[2025] WASC 526
General information, not legal advice.
Supreme Court of WA
2025-12-11
Howard J
Original judgment source is linked above.
(1) On a review under section 66 of an offender's detention -
(a) if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b) if the court finds that the offender remains a high risk serious offender it must -
(i) affirm the continuing detention order; or
(ii) subject to section 29, rescind the continuing detention order and make a supervision order.
(2) In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure adequate protection of the community.
(1) An offender is a high risk serious offender if the court dealing with an application under this Act finds that it 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 offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
(2) The State has the onus of satisfying the court as required by subsection (1).
(3) In considering whether it is satisfied as required by subsection (1), the court must have regard to the following -
(a) any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b) any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c) information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d) whether or not there is any pattern of offending behaviour by the offender;
(e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g) the offender's antecedents and criminal record;
(h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i) the need to protect members of the community from that risk;
(j) any other relevant matter.
Indecently Dealt with a Child under 13 years - between 01/01/2016 and 31/12/2016
The victim was having a sleepover with the respondent's partner's daughter. The victim was asleep on a mattress next to the respondent's partner's daughter. The respondent approached the victim and started to rub her breasts on the outside of her clothing. The respondent left the room when the victim woke up.
The respondent and the victim, the respondent's partner, were both intoxicated. An argument escalated into violence when the victim began to strike the respondent with a metal broomstick. At separate points in time both the respondent and the victim had possession of the broomstick and used it to strike the other. The respondent then gained control of the broomstick and struck the victim forcibly over the head with the metal end. This caused a significant wound to the victim's head and resulted in the victim's skull fracturing. The victim fell to the ground and the respondent struck the victim several more times before leaving.
At the age of 15 the respondent touched his five‑year‑old nephew on the buttocks. The respondent reported that he had become sexually aroused when playing with this nephew and had removed his own trousers and was in the process of removing his nephew's trousers when he was interrupted.
Indecently Dealt with a Child aged over 13 and under 16 years (two counts) - between 30/09/1997 and 29/09/2000
The victim was the respondent's younger half‑sister. The offence involved the respondent entering the victim's house while she slept, waking the victim by rubbing her breast on the outside of her clothes and then rubbing her vagina for approximately 5 minutes.
The respondent unlawfully entered the victim's house and found the victim asleep in bed. The respondent lay down next to the victim and touched her shoulder, upper chests and breasts.
The victim was a 28‑year‑old woman, asleep in a bedroom. The respondent saw that the woman was unconscious as a result of intoxication, he removed her clothing and then penetrated her vagina with his penis.
Attempted Sexual Penetration of Child under 13 years (two counts) and Sexual Penetration of a Child under 13 years (two counts) - between 25/03/2002 and 10/12/2002
The two instances of attempted sexual penetration of a child under 13 years occurred within a short space of time. The respondent entered a room where the victim was lying on a mattress, the respondent tried to penetrate her vagina with his penis but the victim used her hands to prevent him. The respondent ejaculated externally and then tried again to penetrate the victim's vagina with his penis but was again unsuccessful.
The first instance of sexual penetration of a child under 13 years occurred when the respondent invited the victim and her brother to his house to smoke cannabis, the respondent then prevented them from leaving, however the victim's brother managed to get away. The respondent then forced the victim to remove her clothes, lay her on a mattress and penetrated her vagina with his penis.
The second instance of sexual penetration of a child under 13 years occurred when the victim asked the respondent for a cigarette. The respondent invited the victim into his house to get it and then prevented her from leaving. The respondent then forced the victim onto a mattress, removed her clothes and penetrated her vagina with his penis.
The respondent entered the house of the victim, his half‑sister, while she was sleeping. The respondent got into the bed where the victim was sleeping and rubbed his groin against her buttocks.
Deprivation of Liberty (Serious Offence) and Assault Occasioning Bodily Harm (two counts) - 18/03/2000
The respondent punched the victim, a 13‑year‑old girl, in the jaw with a clenched fist, causing the victim to fall to the ground. The respondent maintained the assault occurred in response to statements directed by the victim to the respondent (the victim and the respondent were known to each other). The victim ran to a nearby house to hide. The respondent chased after the victim, grabbing her and pulling her backwards causing her to fall to the ground again. The respondent then punched the victim twice in the stomach. The respondent then took hold of the victim, so as to not let her get away, and forced her towards his house against her will. The victim was freed when a third party intervened. In a subsequent interview the respondent said that he had been in a sexual relationship with the victim.
The respondent has an extensive non‑sexual criminal history, with convictions for burglary, aggravated burglary, stealing, possession of drug paraphernalia, creating a disturbance, common assault, disorderly behaviour, property damage, driving without a licence, failure to comply with reporting obligations, breach of bail, breach of protective bail, breach of suspended sentence and escape lawful custody.
[98] ... alcohol fuelled violence and observed sexual contact, including coerced contact and manipulation of vulnerability, while participants were intoxicated and at times involving underage girls, which is likely to have normalised these behaviours. At school [MAR] was bullied and teased, he was also the victim of physical abuse as a child.[22]
Does the respondent remain a HRSO as defined by the Act?
[101] ... presents a high risk of committing a serious offence in the future. A serious sexual offence is more likely than a serious violent offence. [MAR] has a history of violent and sexually violent offending commencing at an early age and persisting into adulthood. Attitudes supporting or condoning sexual offending, substance abuse, problems with stress and coping and lack of self awareness are the most relevant dynamic risks to future offending.[33]
[92] ... the opportunistic indecent assault of a female family member or acquaintance in a place to which he has access who is asleep, at a time when [MAR] has been drinking and is either acutely intoxicated or within hours of ceasing alcohol consumption and has an elevated libido. If the victim (who could be a female under 16 or an adult female) wakes and tells him to stop or breaks free the offending is likely to stop.
[93] An escalation of sexual violence could entail attempted or actual vaginal penetration, with a degree of force used to compel compliance.
[94] An escalation and change would possibly be associated with the use of a degree of force resulting in physical injury, a weapon may also be used. It could also change to opportunistic offending against a female Any sexual offence of the type described will result in immediate and long lasting psychological harm to the victim, with the possibility of significant physical harm in an escalation or change scenario.[34]
[95] The most significant risk factors for violent offending are [MAR's] history and pattern of violent and sexually violent offending and general criminality. Violent offending commenced in adolescence and has continued through adulthood, a strong indictor of increased risk of future offending. Antisocial personality disorder and substance abuse are significant contributors to future risk of violence. Problems with stress and coping, problems with relationships and violent attitudes are also contributors to risk.
[96] The most likely scenario for serious violent offending is violence towards a female partner in an intimate relationship. The context may include a return to substance use to manage feelings of jealousy, or to manage fear of rejection and abandonment. Acute intoxication is likely to be a factor as resulting disinhibition can increase the level of violence used through further impairment of self-control and consequential thinking.[35]
(a) to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b) to provide for continuing control, care or treatment of high risk serious offenders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[1] The State of Western Australia v MAR [No 2] [2021] WASC 97 (MAR [No 2]).
[2] Consistently with previous judgments, I have adopted this pseudonym instead of the respondent's name.
[3] The State of Western Australia v MAR [No 3] [2022] WASC 371(MAR [No 3]).
[4] MAR [No 3] [287(2)] and the annexure to the reasons.
[5] The State of Western Australia v MAR [No 4] [2023] WASC 271 (MAR [No 4]).
[6] The State of Western Australia v MAR [No 5] [2023] WASC 434 (MAR [No 5]).
[9] Book of Materials, Volume 1, page 1. I have described references to the Book of Materials by marking the volume in which they can be found, followed by 'BOM' and the page number of the document.
[10] Email from the State received 18 October 2024.
[12] Treatment Progress Report of Joanna Verden dated 12 November 2025 (Treatment Progress Report): 2 BOM pages 431 - 442.
[14] Psychiatric Report of Dr Peter Wynn Owen dated 23 November 2025 (2025 Psychiatric Report): 2 BOM pages 443 ‑ 457.
[15] Community Assessment Report of Nicole Bennetts dated 26 November 2025 (Community Assessment Report): 2 BOM pages 458 ‑ 463.
[18] Treatment Progress Report [11]: 2 BOM page 434.
[19] Treatment Progress Report [11]: 2 BOM page 434.
[20] Treatment Progress Report [11]: 2 BOM 434.
[21] 2025 Psychiatric Report [98]: 2 BOM page 455.
[22] 2025 Psychiatric Report [98]: 2 BOM page 455.
[23] Treatment Progress Report [12]: 2 BOM page 434.
[24] Treatment Progress Report [12]: 2 BOM page 434.
[26] High Risk Serious Offenders Act 2020 (WA) (Act) s 3.
[27] Psychiatric Report of Dr Peter Wynn Owen dated 11 March 2021 (2021 Psychiatric Report): 1 BOM pages 294 ‑ 320.
[28] Psychiatric Report of Dr Peter Wynn Owen dated 18 April 2022 (2022 Psychiatric Report): 1 BOM pages 371 ‑ 385.
[29] Psychiatric Report of Dr Peter Wynn Owen dated 31 October 2023 (2023 Psychiatric Report): 1 BOM pages 398 ‑ 413.
[31] 2025 Psychiatric Report [69(i) and (ii)]: 2 BOM page 451.
[32] 2025 Psychiatric Report [99]: 2 BOM page 455.
[33] 2025 Psychiatric Report [101]: 2 BOM page 456.
[34] 2025 Psychiatric Report [92] - [94]: 2 BOM pages 454 - 455.
[35] 2025 Psychiatric Report [95] - [96]: 2 BOM page 455.
[36] 2025 Psychiatric Report [71]: 2 BOM page 452.
[37] 2025 Psychiatric Report [72]: 2 BOM page 452.
[38] 2021 Psychiatric Report [24]: 1 BOM page 313.
[39] 2022 Psychiatric Report [63]: 1 BOM page 377.
[40] 2023 Psychiatric Report [146]: 1 BOM page 410.
[41] 2025 Psychiatric Report [72]: 2 BOM page 452.
[42] 2025 Psychiatric Report [73] - [89]: 2 BOM pages 452 - 454.
[43] 2025 Psychiatric Report [101]: 2 BOM page 456.
[44] 2025 Psychiatric Report [106]: 2 BOM page 456.
[45] Treatment Progress Report [8]: 2 BOM page 433.
[46] Treatment Progress Report [9]: 2 BOM page 433.
[47] Treatment Progress Report [11]: 2 BOM page 434.
[48] Treatment Progress Report [16]: 2 BOM pages 435 - 436; ISOTP Completion Report: 2 BOM page 426; 2025 Psychiatric Report [40]: 2 BOM page 448.
[49] Treatment Progress Report [13]: 2 BOM pages 434 - 435.
[50] Treatment Progress Report [16]: 2 BOM page 435.
[51] Treatment Progress Report [16]: 2 BOM pages 435 - 436.
[52] 2025 Psychiatric Report [51]: 2 BOM page 449.
[53] Treatment Progress Report [13]: 2 BOM page 434.
[54] Treatment Progress Report [13]: 2 BOM page 434.
[55] Treatment Progress Report [13]: 2 BOM page 435.
[56] Treatment Progress Report [13]: 2 BOM page 435.
[57] Treatment Progress Report [14]: 2 BOM page 435.
[58] Treatment Progress Report [15]: 2 BOM page 435.
[59] Treatment Progress Report [15]: 2 BOM page 435.
[60] Treatment Progress Report [15]: 2 BOM page 435.
[61] 2025 Psychiatric Report [107]: 2 BOM page 456.
[62] 2025 Psychiatric Report [107]: 2 BOM page 456.
[63] 2025 Psychiatric Report [107(i) - (ii)]: 2 BOM page 457.
[64] 2025 Psychiatric Report [106]: 2 BOM page 456.
[65] Treatment Progress Report [17]: 2 BOM page 436.
[66] Treatment Progress Report [18]: 2 BOM page 436.
[67] Treatment Progress Report [20]: 2 BOM page 437.
[68] Treatment Progress Report [20]: 2 BOM page 437.
[69] 2025 Psychiatric Report [106]: 2 BOM page 456.
[70] Treatment Progress Report [15]: 2 BOM page 435.
[71] Treatment Progress Report [15]: 2 BOM page 435.