THE STATE OF WESTERN AUSTRALIA -v- UNDERWOOD [No 2] [2022] WASC 298 (2 September 2022)

1. The history of Ms Underwood's offending was summarised by Quinlan CJ as follows:

The evidence reveals that Ms Underwood has a long history of offending, including violent offending. While many of the violent offences for which she has been convicted are not classified as 'serious offences' within the meaning of the Act, they nevertheless provide relevant evidence in relation to Ms Underwood's risk generally.

The offence for which she was most recently sentenced was that of doing an act causing bodily harm with intent to cause harm, contrary to s 304(2) of the Criminal Code.

The circumstances of that offence were as follows:

On 20 November 2018 at approximately 6.40 pm, the victim was standing near the loading bay of the Coles supermarket in Galleria Shopping Centre, Morley, when he saw Ms Underwood approaching from the other side of the carpark and yelling at him. The victim told Ms Underwood to go away. Ms Underwood returned to a nearby shopping trolley containing a backpack and retrieved a silver serrated knife from the backpack. The knife was approximately 30 cm long with a sharp, two‑pronged end.

Ms Underwood ran at the victim and began stabbing and slashing him. Ms Underwood and the victim were not known to one another and the attack was entirely unprovoked. The victim eventually managed to grab the knife off Ms Underwood, and Ms Underwood walked away.

The victim received lacerations to his hand, ear, lip, left upper arm, right arm and puncture wounds to his left abdomen and chest. He required significant treatment, including stitches and surgery for his hand and ear. As the learned sentencing judge recognised, the nature of the attack was such that the effect on the victim could have been much worse.

The offence was committed within a week of Ms Underwood having been released from an earlier term of imprisonment for violent offending.

Ms Underwood pleaded guilty and was sentenced on 13 November 2020. It is apparent from the transcript of the hearing and the psychiatric report of Dr Harding that, while Ms Underwood did not seek a trial of issues and accepted that she fell to be sentenced on the basis of the facts stated by the State, she did not accept those facts. Rather, as Dr Harding reported, Ms Underwood maintained that she had been 'defending herself' and that her victim was the brother of a policeman who had arrested her in the past. Other material in evidence before me (such as a pre-sentence report) record that Ms Underwood was suspicious of the victim's behaviour and believed she was being 'set up'. None of Ms Underwood's accounts of the offence appear to have any basis in reality.

Ms Underwood was sentenced to 3 years 2 months imprisonment, backdated to 20 November 2018.

The random nature of the offence committed by Ms Underwood on 20 November 2018 was not an isolated event. Ms Underwood's offending dates back to 1995 and includes unlawful wounding in circumstances of aggravation, acts or omissions causing bodily harm, unlawful act with intent to cause harm, unlawful assault causing bodily harm in circumstances of aggravation, assault of a public officer, armed robbery, criminal damage by fire and indecent assault.[2]

1. Ms Underwood's criminal history is extensive. In addition to the offence the subject of her most recent term of imprisonment, Ms Underwood has committed a number of offences that are defined as 'serious offences' under s 5 of the HRSO Act. These offences are set out below in chronological order.
2. IND 1294/1999 - 1 count of attempted robbery while armed (30 November 2001): On 30 November 2001, Ms Underwood was sentenced to a 9-month supervision order for an offence of attempted robbery while armed, pursuant to ss 391 and 393 of the Criminal Code.
3. The offence occurred on 20 February 1999, where at approximately 9.55 pm, Ms Underwood approached a bus driver, who was sitting in the driver's seat of a bus parked at the Bentley bus terminal. Ms Underwood approached the bus and driver while holding a knife approximately 20 cm in length and pointing it at the bus driver. Ms Underwood proceeded to demand money from the bus driver. The bus driver sustained a minor cut to his chest from the knife after attempting to disarm Ms Underwood.
4. IND 1135/2005 - 1 count of criminal damage by fire (13 September 2005): On 13 September 2005, Ms Underwood was sentenced to one year imprisonment for criminal damage by fire, pursuant to s 444 of the Criminal Code. The circumstances of the offence occurred on 31 May 2005, while Ms Underwood was on remand at Bandyup Women's Prison. Ms Underwood was located in a cell within the Management Unit, where she managed to smuggle a cigarette lighter into the cell and set alight bedding and cell curtains. As a result of the fire, the mattress, pillow, curtains and cell window were all destroyed, and the entire cell required repainting due to fire and smoke damage.
5. IND 1538/2007 - 1 count of armed robbery (11 April 2008): On 11 April 2008, Ms Underwood was sentenced to 18 months' imprisonment for a count of armed robbery pursuant to s 392 of the Criminal Code.
6. On 10 May 2007, at around 8.35 am, Ms Underwood entered Foodworks Forrestfield. After attempting to conceal a package of sausages under her jumper, staff approached Ms Underwood to suggest she utilise a trolley or similar, to carry her items. As she approached the meat cabinet, she informed a shop assistant that she was carrying a knife and proceeded to produce a kitchen-style knife with a 20 cm blade. Ms Underwood placed a packet of raw chicken under her jumper and walked out of the shops. There was also an altercation with police officers in a nearby laneway after the incident.
7. IND 1229/2016 - 1 act or omission causing bodily harm or danger (16 March 2017): On 16 March 2017, Ms Underwood was sentenced to 2 years and 2 months' imprisonment pursuant to an offence under s 304(2) of the Criminal Code. The offence occurred on 28 September 2015 at approximately 5.45 pm. Ms Underwood, who had drunk an unknown quantity of liquor throughout the course of the day, became argumentative and began accusing the victim of taking her alcohol. Despite the victim repeatedly denying taking the alcohol, Ms Underwood became angrier and more agitated, and continued to verbally abuse the victim. The victim went to leave her unit, and Ms Underwood pushed the victim to the ground. As the victim was attempting to lift herself from the ground, Ms Underwood located a concrete lion's head statue. While standing over the victim, Ms Underwood proceeded to thrust the statue twice into the face of the victim. The victim sustained several deep lacerations and facial fractures requiring surgery.

1. Ms Underwood's long history of offending is characterised by highly impulsive, disinhibited, and violent conduct. While not all offences are classified as 'serious offences' within the meaning of the HRSO Act (as otherwise outlined above), they are nonetheless indicative of the risk Ms Underwood poses to others. Much of her offending is likely interconnected with her abuse of alcohol and solvents, as well as a deeply complex history of trauma and alleged sexual abuse that occurred during her childhood.
2. Ms Underwood's offending history includes unlawful wounding in circumstances of aggravation, acts or omissions causing bodily harm, wilfully and unlawfully destroying or damaging property, assaults of public officers, disorderly behaviour in a public place, and indecent assault, as well as numerous breaches of community-based orders, bail undertakings and protective bail conditions.
3. By way of further illustration, Ms Underwood has previously unlawfully wounded an ex-partner with a large kitchen knife, targeted and violently attacked a member of the public at random outside a McDonald's in Perth, assaulted and wounded a park ranger with a large rock to the face, and has struck another member of the public at random at a hospitality venue, attacking them with a glass ashtray and causing the victim to need stitches above their eye.
4. As is detailed further in the evidence that was submitted as part of this application, Ms Underwood's perception of her offending history is very different from how events objectively transpired, and in many circumstances, do not appear to have any basis in reality. Ms Underwood has a history of drug-induced psychosis and delusional beliefs about others that has resulted in a sense of 'hypervigilance', where she has the proclivity to carry knives in order to feel protected. In particular, she holds some persecutory beliefs which make her distrustful of those who work in law enforcement and other positions of authority.

1. The term 'high risk serious offender' is defined in s 7(1) of the HRSO Act, in the following terms:

An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

1. Section 7 sets out other relevant requirements of a finding that a person is a high risk serious offender as follows:

(2) The State has the onus of satisfying the court as required by subsection (1).

(3) In considering whether it is satisfied as required by subsection (1), the court must have regard to the following -

(a) any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;

(b) any other medical, psychiatric, psychological, or other assessment relating to the offender;

(c) information indicating whether or not the offender has a propensity to commit serious offences in the future;

(d) whether or not there is any pattern of offending behaviour by the offender;

(e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;

(f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;

(g) the offender's antecedents and criminal record;

(h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;

(i) the need to protect members of the community from that risk;

(j) any other relevant matter.

1. Pursuant to s 5 of the HRSO Act, an offence is a 'serious offence' if it is specified in sch 1 div 1 of the HRSO Act. The expression 'a high degree of probability' indicates something 'beyond more probably than not'.[3] This standard is greater than a finding on the balance of probabilities and less than a finding beyond reasonable doubt but is otherwise incapable of further definition.[4] The court is therefore required to identify what it is that constitutes the risk and what makes it unacceptable, thereafter considering whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.[5] The determination is made against the prospect of a serious offence being committed by Ms Underwood if she is not subject to a restriction order under the HRSO Act.
2. Further, whether a restriction order is "necessary" to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.[6]
3. The term 'restriction order' under the HRSO Act means either a continuing detention order or a supervision order.[7]
4. The court is not invested with a residual discretion to decline to make a restriction order.[8] If the court is satisfied to the requisite standard that there is an unacceptable risk the offender would commit a serious offence if not subject to a restriction order, the court must make a restriction order. The question for the court is whether a detention order or a supervision order should be made.[9]
5. In making the decision as to which type of restriction order is appropriate, s 48(2) provides that the paramount consideration is the need to ensure adequate protection of the community. At the same time, the court is required to undertake a balancing act, deciding the order that is least invasive or destructive of Ms Underwood's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[10] In the same context under the previous legislation, the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), Hall J in Western Australia v Paul Douglas Allen (aka Paul Alan Francis Deverell) (No 5) explained:

Detention under the DSO Act is not a punishment for past offending, rather it is a protective mechanism designed to prevent the risk of future serious ... offending from being realised. If circumstances change or that risk of reoffending reduces or can be better managed in the community, then the continuing need for detention must be considered.

The risk of reoffending may change over time. It may be affected by age, health or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.

If the risk changes or resources improve to enable more efficacious conditions, then the need for detention may dissipate.[11]

It cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order.[12]

1. Section 29(1) of the HRSO Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The appropriate approach under the comparable provisions of the DSO Act was set out by Fiannaca J in DPP (WA) v Hart.[13] Those observations apply equally to the HRSO Act and need not be repeated.[14]
2. The constitutional validity of the HRSO Act was recently challenged in the High Court of Australia in the matter of Garlett v The State of Western Australia & Anor.[16] In a decision published on 7 September 2022, the plurality upheld the validity of the Act. Particular attention was paid to the purpose of the restriction orders that operate pursuant to s 48 of the Act. Kiefel CJ, Keane and Steward JJ observed that:

The purpose of a legislative regime, such as the DPSO Act or the HRSO Act, is discernibly distinct from the imposition of retribution or deterrence pursued by the criminal law. To the extent that detention or supervised release is part of the legislative regime, the character of the curtailment of the liberty of the individual offender under the regime can be seen to be protective rather than punitive because any curtailment of liberty must be supported by the risk evaluation contemplated by s 7 of the HRSO Act. In that evaluation, considerations of retribution and deterrence, central to sentencing by way of punishment under the common law, have no part to play. In addition, any 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. Further, any curtailment of liberty is subject to regular review to ensure that the evaluation of risk and response remains current. Where detention can be justified only by that evaluation and cannot be continued beyond the currency of such an evaluation, the purpose of detention and of the regime under which it is imposed can readily be seen to be distinct from the purpose of punishment.[17]

1. In his dissenting judgment, Gageler J said that:

Other than in what is truly an exceptional case, and other than as an incident of the adjudgment and punishment of criminal guilt, conferral on a court of a function that involves the creation of a liability to detention in custody through an act of adjudication is not simply antithetical to the character of that court as an institution for the administration of justice. Conferral of such a function is antithetical to the very conception of justice which it is the responsibility of courts to administer.[18]

1. These are sage and timely reminders of the court's duty to properly consider the gravity of a restriction order imposed onto a person for a reason other than criminal liability. The court must only do what is absolutely necessary to achieve the protective aims of the legislation.
2. I now turn to the evidence before me.

1. The State tendered, by consent, five books of materials (BoM) for the restriction order hearing.[19] The BoM included expert and other reports produced pursuant to ss 74 and 75 of the HRSO and received into evidence under s 84.[20]
2. Relevantly, Volume 3 of the BoM comprised:

(1) Psychiatric Report of Dr Natalie Pyszora dated 27 April 2022;

(2) Psychological Report of Dr Dylan Galloghly dated 26 April 2022;

(3) Neuropsychological Report of Dr Mandy Vidovich dated 26 April 2022;

(4) Community Supervision Assessment of Emma Cashmore dated 9 May 2022; and

(5) Proposed DSO Management Plan of Dr Ben Bannister dated 4 May 2022.

1. At the hearing, all five authors gave oral evidence. The respondent did not challenge the credibility or reliability of any of the witnesses and did not challenge the expertise of any of the experts. Each of the witnesses gave their evidence in a measured and frank manner.
2. I will now address the evidence of each witness accordingly.

1. Dr Natalie Pyszora is a consultant forensic psychiatrist.
2. Dr Pyszora commented on Ms Underwood's presentation during their interview together, noting that she displayed a very good level of self-care, engaged well with the interview, and seemed to enjoy talking about herself. While she was generally calm and cheerful in her outward display of emotion, she was quick to anger if recounting incidents of suspected racial discrimination, or when she thought Dr Pyszora was making assumptions about her.[21]
3. Dr Pyszora's report indicates that she has diagnosed Ms Underwood with:

(a) delusional disorder, mixed type (continuous);[22]

(b) antisocial personality disorder;[23] and

(c) substance use disorder (alcohol, inhalants, stimulants (methamphetamine), heroin and cannabis).[24]

1. Dr Pyszora explained further in oral evidence that 'delusional disorder, mixed type' refers to delusions that are not purely of one particular nature. While Ms Underwood predominantly has delusions that are paranoid or persecutory, she also has some particular delusional beliefs that do not fall within the above categories.[25] These include her delusional misidentification of people, where she believed that the victim of her last offence was the brother of a police officer who was involved in a conspiracy, delusional beliefs about having a friendship with a police officer that she has never met, and expressing beliefs that one of her sons has competed in the Commonwealth Games and that he has acknowledged his wins on television with reference to his biological mother.[26]
2. Ms Underwood has significant outstanding criminogenic treatment needs including antisocial personality disorder, antisocial cognitions, antisocial companions, family and relationship stressors, substance abuse, and lack of employment.[27] She also has issues with insight, emotional control, impulsivity, and pro-criminal cognitive distortions with which she has justified her past offending and behaviour.[28] Ms Underwood displays some symptoms of PTSD but does not currently meet the criteria for a full diagnosis as her alterations in cognition, mood, hyperarousal, and reckless behaviour are not clearly associated with her trauma.[29]
3. In terms of Ms Underwood's risk of future reoffending, Dr Pyszora undertook an assessment utilising the Hare Psychology Checklist - Revised (PCL-R) and Historical, Clinical and Risk Management - 20 - Version 3 (HCR-20 v3) tools. Dr Pyszora indicated that these risk assessment instruments should be used with caution in relation to Aboriginal individuals, as the tools have been developed with regard to mainly Caucasian populations, and an attempt to construct a specific risk assessment tool for indigenous violent re-offending in Western Australia has not yet been successful (however an analysis of the eight central criminogenic risk factors has been found generalisable to Aboriginal offenders in Canada).[30] Further, research on female offending is in its infancy in comparison to the plethora of research available regarding male offending, although the four risk assessment tools typically used in Australia have been found to be valid for use with female offenders.[31]
4. The PCL-R provides a dimensional score that represents the extent to which an individual is judged to match the 'prototypical psychopath'. In Australia, a cut off score of 30 is used to classify an individual as a 'psychopath', although a standard of error means the true score may sit within a range of six points.[32] Ms Underwood had a pro-rated score of 29.5, which indicates the presence of significant psychopathic traits.[33]
5. The HCR-20 v3 provides a Structured Professional Judgment (SPJ) approach to a risk assessment of violence. It measures both static and dynamic factors that are associated with violent recidivism. The historical scale focuses on historical factors that are generally static in nature, while the clinical scale focuses on dynamic factors that relate to mental status and attitudes in the past few weeks to months.
6. The risk management scale focuses on factors that relate to the management of an individual's level of risk. In terms of historical risk factors, Dr Pyszora reports that Ms Underwood has a history of problems with:

(a) previous violence;

(b) other antisocial behaviour;

(c) relationships;

(d) employment;

(e) substance use;

(f) major mental disorder;

(g) personality;

(h) traumatic experiences;

(i) violent attitudes; and

(j) treatment or supervision response.[34]

1. In terms of clinical risk factors, Dr Pyszora reports that Ms Underwood has had recent problems with:

(a) insight;

(b) violent ideation or intent;

(c) symptoms of major mental disorder;

(d) instability; and

(e) treatment or supervision response.[35]

1. In terms of risk management factors, Dr Pyszora's report sets out that Ms Underwood may face future problems regarding:

(a) professional services and plans;

(b) living situation;

(c) personal support;

(d) treatment or supervision response; and

(e) stress or coping.[36]

1. In summary, Dr Psyzora opined that if Ms Underwood was within a community setting, she would currently present an imminent risk of engaging in serious and potentially fatal violence due to unpredictability arising from her untreated psychosis, in combination with other risk factors.[37] Importantly, Dr Pyszora noted that this risk remains, even if Ms Underwood were placed on a supervision order.[38] Ms Underwood did not have any insight into her previous offending history, her risk of relapse into substance use or her propensity for serious violence.[39] She repeatedly presented with what can only be described as a 'victim' mentality to Dr Pyszora. For instance, Ms Underwood suggested that there was no risk of her becoming violent 'unless she was attacked'. This perception is inconsistent with the objective circumstances surrounding Ms Underwood's previous offending, which was largely unprovoked.[40]
2. Dr Pyszora's report describes four likely scenarios of Ms Underwood's future serious offending. The first is in relation to her persecutory beliefs and the potential she may misidentify people or incorporate random strangers into her delusions. In this circumstance, she would likely be armed with a knife and utilise it as a weapon. Second, Ms Underwood is at risk of being reactively violent within a domestic context, having offended previously against her current and prior partners. Third, she may re-engage in activity that allows her to 'take the law into her own hands', as an attempt to exert power or control. This behaviour has previously manifested through her propensity to destroy property or commit arson. Fourth, Ms Underwood has offended against caretakers/mothers of children in the past where she has perceived that the children are being mistreated. The seriousness of such offending is also compounded by the likelihood that Ms Underwood may be armed with a knife.[41]
3. Counsel for the State pointed to Ms Underwood having a very poor history of compliance while in the community. Eight out of eight periods of community supervision have been cancelled due to non-compliance or reoffending.[42]
4. Dr Pyszora also indicated that in her assessment, Ms Underwood could not currently be safely managed in the community due to her untreated mental health issues which make her highly unpredictable and dangerous. Dr Pyszora recorded that assessment in her written report and repeated it in evidence in chief and cross examination.[43]
5. Dr Pyszora also expressed the view that Ms Underwood lacked the capacity to consent to treatment and therefore treatment would need to be administered in light of the Mental Health Act 2014 (WA).[44] Dr Pyszora stated in oral evidence that Ms Underwood had consistently and adamantly denied that she had a mental illness. Dr Pyszora explained that this is common for people who have been diagnosed with a psychotic illness.[45]
6. Dr Pyszora explained in oral evidence the process of administering involuntary treatment under the Mental Health Act where a person is in custody. Pursuant to the Mental Health Act, such involuntary treatment must be provided in an authorised hospital.[46] The process begins through a Form 1A referral for assessment by a psychiatrist, completed by a mental health/medical practitioner.[47] Once completed, the Form 1A lasts for 72 hours. If the examination by a psychiatrist does not occur within 72 hours, the Form 1A lapses.
7. Dr Pyszora explained that the Frankland Centre was the only relevant facility available for involuntarily treatment under the Mental Health Act for patients required to be detained in custody,[48] and that there was an 'acute shortage of forensic mental health beds at the Frankland Centre'.[49] Dr Pyszora stated that it is 'not uncommon for prisoners to be repeatedly put under a Form 1A because it acts as the referral', notwithstanding the unpredictability of availability at the Frankland Centre.[50]
8. At the date of the hearing, 25 May 2022, there remained some uncertainty about when admission to the Frankland Centre might be available for Ms Underwood. On 26 and 27 May 2022, the court received letters from the Head of Clinical Service for the State Forensic Mental Health Service, Dr Liz Tate, responding to the court's request for information as to the likely timeframe for Ms Underwood to receive treatment in the Frankland Centre.
9. In her letter of 26 May 2022, Dr Tate indicated that the Frankland Centre has 30 beds, 20 of which are occupied by Custody Order patients. The remaining 10 forensic beds cater for all the mentally unwell prisoners in Western Australia who require inpatient psychiatric treatment, including all referrals from the court on Hospital Orders. Dr Tate noted that as at the date of her letter, there were ten patients on the waiting list and an additional three Custody Order patients, expected to be admitted within the next fortnight. As a result of the 'overwhelming and unpredictable demand', Dr Tate could not provide any timescale for Ms Underwood's admission.
10. In her letter of 27 May 2022, Dr Tate indicated that Ms Underwood was on the waiting list for admission to the Frankland Centre, and that the list is reviewed daily during the week with beds allocated according to clinical priority, staffing levels and ward acuity. With this in mind, Dr Tate advised that Ms Underwood's admission would be facilitated as soon as possible, provided she also tests negative to COVID-19 prior to her admission.
11. On 4 August 2022, I received notification that Ms Underwood had been referred for examination at the Frankland Centre. On 8 September 2022, my chambers was informed that Ms Underwood had been admitted to the Frankland Centre, where she resides at the time of publication of these reasons.
12. Dr Dylan Galloghly is a clinical and forensic psychologist who examined Ms Underwood and prepared a report in accordance with s 74 of the HRSO Act.
13. Dr Galloghly reported that Ms Underwood likely met the full criteria for PTSD and depression in the past but does not appear to be suffering from a mood disorder. This was also likely the case for various substance use disorders.[51] Dr Galloghly also reported that although Ms Underwood has displayed traits associated with antisocial or borderline personality disorders, she does not currently exhibit symptoms warranting a full diagnosis of either.[52] Similarly to Dr Pyszora, Dr Galloghly reported that Ms Underwood's history indicates an underlying delusional disorder of the persecutory type.[53]
14. Dr Galloghly also assessed Ms Underwood's risk of reoffending through a combination of actuarial and SPJ instruments. Dr Galloghly noted that SPJ tools are identified as a pragmatic method for assessing the risk associated with Australian Aboriginal offenders as they have the flexibility to incorporate culturally specific information in the overall assessment.[54]
15. Dr Galloghly utilised the Violence Risk Scale (VRS), HCR-20 v3, and PCL-R tools to assess Ms Underwood. The VRS is a fourth-generation, dynamic actuarial violence risk assessment tool designed to assess the risk of violent re-offending for incarcerated individuals and forensic psychiatric patients being considered for community access.[55] It encompasses both static and dynamic factors and is used to assess offenders' risk of violence, identify treatment targets linked to violence and evaluate an offender's readiness for change.[56] Dr Galloghly assessed Ms Underwood's risk of violent recidivism based on the VRS as 'high'. Static variables contributing to her risk of violent recidivism relate to Ms Underwood's:

(a) lack of stability in family upbringing;

(b) early violent offending;

(c) juvenile criminal record;

(d) experiencing violence throughout her life; and

(e) history of order violations.[57]

1. Dr Galloghly also identified dynamic risk factors contributing to the risk of violent recidivism, including Ms Underwood's:

(a) violent lifestyle;

(b) criminal personality traits;

(c) attitudes and associates;

(d) work ethic issues;

(e) interpersonal aggression problems;

(f) violence while in custody;

(g) problems with emotional control;

(h) weapon use (particularly carrying knives);

(i) mental disorder (e.g., Delusional Disorder);

(j) substance use problems;

(k) lack of stability in relationships;

(l) having a violent cycle (i.e., responding to perceived threats while intoxicated);

(m) impulsivity issues;

(n) cognitive distortions (including not taking responsibility for offending); and

(o) poor history of compliance with supervision.[58]

1. Dr Galloghly referred to Ms Underwood's risk of future violence based on the HCR-20 v3 as also being 'high', referring to the same factors outlined by Dr Pyszora, and that such a risk includes the likelihood of Ms Underwood committing a serious violent offence within the definition of the HRSO Act. Her level of risk is consistent with her history of violent experiences, the sheer volume of her past violent offending and antisocial behaviour, as well as Ms Underwood's poor responsivity to treatment and supervision. Dr Galloghly noted in his report that a number of studies suggest that impulsivity and borderline and antisocial personality disorders are good predictors of future violence for female offenders.[59]
2. In terms of the likelihood of any future offending, Dr Galloghly opined that Ms Underwood is most likely to engage in violent behaviour within the context of impulsive and reactionary violence in response to perceived provocation (akin to documented prison incidents).[60] A second potential scenario is Ms Underwood interacting in a violent manner with someone she knows, such as in the context of an argument or dispute where she fails to control her temper. The likelihood and severity of this scenario would be increased by the use of alcohol or other substances, given the way in which these substances disinhibit the user. The third, and most serious, risk scenario is the possibility of Ms Underwood returning to a 'chaotic lifestyle of substance use', where she is likely to be armed due to a fear of being attacked. An associated scenario, as based upon past offending, may be that Ms Underwood mistakenly perceives someone to be a law enforcement official with whom she has previously engaged, triggering her persecutory beliefs and resulting in her forming an intent to exact revenge through violence.[61] In the circumstances, Dr Galloghly noted that it was not possible to predict, with certainty, whether someone will reoffend.[62]
3. Dr Galloghly also assessed Ms Underwood's presence of psychopathy using the PCL-R framework. Dr Galloghly explained that the PCL-R instrument is composed of 20 items that may be summarised by adopting two main factors. Factor 1 contains items that seek to measure the affective and interpersonal features of psychopathy (including lack of empathy, glibness and narcissism) while Factor 2 assesses aspects of antisocial behaviour (such as impulsivity and criminal versatility). Various meta-analyses have indicated that Factor 2 is a particularly strong predictor of violence and recidivism.[63] Dr Galloghly noted in his report that 'although research indicates that fewer women offenders meet the conventional cut-off scores for psychopathy than for male offenders, the literature generally shows a moderate to strong relationship between female offenders' high scores on the PCL-R and re-offending'.[64]
4. Ms Underwood's PCL-R score placed her in the 86th percentile (i.e., the top 14%) of a sample of North American female offenders, indicating that she has 'many of the features typically associated with psychopathy'.[65] Such features include the ability to be superficially charming, having a level of grandiosity, lacking empathy, guilt and remorse, poor behaviour controls, impulsivity, irresponsibility, and failure to accept responsibility.[66]
5. Ms Underwood placed in the top 17% of the same sample group for her score on Factor 1, while her score on Factor 2 places her in the top 7% of the sample.[67] Dr Galloghly confirmed in oral examination that Ms Underwood's score was 28.4 out of 40.[68] In terms of the two factors, Dr Galloghly agreed that Factor 2 is generally accepted as a 'stronger predictor of recidivism'.[69]
6. In summary, Dr Galloghly indicated that Ms Underwood reported that she has made progress and change in many of her dynamic risk factors, though such significant progress is yet to be consistently exhibited in her behaviour.[70] In Dr Galloghly's opinion, should she be released in the community, Ms Underwood requires individual treatment through a 'well-structured and supportive multi-agency and discipline approach to supervision'.[71] In oral examination, Dr Galloghly stated that it would be preferable that Ms Underwood begin psychological therapy while in custody, in order to build up a working relationship that can then be transferred to the community, including assisting Ms Underwood with her transition to a community setting, creating a relapse prevention plan, and assisting her to manage substance use.[72]

1. Dr Mandy Vidovich is a clinical neuropsychologist who was asked to review Ms Underwood and provide a neuropsychological assessment report pursuant to s 7(3)(b) of the HRSO Act. Drs Galloghly and Pyszora undertook the psychological and psychiatric assessments with Mr Underwood, while the neuropsychological assessment provides general information regarding Ms Underwood's cognitive capacity.[73]
2. Dr Vidovich's inspection of Ms Underwood's test profile revealed an overall 'Low Average' intellectual capacity, though performances over a range of tasks fell between 'Borderline' to 'Average'. Ms Underwood did not show 'convincing indication' of any cognitive slowing, though attentional deficits contributed to performances that ranged from 'Low Average' to 'Superior'.[74] Ms Underwood did however present a capacity for learning and retaining novel information, and produced some impressive results on measures assessing her concept formation, reasoning and problem solving.[75] While there was also no indication of a mood disorder or severe anxiety by Ms Underwood, Dr Vidovich noted that there were 'indications of some unusual themes in her discourse which raised concern regarding psychotic symptoms'.[76]
3. Further, Dr Vidovich reported that it was 'challenging' to establish Ms Underwood's predicted level of intellectual and cognitive functioning in light of the variable information regarding her academic history and literacy skills.[77] In relation to Ms Underwood's extensive and chronic history of substance abuse, Dr Vidovich noted that the cognitive impact of those matters remained undetermined.[78]
4. While Ms Underwood disclosed that she has suffered from various brain injuries and has required treatment for 'brain tumours', there is no historical evidence from prior hospital admissions, or psychiatric/Department of Justice reports to support those claims.[79]
5. Dr Vidovich reported that Ms Underwood demonstrated the cognitive capacity to engage in programmatic rehabilitation without issue, as long as consideration is given to her learning vulnerabilities, namely her attentional capacity and 'Low Average' literacy levels.[80] While Ms Underwood has commented that she did not perceive a need for substance abuse counselling, Dr Vidovich notes that it is evident that Ms Underwood has used alcohol and other substances as a significant coping strategy to manage her mental health.[81] Further recommendations by Dr Vidovich include that Ms Underwood be provided with stable accommodation, weekly supervision, Departmental programs, and the exploration of psychotherapy and pharmacotherapy interventions to address her entrenched persecutory/delusional beliefs and to maintain her mood.[82]
6. In oral examination, Dr Vidovich commented on Ms Underwood's potential to meet criteria for acceptance into the National Disability Insurance Scheme (NDIS), pursuant to a psychiatric diagnosis.[83] As a result, she may be eligible for funding under what is described as a 'psychosocial diagnosis', meaning she may receive funding to assist her in the community. Dr Vidovich opined that Ms Underwood would likely not perceive herself in need of assistance provided through the NDIS, and therefore be unlikely to accept the assistance offered by support workers coming to her home.[84]

1. Dr Ben Bannister is a Senior Forensic Psychologist. Dr Bannister prepared his report to provide an overview of Ms Underwood's intervention history and comment on potential intervention options to address the dynamic risk factors identified in the other expert witness reports in the event that she is subject to a restriction order.
2. In his report, Dr Bannister commented that if Ms Underwood is found to be a high risk serious offender and placed under a restriction order, she will be allocated a treating clinician from the Forensic Psychological Intervention Team in order to address her outstanding criminogenic needs. Dr Bannister noted that while there are currently resourcing shortages for treating clinicians, the approach around the HRSO Act is that high risk serious offenders are 'typically prioritised'.[85]

1. Ms Emma Cashmore is a senior community corrections officer (SCCO) within the Community Offender Monitoring Unit (COMU). Ms Cashmore met with Ms Underwood on three occasions - 22 March, 20 April and 28 April 2022 - in order to discuss topics relating to the court process, her history of serious offending, accommodation, community supports, and likely proposed conditions of an HRSO supervision order.[86]
2. In discussing her previous response to supervision, Ms Underwood identified 'prejudice people', particularly supervising officers, as the primary reason for her extensive non-compliance. She asserted that previous CCOs trivialised her past trauma, notwithstanding that Ms Underwood never met most of her supervising officers.[87] In relation to high risk scenarios, Ms Underwood presented with limited strategies to assist her in avoiding high risk situations and maintained her narrative around being 'repeatedly victimised and gang raped by police'.[88] In a general discussion relating to her contact with the expert witnesses, Ms Underwood questioned Dr Psyzora's recommendations of mental health treatment, asserting 'who is she to be opinionating (sic) things about me' and that she 'has never represented a mental illness - it's ridiculous to suggest that'.[89]
3. In terms of housing, it was proposed by Ms Underwood that she live with her son, should she be released on a supervision order.[90] The son and his partner presented a rudimentary understanding of Ms Underwood's offending history and confirmed that they were 'unsure' as to why she was currently incarcerated.[91] In a subsequent affidavit of Martyn James Clancy-Lowe filed by the State on 20 May 2022, Mr Clancy-Lowe, an executive manager in the Sex Offender Registry within the Western Australian Police Force undertook an accommodation assessment for the proposed property. Mr Clancy-Lowe indicated that four of the property's current occupants had 'concerning criminal convictions'.[92]
4. Alternative housing arrangements have been discussed, such as the opportunity to engage with the Aboriginal Housing Recovery Centre Limited (AHRCL), a registered charity that provides housing and support for homeless Aboriginal people. Ms Underwood verbally consented to being referred to the AHRCL housing waitlist, however no estimate for housing could be provided.[93]
5. Ms Underwood is currently a participant in the Ruah Housing Support Program and has maintained regular contact with her Support Coordinator, Ms Bianca Valencia. The Housing Support Program provides 'holistic case management and support to women leaving prison', assisting them to maintain long-term stable housing. Ruah itself does not provide accommodation to clients. Ms Valencia has since confirmed that Ms Underwood has been referred to the Department of Communities - Housing program via the NPAH pathway, however no estimate for housing could be provided.[94]
6. In her evidence, Ms Cashmore noted that there is an extensive waitlist for Department of Housing accommodation, and that Ms Underwood would thus be facing a 'considerable delay in being housed through the Department of Communities'.[95]
7. Ms Cashmore confirmed in oral evidence that she is in the process of organising a multiagency meeting between herself, Ms Valencia, Ms De Grussa from the Aboriginal Housing Recovery Centre, and Ms Underwood, however this has been recently delayed by various COVID-19 related disruptions.[96]
8. Ms Underwood does not currently have any proposed employment and will initially be in receipt of Centrelink payments, should she be released into the community. She has expressed to Ms Cashmore her strong desire to continue her university studies, given she is currently completing a six-month Aboriginal Studies course.[97]

1. Ms Underwood is presently 41 years old. She first interreacted with the criminal justice system at age 14, and she has spent more than 20 years of her life incarcerated, with the first period of imprisonment beginning in May 1999. The exact circumstances of Ms Underwood's family and personal history are uncertain given the inconsistency or unavailability of reports. It is tolerably clear that Ms Underwood has endured numerous hardships throughout her youth and adult years, many of which were no fault of her own.
2. In considering a Restriction Order application, the court must balance the protection of the community and victims of serious offences with the serious undesirability of the indefinite detention of a person who has otherwise served the full term of a custodial sentence.
3. Pursuant to s 7(3)(a), (b) and (g), I have been provided with a thorough assessment of Ms Underwood by all five witnesses.
4. Ms Underwood has three children, one of whom remains in care under the supervision of the Department of Child Protection and Family Support.[98] Ms Underwood reports that she has spent the last 15 years with her partner. While she has described her partner as being 'well educated and non-violent', Ms Underwood has violently offended against him in the past.[99]
5. The evidence before the court indicates that Ms Underwood has had a variety of different mental health diagnoses, including that of drug induced psychosis, schizoaffective disorder, psychotic disorder, depression, antisocial personality disorder, and borderline personality traits.[100] Her documented background of substance abuse includes chronic alcoholism, solvents, amphetamines, and marijuana.[101] Ms Underwood has consistently denied the existence of any possible mental illness and is angered and argumentative in relation to discussions surrounding her historical substance dependence, or related diagnoses.[102] Upon previous releases from prison, Ms Underwood has almost immediately relapsed into substance use.[103]
6. Ms Underwood has consistently displayed delusional beliefs where she has constructed a complex conspiracy theory of gang rapes, murders, and collusion by others, including police officers.[104] As noted, one delusional belief of misidentification has also contributed to one of her most violent instances of offending. Understandably, her complex presentation has otherwise made it difficult for psychiatry professionals to pinpoint whether she has a major mental illness or treatable psychopathology.[105] Given Ms Underwood's ability to present, superficially, as mentally stable, this may explain why, regrettably, she does not appear to have previously come to the attention of mental health services while in custody.[106]
7. With reference to s 7(3)(c), (d), and (g), much of Ms Underwood's propensity to commit future offences, offending history, and criminal record is detailed at [15], [41] - [43], and [57] - [58] above. Ms Underwood has often maintained an alternate version of facts surrounding her offending, where she characterises herself as the victim. In an interview with Dr Pyszora, Ms Underwood displayed no remorse or victim empathy and even on occasion laughed when recounting some of her more violent offences.[107] She also lacks insight into any of her previous offending, her risk of relapse into substance use, or her propensity for serious violence.[108] Ms Underwood has consistently displayed a marked dissonance between the reality of her life and her own perspective.[109] While in custody, Ms Underwood has had 15 prison incidents.[110] Many of the incidents relate to instances of violence between Ms Underwood and other prisoners, where she has become agitated and unrestrained in her behaviour.[111]
8. With reference to s 7(3)(e) and (f), Ms Underwood has participated in a variety of programs while in custody. The first program she commenced was a Women's Anger Management Program at Greenough Regional Prison from October 2005 to February 2006. In a Program Completion Report completed by a Ms Amy Seear, it is noted that Ms Underwood was able to identify triggers to her anger such as substance use, thoughts of self-harm and changes in mood. Ms Underwood also acknowledged that her offending had a strong nexus with alcohol and drug use. In a Think First Program that she completed during 2008, Ms Underwood noted that 'provocation' was a major factor in her offending behaviour and that she believed this would continue as she had 'no intention of stepping away or giving in to others'. Her post-program interview indicated a slight shift in all cognitive behaviours, and a positive shift in self-management.[112]
9. In 2009, Ms Underwood undertook a Women's Substance Use Program at Greenough Regional Prison. Her participation in the program was described as 'erratic', where she was either eager to participate in sessions or moody, sulky or distracted by others. She was reported to not appear convinced that she would maintain a drug-free lifestyle upon exiting prison and it was recommended that she engage in further treatment in order to address her trauma.[113] In 2010, Ms Underwood did not complete a Pathways Program aimed at individuals who have a history of offending behaviour and substance use problems.[114] It was recommended that she continue with counselling and complete the program at a later date. In 2018, Ms Underwood declined to participate in a Choice, Change and Consequences Program given her request to return to Bandyup Women's Prison.[115] Ms Underwood has not undertaken any programs since this time, although she was assessed by the Education and Vocational Training Assessor in 2021 and referred as suitable for career counselling, driver education, vocational training in cleaning/asset maintenance, and business management.[116]

1. Having carefully considered all of the evidence which I have referred to above, the relation it has to the factors outlined in s 7(3) of the HRSO Act, and finding all of the evidence to be cogent and acceptable, I am satisfied to a high degree of probability that the respondent currently presents an unacceptable risk to the community that she would commit a serious offence, and that it is necessary to make a restriction order to ensure the community is adequately protected against such a risk. To that end, I am satisfied that Ms Underwood is a high risk serious offender for the purposes of the HRSO Act.
2. In drawing such a conclusion, I turn to specific elements of the evidence before me. Of particular significance is the evidence of Dr Pyszora who expressed a clear professional judgment of the significant and imminent risk that Ms Underwood would commit a serious offence.
3. It is therefore necessary for me to consider whether Ms Underwood should be subject to a continuing detention order or a supervision order.[117] A continuing detention order is an order that an offender be detained in custody for an indefinite term for control, care, or treatment.[118] A supervision order permits the offender to live in the community but under the conditions of the supervision order.
4. As noted above, in deciding whether to make an order under ss 48 1(a) or (b) of the HRSO Act, the paramount consideration is the 'need to ensure adequate protection of the community'. At the same time, s 8 makes plain that the objects of the HRSO Act include the advancement of the care and treatment of the offender.
5. On a previous occasion I observed:

Section 48(2) provides that the paramount consideration in the decision to make a restriction order is the need to ensure adequate protection of the community. At the same time, s 8 makes plain that the objects of the Act are not limited to the protection of the community but include the care or treatment of the offender. It might sometimes be observed that the community's understandable concern for the former object is not matched by its enthusiasm for the latter. That is all the more reason to be reminded that the care and treatment of offenders must also be at the forefront of the application of the statutory regime. The importance of that object is all the more evident given that the Act provides for the detention or curtailment of the liberty of a person who has fully served his or her sentence. The Act reflects a delicate balance between the necessary protection of the community and the rights of an individual offender. That balance will be unjustly skewed if proper attention is not given to the statutory object of the care and treatment of people who come within the reach of the Act.[119]

1. This case is a particularly glaring and disquieting reminder of the need to pursue the statutory object of care and treatment of an offender. As emerged clearly from the evidence in this matter, Ms Underwood has outstanding psychiatric and psychological treatment needs. I have already outlined at [43] - [50] the complexity of Ms Underwood's circumstances, and the need to be treated pursuant to the Mental Health Act.
2. It is a despairing situation that an offender with acute mental health needs, having completed a custodial sentence, remains relegated largely to the criminal justice, rather than the healthcare system. The court may, and regularly does, make recommendations regarding the care and treatment of Serious Offenders. It is regrettable that in circumstances such as Ms Underwood's, where the only available treatment provider is so clearly under resourced, those recommendations can often not be implemented.
3. In any event, I strongly urge that Ms Underwood be provided with the treatment she requires.
4. After considering the evidence in respect of the factors in s 7(3) of the HRSO Act, and finding that evidence to be acceptable and cogent, I am satisfied to a high degree of probability that Ms Underwood currently presents an unacceptable risk to the community that she may commit a serious offence. I also find that the risk of Ms Underwood re-offending can only currently be managed under a continuing detention order. Again, the evidence of Dr Pyszora that Ms Underwood presents a high risk of committing a serious offense even if subject to a supervision order, is particularly significant.
5. Accordingly, I will order that Ms Underwood be detained in custody for control, care and treatment.

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 Underwood [8].

[2] The State of Western Australia v Underwood [2022] WASC 1 [15] - [26].

[3] Cornwall v Attorney-General (NSW) [2007] NSWCA 374 [21] (Mason P, Giles and Hodgson JJA) following TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109 and Tillman v Attorney-General (NSW) [2007] NSWCA 327 (Giles and Ipp JJA).

[4] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).

[5] Director of Public Prosecutions (WA) v GTR [34].

[6] Garlett v The State of Western Australia & Anor [2022] HCA 30 [73].

[8] Garlett v The State of Western Australia & Anor [2022] HCA 30 [70] - [75].

[10] Western Australia v Latimer [2006] WASC 235 [49] (Murray J).

[11] Western Australia v Paul Douglas Allen (aka Paul Alan Francis Deverell) (No 5) [2019] WASC 359

[12] DPP (WA) v Decke [2009] WASC 312 [14].

[13] DPP (WA) v Hart [2019] WASC 4 [50] - [52].

[14] State of Western Australia v ACW (No 2) [2020] WASC 480 [30];15 State of Western Australia v Lewis (No 3) [2022] WASC 148 [37].

[16] Garlett v The State of Western Australia & Anor [2022] HCA 30.

[17] Garlett v The State of Western Australia & Anor [2022] HCA 30 [55].

[18] Garlett v The State of Western Australia & Anor [2022] HCA 30 [135].

[25] Transcript, The State of Western Australia v Bianca Marie Underwood, Supreme Court of Western Australia, 25 May 2022, 52.

[30] BoM, 709; Allan A and Dawson D, 'Developing a unique risk of violence tool for Australian Indigenous offenders' (2004) 280 Australian Institute of Criminology; M Gower et al., 'The prediction of recidivism with Aboriginal offenders: A theoretically informed meta-analysis' (2013) Canadian Journal of Criminology and Criminal Justice, 55 - 59.

[31] Gower M et al., 'The predictive validity of risk assessment tools used in Australia for female offenders: A systematic review' (2020) Aggression and Violent Behaviour, 53.

[54] Day A et al., 'Assessing violence risk with Aboriginal and Torres Strait Islander offenders: considerations for forensic practic' (2018) 25(3) Psychiatry, Psychology and Law, 452 - 464.

[59] BoM, 637; Weizmann-Henelius G et al., 'The PCL-R and violent recidivism in a prospective follow-up of a nationwide sample of female offenders' (2015) 26(5) The Journal of Forensic Psychiatry & Psychology, 667 - 685.

[63] BoM, 636; Kennealy P et al., 'Do core interpersonal and affective traits of PCL-R psychopathy interact with antisocial behaviour and disinhibition to predict violence? (2010) 22(3) Psychological assessment, 569; Leistico A M R et al., 'A large-scale meta-analysis relating the Hare measures of psychopathy to antisocial conduct' (2008) 32(1) Law and human behaviour, 28 - 45.

[64] BoM, 636; Nicholls T L et al., 'Psychopathy in women: A review of its clinical usefulness for assessing risk for aggression and criminality' (2005) 23(6) Behavioural sciences & the law, 779 - 802.

[92] Affidavit of Martyn James Clancy-Lowe (sworn 20 May 2022) [7].

[119] The State of Western Australia v Atkinson [No 3] [2022] WASC 231 [82].