ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- TKB [2025] WASC 511 (10 December 2025)

1. The factual background for the purposes of this application is not contentious.
2. On 30 May 2016, the then 56-year-old respondent was living in Girrawheen with his 60-year-old wife (the complainant) and his two children, a 17-year-old daughter (KT) and a 22-year-old son.
3. Early on that morning, the complainant got out of the bed she shared with the respondent and walked towards the door.
4. However, as she opened the door, the respondent jumped out of the bed, grabbed the complainant and threw her on her back on the bed. He got on top of her and started to choke (more technically, strangle) her. He used one hand to squeeze her throat and the other hand to pinch her nose. He was using a lot of force and was closing off her throat. She felt like she could not breathe for about two to three minutes.
5. The respondent then released the complainant's nose but put a blanket over her face, smothering her. This caused the complainant to urinate. She tried to scream but could not make a loud noise because of the presence of the respondent's hand around her throat and the blanket over her face.
6. Notwithstanding this, KT heard the complainant calling for help and opened the door to her parents' bedroom. She saw what was happening and shouted at the respondent to stop. She pushed him and this enabled the complainant to get off the bed. However, the respondent then picked up a 3kg dumbbell and hit the complainant to the side of her head. This made a 'cracking' noise, and KT saw the complainant's face covered in blood. The respondent then hit the complainant with the dumbbell a second time.
7. The respondent then turned to KT and swung the dumbbell at her, hitting her on the right side of her head. This caused instant pain and bleeding. She fell backwards on the bed. She started to scream for help.
8. The couple's son woke and came into the bedroom, in time to see the respondent hit the complainant with the dumbbell at least twice. The complainant ran to the kitchen and dining area, where she sat down. However, the respondent followed, and went into the kitchen, pulling a small axe from a drawer. The axe blade was about 7 cm x 12 cm, with a handle which was about 16 - 18 cm long.
9. The respondent then ran at the complainant and hit her on the top of her head multiple times with the axe blade, causing deep lacerations. This caused her to bleed profusely and she was unable to see out of her left eye.
10. The complainant put her hands up to defend herself and managed to grab the axe from the respondent's hands. She threw it across the room and away from the respondent. However, the respondent then returned to the kitchen and picked up a wooden-handled chef's knife which was approximately 30 cm long. This was seen by both of the children.
11. KT tried to leave the house by the front door, but the respondent prevented her from doing so by closing the door, whilst holding the knife. KT then ran out of the back door, shouting to the neighbours for help.
12. Meanwhile, the respondent walked back over to the complainant, raising the knife above his head. He swung the knife down in the direction of the complainant's neck. The complainant defended herself by deflecting the strike using her hands.
13. The respondent pushed the blade of the knife against the complainant's face. The blade went through the complainant's lower lip and into her gum. Again, the complainant pushed the knife away.
14. Suddenly, the respondent ceased his aggression against the complainant, and walked away. KT saw the respondent walk outside towards the shed, and KT went back inside and locked the back door.
15. The complainant called the police and the respondent was arrested in the shed a short time later. At that time, the respondent smelled strongly of chemicals and he was believed to have attempted self-harm by ingesting a substance. He was later found to have ingested a dangerous toxin commonly found in pesticides. He was placed in an induced coma and was kept in intensive care until 17 June 2016.
16. KT had sustained a 1 cm laceration to the right side of her head, which exposed bone, which required three sutures.
17. The complainant was hospitalised for a week. She suffered a fractured C1 vertebrae, a fractured left cheekbone and eye socket, which required surgical repair, as well as multiple lacerations to her face and hands, and two large cuts to her scalp which required stapling. She also had extensive bruising.
18. The respondent was charged on 21 June 2016.
19. The prosecution later lodged indictment INS 391 of 2016 dated 22 February 2017 alleging that the respondent attempted unlawfully to kill the complainant contrary to s 283(1) of the Criminal Code, and further that he unlawfully wounded a second complainant, in circumstances of aggravation, contrary to s 301(1) of the Criminal Code.
20. On 27 September 2017 in the Supreme Court of Western Australia, Hall J found the respondent to be unfit to stand trial and determined that he would not become fit to stand trial in six months. Accordingly, his Honour quashed the indictment and made a custody order in respect of the respondent, pursuant to s 19(4) of the Repealed Act.
21. The decision of Hall J was not a contentious one. The State and the respondent's counsel were content to rely upon a number of reports which were tendered, without the need for cross-examination of any witness. The diagnosis, to which I refer in more detail shortly, is that the respondent had dementia.[1] Hall J observed:

...it does seem to me to be clear that [the respondent] is not presently and will not in the next six months be fit to plead. In fact, it would seem clear that he is never going to be fit to plead. This is, it would seem, a chronic and deteriorating condition. So his condition is only going to get worse in the long term.[2]

1. In his reasons for imposing the custody order, Hall J said:

[The respondent's] condition has not improved, as I pointed out. It was also accompanied by some psychotic beliefs as to his wife which continue - or delusions which continue to be held by him. Given his present state of health and the continued holding of those beliefs, it is my view that there would be a significant risk that if released unconditionally [the respondent] may harm his wife or other members of his family. It is also possible that, given that his condition is likely to have been causative of this behaviour, that he may over time become more aggressive and certainly increasing aggression is said to be a feature of this form of dementia.

In those circumstances, I've come to the conclusion that at this point in time the only appropriate order is a custody order. Having come to that conclusion, I recognise that [the respondent] is likely to reach a point at some stage where a prison environment will not be appropriate. The statute allows for in those circumstances the Mentally Impaired Accused Board to make a recommendation to the Governor that he be released at that point, and that, I'm sure, could be to a secure dementia facility at that appropriate time.[3]

1. A conditional release order was made in respect of the respondent on 29 November 2022. On 5 December 2022, the respondent was released on certain conditions under that order. Since that time, he has been residing in a residential care facility for people with mental impairment.[4]
2. On 3 October 2024, the Mental Impairment Review Tribunal (Tribunal) made a leave of absence order of indefinite duration in respect of the respondent on certain conditions, which included that he comply with all instructions from his treating psychiatrist and/or medical practitioner and/or mental health team, and not use any alcohol or illicit drugs.
3. On 9 December 2024, Lemonis J set a limiting term of 8 years and 6 months in relation to the respondent, commencing on 21 June 2016. Accordingly, the respondent's limiting term expired on 21 December 2024.
4. On 3 October 2025, the Tribunal ordered, pursuant to s 79(2) of the CLMI Act that the respondent is not required to return to his place of custody for a period of three years (it cannot make an indefinite order to that effect).

1. The respondent was dealt with pursuant to the Repealed Act. However, the Repealed Act was repealed effective on 1 September 2024, the same date on which the CLMI Act commenced.
2. The CLMI Act introduced a new statutory regime to deal with people accused of criminal offending who were not fit to stand trial or, alternatively, were not guilty by reason of mental impairment at the time of the alleged offending.
3. Pursuant to s 248 of the CLMI Act, an accused found not mentally fit to stand trial under the Repealed Act is to be taken to have been found unfit to stand trial under pt 3 div 2 of the CLMI Act. Further, a custody order under the Repealed Act immediately before the CLMI Act commenced is to have effect as if it were a custody order under pt 5 of the CLMI Act.[5]
4. Following the commencement of the CLMI Act, the Director of Public Prosecutions was required by s 261 of the CLMI Act to apply to the court to set a limiting term for the custody order imposed on the respondent, and the court was obliged, by s 264 of the CLMI Act to then set a limiting term under s 50 of the CLMI Act.
5. If the limiting term set was to expire within 6 months after the day on which the limiting term was set, as it was in this case, the custody order continues until, relevantly, the court makes an order under s 265(6) of the CLMI Act, that is, either discharges the person from the custody order or makes an extended custody order under pt 7 div 5.[6]
6. Pursuant to s 105 of the CLMI Act, the Minister (in this case the Attorney General) may apply to the Supreme Court for an extended custody order in respect of a supervised person. A 'supervised person' includes a person who is subject to a custody order.[7] That is what has occurred in this case.
7. In the case of such an application, pursuant to s 106 of the CLMI Act, the court must order the preparation of a report and the Minister must arrange for the examination of the respondent and the preparation of the report.
8. Pursuant to s 110 of the CLMI Act, the court may, on an application under s 105(1), make an extended custody order in respect of the supervised person to have effect for the term set by the court. 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. An extended custody order is an order that, subject to the CLMI Act, a supervised person be detained in custody at a place determined from time to time by the Tribunal under pt 6 div 3 for the protection of the community.[8]
2. 'Serious offence' means an offence listed in Schedule 1, and includes offences of serious violence such as murder, manslaughter, attempted murder and unlawfully doing grievous bodily harm, but not unlawful wounding or unlawful assault occasioning bodily harm. The fact that the supervised person might not be found fit to stand trial or might not be convicted if they were tried does not prevent the conduct constituting a 'serious offence'.[9]
3. In Attorney General v WAW,[10] in remarks which I gratefully adopt, Lemonis J observed of the notions of 'unacceptable risk' and necessity:

The assessment of whether the threshold condition at s 110(3) is met requires the following two stage evaluation:

1. whether there is an unacceptable risk that the supervised 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; and
2. if so, whether it is necessary to make an ECO to ensure the adequate protection of the community against that unacceptable risk.

The evaluation of whether the risk is unacceptable requires the court's judgment as to the nature and extent of the possible harm. That assessment directs attention to the possible 'serious offences' that might be committed and the harm they may cause. It also directs attention to the likelihood that the offender might commit such offences.

A person's mental impairment is part of their characteristics and thus informs the assessment of risk. Their mental impairment will also inform the assessment of whether it is necessary to make an [extended custody order] to ensure adequate protection of the community.

It should not be assumed that if the court finds there is an 'unacceptable risk', it automatically follows that it is necessary to make an [extended custody order] to ensure adequate protection of the community. Consistent with the approach taken under the HRSO Act, the assessment of 'necessity' requires recognition that a person's entitlement to be at liberty should not be lightly denied. That approach takes account of, but does not give primacy to, the principles set at s 7(2)(a) and s 7(2)(e) of the CLMI Act.

Moreover, the assessment of necessity must have regard to the other protective options available under the CLMI Act, in particular whether the making of a community supervision order provides adequate protection of the community. If it does, then it will not be necessary to make an [extended custody order] to ensure the adequate protection of the community against the unacceptable risk.[11]

1. If the court is not satisfied as to the matter in s 110(3), but is satisfied as to the matter in s 114(2) of the CLMI Act, the court may make a community supervision order in respect of the supervised person.[12] Subsection 114(2) provides:

Before making an extended community supervision order, the court must be satisfied that, to ensure the adequate protection of the community, the supervised person should remain under supervision due to the person's rehabilitation, retraining or resocialisation requirements.

1. A community supervision order is an order that a person, while residing in the community, must comply with the conditions of the order for the protection of the community.[13]
2. In PHB, Lundberg J said of the terms used in s 114(2):

In the context of the CLMI Act, and without being exhaustive, the term 'rehabilitation' generally refers to the restoration of a person to their former health or to a life free of drugs and alcohol. A rehabilitation requirement would include a recommended step or plan which is necessary or appropriate to return the person 'to a good, healthy, or normal life or condition after they have been in prison, been very ill, etc.'

The term 'retraining' refers generally to the process of training someone again, and captures a broad range of vocational training and programmes, although it is possible the term also extends beyond training solely for employment purposes. A retraining requirement would include a recommended step or plan to prepare a person for future vocational endeavours.

The term 'resocialisation' refers generally to a process of educating someone for their resumption of normal social activities in the community and, again, it captures a broad range of matters directed to this purpose. A resocialisation requirement would include a recommended step or plan to educate a person 'to behave around others in a way that is considered suitable or normal, for example after difficult experiences that have affected their behaviour'.[14]

1. When considering whether to make a community supervision order, the terms of pt 5 of the CLMI Act will apply as if the order were being made under that part.[15] Accordingly, the court must have regard to the factors set out in s 47 of the CLMI Act, which are, relevantly:

(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; and

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

1. The CLMI Act omits any provision mandating the consideration of those factors when determining an application for an extended custody order. However, those are all factors which will in general be relevant to the determination of such an application. This is particularly so having regard to the matters about which evidence is admissible, pursuant to s 123 of the CLMI Act.
2. In making a decision on the Minister's application, the court is required to consider the objects, and to have regard to the principles, of the CLMI Act, which are relevantly set out in s 7 as follows:

(1) The objects of this Act are as follows -

(a) to ensure the protection of the community;

(b) to ensure persons with mental impairment who are charged with an offence -

(v) are subject to the least possible interference with their rights and dignity;

(c) to ensure that persons who are subject to supervision orders -

(i) are afforded procedural fairness in relation to the administration and management of those orders; and

(ii) are reintegrated into the community in a safe manner.

(2) A person performing a function under this Act (including when constituting or a member of a court or tribunal) must have regard to the following principles -

(a) that persons with mental impairment should be subject to the least possible restriction on their freedom consistent with the protection of the community;

(b) that persons with mental impairment in the justice system should have access to advocacy services;

(c) that persons with mental impairment in the justice system should be provided with the best possible treatment, care and support;

(d) that persons with mental impairment in the justice system should be dealt with in a manner that is culturally appropriate;

(e) that persons with mental impairment in the justice system should not be subject to outcomes under this Act that restrict their freedom more severely than if they had been convicted of the offence that they have been found to have, or are alleged to have, committed;

(k) that victims of offences committed by persons with mental impairment should have the opportunity to be acknowledged and heard;

(l) that the role of carers and families in the treatment, care and support of persons with mental impairment should be recognised.

1. Pursuant to s 8, the paramount consideration of a person when performing a function under the CLMI Act is the protection of the community.

1. The respondent's condition started becoming apparent in 2015, and he was referred to various specialists for assessment from that time. A psychiatrist in December 2015 apparently recorded his impression that the respondent was suffering from Dementia with Lewy Bodies.[16]
2. In her neuropsychological report dated 31 May 2016, Dr Alisa Holt reported that it was likely that the respondent would be considered to meet criteria for a diagnosis of dementia. While the respondent's clinical picture was most consistent with Dementia with Lewy Bodies, the neuropsychological profile was less convincing, and she thought a 'Parkinson's Plus' diagnosis was the most likely differential.[17]
3. In a report dated 25 November 2016,[18] Dr Jacques Claassen, a Consultant Forensic Psychiatrist, stated that the respondent suffered from mild Neurocognitive disorder with Lewy Bodies, commonly referred to as 'Lewy Body Dementia'. He explained the disorder as falling within the group of neurocognitive disorders which substantially affect the sufferer's cognitive function in one or more of the domains of complex attention, learning and memory, executive function, motor-perceptual and social cognition. It is progressive and incurable.
4. In the respondent's case, his condition was further complicated by the presence of psychotic beliefs, revolving around the fidelity of his wife, and included delusional jealousy as well as delusional misinterpretation of his environment.
5. However, it is unclear whether Dr Claassen's diagnosis relied, at least in part, on the fact that he was told by someone else that the respondent had been diagnosed with Dementia with Lewy Bodies by Dr Rick Stell, a Consultant Neurologist. Dr Stell had not, on the evidence, conclusively diagnosed the respondent with that condition. In a report dated 16 February 2016, Dr Stell reported that the respondent's symptoms raised the possibility of Dementia with Lewy Bodies, but he also suggested other investigations needed to be carried out.[19]
6. Dr Bradleigh Hayhow assessed the respondent on 17 May 2017 and formed the view that the respondent's symptoms were typical of dementia, and the fact that his behaviour had become more stable on certain medication was characteristic of Dementia with Lewy Bodies. A mental state examination revealed that the respondent fell within the 'severely impaired' range, and was again strongly supportive of a dementia diagnosis and 'not inconsistent' with a diagnosis of Dementia with Lewy Bodies.
7. Ultimately, Dr Hayhow concluded that the respondent met the operational criteria for a diagnosis of Major Neurocognitive Disorder (commonly referred to as dementia). The differential diagnosis for the underlying condition included Dementia with Lewy Bodies and Alzheimer's disease.
8. Dr Claassen saw the respondent again in August 2017, and observed deterioration in his cognition and behaviour since November 2016. This was supported by his clinical record, which suggested a gradual and steady decline in the custodial environment.
9. In a report dated 22 October 2018 for the Mentally Impaired Accused Review Board (MIARB), the respondent's then treating psychiatrist, Dr Morton, reported that the respondent continued to express delusional beliefs, which became less problematic when he accepted an oral antipsychotic, but did not abate. In April 2018, he began to refuse to take oral medication and his psychotic symptoms became unmanageable and he was transferred to the Frankland Centre on 2 May 2018 for stabilisation. At that point he was commenced on a depot antipsychotic and medication for treatment of a presumed diagnosis of Lewy Body Dementia.
10. However, Dr Morton opined that the respondent's symptoms were not consistent with Lewy Body Dementia. In particular, his cognitive and motor symptoms did not appear to have declined in line with that diagnosis. Dr Morton was of the view that an alternative valid diagnosis was late-onset schizophrenia that has proved treatment resistant.
11. Dr Morton sought a second opinion from Dr Kim Walsh, Consultant in Older Adult Psychiatry, who agreed that the respondent did not meet diagnostic criteria for Lewy Body Dementia and that late-onset schizophrenia was a reasonable differential diagnosis. The respondent was able to commence on an antipsychotic, which was suitable to treat his psychosis.
12. In her report dated 17 September 2019, Dr Griffiths, a Consultant Psychiatrist at the Frankland Centre reported that the respondent remained free of psychotic symptoms on his oral medication, and his family felt that there had been considerable improvement in the respondent's condition.
13. Dr Tate, a Consultant Psychiatrist, was the respondent's treating psychiatrist in September 2020. Dr Tate reported on 24 September 2020 that the respondent's condition had stabilised from August 2019, when he had been commenced on aripiprazole, and he no longer expressed paranoid or grandiose delusional beliefs, although he maintained his wife was having an affair at the time of his violence towards her. It was recommended he be granted some overnight leave to stay at a residential facility, and some nights with his family.
14. On 21 January 2021, Dr Tate reported that the respondent was granted overnight leave to the residential facility at his previous review, and he underwent a graded transition. There was positive feedback from staff and no concerns with the respondent's mental state. He had been able to go to local shops and other amenities supported by staff. He was capable of accessing them independently, although was not permitted to. He was considered a low risk at that time. He also had access to National Disability Insurance Scheme (NDIS) support.
15. On 15 October 2021, Dr Tate provided an updated report, noting that the respondent had permission to reside at the residential facility for up to 13 nights per fortnight from February 2021 and there were no concerns with his behaviour. He also had one hour per day unescorted community access, with no incidents. He was accepting of his medication but showed limited understanding of its purpose or effects, and did not understand he had a mental illness. He was assessed as being a low risk of committing violence in the community. Dr Tate recommended that the respondent be made subject to a Conditional Release Order (CRO).
16. On 22 March 2022, Dr McCreanor, who had been familiar with the respondent since 2018 but assumed responsibility for his care in February 2022, asked the MIARB to consider recommending the respondent for a CRO. She cited his good progress at the residential facility, and the risk of COVID transmission with the respondent returning to Graylands Hospital fortnightly.
17. On 20 September 2022, Dr McCreanor reported positively on the respondent's residence at the residential facility and noted that the respondent had expressed an interest in living in a less supported environment. At that time, he had permission for unescorted community access of up to four hours a day, which Dr McCreanor considered should be reviewed. Dr McCreanor considered the respondent to be stable in his behaviour and presentation, and noted that he had been assessed as a low risk of violence. The respondent continued to show limited understanding of his medication or his mental illness.
18. A CRO was imposed on the respondent, effective on 5 December 2022. It was subject to a number of conditions, including to abstain from alcohol or illicit substance use, to comply with the lawful directions of his treating psychiatrist and to comply with his mental health treatment, and to comply with a requirement that he not enter an exclusion zone.
19. The respondent was initially reported as maintaining compliance with the CRO. However, on 19 March 2023, the respondent returned from leave with his brother with an injury, reportedly from a fall, which required hospital treatment. While at the hospital, the respondent returned a blood alcohol level of 0.14g/DL. When interviewed on 21 March 2023, the respondent denied using alcohol.
20. On 11 April 2023, Dr Watson and Dr McCreanor wrote to the MIARB to inform it of 'increasing concerns' with the respondent's behaviour. They reported that staff at the residential facility had noted a clear change in the respondent's behaviour since January 2023, including pacing the corridors in the early hours of the morning, playing loud music, repeatedly gifting fruit to a female staff member, despite requests to him to stop, requesting excessive amounts of water, and being increasingly argumentative and belligerent with staff. His family had also noted concerns. He denied such behaviours.
21. As a result, on 12 May 2023, the respondent was admitted to the Frankland Centre under the conditions of his CRO for assessment and management. At that point, concerns were held as to his compliance with his oral antipsychotic medication, and he was commenced on depot medication instead. His antidepressant medication was ceased, on the basis that it may have contributed to his symptoms of mania. The respondent later admitted not taking his oral medication out of concerns it was affecting his vision, when the cause was in fact cataracts.
22. On 3 August 2023, Dr McCreanor informed the MIARB that the respondent's symptoms had fully resolved and he was discharged from the Frankland Centre.
23. On 2 October 2023, Dr Cathyrn McKenzie, a Clinical Neuropsychology Registrar, conducted a neurological assessment of the respondent. She summarised the respondent's results as demonstrating that he continues to be cognitively and functionally impaired, although not declining from functional baseline. In her opinion, the respondent was vulnerable to fluctuations in cognition due to his medical and psychiatric factors and will continue to require a high level of support. However, she did not rule out that the respondent was experiencing subtle functional changes due to neurodegeneration, and recommended an Occupational Therapist review him.
24. On 10 October 2023, Dr Griffiths updated the MIARB on the respondent's condition and reported that he continued to be stable, with the risk of future self-cessation of medication being mitigated by ongoing depot administration. He did not appear to have had a longitudinal deterioration in his cognition from his 2016 assessment. He was considered to be a low risk in the community or to the complainants.
25. Dr Damoderam took over the respondent's care in February 2024, and reported to the MIARB on 22 March 2024 that the respondent had remained stable since his discharge from the Frankland Centre.
26. On 5 June 2024, Dr Griffiths wrote to the MIARB indicating that the respondent did not appear to understand his exclusion zones, and expressing the view that he did not have the capacity to understand or follow the condition excluding him from certain geographical areas. She also expressed concern that he had indicated an intention to travel to Vietnam to find a wife, but he did not understand that he was not permitted to go without the permission of the MIARB and she did not think he ever would. Dr Griffiths was concerned about his safety if he were to travel alone and recommended his passport be confiscated.
27. In about July 2024, the respondent reported going to dinner at an address within the exclusion zone which was part of his CRO. He was reminded of the exclusion zones and supported to ensure compliance.
28. In a report dated 8 November 2024, the respondent's Supervision Officer confirmed no concerns had been raised regarding his compliance or mental state.
29. In a report dated 15 September 2025, Dr Alana Rowick, Consultant Psychiatrist and Dr Rahul Ingle, Advanced Forensic Psychiatry Trainee, reported that the respondent continues to report having a girlfriend in Vietnam. Most of his future goals related to uniting with her, including going to Vietnam to meet her and bringing her to Australia.

Report prepared for hearing Report of Dr Peter Wynn Owen dated 18 August 2025

1. Dr Peter Wynn Owen, Consultant Forensic Psychiatrist, prepared a report in relation to the respondent dated 18 August 2025. Dr Wynn Owen had access to a number of medical records which are part of the Book of Materials.
2. Dr Wynn Owen observed that, due to the respondent's limited spoken English, an interpreter was used, which may have placed limits on the assessment. However, as the interview was only one part of the assessment, he did not consider the limitation to be significant.
3. In interview, the respondent told Dr Wynn Owen that his wife (the complainant) had been having an affair for a number of years, and that he had heard her talking to her boyfriend in person and on the phone. He said that prior to the offences he was arguing with her about the affair. While he now regretted hitting her, he maintained that the affair had occurred. He did not link his mental illness with the offences.
4. While the respondent misses his children, he is aware of the ongoing violence restraining order and said he would not attempt to contact them.
5. The respondent understood he needed his medication to get better, and was accepting of depot administration. He said that if he was no longer on an order, that meant he was cured and he did not need to take his medication any more. He said that if he was not subject to a condition not to consume alcohol, he might have an occasional drink in the future. He did not consider himself to be a risk of violence in the future.
6. The respondent hopes to move into independent accommodation and to get a job, possibly in gardening. He didn't see any problem with his ability to obtain work. He said he would like to find a partner and perhaps marry.
7. Dr Wynn Owen noted that in 2024, the respondent had been intending to marry a woman, but there were concerns that the respondent was being exploited. In any event, her visa application was refused, and the marriage was unable to proceed. The respondent did not express any disappointment in this outcome to Dr Wynn Owen.
8. The respondent reported a good mood most of the time, although said he becomes sad at times when he thinks of the order. His mental state examination was generally normal, although he had no insight into his mental illness.
9. Dr Wynn Owen concurred that the appropriate diagnosis was one of schizophrenia. While an organic disorder such as dementia was a potential differential diagnosis, the lack of cognitive decline and improvement of cognitive functioning with antipsychotic treatment made this unlikely. There is no evidence of personality disorder.
10. Dr Wynn Owen assessed the respondent using a Structured Professional Judgment approach to risk assessment, as well as actuarial risk assessment tools.

Hare Psychopathy Checklist, Revised, Second edition. 2003 (PCL-R)

1. The respondent's score on the PCL-R was in the very low range.

Violence Risk Appraisal Guide, Revised, 2013 (VRAG-R)

1. The VRAG-R is an actuarial risk tool designed to assess the likelihood of violent of sexual reoffending among male offenders. The respondent's score on the VRAG-R was in the lowest risk category; the likelihood of a future offence (when he is well) is similar to that of the general population.

Historical, Clinical and Risk Management 20, Version 3, 2013 (HCR-20 V3)

1. This risk assessment tool serves as an assessment, monitoring and management tool, considering the presence of historical and dynamic risk factors for future violence.
2. The respondent has a history of problems with previous violence, violent attitudes, major mental illness and treatment/supervision response, although these all occurred in the context of the respondent's acute illness. It is likely he has a history of traumatic experiences, although little is known of his background, which may be the origins of a predisposition to past and future violence.
3. Clinically, the respondent lacks insight into his mental illness and its treatment. Further, as long as he remains compliant with treatment and resides at the residential facility, he is unlikely to have future problems with his living situation. However, as Dr Wynn Owen observed, if he is subject to less oversight, relapse is more likely, both due to non-compliance and it being more likely that signs of relapse would be missed.

1. In Dr Wynn Owen's opinion, the respondent's risk of violence is directly related to relapse of his schizophrenia. When he is in remission, his risk of violence is low. His ongoing relationship with his brother and brother's family is a protective factor.
2. On the basis of the available evidence, and particularly given the relatively short period since the respondent was discharged from the Frankland Centre, Dr Wynn Owen was unwilling to draw a conclusion that the respondent's 2023 relapse was definitely caused by non‑compliance with medication, although he acknowledged that was the most likely cause. In Dr Wynn Owen's view, a much longer period on medication without spontaneous relapse was required before he would be prepared to express a higher level of confidence in such a conclusion.
3. The most likely scenario involves violence towards an intimate partner or prospective or perceived intimate partner who he believes, as a result of his relapsed schizophrenia, to be unfaithful to him or not returning his advances. Less likely is that the respondent attacks someone associated with a delusional belief system, for example the perceived boyfriend.
4. Any assault would likely involve the use of weapons, and result in severe harm, both physical and psychological, and may be life‑threatening.
5. Relapse could be indicated by any or all of:

(a) change in sleep pattern;

(b) increased arousal/agitation/irritability;

(c) grandiosity;

(d) treatment questioning or treatment refusal;

(e) paranoid delusional beliefs; and

(f) alcohol use.

1. Dr Wynn Owen gave evidence about the difference between the regime to which the respondent would be subject if a community supervision order were made, as opposed to that which would operate if the respondent were discharged from his order.
2. In Dr Wynn Owen's opinion, the Community Forensic Mental Health Service is more geared towards ongoing risk assessment, and has more capacity and more resources to carry out that task than professionals operating under the Mental Health Act 2014 (WA). While there is the capacity for an involuntary treatment order under the Mental Health Act to be made in respect of the respondent, Dr Wynn Owen's experience is that a degree of imminence is more likely to be required before a medical professional will make such an order, and that greater consideration is given to limiting the restrictions which should be imposed on a person. Under the CLMI Act, while the general principles involve applying the least possible restraint on a person, the protection of the community is the paramount factor.
3. Further, in the event of non-compliance by a person with an involuntary treatment order, the steps which can be taken by mental health professionals to deal with increased risk are much more limited.
4. Dr Wynn Owen was of the opinion that the respondent should be placed on a community supervision order for a period of three years.
5. In particular, conditions relating to medication, exclusion zones and reporting of relationships were considered by Dr Wynn Owen to be essential in any extended order. While he agreed that modifications could be made to proposed conditions relating to alcohol and drugs, he was unwilling to recommend the removal of conditions which would enable the detection of alcohol use.

1. In Dr Wynn Owen's opinion, the respondent presents a high risk of a future serious offence if not subject to an order. order. This is primarily because the likelihood of relapse if the respondent becomes non-compliant with medication is high, in combination with the respondent's self-report that, if he was discharged from the order, he would consider himself 'cured'. Dr Wynn Owen was of the view that in those circumstances, the respondent would in all likelihood cease to comply with his medication regime.
2. However, Dr Wynn Owen was of the view that the respondent's risk can be managed in the community. The respondent should be maintained long term on depot antipsychotic medication, and stability of accommodation and ongoing NDIS support is also required. NDIS Supported Independent Living is, in Dr Wynn Owen's view, the only appropriate alternative to the applicant's current accommodation arrangements.

Other materials Community Corrections Extended Order Assessment dated 25 August 2025

1. According to Ms Fletcher, the Senior Community Corrections Officer (CCO) assigned to the respondent, the respondent expressed a desire to be discharged from the custody order and to live without restrictions, including to travel to Vietnam to visit family. He hopes to find a new life partner to grow old with and provide for mutual love and care in his senior years.
2. The respondent is now 65 years old. He requires a Vietnamese interpreter and his treating team and members of his family have expressed concerns that his English language skills have deteriorated in recent years. He regularly attends temple and is engaged with his family.
3. The respondent also has NDIS supports. He presently receives four hours of support and assistance 5 days a week. His plan is due to be reassessed before May 2026.
4. The greatest concern with the respondent's compliance with his present conditions has been in relation to the exclusion zones. He has travelled into them on a number of occasions, although none appear to have been conscious or malicious. Indeed, many have been in the company of NDIS workers or family who have not properly understood the requirements of the respondent's order. In response, the respondent's CCO has worked with him to build his understanding and recollection of the boundaries of the exclusion zones.
5. The respondent has requested removal of the condition restricting victim contact, and removal of the exclusion zones from his conditions. The victims of the index offence desire the continuance of these conditions.
6. The respondent's Specialist Support Coordinator is exploring alternative longer-term accommodation arrangements to the residential facility where the respondent presently resides, including taking steps to progress an application for Supported Independent Living.
7. The State Administrative Tribunal appointed a limited guardian in relation to the respondent on 18 June 2025.

Review Report - Clare Fletcher, Senior CCO - dated 11 September 2025

1. In her report dated 11 September 2025, prepared for the Tribunal, Ms Fletcher noted that on 23 May 2025, the respondent's treatment team raised concern that the respondent was spending nights away from the residential facility without the approval or knowledge of his supervising officer. He was apparently staying overnight at his brother's house. It was concluded that this was not a deliberate breach, but rather a misunderstanding of his conditions.
2. Ms Fletcher reported that the respondent wishes to find accommodation near his family and is considering seeking to rent a room in a share house. His Supervising Officer considers his present placement to be preferable.
3. The respondent's Supervising Officer also recommended some amendment to the respondent's exclusion zones to allow him to attend his preferred TAFE for the Adult Migrant English Program. The Supervising Officer did not recommend adding the further exclusion zones sought by the victims of the index offence, due to the already present difficulty in the respondent's understanding of the zones.
4. Ms Fletcher reported that the respondent has indicated an intention to seek out the victims and his son if discharged from his order, but retracted his statements afterwards, and there is some concern that, due to the language barrier, his statement was misinterpreted. It is suggested he lacks insight into the need for protective conditions, but also acknowledged that he has never tried to contact his family in the past.

Community Corrections Extended Order Assessment dated 14 November 2025

1. Ms Fletcher prepared a further report dated 14 November 2025. The respondent's exclusion zones have been amended to enable him to attend the Balga TAFE to participate in the Adult Migrant English Program, which the respondent will soon commence on a full-time basis (8.30 am to 1.15 pm daily).
2. There has been no suggestion that the respondent has engaged in any illicit substance use or alcohol use, although he has not been subjected to any testing.
3. An application has been made to the NDIS for increased funding for Supported Independent Living, which is to be progressed when possible, but is likely to be many weeks in the assessment process.
4. In her report, Ms Fletcher indicated that the respondent was required to leave his accommodation by June 2026, and that no suitable alternative location acceptable to the respondent had been identified. However, in evidence, Ms Fletcher advised that the respondent's accommodation was now available until at least June 2027, and, depending on an aged care assessment, for which he is now eligible, could be extended indefinitely.

Report of Claudia Fitti, Occupational Therapist dated 18 October 2022

1. Ms Fitti assessed the respondent in October 2022, in order to 'holistically consider and define the comprehensive needs and goals of [the respondent] with regard to any necessary supports required for maintaining independence in living.'
2. Ms Fitti recommended that the respondent be provided with transition supports to enable him to move from the residential facility into independent living. Her recommendation was that he be placed in mainstream housing with up to seven hours active drop-in support with household tasks, supplemented by informal family support on weekends. The supports were considered necessary to assist with household tasks, medication, social activities and engagement, community access and transport assistance, and capacity and skill‑building supports to build his independent living skills.
3. Ms Fitti did not consider the respondent then required the kind of extensive support that was offered by Supported Independent Living.
4. Ms Fitti was of the view that:

(a) [the respondent] is at high risk of mental state and functional deterioration if he is not provided with adequate support during this transition period; and

(b) considering [the respondent's] history, disability and language barriers [the respondent] is highly vulnerable and is at risk of emotional and financial exploitation if he is not supported.

1. If the respondent's order is not continued, he will be transferred to care under the Mental Health Act. There are options for involuntary treatment orders to be made under the Mental Health Act. However, the respondent will not continue to receive the same accommodation and other supports which he presently receives.

Report of Sera Goodwin, Occupational Therapist dated 14 October 2025

1. The respondent was referred for a further occupational therapy assessment, including a Supported Independent Living Assessment, as it was at that time anticipated that he would no longer be able to live at the residential facility. He was assessed in July 2025, and Ms Goodwin reported on 14 October 2025.
2. The respondent's assessment showed that he was experiencing a greater overall impact on his daily functioning as a result of his disability than in the 2022 assessment. In particular, his scores in the domains of 'cognition' and 'getting along with people' were considered to demonstrate severe functional impact, and his scores in the domains 'life activities' and 'participation in society' had deteriorated to the extent that his scores reflected extreme functional impact.
3. The respondent's scores had also deteriorated on a clinician-rated measure of 'life skills', with difficulties across domains including self-care, compliance and anti-social leading to a score reflecting moderate functional impact. He was also assessed as experiencing severe impairment in practical judgement.
4. Ms Goodwin recommended that the respondent have 24/7 Supported Independent Living support, including passive overnight support, as well as in person, immediately available support, ongoing support with decision making, occupational therapy intervention to support cognitive capacity building and neuropsychological assessment. Ms Goodwin also suggested that a referral be made to Positive Behaviour Support services.

1. A report dated 15 August 2025 has been prepared, in which it is reported that the victims of the index offending remain fearful of the respondent and desire non-contact conditions and exclusion zones. In addition to the extensive exclusion zone which presently operates, they sought the respondent be excluded from Mount Lawley, Highgate and Morley.

1. I have been provided with a victim submission of KT, the respondent's daughter. That is admissible pursuant to s 148(2) of the CLMI Act. Pursuant to s 150 of the CLMI Act, I have made it available to counsel and the victim has been notified accordingly.
2. The submission is eloquent and describes KT's internal conflict between her love for her father and her fear of him, as well as the ongoing trauma she suffers from the index offending. She doesn't know what his intentions are or how he feels about her and she hasn't been able to address this because of her trauma. She is worried he will attack her again, and she is prioritising her own safety and well-being. It is clear that the idea that the respondent would no longer be under supervision is something which impacts her greatly.

1. The conduct which resulted in the respondent being placed on a custody order was extremely serious. It was the only such incident in which the respondent has ever been involved, but resulted in severe injuries to his wife and daughter, who remain in considerable fear of the respondent.
2. The risk of the respondent acting in a similar violent manner again in the future is considered to be high, but almost entirely related to his diagnosis of late-onset schizophrenia, and the potential for relapse. While his condition is presently stable and apparently controlled, his most recent relapse was less than three years ago. The genesis of that relapse is relatively poorly understood, because the respondent has not been clear as to his compliance with his medication in the lead up to his relapse, perhaps because his insight into his mental illness is so lacking. However, it means that his treating team are unable to have confidence that a spontaneous relapse is not possible even if the respondent maintains compliance with his medication.
3. It is also of concern that the respondent maintains the delusion which was the catalyst for his conduct towards his then wife and his daughter, namely that his wife had been having a long-term relationship with another man. That delusion is fixed and enduring, notwithstanding the cessation of other symptoms associated with his schizophrenia. This enhances the risk of the respondent committing a harmful violent act against his former wife if he were ever to encounter her. In the absence of an extended order, the respondent cannot be prevented from going into areas she frequents.
4. These particular matters are in the context of the respondent having been assessed as requiring a higher, more intensive level of support than he is presently funded for under his NDIS plan. The four hours of support he receives five days a week are not adequate for all of the respondent's needs. While the existing level of support enables the respondent to engage in fulfilling activities which engage him in the community and sport, it does not enable him to live independently; he simply does not have the skills or capacity. If he were to live outside his current accommodation, he would require Supported Independent Living.
5. If funding were granted to provide the respondent with a higher level of support, the transition to independent living would be challenging and stressful, and is likely to enhance the risk of deterioration in the respondent's mental health.
6. The respondent is also desirous of forming a new intimate relationship. Such a relationship would be the most likely scenario for further violent offending, if the respondent were to engage in such conduct in the future.
7. The Minister has conceded, via counsel, that the evidence is incapable of establishing to the required standard that it is necessary to make an extended custody order in order to ensure the adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence. That concession was, in my view, properly made.
8. I have had regard to the fact that the respondent has only engaged in the conduct which led to the making of the custody order once, when he had not been diagnosed, and was not medicated or supervised. I have also had regard to the risk assessment in relation to the respondent, which is that he is a low risk of future violence as long as he remains medicated. In the circumstances, I am not satisfied that, in order to adequately protect the community against an unacceptable risk that the respondent will commit a serious offence, an extended custody order is required. Accordingly, the matter in s 110(3) of the CLMI Act has not been made out.
9. I am required to consider whether, in the alternative, to ensure the adequate protection of the community, the respondent should remain under supervision due to his rehabilitation, retraining or resocialisation requirements.
10. For the reasons I have set out above, I am so satisfied. The adequate protection of the community requires that the respondent remain under supervision due to his rehabilitation and resocialisation requirements.
11. The rehabilitation aspect involves continued treatment of his mental health condition, particularly maintaining compliance with his medication, and monitoring the risk of relapse.
12. As for resocialisation, it is the aim of the respondent's supporting and treating teams for him to be able to live independently. He has not done so for almost 10 years now. He lacks skills to live independently, and has limited capacity to develop those skills.
13. Resocialisation also encompasses the wish of the respondent to form a new intimate relationship, and ensuring that, if he enters such a relationship, the respondent is able to do so in a manner which is safe for both himself and his partner.
14. Consistently with the objects of the CLMI Act, and the principles to which I am required to have regard by s 7 of the CLMI Act, I have given careful consideration as to whether there is a less restrictive option which can be put in place which will properly protect the community. In particular, I have considered whether the provisions of the Mental Health Act are sufficient to enable the management of the respondent's mental health and his risk to the community.
15. Ultimately, I have determined that, at this stage of the respondent's rehabilitation and move towards community living, only a community supervision order will ensure the adequate protection of the community. Only that structure will enable the respondent's risk to be regularly and rigorously assessed, and appropriate action to be taken if his risk appears to have increased.
16. It should, however, be possible for the respondent's Supervising Officer, his treating team, his NDIS supports and his family to work together to develop arrangements which enable the court to discharge the respondent from the order in the future.

1. The purpose of making the order is to enable the respondent's risk to be assessed and managed, any increase in risk readily identified, and action taken in the event of such an increase.
2. However, with the order in place, there is no need for numerous conditions around risk management; he can be appropriately directed under the standard conditions and by the Tribunal as required. That is, in my view, consistent with the need to ensure the least possible restriction on the respondent's freedom which is consistent with the protection of the community.
3. I note that the leave of absence order to which the respondent is presently subject will cease on imposition of the community supervision order.
4. The respondent is required to comply with the standard conditions set out in s 54 of the CLMI Act.
5. The court may impose any further conditions considered necessary to protect the community.[20] Pursuant to the CLMI Act, conditions which may be imposed include a condition that the supervised person undergo treatment or other measures which may alleviate, or prevent the deterioration of the person's condition.
6. Accordingly, I will impose conditions requiring the respondent to comply with any recommendations of the treating psychiatrist with regard to treatment and medication, and to attend all appointments and to consult and engage with any medical practitioner, psychiatrist, counsellor, psychologist, support service and/or support person, as directed by a Supervising Officer.
7. I will also impose an order setting out exclusion zones for the protection of the victims. Those exclusion zones are consistent with those presently in place. I will also impose non-contact conditions.
8. I will impose a residential condition and a condition that the respondent not leave Western Australia without permission.
9. I will not impose restrictions on the respondent consuming alcohol and there is no need for a prohibition on illicit drugs. I will, however, impose a condition allowing for the respondent to be ordered to attend testing for alcohol and/or drugs.
10. Finally, I will impose an order requiring that the respondent report any friendship or intimate relationship with an adult female (involving more than two occasions of contact) to his Supervising Officer at the next available opportunity.

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

[1] Affidavit of Tse Chee Loo affirmed 30 January 2025 (Loo Affidavit), 46.

[10] Attorney General v WAW [2025] WASC 324 [68] ‑ [72].

[11] See also Attorney General v PHB by his guardian ad litem Alan Van Der Steen [2025] WASC 312 (PHB) [56].

[12] CLMI Act s 110(4). Due to an apparent lacuna in the legislation, the Minister cannot apply for a community supervision order if the supervised person is subject to a custody order, but the court may make a community supervision order.