THE STATE OF WESTERN AUSTRALIA -v- AEW [2025] WASC 175 (29 April 2025)

1. The State's application was brought pursuant to s 35 of the Act, which permits a restriction order to be imposed in relation to the respondent under s 48 of the Act.
2. The respondent is a serious offender under custodial sentence, as that phrase is defined in s 3 of the Act, as a number of the offences of which the respondent was convicted were 'serious offences' as defined in the Act.
3. As noted already, pursuant to s 46(1) of the Act, the primary purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing the court might find that the respondent is a high risk serious offender.
4. A 'high risk serious offender' is a person in relation to whom the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the person in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[4]
5. A determination that a person is a 'high risk serious offender' requires proof to a high degree of probability. However, at the preliminary hearing stage, the threshold test is lower. At a preliminary hearing, a judge does not need to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. For there to be 'reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[5]

1. In support of its application, the State relied upon an affidavit of Mr Michael Andrew Hurrelbrink, affirmed on 11 March 2025. Mr Hurrelbrink's affidavit details the respondent's criminal history, and includes several reports and assessments concerning the respondent's risk assessment and ongoing treatment needs.
2. The State also relied upon the affidavit of Heather Applin, affirmed on 22 April 2025, regarding the respondent's plans if he is to be released, and the affidavit of Dan McDonnell, affirmed 22 April 2025, which annexed the transcript of the respondent's trial for the index and other offences, and the post‑sentence supervision order report.
3. I have considered all of the evidence provided to me carefully. The relevant features of it are as follows.

1. The index offences - those offences that render the respondent subject to the provisions of the Act - are three counts of sexually penetrating a child under the age of 16 who was a de facto relative; and two counts of indecently dealing with a child under 16 who was a lineal relative.
2. Those five counts arose out of two sets of incidents almost a decade apart, but formed part of the 21 offences of which the respondent was convicted in 2012, and for which he is currently serving a term of imprisonment.

Sexually penetrating a child known to be a de facto relative: Criminal Code s 329(2)

1. The three counts of sexually penetrating a child under the age of 16 who was a de facto relative occurred sometime between November 1999 and March 2001. At that time, the respondent was the head of a household of six, which included his stepdaughter, to whom I shall refer as TH. She was between six and seven years old at the time of these offences.
2. The first offence occurred when the respondent had taken TH to work with him. At lunchtime, the respondent and TH sat on a bench together to eat. The respondent said he wanted to reward TH for being 'such a good girl'. He then proceeded to put his fingers down the front of her pants, and inserted his fingers inside her vagina. He moved them there for approximately five minutes, causing TH considerable pain and discomfort. While penetrating her and causing her pain, the respondent also told TH she had been good, which made her feel special. The sentencing judge observed this could only have served to confuse her and make it less likely she would report the offence.
3. The second and third offences of sexual penetration of a de facto child occurred sometime later, and as part of a single incident. On that occasion, TH was stung by a bee while in the garden of the family home. She attempted to attract the attention of the respondent who was inside the family home at the time, watching a football match, but he made her wait for about an hour before he let her into the house. When he did, he told her she had disrupted his game and needed to be punished.
4. The respondent took TH into the bedroom and made her take off her clothes. He took a tube of cream from a drawer in the bedroom, and put some of the cream on his fingers and on TH's vagina. He then inserted his fingers into TH's vagina and began to move them around. To TH, it felt like he did this for hours, although it was likely considerably less than an hour.
5. The respondent removed his fingers and then inserted the tube of cream, end first, into TH's vagina. TH described the tube as feeling large and very sharp. As the respondent moved the tube around inside her she was extremely sore and was bleeding.

Indecently dealing with a child known to be a lineal relative: Criminal Code s 329(4)

1. The fourth and fifth index offences committed by the respondent occurred almost a decade later, and were perpetrated against the respondent's biological son, whom I will refer to as AE. At the time of the offences, AE was in year 6 and was 10 or 11 years old.
2. On the first occasion, AE was having a shower. The respondent entered the bathroom where he removed all his clothing and got in the shower with AE. While they were both washing, the respondent pulled on AE's penis. When AE attempted to push his father away, the respondent pushed AE into a wall, and then proceeded to threaten and choke AE with a back scrubbing brush. He only stopped when AE elbowed him. The incident left AE's penis red and swollen.
3. The next offence of indecent dealing also occurred in the shower, though some time after the event described already. AE was in the shower when the respondent again grabbed and pulled at his penis. On this occasion, the respondent restricted AE's airflow using a green scrubbing brush, and he threatened AE as well. The incident caused AE considerable pain, and his penis was again left red and swollen.

1. In addition to the five serious offences I have described, the respondent was also convicted of other offences, including three counts of assault occasioning bodily harm of TH; seven counts of aggravated assault occasional bodily harm of AE; one count of threatening to kill AE; one count of aggravated assault occasioning bodily harm against KE (the respondent's other biological son), and four counts of engaging in conduct knowing or reckless that it may result in harm, contrary to s 101(1) of the Children and Community Services Act 2004 (WA). The offences took place between 2002 and 2010.
2. It is not necessary to detail the specifics of all of those offences, but common to them was the repeated use of force and violence, frequently involving weapons or implements, by the respondent against his children, including beating his children with items and smacking them, stabbing TH with a piece of aluminium and burning her with a stick welder, throwing a sledgehammer at AE, throwing items at AE, hitting AE with a hammer, slicing AE's knee with a knife, and holding a gun to the heads of both AE and AE's mother. A number of the incidents caused the victims to bleed and a great deal of pain.
3. The respondent was also convicted of physically, emotionally, psychologically and/or sexually abusing his three biological children, as well as his stepdaughter TH. In the case of TH, this involved repeated sexual abuse, withholding food, forcing TH to live in a caravan without access to a toilet or shower, excluding her from family activities and forcing TH's siblings to assault her when she was being punished. All of the children were physically abused, much of the time in the presence of the others or some of them. Sometimes they were punished for the acts of another. They were forced to do labour at all hours of the day, carry out sometimes capricious or dangerous tasks, and were treated in ways which were humiliating or isolating. There were times when they were refused medical treatment, including when they had serious injuries.
4. The sentencing judge found that the respondent was, at least to some extent, gratified by causing the children pain and fear.

1. The respondent is now 60 years of age. He is the middle child of five children born to his parents, although he has expressed uncertainty as to the true identity of his elder two brothers' father, as well as that of his younger sister. He also has two younger half‑siblings. The respondent never knew his father, who died as a consequence of alcoholism.
2. When the respondent was nine, his mother, who had raised him alone, began living with her new partner. The respondent described his stepfather as 'very abusive', but has been reluctant to provide details to the authors of the reports with which I have been provided.
3. The respondent has had two significant relationships in his life. The most recent was with TH's mother and lasted 12 years. This marriage produced three children, all of whom were victims of the offending for which the respondent is presently serving a term of imprisonment.
4. The respondent left school after year 10, and has a long work history. He has generally worked in semi‑skilled manual labouring roles, often for years at a time.
5. The respondent has no significant history of substance abuse. He reports having experimented with cannabis 'for a week or so' many years ago, and that he once tried ecstasy. He also claims not to have drunk since the age of 20, which was when he learned about his biological father's struggles with alcoholism.
6. The respondent has not been the subject of any prison charges during his lengthy period of incarceration.[6]

1. For the purposes of this application, I was provided with two psychological reports of the respondent prepared by Wendy Wager in January and March 2013 respectively. While these provide valuable insight into the respondent's background, being over twelve years old, there are limitations in their use in evaluating the respondent's present risk of re‑offending and any continuing threat he may pose to the community.
2. Ms Wager observed that the respondent's response style in testing was one of non‑disclosure and this would likely have affected the scoring. One scale was elevated, being consistent with a person who suppresses anger and oppositional feelings with overt passivity and compliance. While usually successful, at times, the anger can break through controls in a person with these traits.
3. Ms Wager also postulated that the sexual offending by the respondent was seen by him as a means of punishment, rather than as an indication of sexual deviance. However, she also thought it was possible that he had sexually deviant interests in children, as well as a sexually deviant arousal from power. Given the respondent's stance of denial and his presentation as a wronged man, she was unable to further explore this.
4. Ms Wager concluded that the respondent's denials of sexual offending made it difficult to identify the foundations of his behaviour and observed that he significantly justified and minimised the two incidents of physical abuse that he did acknowledge.
5. Ms Wager found it difficult in these circumstances to make an accurate prediction of the respondent's prospects of recidivism. However, using the Static 99 actuarial instrument as a method of assessment, she concluded (following the second assessment of the respondent) that the respondent's risk of re‑offending within a five year period (as at early 2013) was 'moderate to high'.
6. Ms Wager also utilised the 'Risk for Sexual Violence Protocol' (RSVP) instrument to identify potential risk scenarios related to future sexual offending by the respondent. She concluded that the respondent's likelihood of re‑offending was ultimately linked to the formation of a relationship with a woman with children, which could provide potential access to victims. Were the respondent to form an intimate relationship with such a woman, Ms Wager concluded his risk of re‑offending in a sexual manner would escalate to high.
7. Ms Wager also employed the HCR‑20 checklist in order to assess the respondent's risk of future violent behaviour. The respondent's most likely re‑offending scenario is within a domestic situation where he can place himself in a position of power. Ms Wager's opinion is that the risk of the respondent re‑offending in such a scenario would be high, and his risk of re‑offending violently outside of a domestic situation would be low to moderate.
8. Ultimately, Ms Wager concluded that the respondent has ongoing treatment needs for 'sexual offending, violent offending and relationship difficulties'. She said he would require close and supportive supervision were he to be released, and any future intimate partners should be made aware of his offending history so they can be aware of his potential threat to children.

1. I have been provided with a 'Sex Offending Treatment Checklist'[7] and a 'Violent Offending Treatment Checklist',[8] both dated 30 April 2013. Both of these checklists stress the respondent's ongoing denial of his offending. While he expressed a willingness to engage in programmatic intervention, the respondent declined to participate in the 'Think First (Sex Offender) Program' at Acacia Prison, saying that participation in the program would constitute an admission of offending, and repeating his denial of having committed the offences. The respondent has also declined to participate in the program specifically developed for deniers.[9]
2. Given that the respondent has not completed any programmatic intervention since he was imprisoned, I am satisfied that Ms Wager's assessment still has utility in the assessment I must make at this stage.

1. I have also been provided with a post sentence supervision order report dated 26 March 2025. According to this report, the respondent continues to deny his offending. This, and his failure to undertake programs, give the report authors concerns about the respondent's ability to manage his behaviour in the community and his potential for re‑offending.
2. While the respondent's response to engaging with employment and reintegration services was positive,[10] he is adamant that he will not participate in any programs on release.[11] His attitude to psychological counselling is less clear.[12]

1. The respondent does not presently have any accommodation to go to if he is released.

1. The State submits that there are reasonable grounds to believe that the court might find the respondent to be a high risk serious offender. It contends that the respondent may try to find the victims of his offending if he is released.
2. On behalf of the respondent, there was a concession made that the court was entitled, on the evidence, to make a finding as to the threshold question on the preliminary hearing.

1. Having regard to those matters set out in s 7(3) of the Act on which there is evidence before me, I am satisfied that there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the Act.
2. The respondent's conduct occurred over a period of time, against a number of victims. While not all of it was 'serious' offending, it reveals a capacity on the part of the respondent to commit very serious offences of a violent nature. However, the respondent continues to deny the overwhelming majority of his conduct, and has demonstrated a lack of insight and empathy, as well as a willingness to manipulate and dissemble.
3. The fact that the respondent has declined to participate in any programmatic intervention, including for deniers, is of significant concern. The court cannot have any confidence that the respondent would not, if given the opportunity, re‑offend in a similar manner on the basis of the present evidence.
4. Accordingly, I will make the necessary orders for reports and for a final hearing.

Interim detention order or interim supervision order?

1. As to whether an interim detention order or an interim supervision order should be imposed, I am satisfied that the respondent's risk to the community could be adequately managed in the community. The respondent's offending was largely dependent on his relationship to his victims, who were his own children. It will be difficult, particularly with the conditions which would be imposed upon him, for him to have access to children against whom he could commit further offences.
2. The respondent is an intelligent man, without substance abuse issues. He is capable of understanding what will happen in the event that he breaches any conditions of a supervision order.
3. There is no evidence that the respondent's threats to AE were more than words, albeit extreme and frightening, which were designed to intimidate him into remaining silent. While the respondent may continue to hold a degree of animosity towards his stepdaughter, the reports on which the State relies are dated more than 10 years ago, and I am unable to be satisfied on the basis of that evidence that the respondent is likely to present a significant danger to the victims, at least one which cannot be managed by strict restrictions under a supervision order.
4. However, the respondent has been unable to identify any accommodation at which he would reside on his release. I am, at the end of the day, unable to be satisfied that the risk that the respondent presently poses to the community can be adequately managed in the absence of a proper address at which he is to reside, and evidence as to its suitability for the respondent.

1. In those circumstances, I have no option but to impose an interim detention order. However, should suitable accommodation be identified and assessed as suitable, the matter can be brought back on for an application for an interim supervision order.
2. I therefore order that the matter be listed for a final hearing and that the appropriate reports in respect of the respondent be prepared.

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

[1] PES v The State of Western Australia [2014] WASCA 96.

[3] High Risk Serious Offenders Act 2020 (WA) (Act) s 46(1).

[4] Act s 7(1).

[5] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).