THE STATE OF WESTERN AUSTRALIA -v- YAMALULU [2025] WASC 149 (29 April 2025)

1. The State's application was made pursuant to s 35 of the Act, for a restriction order to be imposed in relation to the respondent under s 48 of the Act.
2. The respondent is a serious offender under custodial sentence, as that phrase is defined in s 3 of the Act. That is because the respondent is under a custodial sentence for offences other than serious offences, and has been under that sentence at all times since being discharged from a custodial sentence for a serious offence, namely unlawfully doing grievous bodily harm in circumstances of aggravation.[1]
3. Pursuant to s 46(1) of the Act, the primary purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.
4. A 'high risk serious offender' is a person in relation to whom the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the person in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[2]
5. A determination that a person is a 'high risk serious offender' requires proof to a high degree of probability. However, at the preliminary hearing stage, the threshold test is lower. At a preliminary hearing, the court does not need 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. To say that something might occur is to say that it is possible. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. In order for such reasonable grounds to exist there must be sufficient facts in existence which induce that state of mind in a reasonable person.[3]

1. The Symons Affidavit annexes the respondent's criminal history, transcripts of court appearances, prosecution notices and statements of material facts relating to the respondent's past offending and several reports and assessments in relation to the respondent.
2. Ms Applin, a Senior Community Corrections Officer employed by the Department of Justice, Corrective Services Division and based at the Community Offender Monitoring Unit (COMU) deposes to the proposed alternative accommodation options available to the respondent if he is released to the community. Ms Applin has not, however, assessed any accommodation options of the respondent.

The respondent's criminal history The index offence

1. The serious offence which renders the respondent liable to an order under the Act is unlawfully doing grievous bodily harm in circumstances of aggravation.
2. The victim of the offence, who I will call PB, was the former intimate partner of the respondent. PB was 38 years old at the time of the offending and was the mother of a child, then aged 3, with the respondent. The respondent was physically taller and of more solid build than PB. In their three to four year relationship, which was interrupted by breaks, there was a history of intimate partner violence by the respondent against PB. At the date of the offence, there was a violence restraining order in force against the respondent, for PB's protection.
3. Between 8.00 pm and 9.20 pm on 23 February 2017, PB was at a house in Fitzroy Crossing and engaged in sexual intercourse with the respondent's older brother. The respondent, who had been out drinking alcohol and was intoxicated, went to the house. The respondent's brother fled the house and the respondent then violently assaulted PB. He first grabbed her, violently twisting her arm and throwing her to the floor. He then jumped on her chest, legs and head. PB could be heard by others to be screaming and pleading for him to stop.
4. When he did stop, the respondent went outside the house and sat down. He did not render any first aid or seek any medical assistance for PB. Witnesses called police, who found PB lying unconscious out the back of the house.
5. PB was found to have suffered a broken clavicle, broken ribs, broken right jaw (mandible), bleeding on the brain (subdural haematoma) and cervical and thoracic spinal injuries. She also had significant bruising, including bruising on her neck from strangulation. She was flown to Royal Perth Hospital, where she was admitted to the intensive care unit and was in a coma.[4]
6. The respondent was arrested a week later, having been found hiding under a bed at a house in Fitzroy Crossing. He made some admissions when interviewed.[5] The respondent pleaded guilty on 5 July 2017 and was committed to the District Court at Broome for sentence.[6]
7. At sentencing it was submitted that the respondent still had a belief that his relationship with PB could continue, and that, culturally, it was regarded as particularly serious for the respondent's brother to be engaged in intercourse with PB. It was in that context that, while intoxicated, the respondent committed the offence.[7]
8. The most serious of PB's injuries was the subdural haematoma, which resulted in quadriplegia. As a result of her injuries, PB is unable to get out of bed herself, and a hoist is required to get her into a wheelchair. She is unable to move her lower limbs, and has very little hand function. She is completely dependent on others for all of her needs. She has difficulty swallowing and requires a feeding tube. She suffers episodes of slow or no breathing, likely caused by her brain injury. She has difficulty communicating even after speech therapy. PB is in a long‑term rehabilitation program but her prognosis is that progress will be slow and her need for care and assistance will be high for the foreseeable future, if not indefinitely. A public advocate has been appointed to look after her affairs.[8] PB is now isolated and unable to return to country to live as a result of her injuries and disability.[9]

1. The respondent has not been convicted of any other serious offences within the meaning of the Act, but has been convicted of a number of relevant violent and other offences, namely three offences of aggravated unlawful wounding (2014, 2015, 2023), two offences of aggravated assault occasioning bodily harm (2008, 2023), and one offence each of aggravated common assault (2011), assault occasioning bodily harm (2010) and assaulting a public officer (2012).
2. The majority of the information as to the facts of these offences is sourced from statements of material facts, which must be regarded with caution as they do not necessarily constitute the facts upon which the respondent was sentenced.
3. However, there is no dispute that the majority of the offences were committed against three of the respondent's intimate partners, including PB. The offending behaviour of the respondent included punching and other applications of force to his victims' head and back, kicking, stabbing, slashing and spitting.
4. The respondent's violent (and related) offending behaviour is summarised below.

FZ 1212 of 2008 - aggravated assault occasioning bodily harm

1. As at 26 November 2008, the respondent and the victim, KY, had been in a relationship for about two years. On that date, they were drinking alcohol at the Fitzroy River Lodge. The respondent decided to leave and told KY to go with him. She refused and they argued. The respondent punched KY in the face with a clenched fist, causing her a blood nose and bruising. KY ran inside and sought refuge from the bar staff until police arrived.
2. On 17 November 2009, the respondent pleaded guilty to aggravated assault occasioning bodily harm and was sentenced to a 10‑month Community Based Order.[10]

FZ 334 of 2010 - assault occasioning bodily harm

1. On 25 February 2010, the victim, an Aboriginal tribal elder, was playing cards at a house near Fitzroy Crossing. The respondent and his mother arrived at the house, both having been drinking alcohol before they arrived. The respondent's mother used language which the victim took offence to, and he asked her to stop. She became angry and called on the respondent, who became involved in the argument and then, without warning, punched the victim in the upper right eyebrow with a clenched fist, causing swelling and bruising and a laceration.[11]
2. On 4 January 2012, the respondent pleaded guilty to assault occasioning bodily harm, and was fined $600.[12]

1. Late on 31 May 2011, the respondent was at a community house near Fitzroy Crossing. He was very intoxicated by both alcohol and cannabis. He began throwing things around and telling people to leave. Police were called, but he had left. However, he returned a short time later, went into the room where KY was, grabbed her by the hair and dragged her from the room. KY broke free and tried to call the police, and the respondent kicked her in her back.
2. The respondent pleaded guilty to aggravated unlawful assault for which he was fined $1,200.[13]

1. On 25 May 2012, the respondent was spoken to by police and gave a false name. He was advised he would be given an infringement and became aggressive and ran away. He was apprehended and, while being handcuffed, punched one of the officers in the face and then spat in his face.[14] The respondent pleaded guilty to the offence and on 18 September 2012 was sentenced to an intensive supervision order,[15] which he later breached by non‑compliance.[16]

1. At the time of this offence, the respondent had been in a relationship with PB for about six months. PB was 22 weeks' pregnant with their child.
2. Early on 11 February 2014, the respondent and PB were drinking at a community house near Fitzroy Crossing, with friends. An argument commenced, in which the respondent was 'jealousing' PB. They left the house and went to another house, where the respondent punched PB to her forehead, cheek and nose. PB fell to the ground and shielded herself with her arms. The respondent spat in her face, picked up a rock and struck PB in the back of the head and on her back with it. He then picked up an empty wine bottle by the neck, smashed it and swung it at PB. She put her arm up to protect herself and sustained a large laceration on her arm, which exposed tendons. PB needed to be flown to hospital for treatment.
3. The respondent pleaded guilty to the offence of aggravated unlawful wounding, for which he was sentenced on 20 October 2014 to a term of 12 months' imprisonment, suspended for 18 months.[17]

DY 554 of 2014 - attempt to pervert the course of justice

1. Between 24 and 27 February 2014, the respondent instructed PB to withdraw charges against him and to write to the Aboriginal Legal Service saying she had caused her own injuries. The respondent pleaded guilty to a charge of attempting to pervert the course of justice and on 13 October 2014 was sentenced to 8 months' imprisonment for this offence, backdated to commence on 20 February 2014.[18]

1. On 2 June 2015, the respondent and PB were sitting with friends in bushland behind a Derby house. The respondent accused PB of sleeping with his brother, which she denied. The argument escalated and the respondent threatened to hurt their child if PB did not go with her into bushland. Frightened, she went with him. Once away from the group the respondent hit her on the back of the head with a large empty glass bottle and then repeatedly punched her face and twisted her head with his hands, which witnesses claimed was done with considerable force. PB had a deep laceration on her scalp, bleeding and bruising to her nose and face and bruising to her neck.[19]
2. At the time of the offence, the respondent was subject to a violence restraining order protecting PB, which had been served five days beforehand. He was also subject to the suspended imprisonment order imposed on 20 October 2014.[20]
3. The respondent pleaded guilty to the offence of aggravated unlawful wounding[21] and on 25 June 2015, he was imprisoned for 6 months as part of an 18‑month term of imprisonment.[22]

BM 1343 and 1345 of 2023 - aggravated assault occasioning bodily harm and aggravated unlawful wounding

1. On or about 8 July 2023 the respondent and the victim, RB, had been in a relationship for about three months. The respondent, who was intoxicated, jealously questioned RB about some recent travel on her part. She ran away and he chased and caught her. He took off her shirt, leaving her in her bra, and then punched her in the head and her upper back, about seven times. At some point, he also stabbed her in the right rib cage with an unknown implement. She screamed for help. Afterwards, it hurt her to breathe and she had a cut on her nose and a sore head. It was only later she realised she was bleeding from her chest, and the respondent told her he had stabbed her. The next day, the respondent made RB walk across the road, where he punched her again in the back. He made her help him look for his phone. When she found it, she messaged her mother for help. When he saw the message, he smashed the phone. RB was later found to have a punctured lung and a lacerated scalp.[23]
2. The respondent pleaded guilty to charges of aggravated assault occasioning bodily harm and aggravated unlawful wounding.[24]
3. At the time of the commission of the offences, the respondent was on parole, having been released from his sentence for the index offence. He was sentenced to 9 months' imprisonment cumulative on his sentence for the index offending.[25]

1. In addition to having been convicted of breaching violence restraining orders on two occasions, the respondent was convicted of offences of failing to appear in accordance with his bail undertaking on six occasions (in 2004, 2009 and 2012).[26] As I have outlined, he was also convicted of attempting to pervert the course of justice, after attempting to convince PB to falsify her witness account in relation to one of the offences against her.[27]

1. In parole assessments conducted in 2018 and 2022, the respondent was reported to have had a 'poor attitude' at times while in custody, resulting in management of his behaviour and a loss of gratuities. The assessments noted that the nature of his conduct suggested a disregard for authority and rules in general.[28] However, in a report dated 1 July 2024, the respondent was reported to have been respectful to staff, compliant with prison rules and regimes and not considered to be a management issue.[29]

1. The respondent is now 39 years of age. He is a Walmajarri man, raised in the Fitzroy Valley region. His mother died of cancer when he was young. He has four siblings. He has reported that in his early life he was exposed to heavy parental alcohol use and family violence and violence was so prevalent in his community and family that it became normal. However, he also reported having a good childhood.[30]
2. The respondent has said that he was raised by an aunt and uncle from the age of about 10 or 12. They did not drink alcohol and were prominent community members. The respondent's life with them was stable and removed from the culture of violence and alcohol.[31]
3. The respondent went to school, but it is not clear for how long. He has had employment with the Noonkanbah Community Development Program, and as a teacher's assistant and gardener at a local school.
4. The respondent commenced drinking alcohol when he was 17. He says that he drinks when he has money, and when he is bored.[32] He has frequently used cannabis since the age of 18.[33]

1. The respondent has undergone a number of evaluations over the years including neuropsychological assessments, program reports, presentence reports and parole assessments. I have read each of these reports but will only summarise the neuropsychological reports in these reasons.

Neuropsychological Reports dated 20 September 2017 and 5 October 2018

1. In her report dated 20 September 2017, Dr Vuletich, a Clinical Neuropsychologist, noted that the respondent was a poor historian and was not always willing to discuss aspects of his history. She had concerns with his engagement with the assessment process and as such did not consider his scores to be reliable or to reflect his true level of intellectual capacity. In those circumstances, it was not possible for her to determine whether the respondent had any cognitive impairments.[34]
2. An updated report was sought from Dr Vuletich at the time of the respondent's re‑sentencing for the index offence. This report was dated 5 October 2018.
3. On the second occasion, the respondent appeared to be more receptive to the examination and engaged more with the assessment. While he did appear unable or unwilling to persist with challenging tasks, he responded more favourably to encouragement.[35]
4. Dr Vuletich was conscious of factors which might have affected the reliability of the results of her assessment.
5. The respondent's current intellectual functioning was measured using a non‑verbal measure considered less biased by education and language. His performance placed him within the range of 'below average' intellectual functioning. His performance on other subtests was quite varied. His perceptual reasoning was scored in the average range. His verbal comprehension was in the extremely low range, and his processing speed was in the borderline range.[36]
6. In Dr Vuletich's assessment, the respondent cannot be considered to have a general intellectual impairment, but he did demonstrate fairly persistent verbal impairments that reflect difficulties in his acquisition and use of language. These are likely correlated with, although not necessarily caused by, his educational history.[37]
7. In Dr Vuletich's opinion, the respondent would appear to fulfil at least partial diagnostic criteria for Language disorder, including reduced vocabulary, limited sentence structure and language abilities substantially below those expected for his age, resulting in functional limitations in effective communication, social participation, academic achievement or occupational performance.[38] His deficits are likely to have a bearing on his ability to effectively communicate and understand complex verbal material. He will likely require more cognitive resources to understand and process verbally presented material.
8. In Dr Vuletich's opinion, the respondent experiences low frustration tolerance and low capacity to consistently and effectively regulate his emotions.[39]

1. The respondent completed the Connect and Respect Core Group Program and Pathways Program during his sentence for the index offending. Those programs were recommended to address what was assessed as the respondent's high risk of reoffending, perpetuated by factors including a lack of responsibility taking, lack of empathy, poor emotional regulation, attitudes and beliefs that support violence and substance abuse issues.
2. The respondent struggled to make gains in the Connect and Respect Program, appearing to be in a place of denial, but he was assessed as having gained some understanding around family and domestic violence and its impacts.[40]
3. The authors of the 2020 Pathways completion report observed that, as the respondent engaged more in the program, there was a 'noticeable shift' in his attitude and progression towards addressing his treatment needs. He recognised his relationship with alcohol was problematic and made the decision to cease his use, and developed strategies to do so. He also made gains in relation to his other treatment needs.[41] However, ultimately, the respondent's treatment gains were assessed as being 'emerging', and it was noted that they had not been tested in a community setting. It was recommended that his use of substances be monitored and that the respondent be encouraged to engage in employment and further counselling.[42]
4. Having regard to the neuropsychological reports, the potential for the respondent to make gains from the programs he completed is likely to have been affected by his deficits in communicating and understanding complex verbal material. In 2018, Dr Vuletich noted that the respondent had expressed a belief that programs are of no help to him, and she observed that this may be partially related to the combined effect of his difficulty regulating his reactivity and frustration as well as his limited language abilities. Dr Vuletich suggested that adapted programs may be more suitable for the respondent.[43]
5. The respondent again participated in the Pathways Program in 2024 to 2025.
6. Again, the respondent 'demonstrated fluctuating engagement ... with his participation characterised by alternative periods of active involvement to episodes of defensiveness, defiance, disinterest, preoccupation and withdrawal'. The respondent's poor engagement was largely observed during activities requiring introspection, although the State's application under the Act did appear to be impacting him.[44] He expressed a belief that he will 'never change'.[45]
7. It was recommended that the respondent engage in further therapeutic intervention to enhance emotional awareness, self‑regulation and distress tolerance, to challenge unhelpful thought processes, and to develop and apply skills in the area of relationships.[46] He also needs to challenge anti‑social attitudes and develop peer refusal techniques.[47]
8. The respondent's risk management plan did evidence a level of thought and insight into his communication and strategies for managing his risk factors on release. However, his plan in relation to substance use appeared to be unrealistic and lacking awareness of his high risk factors.[48]
9. It was recommended that the respondent complete the 'Not Our Way' indigenous family violence program, but it was not available to him having regard to his release date.[49]

1. The respondent has indicated an intention of living with his sister and other family members in the Wangkatjungka Community, outside Fitzroy Crossing. He anticipated being able to obtain employment through his brother.[50]
2. Ms Applin identified the following concerns if the respondent was to reside in the Wangkatjungka Community:

(1) a former partner of the respondent's is currently residing in the community and there are concerns for her safety and wellbeing;[51]

(2) the Fitzroy Crossing Police Station is approximately a 1.5 hour drive from the community which limits the ability of the police to respond to any future incidents involving the respondent;[52]

(3) the community is located 506 km from Broome and a six hour drive by vehicle. The road to the community from the highway is unsealed and there are creek and water crossings on the road. During the wet season community corrections and emergency services may not be able to access the community due to the roads being impassable;[53]

(4) testing of GPS electronic monitoring at the respondent's sister's residence in the community demonstrated that the device was not able to be activated within the residence and the connection to the device could only be restored outside of the residence;[54]

(5) due to the nature of the GPS and the remote areas surrounding the community and Broome, there may be occasions when the respondent is not electronically monitored and not within mobile range which means that authorities could not ascertain his whereabouts;[55] and

(6) there is no contracted security service available in the area.[56]

Are there reasonable grounds for believing that the respondent might be a high risk serious offender?

1. Most of the respondent's offending behaviour was against his intimate partners, including PB. His offending included punching and other applications of force to his victims' head and back, kicking, stabbing, slashing and spitting. On each occasion the respondent was intoxicated with alcohol. The respondent has demonstrated a pattern of violent offending against his intimate partners.
2. The severity of the respondent's conduct has escalated over time, culminating in the index offending against PB. The significant period of imprisonment for his index offending against PB did not deter the respondent from violently and seriously assaulting another intimate partner in 2023 while he was on parole.
3. It appears that the respondent's attempts at rehabilitation have not had the effect of preventing him from offending against his intimate partner.
4. The respondent's antecedents and criminal record, together with his poor compliance with court orders, lead me to conclude that there is a risk that he may commit further offences if not subject to a restriction order and therefore, that there is a need to protect members of the community from that risk.
5. Having regard to all of the material before the court, I am satisfied that there are reasonable grounds for believing that the court might, pursuant to s 7(1) of the Act, find that the respondent is a high risk serious offender.

Is an interim detention order or an interim supervision order appropriate?

1. The State seeks an interim detention order pursuant to s 46(2)(c)(i) of the Act in order to adequately protect the community from the risk of serious offending on the part of respondent pending the final determination of the application.
2. Given the respondent's offending history, his poor history of compliance with court orders, his poor response to being released on parole, the risk that he may commit further offences and the potential risk to the community, I am satisfied that there is a risk that he may reoffend if he is released before the hearing of the application. This risk is amplified by the concerns that are identified with the respondent residing in the Wangkatjungka Community and the issues with monitoring his compliance with an interim supervision order in that remote location.
3. In these circumstances, I consider it appropriate that the respondent be detained in custody until the final hearing of the application to ensure the community is adequately protected from his risk of reoffending.

1. I make the following orders:
   1. The hearing of the restriction order application pursuant to s 48 of the High Risk Serious Offenders Act 2020 (WA) be heard on 17 September 2025.
   2. The respondent undergo examinations by two qualified experts, namely one psychiatrist, Dr Gosia Wojnarowska, and one psychologist, Dr Julie Hasson, for the purposes of preparing reports as required by s 46(2)(a) and s 74 of the High Risk Serious Offenders Act 2020 (WA) that are to be used on the hearing of the restriction order application.
   3. The experts named in order 2 are not to include in their reports information or opinions about the respondent based on a communication with a third person unless details of that communication sufficient to identify the person with whom the communication was held, its date and a summary of its content are included in the expert's report.
   4. The reports of the experts be provided to the applicant at least 42 days prior to the hearing of the restriction order application.
   5. Any report authored by the Department of Justice, including any Proposed Management Plan, be provided to the applicant at least 35 days prior to the date of the hearing of the restriction order application.
   6. The experts named in order 2 liaise with the Department of Justice as to a Management Plan (if appropriate) for the respondent to be supervised in the community.
   7. Pursuant to s 122 of the Criminal Investigation Act 2006, the experts named in order 2 may be supplied with and may view any audio‑visual recordings of interviews with the respondent, or transcripts of the same, for the purpose of preparing their reports.
   8. At the hearing of the restriction order application, the reports provided by the experts named in order 2 shall stand as the evidence-in-chief of the experts and no further evidence‑in‑chief may be adduced without the leave of the Court.
   9. The Court orders pursuant to s 46(2)(c)(i) of the High Risk Serious Offenders Act 2020 (WA) that the respondent be detained in custody pursuant to an Interim Detention Order until the final determination of the application.
   10. There be liberty to the parties to apply generally.

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

[3] The State of Western Australia v PAS [2020] WASC 405 [20] - [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

[9] Symons Affidavit, page 179; Treatment Assessment Report, page 2.

[10] Symons Affidavit, pages 15, 165 - 167.

[12] Symons Affidavit, pages 161 - 162.

[13] Symons Affidavit, pages 15, 157 - 158.

[18] Symons Affidavit, pages 126 - 129, 145.

[20] Symons Affidavit, pages 121 - 122.

[27] Symons Affidavit, pages 126 - 147.

[34] Symons Affidavit, pages 175 - 176.

[40] Symons Affidavit, pages 182 - 186.

[42] Symons Affidavit, pages 187 - 193.

[46] Symons Affidavit, pages 244 - 245.