THE STATE OF WESTERN AUSTRALIA -v- UNWIN [No 10] [2025] WASC 223 (6 June 2025)

(1) by acceptable and cogent evidence, to a high degree of probability, that there is an unacceptable risk that the respondent may commit a serious sexual offence of the kind that he has committed previously; and

(2) that it was necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against that risk.

1. I also determine that the respondent had not satisfied the court, on the balance of probabilities, that he would comply with the standard conditions of a supervision order.
2. In those circumstances, I determine that the respondent's CDO must be affirmed. These reasons should be read together with all earlier reasons for decision made which relate to the respondent under the DSO Act and the HRSO Act.

1. The issues that are required to be determined in the review application are:

(1) Is the respondent a HRSO as defined in s 7(1) of the HRSO Act, having regard to the factors in s 7(3) of the HRSO Act? If the answer to this question is 'no', I must rescind the CDO.

(2) If the respondent is a HRSO, am I satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order? If the answer to this question is 'no', I must affirm the CDO.

(3) If I am satisfied the respondent will substantially comply with the standard conditions of a supervision order, I must consider whether I should either affirm the CDO or rescind the CDO and make a supervision order (and in the latter case, also consider the appropriate conditions which should be imposed as part of that supervision order).

1. Blaxell J detailed the facts relating to the respondent's personal history and offending in Director of Public Prosecutions (WA v Unwin[2] which I incorporate into these reasons without repeating.
2. The respondent has committed an additional serious offence whilst being subject to the CDO. On 24 August 2020, whilst in custody on the CDO and during a planned counselling session at Acacia Prison, the respondent indecently assaulted his psychologist. The facts relating to that offending are:

(1) The respondent met with his victim as per a pre‑arranged appointment. The victim had been his psychologist for six years.

(2) After an hour, at the end of the session, the respondent stood up without warning and physically attacked the victim. The respondent used both his hands to grab the victim's breasts. The victim attempted to stop the respondent, but he forced her to the ground.

(3) The respondent overpowered the victim and continued to grab her breasts in a violent manner, by pinching, punching, and grabbing her breasts as she lay on the ground.

(4) The victim struggled to get the respondent off her, but she was unable to do so.

(5) The victim was able to activate her duress alarm, whereupon prison guards ran into the room and the respondent stopped the attack.

(6) The respondent was sentenced to 6 months and 1 day's imprisonment and made eligible for parole.

1. Since completing his sentences of imprisonment, the respondent has spent over 14 years in prison under the CDO.

1. On 17 August 2010, the Director of Public Prosecutions (WA) under s 17 of the DSO Act made an application for a continuing detention order or supervision order in respect of the respondent.
2. On 13 January 2011, Blaxell J found the respondent was a serious danger to the community and ordered the respondent be detained in custody for an indefinite term for control, care and treatment.[3] The CDO was made pursuant to s 17(1)(a) of the DSO Act.
3. On 8 February 2012, the annual review of detention pursuant to s 29 and s 31 of the DSO Act was heard by McKechnie J (2012 review). At the conclusion of the hearing of the 2012 review, McKechnie J declined to rescind the CDO.[4] His Honour said:[5]

The main reason for the latter finding is that he is yet to complete the ISOTP which has many months to run. His satisfactory completion, or non-completion, of the ISOTP is a matter that will affect both the question whether he remains a serious danger to the community and, if he does, whether he should remain in detention or be released on supervision.

1. On 22 February 2013, the annual review was heard by Hall J (as his Honour then was) (2013 review). At the conclusion of the hearing of the 2013 review, Hall J declined to rescind the CDO.[6] His Honour noted:

In many respects [the respondent]'s case is an unfortunate one. He clearly suffers from significant cognitive deficits. This has been compounded by the sedating effect of anti-psychotic medication. His intellectual issues and sedation have made effective participation in treatment programmes very difficult. He has a past history of severe solvent abuse and has resorted to solvents in the past to deal with anxiety and stress. Whilst still a relatively young man he has limited prospects for improvement in a prison environment. He could be in prison for many years if appropriate supervised accommodation is not found. He has many and complex needs which will require a significant commitment of time and resources. If that commitment is not made [the respondent] will be condemned to a bleak future. The value that a civilised society places upon personal liberty requires that something be done to improve and increase the accommodation options for people in [the respondent]'s position.

In this case, I am satisfied that a supervision order could be formulated that would provide adequate protection for the community. However, such an order would necessarily have to include a requirement to live in identified supported and supervised accommodation. Despite exhaustive efforts no such accommodation has been found. In these circumstances, a supervision order is not appropriate.

1. On 9 May 2014 and 25 June 2014, the annual review was heard by Commissioner Sleight (2014 review). At the conclusion of the hearing of the 2014 review, Commissioner Sleight declined to rescind the CDO.[7] His Honour concluded that '[the respondent] has made progress since the last annual review before Hall J, particularly in the area of identifying risk factors, being willing to seek assistance and being willing to comply with conditions'.[8] His Honour made the following recommendations:[9]

... seek to obtain the necessary funding to employ an appropriate person to work as a mentor for [the respondent] so as to pave the way for his release. I also recommend that consultation be made with Dr Tanney as to the terms of the mentoring that would be required and also what other conditions might reasonably be set. It would also be desirable that the Department maintain a dialogue with [the respondent]'s family to ensure the current offer of accommodation remains available and it be explored as to whether this arrangement could be secured for a set period. Finally, I recommend that the individual counselling provided with Dr Galloghly be maintained. It is hoped that with this counselling [the respondent] will not despair but will continue to strive to work on his coping skills so as to improve his chances of obtaining release.

1. On 5 August 2015, the annual review was heard by Jenkins J (2015 review). At the conclusion of the hearing of the 2015 review, Jenkins J declined to rescind the CDO.[10] Her Honour made the following recommendations[11]:

The next 12 months

In respect of [the respondent]'s future management, it is clear that enquiries to find suitable accommodation and mentoring services should continue. If these become available within the next 12 months, [the respondent] may make an application under the Act s 30(1) for his CDO to be reviewed. Of course, any decision as to whether he should be released on a supervision order will depend on the view of the presiding judge as to whether the proposal will be adequate to protect the community.

There is an issue as to whether accommodation in a private psychiatric hostel will ever be an appropriate placement for [the respondent]. Although Dr Brett expressed reservations about such a placement, I am of the view that the availability of such a placement should continue to be investigated. Whether it will be appropriate or not will depend on the particular characteristics of the hostel, its staff and its other clients.

Several other issues arose during the review. First, there [the respondent]'s transfer back to Karnet Prison Farm. It is up to DCS to determine [the respondent]'s place of detention, but it is important for [the respondent] to be given the opportunity to pursue an application for a transfer if he prefers to be detained at Karnet Prison Farm. If he remains at Casuarina, the Public Protection Unit should assist him to access his colouring in materials.

Secondly, there is the question of [the respondent]'s access to the trust funds. It is important that the steps outlined by his counsel be taken in the next 12 months.

Thirdly, Dr Brett's suggestion that [the respondent] see a psychiatrist with whom he can have an ongoing relationship, whether he is in custody or in the community, should be pursued. The psychiatrist could also provide advice about [the respondent]'s ongoing use of anti‑psychotic drugs to manage his stress and the potential use of anti‑libidinal medication and provide advice to Ms Williams. It may be that trust funds can be used to fund a psychiatrist.

Fourthly, Dr Brett has recommended that [the respondent] have an independent living assessment. The possibility of this occurring should be explored.

Fifthly, [the respondent]'s counsel submitted that the court could use its criminal case management powers to try and compel DCS to take ongoing steps to investigate community placement options for [the respondent] throughout the next 12 months. Judges have noted the apparent lack of action by DCS between annual reviews to pursue possible community placement options for dangerous sexual offenders who are subject to CDOs. There tends to be a flurry of activity in the month or so leading up to the hearing of the annual review. The consequent lack of time for options to be explored seems in some cases to result in negative outcomes for the relevant dangerous sexual offenders at the next annual review hearing.

1. On 5 August 2016 and 2 September 2016, the 2016 review was heard by Jenkins J (2016 review). At the conclusion of the hearing of the 2016 review, Jenkins J declined to rescind the CDO.[12] Her Honour said:[13]

In coming to this decision, I also took into account the events over the last 12 months. [The respondent]'s inappropriate and sexualised behaviour at various points over the last 12 months indicates to me that the community could not be adequately protected at this point if [the respondent] was released into the community. It remains the case that [the respondent]'s behaviour becomes unpredictable and inappropriate when he is under stress. Until he becomes more resilient to stressors, the community will not be able to be protected by a supervision order. The least restrictive alternative which was compatible with the protection of the community required me to expressly decline to rescind the CDO.

1. Her Honour made the following recommendations:[14]

The next 12 months

Each of the matters referred to by Dr Wynn Owen should be pursued over the next 12 months including considerations of a trial of anti‑libidinal medication or an SSRI. Counselling should preferably continue with Ms Williams, whilst that remains a positive relationship. Dr Wynn Owen's suggestion that a daily record be kept of [the respondent]'s daily behaviour over a block of time ought to be investigated, after discussion with Ms Williams. If this was done for a set period of time, an assessment could be made by those managing [the respondent] to determine whether the process was worthwhile.

It is also important that options for the supported accommodation of [the respondent] in the community be pursued. At this point, it seems unlikely that [the respondent] will be ready for release at the conclusion of the 2017 review. Nevertheless, unless supported accommodation and highly structured support in the community is available to him, his chances of release will be further diminished. Similarly, an independent living assessment is going to be required prior to his release, for use in the application to NDIS and to determine whether he has the capacity to live independently and it has not that capacity to determine what if anything can be done to improve his capacity.

Further attempts should be made to ensure that if [the respondent] needs to see a psychiatrist, he see the same person. Given [the respondent]'s cognitive problems genuine engagement and understanding is only likely to occur in a stable doctor/patient relationship.

It should also be ascertained whether [the respondent] is ready for transfer back to a minimum security prison to test his capacity to live in an environment where he has more freedom. This should probably not be a transfer to Karnet, given the negative experience [the respondent] had at Karnet at the end of 2015.

The processes involved in seeking support from NDIS should continue and be pursued. This is so because it would be beneficial if a mentor could be provided to [the respondent] who could commence working with him whilst he was in custody.

It is important that [the respondent]'s management should be progressed over the whole 12 month period; rather than in a month leading up to the next annual review.

1. On 4 and 29 September 2017 and 2 October 2017, the annual review was heard by Jenkins J (2017 review). At the conclusion of the hearing of the 2017 review, Jenkins J declined to rescind the CDO.[15] Her Honour said[16]:

I accept that a number of the outstanding matters are outside of [the respondent]'s control. I accept that even if these matters are resolved by the time the next review occurs, it may well be that other matters are outstanding. For example, there may not be any accommodation for him at the next review. The difficulties for [the respondent] were summarised by his counsel in the following terms:

'So, we're now seven and a half years down the track of the Department having the care, control and treatment of [the respondent] and we end up in this perpetual cycle of nothing is ever ready because there's always this one little bit that needs to be added onto the next bit which needs to be added onto the next bit which is always contingent upon accommodation.'

I acknowledge these difficulties. The control, care and treatment of [the respondent] is the responsibility of the Department of Justice. I have in the past and will next make recommendations in respect of those matters but I can do no more than make recommendations.

1. Her Honour made the following recommendations:[17]

The next two years

All of the matters which I have identified in my reasons for decision at the conclusion of the 2016 review are ongoing matters that should be addressed over the next two years.

Probably the most important matter is for [the respondent] to be given an opportunity to prove that he is capable of stable living in a minimum security prison and to demonstrate that he is capable of self-care. If deficits are identified in his ability to care for himself, he should be given the opportunity to learn new skills and to practice them. I do not underestimate the difficulty of doing this. As I have already indicated, two previous attempts to transition [the respondent] to self-care have been unsuccessful.

In part, the successful transition of [the respondent] to a new environment needs to ensure that he is appropriately occupied with work and craft activities. He should be provided with appropriate and reasonably priced craft resources.

Counselling should continue, preferably with Ms Williams. An appropriate review of the effectiveness of the counselling should occur and changes made to the processes if they are warranted.

If possible, [the respondent] should be given the opportunity to undertake a substance abuse programme.

In [the respondent]'s management over the next two years, it would be beneficial if Dr Wynn Owen was consulted over his care and treatment.

If [the respondent] is transitioned to a minimum security prison, a daily record of [the respondent]'s behaviour over a period of time may assist to identify the skills which he has, those which he does not have but which he needs and his capacity to learn new skills.

Closer to the next review, [the respondent] should be encouraged to trial a SSRI. When that occurs he would benefit from having the advice and encouragement of a treating psychiatrist who he knows.

Further concerted attempts should be made to obtain supported accommodation and mentoring services for [the respondent] closer to the next review.

As I said at the conclusion of the 2016 review, it is important that [the respondent]'s management and preparation for release is progressed over the whole of the period leading up to the next review, rather than in the month or couple of months prior to the next review hearing.

1. On 2, 3 and 30 October 2019, the 2019 review was heard by Fiannaca J (2019 review). At the conclusion of the hearing of the 2019 review, Fiannaca J declined to rescind the CDO.[18] His Honour made the following recommendations:[19]

Recommendations for further management and treatment

At the time of affirming the CDO on 30 October 2019, I was of the view, based on that evidence, that there were a number of matters to which attention must be given, and there were steps which should be implemented in the further management and treatment of the respondent, to enhance the prospects that his risk could be adequately managed in the community by the time of the next review, or before then, in which case the respondent would be able to bring an application for an exceptional review.

I said I would provide the parties with written recommendations in relation to those matters, in advance of publishing detailed reasons, and that it would be expected that those recommendations would be made available to the Department and those who are responsible for the care, control and treatment of the respondent. Those recommendations were provided to the parties on 30 November 2019 and are set out below.

Most of the recommendations outlined by Jenkins J at [108] - [116] of Unwin [No 7] continue to be relevant to the control, care and treatment of the respondent. The recommendations that follow draw upon her Honour's recommendations and build upon them, having regard to the evidence in the present review.

(1) Guiding principles in the management of the respondent

It is necessary for those responsible for the management of the respondent while he remains in custody to be guided by the principle that his detention is for the control, care and treatment of the respondent, and not by way of punishment. 'Control' in this context means control of the risk that he may commit a serious sexual offence. That is achieved by his detention in custody, which is necessary for the adequate protection of the community. The concepts of care and treatment are concerned with the respondent's welfare and rehabilitation.

It must be accepted that the Department has a responsibility for maintaining the good order of the prison in which the respondent is detained, and the welfare of other prisoners and staff in that prison, and the respondent must comply with such rules and regulations as are in place for those purposes.

However, in dealing with the respondent through its employees, the Department should bear in mind the guiding principle to which I have referred and, in particular, have regard to the respondent's therapeutic needs and Dr Wynn Owen's recommendation that there be an emphasis on positive reinforcement of good behaviours.

It continues to be important that the respondent be given an opportunity to demonstrate that he is capable of stable living and self-care in a minimum security prison. If circumstances permit and the respondent is assessed to be suitable for such a transfer, he should be given a further opportunity to move into a self-care unit. That is so, even though, if he is released on a supervision order in future, it is almost inevitable that it would be subject to the respondent having a support worker with him the whole day, seven days a week, for a period of time to be determined. As Jenkins J noted in Unwin [No 7], the difficulty of successfully achieving a move to self-care should not be underestimated, given previous attempts. However, the opportunity should be provided, if possible, so that the respondent can build his capacity to be psychologically stable and contribute to the maintenance of his well-being in a more independent living arrangement in the community.

The respondent should be encouraged to apply the skills he has developed since the previous review in respect of maintaining personal hygiene, cleanliness of his living environment, proper hygiene in the handling and preparation of food, nutrition, and social interactions. As before, if deficits are identified in his ability to care for himself and his social interactions, he should be given the opportunity to learn (or re-learn) appropriate skills and to practise them.

In turn, the respondent should strive in the period until the next review to demonstrate that he is capable of a reasonable degree of self-care and stable behaviour in a less restrictive and more independent living environment, and that he will be able to cope and manage the change if he is released into such an environment on a supervision order. The respondent will demonstrate that capacity, in part, by consistently applying skills of the kind referred to in the previous paragraph. Ideally, if he is in the self-care unit, he would do so over a period of three months, but he should strive to demonstrate stable behaviour on a continuing basis prior to the next review, irrespective of where he is detained in the prison.

The respondent should be provided with written goals in simple terms identifying practical behaviours to assist him to demonstrate a reasonable degree of self-care and stable behaviour. Such practical behaviours would include those necessary to maintain good personal hygiene and a clean cell, healthy habits in relation to the preparation of food and nutrition, and good social relations, including the manner in which he seeks to have his requests or demands met and his responses if they are not met. Such goals should be formulated in consultation between the respondent's supervising CCO, his psychologist, the consultant psychiatrist and prison staff.

Although, if released on a supervision order in future, it is almost inevitable that the respondent would have a support worker with him constantly for a significant period of time, the respondent should strive to demonstrate that he is capable of keeping to a schedule and that he will attend and engage in appointments with his psychologist and other medical professionals. That is something that will need to be reinforced with the respondent by his supervising CCO and psychologist, and it should be included in the written practical goals provided to the respondent.

It remains the case, as was identified by Jenkins J, that to achieve the respondent's successful transition to a new environment, it will be necessary, in part, to ensure that he is appropriately occupied with work and craft activities. For that purpose, he should be provided with appropriate and reasonably priced craft resources.

(5) Records of the respondent's behaviour and daily activities

If there is a change in the applicant's circumstances, in terms of where he is accommodated within the prison, or if he is moved to another prison, a record should be kept of the respondent's daily activities, behaviour and responses, in order to identify how the respondent copes with the change. The context in which such a record (previously referred to as daily logs) should be kept is the need to assess whether the respondent is capable of stable living and a reasonable degree of self-care in a less restrictive living environment, as discussed in the recommendations above. In terms of self-care, it will be of assistance, in my opinion, if the record describes the respondent's activities in a manner that enables an assessment to be made of his skills in the areas I referred to earlier. In terms of stability, the need for the record should be considered against the background that, since the previous review, the respondent showed periods of relative stability, followed by periods of dramatic instability (as described by Dr Wynn Owen), often related to external stresses or pressures, or internal feelings of stress.

Therefore, any such record must be more than a description of the respondent's behaviour, whether positive or negative. Entries describing behaviour should endeavour to identify any event before the behaviour, or the surrounding circumstances, or things said by the respondent which might explain the behaviour. Examples of such entries can be found in the previous daily logs, although generally the logs were descriptive of behaviour, without identifying the surrounding circumstances for context. It would be expected that prison staff would be provided with guidance from the respondent's supervising CCO, his psychologist or the consultant psychiatrist as to the type of content that should be recorded.

To the extent that the focus of entries about behaviours is the respondent's ability to cope, then, if he is coping well, the entries should provide an understanding of what behaviours he has been engaging in or what surrounding circumstances there have been that have contributed to his ability to cope. If he is not coping well, the entries should shed light on what has occurred, for instance in his interactions with others or in his surrounding circumstances, that may have led to his negative behaviour or feelings.

The duration of the record should be a matter of consultation between prison staff and the respondent's supervising CCO and psychologist. The record should be available to the CCO and the respondent's psychologist for review on a regular basis. The evidence of Dr Wynn Owen was that it need not be kept for the whole of the year, but should be for a period that is sufficient to reveal the 'cyclic behaviour' previously identified and for the respondent's psychologist or the consultant psychiatrist to be able to assess the respondent's ability to cope with change, and to implement strategies, if necessary, to assist him with coping.

The purpose of such a record generally would be to assist in the consideration at the next review of how the respondent might cope with transition into the community. It would also be considered by those responsible for supervising and treating the respondent to determine what actions might be necessary to improve his ability to cope, if that is identified as an issue. Further, it may inform the level of support the respondent may require if released on a supervision order, and therefore may affect the sort of plan put forward to the NDIA for funding from the NDIS.

The respondent should continue to receive counselling, preferably from Ms Williams. As Jenkins J recommended in Unwin [7], an appropriate review of the effectiveness of the counselling should occur and changes made to the processes if they are warranted. A particular focus of therapy should be to provide the respondent with practical assistance to enable him to develop (or maintain current) skills to manage negative emotions and feelings of distress.

The Department should endeavour to ensure that there is consistency in the psychiatric care, treatment and advice provided to the respondent. Ideally, that care, treatment and advice would be provided by one psychiatrist for the duration of the period until the next review under the Act. If possible, a psychiatrist should be appointed by the Department for that purpose at the earliest opportunity. If that is not possible, the Department should appoint one psychiatrist to consult and provide oversight of the psychiatric care, treatment and advice provided to the respondent, with a view to achieving a consistent approach. Dr Wynn Owen should be consulted in the first instance on those matters, in light of his assessment of the respondent for this review. As was discussed during submissions, if Dr Wynn Owen were to be appointed to provide the continuing oversight, it would have the advantage that he would bring the experience and knowledge of assessments of the respondent made over a number of years. However, consideration would need to be given to whether Dr Wynn Owen may be required to assess the respondent for the next review, and whether a conflict may arise if he has been involved in the treatment of the respondent.

As part of the psychiatric care and treatment provided to the respondent, consideration will need to be given to what medication, if any, may be of benefit to help stabilise his mood and to reduce his libido. At this stage, it would appear to be appropriate to continue with the trial of Sodium Valproate and monitoring of the respondent's mood. Although the respondent has previously discontinued a trial of SSRI medication, it may be that a further trial is considered appropriate.

In respect of any medication prescribed to him, the respondent would benefit from having the advice and encouragement of a treating psychiatrist he knows. In any event, it is necessary for there to be consistency of advice to the respondent about the purpose of the medication, so as to reinforce the advice being given to him by his psychologist and supervising CCO as to the value of the medication, in terms of stabilising his mood. It may be beneficial for the treating psychiatrist and the psychologist to meet with the respondent together to explain the purpose and benefits of the medication.

The respondent should be further encouraged to have a mentor and, if he is amenable, a culturally appropriate mentor should be made available to assist the respondent with daily living in a way that minimises stress.

(10) Supported accommodation and referral for NDIS funding

Concerted attempts should be made to find suitable accommodation and a suitable service provider who can provide disability support to the respondent in the community 24 hours each day, 7 days per week for a period of at least six months, on the basis that any future release of the respondent on a supervision order would be conditional upon the availability of such supported residential accommodation.

Further, at the earliest opportunity, a further referral should be made for NDIS funding, on the basis of the opinion expressed by Dr Wynn Owen in this review. It would be expected that, if the respondent qualifies for funding, it would be directed towards the provision of disability services within supported accommodation.

Finally, again on the basis of the opinion expressed by Dr Wynn Owen in this review, and the statements made by the respondent to Dr Wynn Owen about his plans for earning an income if released, consideration should be given to approaching the Public Advocate's Office again for an application to be made for the appointment of an administrator under the Guardianship and Administration Act 1990 (WA) in respect of the respondent's estate, to protect his savings in the event that in future he is released on a supervision order.

1. On 2 May 2022, the 2022 review was heard by Fiannaca J (2022 review). At the conclusion of the hearing of the 2022 review, Fiannaca J affirmed the CDO.[20] His Honour made the following recommendations, in addition to or as refinements of, his 2019 recommendations:[21]

First, it will be necessary for the Department to follow up on progress in respect of the functional capacity and positive behaviour specialist assessments in respect of the respondent, which were identified as necessary to increase the level of NDIS funding available to the respondent. It is fundamental that the respondent be given every opportunity to access any funding that might be available, having regard to his cognitive deficits, which might properly be regarded as a disability.

Secondly, the Department is to give consideration to having a behaviour management plan developed, implemented and overseen by a psychologist, working with custodial staff. It would be expected that the plan would identify specific behaviours to be focused on. In the implementation of the plan, it is desirable that a psychiatrist be involved in addressing issues related to situations of acute stress that may be affecting the respondent.

Thirdly, there should be a psychiatric review of the respondent, with a view to ongoing oversight from the same clinician.

Fourthly, if such medication is not already prescribed to the respondent, consideration should be given to prescribing mood stabilising medication to assist the respondent. If the prescribed medication appears to be ineffective, consideration should be given to whether a different mood stabiliser may be effective, with a view to changing the medication.

Fifthly, the respondent should continue to engage in leisure activities that assist him to learn strategies to manage when he has less structure.

Sixthly, the respondent should continue to engage in activities that relate to daily living, self-care, personal hygiene, his ability to manage and understand his nutrition, and basic financial management. This would include providing the respondent with employment opportunities that would give him skills, and positively reinforce his view of himself.

Seventhly, the 2019 recommendation in respect of counselling (recommendation 6) remains apt to the extent that it indicates that the particular focus should be to provide the respondent with practical assistance to enable him to develop (or maintain current) skills to manage negative emotions and feelings of distress. Such counselling would be expected to be conducted within the framework of any behaviour management plan developed for the respondent. Unless otherwise determined, after consultation with Dr Wynn Owen or a psychiatrist providing care to the respondent, only male psychologists should be assigned to the respondent.

Finally, I reiterate the ... recommendations from Unwin [No 8] at [281] - [283] ...

1. The object of the review process was articulated by Hall J in The State of Western Australia v Corbett [No 5]:[22]

The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the [Dangerous Sexual Offenders Act 2006] DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community, then the continuing need for detention must be considered ... It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community ...

It is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.

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 by a supervision order. There is also the possibility that the risk may increase because of a failure of treatment or a relapse into deviant thinking.

The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.

If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.

The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, a mere welfare check: they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community ... (citations omitted).

(1) the court must determine whether an offender remains a HRSO; that is, whether 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.[23] The State has the onus of satisfying the court that an offender remains a HRSO;[24]

(2) if the court is not so satisfied, the CDO must be rescinded;

(3) if the court determines that the offender is a HRSO, it must either affirm the CDO, or, subject to s 29, rescind the CDO and make a supervision order;[25]

(4) the court must make its own independent assessment of whether the offender is a HRSO and if so, whether the CDO should be affirmed, however the court is entitled to have regard to and give weight to the decision in the original application;[26]

(5) in deciding whether to affirm the CDO or rescind it and make a supervision order, the paramount consideration is the need to ensure adequate protection of the community;[27]

(6) the court must assess whether the risk of offending is reduced to a reasonably acceptable level that ensures adequate protection of the community;[28]

(7) in order to make a supervision order the court must be satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The offender bears the onus of establishing this to the requisite standard.[29] Fiannaca J in Director of Public Prosecutions (WA) v Hart[30] set out the approach to be taken in determining whether an offender 'will substantially comply' with the standard conditions of the order. I adopt that approach.

1. On a review under s 66 of the HRSO Act, the court is required to consider whether the offender 'remains a HRSO'. If the court does not find that the offender remains a HRSO, then it must rescind the CDO. Conversely, if the court does find that the offender remains a HRSO it must either affirm the CDO or rescind the CDO and make a supervision order.
2. The definition of the term 'HRSO' is contained in s 7(1) of the HSRO Act, which is 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. A 'restriction order' is a 'continuing detention order' or a 'supervision order'.[31] A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'.[32] A 'supervision order' is 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate in accordance with section 30'.[33] The standard conditions of a supervision order include the requirement that the offender not commit a serious offence during the period of the order.[34]
2. Section 7(3) of the HRSO Act specifies the matters that the court must have regard to in deciding if an offender is a HRSO for the purposes of s 7(1). The matters are as follows:

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

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

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

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

(5) 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;

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

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

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

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

(10) any other relevant matter.

1. Pursuant to s 67 of the HRSO Act, the Chief Executive Officer of the relevant Department (the Department of Justice) must engage one or more qualified experts to prepare reports in accordance with s 74 to be used on the review.
2. Pursuant to s 84(5) of the HRSO Act, in this review hearing the court may receive into evidence:

(a) any document relevant to the antecedents or criminal record of the offender; or

(b) anything relevant contained in the official transcript of any relevant proceeding against the offender; or

(c) any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the offender; or

(d) any relevant material of the kind mentioned in section 7(3) relating to the offender.

(1) a book of materials comprising three volumes - two dated 28 March 2024 and the third dated 29 May 2024;[35]

(2) updated community supervision assessments of Ms Aimee Goodes dated 28 August 2024, 30 October 2024, 28 January 2025 and 5 May 2025;[36]

(3) occupational therapist functional capacity assessment of Yan You Kong dated 5 June 2024;[37]

(4) NDIS interim behaviour support plan dated 22 July 2024;[38]

(5) State Administrative Tribunal orders dated 29 August 2024;[39]

(6) NDIS plan approval dated 25 March 2025;[40]

(7) NDIS budget breakdown dated 25 March 2025;[41] and

(8) Skout Care service report of Reece Al Asadi.[42]

1. The first two volumes of the book of materials consist of background material which had been prepared for the purposes of the earlier reviews. The material included the respondent's criminal record, transcript and records relating to the respondent's previous offences and criminal hearings and prison records.
2. The final volume of the book of material included new material obtained for the Ninth review. This material included:

(1) NDIS plan approval dated 12 April 2024;

(2) letter in lieu of HRSO treatment progress report of Chantelle Place dated 30 April 2024;

(3) psychiatric report of Dr Peter Wynn Owen dated 13 May 2024; and

(4) community supervision assessment of Julie Dabala dated 27 May 2024.

1. The other material tendered was obtained for the purpose of updating the court in relation to the Ninth review after it was adjourned in June 2024.
2. The State called Dr Peter Wynn Owen and Ms Julie Dabala to give oral evidence at the Ninth review.
3. The respondent elected not to give or adduce any evidence.
4. I will now consider the various matters specified in s 7(3) of the HRSO Act.

Matters to be considered pursuant to s 7(3) HRSO Act Any report prepared under s 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section - s 7(3)(a) HRSO Act

1. Dr Wynn Owen is a qualified expert within the meaning of the HRSO Act.[43] Dr Wynn Owen previously interviewed and assessed the respondent for the purpose of the 2022 review. For the purposes of this application, the respondent declined to attend the scheduled interview with Dr Wynn Owen at Casuarina Prison.[44]
2. Dr Wynn Owen is a medical practitioner registered with the Medical Board of Australia as a generalist and a medical specialist (Psychiatrist). He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and an accredited member of the RANZCP Faculty of Forensic Psychiatry. Dr Wynn Owen, as a consultant forensic psychiatrist, has regularly provided numerous reports and expert testimony in courts for more than 20 years.[45]
3. Since the respondent declined to attend the scheduled interview with Dr Wynn Owen at Casuarina Prison, Dr Wynn Owen reported that, on paper, the respondent's function appears to have continued without obvious deterioration since the last assessment, however, it is not possible to clarify some of the material with the respondent due to his refusal to attend the interview.[46]
4. Dr Wynn Owen has assessed the respondent on four prior occasions. He assessed the respondent for the 2016 review, 2017 review, 2019 review and the 2022 review.[47]
5. Dr Wynn Owen prepared a report dated 13 May 2024[48] for the Ninth review, using volumes 1 and 2 of the book of materials and from discussions and email correspondence with the Community Offender Monitoring Unit (COMU) team leader and the respondent's community corrections officer.[49]
6. Dr Wynn Owen expressed the opinion that the respondent's past childhood trauma has an adverse effect on the respondent's neurodevelopment and cognitive function, as well as adverse impacts on attachment, relationship skills and communication.[50]
7. Dr Wynn Owen notes that there have been two instances where the respondent exposed his penis to female prison officers during the period under review.[51] The most recent being in January 2024.
8. Dr Wynn Owen diagnosed the respondent with:[52]

(1) substance use disorder (solvents/inhalants - currently in remission);

(2) sexual sadism disorder;

(3) antisocial personality disorder; and

(4) intellectual development disorder (mild to moderate severity).

1. Further, Dr Wynn Owen reports the respondent's emotional dysregulation, apparent global functional impairment, impulsivity and lack of consequential thinking remains apparent.[53]
2. The respondent's score on the Static‑99R (2016) remains unchanged. He is in the 'Well Above Average Risk' risk category. Offenders in this category have an approximately 35.1% (30.5 - 40.0%) likelihood of committing a new sexual offence within five years of release. [54]
3. Dr Wynn Owen undertook a review in 2022 of the respondent utilising the Risk for Sexual Violence Protocol (RSVP) and found that the following risk factors are present in the respondent:[55]

(1) chronicity of sexual violence;

(2) escalation of sexual violence;

(3) physical coercion in sexual violence;

(4) extreme minimisation of denial of sexual violence;

(5) problems with self-awareness;

(6) problems with stress or coping;

(7) problems resulting from child abuse;

(8) sexual deviance;

(9) sexual sadism disorder;

(10) problems with substance abuse;

(11) problems with intimate relationships;

(12) problems with non-intimate relationships;

(13) problems with employment;

(14) problems with planning;

(15) problems with treatment; and

(16) problems with supervision.

1. Dr Wynn Owen reported there has been no material change in these risk factors since the 2022 review.[56]
2. Dr Wynn Owen considers the respondent's level of function in prison remains very low with apparent ongoing problems with communication, emotional regulation, occupation and self‑management noting that the respondent has been given little or no opportunity to develop skills in these areas since the 2022 review.[57]
3. Dr Wynn Owen is of the view that it is highly unlikely that the respondent will make any more progress towards self‑management of risk of serious offending in a traditional prison environment.
4. Dr Wynn Owen recommends:[58]

If [the respondent] is to remain in detention [he] should be placed in self-care in a low secure environment where he will have an opportunity to demonstrate some of the skills required for community living and be required to socialise. [The respondent] will find this a challenge and will need significant support to remain in such a setting.

[The respondent] will require supported accommodation if released, initially this should be a minimum of 1:1 24/7 support until self‑management and emotional regulation skills are consistently demonstrated.

It is clear that [the respondent] will not benefit from insight oriented therapeutic intervention to address criminogenic needs however I recommend involvement of the Corrective Services Forensic Psychology teams to develop and oversee a behaviour management plan, working with custodial staff if he is to remain in detention and with the NDIS supports if he is released to the community.

[The respondent] would benefit from ongoing day to day behaviour support from a mentor, both in prison and/or in the community.

[The respondent] should have no unsupervised contact with females (including female staff of any professional service or supported placement), in a custodial or community setting.

1. At the hearing on 11 June 2024, Dr Wynn Owen gave evidence that:[59]

... in that first period of release, and for an absolute minimum of 12 months, that the 1 to 1 24/7 is essential. He can't be relied on to adhere to a curfew. He may, on impulse, decide that's not what he wants to do. The nature of his cognitive function has been shown to include executive dysfunction, which is a problem with decision‑making, impulsivity. The inability or difficulty with consequential thinking. If I do this, then this might happen. It's a bad thing, so I won't do it. He doesn't have those processes and he tends to act on impulse. These will cause problems at any time that somebody is not there and those problems may well be part of a risk of a future serious offence.

1. Dr Wynn Owen gave evidence that his worry was that the respondent, within a very short time of being released without supervision, would relapse into his substance use disorder.[60] Dr Wynn Owen said that, as soon as the respondent's rigorously managed environment in prison is removed, it could be within days that he reoffends.[61]
2. Dr Wynn Owen gave evidence that changes in the respondent's behaviour are more likely to occur in the community, as opposed to in prison, because the support of an NDIS package in the community gives the respondent access to a therapeutic team with appropriate skillsets to reinforce positive behaviours and respond consistently and appropriately to negative behaviours over a period of time.[62] Dr Wynn Owen gave evidence that, in his opinion, there is unlikely to be any change in the respondent's behaviours until he is released and a behaviour support package is implemented.[63]
3. Dr Wynn Owen gave evidence that, over a long period of time, the respondent has not demonstrated the capacity for consistent management of his behaviour.[64]
4. In cross‑examination, Dr Wynn Owen was asked whether an NDIS support package that funded support for 12 hours a day with a curfew overnight would be adequate. Dr Wynn Owen responded:[65]

I believe it would be a mistake to rely on [the respondent] remaining in the home, merely because there was a curfew imposed. And it may be that he would not wish to breach that curfew, but then something would occur and he would impulsively act, rather than to think about what he was doing. I don't think this is a conscious maliciousness, I really think that he just acts on impulse at times, particularly when under stress.

1. Dr Wynn Owen said that, in his opinion, there should be nothing less than 1:1, 24 hours a day 7 days a week support upon the respondent's initial release.[66]

Evidence of Chantelle Place (Acting Manager Forensic Psychological Assessment Team)

1. Ms Place is the acting manager of the Forensic Psychological Assessment Team and produced a letter dated 30 April 2024 in lieu of the requested treatment progress report.[67]
2. Ms Place noted that in the previous treatment progress report completed by Dr Bannister for the 2022 review, Dr Bannister reported that there was little to suggest the respondent had made any meaningful treatment gains from his contact with his previous psychologist, during the course of approximately 170 sessions conducted over an almost seven‑year period.[68]
3. Further, Ms Place noted that at the 2022 review, Dr Wynn Owen made no recommendation for continuing psychological intervention. Although, Dr Wynn Owen expressed the opinion that a psychologist may be useful, from time to time, whilst the respondent is in prison, to monitor the respondent's psychological state. Dr Wynn Owen also recommended that a male psychologist be appointed and see the respondent on a quarterly basis to ascertain whether there had been any change in his behaviour.[69]
4. Ms Place was informed that the respondent has a male positive behavioural support provider from Liberty Behavioural and a male occupational therapist secured through Lifecare Homecare. Together, they intend to complete a functional capacity assessment for the respondent in custody which will determine whether he is eligible for increased funding in his NDIS plan.[70]
5. Ms Place confirmed the respondent had not engaged in any form of treatment since the 2022 review and that the respondent does not have a current referral with the Forensic Psychological Intervention Team (FPIT). If, following the functional capacity assessment, a multidisciplinary team is established for the respondent as part of his NDIS plan, a referral could be sent to FPIT and a review could be undertaken as to the efficacy of a psychologist providing a consultancy service to assist in the systemic management of the respondent's behaviours in custody.[71]
6. Ms Place proposed that if the respondent is to be released to the community, a referral could be sent to FPIT requesting that a psychologist contribute to a collaborative case management service by providing a consultancy role alongside the respondent's supports funded by the NDIS.

Evidence of Julie Dabala (Senior Community Corrections Officer)

1. Ms Dabala is a senior community corrections officer and produced a report dated 27 May 2024 which summarises the respondent's progress since the previous hearing, proposed community supervision plan, behaviours to be managed and strategies to manage offending behaviours.[72]
2. Ms Dabala interviewed the respondent on five occasions (14 February 2023, 15 August 2023, 23 October 2023, 7 March 2023 and 10 May 2024). The respondent declined to participate in interviews with Ms Dabala on 29 September 2023 and 10 October 2023. At the first interview on 14 February 2023, Ms Dabala reported that the respondent presented as hostile and argumentative throughout the session.[73] During this interview the respondent, when asked by Ms Dabala whether he would sexually reoffend if he was released, said that he will do 'whatever it takes' to make sure he was given a prison sentence that would justify spending the next 15 years in prison, adding that 'murderers get 15 years'.[74]
3. At the interview on 15 August 2023, the respondent disclosed his unlawful use of illicit substances in the custodial environment. The respondent claimed to be purchasing the drugs out of his prison spends and the money he receives from the Public Trustee. The respondent spoke about his substance of choice being sniffing solvents and glue which are not detectable through urinalysis and said that he would use eye drops and aftershave to disguise his use and was confident he could avoid detection.[75]
4. At the interview on 23 October 2023, the respondent stated that he would not comply with the psychiatric and psychological assessments for the court because they do not state the truth and that once he was released he would go to the media and tell them everything.[76]
5. At the interview on 7 March 2024, the respondent presented well and advised Ms Dabala that he had a new job as the dayroom cleaner and assisting the 'regi' cook in the unit.[77]
6. The report concludes with 62 proposed conditions of a supervision order should the court consider the respondent suitable for one.[78]
7. At the hearing on 11 June 2024, Ms Dabala confirmed that she met with the respondent on 5 June 2024 and that Dr Wynn Owen accurately summarised the outcome of that meeting which was that the respondent told her that, upon release, he intended to fund himself through streaming live pornography and that he would seek out general practitioners to get prescriptions for psychotropic medication that he did not need.[79]
8. Ms Dabala gave evidence that she met with the respondent on 5 June 2024 and that the respondent expressed a lot of frustration about the assessment that he was to undergo by an occupational therapist as the respondent was not able to express what he wants to do with his life because he had previously led such a dysfunctional life.[80]

Any other medical, psychiatric, psychological or other assessment relating to the offender (s 7(3)(b) HRSO Act)

1. The respondent's NDIS plan was approved on 12 April 2024.[81] The respondent had been allocated an increase in NDIS funding since the 2022 review. The funding allows for six hours daily support. That amount did not provide for the 24‑hour support that Dr Wynn Owen recommends.
2. NDIS reviewed the respondent's package and, contrary to what was anticipated by Dr Wynn Owen, the respondent's NDIS plan, approved for 12 months on 25 March 2025, was significantly reduced to $40,748.04.[82] This means that there is no possibility that the respondent would receive 24‑hour support in the community if he was released on a supervision order.

Information indicating whether or not the offender has a propensity to commit serious offences in the future - s 7(3)(c) HRSO Act and whether or not there is any pattern of offending behaviour by the offender - s 7(3)(d) HRSO Act

1. The respondent's offending history is extensive and sustained. He has been convicted of 10 serious offences as defined in the HRSO Act. The respondent has also been convicted of a number of offences that, although not 'serious offences', are still relevant because they demonstrate the respondent's propensity to assault females unknown to him in public by grabbing their breasts. This is consistent with the respondent's conviction for a serious offence while in prison.
2. This pattern of offending has escalated. The respondent follows women for the purpose of grabbing their breasts inside their clothing, then has demonstrated a propensity for biting women on their breasts and committing acts of violence against them, including by punching them in the face. The respondent's pattern of offending is characterised by opportunistic, impulsive and public offending. The respondent has not demonstrated that he is fearful of apprehension or punishment.

Any efforts by the respondent to address the cause of causes of the respondent's offending behaviour, including whether the respondent had participated in any rehabilitation program - s 7(3)(e) HRSO Act and whether or not the offender's participation in any rehabilitation program has had a positive effect on the offender - s 7(3)(f) HRSO Act

1. The respondent has not engaged in any form of treatment since the 2022 review. A treatment progress report was completed by Dr Bannister dated 28 March 2022[83]. Dr Bannister reported that there was little to suggest the respondent had made any meaningful treatment gains from his contact with his previous psychologist, Ms Williams, during the course of approximately 170 sessions conducted over an almost seven‑year period.[84]

1. The respondent has an extensive criminal history, including convictions for serious offences.[85] The respondent's offending history began in 1993. The respondent's criminal history is summarised by Blaxell J in Director of Public Prosecutions (WA) v Unwin[86] and I incorporate that summary without repeating it.
2. As mentioned above, the respondent has committed further serious offences in 2020, namely aggravated indecent assault and assault public officer.

The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence - s 7(3)(h)

1. I accept the evidence of Dr Wynn Owen that the respondent presents a high risk of committing a future serious offence (within the meaning of the HRSO Act) if not subject to a restriction order.

The need to protect members of the community from that risk - s 7(3)(i)

1. Dr Wynn Owen is of the opinion that the type of offence that the respondent is likely to commit is similar to the offences he has committed in the past and that his offending may escalate to attempted or actual sexual penetration of the victims. This may also include physical violence towards the victim which would result in significant physical harm.
2. Dr Wynn Owen reports that the consequence for the victim/s would be immediate and lasting psychological trauma and possibly immediate and chronic physical injury.[87]
3. In all of these circumstances, the need for protection of the community is very high.

1. The State identified three other relevant matters for consideration:

(1) prison behaviour since last review;

(2) intellectual impairment; and

(3) accommodation.

1. The respondent's prison behaviour since the 2022 review has been summarised in Ms Dabala's community supervision assessment dated 27 May 2024.[88]
2. The respondent has been involved in a range of incidents since the 2022 review, including the following:

(1) on 28 February 2023, after prison staff found large quantities of alcohol fermentation, they were informed the respondent was supplying sugar to prisoners. A search of his cell found him to be in possession of excess sugar; [89]

(2) on 8 May 2023, the respondent failed to provide a sample for urinalysis and was confined to a punishment cell;[90]

(3) on 12 July 2023, during a cell search the respondent was found to have several medications in his cell that he claimed he found in the unit yard;[91]

(4) on 13 July 2023, the respondent again failed to provide a sample for urinalysis and was referred to a visiting Justice. He later admitted he avoided providing a sample as it would be dirty due to his use of medication such as Seroquel and Suboxone;[92]

(5) on 3 September 2023, he exposed his penis to a female prison officer;[93]

(6) on 18 October 2023, the prison was informed the Fines Enforcement Agency had been receiving nuisance calls from someone using 'extremely explicit language'. This caller was identified to be the respondent, however, he refused to discuss this with his community corrections officer;[94] and

(7) on 22 January 2024, he again exposed his penis to a female prison officer.[95]

1. The respondent demonstrates a range of impairments in social functioning and as noted by Dr Wynn Owen, was assessed in 1999 as having a borderline IQ.[96]

1. As reported in the community supervision report, the respondent has no identified accommodation and his only community supports are provided through his NDIS funding. Investigations into private rental options and discussions with accommodation service providers have failed to identify any viable options.[97]
2. In The State of Western Australia v Corbett [No 5],[98] Hall J observed:

Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that a supervision order is presently a viable option.

1. In order to determine whether the respondent is a HRSO, I must be satisfied that it is necessary to make a restriction order against him in order to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence.
2. The court is required to be satisfied of two things - firstly, the risk that the respondent will commit a serious offence is unacceptable and secondly, that it is necessary to make a restriction order.
3. I am satisfied to a high degree of probability, on the basis of acceptable and cogent evidence that I have detailed, that the risk that the respondent will commit a serious offence unless subject to a restriction order is an unacceptable one.
4. I am also satisfied to a high degree of probability, on the basis of acceptable and cogent evidence, that it is necessary to make a restriction order to ensure adequate protection of the community from the unacceptable risk that the respondent will commit a serious offence.
5. I therefore declare the respondent a HRSO.

Continuing detention order or supervision order?

1. Having found that the respondent is a HRSO and that it is necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence, I must decide whether to affirm the CDO or whether to rescind it and make a supervision order.
2. In so deciding, the paramount consideration is the need to ensure the adequate protection of the community. The need to ensure the adequate protection of the community does not exclude other considerations.[99]
3. The court should impose the order which is least invasive or destructive to the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection to the community.[100]
4. A supervision order, under s 48(1)(b) of the HRSO Act, is least invasive or destructive of the respondent's right to be at liberty. I must, therefore, consider whether the release of the respondent on a supervision order ensures an adequate degree of protection to the community.
5. I cannot make a supervision order unless I am satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of such an order.[101]
6. The standard conditions are set out in s 30(2) of the HRSO Act. They include reporting, supervision and electronic monitoring and relevantly:

(d) be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and

(e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer;

(f) not commit a serious offence during the period of the order; and

(g) be subject to electronic monitoring under section 31.

1. The respondent has the onus of proving, on the balance of probabilities, that he will substantially comply with the standard conditions.[102]
2. In order to be satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of a supervision order, I must be satisfied that the respondent will comply with the standard conditions so as to ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[103]

Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions?

1. The respondent has not satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order. This is for the following reasons:

(1) the respondent has committed a serious offence while in prison;

(2) the respondent has refused to engage with each of Ms Dabala and Dr Wynn Owen on several occasions; and

(3) the respondent has indicated to Ms Dabala that he will do whatever it takes to get back into prison.

1. Dr Wynn Owen has indicated that, in his opinion, the respondent must be supervised in the community 1:1, 24 hours a day, 7 days a week in order to address his risk of reoffending in the community.
2. In my view, consistent with this evidence, I cannot be satisfied that the respondent will substantially comply with the standard conditions of a supervision order, in particular the condition that requires him not to commit a serious offence, unless he has this level of support in the community.
3. The respondent's NDIS plan granted on 25 March 2025 is significantly reduced and does not provide for this level of support in the community.
4. I must therefore affirm the CDO of the respondent pursuant to s 68(1)(b)(i) of the HRSO Act.

Recommendations for ongoing treatment and management

1. I remind those who are responsible for his day‑to‑day detention that the respondent is being detained in prison for control, care and treatment, and not for punishment. Every reasonable effort should be made to ensure that the respondent has his treatment needs assessed and that options for his release are explored, so that the chances of him being released at the next review date are optimised.
2. In my opinion, having regard to the evidence of Dr Wynn Owen, every effort should be made to ensure that the following things are done before the next review:

(1) if possible, the respondent should be placed in self‑care in a low secure environment where he will have an opportunity to demonstrate some of the skills required for community living and be required to socialise - this is provided the respondent is offered significant support to transition into this environment;

(2) FPIT should be engaged to develop and oversee a behaviour management plan, working with custodial staff to implement this plan;

(3) the respondent would benefit from ongoing day‑to‑day behaviour support from a mentor in prison; and

(4) the respondent should have no unsupervised contact with females (including female staff of any professional service or supported placement).

1. These recommendations are in addition to and complement the recommendations set out by Fiannaca J in Unwin [No 9]. Those recommendations continue to be relevant to the ongoing care and management of the respondent.

(1) Pursuant to s 68(1)(b)(i) of the HRSO Act, the court, having found that the respondent remains a high risk serious offender within the meaning of s 7(1) of the HRSO Act, affirms the continuing detention order made on 13 January 2011 by the Honourable Justice Blaxell.

(2) The next review date is to be held as soon as practicable after 6 June 2027.

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

[1] Director of Public Prosecutions (WA) v Unwin [2011] WASC 11.

[2] Director of Public Prosecutions (WA) v Unwin [2011] WASC 11 [5] ‑ [36].

[3] Director of Public Prosecutions (WA) v Unwin [2011] WASC 11.

[4] Director of Public Prosecutions (WA) v Unwin [No 2] [2012] WASC 73.

[5] Director of Public Prosecutions (WA) v Unwin [No 2] [6].

[6] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178.

[7] Director of Public Prosecutions (WA) v Unwin [No 4] [2014] WASC 241.

[8] Director of Public Prosecutions (WA) v Unwin [No 4] [65].

[9] Director of Public Prosecutions (WA) v Unwin [No 4] [75].

[10] Director of Public Prosecutions (WA) v Unwin [No 5] [2015] WASC 385.

[11] Director of Public Prosecutions (WA) v Unwin [No 4] [109] ‑ [115].

[12] Director of Public Prosecutions (WA) v Unwin [No 6] [2016] WASC 296.

[13] Director of Public Prosecutions (WA) v Unwin [No 5] [75].

[14] Director of Public Prosecutions (WA) v Unwin [No 5] [76] ‑ [81].

[15] Director of Public Prosecutions (WA) v Unwin [No 7] [2018] WASC 65.

[16] Director of Public Prosecutions (WA) v Unwin [No 7] [106].

[17] Director of Public Prosecutions (WA) v Unwin [No 7] [107] ‑ [116].

[18] The State of Western Australia v Unwin [No 8] [2019] WASC 495.

[19] The State of Western Australia v Unwin [No 8] [278] ‑ [302].

[21] The State of Western Australia v Unwin [No 9] [2022] WASC 479 [218] ‑ [225].

[22] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [8] ‑ [13].

[26] The State of Western Australia v ACW [No 3] [2022] WASC 41 [27]; The State of Western Australia v MAR [No 3] [2022] WASC 371 [27].

[28] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33].

[30] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [39] ‑ [52] (Hart).

[43] HRSO Act s 3; Exhibit 1.3, page 832 [2].

[49] Exhibit 1.3, page 833 [7] ‑ [10].

[50] Exhibit 1.3, pages 834 - 836 [21].

[55] Exhibit 1.2, pages 678 - 681 [63] ‑ [86].

[58] Exhibit 1.3, page 840 [72(a) ‑ (e)].

[86] Director of Public Prosecutions (WA) v Unwin [2011] WASC 11 [15] - [36].

[98] The State of Western Australia v Corbett [No 5] [80].

[99] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].

[100] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [21].