THE STATE OF WESTERN AUSTRALIA -v- MATIAY [No 4] [2025] WASC 390 (18 September 2025)

Mr Matiay was most recently convicted in 2019 of assault occasioning bodily harm, obscene acts in public and stalking ('stalking' is, of course, the colloquial term for, and statutory description of, the offence of pursuing another with intent to intimidate contrary to s 338E(2) of the Criminal Code).

These convictions arose from two separate incidents.

The conviction of an obscene act in public arose from an incident which occurred on 2 July 2019. At around 7.00 pm on that date, Mr Matiay was walking near a park in Bayswater when he saw a 24 year‑old woman who was jogging. When the woman jogged past Mr Matiay a second time, he exposed his penis to her and asked for sex. The victim saw Mr Matiay again a week later at the same park, and about three months after that, while the victim was jogging at the same park, Mr Matiay approached her from behind on a bicycle and tried to speak to her.

The convictions of assault occasioning bodily harm and pursuing another with intent to intimidate (stalking) arose from an incident which occurred on 26 October 2019. At around 4.20 am on that date, Mr Matiay followed a 46 year‑old woman walking down St Georges Terrace in Perth. Mr Matiay followed her for approximately 20 minutes. The woman was aware of Mr Matiay's presence and, at one point, hid behind a pillar. Mr Matiay also hid behind a pillar until the woman began to walk back towards him, whereupon he again walked towards her. When the woman asked him why Mr Matiay was following her, he grabbed her hair, pulled her head towards the ground and punched her face in an uppercut motion multiple times. Mr Matiay then began to pull the woman towards an alleyway. The woman broke free from his grip and ran away.

The relevant offence for the purpose of the present application is the offence of pursuing another with intent to intimidate, pursuant to s 338E of the Criminal Code.

1. The Original Supervision Order was made by McGrath J in November 2023.[3] There had been a number of administrative adjournments of the application for various reasons which included attempts to find suitable accommodation for Mr Matiay.[4]
2. The State tendered a Book of Materials and a Supplementary Book of Materials that comprised the relevant material pursuant to HRSO Act s 84(5). The State relied upon the oral testimony of three witnesses, each of whom had provided reports:

(a) Dr Wynn Owen, Consultant Forensic Psychiatrist;

(b) Ms Hasson, Forensic Psychologist; and

(c) Mr Carmichael, Senior Community Corrections Officer at the Department of Justice.

1. Mr Matiay was represented at the hearing. He did not give evidence nor adduce any evidence.
2. His Honour considered Mr Matiay's background and antecedents in some detail, which is consistent with the materials before me and which I adopt. For present purposes, the salient matters are:

(a) Mr Matiay was born in Sudan in 1994, the second eldest of four children born to his parent's union;

(b) Mr Matiay's childhood in Sudan was marked by poverty, famine, civil unrest and exposure to family and domestic violence;

(c) he was never a victim of physical, sexual, or emotional abuse;

(d) when he was six years of age, his family moved to Egypt where they remained for three years before migrating to Western Australia;

(e) upon arrival in Western Australia, for the first time, Mr Matiay attended school, though he did not speak English which led to behavioural issues;

(f) he left school when he was in year 10;

(g) he does not have a stable employment history but he has completed an employment course whilst incarcerated;

(h) he reported a history of alcohol abuse commencing at 12 years of age, leading to binge drinking;

(i) at 14 years of age he was using illicit substances including cannabis and methylamphetamine;

(j) abuse of amphetamines has been a significant issue for Mr Matiay for over 12 years;

(k) he had been involved in one significant intimate relationship which lasted for two years, in which he was physically violent and abusive against his former partner; and

(l) he has no children.

1. At the time of the hearing before McGrath J, Mr Matiay was single. He was in sound physical health with no prescribed medication. Dr Wynn Owen diagnosed Mr Matiay with substance abuse disorder (methylamphetamine) currently in remission, anti-social personality disorder and post-traumatic stress disorder (PTSD). He expressed the opinion that these disorders are a dynamic contributor to his risk of future serious offending.
2. There was another relevant offence which occurred in the lead up to the hearing before Justice McGrath. It occurred in February 2022 during an interview at Hakea Prison with a female psychiatrist undertaking an assessment for the purposes of the HRSO Act proceedings. Mr Matiay exposed his penis through his shorts and masturbated it. On 12 October 2022 he was convicted of one offence of committing an indecent act and fined $1,500.
3. In addition to the index offending which I have already mentioned, Mr Matiay had a significant and serious criminal record, including convictions for violent and sexual offences.[5] The seriousness of his offending, and more recently his sexual offending, has escalated over time. From that offending history, McGrath J concluded that 'Mr Matiay has the propensity for anti-social behaviour, aggression and committing serious offences of violence, in particular when under the influence of illicit drugs'.[6] Mr Matiay had by then made little effort to address the cause or causes of his offending behaviour.[7]
4. I adopt, without repeating, McGrath J's summary of the evidence of Dr Wynn Owen and Ms Hasson, both contained in their reports prepared for the purposes of the restriction order hearing, and as given at the hearing itself.[8] Both expressed the opinion that Mr Matiay was at high risk of committing a serious offence if not subject to a restriction order.
5. McGrath J declared Mr Matiay to be a high risk serious offender. His Honour was satisfied that 'the evidence supports the finding that Mr Matiay is at a high risk of committing further serious violent offences and a high risk of committing a sexual offence', for which a restriction order was the only adequate way to protect the community.[9]
6. His Honour then determined that a supervision order would adequately manage the risk of Mr Matiay reoffending. The main reasons for coming to this conclusion were:[10]

First, both Dr Wynn Owen and Ms Hasson expressed the opinion that the risk of reoffending can be managed in the community with appropriate monitoring and treatment under a supervision order. Second, Mr Matiay will be subject to stringent monitoring whilst in the community, including being required to reside at stable accommodation. That stringent monitoring also includes GPS monitoring. Third, Mr Matiay will be provided with the guidance of a Community Corrections Officer. Fourth, he will be required to consult with any psychologist, psychiatrist or counsellor as directed.

1. Accordingly, his Honour made the Original Supervision Order. This was for a period of five years. He was released on this order on 12 December 2023.

1. The Amended Supervision Order was made by Forrester J.[11] The catalyst for the State's application to amend the Original Supervision Order was that on 14 December 2023, Mr Matiay committed the offence of doing an obscene act in a public place in the sight of any person who was in a public place. This was two days after he had been released on the Original Supervision Order on 12 December 2023. The offence occurred at the unit complex at which Mr Matiay resided under the Supervision Order. On 14 December 2023 at around 2.15pm, two women were walking down an external staircase. One of the women was a carer for the other who resided at the unit complex. Mr Matiay was standing outside his unit. Both complainants observed Mr Matiay rubbing his genital area and heard him groaning. As the complainants walked past Mr Matiay and down the stairwell, they observed him expose his erect penis and place it between the metal bars of the safety rails. Police attended the address later that day, and Mr Matiay was arrested. He was remanded in custody until the hearing before Forrester J.[12] Mr Matiay later pleaded guilty to the offence and on 13 June 2024 was sentenced to a term of imprisonment of 6 months and 1 day, backdated to 14 December 2023.
2. I observe that Mr Matiay has in the past committed similar offences to the offending in the previous paragraph.[13]
3. At the hearing, Forrester J had available two further reports:

(a) an addendum psychiatric report from Dr Wynn Owen dated 27 May 2024; and

(b) an Adult Community Corrections Performance Report by Ms Shae Hazzard (Team Leader with the Community Offender Monitoring Unit) dated 31 May 2024.

1. Mr Matiay was represented at the hearing. He did not give evidence nor adduce any evidence.
2. I adopt, without repeating, Forrester J's summary of the evidence of Dr Wynn Owen and Ms Hazzard.[14]
3. The relevant condition of the Original Supervision Order was cl 17 which provided:

Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.

1. The State did not contend that the offending in [18] was a contravention of cl 17 (as it did not involve violence or weapons). Rather, it contended that, for the purposes of HRSO Act s 55(2), the court could be satisfied on the balance of probabilities that Mr Matiay is likely to contravene a condition of a supervision order, namely cl 17. Based on the offending conduct and the psychiatric evidence, Forrester J was so satisfied.[15] Her Honour then determined that the appropriate order was to amend the Supervision Order. Her Honour's reasons for doing so are instructive for the purposes of determining the Application:[16]

During the most recent period he has been in custody, being 7 months, the respondent has not had any adverse incidents recorded against him. That is a significant change in the respondent's previous custodial history, and indicates an increased ability on the part of the respondent to control his impulsivity, and motivation to engage with his SO.

The time that the respondent has served in custody since his arrest has also, it seems, provided a strong reinforcement to him of the seriousness of the consequences which are likely to flow from any future breach of the conditions of the SO, regardless of the nature of the breach.

The fact that some necessary treatment options are not available in custody means that, as long as the respondent remains in custody, steps which could be taken to reduce his risk, potentially substantially, are not being taken. The longer term protection of the community is better served by the respondent being able to access those non-custodial treatment options. Clearly, the community must also be protected in the short and medium term, but I take this matter into account in determining the appropriate order to make in the case of the respondent.

As I have indicated, I am also satisfied that the respondent now has a greater awareness of what release on the SO entails, and a better preparedness for the intensity of the obligations he will face on release. In addition, those with the responsibility for monitoring, supervising and treating the respondent have a greater awareness of the issues confronting the respondent and will be able to adapt the manner in which they deal with him in the initial weeks of the SO, which is to be hoped will assist the respondent's transition into the community without sacrificing community protection.

Having considered all of the evidence, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the SO.

1. The amendment was to strengthen cl 17 and add a further condition protecting Departmental staff: [17]

[n]ot commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either a sexual offence or obscene act, violence, threats of violence, or the possession of weapons or offensive instruments.

...

[n]ot assault, threaten, insult or behave in an intimidating manner to a member of the Departmental staff or any agent providing a service on behalf of the Department of Justice.

1. Relevantly to the Application, the Amended Supervision Order also included conditions requiring that Mr Matiay:
   1. Not possess, consume or use any prohibited drugs, plants of other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed to you by a person duly authorised under the Medicines and Poisons Act 2014 (WA) and your use is in accordance with the instructions of the provider.

1. Not to possess, or consume, or purchase, or use alcohol.

1. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by WA Police including accompanying such persons to an appropriate location for such testing to take place.
2. Provide a valid sample pursuant to Condition 27.

1. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/ or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
2. The five year term of the Supervision Order was continued. [18]
3. The Amended Supervision Order took effect from 15 July 2024.[19]

1. The State relied on the materials tendered at the prior hearings. It then tendered the following additional material for the present hearing:

(a) a Book of Materials for the Contravention Proceedings, volume 1, filed 2 May 2025 (2025 BM #1); and

(b) a Book of Materials for the Contravention Proceedings, volume 2, filed 4 September 2025 (2025 BM #2);

(c) an affidavit of Beau Moulton (a Senior Community Corrections Officer (SCCO) with the Community Offender Monitoring Unit (COMU)) affirmed 5 December 2024 (Moulton Affidavit); and

(d) an affidavit of Tanya-Maree Hollaway (a legal practitioner employed by the State Solicitor's Office) affirmed 6 December 2024 (Hollaway Affidavit).

1. The most significant materials in the two Books of Materials are:

(a) a HRSO Treatment Progress Report by Ms Kathryn Prior, a Senior Clinical Psychologist, dated 19 May 2025 (2025 Prior Report);[20]

(b) an updated HRSO Treatment Progress Report by Ms Prior, dated 19 May 2025 (2025 Prior Update);[21]

(c) a further psychiatric report from Dr Wynn Owen dated 27 May 2025 (2025 Wynn Owen Report);[22]

(d) a Neuropsychological Report of Dr Brenton Maxwell, a Clinical Neuropsychologist, dated 14 August 2025 (Maxwell Report);[23] and

(e) an Adult Community Corrections Performance Report by Mr Moulton and Matthew Wyatt (another SCCO with the COMU) dated 3 September 2025 (September 2025 Report).[24]

1. Dr Wynn Owen and Ms Prior gave some additional oral evidence at the hearing on 12 September 2025. The State also called Ms Aimee Goode, the team leader of the COMU, who endorsed the September 2025 Report and spoke to it.
2. The State filed submissions dated 5 September 2025.
3. Mr Matiay was represented at the hearing. He did not give or adduce evidence.

1. The objects of the HRSO Act are 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 to provide for continuing control, care or treatment of high risk serious offenders.[25] The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but, rather, for the ultimate purpose of protecting the community.[26]
2. By HRSO Act s 51, a police officer or community corrections officer who reasonably suspects that an offender who is subject to a supervision order is likely to contravene, is contravening, or has contravened, a condition of the order may apply to a magistrate for an arrest warrant and ancillary orders. The effect of the arrest warrant is to cause the offender to be arrested and brought before the Supreme Court for it to consider the suspected or anticipated contravention. By HRSO Act s 53, the State may make an application pursuant to HRSO Act s 55 and may also seek an order that the offender be detained in custody while that application is pending.
3. HRSO Act s 55 then provides:
   1. Court to make orders in certain cases

(1) If, on the hearing of an application under section 53, 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, the court must -

(a) rescind the supervision order and make a continuing detention order in relation to the offender; or

(b) except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or

(c) except as provided in section 29, make an order affirming the supervision order without amendment or extension.

(2) If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must -

(a) rescind the supervision order and make a continuing detention order in relation to the offender; or

(b) except as provided in section 29, make an order -

(i) amending the conditions of the supervision order; or

(ii) amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.

(3) In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.

1. HRSO Act s 29 relevantly provides:
   1. Limitation on power to make or amend supervision order

(1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.

(2) The onus of proof as to the matter described in subsection (1) is on the offender.

1. As with HRSO Act s 48, if the court is satisfied that the offender has, or is likely to contravene a condition of the supervision order, the court 'must' then either rescind the supervision order and make a continuing detention order, or affirm, amend or extend the supervision order; there is no discretion.[27] However, the discretion to choose between two types of order 'preserves the basic principle of justice that detention in the custody of the State should only be ordered as a matter of last resort'.[28]
2. It is to be assumed that the offender remains a high risk serious offender; the court is not required to make that determination again.[29]
3. In deciding which approach to take, the 'paramount consideration is to be the need to ensure adequate protection of the community'.[30] As with s 48(2), that requirement does not exclude other considerations.[31] The 'curtailment of liberty must be no greater than is necessary adequately to protect the community from the demonstrated unacceptable risk of harm to the community'.[32]
4. As mentioned, a court cannot affirm, amend or extend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made.[33] The onus of proving this is on the offender.[34] The phrase 'will substantially comply with' should be given its ordinary meaning, consistent with the purposes of the legislation and the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the offender will commit a serious offence.[35]
5. The question of what constitutes 'substantial compliance' and whether the offender will 'substantially comply' are matters of judgment.[36] They require consideration of all of the circumstances, both personal to the offender and external, which will affect them. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat them, and any pro‑social support available to them.[37]
6. Even if the court is satisfied that the offender will substantially comply with the standard conditions of a supervision order, the court must not release the offender unless satisfied that a supervision order will ensure an adequate degree of protection to the community.[38] When considering whether a supervision order would adequately protect the community, it is necessary to take into account any condition which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment.[39]
7. This analysis of the relevant legal principles gives rise to three issues that I need to determine.

(a) Has Mr Matiay contravened the Amended Supervision Order, or is he likely to?

(b) If so, should the Amended Supervision Order be rescinded, affirmed, amended or extended?

(c) What final orders are appropriate?

Has Mr Matiay contravened the Amended Supervision Order, or is he likely to? The recent conduct of Mr Matiay

1. The conduct of Mr Matiay which the State assets warrants the orders sought in the Application is set out in the Hollaway Affidavit and the Moulton Affidavit. He has been charged with and convicted of seven offences of contravening a requirement of a suspension order contrary to HRSO Act s 80(1).

1. By prosecution notice dated 2 August 2024, Mr Matiay was charged with one count of breaching HSRO Act s 80 for, without reasonable excuse, contravening a requirement of a supervision order by deleting images from his mobile phone. This was said to be a contravention of condition 37 of the Amended Supervision Order.[40]
2. The facts were that on Wednesday 31 July 2024 Mr Matiay attended the Department of Adult Community Corrections office to meet with his Community Corrections Officer (CCO). During the appointment his CCO located several images of naked women, some of which appeared to be teenagers. Thirteen images depicted females that appeared to be of a teen age. The pornographic images were located inside the 'bin' location on his gallery. His CCO informed him not to delete the images from his phone. There was approximately 244 images located within the bin folder of the phone. The other images all depicted adult women of varying ages.
3. On Friday 2 August 2024 police attended Mr Matiay's address and conducted a home compliance search as permitted by his supervision order. A review of his mobile phone was conducted and it was identified that all images in the 'bin' folder were deleted. Mr Matiay was cautioned and questioned stating that his CCO said he could and that he had deleted them on Wednesday night when he was at home.
4. Mr Matiay was subsequently arrested. Inquiries conducted identified that Mr Matiay was not given authorisation to delete the images. He was conveyed to the Perth Watch House and informed of the preferred charges.[41]
5. Mr Matiay pleaded guilty, was convicted to this offence on 2 August 2024. [42] He was sentenced on 19 August 2024 to a community based order of seven months duration with program and supervision conditions to run concurrently with the supervision order. In sentencing Mr Matiay the magistrate accepted that Mr Matiay did not make any attempt to hide the images. [43]

1. By prosecution notice dated 4 September 2024, Mr Matiay was charged with two offences arising out of the same incident. The first was using a prohibited drug, namely, amphetamine (PE 49217). The second was breaching HSRO Act s 80 for, without reasonable excuse, using a prohibited drug, namely amphetamine (PE 49216). This was said to be a contravention of condition 18 of the Amended Supervision Order.[44]
2. The facts were that on 27 August 2024 Mr Matiay attended the East Perth Adult Community Corrections Centre (EPACCC) where he completed a urinalysis test in accordance with his Supervision Order conditions.
3. On 2 September 2024 the result of Mr Matiay's urinalysis test was received and found to be positive to amphetamine, that result being greater than 5000 ug/L (the cut off threshold is 150 ug/L) and methylamphetamine, that result being greater than 5000 ug/L (the cut off threshold is 150 ug/L). The urine creatine level was 25.6 mmol/L.[45]
4. Mr Matiay pleaded guilty, was convicted and was sentenced on 5 September 2025. He told the magistrate that he was having a stressful day, drank with a friend and 'started using once again'. The magistrate sentenced Mr Matiay to a community based order of 7 months duration, with program and supervision conditions, to run concurrently with the one he was already on (which was ordered to continue). He also received a fine of $500 for the drug offence.[46] Mr Matiay and the magistrate had the following exchange:[47]

ACCUSED: So I didn't use - within the days that I got out, I was just sticking to the order, doing everything correct, then within the last couple of days, a few weeks later, that's when I screwed up. I ended up (indistinct) using, so - - -

HER HONOUR: So what are you going to do about using now?

ACCUSED: I just made the mistake and I just face the consequence now, so here's the consequence I'm facing.

HER HONOUR: If you keep doing it, you might end up in jail.

ACCUSED: Yes, no I will not keep on doing it. This is the first time, so this is new.

1. On 11 September 2024, Mr Matiay was charged with four offences: [48]

(a) between 27 August 2024 and 4 September 2024, breaching HSRO Act s 80 for, without reasonable excuse, using a prohibited drug (PE 50408);

(b) on 11 September 2024, breaching HSRO Act s 80 for, without reasonable excuse, possessing a prohibited drug (PE 50409);

(c) between 27 August 2024 and 4 September 2024, using a prohibited drug, namely amphetamine (PE 50410); and

(d) on 11 September 2024, using a prohibited drug (PE 50411).

The breaches were said to be breaches of condition 18 of the Amended Supervision Order.

1. The facts of PE 50408 and PE 50410 were that on 4 September 2024 Mr Matiay attended the EPACCC where he completed a urinalysis test as his Supervision Order conditions.
2. On 9 September 2024 the result of Mr Matiay's urinalysis test was received and found to be positive to amphetamine, that result being 2470 ug/L (the cut off threshold is 150 ug/L) and methylamphetamine, that result being greater than 5000 ug/L (the cut off threshold is 150 ug/L). The urine creatine level was 49.7 mmol/L.[49]
3. The facts of PE 50409 and PE 50411 were that on 11 September 2024, officers from the HRSO team attended Mr Matiay's home address and conducted a compliance search. During the search a syringe and two clip seal bags were located concealed in a laundry powder box, which was in a cupboard in the laundry. One of the clip seal bags contained a crystal substance, approximately 0.1 gm, which Mr Matiay identified as amphetamine, the second bag contained a small amount of clear liquid.[50]
4. Mr Matiay pleaded guilty, was convicted and was sentenced on 18 September 2024. For charge PE 50409 he was sentenced to a term of imprisonment of 6 months and 1 day, suspended for 9 months. For charge PE 50809 he was sentenced to a concurrent term of imprisonment of 3 months, also suspended for 9 months. No separate sentence was imposed for the drug offences. The existing community based orders were to continue.[51] Mr Matiay gave the following explanation to the magistrate:[52]

ACCUSED: Well no, no. I have spoke to my Corrective Services officer, Beau, and it's just that - it's just that, yes, I've told him exactly what happened at the time. I was just under too much stress level and I was, like - I was just given too much - just given too much freedom when I was that bored. I couldn't get out of the house, I couldn't do nothing much. So, yes, I just let my stress level get up and, yes, I was just not thinking at the right time and I just go back into the misuse of drugs, which I shouldn't have. Yes.

Contraventions 5 and 6 (PE 54672, PE 54673 and PE 54674 )

1. By prosecution notice dated 2 October 2024, Mr Matiay was charged with three offences.
2. The first two offences were said to have occurred on 24 September 2024. The first was using a prohibited drug, namely, amphetamine (PE 54672). The second was breaching HSRO Act s 80 for, without reasonable excuse, testing positive for methylamphetamine (PE 54673). This was said to be a contravention of condition 18 of the Amended Supervision Order.[53]
3. The facts were that on Wednesday 25 September 2024 Mr Matiay attended EPACCC and conducted a urinalysis test as directed by his SCCO.
4. On Tuesday 1 October 2024 the result of the accused's urinalysis test was received at COMU and found to be positive to amphetamine, that result being 1372 ug/L (the cut off threshold is 150 ug/L) and methylamphetamine, that result being greater than 5000 ug/L (the cut off threshold is 150 ug/L). The urine creatine level was 22.7 mmol/L.[54]
5. The third was for breaching HSRO Act s 80 for, without reasonable excuse, failing to provide a sample of his urine as lawfully directed (PE 54674). This was said to be a contravention of condition 28 of the Amended Supervision Order[55].
6. The facts were that on Friday 27 September 2024 Mr Matiay attended the EPACCC and was issued a verbal direction to undertake urinalysis testing as per condition 28 of the Amended Supervision Order.
7. Mr Matiay was afforded some water and following a scheduled meeting with his SCOO and a Community Forensic Mental Health Service practitioner, he was given a further direction to provide a sample of his urine as above. He failed to provide this sample.[56]
8. Mr Matiay pleaded guilty, was convicted and was sentenced on 24 October 2024. All he could say to the magistrate was that: 'I just need a bit more time dealing with my habit'. The magistrate: [57]

(a) cancelled the community based orders and imposed terms of imprisonment of 2 months;

(b) activated 6 months of the suspended term of imprisonment;

(c) for PE 54673 and PE 55674, imposed a term of imprisonment of two months cumulative for each charge; and

(d) imposed no sentence for the use offence.

This gave rise to a total effective sentence of 10 months which commenced on 24 October 2024.

1. By prosecution notice dated 18 October 2024, Mr Matiay was charged with two offences arising out of the same incident. The first was using a prohibited drug, namely, methamphetamine (PE 58127). The second was breaching HSRO Act s 80 for, without reasonable excuse, using a prohibited drug, namely methamphetamine (PE 58216). This was said to be a contravention of condition 18 of the Amended Supervision Order.[58]
2. The facts were that on Wednesday 2 October 2024 Mr Matiay attended the EPACCC and conducted a urinalysis test as directed by his SCCO.
3. On Monday 7 October 2024 the result of Mr Matiay's urinalysis test was received at the COMU and found to be positive to amphetamine and methamphetamine, the result being amphetamine 781 ug/L and methamphetamine 3267 ug/L.
4. The cut off threshold is 150 ug/L for amphetamine and methylamphetamine. The urine creatine level was 22.2 mmol/L.[59]
5. Mr Matiay pleaded guilty, was convicted and was sentenced on 7 November 2024. Mr Matiay told the Magistrate: 'I just had a bad addiction. I couldn't stop. So yes. I find myself back.' He was sentenced to a 7 month term of imprisonment to be served concurrently.[60]

1. In total, Mr Matiay has spent 372 days in custody since his release on the Amended Supervision Order on 15 July 2024:

(a) 2 August to 19 August 2024 (remand) - 18 days;

(b) 11 September 2024 to 18 September 2024 (remand) - 8 days;

(c) 2 October 2024 to 23 August 2025 (term of imprisonment) - 326 days; and

(d) 24 August 2025 to 12 September 2025 (interim detention order) - 20 days.

1. Or put in the converse, Mr Matiay spent a total of 53 days in the community subject to the Amended Supervision Order.[61]
2. Whilst in custody, Mr Matiay has incurred three prison charges for assaulting other prisoners and has had some other issues of concern. Dr Wynn Owen summarises his conduct as follows:[62]

22 December 2024: Assault on a fellow prisoner while awaiting medications at the Medical Centre. The assault was instigated by Mr Matiay who did not initially comply with custodial instructions to desist. The victim sustained a forehead laceration.

17 March 2025: Assault on his cell mate causing facial and head injuries. The victim was sent off site to a hospital Emergency Department for assessment, returning to the prison on the same day.

6 May 2025: Assault on fellow prisoner in yard. Victim sustained facial injuries and a left arm fracture. Required transfer to external Emergency Department.

Substance use testing

10 May 2025: Mr Matiay refused to provide a sample for urinalysis. Urinalysis/drug screen negative: 8 October 2024, 27 November 2024, 31 December 2024, 26 January 2025 and 18 May 2025.

At interview Mr Matiay reported that the prisoner in the medical centre had come too close and angered him and that "I couldn't stop, I just kept punching him".

He explained that he assaulted his cell mate because he was annoying him and he had given the man opportunity to desist.

In relation to drug test refusal Mr Matiay said that he had not been using because: "You can't get drugs in Acacia" and that on that morning he did not want to wait any longer so chose to decline.

Mr Matiay reported that he had been trying to get prison employment but had to date been unsuccessful.

Did Mr Matiay breach the Amended Supervision Order?

1. The fact that Mr Matiay has been convicted of seven contraventions of breaching the conditions of the Amended Supervision Order pursuant to HRSO Act s 80 means that I am readily satisfied on the balance of probabilities that he has contravened the Amended Supervision Order for the purposes of HRSO Act s 55.
2. That is a sufficient basis for me to determine the balance of the Application. For completeness sake, I add that given that Mr Matiay has not made any significant effort to address his addiction to illegal substances or the underlying issues which cause him to use illegal substances, I am also readily satisfied on the balance of probabilities that he is likely to contravene the Amended Supervision Order in the future.

If so, should be Amended Supervision Order be rescinded, affirmed, amended or extended?

1. Having made the determination in [76] I am now required to determine whether the Amended Supervision Order should be rescinded, affirmed, amended or extended.
2. As set out at [37] and [41], the central issue is whether Mr Matiay can satisfy the court, on the balance of probabilities, that he will substantially comply with the standard conditions of the order if affirmed or amended. It is relevant to highlight that one standard condition is that he comply with any reasonable direction of a community corrections officer.[63] This would include directions to the effect of conditions 18, 27, 28 and 37 (quoted at [26]).
3. In this context, I consider the balance of the evidence.

1. Mr Matiay was managed by the COMU. His case manager was initially Mr Moulton, then Mr Wyatt.
2. The picture that emerges from the contraventions which I have set out at [46] to [72] is of a person struggling with an addiction for whom both the escalating court sanctions and available support was not sufficient to either deter him from further use or motivate him to engage meaningfully with the rehabilitation process. This conclusion is reinforced by Mr Moulton's evidence as to his interactions, and those of his colleagues, over the period between 21 August 2024 and 11 September 2024 (when he was remanded in custody). It is also apparent from the material that Mr Matiay had also been consuming alcohol during that period in breach of condition 25 of the Amended Supervision Order.[64]
3. While Mr Matiay was in the community, Mr Moulton and his colleagues provided him with significant levels of supervision and support. Mr Moulton's evidence is to the effect that in his engagements with Mr Matiay, Mr Matiay showed little insight into his return to both alcohol and prohibited drugs after an apparent initial period of abstinence in the community. He also showed little to no insight into how he would avoid using alcohol and prohibited drugs should be released back into the community. [65]
4. In mid-2024, Mr Matiay had six sessions with David Summerton, a psychologist with the Forensic Psychological Intervention Team. Mr Matiay did not really engage with Mr Summerton and it does not appear that he had any treatment gains as a result. A question was raised as to whether he had the capacity to engage meaningfully in treatment.[66]
5. While in the community on the Amended Supervision Order, Mr Matiay was provided support through the Community Forensic Mental Health Service (CFMHS). CFMHS staff report that Mr Matiay did not present with acute mental health concerns or psychotic symptoms. Rather, his symptomology was seen to be consistent with trauma.[67]
6. On his release, Mr Matiay was provided accommodation and considerable support through Uniting WA's HRSO Supported Accommodation Program (Uniting WA). However, after his release on the Amended Supervision Order, he was not seen to be meaningfully engaging with that organisation. He was reported to have been quite reliant on Uniting WA staff and unwilling to do things himself and thereby increase his own capacity and independence. His use of prohibited drugs at housing organised by Uniting WA put his tenancy at risk. He was also in rental arrears. Ultimately, he was seen as requiring significant independent living supports beyond the scope of the program offered by Uniting WA. Further, Uniting WA raised significant concerns about staff safety during their engagements with Mr Matiay. Because of all these factors, at this stage, he is no longer considered suitable for the Uniting WA program.[68] He has no suitable accommodation available to him in the community.[69]
7. Mr Moulton also reports that concerns were raised as to Mr Matiay's antisocial peer interactions, on the one hand, and, on the other, reluctance to engage in efforts to assist with his social isolation. He also was seen to be disinterested in gaining employment. These all in turn led to boredom, which in turn led to consumption of illicit substances and an increased sexual preoccupation, including the use of pornography.
8. Since Mr Matiay has returned to custody, Mr Moulton has met with him on a number of occasions, however his engagement in these conversations remained limited.[70] Mr Moulton also records the efforts he has made to try and secure Mr Matiay a place in the Mallee Rehabilitation Unit (Mallee Unit) at Casuarina Prison. A barrier here appears to be that Mr Matiay has not completed the programs in the mainstream prison which he would need to before being referred to the Mallee Unit.[71] These programs relate to violent offending and sexual offending. He needs to be seen to be making significant gains from the group and/or individual interventions he is participating in.[72]
9. In the September 2025 Report, the authors observe that the 'offending continues a pattern of suspected sexual preoccupation, deception and drug use'.[73]
10. The overriding theme is that Mr Matiay had no genuine interest in engaging beyond what might be expected of him by the court.
11. Mr Moulton concludes his affidavit by stating that, in his view, there are no meaningful amendments that could be made to the Amended Supervision Order to allow for the adequate management of Mr Matiay's risk of serious offending in the community.[74] This conclusion is reiterated in the September 2025 Report.[75]

1. Dr Wynn Owen interviewed Mr Matiay on 28 May 2025. His mental state examination was unremarkable and he did not present with any symptoms of a major mental illness. Dr Wynn Owen reiterated his earlier diagnoses of substance abuse disorder (methylamphetamine) currently in remission, anti-social personality disorder and probable PTSD. He commented:[76]

Mr Matiay's low motivation to engage with and failure to date to benefit from therapeutic, criminogenic or supervisory intervention requires further assessment. Although a combination of childhood trauma and long term substance abuse commencing at a young age will have undoubtedly contributed to this presentation the issue is so significant (ie a lack of progress to date, no change in risk and no new skills to make future release any more viable) that further investigation is indicated as other neurodevelopmental or learning problems that can be addressed or worked with may be present.

1. When giving evidence, Dr Wynn Owen added:[77]

The concern I have is that PTSD is one of the worst things to have in prison. Prison is a place where you're on high alert all the time anyway. You need to be defensive. You cannot trust the people around you. Behaviours towards you are often aggressive and not well meant, which perpetuates and exacerbates the problems that Mr Matiay has. The fact that he has been involved in quite a number of fights and incidents up until 27 May I think shows that. The change that I have seen, and I have to say, I've not had access to offender notes. I don't know what officers have written about him. But looking at the incident report system on TOMS, he hasn't had an incident reported since 27 May, which is seven days after I last saw him. For Mr Matiay, that's a long period of time. That, coupled with his apparent comment noted in one of the reports before us that he was trying to change his behaviours suggest to me that he's making a good effort to changing his behaviour to achieving a transfer to [the Mallee Unit]. So I think there's also a degree of motivation. Clearly, motivation was the issue that led to him not continuing treatment with the forensic psychology intervention team. I'd hope that some motivation - if some motivation was shown, that he'd be engaged with that team.

1. Dr Wynn Owen said that there was a high likelihood of future violent behaviour by Mr Matiay, identifying the following as the most likely violent scenario:[78]

The most likely violent scenario is Mr Matiay perceiving threat from a stranger male and assaulting the victim to remove the threat. The violence is likely to result in physical and psychological harm to the victim if completed, with immediate and long-term adverse consequences. It is noted that 2 of Mr Matiay's victims of recent prison violence required Emergency Department attention for head and facial as well as other injuries, one sustained a broken arm.

The imminence of serious violent offending is high, particularly if Mr Matiay's general tendency to violent response is heightened by methamphetamine intoxication.

1. As to the risk of sexual violence, Dr Wynn Owen identified that the imminence of such offending is high. At to the risk scenarios:[79]

Repeat: In the context of social isolation and reintegration stress Mr Matiay will expose his penis to a female stranger. This action may be associated with a perception of a rejected advance or a perceived slight. The likelihood of this occurring will be increased if Mr Matiay has used methamphetamine.

Escalates: In the same context as above however, Mr Matiay may follow the victim, and attempt sexual contact and or assault the victim physically.

These scenarios will result in psychological trauma and possibly physical harm to the victim with potentially lifelong adverse effects.

1. In conclusion, Dr Wynn Owen opined:[80]

On the basis of clinical interview and consideration of the results of the risk assessment tools applied it is my opinion that Mr Matiay presents a high risk of a future serious offending if not subject to a Restriction Order. The most likely serious offence is a violent offence, a violent assault while intoxicated with methamphetamine resulting in serious physical harm to the victim. There is undoubtedly an ongoing high risk of non-serious (per HRSO) violent and or sexual offending. The most likely sexual offences being exposure of the penis to a stranger female, such an offence could escalate to a serious offence if associated with stalking and or violent or sexually violent contact, any escalation being more likely to occur in the presence of stimulant use.

Mr Matiay's risk relates to his personality with associated attitudes condoning violent behaviour, poor stress management and coping skills, problems with trust and secure attachment and social isolation.

Mr Matiay's plans for release are again superficial.

1. Dr Wynn Owen made a number of treatment and rehabilitation recommendations. One was that if Mr Matiay was to remain in detention, he be considered for the Mallee Unit. If released, he should be engaged with regular drug and alcohol counselling. His recommendations are to the effect that, if he is to be released, Mr Matiay will require a high level of support and supervision to manage his reintegration back into society.

1. From Ms Prior's report it appears that a significant issue for Mr Matiay is his substance abuse:[81]

Mr Matiay primarily attributed all his offending behaviour and current life problems to his entrenched illicit substance use, namely methamphetamines, and identified that in the community he will require support to avoid a rapid relapse into substance use. He was unsure of where he could obtain this support or who he might turn to for guidance about this. When the option of re‑engaging with Mr Summerton was discussed, he reported that he did not want to talk to his treating psychologist about drug relapse prevention but was unable to elaborate on why he would be against discussing this with Mr Summerton. However, he did note that he would be willing to engage with Mr Summerton either in custody or in the community 'from time to time' with the purpose of obtaining general support with any future re‑integration as 'someone to talk to.'

The option of specific substance abuse counselling with a specialist service provider, either in custody or in the community setting, was raised with Mr Matiay. He expressed an ambivalence about whether this would be helpful to him, despite initially citing that he required support to prevent rapid relapse into drug use in the community. Mr Matiay was clearer and more certain about his opposition to possible residential rehabilitation when this was also raised, citing his dislike of environments that he is unfamiliar with and where he will be required to live closely with others.

Mr Matiay's Account of the Contraventions

In relation to the contraventions involving illicit substance use, Mr Matiay informed his relapse occurred in the context of increased overwhelm arising from his release which he experienced as rapid and unexpected. He reported that upon release, he soon obtained additional funds from Centrelink and "had a lot of money in my pocket" when he bumped into a peer who provided him with methamphetamines, which he accepted and used in their company. He reported that his contact with the peer as well as the drug use was unplanned, and stated that at the time he did not view his use of illicit substances as risky either in terms of breaching his CSO or in contributing to possible re-offending in a sexual or violent manner. He further stated that at the time he was not focused on completing the CSO and did not take the conditions seriously, and was unaware contraventions for drug use could result in incarceration. Mr Matiay informed that his drug use increased rapidly from the initial use, and was maintained by feelings of boredom and a lack of purpose, as well efforts to buffer against feelings of increased stress associated with his release into the community. He reported that he tended to isolate himself and use drugs at home alone, where he then played games on his phone or viewed pornographic websites on occasion. Mr Matiay's reported feelings of stress and overwhelm following his release is consistent with his documented experience following his earlier release to the community, in which he quickly re‑offended in a sexual manner.

1. Ms Prior summarises the dynamics behind Mr Matiay's current offending in the following terms:[82]

Mr Matiay's involvement in the current contraventions appears to have been related to the following factors: his poor coping and overwhelm with his release to the community; a lack of structure and routine; insufficient supports; increased idle time which led to engagement with antisocial peers; and impulsive, rapid relapse of illicit substance use, contributing to further poor decision making and compliance problems. This has occurred in the broader context of his antisocial personality traits, including his lack of insight, impulsivity, and risk­ taking behavioural choices. Pervasive social and familial disengagement, dysphoric mood, with entrenched reliance upon maladaptive coping to mitigate uncomfortable feelings such as stress, boredom, irritability and anger are also salient factors. Further problems with his ability to plan, organise, self-monitor and self-regulate, and control impulses are also relevant in considering his contravening behaviours and functioning in custody and community more broadly. These problems are likely related to his early exposure to complex trauma, chronic drug use from a young age, the possibility of some other underlying neuropsychological issue, or a combination of all these factors.

1. The picture that emerges from Ms Prior's report is that Mr Matiay has no viable plan for release (including any prospective accommodation), no supports in the community, an unwillingness to meaningfully engage with rehabilitation professionals and no skills, experience or motivation of his own to draw on. All this in the context of an ingrained substance abuse addiction.
2. Ms Prior concludes: [83]

If Mr Matiay is placed on a CSO he will require significant external controls on his behaviour as his capacity for applying internal controls in this regard is very limited. All case management and treatment approaches should consider Mr Matiay's self-reported difficulties comprehending and retaining lengthy and complex information, as well as the observed problems noted across various assessments with his ability to plan, remember, and express himself. Specialised assessment of Mr Matiay's cognitive functioning may be helpful in further understanding his clinical picture to inform treatment and management approaches.

1. Dr Maxwell is a clinical neuropsychologist who was engaged to provide a neuropsychological assessment report in relation to Mr Matiay.
2. Mr Matiay did not exhibit executive, cognitive or learning deficits on standardised neuropsychological testing. Some tests could not be completed due to the level of noise in the testing area, but Mr Matiay did demonstrate intact processing such as attention, working memory, speed, reasoning, vocabulary and visual problem solving. He did not demonstrate any significant language deficits or executive deficits.[84]
3. Dr Maxwell indicates that none of Mr Matiay's intellectual abilities fall in the impaired/deficit range. The results of testing were not consistent with an intellectual disability. [85] Mr Matiay also demonstrated an intact capacity to sustain his attention across tasks, suggesting that he does not have significant impairments in attentional control or concentration.[86] Overall, Mr Matiay's cognitive results 'clearly' indicated that he does not have an intellectual disability nor cognitive impairment such as a Neurocognitive Disorder.[87] In Dr Maxwell's opinion, Mr Matiay possesses the requisite cognitive capacity to engage and benefit from typical psychological interventions. [88]
4. Based on the information obtained and test results, Dr Maxwell considers that Mr Matiay would not meet the eligibility criteria for a disability under the National Disability Insurance Scheme, as he does not appear to have significant impairments in cognitive or intellectual functioning nor substantial functional impacts in daily life, once his history of substance use is considered. [89]
5. I add that in the 2025 Prior Update, Ms Prior expresses the view that the Maxwell Report does not change the treatment recommendations set out in the 2025 Prior Report.[90]

1. Mr Matiay has not satisfied me on the balance of probabilities that if I affirm or extend the Amended Supervision Order, he will comply with the standard conditions. He has not been abstinent from drugs or alcohol. His conduct in prison is not supportive. He does not have accommodation nor a plan in place to secure support services. He does not appear motivated to engage in rehabilitation or even remain offence free in the community. He has not made any gains in treatment, self-management and/or life skills in the past 12 months to suggest that, if released on a supervision order, he will be able to comply with its terms.[91] Rather, there is a high likelihood that he will follow the same pathway back to substance abuse described by Ms Prior at [98]. Substance abuse, in turn, is a significant risk factor in further offending, both of a violent and sexual nature.[92]
2. Nor am I not satisfied that there are any meaningful amendments that could be made to the Amended Supervision Order to allow for the adequate management of Mr Matiay's risk of serious offending in the community.

1. The Amended Supervision Order should be rescinded.
2. It should be replaced with a continuing detention order.
3. There is, however, a pathway forwards. Mr Matiay will be given the opportunity to engage in both individual and group counselling. If he engages in this well, and makes rehabilitation gains, then he will position himself to be a good candidate for the Mallee Unit. This in turn will give him the opportunity to come back before the court on review of his continuing detention order with a compelling case for release on a supervision order.

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 Matiay [2021] WASC 361 (Matiay).

[3] The State of Western Australia v Matiay [No 2] [2023] WASC 436 (Matiay [No 2]).

[11] The State of Western Australia v Matiay [No 3] [2024] WASC 245 (Matiay [No 3]).

[12] Matiay [No 3] [1] - [2], [8] - [14].

[26] Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1 [55] - [56] (Kiefel CJ, Keane and Steward JJ) (Garlett).

[27] HRSO Act s 48(1); Garlett [30], [70], [229].

[29] The State of Western Australia v White [No 8] [2025] WASC 194 [41] (Seaward J) (White); Matiay [No 3] [22]; The State of Western Australia v CA [No 3] [2023] WASC 144 [28] (Fiannaca J).

[31] Garlett [106] citing Western Australia v ACJ [2021] WASC 219 [32] (Fiannaca J) (ACJ).

[32] Garlett [55], also [85]; [106]; White [42]; ACJ [32]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56] (Derrick J).

[33] HRSO Act s 29(1), s 55(1)(b), (1)(c), (2)(b).

[35] State of Western Australia v Colbung (No 2) [2023] WASC 197 (Colbung) [31].

[36] Matiay [No 3] [25] - [28]; Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52] (Fiannaca J).

[38] White [47]; Matiay [No 3] [28]; ACJ [38].

[40] Hollaway Affidavit, pages 81 and 82.

[42] Hollaway Affidavit, pages 81 and 82.

[44] Hollaway Affidavit, pages 110 and 111.

[46] Hollaway Affidavit, pages 116 - 122.

[48] Hollaway Affidavit, pages 123 - 126.

[51] Hollaway Affidavit, pages 132 to 139.

[52] Hollaway Affidavit, pages 135 and 136.

[53] Hollaway Affidavit, pages 141 to 143.

[55] Hollaway Affidavit, pages 141 to 143.

[57] Hollaway Affidavit, pages 103 to 108.

[58] Hollaway Affidavit, pages 150 to 151.

[60] Hollaway Affidavit, pages 157 to 165.

[61] September 2025 Report, page 2 (2025 BM #2 529).

[62] 2025 Wynn Owen Report, par 16 (2025 BM #2 505). Set out in more detail in the September 2025 Report, pages 10 and 11 (2025 BM #2 537 and 538).

[66] See generally: Moulton Affidavit, par 23(a)(xxiv); 2025 Prior Report, pages 4 and 5 (2025 BM #2 490 and 491).

[67] Moulton Affidavit, pages 27 and 28.

[68] Moulton Affidavit, par 23(b); 2025 Prior Report, page 6 (2025 BM #2 492).

[69] Moulton Affidavit, par 28. See generally: September 2025 Report, pages 13 to 15 (2025 BM #2 540 - 542); ts 12.9.25, page 9 (Goode).

[70] September 2025 Report, page 13 (2025 BM #2 540).

[71] September 2025 Report, page 17 (2025 BM #2 544).

[73] September 2025 Report, page 2 (2025 BM #2 529).

[75] September 2025 Report, page 18 (2025 BM #2 545).

[76] 2025 Wynn Owen Report, pages 6 and 7 (2025 BM #2 506 and 507).

[78] 2025 Wynn Owen Report, page 8 (2025 BM #2 508).

[79] 2025 Wynn Owen Report, page 10 2025 (BM #2 510).

[80] 2025 Wynn Owen Report, page 10 (2025 BM #2 510).

[81] 2025 Prior Report, pars 25 to 27 (2025 BM #2 493).

[82] 2025 Prior Report, par 33 (2025 BM #2 509).

[83] 2025 Prior Report, par 45 (2025 BM #2 498).

[84] Maxwell Report [68] (2025 BM #2 522).

[85] Maxwell Report [48] (2025 BM #2 519).

[86] Maxwell Report [51] (2025 BM #2 519).

[87] Maxwell Report [67] (2025 BM #2 522).

[88] Maxwell Report [73] (2025 BM #2 523).

[89] Maxwell Report [72] (2025 BM #2 522).

[90] 2025 Prior Update (2025 BM #2 499).

[92] See generally: Moulton Affidavit, par 23.