondent to be examined by a neuropsychologist. In submissions in court today, counsel for the respondent explained that reports prepared in relation to the respondent had noted cognitive problems. It was contended that those cognitive problems suggested that there might be some underlying organic basis for the cognitive problems exhibited, and that a neuropsychologist report would allow those matters to be investigated and be the subject of evidence at any final order hearing. It was also suggested that the preparation of such a report might identify treatment that might be provided to the respondent.

Whether an interim detention order should be made

1. Section 107(2) of the CLMI Act provides that I may make an interim custody order if I am satisfied that, to ensure the adequate protection of the community, it is desirable that the supervised person continue to be subject to a custody order while the application for an extended custody order is yet to be determined.
2. As I have mentioned, Associate Professor Wynn Owen prepared a report after he reviewed the respondent on 20 January 2026.
3. Associate Professor Wynn Owen considered that the respondent has treatment resistant paranoid schizophrenia, antisocial personality traits, and substance use disorder. He thought that the respondent has no insight into the illness or the need for treatment and that his illness has never been definitively treated.
4. Associate Professor Wynn Owen assessed the respondent using two risk assessment guides:

(a) the Violence Risk Appraisal Guide, Revised, 2013 (VRAG-R); and

(b) Historical, Clinical and Risk Management 20, Version 3, Douglas, Hart, Webster, Belfrage 2013 (HCR-20 V3).

1. Associate Professor Wynn Owen explained that the VRAG‑R is an actuarial risk tool designed to assess the likelihood of violent or sexual reoffending among male offenders.
2. Associate Professor Wynn Owen considered that the respondent's VRAG-R score was in the highest risk category. He said that offenders with the same score as the respondent on release had a 58% likelihood of committing a new violent offence within five years of release and a 78% likelihood of committing a new violent offence within 12 years.
3. Associate Professor Wynn Owen explained that the HCR-20 V3 is a structured professional judgement tool to assess risk of violence. He said that it considers the presence of a range of historical/static and dynamic risk factors for future violence.
4. Associate Professor Wynn Owen said that the respondent displays 20 out of 20 risk factors that have been shown to increase the potential for violence.
5. Associate Professor Wynn Owen considered that there was a risk that the respondent might make threats towards, and assault others, as a consequence of delusional beliefs, resisting treatment, arrest or not having his needs met.
6. Associate Professor Wynn Owen considered that the assault may result in serious injury and harm and will inevitably have both immediate and longer term adverse psychological consequences. He said that the respondent's recent assault might suggest a trajectory of escalation and that his next assault might be more serious still and could result in life changing or life-threatening injury. He considered that the respondent is at high risk of committing a future violent offence.
7. I accept Associate Professor Wynn Owen's evidence. He has considerable expertise in his field, his evidence was not contested, and he gave a cogent explanation for the opinions he expressed.
8. I am not prepared to defer consideration of whether an interim custody order should be made until after the respondent's applications for a writ of habeas corpus and mandamus are determined. I also consider that it is appropriate that I make an interim custody order. I have reached these conclusions for the following five reasons.
9. First, while the respondent challenges the lawfulness of his detention, he does not challenge the lawfulness of the custody order. On the contrary, the respondent's challenge to the lawfulness of his detention proceeds on the basis that the custody order is valid and has legal effect.
10. Secondly, if I make an interim detention order, the custody order previously made would be overtaken by the new order that I have made. Pursuant to s 107(4) of the CLMI Act, it will be necessary for the Tribunal to again consider the respondent's place of custody.
11. Thirdly, any interim custody order must be made before the term of the existing custody order expires on 21 February 2026. After that date, there would be no order to extend.
12. Fourthly, in considering whether to make an interim detention order, s 8 of the CLMI Act provides that the protection of the community is the paramount consideration. The evidence before me established that the community maybe at risk if an interim detention order is not made and the respondent is released into the community.
13. Associate Professor Wynn Owen considered that respondent is at high risk of committing a future violent offence. He thought that there was a risk that if the respondent did reoffend, he might seriously injure any victim.
14. The Associate Professor considered that any future violent assault could be more serious because the violence of the respondent's offending had been escalating. He said that there was a risk that any future assault could result in life changing or life threatening injury.
15. Fifthly, while I accept that it is conceivable that mental health authorities could take action against the respondent if I were not to make an interim custody order and he were released into the community, whether they will or will not involves a large amount of speculation.
16. I have before me an application for an interim custody order, which is presently pressed and which would have the result of the respondent not being released into the community. In my mind, that would provide for the mitigation of the risk that might otherwise be posed by the respondent's release into the community.

1. For these reasons, I will make the orders sought.
2. None of this, however, is to suggest that the court condones, or excuses, any unlawful detention of the respondent (if that is in fact what has occurred). Whether the respondent is being unlawfully imprisoned is the subject of separate proceedings before me. In my view, those proceedings should be determined on an expedited basis.

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