(This judgment was delivered extemporaneously and has been edited from the transcript.)
[2]
The State of Western Australia has applied for a restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (the Act). The preliminary hearing of that application is before me today. In support of its application, the State relied upon an affidavit of Fleur Marie Allen, affirmed on 1 September 2025. Ms Allen's affidavit contains the respondent's criminal history, as well as several reports and assessments in relation to the respondent. The State has also filed a brief affidavit as to the lack of accommodation available to the respondent in the community. I have considered all of the affidavit evidence and need not set it out in detail.
The respondent is currently serving a sentence of 2 years imprisonment for offences of possessing child exploitation material, consisting of dozens of sexual images and videos of young girls, including depictions of a young girl engaged in sexual activity with an adult. That sentence will end on 21 November 2025.
The respondent has a long history of sexual offending against young girls, dating back to 1993, when the respondent was 23 years old. That offending has involved indecent dealing and sexual penetration offences against a variety of girls, both the children of friends and a child who met the respondent independently. The respondent's sexual interest in girls appears to be longstanding and entrenched.
The respondent is now aged 55 years and has a complicated psychological and medical make-up. The respondent's intellectual function, receptive language abilities, high level problem solving and working memory are all in the extremely low range. According to a neuropsychological review carried out in 2017, it is also likely that the respondent's longstanding intellectual impairments have been exacerbated by repeated head injuries. The respondent was also personally the victim of childhood sexual abuse by an uncle. Since 2017, the respondent has identified as transgender, and prefers to be known as 'Holly-Anne'. The respondent also has a range of other medical conditions, including spina bifida, Type II diabetes, hepatitis C and a heart condition.
The main purpose of the preliminary hearing is for me to decide whether 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, pursuant to s 46 of the Act. The law in relation to that issue is well settled.[1]
The respondent's counsel conceded that the threshold requirements of s 46 may be met. I accept that concession and 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.
I am also satisfied that it is necessary and desirable for the protection of the community that an interim detention order be imposed, pending the determination of the restriction order application.
My reasons for those conclusions may be briefly stated.
As I have said the respondent has a long history of sexual offending against girls. That history may be summarised as follows.
In 1993 the respondent committed serious offences against a three-year-old girl whose mother was known to the respondent. On the evening of 15 June 1993, the respondent visited the girl's mother. The respondent entered the victim's bedroom and committed two offences of indecent dealing, by rubbing the victim's vagina.
The respondent's next offences occurred on various dates in July 1998. The respondent was charged with, and pleaded guilty to, one count of procuring a child between 13 and 16 years to do an indecent act; one count of indecent dealing with a child between 13 and 16 years and three counts of sexual penetration of a child between 13 and 16 years.
The victim of that offending was a 13-year-old girl. On the first occasion, the respondent offered cigarettes in exchange for the victim showing the respondent her vagina. On another occasion, while on a bus with the girl, the respondent felt her breasts inside her t-shirt for a period of time. On the next occasion, the respondent digitally penetrated the victim's vagina, again in exchange for a promise to gift her cigarettes. Later in the month, the respondent took the girl into some bushes and proceeded to commit further offences of cunnilingus and penile penetration, only stopping when the victim's sister arrived.
In December 2017, the respondent was convicted of a further five sexual offences, committed in January of that year. The victim in that case was the eight-year-old daughter of the respondent's neighbour and friend. The respondent asked the victim to come to the respondent's house to receive a belated birthday present. When the victim did so, the respondent removed the victim's shorts and underwear and took indecent photographs of her lower body before performing cunnilingus on her. The respondent committed further indecent assaults by rubbing the respondent's penis against the victim's vagina and anus until she told the respondent to stop.
In 2021, the respondent was again convicted of child sexual offending, being two instances of indecent dealing with a child under 13 years between May and December of 2016. The victim of that offending was a friend of the daughter of the respondent's cousin, who was known to the respondent.
On that occasion, the victim and her friend were at the respondent's apartment. The respondent noted that the victim had a cough, and purported to check on her health. The respondent instructed the victim to undress and placed a stethoscope against her breasts and squeezed them. The respondent then attempted to hug the victim. When the respondent did so, the victim could feel the respondent's penis pressing into her, near her vagina. The victim pulled away from the respondent and left the house.
As I have said, the respondent's most recent serious offending was for two offences committed in November 2023 of possessing child exploitation material. Those offences are 'serious offences' within the meaning of the Act and, as the respondent is still in prison for those offences, the respondent is a 'serious offender under custodial sentence' within the meaning of s 35 of the Act.
In addition to these offences, the respondent has also been convicted of multiple failures to comply with reporting obligations, possession of an indecent or obscene article, and a breach of a probation order.
A parole assessment report from September 2024 reported that the respondent has not undergone, or been assessed for, any programs or intervention during this current term of imprisonment, notwithstanding that the respondent has complex and high-risk needs across multiple need profiles. The report's author stated that a comprehensive and tailored intervention plan, addressing the respondent's specific risk factors is essential to mitigate the respondent's risks. Evidently, none of that has occurred.
This assessment of the respondent's complex treatment needs and risk factors is supported by reports prepared in 2017 by a psychologist, Ms Claire Lynn, and a neuropsychologist, Dr Carmela Pestell.
Ms Lynn used the Static 99-R tool to assess the respondent's risk of sexual re-offending, which placed the respondent in the Above Average risk category. She described the respondent as failing to acknowledge or reveal risk management strategies, and described a somewhat fatalistic attitude on the respondent's part to relapse prevention. When asked about risk management strategies, the respondent became defensive and said 'I give up' and requested to end the assessment saying 'There's nothing more ‑ I'm a mental case'.
The difficulty in treating the respondent now appears to be better explained, following Dr Pestell's neurophysiological review in 2017. That review revealed significant difficulties for treatment posed by the respondent's cognitive and learning profile. Dr Pestell recommended, at that time, that individual counselling for the respondent was recommended to accommodate the respondent's severe cognitive impairments. As I have said, almost 8 years on, none of that has occurred.
For so long as nothing is done to address the respondent's complex condition, it seems that the future risk that the respondent will offend again is bleak. At the very least, the evidence satisfied me that the respondent's repeated sexual offending against girls, and the absence of any targeted intervention to address that offending, are such that there are reasonable grounds to believe that the Court might find that the respondent is a high risk serious offender.
I will therefore make orders for the hearing of the restriction order application on 8 April 2026, and for the preparation of reports into the respondent for the purposes of that hearing.
In the meantime, the State submits that I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act.
To make a detention order, I must be positively satisfied that such an order is appropriate, and that the protection of the community requires that the respondent be held in detention pending the full assessment required by the Act.
In my view, this is a case in which the protection of the community requires that the respondent be held in detention pending further assessment. The respondent's current term of imprisonment will end prior to the hearing of the restriction order application.
If the respondent is to be safely managed in the community, it is essential the respondent have suitable and stable accommodation and support. The respondent currently has nowhere to live if released. It appears that when last in the community the respondent was transient and homeless. As in the case of the respondent's treatment needs, the available evidence suggests that the respondent needs proper support and assistance in relation to housing and life in the community.
Unless and until the respondent gets that assistance and support, I cannot be satisfied that the respondent could be safely managed in the community. It is, therefore, necessary for the respondent to be detained on an interim order until the conclusion of the restriction order application, or further order.
That does not prevent an application being made for an interim supervision order should the respondent, or those advising the respondent, be able to find suitable arrangements and support upon a potential release.
[3]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[4]
[1] 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).