THE STATE OF WESTERN AUSTRALIA -v- DRAGON [No 4] [2025] WASC 428 (7 October 2025)

1. The background to the application, the respondent's offending history, the circumstances in which a restriction order had been made, the affidavit evidence of Ms Jones and Mr Lloyd, the offences of contravening a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act for which the respondent had been convicted, and alleged contraventions of the supervision order that had resulted in outcomes other than formal charges were summarised in the reasons for decision published on 23 September 2025: The State of Western Australia v Dragon [No 3] [7] ‑ [41]. These reasons should be read with these earlier reasons, and incorporate [7] to [41] of those reasons as if set out here in full.

1. As was recorded in the earlier reasons, pt 4 of the High Risk Serious Offenders Act concerns the restriction of offenders and div 5 of that part concerns the contravention of a supervision order.
2. Section 53 of the High Risk Serious Offenders Act empowers the State to commence contravention proceedings. Section 53 applies to an offender who is brought before the Supreme Court under a warrant issued under s 51(3) or s 56(7)(d) of the High Risk Serious Offenders Act. Relevantly, s 53 also applies to an offender who is charged with an offence under s 80(1) of the High Risk Serious Offenders Act.
3. Section 54 of the High Risk Serious Offenders Act allows the court to order reports for purposes of contravention proceedings; and s 55 concerns the orders that might be made at the substantive hearing of an application made under s 53 if the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, or is likely to contravene a condition of a supervision order. The orders that the court may make under s 55 are to: rescind the supervision order and make a continuing detention order in relation to the offender; make an order amending the conditions of the supervision order or extending the duration of the supervision order; or affirm the supervision order without amendment or extension.
4. Section 56 of the High Risk Serious Offenders Act concerns the orders that may be made during contravention proceedings, and provides as follows:

(1) This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect of the offender are pending (the pending proceedings).

(2) The court may at any time in the pending proceedings -

(a) if the offender is detained in custody, order the offender to be released, subject to subsection (3); or

(b) if the offender is not detained in custody, order the offender to be detained in custody.

(3) The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -

(a) releasing the offender is justified by exceptional circumstances; and

(b) the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).

(4) The onus of proof as to the matter described in subsection (3)(b) is on the offender.

(5) For the purposes of subsection (3), in considering whether releasing the offender is justified by exceptional circumstances the court may, as it thinks fit, receive and take into account information put before it, whether or not that information would normally be admissible in a court of law.

(6) In making a decision under subsections (2) and (3), the paramount consideration is to be the need to ensure adequate protection of the community.

(7) If the court releases the offender -

(a) the offender remains subject to the supervision order; and

(b) the court may, before the pending proceedings are determined, make an interim order amending the supervision order to include any requirements the court considers appropriate to ensure adequate protection of the community; and

(c) the court may order the offender to reappear before the court at any adjourned hearing of the pending proceedings; and

(d) if it is alleged that the offender has further breached the supervision order or breached an order made under paragraph (c), the court may issue a warrant to have the offender arrested and brought before the court.

1. In this case, s 56 continues to be engaged as the respondent is before the court in respect of pending proceedings: s 56(1) of the High Risk Serious Offenders Act.
2. At the directions hearing on 6 October 2025 I again turned to consider whether the requirement for exceptional circumstances in s 56(3)(a) was engaged in the disposition of the State's application (as contemplated by order 9 of the State's revised minute), that the respondent be detained in custody until further order, which depended upon whether s 56(2)(a) was engaged.
3. In that regard, the first question was whether the respondent (at the conclusion of the hearing on 6 October 2025) would be 'detained in custody' within the meaning of s 56(2)(a).[3]
4. As to how such a question is answered, I again adopted the views expressed by Quinlan CJ in The State of Western Australia v Slater [No 2] at [19] ‑ [20], reproduced below:

Prima facie, in my view, 'detained in custody', within the meaning of s 56, means detained pursuant to the provisions of the Act. Section 56(2)(a) cannot be construed as providing this Court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences. In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act in relation to a suspected or anticipated contravention of a supervision order. An order of the Court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply - including the requirements of s 56(3).

Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).

1. At the hearing on 22 September 2025 the respondent appeared pursuant to a warrant for his arrest that had been obtained from a magistrate pursuant to s 51(3). As such, the respondent was 'detained in custody' when brought before the Court on 22 September 2025, and at that time, the Court was required to be satisfied on the balance of probabilities of both matters specified in s 56(3).
2. In contrast to the position on 22 September 2025, at the conclusion of the hearing on 6 October 2025, the order made detaining the respondent until the conclusion of that hearing would have run its course and the respondent would have been entitled to be released. He would no longer have been detained in custody pursuant to an order made or power exercised under the High Risk Serious Offenders Act. Nor was he (when he appeared before the Court on 6 October 2025) an offender brought before the Court under a warrant issued under s 51(3) or s 56(7)(d).
3. On 6 October 2025 I therefore proceeded on the understanding that there need not be, nor would there be an 'order [for] the offender to be released' within the meaning of s 56(2)(a) if the State's application for an order that the respondent be detained in custody until further order was refused, and that subsections (2)(a) and (3) of s 56 had no application. For that reason, I proceeded on the basis that no issue of exceptional circumstances arose.[4]
4. In so proceeding, I adopted and applied the reasons of Quinlan CJ in The State of Western Australia v Slater [No 2] at [17] and [20] to [24], which are reproduced below:

An issue which arises in this case is whether the requirement for exceptional circumstances in s 56(3) is engaged in relation to the State's application. That, in turn, depends upon whether s 56(2)(a) is engaged.

...

Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).

As a consequence of McGrath J's orders made on 9 December 2021, therefore, Mr Slater is, while that order remains in effect, 'detained in custody' within the meaning of s 56(2)(a). For that reason, if it was proposed that there be an order for Mr Slater to be released now (i.e. prior to 17 December 2021), it would be necessary for me to be satisfied that the requirements of s 56(3) are met, including that there exist exceptional circumstances and that he would substantially comply with the standard conditions of the interim supervision order.

However, once McGrath J's order for interim detention expires tomorrow, Mr Slater will be entitled to be released. No order is required for Mr Slater to be released at that point. In that case, there would not need to be, nor would there be an 'order [for] the offender to be released' within the meaning of s 56(2)(a) and that subsection would have no application. For that reason, the requirement in s 56(3) that there be exceptional circumstances would not apply either. Again, that is because there is no need for any order that Mr Slater be released for him to be released on 17 December 2021; the current order (of McGrath J) will simply have run its course.

This is why the State seeks an order under s 53(2)(b) of the Act. For Mr Slater to be further detained after 17 December 2021 it would be necessary for me to make a positive order to that effect under s 53(2)(b). That power to order further detention is not one affected by s 56(2)(a).

Accordingly, I propose to consider the State's application on the basis that it is an application that I make a positive order under s 53(2)(b). For that reason, no issue of exceptional circumstances arises.

1. This approach was consistent with the State's position as articulated in the course of the hearing on 6 October 2025, and was not opposed on behalf of the respondent.
2. I also proceeded cognisant that in making an order under s 56(2), the paramount consideration is to be the need to ensure adequate protection of the community.[5]
3. In the disposition of the application made by the State under s 53(2)(b), I also adopted and applied the observations of Quinlan CJ in The State of Western Australia v Slater [No 2] at [25] ‑ [27]:

[T]he real issue is that which applies generally to an interim detention order (under s 46(2)(c)) or an interim supervision order under (s 58(2)(c)); namely, whether the Court is satisfied that, to ensure adequate protection of the community, it is desirable to make either an interim detention order or an interim supervision order. That is, in effect, the test that applies to the making of an interim supervision order generally.

This points up an important aspect of any consideration of alleged contraventions of an interim supervision order. Compliance with an interim supervision order (and, indeed, any supervision order) is an important matter, and the importance of such compliance should not be understated. Nevertheless, it must be recognised, having regard to the text and structure of the Act as a whole, that an interim supervision order is not an end in, and of, itself. An interim supervision order is a means to an end: the end being the protection of the community against the risk of serious offences.

In that sense, a supervision order or an interim supervision order will have served its purpose if it protects the community from serious offences, even if compliance with the conditions of the order, in the particular case, has not been perfect. The Court must always keep in mind that the object of the Act to be achieved is the adequate protection of the community from the commission of serious offences.

Assessment of the application made under s 53(2)(b) of the High Risk Serious Offenders Act

1. For the respondent to be further detained after the conclusion of the directions hearing on 6 October 2025 it was necessary for there to be a positive order to that effect under s 53(2)(b) of the High Risk Serious Offenders Act. As to the assessment of the State's application made pursuant to s 53(2)(b), I noted that various findings were made at the hearing of 22 September 2025. I did not understand that either party had taken issue with those findings (save as to the respondent's attitude to engagement with Uniting WA going forward),[6] nor to my having regard to the same for the purpose of determining whether the respondent ought be detained in custody from the conclusion of the hearing on 6 October 2025 until further order. At the hearing on 6 October 2025 there was no further evidence read.
2. On the evidence before the Court, I was satisfied that, to ensure adequate protection of the community, it was desirable on 6 October 2025 to make an interim detention order. Among other things, in so finding I weighed in the balance:

(a) the evidence available with respect to the circumstances in which the contravention offences were committed while the respondent was subject to the supervision order (which the State suggested demonstrated a level of disregard for the conditions of the supervision order and a continued sexual preoccupation with children);[7]

(b) the State's submission that the risk of the respondent committing a serious offence was heightened in circumstances where no suitable accommodation was available, particularly when regard was had to the previous evidence of Dr Wynn Owen in relation to imminence of reoffending in circumstances where there was a lack of suitable accommodation;[8]

(c) that there appeared to be good reason for the authorities to be concerned about their ability to manage the respondent in the community given the absence of suitable accommodation; and

(d) that on the evidence before the Court, particularly the evidence of there being no stable accommodation, I could not be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).

1. Therefore, having given due weight to the paramount consideration (that is, the need to ensure adequate protection of the community) I concluded that it was desirable that the respondent be detained in custody until further order. At counsels' request, I adjourned the application to 5 November 2025 (that is, a date before the substantive hearing of the pending contravention proceedings) with liberty to apply. Whether the respondent ought continue to be detained in custody can be revisited then should an application in the interim be made.
2. In my earlier reasons I recorded that given the evidence read had raised as a concern the stability of the respondent's accommodation, at the next directions hearing I proposed to hear the parties as to whether a direction ought also be made requiring the Department of Justice to prepare an accommodation update report, and for Dr Wynn Owen to be given a copy of that report (should he be ordered to produce an expert report for the purposes of the contravention proceedings). It was also recorded that I proposed to raise with the parties whether evidence as to the written lawful instructions given to the respondent while subject to supervision ought also be collated and before the Court at the substantive hearing of the contravention proceedings.[9]
3. The State's revised minute of proposed orders addressed these matters, and there was no objection taken on behalf of the respondent to the making of orders in the form promoted by the State.
4. Noting the submissions that had been made by the respondent at the hearing on 22 September 2025, without objection I also ordered the Department of Justice in its report to provide information as to any alleged offences for which the respondent was charged while subject to the supervision order (whether pending, withdrawn or for which the respondent was acquitted).

1. For these reasons, I was satisfied that I should make an order detaining the respondent until further order, and make programming directions substantively in terms of the State's revised minute of proposed orders. The orders made on 6 October 2025 are reproduced at sch A to these reasons.

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

[1] High Risk Serious Offenders Act, s 53(1)(a).

[3] The State of Western Australia v Slater [No 2] [2021] WASC 465 [18], cited with approval in The State of Western Australia v MAR [No 4] [2021] WASC 465 [15] and in The State of Western Australia v Dragon [No 3], footnote 17.

[4] The State of Western Australia v Slater [No 2] [24], cited with approval in The State of Western Australia v MAR [No 4] [17].

[5] High Risk Serious Offenders Act, s 56(6).

[8] ts 224 (6 October 2025), referring to ts 102 (24 May 2022). See also The State of Western Australia v Dragon [No 2] [2022] WASC 189 [118], [135], [262].

[9] The State of Western Australia v Dragon [No 3] [66].