STATE OF WESTERN AUSTRALIA -v- BUNWARRIE [2026] WASC 264

[2026] WASC 264 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : STATE OF WESTERN AUSTRALIA -v- BUNWARRIE [2026] WASC 264 CORAM : WHITBY J HEARD : 26 JUNE 2026 DELIVERED : 26 JUNE 2026 PUBLISHED : 30 JUNE 2026 FILE NO/S : SO 6 of 2026 BETWEEN : STATE OF WESTERN AUSTRALIA Applicant AND KELMAN JAMES BUNWARRIE Respondent Catchwords: Criminal law - High risk serious offender - Preliminary hearing - Whether reasonable grounds for belief that a restriction order might be made - Interim detention order appropriate - Turns on own facts Legislation: Community Protection (Offender Reporting) Act 2004 (WA) Criminal Code (WA) Criminal Investigation Act 2006 (WA) High Risk Serious Offenders Act 2020 (WA) -- 1 of 15 -- [2026] WASC 264 Page 2 Sentence Administration Act 2003 (WA) Result: Interim detention order made Category: B Representation: Counsel: Applicant : B E F Tooker Respondent : T Hager Solicitors: Applicant : State Solicitor's Office Respondent : Geoffrey Miller Chambers Case(s) referred to in decision(s): The State of Western Australia v PAS [2020] WASC 405 The State of Western Australia v Winder [2021] WASC 65 -- 2 of 15 -- [2026] WASC 264 WHITBY J Page 3 WHITBY J: Introduction 1 On 29 April 2024, the respondent was sentenced by Egan DCJ in the South Hedland District Court to a term of 3 years and 2 months' imprisonment for the following offences: (1) four counts of used electronic communication with intent to expose a person under the age of 16 years to indecent matter, contrary to s 204B(a)(ii) of the Criminal Code (WA) (Criminal Code); and (2) four counts of failed to comply with reporting obligations, contrary to s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA). 2 The respondent's release date is 19 September 2026. 3 On 7 April 2026, the State of Western Australia applied for a restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (Act). The State relies upon the affidavit of Fleur Marie Allen affirmed on 7 April 2026 (Allen Affidavit) and the affidavit of Michelle Cumming affirmed 5 May 2026 (Cumming Affidavit) in support of its application. 4 The State seeks an interim detention order pursuant to s 46(2)(c)(i), or, alternatively, an interim supervision order pursuant to s 58(5) of the Act until the final hearing of the application. The State's application was listed for a preliminary hearing on 26 June 2026. The purpose of a preliminary hearing is for the court to decide whether there are reasonable grounds for believing the court might find that the respondent is a high risk serious offender. The law in relation to this issue is settled and not in dispute. 5 At the hearing on 26 June 2026, I indicated I was satisfied there are reasonable grounds to believe the court might, in accordance with s 7 of the Act, find that the respondent is a high risk serious offender, and that it is appropriate to make an interim detention order in respect of the respondent in order to adequately protect the community. I ordered the matter be listed for a final hearing, and that appropriate reports be prepared. I advised that I would publish reasons for my decision later. These are my reasons. -- 3 of 15 -- [2026] WASC 264 WHITBY J Page 4 Legal principles 6 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. 7 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 serious offences. 8 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. 9 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.1 10 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.2 The evidence 11 The Allen 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. 12 Ms Cumming, a Senior Community Corrections Officer employed by the Department of Justice, Corrective Services Division and based at 1 Act s 7(1). 2 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). -- 4 of 15 -- [2026] WASC 264 WHITBY J Page 5 the High Risk Serious Offender Unit (HRSO Unit) deposes to the respondent having no viable accommodation options in the community at present.3 The respondent's criminal history The index offending 13 The index offences (together, the index offending) which render the respondent liable to an order under the Act are: 4 (1) four counts of used electronic communication with intent to expose a person under the age of 16 years to indecent matter, contrary to s 204B(2)(a)(ii) of the Criminal Code; and (2) four counts of indecent dealings with a child under 13 years, contrary to s 320(4) of the Criminal Code. 14 The facts of these offences are as follows. IND SHE 46 of 2023 - four counts of used electronic communication with intent to expose a person under the age of 16 years to indecent matter and four counts of failed to comply with reporting obligations 15 The respondent was 30 years old living in Perth and the victim was a 14-year-old child living in Port Hedland. The respondent provided the victim with a mobile phone registered in his name.5 16 Between 27 May 2023 and 23 June 2023, the respondent sent the victim nine separate videos of himself masturbating his erect penis.6 17 As at May 2023, the respondent was a reportable offender, subject to the requirements of the Community Protection (Offender Reporting) Act 2004 (WA). The respondent breached his reporting obligations by failing to inform police:7 (1) that he had a registered mobile phone in breach of his reporting obligation; (2) about the intended addresses or locations that he intended to reside at and the intended dates; 3 Cumming Affidavit [5]. 4 Allen Affidavit [24] - [33]; Annexures 'F' - 'N'. 5 Allen Affidavit [26]; Annexure 'G', pages 33 - 34. 6 Allen Affidavit [26]; Annexure 'G', page 34. 7 Allen Affidavit [26]; Annexure 'G', pages 34 - 35. -- 5 of 15 -- [2026] WASC 264 WHITBY J Page 6 (3) about his unsupervised contact with the victim in South Hedland between 20 May 2023 and 14 July 2023; and (4) of the existence of an email address that was being used by the respondent. 18 The respondent pleaded guilty on 29 April 2024 in the South Hedland District Court and was sentenced to a term of 3 years and 2 months' imprisonment.8 IND 794 of 2021 - one count of indecent dealings with a child under 13 years 19 On 9 April 2021, the respondent and victim were waiting for a train at the Perth Train Station. The respondent and victim, who was 12 years old, were not known to each other, however the respondent approached the victim, sat near her and attempted to engage her in conversation. The victim did not engage. The victim and respondent boarded the same carriage but through different doors.9 20 The victim got off the train at Bull Creek Train Station and entered the female toilet. The respondent followed the victim into the toilet and grabbed her arm. He then grabbed the victim's vagina over her clothing and rubbed it. The victim screamed and the respondent let go.10 21 The victim immediately left the toilet and went to the Transit Security Officers nearby and reported the incident.11 22 The respondent left the toilet, left the train station area towards the bus port area and removed his shirt, leaving a singlet before boarding another train. The respondent was arrested later that morning at his home.12 23 The respondent pleaded guilty in the Perth District Court on 10 September 2021 and was sentenced by Sharp DCJ to a term of 2 years' imprisonment.13 8 Allen Affidavit [27]; Annexure 'H', pages 37 - 38. 9 Allen Affidavit [29]; Annexure 'J', page 62. 10 Allen Affidavit [29]; Annexure 'J', page 62. 11 Allen Affidavit [29]; Annexure 'J', page 63. 12 Allen Affidavit [29]; Annexure 'J', page 63. 13 Allen Affidavit [30]; Annexure 'K', page 76. -- 6 of 15 -- [2026] WASC 264 WHITBY J Page 7 IND 739 of 2020 - three counts of indecent dealings with a child under 13 years 24 On 11 May 2019, the respondent was at Shay Gap Memorial Park in South Hedland. At the time there were four children between the ages of 6 and 12 years old on the play equipment.14 25 The respondent positioned himself on a bench in the presence of and visible to the children. He removed his penis from his pants and masturbated it with his hand. The children observed the respondent and notified two adult women who contacted police.15 26 Further, on 22 June 2019, the respondent, while on bail for the above offending, was at the Splash and Play Water Park in South Hedland. At the time there were two children aged 9 and 10 years old playing.16 27 The respondent approached the children and sat on the footpath about four metres away, in clear view. He smiled and winked at the children and removed his penis from his pants and masturbated it with his hand for approximately two minutes.17 28 The children got scared and hid from the respondent, moving from his sight. The respondent then left the area. The children informed their parents about what they had seen, who contacted police.18 29 The respondent pleaded guilty in the Perth District Court on 28 July 2020 and sentenced by Troy DCJ to 18 months' imprisonment.19 Other criminal history 30 The respondent has been convicted of a number of relevant other offences, namely: (1) one charge of breached a post sentence supervision order, contrary to s 74L of the Sentence Administration Act 2003 (WA) between May and July 2023;20 14 Allen Affidavit [32]; Annexure 'L', pages 79 - 80. 15 Allen Affidavit [32]; Annexure 'L', page 80. 16 Allen Affidavit [32]; Annexure 'L', page 80. 17 Allen Affidavit [32]; Annexure 'L', page 80. 18 Allen Affidavit [32]; Annexure 'L', page 80. 19 Allen Affidavit [33]; Annexure 'K', pages 82, 94. 20 Allen Affidavit [34] - [36]; Annexures 'O' - 'Q'. -- 7 of 15 -- [2026] WASC 264 WHITBY J Page 8 (2) three charges of failed to comply with reporting obligations, contrary to s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA) between February and April 2021;21 and (3) two charges of indecent acts in public, contrary to s 203(1)(a) of the Criminal Code in February and March 2019.22 PH 1596 of 2023 - breached a post sentence supervision order 31 On 8 April 2023, the respondent was declared a supervised offender and was ordered to serve a post-sentence supervision order (PSSO) commencing 8 April 2023 for a period of 12 months.23 32 As a result of the respondent's offending in IND SHE 46 of 2023 referred to above, the respondent was in breach of his PSSO conditions and charged.24 33 On 1 May 2024, the respondent pleaded guilty and was sentenced by Magistrate Maclean to 2 months' imprisonment.25 PE 17202 - 17204 of 2021 - failed to comply with reporting obligations 34 On 6 April 2021, the respondent attended the Sex Offender Management Squad (SOMS) for a Notice of Reporting Obligations (NORO) as directed by his case officers. During the NORO appointment the respondent disclosed to SOMS staff that:26 (1) he was residing at a new address. He was unable to provide SOMS the date he commenced residing at the new address although confirmed he had stayed at the address for more than seven nights; (2) had an active email account linked to his mobile phone which was not reported to SOMS; and (3) children were also residing at the new address. 21 Allen Affidavit [37] - [39]; Annexures 'R' - 'S'. 22 Allen Affidavit [40] - [44]; Annexures 'T' - 'X'. 23 Allen Affidavit [35]; Annexure 'P', page 98. 24 Allen Affidavit [35]; Annexure 'P', pages 98 - 99. 25 Allen Affidavit [36]; Annexure 'Q', page 101. 26 Allen Affidavit [38]; Annexure 'S', pages 109 - 111. -- 8 of 15 -- [2026] WASC 264 WHITBY J Page 9 35 On 1 June 2021, the respondent pleaded guilty and was sentenced by Magistrate Matthews to a global fine of $600.27 SHE 352 and 589 of 2019 - indecent act in public 36 On 23 February 2019, the respondent was at Kmart in South Hedland. A Kmart employee heard the respondent standing in a nearby aisle talking 'dirty talk' on his mobile phone to a woman. The respondent unzipped his shorts and began rubbing his penis. The respondent quickly turned away when he saw the employee.28 37 On 30 March 2019, the respondent was at Kmart in South Hedland and the respondent was witnessed by a Kmart employee rubbing his penis inside his shorts with his hand for about 30 seconds. Upon realising he was being watched, the respondent left the store.29 38 On 15 April 2019, the respondent was sentenced by Magistrate Ridley to a $1,000 fine on each charge.30 Compliance with court orders 39 In addition to having been convicted of breaching his PSSO and failing to comply with reporting obligations on seven occasions, the respondent was convicted of offences of failing to appear in accordance with his bail undertaking on seven occasions (twice in 2011, then in 2013, 2015, 2016, 2019 and 2020). The respondent has also been convicted of breaching a community-based order in 2012.31 Conduct in custody 40 In a parole assessment conducted in 2025, the respondent was reported to have not incurred any prison charges during his current term. There is one significant adverse incident report on 24 June 2024, where the respondent was verbally abusive to staff which led to the respondent being removed from his employment as a Peer Support Worker.32 27 Allen Affidavit [37]; Annexure 'R', pages 103 - 106. 28 Allen Affidavit [42]; Annexure 'V', page 117. 29 Allen Affidavit [43]; Annexure 'W', page 120. 30 Allen Affidavit [44], Annexure 'X', page 127. 31 Allen Affidavit [8]; Annexure 'A', pages 10 - 17. 32 Allen Affidavit [49]; Annexure 'AB', page 147. -- 9 of 15 -- [2026] WASC 264 WHITBY J Page 10 Personal circumstances and background 41 The respondent is now 33 years of age. He is an Aboriginal man who was born in Port Hedland and spent most of his childhood living between South Hedland and the small Aboriginal community of Warralong. His father died due to physical complications because of alcohol dependence when the respondent was about 11 years old. The respondent reported his mother has substance abuse challenges and that it is possible she consumed alcohol when pregnant with him. He has two brothers and a half-sister.33 The respondent's mother and two brothers have also served prison sentences. 42 The respondent said he was raised by his paternal grandmother and two aunts, as his mother was overwhelmed by her problems. He lived with his relatives until he was 20 years old and denied any victimisation or major trauma.34 43 The respondent went to school until year 11 and has not engaged in any further education.35 The respondent has never been employed and derives his income from Centrelink benefits.36 44 The respondent commenced smoking cannabis and drinking alcohol when he was 14 years old. He says he had used cannabis daily until he went to jail and would consume alcohol as frequently as possible, whenever he could source it.37 45 The respondent commenced using methylamphetamine after he was released from jail shortly before 2021. The respondent had smoked methylamphetamine the night before he offended against the 12-year-old girl at the train station.38 46 The respondent had his first relationship at the age of 19 with a slightly younger female which lasted for about two years. The respondent says that this relationship ended due to violence, jealously and mutual substance use. He had a son with this partner, but the respondent does not have contact with his son. When he was 22, the respondent had another relationship with a similar aged woman, but this also ended due to violence and mutual substance abuse. At 27, the 33 Allen Affidavit [47]; Annexure 'Z', page 133 [2]. 34 Allen Affidavit [47]; Annexure 'Z', page 133 [3]. 35 Allen Affidavit [47]; Annexure 'Z', page 134 [4]. 36 Allen Affidavit [47]; Annexure 'Z', page 134 [5]. 37 Allen Affidavit [47]; Annexure 'Z', page 134 [6]. 38 Allen Affidavit [47]; Annexure 'Z', page 134 [6]. -- 10 of 15 -- [2026] WASC 264 WHITBY J Page 11 respondent had a brief relationship with a woman his age, but this ended due to his incarceration.39 Reports 47 The respondent has undergone a number of evaluations over the years including psychological assessment, an intervention program completion report, a treatment assessment report, a post sentence supervision order report, a presentence report and a parole assessment. I have read each of those reports. It is not necessary to set out all that is contained in those reports. For the purposes of this application, it is sufficient that I refer to the following matters. 48 Ms Sampson's psychological report dated 14 June 2021 was prepared for the purpose of sentencing the respondent in relation to sexual assault of the 12-year-old girl at the train station toilet. Ms Sampson noted that the respondent presented with poor communication skills and he was unable or unwilling to give more than minimal responses to questions.40 49 Ms Sampson is of the opinion that the respondent demonstrates sexual deviance in his persistent sexual offending against children and his offending at the train station is a significant escalation in offending. In Ms Sampson's opinion, if the respondent continues his current lifestyle, he is at a concerning risk of re-offending in a similar way.41 50 The respondent has not been treatment assessed during his current term of imprisonment.42 During his term of imprisonment in 2021 to 2023 he was recommended for inclusion in the Pathways Program and the Intensive Sex Offending Treatment Program,43 although he was unable to participate due to the unavailability of both programs.44 51 Ms Sampson reported that the respondent's treatment responsivity is likely to be limited, due to his poor self-awareness and communication skills.45 52 In a parole assessment report prepared during the respondent's current term of imprisonment dated 6 January 2025, release on parole 39 Allen Affidavit [47]; Annexure 'Z', page 134 [8]. 40 Allen Affidavit [47]; Annexure 'Z', page 136 [13]. 41 Allen Affidavit [47]; Annexure 'Z', page 137 [20]. 42 Allen Affidavit [49]; Annexure 'AB', page 147. 43 Allen Affidavit [48]; Annexure ‘AA’, page 144. 44 Allen Affidavit [49]; Annexure 'AB', page 147. 45 Allen Affidavit [47]; Annexure 'Z', page 137 [18]. -- 11 of 15 -- [2026] WASC 264 WHITBY J Page 12 was not recommended because the respondent had no viable accommodation option and his risk to the community was considered to remain significantly high.46 Respondent's proposal on release 53 The respondent presently has no viable accommodation options in the community upon release.47 The respondent had indicated an intention to live with his mother, although this accommodation was deemed unsuitable due to concerns raised in relation to the address and concerns about his mother being suitable to assist the respondent's successful reintegration into the community. There is also a concern that his mother's house is close to a girls' primary school.48 54 The respondent has recently informed Ms Cumming that he is hopeful of obtaining his own independent accommodation within the community through either Department of Housing and Works or Accordwest (Bunbury), with his preferred location being Bunbury.49 Are there reasonable grounds for believing that the respondent might be a high risk serious offender? 55 The respondent's antecedents and criminal record, together with his poor compliance with court orders, lead me to conclude that the court might find there is a high risk the respondent may commit a serious sexual offence against a female child if not subject to a restriction order and therefore, there is a need to protect members of the community from that risk. Clearly, this type of offending causes profound and long-lasting harm to victims. 56 Having regards to all of the material before the court, I am satisfied there are reasonable grounds for believing 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? 57 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 46 Allen Affidavit [47]; Annexure 'AB', pages 148 - 150. 47 Cumming Affidavit [5]. 48 Allen Affidavit [49]; Annexure 'AB', page 149. 49 Cumming Affidavit [5]. -- 12 of 15 -- [2026] WASC 264 WHITBY J Page 13 serious offending on the part of the respondent pending the final determination of the application. 58 The respondent attributes his sexual offending against female children to substance and alcohol use. However, the respondent has acted on his sexual interest in children even when he is sober and has demonstrated a propensity to offend against female children who are strangers to him while he is intoxicated. The respondent committed a serious sexual offence within a short period after being released from custody. He had only been in the community for approximately six weeks before he offended by sexually assaulting a 12-year-old girl at the train station. The imposition of a PSSO and the fact that he has been declared a reportable sex offender did not deter the respondent from re-offending. This demonstrates the high risk of the respondent committing a serious sexual offence against a child if released into the community. 59 Given the respondent's offending history, his poor history of compliance with court orders, that he has no suitable accommodation options upon release, the high risk he may commit a serious sexual offence against a female child and the potential risk to the community, I am satisfied that there is an unacceptable risk the respondent may reoffend if he is released before the hearing of the application. I am satisfied that this risk cannot be sufficiently minimised by the imposition of supervision conditions and requirements. This is particularly so given the respondent has unmet treatment needs in relation to his substance abuse and offending behaviour. 60 I am cognisant of the fact that it is undesirable to deprive the respondent of his liberty prior to the final determination of the application. That is particularly so if the court ultimately determines that the respondent should not be detained in custody at the final hearing of the application. However, 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 serious reoffending, a risk I have determined to be unacceptable. -- 13 of 15 -- [2026] WASC 264 WHITBY J Page 14 Conclusion 61 I make the following orders: 1. The hearing of the restriction order application pursuant to section 48 of High Risk Serious Offenders Act 2020 (WA) be heard on 12 February 2027. 2. The respondent undergo examinations by two qualified experts, namely one psychiatrist, Dr Gosia Wojnarowska, and one psychologist, Dr Kathryn Riordan, for the purposes of preparing reports as required by sections 46(2)(a) and 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 49 days prior to the hearing of the restriction order application. 5. Any report authored by the Department of Justice, including: (a) any Treatment Options Report be provided to the applicant at least 42 days prior to the date of the hearing of the restriction order application; (b) any Community Supervision Assessment Report 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 section 122 of the Criminal Investigation Act 2006 (WA), 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. -- 14 of 15 -- [2026] WASC 264 WHITBY J Page 15 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 respondent be detained in custody until further order of the court, pursuant to section 46(2)(c)(i) of the High Risk Serious Offenders Act 2020 (WA). 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. CS Associate to the Hon Justice Whitby 30 JUNE 2026 -- 15 of 15 --