THE STATE OF WESTERN AUSTRALIA -v- XDR [2025] WASC 354 (28 August 2025)

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

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

1. Further, in Garlett, Kiefel CJ, Keane and Steward JJ observed that:[7]

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

(footnote omitted)

1. In respect of the issue before me on this preliminary hearing, Quinlan CJ observed in The State of Western Australia v Winder that:[8]

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

1. In advance of preliminary hearing, the respondent filed a significant amount of material.[9]
2. That material raised a number of threshold objections to the State's application. In particular, the respondent applied for the State's application to be dismissed or stayed, alternatively that it be adjourned. It is appropriate to deal with these applications first.

Respondent's application to dismiss or stay the State's application

1. The respondent's principal contention is that the State cannot rely in support of its application on serious offences that he committed prior to the commencement of the HRSO Act. The respondent says this would result in the HRSO Act having a 'retrospective operation', which the respondent says is impermissible. The respondent says that the HRSO Act can only apply to serious offences committed after it commenced.
2. The HRSO Act came into operation in a staged manner. The HRSO Act received Royal Assent on 9 July 2020. Part 1 of the HRSO Act came into operation on that day, and s 91 came into operation the following day. The rest of the HRSO Act, other than sch 1 div 2 subdivision 1 item 1, came into operation on 26 August 2020.[10] Schedule 1 div 2 subdivision 1 item 1 has not yet come into operation.
3. The HRSO Act repealed the Dangerous Sexual Offenders Act 2006 (WA) (the repealed Act).[11]
4. The serious offences committed by the respondent are serious offences under sch 1 div 1 of the HRSO Act. The serious offences were committed prior to 26 August 2020.
5. As I have explained, the State's application is brought pursuant to s 35 of the HRSO Act. For s 35 to apply in this case, the respondent must be a 'serious offender under custodial sentence'. That phrase is defined in s 3. Relevantly, it requires that at the time the State's application was filed, the respondent was in custody for a serious offence.
6. The issue raised by the respondent is one of statutory construction.
7. There is ordinarily an assumption that in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation.[12]
8. The principle was explained by the Court of Appeal in a joint judgment in The State of Western Australia v Williams as follows:[13]

The principles of statutory construction are well settled. Statutory construction involves attribution of meaning to statutory text. The Court's task in that regard must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.

The common law has, of course, developed rules of statutory construction as an aid in discovering the meaning of the statutory text. The 'presumption' against the retrospective operation of statutes, as it is sometimes described, is one such rule. According to that rule, save where the legislature makes its intention clear, a statute ought not to be given retrospective operation where to do so would be to attach new legal consequences to facts or events which occurred before its commencement. As this Court observed in Christian Brothers v Lawrence, the rule fits within, not outside of, the general approach to statutory construction; it is not controlling but is part of the process of construction to be undertaken by the Court.

In applying the rule of construction in a particular case, it is necessary to approach the term 'retrospective' with some care. Interference with existing rights does not make a statute retrospective in the relevant sense. Many statutes affect existing rights prospectively. Rather, there is a retrospective operation if, and to the extent that, legislation operates to alter rights or liabilities which have already come into existence by operation of prior law on past events.

A distinction must therefore be drawn between legislation having a prior effect on past events and legislation basing future action on past events as explained by Jordan CJ in Coleman v Shell Co of Australia:

[A]s regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.

(footnotes omitted)

1. The principle has also been described by the Full Court of the Victorian Supreme Court as being:[14]

... not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that.

1. In my view, the HRSO Act does not alter rights or liabilities accrued as a result of events which occurred before the coming into force of the Act, but rather operates prospectively, by taking account of antecedent facts and circumstances as a basis for future prescription.[15] Specifically, the HRSO Act takes account of a person's prior offending in determining whether the person should be declared a high risk serious offender.
2. In any event, as I explain at [25] to [31] below, the text of the HRSO Act makes plain that it applies to serious offences irrespective of whether they were committed prior to, or after, its commencement.
3. Section 35(2) states that s 35(1) applies where 'the custodial sentence was imposed before or after the commencement of this section'. The respondent says this section refers to a person who is awaiting sentence. However, the definition in the HRSO Act of 'under a custodial sentence' in respect of an adult is to the effect that the person is subject to a term of imprisonment which has not lapsed.[16] This wording makes clear that s 35(1) applies to a term of imprisonment for a serious offence, that was imposed prior to the commencement of the HRSO Act. Self evidently, if the term of imprisonment was imposed prior to the commencement of the HRSO Act, the serious offence to which it related, must have been committed prior to the commencement of the HRSO Act.
4. Further, s 5(2) provides that an offence is a serious offence if it:

(a) was an offence under a written law that has been repealed; and

(b) the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).

1. The evident purpose of s 5(2) is to capture historical offending that meets the characterisation in (b) above.

1. Section 36 of the HRSO Act permits the State to apply for a restriction order where the respondent to the application is subject to a supervision order.
2. Part 10 of the HRSO Act (s 122 to s 125) addresses the repeal of the repealed Act, and transitional provisions.
3. Section 125 of the HRSO Act addresses, amongst other matters, the continuing operation of orders made under the repealed Act. Section 125 provides that if an order made under the repealed Act is in effect on the 'commencement day', the order continues in effect and is taken to have been made, given or issued under the corresponding provision of the HRSO Act.[17] Thus, a supervision order made under the repealed Act is taken to be a supervision order made under the HRSO Act. Section 122 defines 'commencement day' as being the day on which s 122 came into operation, which is the same day that the application provisions in s 35 and s 36 came into operation.
4. It follows that s 36 applies to supervision orders made under the repealed Act. In that circumstance, s 36 necessarily applies to offences committed prior to the commencement of the HRSO Act.

Conclusion regarding retrospective operation of the HRSO Act

1. For these reasons, I do not accept the respondent's submission that the HRSO Act does not apply to serious offences that were committed prior to its commencement.

1. Section 35(1) of the HRSO Act states that an application cannot be brought in respect of an offender who is a serious offender under restriction.
2. A post-sentence supervision order (PSSO) was made on 30 July 2025 in respect of the respondent. It is for the period from 30 August 2025 to 29 August 2027. The respondent says that the PSSO makes him a 'serious offender under restriction'. Section 3 of the HRSO Act defines that phrase as 'a person who is subject to a restriction order or an interim supervision order'. As I have said earlier, under s 3 a restriction order is either a continuing detention order or a supervision order.
3. As I understand it, the respondent contends the PSSO is a supervision order or an interim supervision order and he is therefore a serious offender under restriction. It follows, the respondent says, that s 35(1) does not apply to him.
4. However, s 3 of the HRSO Act provides that a 'supervision order' is an order made under s 27(1) and an 'interim supervision order' is an order made under s 58.[18]
5. Accordingly, a PSSO is neither a supervision order, nor an interim supervision order, for the purposes of the HRSO Act. The PSSO therefore does not result in the respondent being a serious offender under restriction, and s 35(1) applies to him.

1. The respondent also sought an order in these proceedings cancelling the PSSO, or varying it. The variations sought included the removal of 'standard obligations' and replacing them with obligations imposed on the respondent by the Community Protection (Offender Reporting) Act 2004 (WA) (the Offender Reporting Act).
2. The PSSO is made by the Prisoners Review Board (Board) under pt 5A of the Sentence Administration Act 2003 (WA). The Board has power to amend or cancel a PSSO.[19] Also, a decision by the Board to make a PSSO is a reviewable decision.[20] The review is conducted by the chairperson or deputy chairperson of the Board, who may, amongst other matters, confirm, cancel or amend the PSSO.[21] The decision on the review is not itself reviewable.[22]
3. The Sentence Administration Act does not provide the Supreme Court with any power to cancel or amend a PSSO. I therefore do not have the power to cancel or amend the PSSO.

Section 74 and s 75 of the HRSO Act

1. The respondent also contended that the State was required to file reports for the preliminary hearing that complied with s 74 and s 75 of the HRSO Act, and had not done so.
2. Section 74 sets out certain criteria in respect of a report prepared by a qualified expert. Section 75 sets out certain criteria in respect of a report prepared by a person or body which is not a qualified expert.
3. Section 73 authorises the relevant reporter (the person making the report) to examine a subject and to report in accordance with s 74 or s 75.
4. Section 73, s 74 and s 75 all appear in pt 7 of the HRSO Act. Part 7 commences with s 72. It provides that in pt 7, unless the contrary intention appears, report means a report prepared under s 46(2)(a) or s 46(2)(b), s 54(a) or s 54(b), or s 67(1) or s 67(2).

1. Section 46(2) applies where the court is satisfied the preliminary hearing threshold prescribed by s 46(1) is satisfied. Section 46(2)(a) provides that the court must order that the offender undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with s 74 to be used on the hearing of the restriction order application.
2. Section 46(2)(b) provides that the court may, on the application of the State or of the offender, order that a person or body named by the court prepare a report in accordance with s 75 to be used on the hearing of the restriction order application on questions or topics set out in the order.
3. These provisions make plain that s 46(2)(a) and s 46(2)(b) are directed to reports ordered after the court has heard the preliminary hearing, and is satisfied the threshold in s 46(1) has been met. Section 46(2)(a) and s 46(2)(b) are not directed to reports used for the purposes of the preliminary hearing itself.
4. The provisions of s 46, s 73, s 74 and s 75 do not evince a contrary intention to the definition of report set out in s 72. Specifically, they do not evince an intention that the word 'report' in s 73, s 74 and s 75 includes reports relied on for the purposes of a preliminary hearing. The structure and words of s 46, s 73, s 74 and s 75 clearly convey that the preparation of the reports, and the examination of an offender for the purposes of the preparation of those reports, only take place if the court is satisfied that the threshold requirement in s 46(1) is met.

1. Section 54 provides for the preparation of reports under s 74 or s 75 for the purposes of a hearing in respect of the alleged contravention by an offender of a supervision order. Section 67 provides for the preparation of reports under s 74 or s 75 for the purposes of the review of a continuing detention order. Neither s 54 nor s 67 have any application to a preliminary hearing.

1. For these reasons, s 74 and s 75 do not apply to the reports relied on by the State for the preliminary hearing. Further, s 74 and s 75 do not require the State to file reports that comply with those sections prior to the preliminary hearing.

State's disclosure obligations in respect of the preliminary hearing

1. The respondent also contended that the State had breached its disclosure obligations provided for by s 39 of the HRSO Act. Section 39(1) provides that the State is to provide the offender with certain materials '[a]s soon as practicable after the preliminary hearing'. These words make clear that the State's disclosure obligations arise after the preliminary hearing, not before.

1. The respondent also contended that the State's conduct placed him under duress, and resulted in manifest unfairness to him for the purposes of the preliminary hearing.
2. The respondent's principal contention was directed to his efforts to obtain accommodation. He contended that the State had materially undermined his ability to obtain accommodation through UnitingCare. It is not possible to resolve that issue on the preliminary hearing. However, irrespective of whether the respondent's complaint might be made out, I must assess whether the threshold is met by reference to the accommodation that is available, not by reference to what accommodation might have been available if the respondent's endeavours to obtain accommodation had been handled differently. After the preliminary hearing, the respondent forwarded a letter to my associate that indicated he was still pursuing the option of accommodation through UnitingCare. This is a sensible approach to take.
3. The respondent's complaints in this respect do not persuade me that I should dismiss or stay the State's application.

Conclusion regarding the respondent's application for the dismissal or stay of the State's application

1. For these reasons, I will not dismiss or stay the State's application.

1. The respondent also sought to adjourn the preliminary hearing for a number of weeks.
2. The adjournment application was predominantly brought on the ground that the respondent did not have legal representation. The respondent says he wants to be legally represented, but has not yet been able to find a lawyer to act for him.
3. I held directions hearings in this matter on 27 June 2025 and 24 July 2025. The preliminary hearing was originally listed to be heard on 25 July 2025. At the directions hearing on 24 July 2025, I adjourned the preliminary hearing to 21 August 2025 to give the respondent further time to prepare, and to obtain legal representation.
4. At the directions hearing held on 24 July 2025, the respondent demonstrated a detailed understanding of the materials relied on by the State. Further at both directions hearings, I explained to the respondent the nature of a preliminary hearing, so as to assist him to prepare for it if he did not have legal representation.
5. The respondent has filed an extensive array of material in respect of this hearing. That material demonstrates that the respondent has a detailed understanding of the materials relied on by the State, and the arguments put forward by the State. Furthermore, the respondent has had the State's written submissions for some considerable time, and has filed detailed written submissions in response to them.
6. The respondent is due to be released from custody on 30 August 2025. The State seeks an interim detention order pending the determination of its application for a restriction order. Section 46(2)(b) provides the court with the power to make an interim detention order. Section 46(2) only applies where the court is satisfied that the preliminary hearing threshold specified in s 46(1) is met. Thus, the court can only make an interim detention order if it has heard the preliminary hearing and been satisfied of the requisite threshold.
7. It follows that if the preliminary hearing is adjourned to after 30 August 2025, the respondent will be released from custody. If that occurs, the State can then apply for an interim supervision order under s 58. However, the State's principal position is that an interim supervision order does not provide the community with adequate protection. The adjournment sought would deprive the State of the ability to seek an interim detention order prior to the respondent's release from custody. There is therefore prejudice to the State, and potentially to the community, if the preliminary hearing is further adjourned to a date beyond the respondent's release from custody.
8. Having regard to the following matters, I was not prepared to grant the adjournment:
   1. The prejudice to the State and potentially the community if an adjournment is granted.
   2. The respondent has a detailed understanding of the materials relied on by the State and has had those materials for a considerable time.
   3. At the directions hearings, I explained to the respondent the nature of the preliminary hearing to assist him in preparing for it.
   4. The hearing is a preliminary hearing, directed to whether the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act. Thus, the court does not make final findings at the preliminary hearing as to whether the respondent is a high risk serious offender.
   5. It remains open to the respondent to contend that the material relied on by the State is inadequate to make out the preliminary hearing threshold, and, further, that the material does not justify the making of an interim detention order.
9. I turn now to the preliminary hearing.

1. In support of the application, the State primarily relies upon an affidavit of Daniel Sean McDonnell affirmed on 26 May 2025. Mr McDonnell's affidavit contains the details of the respondent's criminal history, as well as several reports and assessments in relation to him. These include psychological and psychiatric reports.
2. The respondent relies on his own affidavit, sworn 4 June 2025 and filed 17 June 2025.
3. It is useful to commence with a summary of the serious offences that the respondent has committed.

1. On 19 February 2019, the respondent pleaded guilty to, and was sentenced for, three counts of indecently dealing with a child he knew to be his lineal relative. The victim was his eldest daughter, who was 16 years old at the time of the offending (the 2007 convictions).[23] At the time of sentencing, the respondent had no prior record of offending.[24] The respondent was 39 years of age at the time he committed the offences.
2. These offences are serious offences under the HRSO Act. The circumstances of the offences were that the respondent called for the victim to come into his bedroom, which she did because she was scared he may become violent. He told her to close the door and leave the lights off, and to get under the covers and get into bed with him. He placed his right hand under her pyjama top and onto her breast. She pushed his hand away, and he pushed it back onto her breast. She pushed his hand away again. He then placed his hand on her breast a third time, which she pushed away and she then ran from the bedroom crying.[25]
3. The respondent's counsel submitted that the respondent had left his employment, which was described by counsel as the 'prime stressor' which ultimately led to his offending. His counsel also submitted that 'the respondent's drinking of alcohol was the secondary contributor to the offending' and the respondent had stopped drinking alcohol.[26]
4. A pre-sentence report, a psychological report and a psychiatric report were provided to the sentencing judge, Groves DCJ. His Honour sentenced the respondent on the basis that the reports suggested the respondent was a low risk of reoffending. His Honour accepted that the respondent was remorseful. His Honour also took into account that the respondent had taken positive steps towards rehabilitation by engaging with Alcoholics Anonymous and SafeCare.[27]
5. His Honour sentenced the respondent to an 18 month intensive supervision order commencing on 19 February 2007.[28]

The offences against the respondent's second eldest daughter

1. On 27 June 2019, the respondent was sentenced by Troy DCJ for 18 offences, of which the respondent was convicted by a jury after trial (the more recent convictions).[29] The respondent maintains his denial of this offending.
2. The offences comprised 10 counts of indecent dealing with a child he knew to be his lineal relative contrary to s 329(4) of the Code, seven counts of sexual penetration of a child he knew to be his lineal relative contrary to s 329(2) of the Code, and one count of unlawful assault occasioning bodily harm contrary to s 317(1) of the Code in circumstances of aggravation. The circumstance of aggravation was that the respondent and the victim were in a family relationship.[30] The 10 indecent dealing offences, and seven sexual penetration offences, are serious offences under the HRSO Act.
3. The victim of each of the 18 offences was the respondent's second eldest daughter, who was between 13 and 14 years old at the time of the first 15 counts on the indictment,[31] and was around 16 or 17 years old for the remaining three counts on the indictment.[32] The respondent was in his late thirties and/or early forties at the time of the offending.
4. The indecent dealing offences occurred over a number of occasions and variously involved the respondent touching the victim's breasts and vagina with his hands, touching the victim's vagina with his penis, and placing the victim's hand on his erect penis. The sexual penetration offences involved the respondent penetrating the victim's vagina with his fingers, and with his tongue.[33]
5. The sexual offences occurred in the family home both before, and after, the respondent was convicted and sentenced in 2007 for the three indecent dealing offences committed against his eldest daughter. Also, it appears that the final three of the more recent convictions were committed after the respondent had completed 12 months of the SafeCare program he had started before being sentenced by Judge Groves.[34]
6. The aggravated assault offence involved the respondent strangling his then wife after a verbal altercation in the victim's presence. The victim tried to grab the respondent's arm. The respondent pushed the victim away and then punched her with a fist, causing her to fall back and strike her head on a wall and pass out. She did not know for how long.[35]
7. His Honour found that the final two sexual offences - sexual penetration of the victim's vagina with the respondent's finger - were committed, at the very least, in very close proximity to the end of the intensive supervision order imposed by Judge Groves. His Honour was not satisfied they were committed during the period of the intensive supervision order.
8. Judge Troy found the offending occurred in a household characterised by the respondent's control, intimidation and regular violence. His Honour accepted evidence that the respondent was verbally, emotionally and physically abusive.[36]
9. Judge Troy sentenced the respondent to the 10 year custodial sentence which the respondent is currently serving, backdated to commence on 31 August 2015.[37]

1. A psychiatric report and a psychological report were provided for the purposes of the sentencing hearing before Judge Troy.
2. The psychiatric report was made by Dr Hall, a consultant forensic psychiatrist.
3. Dr Hall expressed concern as to the respondent's tendency to malign and blame the victim. Dr Hall said:[38]

[The respondent's] tendency to malign and blame the victim, and his lack of empathy in relation to the current offences, represents a concerning deterioration in his self-awareness and remorse since his conviction in 2007.

1. Dr Hall assessed the respondent's risk of reoffending in a similar manner as lying in the 'low to moderate range' without intervention. He said if the respondent were to reoffend, it would likely involve grooming victims with whom he was very familiar. Dr Hall also said it is likely that disinhibition through alcohol consumption would be a factor.[39]
2. Dr Hall observed that the respondent may require a sex offender treatment program designed for those who deny their offending and that the respondent may also benefit from individual psychological counselling. Dr Hall was of the opinion that prevention of relapse to alcohol abuse needs to be a priority, notwithstanding the respondent's self-reported abstinence of several years.[40]
3. Dr Hall also noted that the respondent's 'misguided pursuit of justice in the face of what he claims is corruption only serves to distract his focus from his genuine treatment needs'.[41]
4. Dr Hall concluded by saying that:[42]

[The respondent] should have no unsupervised access to children under the age of 16. In addition, he should be required to report any romantic relationships to [Australian National Child Offender Register (ANCOR)] staff and be under obligation to disclose his history of sexual offending to any new partners who have children under the age of 16.

1. The psychological report was made by Ms Zuin, a psychologist who was a contractor to the Department of Justice.
2. Ms Zuin assessed the respondent using the Static-99-R risk assessment measure. Offenders who obtained the same score as the respondent were estimated to pose a 14% chance of sexual recidivism and a 27% chance of violent recidivism after 10 years.[43] Ms Zuin described the actuarial starting point in considering the respondent's risk as being in the average category. However, Ms Zuin was of the opinion that the respondent's risk of reoffending was likely to be lower than the actuarial rating suggested because he no longer had any contact with his (now adult) daughters.[44]
3. Ms Zuin said that the respondent minimised and distorted his offending behaviour. Ms Zuin also said that the respondent attempted to blame the victim claiming she created opportunities to be alone with him and tried to get him to touch her.[45]
4. Dr Hall and Ms Zuin reported the respondent holds a strong victim stance and views himself as a victim of conspiracy and injustice.[46]

1. The most recent reports are an Individual Psychological Treatment Assessment Report performed 15 February 2025 and a Treatment Assessment Report performed 23 February 2023.
2. The interview for the Individual Psychological Treatment Assessment Report did not involve assessing the respondent's risk. It was instead directed to assessing his suitability for group programs.[47] The report recommends that the respondent undertake the sexual offenders 'deniers program'.[48] The respondent complains about this report. He says that the psychologist who interviewed him for it said he was classified as low risk, was not required to undertake any courses and told him that 'to appease management she will suggest a deniers course'.[49]
3. The Treatment Assessment Report stated that the respondent had been assessed using a range of risk measurement tools. The tools variously placed him between a medium and high risk of reoffending. Based on the Static-99-R and Stable-2007 tools combined, he was placed at an above average risk of reoffending. Individuals at this level have roughly twice the rate of recidivism compared to the average individual convicted of a sexually motivated offence.[50] The State quite properly submits that as this assessment was undertaken for treatment purposes, it should be given less weight than the reports of Dr Hall and Ms Zuin. I agree with that submission.

Reports obtained for the purposes of the 2007 sentencing

1. As I have already explained, psychiatric and psychological reports were obtained for the 2007 sentencing. Judge Groves observed that the reports suggested the respondent was a low risk of reoffending.
2. Those reports were predicated on the respondent's offending being limited to three indecent dealing offences, and that he was remorseful and had insight into that offending. To state the obvious, the reports did not have regard to the additional 18 offences that the respondent committed. That being so, the reports are of limited assistance for the purposes of this hearing.
3. My assessment for the purposes of this preliminary hearing is that the psychological and psychiatric reports that were before Judge Troy are of much greater assistance.

1. When sentencing the respondent for the more recent offending, Judge Troy said:[51]

If in the future you are able to form a relationship or friendship with anyone who has contact with female children of a similar age to [the victims of the respondent's offending], then there is a risk of further offending.

If there is no such relationship, the risk of reoffending, in my view, is very low.

1. The respondent completed the first year of the SafeCare program. His first attendance was on 30 November 2006 and his final attendance was on 25 January 2008. He attended a total of 38 out of 41 available sessions.[52]
2. The respondent was regarded as having made significant progress, including in respect of his acceptance of responsibility and empathy, with a better capacity to see things from the perspectives of others.[53]
3. The respondent declined to participate in the second year of the program. It involved a couple session, a family session (with his wife and children) and the setting of a family safety plan.[54] The completion report states that the respondent felt strongly that neither SafeCare nor the Department could know the needs of his family.[55]
4. The respondent's participation in the program, and the report as to his progress, were predicated on the basis that the only offences he had committed were the 2007 offences.
5. Further, it is apparent that the respondent committed the final three of the offences constituting the more recent convictions after he had left the SafeCare program.
6. The respondent attended the Community Transitions Treatment Readiness Domestic and Family Violence voluntary group, completing the third and final session on 27 February 2024.[56]

1. The respondent is now 58 years of age.
2. He was born in the United Kingdom, the third of four children. He reported an unhappy childhood marred by violence, and an unhappy school experience.[57]
3. He moved to Western Australia in 1995. He has no history of illicit drug use.
4. The respondent told Ms Zuin he completed high school and has since held various jobs, predominantly involving driving vehicles. He secured work on the railways in 2000 but reported being a victim of bullying and suffering an occupational back injury.[58] He was a chronic alcohol drinker over a number of years. He said to Ms Zuin that he sometimes drank two cartons of full strength beer per day.[59]
5. The respondent reported that he met his former wife when he was 21 and they married a year later. Together they had three daughters, who include the victim of the 2007 convictions, and the victim of the more recent convictions. He has been estranged from his former wife and children since 2015. He has not re‑partnered.[60]
6. The respondent has not committed any further offences since he committed the offences constituting the more recent convictions. As I understand it, the respondent was charged with the offending comprising the more recent convictions in late September 2015 and was not granted bail.[61] A matter that the respondent emphasised during the hearing was that he did not commit any further offences over the period from 2009 to 2015.

1. As I observed in The State of Western Australia v Burt:[62]

...accommodation is predominantly relevant to risk assessment. The overall nature of the available accommodation may reduce the risk of re-offending, it may increase the risk of re-offending, or it may be neutral. Also, accommodation has many features that may not necessarily point in the same direction regarding risk, for example location, type, other occupants, cost, and available support services.

The potential impact that the proposed accommodation has on risk is taken into account in the overall assessment of whether a person is a high risk serious offender within the meaning of s 7, and if so, the type of restriction order which ought be made.

1. The respondent provided the court with a letter from his sister, offering to provide him with accommodation, presumably at her home. At the hearing, the respondent said that he did not wish to pursue that option at the moment as he was concerned about the stress this might cause her. Subsequent to the hearing, the respondent sent a letter to my associate saying that the option of living with his sister was no longer available, as other relatives will be moving into the space available.
2. The respondent is pursuing other accommodation options with service providers. However, at the moment, there are no accommodation options available with those service providers.

Community Protection (Offender Reporting) Act 2004 (WA)

1. By reason of both the 2007 offending, and the more recent offending, the respondent is subject to the Offender Reporting Act.
2. The serious offences that the respondent committed are all Class 1 offences as classified by sch 1 of the Offender Reporting Act. Because the respondent committed two of the serious offences (counts 16 and 17 of the more recent convictions) after he became a reportable offender in respect of the 2007 convictions, the reporting obligations continue for the remainder of his life.[63]
3. The respondent says that the Offender Reporting Act imposes extensive obligations on him that manage his risk if released into the community.
4. Part 3 div 1 of the Offender Reporting Act sets out extensive reporting obligations on an offender to whom the division applies. These obligations include an obligation to report 'reportable contact details' of each 'reportable contact' the offender has, or is likely to have within 12 months after the report is made, with a child.[64] The disclosure is made to the Commissioner of Police, or their delegate.
5. The phrase 'reportable contact' is defined in s 4A of the Offender Reporting Act as follows:

(1) A reportable offender has reportable contact with a child if the offender has contact with the child when the offender -

(a) supervises or cares for the child; or

(b) visits or stays at a household where the child is present; or

(c) gives their contact details to the child or receives the child's contact details; or

(d) befriends or attempts to befriend the child.

(2) For the purposes of this section, contact with a child by a reportable offender includes any of the following -

(a) the offender having physical contact with the child;

(b) the offender being in very close physical proximity to the child;

(c) the offender communicating with the child (including oral or written communication or communication that takes place by mail, in person, by telephone or by electronic means).

1. The phrase 'reportable contact details' includes 'the name and residential address (if known) and any other known contact details of each parent or guardian of each child with whom the offender has reportable contact or is likely to have reportable contact.[65]
2. Accordingly, if the respondent begins a romantic relationship with a person and the respondent has, or is likely to have, reportable contact with a child as a result, the respondent will need to provide the reportable contact details to the Commissioner of Police, or their delegate. The effect of that disclosure would likely bring to the attention of the Commissioner, or their delegate, that the respondent was in a romantic relationship with the child's parent or guardian.
3. The Offender Reporting Act does not expressly require the respondent to report new romantic relationships. It does not require the respondent to advise a new partner of his offending history.[66]

1. Section 7(3)(c) of the HRSO Act requires the court to have regard to information indicating whether or not the offender has a propensity to commit serious offences in the future.
2. The requisite assessment is directed to whether a person has a propensity to commit serious offences in the future. This assessment thus encapsulates, at least, an assessment of whether the person has a current propensity and then endeavouring to predict the extent to which that propensity may change over time. Also, the propensity is directed to the commission of serious offences, not any offence.
3. The State submits that the respondent's prior convictions suggest a propensity to commit sexual offences against children in an intrafamilial setting. I accept that the court ultimately hearing the State's application is likely to come to that view. However, the relevant propensity assessment is directed to a propensity to commit serious offences in the future. At this stage, I think that assessment is bound up with the assessment of risk.

1. The respondent says that he has no intention of forming another romantic relationship, and has no intention of seeing his family again.
2. He also says that he has no intention of drinking alcohol again. He pointed out during the hearing that at times he starts to feel dizzy. He suggested this might be because he has diabetes, and if that is the case, he says this would reinforce his commitment not to drink alcohol as it has a negative impact on diabetes.
3. In respect of the PSSO, amongst other matters, it provides for the respondent to be subject to electronic monitoring, to have no direct or indirect contact with the victim or members of her immediate family, not to enter or remain within a specified exclusion zone and to attend programs as directed. I understand the exclusion zone provision is for the protection of the respondent's family.

1. I must assess whether there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act.
2. The respondent has been convicted of an extensive array of child sexual offending against two of his daughters. In total, the respondent has committed 20 such offences, all of which are serious offences under the HRSO Act.
3. The assessments of the respondent's risk vary from low to moderate. However, as I have explained at [97] and [98] above, I think the reports undertaken in respect of the 2007 offences, which indicate the respondent is a low risk, have significantly reduced weight. Those reports are predicated on the respondent's offending being limited to three indecent dealing offences, and that he was remorseful for, and had insight into, that offending. They do not have regard to the additional 18 offences comprising the more recent convictions.
4. The respondent has not achieved any substantive rehabilitation in respect of the offences constituting the more recent convictions.
5. The most significant rehabilitation that the respondent undertook is the SafeCare program. However, his participation in that program was predicated on his offending being limited to the 2007 offences. Further, since he completed that program, it is apparent that he committed the last three of the offences constituting the more recent convictions. Those offences comprised two offences of sexual penetration by penetrating the victim's vagina with the respondent's finger and the offence of assault occasioning bodily harm. It is also apparent from Judge Troy's findings that the respondent committed those three offences shortly after he finished the intensive supervision order.
6. At the time the respondent committed those three offences, he was subject to reporting obligations imposed by the Offender Reporting Act. Those obligations included an obligation to disclose physical contact with a child. Section 3 of the Offender Reporting Act defines child as being a person under 18 years of age. Further, the three offences occurred in the context that the respondent was permitted to return to the family home after he had committed the 2007 offences on the premise those offences comprised the entirety of his offending. That premise was wrong, and the respondent must have known it was wrong.
7. Dr Hall was of the opinion that the respondent should have no unsupervised access to children under the age of 16, he should be required to report any romantic relationships to ANCOR staff and be under obligation to disclose his history of sexual offending to any new partners who have children under the age of 16. This recommendation reflects an ongoing concern as to the respondent's risk.
8. The respondent emphasised the following matters. The approximate six year period when he did not commit any offences. He has had no contact with his family for a significant period of time and he does not intend to contact them in the future. He has no intention of having any further romantic relationships. He has no desire to drink alcohol and has been abstinent for a significant period of time. He is subject to extensive obligations under the Offender Reporting Act.
9. I think it is open for the court at the final hearing of the State's application to find the respondent is a moderate risk of committing sexual offences against children. In that respect, his offending was extensive, he has not achieved any substantial rehabilitation in respect of the more recent convictions and he does not appear to have any positive support networks in the community, with the possible exception of his sister.[67] Further, the SafeCare program and the reporting obligations under the Offender Reporting Act did not prevent the respondent from committing two further offences of sexual penetration of his daughter, and an offence of violence (counts 15 to 18 of the more recent convictions).
10. While the respondent's lack of contact with his family means that he does not have the opportunity to offend against the victims, the opportunity to commit further sexual offences will present itself if the respondent starts a new relationship with a person who has children under 18, or if the respondent lives in, or regularly visits, accommodation where children under 18 live.
11. The court also has to assess the nature and extent of the harm that might be caused by further sexual offending. It hardly needs to be said that sexual offending against children typically has devastating consequences, which is demonstrated by the victim impact statements provided to Judge Troy.
12. A critical aspect of the respondent's management in the community if he were to be released is the reporting and monitoring of any new romantic relationships. The PSSO does not provide for that. The Offender Reporting Act does not necessarily require the respondent to disclose a new romantic relationship.
13. Also, while the respondent says he does not want any further romantic relationships, he has been in custody for nearly 10 years, and it is very difficult to predict what his attitude to a new relationship will be if released into the community. Similarly, while the respondent has not drunk alcohol for a significant period, it is also difficult to predict whether he may drink alcohol again, especially if he finds it difficult to adjust to life in the community.
14. Having regard to the matters set out at [129] to [141] above, I am satisfied there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act.

1. The State also seeks an order that the respondent remain in custody pending the determination of these proceedings. In that respect, s 46(2)(c)(i) of the HRSO Act provides:

if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, [the court may] order that the offender be detained in custody for the period stated in the order.

1. In the alternative, the State seeks an interim supervision order in respect of the respondent. Section 58(5) of the HRSO Act provides the court with the discretion to make such an order in this proceeding with effect until the proceedings are finally determined, or until another specified date. The preconditions to the making of an interim supervision order are:
   1. The offender to whom the pending proceedings relate is not in custody.[68]
   2. The court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under s 58.[69]
2. I will consider first the making of an interim detention order. To make an interim detention order, I must be positively satisfied that such an order is appropriate.[70]
3. In assessing whether to grant an interim detention order, in my view the following factors should be taken into account, although they are not exhaustive:
   1. the strength of the State's case that the respondent is a high risk serious offender;[71]
   2. the nature and extent of the harm which the respondent presents a risk of causing if he is released into the community;
   3. the extent to which the risk can be addressed by protective measures, including by way of a post sentence supervision order or an interim supervision order;
   4. the availability of appropriate accommodation and support systems outside of prison and whether the characteristics of the available accommodation are likely to increase, or decrease, the respondent's risk of committing a serious offence; and
   5. the undesirability of depriving the respondent of his liberty prior to the application being finally determined.[72]
4. In relation to point 1 at [146], I assess the State's case to be relatively strong. In reaching that conclusion, I take account that prior to being charged with the offending the subject of the more recent convictions, the respondent did not commit any further offences for approximately six years. In relation to point 2, as I have explained, the nature and extent of the harm that would be caused if the respondent did commit further sexual offences against children is significant. In relation to points 3 and 4, I do not think that the PSSO provides adequate protection. An interim supervision order may provide adequate protection if the respondent had suitable accommodation that provided a positive environment in which to live. However, the respondent does not have any available accommodation options, nor does he have any positive support in the community, with the possible exception of his sister. In relation to point 5, it is undesirable for the respondent to be deprived of his liberty prior to the final determination of the State's application.
5. Having reflected on the matters set out at [147] above, I am positively satisfied that I should make an interim detention order. That order should be until further order, or the final determination of the State's application. This gives the respondent the ability to apply to discharge the interim detention order if his circumstances change, in particular if suitable accommodation becomes available.

1. I am satisfied that the criterion in s 46 of the HRSO Act is met. I will therefore make an order fixing the date for hearing of the State's application for a restriction order. I am also satisfied that pursuant to s 46(2)(c)(i), I should make an interim detention order that operates until further order, or the final determination of the State's application.
2. Further, in accordance with s 46(2), I will order that the respondent undergo examination by a psychiatrist and a psychologist, and I will make orders facilitating the preparation of their reports.
3. I consider it would be beneficial for those reports to include the author's opinion in respect of the following additional matters:
   1. The topics that should be addressed in a supervision order, if such an order were imposed. This assists in ensuring that any supervision order focuses on the core preventative and supportive measures designed to reduce the respondent's risk of re-offending.
   2. Any particular areas of treatment or support which the author considers would assist the respondent to successfully integrate into the community. Where a person such as the respondent has spent a significant period in custody, successful integration into the community can often be challenging. If the respondent can successfully integrate into the community, then this should reduce his risk of re-offending.

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

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

[5] Garlett v Western Australia [2022] HCA 30.

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

[9] At the commencement of the preliminary hearing, I clarified with the respondent the material that he relied on, see ts 52 - ts 56.

[10] Government Gazette WA, 14 August 2020, page 2619.

[12] Pearce D, Statutory Interpretation in Australia (10th ed, 2024) [10.5].

[13] The State of Western Australia v Williams [2022] WASCA 105 [40] - [43].

[14] Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819, 824. See also R v Roussety [2008] VSCA 259 [18] - [19] and Pearce [10.10].

[16] HRSO Act, s 3, definition of 'under a custodial sentence'.

[18] See definitions in s 3 of the HRSO Act.

[19] Sentence Administration Act, s 74I(1), s 74J(1) and s 115A(5), (6) and (8).

[20] Sentence Administration Act, s 115A(2)(da).

[21] Sentence Administration Act, s 115A(8) - (10).

[22] Sentence Administration Act, s 115A(4)(d).

[23] Transcript 19 February 2007, ts 2, affidavit of Mr McDonnell p 96.

[24] Transcript 19 February 2007, ts 5, affidavit of Mr McDonnell p 99. See also, affidavit of Mr McDonnell, p 13.

[25] Transcript 19 February 2007, ts 3, affidavit of Mr McDonnell p 97.

[26] Transcript 19 February 2007, ts 8, affidavit of Mr McDonnell p 102.

[27] Transcript 19 February 2007, ts 9, affidavit of Mr McDonnell p 103.

[28] Transcript 19 February 2007, ts 10, affidavit of Mr McDonnell p 104.

[29] Transcript 27 June 2019, ts 1211 - ts 1212, affidavit of Mr McDonnell pp 64 - 65.

[30] Affidavit of Mr McDonnell, Indictment dated 15 September 2016, pp 27 - 30.

[31] Transcript 27 June 2019, ts 1212, affidavit of Mr McDonnell p 65.

[32] Transcript 27 June 2019, ts 1217 - ts 1219, affidavit of Mr McDonnell pp 70 - 72.

[33] Transcript 27 June 2019, ts 1214 - ts 1219, affidavit of Mr McDonnell p 72.

[34] Transcript 27 June 2019, ts 1217; affidavit of Mr McDonnell, Ms Zuin's report, p 140, paras 15 - 16.

[35] Transcript 27 June 2019, ts 1219, affidavit of Mr McDonnell p 72.

[36] Transcript 27 June 2019, ts 1212, affidavit of Mr McDonnell p 65.

[37] Transcript 27 June 2019, ts 1228, affidavit of Mr McDonnell p 81.

[38] Affidavit of Mr McDonnell, Dr Hall's report, p 130, par 24.

[39] Affidavit of Mr McDonnell, Dr Hall's report, p 131, pars 32 - 33.

[40] Affidavit of Mr McDonnell, Dr Hall's report, p 132, pars 35 and 36.

[41] Affidavit of Mr McDonnell, Dr Hall's report, p 132, par 35.

[42] Affidavit of Mr McDonnell, Dr Hall's report, p 132, par 37.

[43] Affidavit of Mr McDonnell, Ms Zuin's report, p 140, par 17.

[44] Affidavit of Mr McDonnell, Ms Zuin's report, p 141, pars 17 and 18.

[45] Affidavit of Mr McDonnell, Ms Zuin's report, p 139, par 13.

[46] Affidavit of Mr McDonnell, Ms Zuin's report, p 135, par 1 and p 139, par 14; Affidavit of Mr McDonnell, Dr Hall's report, pp 129 - 130, par 23.

[47] Affidavit of Mr McDonnell, Individual Psychological Treatment Assessment Report, p 156.

[50] Affidavit of Mr McDonnell, Treatment Assessment Report, p 152.

[51] Transcript 27 June 2019, ts 1223, affidavit of Mr McDonnell, p 76.

[52] Affidavit of Mr McDonnell, SafeCare report, pp 116 - 123.

[57] Affidavit of Mr McDonnell, report of Ms Zuin, pp 135 - 136, pars 2 and 3.

[58] Affidavit of Mr McDonnell, Ms Zuin's report, p 136.

[59] Affidavit of Mr McDonnell, Ms Zuin's report, p 138, par 10.

[60] Affidavit of Mr McDonnell, Ms Zuin's report, pp 136 - 137.

[61] Affidavit of Mr McDonnell, pp 50 - 55.

[62] The State of Western Australia v Burt [2025] WASC 19 [38] - [39].

[63] Offender Reporting Act, s 46(3)(a).

[64] Offender Reporting Act, s 26(1)(e).

[65] Offender Reporting Act, s 4B(1)(b).

[66] See Offender Reporting Act, s 26(1). There is not yet any prescribed information for the purposes of s 26(1)(n).

[67] The offer of accommodation by the respondent's sister suggests she is supportive. However, the report of Ms Zuin states that as at the time of her report (9 May 2019), the respondent had been unable to establish contact with his sister. See page 136 of the affidavit of Mr McDonnell. Since then, he has been in prison.

[70] The State of Western Australia v JPA [2024] WASC 225 [30].

[71] See The State of Western Australia v Ryan [2020] WASC 352 [84].

[72] Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160 [64].