THE STATE OF WESTERN AUSTRALIA -v- YAMALULU [No 2] [2025] WASC 441 (15 October 2025)

1. Section 5 defines the term 'serious offence' that is used in s 8. It does so predominantly by reference to offences specified in sch 1 div 1, and sch 1 div 2 where the offence is committed in the circumstances indicated in div 2. For the purposes of this application, I have reviewed the offences listed in sch 1 and had regard to the balance of what s 5 prescribes is a serious offence.
2. Section 48 sets out the court's power to make a restriction order. It provides:

(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -

(a) make a continuing detention order in relation to the offender; or

(b) except as provided in section 29, make a supervision order in relation to the offender.

(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

1. Pursuant to s 48, if the court finds the offender is a high risk serious offender the court must make a continuing detention order or a supervision order. The court's ability to make a supervision order is subject to s 29. Section 29 provides that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions of the order.
2. Section 7(1) defines the phrase 'high risk serious offender' as follows:

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. The phrase 'high degree of probability' connotes a standard that is more than the civil standard of balance of probabilities but less than the criminal standard of beyond reasonable doubt.[2] The State has the onus of satisfying the court to this standard that Mr Yamalulu is a high risk serious offender.[3]
2. In considering whether I am satisfied that Mr Yamalulu is a high risk serious offender, I must have regard to the matters that are set out at s 7(3)(a) to (j). Section 7(3)(j) is a catch all provision, which in effect provides that I must have regard to any other relevant matter in addition to those set out at s 7(3)(a) to (i).
3. Section 7(4) sets out what I must disregard in making the relevant assessment. Specifically, I must disregard the possibility that Mr Yamalulu might temporarily be prevented from committing a serious offence by imprisonment or remand in custody, or the imposition of bail conditions.
4. In The State of Western Australia v Williams [No 2],[4] I analysed these provisions, in particular by reference to the joint judgment of Kiefel CJ, Keane and Steward JJ and the separate judgment of Edelman J in Garlett v The State of Western Australia.[5] Having regard to that analysis, I am of the view that the appropriate way to proceed is as follows:[6]

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. I am reluctant to attempt to provide greater definition, bearing in mind the caution expressed by the High Court in M v M against 'striving for a greater degree of definition than the subject is capable of yielding'.

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.

(footnote omitted)

1. Further, in Garlett, the joint judgment quoted with approval the following observations of Fiannaca J in The State of Western Australia v ACJ:[7]

The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2). As was decided in respect of s 17(2) of the [Dangerous Sexual Offenders] Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.

(footnotes omitted)

1. The HRSO Act does not require that there be no risk of re‑offending.[8] Similarly, an assessment whether a supervision order provides adequate protection of the community does not require that the supervision order eliminates all risk.

1. Section 27(1) provides that a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate.
2. The nature, conditions and period of a supervision order are addressed by s 27 and s 30.
3. Section 27(2) provides that a supervision order has effect from a date, and for a period, stated in the order.
4. Section 30(2) sets out the standard conditions of a supervision order. A prerequisite to the making of a supervision order is that the court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of it.[9] Broadly speaking, the conditions in s 30(2)(a) to (e) and (g) impose reporting and notification obligations on the offender and subject the offender to intensive supervision. The standard condition in s 30(2)(f) is that the offender not commit a serious offence during the period of the order.
5. Section 30(5) provides that a supervision order may contain any other terms that the court thinks appropriate:

(a) to ensure adequate protection of the community; or

(b) for the rehabilitation, care or treatment of the offender; or

(c) to ensure adequate protection of victims of serious offences committed by the offender.

1. In relation to the question of whether an offender will substantially comply with the standard conditions imposed by s 30, the joint judgment in Garlett quoted with approval the following observations of Fiannaca J in ACJ:[10]

The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro-social support available to him.

1. Thus, the assessment of whether the offender will substantially comply with the standard conditions takes account of the protective and supportive measures provided by the terms of the order.
2. In respect of the additional conditions that a court might impose over and above the standard conditions of a supervision order, Edelman J in Garlett observed:[11]

The requirement of appropriateness [in s 27(1)] imposes a duty on the Court to make only the additional supervision conditions required to ensure 'adequate' protection of the community, while imposing the minimum intrusion on an offender's liberty.

(footnotes omitted)

1. In my view, this observation applies equally to the period of a supervision order. The period should reflect the minimum intrusion necessary to ensure adequate protection of the community.
2. Further, in my view, the type of additional conditions which might be imposed are relevant to assessing the following three matters. First, whether additional conditions, taken together with the standard conditions, can ensure adequate protection of the community in the relevant circumstances. Second, if that is the case, what additional conditions are required to ensure adequate protection of the community, while imposing the minimum intrusion on an offender's liberty. Third, whether the additional conditions, taken together with the standard conditions and all of the relevant circumstances, satisfy the court that the offender will substantially comply with the standard conditions.
3. I turn now to the specifics of the application.

1. The State tendered as exhibits on the application three books of materials, a post sentence supervision order made 2 May 2025 and correspondence regarding an intensive community based rehabilitation program known as 'Breathing Space'. Further, the State called as witnesses at the hearing Dr Wojnarowska, Ms Hasson and Ms Hartland. Each had prepared reports for the hearing which were contained in the Book of Materials. Mr Yamalulu was present by video link at the hearing. He did not give or adduce any oral evidence.

1. Mr Yamalulu was born on 4 February 1986. He is now 39 years of age.
2. Mr Yamalulu is a Walmajarri man, who was raised in the Fitzroy Valley region. Mr Yamalulu's first language is Kriol.[12]
3. Mr Yamalulu left school around year 9 or 10.[13] He has had several different jobs, which predominantly involved manual labour. If released into the community, Mr Yamalulu wants to return to work with a person he previously lived with, who is a positive support for him.[14]
4. Mr Yamalulu reported in his interview with Ms Hasson that he had been exposed to family and domestic violence while growing up.[15]
5. Mr Yamalulu commenced drinking alcohol at around 17 years of age and started smoking cannabis soon after.[16] It seems that his illicit substance use is limited to cannabis.[17] Mr Yamalulu accepts that there is a link between his use of alcohol and his offending.
6. Mr Yamalulu has type 2 diabetes. His compliance with his medication regime is not consistent.[18]

1. I have described already the offences in respect of which Mr Yamalulu had been serving sentences of imprisonment at the time of the preliminary hearing. The offence contrary to s 297 of the Code is a serious offence under the HRSO Act.
2. The circumstances of that offence were described by the Court of Appeal in the judgment on the appeal against sentence as follows:[19]

The offending occurred on 23 February 2017. The victim, Ms Button, was aged 38. [Mr Yamalulu] had been in a relationship with Ms Button for about three or four years. They had one child who was aged three at the time of the offence.

When the offending occurred, the relationship between Ms Button and [Mr Yamalulu] had ended. There had been a history of domestic violence. A violence restraining order was in force at the time of the offence for the protection of Ms Button. The order prohibited [Mr Yamalulu] from contacting her or being within 50 m of her.

On 23 February 2017, between 8.00 pm and 9.20 pm, Ms Button was at a house in the Mindi Rardi Community at Fitzroy Crossing. She was with [Mr Yamalulu's] brother. [Mr Yamalulu] had been drinking heavily and was intoxicated. He returned to the house and found Ms Button having sex with his brother. The brother ran from the house.

[Mr Yamalulu] violently assaulted Ms Button. He grabbed her, twisted her arm and threw her to the ground. When Ms Button was on the ground, [Mr Yamalulu] jumped repeatedly onto her chest, legs and head. He then walked outside and sat down. Other people heard Ms Button screaming and pleading with [Mr Yamalulu] to stop attacking her.

[Mr Yamalulu] did not render first aid or seek any medical assistance for Ms Button. He fled when he saw a police car arriving at the house. [Mr Yamalulu] was arrested the following day. He had attempted to hide from the police and, initially, gave the police a false name.

After the police found Ms Button unconscious in the backyard of the house, she was taken to the Fitzroy Crossing Regional Hospital. Medical practitioners sedated and intubated her. Ms Button was then flown to Royal Perth Hospital. Initially, she was cared for in the intensive care unit. Later, she was treated in the trauma unit and the internal medicine unit.

Ms Button suffered very serious injuries including a broken right mandible, a subdural haematoma, cervical and thoracic spinal injuries, significant bruising and contusions, strangulation bruising around her neck, broken ribs and a broken clavicle. The most serious injury suffered by Ms Button was the subdural haematoma. This has resulted in quadriplegia.

1. The Court of Appeal also described the circumstances of the offence as follows:[20]

[Mr Yamalulu] committed a frenzied, savage and relentless attack upon a vulnerable, unarmed and defenceless woman. He inflicted shocking injuries. [Mr Yamalulu] ignored Ms Button's repeated pleas for him to stop attacking her. He showed no mercy. Ms Button is permanently disabled and has an exceptionally high level of impairment. Her prospects of improvement are limited.

1. As the Court of Appeal observed, the offence was undoubtedly at the upper end of the range of seriousness for an offence of that type.[21] The offence is the only offence that Mr Yamalulu has committed that is defined as a serious offence in the HRSO Act.
2. In terms of the offences that Mr Yamalulu committed while on parole for the serious offence, Whitby J summarised the circumstances of those offences as follows:[22]

On or about 8 July 2023 [Mr Yamalulu] and the victim, RB, had been in a relationship for about three months. [Mr Yamalulu], 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 [Mr Yamalulu] told her he had stabbed her. The next day, [Mr Yamalulu] 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.

(footnote omitted)

1. The sentencing magistrate correctly characterised the offending as being painful and terrifying for the victim. Further, his Honour observed that 'luckily, [RB] didn't suffer any further and more serious injuries and potentially life-threatening injuries from [Mr Yamalulu's] assaults upon her'.[23]
2. As to the balance of Mr Yamalulu's offending, I respectfully adopt Whitby J's summary of that offending:[24]

... [Mr Yamalulu] 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).

1. All but three of these offences were committed against victims with whom Mr Yamalulu was in a personal relationship. Mr Yamalulu also has committed an offence of breach of bail undertaking, giving false details to police and attempting to pervert the course of justice. This last offence pertained to the offence of aggravated unlawful wounding that he committed in 2014. Mr Yamalulu attempted to persuade the victim of that offence to have the charge dropped, and to change her statements, so that Mr Yamalulu could be released from prison.[25]

1. Dr Wojnarowska is a forensic consultant psychiatrist.
2. Dr Wojnarowska said Mr Yamalulu presents with antisocial and narcissistic personality traits.[26] She is of the opinion that he fulfils the criteria for substance use disorder with a cannabis and alcohol dependence. She considers that condition has been in remission during Mr Yamalulu's current period of imprisonment.[27]
3. Dr Wojnarowska undertook several assessments of Mr Yamalulu using different assessment instruments. These were the Hare Psychopathy Checklist, the Historical Clinical Risk Management - 20 Version 3 that assesses the risk of violence, and the Spousal Assault Risk Assessment Guide that assesses the risk of intimate partner violence.
4. Mr Yamalulu did not meet the threshold for psychopathy, scoring 21 on the relevant scale, a threshold of 30 being necessary for such a diagnosis. However, Dr Wojnarowska observed that particular aspects of the results were consistent with Mr Yamalulu being impulsive, sensation seeking and unstable which is related to his diagnosis of antisocial personality traits.[28]
5. Taking account of the factors highlighted by the Historical Clinical Risk Management Assessment, Dr Wojnarowska identified the following risk scenarios:[29]

The most likely scenario of a serious offence under the HRSO is an assault on his intimate partner. [Mr Yamalulu] may misinterpret her behaviour as 'cheating' even in a social situation when she engages in a conversation with another male. There is also a possibility of infidelity on both parts, which would lead to an argument which is likely to escalate to significant violence specially when alcohol is involved. His risk is likely to escalate if there is a threat of the relationship breakdown. He may escalate to violence with a weapon, resulting in serious physical harm, including death of the victim and any person who attempts to intervene in the situation.

Another scenario may include the community members including police. He would easily be influenced by his peers and engage in violent behaviours as a means of conflict resolution or to meet his demands. The violence will be instrumental to achieve compliance. The likelihood of [Mr Yamalulu] assaulting a public officer or a member of the community is considered to be chronic.

If [Mr Yamalulu] reengages in criminal activity, it has the potential to occur frequently. His risk is chronic and is directly related to his inability to resolve interpersonal conflict, an entrenched substance misuse habit and antisocial lifestyle.

1. In respect of the Spousal Assault Risk Assessment, Dr Wojnarowska adopted the same risk scenarios that she identified under the Historical Clinical Risk Management Assessment as I have set out above.[30]
2. In Dr Wojnarowska's interview with Mr Yamalulu for the purposes of her report, he told her that he had thoughts of wanting to kill the victim during the course of his committing the offence of causing grievous bodily harm.[31]
3. Dr Wojnarowska observed that Mr Yamalulu is currently motivated to lead a pro-social life, however, that motivation is likely to fluctuate depending on external factors, such as family support. She also observed that he does not exhibit callous or unemotional symptoms of psychopathy.[32]
4. Ultimately, Dr Wojnarowska was of the opinion that Mr Yamalulu is at high risk of violently reoffending in a serious manner if not subject to a restriction order under the HRSO Act.[33]
5. At the time of preparing her report, Dr Wojnarowska was of the opinion that Mr Yamalulu's risk could not be managed in the community, observing that he required further treatment to address his criminogenic needs and maladaptive coping strategies.[34] Dr Wojnarowska said that if Mr Yamalulu was however placed on a supervision order, the duration should be a minimum of five years.[35]
6. Dr Wojnarowska recommended that Mr Yamalulu engage in drug and alcohol counselling and also psychological treatments. She suggested that those treatments should focus on outstanding needs relating to anger, violence and antisocial personality variables as well as assisting with more robust emotional management and coping skills and exploration of factors that contributed to intimate partner violence.[36]
7. Since completing her report, Dr Wojnarowska was advised that there was a prospect of Mr Yamalulu being accepted into the Breathing Space program. Dr Wojnarowska indicated that if Mr Yamalulu were to be subject to a supervision order, she would support entry into that program.
8. In Dr Wojnarowska's oral evidence, she expanded on the suitability of the Breathing Space program.
9. Dr Wojnarowska described the program as an 'optimal sort of plan, in terms of Mr Yamalulu's treatment, and also accommodation'.[37] She noted that the program ran for an appropriate length of time and that Mr Yamalulu would be closely supervised and treated, so 'hopefully, his outstanding treatment needs in relation to alcohol use and family violence will be addressed'.[38]
10. Dr Wojnarowska considered that Breathing Space is superior to programs in custody because it is associated with a different environment. She expects it is more intensive because it runs for six months.[39]
11. In Dr Wojnarowska's examination-in-chief, she was asked whether in her opinion, Mr Yamalulu's risk can be adequately managed in the community by directly admitting him to Breathing Space. She answered, 'Yes'.[40]
12. Dr Wojnarowska considered that the program would provide Mr Yamalulu with a degree of supervision and supported not offered in prison.[41]
13. Dr Wojnarowska agreed with the following propositions put to her in cross-examination. If there was a reasonable population of Indigenous participants in the program, that might make it more comfortable for Mr Yamalulu. It would be important that the program is culturally sensitive. Mr Yamalulu had a reasonable degree of motivation to succeed on the program.[42]
14. Dr Wojnarowska said that despite Mr Yamalulu's diagnosis of a language disorder,[43] he was capable, if he was willing, to adhere to conditions of a supervision order, including participation in the Breathing Space program.[44]

1. Ms Hasson is a consultant forensic psychologist.
2. Ms Hasson undertook a Spousal Assault Risk Assessment of Mr Yamalulu, as well as an assessment using the Hare Psychopathy Checklist.[45]
3. Mr Yamalulu's score on the psychopathy assessment did not fit the construct of psychopathy.[46] Ms Hasson, however, noted areas of concern arising from that assessment included items that suggested limited empathy, poor behavioural controls, impulsivity, irresponsibility, unstable lifestyle, failure to accept responsibility for own actions and history of revocation on conditional release.[47]
4. Ms Hasson concluded that Mr Yamalulu's 'use of violence and aggression appears impulsive and unplanned and motivated by strong emotion, especially anger, rage, distress, jealousy and sensitivity to rejection'.[48] She also observed that:[49]

His offending behaviour has been maintained by difficulties with emotional and behavioural regulation especially the expression and/or inhibition of angry or aggressive impulses, willingness to use weapons, the presence of antisocial personality traits and cognitions, procriminal/proviolent attitudes, values and beliefs, substance misuse, history of family dysfunction, trauma and abuse and the long term effects of complex trauma including over-arousal, affect regulation difficulties, impulse control issues, aggression, self-destructive and risk taking behaviours and distorted beliefs about [one's] safety and the trustworthiness of others, impaired judgment, an aggressive response to threat and poor consequential thinking.

1. Ms Hasson concluded that in her opinion, if Mr Yamalulu was not subject to a restriction order, he would present a high risk of committing a serious offence of intimate partner violence as defined in the HRSO Act. Ms Hasson observed that Mr Yamalulu had undertaken programs to address his risk of reoffending that alcohol and substance abuse prior to being released on parole, however, they did not prevent him reoffending.
2. Ms Hasson said that in her opinion:[50]

It will be important for [Mr Yamalulu] to have access to intervention, counselling and support that targets intimate partner violence and relationship issues as well as alcohol and drug use. Without access to counselling, interventions and support his ability to succeed in the community and lead an offence free life will be compromised.

1. Ms Hasson also identified the following lifestyle factors as contributing to his risk of reoffending in the past:[51]

... absence of employment, financial stress, unstable lifestyle, limited prosocial supports, limited meaningful engagement in community based hobbies or leisure pursuits, and reliance/dependence on welfare have all contributed to Mr Yamalulu's risk of reoffending in the past.

1. Ms Hasson is of the opinion that if Mr Yamalulu is placed on a supervision order, it should be for a period of 2 to 3 years.[52] She is of the opinion that management plans 'for prevention of future intimate partner violence need to be based on monitoring, treatment, supervision, and victim safety planning'.[53]
2. In her oral evidence, Ms Hasson was supportive of Mr Yamalulu attending the Breathing Space program.
3. She said that the Breathing Space program is the program of choice for Mr Yamalulu, particularly because it is a therapeutic community, and it is for six months. She said her understanding of the program is they will focus on relationships and emotions, accountability and responsibility taking. And, her understanding is there will also be program content around victims and victim empathy as well.[54]
4. She said 'that the benefit of it being a therapeutic community is that when not in group, [Mr Yamalulu is] with a group of men who have to practise those skills every day, resolving conflicts, [and] learning to communicate.[55]
5. She contrasted this to a program in prison, which is not in therapeutic communities, and the person might only be in the therapeutic group for two to three hours per day, after which they return to the general prison population. As a consequence, she says there is not the time available to practise the skills every single day.[56]
6. Ms Hasson described the following additional advantages of Breathing Space compared to a program in custody. Mr Yamalulu will be able to transition to making trips into the community in a structured way, that will assist him in learning to be accountable. Accountability is important for the success of his supervision in the community. In making these trips, Mr Yamalulu will need to identify where he wants to go and how he is going to get there. The need to do so will assist in his problem-solving and planning skills, which he will need to successfully complete any type of release order and to reintegrate back into the community.[57]
7. Ms Hasson considered that the way the Breathing Space program is set up is ideal for Mr Yamalulu.[58]
8. Ms Hasson said Mr Yamalulu would likely still need assistance outside of the program pertaining to his self-confidence, his self-worth, his sense of personal agency and control.[59]
9. Ms Hasson did not have any concerns as to Mr Yamalulu's ability to engage and successfully complete the program. She said it is really hard work because there will be times when it is challenging, but there is no reason Mr Yamalulu cannot complete it.[60] Ms Hasson said that Mr Yamalulu was motivated to participate in and complete the program, and in this respect pointed to him initiating the process for admission into the program. She also described motivation as being important in providing Mr Yamalulu with resilience to complete the program.[61]
10. She said when she spoke to Mr Yamalulu regarding the program:[62]

... I said to him it will be six months, it's going to be really challenging. He seemed to understand what the requirements were and was still committed to that.

1. Ms Hasson said that in her experience, it is 'so much easier to work with men that have come through a Breathing Space program'.[63]

Community Supervision Assessment Report by Ms Hartland dated 4 September 2025

1. Ms Hartland was the Acting Senior Community Corrections Officer at the time of her report.
2. Ms Hartland spoke of two important matters if Mr Yamalulu is released into the community. First, the Breathing Space Program, into which Mr Yamalulu has been accepted. She described this program in her report as follows:[64]

Breathing Space in an intensive, live-in men's behaviour change program specifically designed for men who choose to use violence and abuse within their relationships/families. The program runs for approximately six months, with sites in South Hedland, Maylands and Calista.

...

The South Hedland facility is situated approximately three kilometres from the nearest Adult Community Corrections Centre, and approximately three kilometres from the South Hedland Police Station which functions 24 hours, seven days a week. Urinalysis testing is available at the Hedland Health Campus which is also approximately three kilometres away and can be facilitated Monday to Friday from 10am - 1pm.

1. The second important matter pertained to support for Mr Yamalulu once he left the Breathing Space program. Ms Hartland referred to two proposed sponsors for Mr Yamalulu who live in a regional town. She said that enquiries undertaken by her suggested that they provide a prosocial environment and do not allow the consumption of alcohol and drugs at their property. It would appear that these two sponsors are prepared to provide Mr Yamalulu with accommodation after he leaves the Breathing Space program and they may be able to offer him assistance with attaining employment.[65]
2. In Ms Hartland's oral evidence, she expanded upon the Breathing Space program.
3. Ms Hartland said that Breathing Space was 'probably the gold standard of programs'.[66] She said it was 'probably one of the [programs] that we push for the most for family violence perpetrators'.[67]
4. Ms Hartland described Breathing Space as a therapeutic rehabilitation facility targeting men's domestic violence, which also offers support to victims. She said Mr Yamalulu would engage in group therapy for two hours in the morning and two hours in the afternoon while in the program.[68] Breathing Space has strict policies about remaining in their program and would support his reintegration back into the community in a staggered way.[69]
5. Ms Hartland described how access to the community occurs in a staggered way at Breathing Space, with community access in the first few weeks only occurring under the supervision of a Breathing Space staff member.[70] She also described how safety planning occurs prior to independent community access being granted. This safety planning includes getting confirmation that the people with whom program participants plan to meet up with in the community, are willing to meet them.[71]
6. Ms Hartland described the community access as 'really quite strict in what is required',[72] giving examples of participants being required to send pin locations, respond to texts, and perform certain actions in photos, such as giving a thumbs up, to prove that they are where they are supposed to be.[73]
7. Ms Hartland said there were no issues anticipated regarding GPS monitoring at Breathing Space,[74] and that the Community Offender Management Unit (COMU) has had previous clients live at Breathing Space while under GPS tracking.[75] In respect of the proposed accommodation for Mr Yamalulu after he leaves Breathing Space, she said that GPS tracking works in the immediate town area, but there is 'some dropout' in the surrounding areas.[76]
8. As to the logistics of Mr Yamalulu attending the program, she explained that Mr Yamalulu would first be transferred to Roebourne Prison, to assist with the transfer to Breathing Space. Further, he would still be supported by COMU while participating in Breathing Space.[77]
9. She said there would be 'constant communication' between Breathing Space and COMU, with weekly communication likely occurring at a minimum.[78] Ms Hartland had no concerns about managing Mr Yamalulu on the proposed conditions of a supervision order if he was at the Breathing Space program, and said the program facility has its own independent urinalysis testing available,[79] which could occur in conjunction with COMU's own random urinalysis testing.[80]
10. Ms Hartland described the accommodation at Breathing Space as 'self-contained units'.[81] After completing the six-month program, Breathing Space graduates are supported by a case manager for a following 12 months, and can also be assisted with transitional accommodation following completion of the program. To receive assistance with transitional accommodation, participants are required to engage in employment or pro-social pursuits in the community or continue attending group sessions in a mentor role.[82]

Treatment options report of Ms Cashmore dated 21 August 2025

1. Ms Cashmore is a HRSO Planning Manager.
2. Ms Cashmore helpfully set out the programs that Mr Yamalulu has completed so far.[83] They are:
   1. the Connect and Respect family violence program which he completed in November 2019;
   2. the Pathways substance use program which he completed in September 2020; and
   3. a further Pathways program which he completed in January 2025.
3. In respect of the Connect and Respect program, the program facilitators indicated that Mr Yamalulu avoided taking responsibility for his actions and lacked victim empathy.
4. The program completion report for the first Pathways program noted that Mr Yamalulu's treatment needs related to his poor emotion management and coping, substance use, and anti-social thoughts. Ms Cashmore said the report noted that he had made treatment gains across these areas, however, these gains were emerging and untested in the community.
5. In respect of the second Pathways program, Ms Cashmore said that the program completion report noted that Mr Yamalulu was unwilling to engage wholly in the process, which significantly impacted any gains that he could make.[84]
6. Mr Yamalulu attended all 50 sessions of the second Pathways program. The completion report identified his treatment needs as including addressing his associations with antisocial peers, beliefs and attitudes that support antisocial behaviour, substance use, communication deficits, poor emotional regulation, and maladaptive coping strategies. The report also said that Mr Yamalulu's identification of his high-risk factors was limited, with him remaining fixated on relational issues being the primary cause of his offending, and at times evidencing a dismissive attitude regarding the role of alcohol use in his behaviour.[85]

Neuropsychological reports of Dr Vuletich dated 20 September 2017 and 5 October 2018

1. Dr Vuletich assessed Mr Yamalulu on two occasions. Based on those two assessments, Dr Vuletich was of the opinion Mr Yamalulu appeared to fulfil at least partial diagnostic criteria for language disorder.[86]
2. The particular deficits that she identified were reduced vocabulary and limited sentence structure. She also was of the opinion that his language abilities were substantially and quantifiably below those expected for age, resulting in functional limitations in effective communication, social participation, academic achievement or occupational performance.[87]

1. The Prisoners Review Board imposed a Post Sentence Supervision Order (PSSO) in respect of Mr Yamalulu for a two‑year period commencing on 25 May 2025. The PSSO is imposed under the Sentence Administration Act 2003 (WA) (SA Act).
2. The PSSO remains in place notwithstanding that Mr Yamalulu has been placed on an interim detention order.[88]
3. Mr Yamalulu's counsel correctly accepts that the PSSO does not provide adequate protection of the community if Mr Yamalulu was released into the community.
4. The authors of the PSSO report, which pertains to the making of the PSSO, said that should Mr Yamalulu 'continue to drink excessively with anti-social peers or [partners], he is considered to have a high risk of re-offending in the community.[89] They also said that:[90]

Mr Yamalulu displayed some insight into his offending by acknowledging the connection between his alcohol misuse issues and anger management issues within intimate relationships to his offending. He was able to suggest strategies of distancing himself from family or peers who insist on consuming alcohol and to walking away from future relationship arguments if he is unable to communicate in a calm manner.

1. I turn now to address the mandatory considerations set out in s 7(3) of the HRSO Act.

1. Section 7(3)(a) requires that I have regard to the reports prepared under s 74 and the extent to which Mr Yamalulu cooperated in the examinations required for the preparation of those reports. The relevant reports are those of Dr Wojnarowska and Dr Hasson. I have addressed their reports and their oral evidence at [46] - [82] above. It is not suggested that Mr Yamalulu did not cooperate in the examinations.

1. Section 7(3)(b) requires that I have regard to any additional assessments. These comprise the Community Supervision Assessment Report, the Treatment Options Report, the Neuropsychological reports and the PSSO report.
2. I have addressed these reports at [83] - [106] above.

1. It is useful to address s 7(3)(c) and (d) together. Section 7(3)(c) requires that I have regard to information indicating whether or not Mr Yamalulu has a propensity to commit serious offences in the future. Section 7(3)(d) requires that I have regard to whether there is any pattern of offending behaviour by Mr Yamalulu.
2. For present purposes, I am satisfied that the word 'propensity' encapsulates the person having an inclination or disposition to behave in a particular way.[91]
3. 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, as opposed to offences generally.
4. Mr Yamalulu's offending behaviour has been persistent over a significant period of time, and involves him engaging in significant violence against current or previous partners. That violence has escalated, with the last two offences being of the utmost seriousness. The gravity of the offence of grievous bodily harm speaks for itself and Mr Yamalulu told Dr Wojnarowska that during the commission of that offence, he had thoughts of wanting to kill the victim. In respect of the most recent unlawful wounding offence, it was only through good fortune that the victim was not severely injured. These offences reflect an escalation in the gravity of Mr Yamalulu's offending behaviour.
5. In my view, Mr Yamalulu has a propensity to commit serious offences of the following type against present or former partners, which propensity is likely to continue unless Mr Yamalulu makes significant rehabilitative gains:
   1. violence that is, at least, of such severity that grievous bodily harm is caused, being an offence against s 297 of the Code; and
   2. other offences involving violence by doing an act with intent to harm as a result of which act bodily harm is caused, or the life, health of safety of the victim is endangered, being an offence under s 304(2) of the Code.
6. In addition, Mr Yamalulu's pattern of offending to date demonstrates a pattern of violent offending in the manner that I have described at [115] above.

1. It is useful to address s 7(3)(e) and (f) together.
2. Section 7(3)(e) requires that I have regard to any efforts made by Mr Yamalulu to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation program. Section 7(3)(f) requires that I have regard to whether Mr Yamalulu's participation in any rehabilitation program has had a positive effect.
3. Mr Yamalulu has not yet made substantive gains in rehabilitation. However, as Whitby J observed, his potential to make gains from the programs he completed is likely to have been affected by the deficits in his communicating and understanding complex material.[92] A disconnect between program content and an offender's capacity to learn was a matter about which I expressed concern in The State of Western Australia v Hood.[93]
4. The strong impression I have from the evidence of Dr Wojnarowska and Ms Hasson is that the long term, and extensive, nature of the Breathing Space program will allow Mr Yamalulu to learn at a pace at which he is comfortable, in an environment in which he will receive constant supervision for an extended period.

1. Section 7(3)(g) requires that I have regard to Mr Yamalulu's antecedents (his personal background) and criminal record.
2. I have addressed these matters at [32] - [45] above.

1. Section 7(3)(h) requires that I have regard to the risk that if Mr Yamalulu were not subject to a restriction order, he would commit a serious offence.
2. The particular matters of importance in making this assessment are the extensive nature, and severity, of Mr Yamalulu's offending, his lack of insight into his behaviour, his lack of substantive gains in rehabilitation, his propensity to commit serious offences in the future and the pattern of his offending behaviour. Having regard to these matters, if Mr Yamalulu were not subject to a restriction order, there is a significant risk that he would commit a serious offence of the type I have described at [115] above.

1. Section 7(3)(i) requires that I have regard to the need to protect members of the community from the risk that I have identified at [124] above.
2. The nature and extent of the harm from the serious offences that Mr Yamalulu is at risk of committing is extensive. In that respect, his violent offending has resulted in extremely serious physical injuries, and no doubt serious distress and ongoing mental harm. There is an obvious need to protect the community from the risk of him committing further serious offences of a violent nature.

1. The most significant additional matters that I need to have regard to are the Breathing Space program, and the support available to Mr Yamalulu upon him completing that program.
2. As I have said, the Breathing Space program is very well regarded. Ms Hasson's experience is that it is 'so much easier to work with men that have come through a Breathing Space program'. It seems that it is the best chance of Mr Yamalulu making significant gains in his rehabilitation. Upon completing that program, Mr Yamalulu would then be afforded a transitional period to move to new accommodation and would be supported for 12 months after completing the program.
3. Further, Mr Yamalulu has positive supports available to him upon completing the program, who will provide him with accommodation and a positive environment in which to live, including assistance in getting a job.

1. In my view, there is acceptable and cogent evidence that demonstrates there is a significant risk that Mr Yamalulu will commit a serious offence of the type I have identified at [115] above. The nature and extent of the prospective harm that might be caused by such offending is significant, given the type of offences I consider Mr Yamalulu is at risk of committing.
2. For these reasons, I am satisfied to the requisite standard that it is necessary to make a restriction order in respect of Mr Yamalulu to ensure the adequate protection of the community against an unacceptable risk that he will commit a serious offence. Thus, I am satisfied Mr Yamalulu is a high risk serious offender within the meaning of s 7(1) of the HRSO Act.
3. Accordingly, pursuant to s 48(1) of the HRSO Act, I must make either a continuing detention order or a supervision order.
4. I should make the order that is least invasive of Mr Yamalulu's right to liberty while at the same time, ensuring an adequate degree of protection of the community, having regard to the paramount consideration of the need to ensure adequate protection of the community prescribed by s 48(2).
5. I must also be satisfied on the balance of probabilities that Mr Yamalulu will substantially comply with the standard conditions of a supervision order, which include a condition not to commit a serious offence.
6. Absent the Breathing Space program, I could not be satisfied that a supervision order was appropriate. Mr Yamalulu simply has not achieved sufficient gains in his rehabilitation.
7. An important feature of this matter is the impact that his acceptance into the Breathing Space program has on the ultimate disposition. It is certainly, in my experience, unusual that a person who is a high risk serious offender will be permitted to achieve their substantial rehabilitation in the community. However, that it is unusual does not mean it should never occur.
8. The Breathing Space program itself is a sophisticated and extensive one that provides treatment and accommodation. It runs for six months. It provides comprehensive treatment programs directed to the type of offending that Mr Yamalulu has engaged in.
9. Ms Hasson spoke of the likelihood of gains being achieved in an environment where the participants in the program live at the program facility, which is likely to result in ongoing exchanges between offenders regarding program content and its application to them.
10. At the end of the program, the offender is then helped to transition to other accommodation and will also receive ongoing support for a further 12 months.
11. There can be no doubt that the program has great merit.
12. It seems to me the critical question is the extent to which I can be satisfied that Mr Yamalulu will make substantial rehabilitative gains in the program. Dr Wojnarowska and Ms Hasson are of the opinion that he is motivated to do so, and the effect of their evidence, as I understood it, is that there is a real chance he will make the necessary gains from it. If he does, then Mr Yamalulu's risk substantially reduces.
13. The question of his resilience to complete the program is something that concerned me. However, I thought Ms Hasson's evidence in this respect was quite compelling. She explained how motivation can be a factor in sustaining resilience and that Mr Yamalulu is very motivated to participate in the program.
14. The strong impression I have from the evidence is that Mr Yamalulu is significantly motivated to undertake the program. Further, Ms Hasson considered that there is no reason Mr Yamalulu cannot complete the program.
15. An additional factor that weighs in Mr Yamalulu's favour is that once he completes the program, he has accommodation available that provides a positive and supportive environment.
16. Further, the comprehensive nature of the Breathing Space programs, in conjunction with the programs being provided over a six month period within a 'live-in' program facility, enhance the prospects that an offender will make significant gains by completing the program.
17. The combined effect of the factors that I have set out at [137] to [145] above persuade me that there is a significant prospect Mr Yamalulu will complete the Breathing Space program and in doing so, make substantial rehabilitative gains.
18. I am satisfied, therefore, that releasing him on a supervision order to participate in the Breathing Space program provides adequate protection to the community while he is living at the program facility. Upon completion of the Breathing Space program, Mr Yamalulu then has accommodation available which provides both a positive and supportive environment. That accommodation, together with the anticipated gains from the Breathing Space program, persuade me that Mr Yamalulu's planned transition into the community upon completion of Breathing Space also provides adequate protection of the community. For the reasons expressed at this paragraph, I am satisfied on the balance of probabilities that Mr Yamalulu will comply with the standard conditions of a supervision order.
19. That all being said, I am not persuaded that the proposed conditions of the supervision order itself are adequate. They provide that Mr Yamalulu is to reside at the Breathing Space facility immediately upon his release from custody, and can only stay at a different address if it is approved in advance by a community corrections officer assigned to him.
20. I do not think that achieves sufficient protection of the community. I think there needs to be additional conditions to the effect that Mr Yamalulu is to participate in the Breathing Space program and is to complete it.
21. To be clear, the principal reason I consider the community is adequately protected, and I am therefore prepared to make a supervision order, is that I am satisfied there is a significant prospect Mr Yamalulu will make substantial rehabilitative gains in the Breathing Space program.
22. However, if he does not participate in the program or does not complete it, then that basis for making the order falls away and the question whether a supervision order remains appropriate would likely need to be reconsidered. Therefore, his participation in, and completion of, the Breathing Space program needs to be a condition of the supervision order. A failure to comply with such a condition enlivens the State's ability to assert a contravention of the supervision order and seek to have it cancelled.
23. In addition, the HRSO Act permits the amendment of conditions of a supervision order on the application of Mr Yamalulu, or on the application of the CEO of the department responsible for administering the HRSO Act (with the Attorney General's consent).
24. Specifically, s 50 of the HRSO Act provides that the court can amend the conditions of a supervision order if satisfied that:
    1. the offender is unable to comply with the conditions because of a change in their circumstances, or the amendment is necessary or desirable for any other reason;[94]
    2. it is reasonable to make the amendment in all the circumstances;[95]
    3. the conditions, as amended, will be sufficient to ensure adequate protection of the community;[96] and
    4. the court is satisfied that the offender will substantially comply with the standard conditions of the order.
25. This ability to amend provides recourse to Mr Yamalulu and the CEO if circumstances change such that Mr Yamalulu's participation in, or completion of, the Breathing Space program becomes unachievable because of circumstances unrelated to Mr Yamalulu's performance in it. This ability to amend protects against the proposed additional conditions having an unexpected arbitrary effect.
26. For these reasons, I am satisfied it is appropriate to make a supervision order if it contains conditions to the effect set out at [149] above. I consider the appropriate length of the supervision order should be four years. This provides for a sufficient period for Mr Yamalulu to solidify his rehabilitation gains, establish positive routines and to positively reintegrate into the community. Also, the State may apply for a further supervision order prior to the expiry of that four year period if the State considers that is warranted.[97]
27. I will hear from the parties as to the wording of the proposed additional conditions. I will also hear from the parties as to the practicalities of Mr Yamalulu being transported to the Breathing Space facility, and whether it is necessary for that to be included as a condition of the supervision order.

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

[1] The State of Western Australia v Yamalulu [2025] WASC 149.

[2] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28].

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

[5] Garlett v Western Australia [2022] HCA 30; Williams [22] ‑ [40].

[7] Garlett [106]; The State of Western Australia v ACJ [2021] WASC 219 [32].

[8] See Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].

[11] Garlett [230]; see HRSO Act, s 30(5), which requires that conditions are 'appropriate'.

[12] Book of Materials, Vol 3, page 928 [2].

[13] Book of Materials, Vol 3, page 928 [5].

[14] Book of Materials, Vol 3, page 929 [6] - [8].

[15] Book of Materials, Vol 3, page 928 [4].

[16] Book of Materials, Vol 3, page 930 [15].

[17] Book of Materials, Vol 3, page 931 [16] - [17].

[18] Book of Materials, Vol 3, page 931 [19].

[19] The State of Western Australia v Yamalulu [2019] WASCA 6 [7] - [13].

[22] The State of Western Australia v Yamalulu [2025] WASC 149 [42].

[23] Book of Materials, Vol 2, page 804.

[24] The State of Western Australia v Yamalulu [2025] WASC 149 [24].

[25] Book of Materials, Vol 2, page 769.

[26] Book of Materials, Vol 3, page 914, par 78.

[27] Book of Materials, Vol 3, page 915, par 79.

[28] Book of Materials, Vol 3, page 916, par 85.

[29] Book of Materials, Vol 3, page 921, pars 121 - 123.

[30] Book of Materials, Vol 3, page 924, par 141.

[31] Book of Materials, Vol 2, page 922, par 129.

[32] Book of Materials, Vol 3, page 924, par 145.

[33] Book of Materials, Vol 3, page 924, par 147.

[34] Book of Materials, Vol 3, page 924, par 147.

[35] Book of Materials, Vol 3, page 924, par 147.

[36] Book of Materials, Vol 3, page 925, pars 148 - 149.

[43] See [101] - [102] of these reasons regarding the language disorder.

[45] Book of Materials, Vol 3, pages 953 - 959, pars 137 - 169; page 959, pars 170 - 173.

[46] Book of Materials, Vol 3, page 959, par 173.

[47] Book of Materials, Vol 3, page 959, par 173.

[48] Book of Materials, Vol 3, page 959, par 174.

[49] Book of Materials, Vol 3, page 960, par 175.

[50] Book of Materials, Vol 3, page 960, par 179.

[51] Book of Materials, Vol 3, page 960, par 178.

[52] Book of Materials, Vol 3, page 961, par 182(i).

[53] Book of Materials, Vol 3, page 960, par 180.

[64] Book of Materials, Vol 3, page 970.

[65] Book of Materials, Vol 3, page 971.

[83] Book of Materials, Vol 2, pages 898 - 899.

[84] Book of Materials, Vol 3, page 898.

[85] Book of Materials, Vol 2, page 895.

[86] Book of Materials, Vol 2, page 833, par 53.

[87] Book of Materials, Vol 2, page 833, par 53.

[88] The State of Western Australia v Hood [2025] WASC 379 [126].

[89] Book of Materials, Vol 2, page 884.

[90] Book of Materials, Vol 2, page 885.

[91] See for example The State of Western Australia v Jackson [2019] WASCA 118 [20].

[92] The State of Western Australia v Yamalulu [2025] WASC 149 [63].