THE STATE OF WESTERN AUSTRALIA -v- SHIELD [2025] WASC 348 (1 September 2025)

1. The main purpose of the preliminary hearing before me today is for me to decide whether there are reasonable grounds for believing that the court might find, pursuant to s 7 of the HRSO Act, that Mr Shield is a high risk serious offender within the meaning of that Act.[1] If I am not so satisfied, then I cannot fix a day for the hearing of the State's application for a restriction order.
2. A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[2] A restriction order is made under s 48 of the HRSO Act in the form of either a continuing detention order or a supervision order.
3. Section 7 of the HRSO Act sets out the matters to which the court must have regard in assessing whether a person is a high risk serious offender. These matters are comprehensively addressed in the State's written submissions.
4. In The State of Western Australia v Williams [No 2],[3] I considered the judgment of Kiefel CJ, Keane and Steward JJ, and the judgment of Edelman J in Garlett v Western Australia, which concerned a constitutional challenge to the HRSO Act.[4] Their Honours addressed the application of s 7 and s 48.
5. Having regard to the judgments in Garlett, I expressed the following view, to which I adhere:[5]

Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the possible harm. The assessment of the nature and extent of the possible harm directs attention to the possible serious offences that might be committed and the harm they may cause. It also directs attention to the likelihood that the offender might commit such offences (that is, the likelihood the risk might eventuate). The extent to which deterrent factors have operated to reduce risk in the past feeds into the assessment of current and future risk, as does the offender's historical and current response to rehabilitation. These are all factors that inform the assessment of whether the risk is 'unacceptable'. They are by no means exhaustive...

If the risk is found to be 'unacceptable', the nature and extent of that unacceptable risk then informs the assessment of whether a restriction order is necessary to ensure adequate protection of the community. And, as Kiefel CJ, Keane and Steward JJ explained, the assessment of whether the order is necessary requires recognition that an offender's entitlement to be at liberty is not lightly to be denied.

1. Further, in Garlett, Kiefel CJ, Keane and Steward JJ observed that:[6]

While the requirement of an evaluation under s 7 depends upon the offender having been convicted of a "serious offence", ss 7 and 48 do not envisage the possibility that a restriction order might be made to prevent the commission of a serious offence, whether of the same kind or of another kind, unless the risk of further offending involves a real threat of harm to the community.

(footnote omitted)

1. In respect of the issue before me on this preliminary hearing, Quinlan CJ observed in The State of Western Australia v Winder that:[7]

For the purposes of this hearing, I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. I emphasise the word might. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

1. Mr Shield is represented today by counsel, Mr Naughton, who quite appropriately concedes that the criterion set out in s 46 of the HRSO Act is met.
2. For the relatively brief reasons which follow, I accept that concession and I am satisfied that the criterion in s 46 is met. I will therefore make an order setting a hearing date for the restriction order application and ancillary orders to facilitate the hearing of that application.
3. I am also satisfied that it is appropriate to make an interim supervision order pending determination of the State's application or until further order.

1. In support of the application, the State relies upon an affidavit of Ms Durack affirmed 17 April 2025, who is a solicitor employed by the State Solicitor's Office. The State also relies upon an affidavit of Ms Heather Applin affirmed 20 May 2025. Ms Applin is a Senior Community Corrections Officer.
2. Ms Durack's affidavit contains some of the details of Mr Shield's criminal history, as well as several reports and assessments in relation to him. These include both psychological and psychiatric reports, as well as program completion and treatment assessment reports.
3. Mr Shield relies on an affidavit of his solicitor, Mr Naughton affirmed 26 May 2025. It attaches a letter from Mr Shield and other letters in support of him and other material.

1. The sentence that Mr Shield is currently serving was imposed in respect of six offences. They comprised two offences of criminal damage by fire, an offence under s 444(1)(a) of the Criminal Code (WA) (Code) and one offence of criminal damage or destruction of property, an offence under s 444(1)(b). The offences of criminal damage by fire are serious offences under the HRSO Act. The other three offences were two offences of assaulting a public officer, being an offence under s 318(1)(d) of the Code, which were committed on different dates, and one offence of endangering the life, health, or safety of a person, which is an offence under s 304(1)(b) of the Code. This offence was committed on the same date as the criminal damage offence.
2. These six offences were committed while Mr Shield was in prison serving a term of imprisonment for previous serious offences that he had committed.
3. Quite concerningly, the criminal damage by fire offences were committed on separate dates, some four months apart. That is, they were not part of the one incident. Rather, they were committed some four months apart in 2020. It is of course also concerning that the offences were committed while Mr Shield was in prison.
4. Mr Shield also has a previous criminal damage by fire conviction committed in February 2018, again when he was in prison.
5. Mr Shield also has committed other serious offences under the HRSO Act while an adult, which include an offence of grievous bodily harm whereby the victim suffered a fractured eye socket, broken nose and thumb, and an offence of aggravated robbery, whereby Mr Shield stole items from a store and then was approached by the store manager, whom Mr Shield punched in the head and face at least four times.
6. As a child, Mr Shield has committed four offences of aggravated attempted armed robbery, three offences of armed robbery and one offence of aggravated assault with intent to rob.
7. Mr Shield has committed a number of other offences involving violence while both an adult and as a child.

1. Mr Shield is now 30 years of age.
2. His personal circumstances are set out in the State's written submissions at paragraph 76.
3. It is not necessary for the purposes of this hearing to set out all of those matters. It is sufficient to note the following. Mr Shield comes from a traumatic and underprivileged background. As a child he was exposed to drug use and crime subculture and as a consequence he became involved in antisocial and criminal behaviour at around 10 years of age.
4. Tragically, Mr Shield began using cannabis and alcohol around 11 or 12 years of age, started using methylamphetamine at 13, and by the age of 16 or 17 had a dependent pattern of methylamphetamine use and was also dependent on the use of heroin.
5. Mr Shield left school in year seven as no one told him to go to school.
6. Since the age of 13, he has spent a significant amount of his life in prison. He has been in prison now since July 2017.
7. Mr Shield has however had periods where he has been employed, including working as a labourer and in a supermarket. During this period, he started a family with his then partner and has two children from that relationship, which relationship ceased some time in 2019.
8. Mr Shield met his current partner nearly five years ago, when she came to visit a prisoner and met Mr Shield. She has provided a reference in support of him, as have her parents. Her parents are willing to permit Mr Shield to live at the family home if he were to be released from prison. I have also received a reference from Mr Shield's aunt, his sister and his partner's grandparents, all supportive of him being released into the community.

1. As would be expected with someone who has Mr Shield's extensive criminal history, there are many reports in respect of him.
2. For present purposes it is sufficient to refer to the following aspects of the reports.
3. In the psychiatric report of 6 February 2019, the psychiatrist said that Mr Shield has no major mental illness, however there are significant treatment risks related to substance use, emotional dysregulation, poor impulse control and propensity to violence. The psychiatrist said that treatment for these problems is psychological and can be provided by a prison psychologist or counsellor.[8] The psychiatrist also said that Mr Shield had stimulant use disorder.
4. In the psychological report of 20 July 2022, the psychologist said that Mr Shield's significant history of violence also reflects attitudes that support and condone violent behaviour. The psychologist also said that Mr Shield has treatment needs in relation to violence, antisocial attitudes, emotional regulation, coping, impulse control, decision making and consequential thinking. The psychologist said that Mr Shield may also benefit from processing his childhood experiences and trauma however Mr Shield remained resistant to treatment and counselling.[9] Mr Shield was assessed by reference to a Historical Clinical Risk Management tool (the HCR-20v3) to have a high risk for future violence, however the psychologist said his risk may reduce if he engages in treatment and is motivated to make positive change.[10]
5. The parole assessment report completed in respect of Mr Shield in October 2024 assessed him as being an elevated risk of reoffending and said that he did not present a viable parole plan with sufficient strategies that would mitigate this risk.[11]
6. The most recent psychological report in respect of Mr Shield is a report of 6 January 2025 to the Prisoners Review Board of Western Australia. That report reflects a significant change in Mr Shield's approach to rehabilitation.
7. It is worthwhile reading out particular aspects of the report.
8. Paragraph 28 of the report says:[12]

Mr Sheild has engaged in the recommended criminogenic treatment programs at Pathways and while he expressed his willingness to also complete the Violence Prevention Program, was unable to do so, through no fault of his own. It is to Mr Sheild's credit that he has completed the Pathways Program, as this represents his first concerted attempt at behaviour change since he entered the criminal justice system as a youth.

Analysis of the treatment gains made by Mr Sheild indicated that he has been able to sustain motivation to change across several risk relevant areas, including abstaining from substance use, increasing his self-regulatory capacity, developing insight and awareness into his interpersonal style, and more effectively managing his proclivity towards impulsivity.

1. Paragraph 37 of the report says that:[13]

Mr Sheild is a 30-year-old man whose plans for parole are adequately developed. When considered against the VRS-2, Mr Sheild is assessed at average risk for involvement in offending behaviour of a violent nature. To Mr Sheild's credit, he has made some treatment gains through his completion of the criminogenic treatment programs, namely, the Pathways program. Further, he has made concerted attempts to consolidate treatment gains through enacting change in the prison context. He is therefore considered to be in the contemplative and preparation stage of change across most treatment areas.

1. The psychologist also said that Mr Shield still presents with outstanding treatment needs across a number of areas.
2. The psychologist was also of the opinion that Mr Shield would benefit from supervised release to consolidate his treatment gains in a less restrictive environment.[14]
3. Part of the reason for these gains is the Pathways program which Mr Shield completed on 28 March 2024. That is a 100‑hour structured program which provides treatment to individuals who have a history of offending behaviour substance abuse problems. The completion report states that while Mr Shield made some treatment gains, there are still some areas that he would benefit from gaining further support. Further, given his long-term alcohol and drug use, and slow withdrawal from methadone, the completion report said that it would be beneficial for Mr Shield to engage with an alcohol and drug service and a general medical practitioner to assist with the withdrawal process. The report also says that he will benefit from counselling and also regular urinalysis.
4. What emerges from the reports I have just referred to is that Mr Shield has a significant amount of work still to do with his rehabilitation, however he has also made important gains recently. Mr Shield's letter attached to Mr Naughton's affidavit is consistent with the comments that I have just made. These gains are yet to be tested in the community, with the pressures that being in the community can bring.
5. Also, Mr Naughton's affidavit attaches material that is consistent with Mr Shield having made gains in rehabilitation. The letter at page 32 from the Waalitj Foundation, says that:

As a result of our contact with Benjamin, a management plan has been established to support him in gaining meaningful and appropriate training and employment.

1. The letter from Community Transitions at page 33 says that:

Mr Sheild has continued individual counselling sessions since 26 March 2025 and has attended six sessions thus far, and those counselling sessions are directed to alcohol and other drugs counselling.

1. And the certificate from the Green Lighthouse program says that he has completed that program, it being a six-week, one-session-per-week, voluntary drug and alcohol mentoring program.

1. In terms of accommodation, I have said previously that accommodation is predominantly relevant to risk assessment, and has many features that may not necessarily point in the same direction regarding risk.[15]
2. It is proposed that Mr Shield live with his partner at her family home, with her parents and 15-year-old sibling. Her parents are supportive of this and are aware of the substance of Mr Shield's criminal history, although it is not apparent her mother was aware that a previous partner of Mr Shield had obtained a restraining order against him.

1. In all of these circumstances, and having regard to the matters outlined in the State's written submissions, I am satisfied there are reasonable grounds to believe that the court might find that Mr Shield is a high risk serious offender within the meaning of the HRSO Act. The offences I consider he might be found to be an unacceptable risk of committing include offences of robbery with violence (s 392 and s 393 of the Code), criminal damage by fire (s 444(1)(a) of the Code), and violence where grievous bodily harm is caused (s 297 of the Code).

1. The State says it is appropriate to make an interim supervision order pending the final determination of the application.
2. Section 58(5) of the HRSO Act provides the court with the discretion to make such an order in this proceeding with effect until the proceedings are finally determined, or until another specified date.
3. Where there is an existing restriction order application, s 58(2) imposes two preconditions to the exercise of that discretion. They are:
   1. the offender to whom the pending proceedings relate is not in custody;[16]
   2. the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under s 58.[17]
4. Given the first of these preconditions, such an order must operate with effect from Mr Shield's release from prison.
5. I am satisfied that to ensure adequate protection of the community, it is desirable to make an order. I am also satisfied that the proposed conditions of the interim supervision order are appropriate, subject changes being made to the proposed conditions 12, 18 and 34, as discussed with counsel and which will be reflected in the final form of the order.
6. In addition to the standard conditions, the proposed order contains conditions that enable Mr Shield to be closely monitored, and contains specific conditions directed to preventing him from being in high risk situations. I am also satisfied that the conditions are expressed in language that clearly sets out what Mr Shield cannot do, and what he must do. The environment into which Mr Shield is going is supportive, and I expect that the Community Offender Management Unit will, if they have not already, made clear to Mr Shield's partner's parents that they should raise any concerns regarding his behaviour with them.

1. For these reasons, I am satisfied that the criterion in s 46 of the HRSO Act is met. I will therefore make an order fixing the date for hearing the State's application for a restriction order.
2. Further, in accordance with s 46(2), I will also order that Mr Shield undergo examination by a psychiatrist and a psychologist, and I will make orders facilitating the preparation of their reports.
3. I consider it would be beneficial for those reports to include the author's opinion in respect of the following additional matters:
   1. The topics that should be addressed in a supervision order, if such an order were imposed.
   2. Any particular areas of treatment or support which the author considers would assist Mr Shield to integrate into the community.
4. I am also satisfied that an interim supervision order should be imposed pending the determination of these proceedings, or until further order. I will order that the interim supervision order be with effect from 12 June 2025 until these proceedings are finally determined, or until further order. The conditions of that order are attached to these reasons.

IN THE MATTER of the High Risk Serious Offenders Act 2020

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INTERIM SUPERVISION ORDER MADE BY THE HON JUSTICE LEMONIS

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With proceedings pending on a restriction order application and the Court being satisfied that, to ensure adequate protection of the community, it is desirable to make an order under section 58 of the High Risk Serious Offenders Act 2020, the Court orders that the Respondent be subject to an interim supervision order pursuant to section 58(5) of the Act, from 11 June 2025 until these proceedings are finally determined or until further order of the Court, on the following conditions:

1. Report to a Community Corrections Officer (CCO) at the prison at the time of your release and tell the CCO your current name and address;
2. Report to, and receive visits from, a CCO as directed by the court;
3. Notify a CCO of every change to your name, home address, or place of employment at least 2 days before the change happens;

1. Be under the supervision of a CCO and follow any reasonable direction given to you by the CCO (including a direction for the purposes of section 31 or 32);
2. Not leave the State of Western Australia without the permission of a CCO;
3. Not commit a serious offence, as defined by the Act, the during the period of this Order;
4. Be subject to electronic monitoring under section 31;

1. Reside (live) at [redacted] and spend each night there (period can be defined by a CCO). You can only stay at a different address if the different address is approved in advance by a CCO assigned to you;

1. On the day of your release, report to a CCO at the prison, or at a place directed by a CCO, and allow for fitting of electronic monitoring equipment and completion of intake;

1. Report to, and receive visits from, a CCO at times and at places as directed by the CCO. You can discuss with a CCO about ensuring these times and places do not clash with your job/s and other employment;

1. Not start, change or increase any paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO;

1. Attend and engage in all appointments (including group programs) as reasonably directed. Receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, mentor, support service and/or support person as directed by a CCO;

1. Report to the Officer-in-Charge (OIC) of the Serious Offender Enforcement Squad (SOES) at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of this Order starting, and report to and receive visits from Police as directed by the OIC of the SOES or their delegate;

1. If asked to, let Police Officers enter and search your home and/or vehicle, search you and allow Police Officers to seize (take) any items they believe to contravene the conditions of this Order. A police officer is to tell you they are using this power before acting pursuant to it;

1. Stay at your home and/or vehicle when Police Officers are searching your home and/or vehicle under Condition 14;

1. Agree to the exchange of any information about you between people and agencies involved in carrying out this Order;

1. Allow the CCO, WA Police, or other people or agencies approved by the CCO, to speak to anyone you spend time with or may spend time with and, where appropriate, to tell them information about you, including your offending history;

1. Unless you have the prior approval of your CCO and the Victim-Offender Mediation Unit of the Department of Justice (Department), you must have no contact with the victims of your offending for which you were sentenced on 12 August 2022 (victims), when your most recent term of imprisonment for a serious offence under the HRSO Act was imposed. Contact in this condition and Condition 19 and Condition 20 means speaking to the victim in person or by phone, making any gestures towards the victim, messaging the victim using electronic devices, or asking someone else to speak to or send a message to the victim;

1. Unless contact with the victim is permitted by the previous condition (Condition 18), if you see any of the victims, you must immediately leave where you are, without speaking to them or gesturing to them, and you must look away from the victim at all times;

1. Report any contact with the victims to the CCO and WA Police within 48 hours of any contact happening;

1. Not commit any criminal offence that can be dealt with by a sentence of imprisonment, and which involves sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;

1. Not possess any offensive or prohibited weapon, or replica;

1. Not be armed with any kind of weapon that may cause fear in public places without a lawful reason/excuse;

1. Not possess or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, which includes cannabis. This does not apply to a drug that a doctor has prescribed for you, as long as you don't use more than the doctor has told you to use;

1. Comply with a curfew, requiring you to remain at and not leave your approved address, as directed by a CCO;

1. When subject to a curfew under this Order, during the time when you must be at your approved residence:

(a) go to the front door or front yard if a CCO or Police Officer asks to see you; and

(b) speak on the telephone to any CCO or Police Officer or their representative monitoring your curfew if they call to check you are at home;

1. When subject to a curfew under this Order, tell all adults at the house who may answer the telephone or door that you are on a curfew and ask them to tell you about attempts by Police Officers or a CCO to contact you;

1. Not to possess, use, or purchase any alcohol without prior approval of a CCO;

1. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer, including going with them to an appropriate place for a sample to be taken;

1. Not to be with anyone who you know, or should know, is affected by alcohol or a prohibited drug, unless the identity of that person is approved in advance by a CCO;

1. Not be anywhere that prohibited drugs or alcohol are being used or, if the drugs and/or alcohol are being used at your home, go to another part of your home, or ask the people using the drugs and/or alcohol to leave;

1. Not go to any licensed premises, other than cafes, restaurants and sporting clubs, except for the following reasons:

(a) Avoiding a serious risk of death or injury to yourself or another person; or

(b) For a reason and duration approved in advance by a CCO; or

(c) If a CCO or Police Officer tells you to do so;

1. Have no contact with any person whom you know to be a nominee, associate or member of any Outlaw Motorcycle Gangs, unless approved in advance by your CCO;

1. When reasonably requested by your CCO, give them details of your activities, movements and the people with whom you have contact in the community;

1. You must not assault, threaten, insult or use abusive language to a staff member of the Department or other persons working on behalf, or with, the Department to provide services.

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I have received a copy of this Order. I have had it explained to me and understand the effect of this Order and what may happen if I contravene it.

________________________________ BENJAMIN JACK SHEILD

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

[3] The State of Western Australia v Williams [No 2] [2024] WASC 215 [22] - [37] (Williams).

[4] Garlett v Western Australia [2022] HCA 30 (Garlett).

[7] The State of Western Australia v Winder [2021] WASC 65 [16], citing The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J).

[8] Psychiatrist's report dated 6 February 2019, page 368 of Ms Durack's affidavit.

[9] Psychologist report dated 20 July 2022, page 388 of Ms Durack's affidavit.

[11] Parole assessment report dated 21 October 2024, page 396 of Ms Durack's affidavit.

[12] Psychologist report dated 6 January 2025, par 28, page 406 of Ms Durack's affidavit.

[13] Psychologist report dated 6 January 2025, par 37, page 409 of Ms Durack's affidavit.

[14] Psychologist report dated 6 January 2025, par 29, page 407 of Ms Durack's affidavit.

[15] The State of Western Australia v Paraha [2025] WASC 20 [57] .