THE STATE OF WESTERN AUSTRALIA -v- GRAHAM [2026] WASC 230

[2026] WASC 230 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : THE STATE OF WESTERN AUSTRALIA -v- GRAHAM [No 2] [2026] WASC 230 CORAM : MCGRATH J HEARD : 18 MAY 2026 DELIVERED : 18 MAY 2026 PUBLISHED : 8 JUNE 2026 FILE NO/S : SO 16 of 2025 BETWEEN : THE STATE OF WESTERN AUSTRALIA Applicant AND CAMERON JOHN GRAHAM Respondent Catchwords: Criminal law - High risk serious offender - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to a restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by a supervision order - Turns on own facts Legislation: High Risk Serious Offenders Act 2020 (WA) -- 1 of 25 -- [2026] WASC 230 Page 2 Result: Restriction order made Detention order made Category: B Representation: Counsel: Applicant : Mr J L C Rivalland Respondent : Mr D J McKenzie Solicitors: Applicant : State Solicitor's Office (WA) Respondent : David McKenzie Case(s) referred to in decision(s): Director of Public Prosecutions (WA) v Decke [2009] WASC 312 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 Director of Public Prosecutions (WA) v Hart [2019] WASC 4 Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 Garlett v The State of Western Australia [2022] HCA 30 [73]; (2022) CLR 1 Italiano v The State of Western Australia [2009] WASCA 116 The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 The State of Western Australia v Garlett [2021] WASC 387 The State of Western Australia v Graham [2025] WASC 506 The State of Western Australia v Latimer [2006] WASC 235 The State of Western Australia v ZSJ [2020] WASC 330 -- 2 of 25 -- [2026] WASC 230 MCGRATH J Page 3 MCGRATH J: Introduction 1 On 4 November 2025, the State of Western Australia applied for a restriction order in respect of the respondent under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The State contends that the respondent is a high risk serious offender and that it is necessary that he be detained in custody for an indefinite term for control, care or treatment. 2 On 28 November 2025, the preliminary hearing was heard before Quinlan CJ who determined that there were reasonable grounds for believing the Court might, in accordance with s 7 of the HRSO Act, find that the respondent is a high risk serious offender. Quinlan CJ ordered that the respondent be subject to an interim detention order pending the determination of the application.1 The respondent has remained in custody since the making of the interim detention order. 3 At the hearing of the application, the State submitted that the respondent should be subject to a restriction order under the HRSO Act, and that a supervision order would not manage the risk of the respondent reoffending. Therefore, the respondent should be subject to a detention order. Counsel for the respondent submitted that it was open to the Court to find that the respondent should be subject to a restriction order. 4 On the day of the hearing, upon receiving the evidence, I stated that my determination was that the respondent was a high risk serious offender and that the risk of reoffending is unable to be managed in the community, at this time, if released on a supervision order. Accordingly, I ordered that the respondent be detained under the HRSO Act. I did so for the following reasons. Legal principles High Risk Serious Offenders Act 2020 (WA) 5 The State may make an application for a restriction order where a person is a serious offender under custodial sentence pursuant to s 35 of the HRSO Act. The term 'serious offender under custodial sentence' is defined in s 3: 1 The State of Western Australia v Graham [2025] WASC 506. -- 3 of 25 -- [2026] WASC 230 MCGRATH J Page 4 serious offender under custodial sentence means a person - (a) who is under a custodial sentence for a serious offence; or (b) who - (i) is under a custodial sentence for an offence or offences other than a serious offence; and (ii) has been under that sentence at all times since being discharged from a custodial sentence for a serious offence; 6 At the time this application was made, the respondent was serving a term of imprisonment for a 'serious offence' as defined by s 3 and s 5 of the HRSO Act. 7 A 'serious offence' is defined by s 5 of the HRSO Act, which relevantly provides: 5. Term used: serious offence (1) An offence is a serious offence if - (a) it is specified in Schedule 1 Division 1; or (b) it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division. (2) An offence is a serious offence if - (a) it was an offence under a written law that has been repealed; and (b) the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1). (3) An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2). 8 The respondent has committed offences that come within this category. The respondent has also committed a number of offences that are not characterised as serious offences. Offences of other types may be relevant in assessing the risk of serious offences being committed in -- 4 of 25 -- [2026] WASC 230 MCGRATH J Page 5 the future because other offences may be connected to behaviour which has the real potential to lead to serious offending.2 9 Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if 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 offender to ensure the adequate protection of the community against an unacceptable risk that the offender will commit a serious offence'. The State has the onus of satisfying the Court that a person is a high risk serious offender. This is a greater standard than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt but is otherwise incapable of further definition.3 This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50% yet still be unacceptable. 10 If the Court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the HRSO Act, it necessarily follows that the person concerned is a high risk serious offender.4 However, the Court must identify what it is that constitutes the risk and what makes it unacceptable, and then consider whether or not those factors have been proved to the requisite standard, that being to a high degree of probability, furnished by acceptable and cogent evidence.5 11 In The State of Western Australia v Garlett,6 Corboy J identified that there is arguably a material difference between s 7(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), read with s 17, and s 7(1) of the HRSO Act, read with s 48.7 His Honour observed that s 7(1) of the HRSO Act requires that the Court be satisfied that 'it is necessary to make a restriction order', stating:8 It is arguable that the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable. 2 Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10]. 3 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (GTR) [28] (Steytler P & Buss JA). 4 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [66], [68] (Wheeler JA); GTR [21] (Steytler P & Buss JA). 5 GTR [34] (Steytler P & Buss JA). 6 The State of Western Australia v Garlett [2021] WASC 387 (Garlett). 7 Garlett [133]. 8 Garlett [135]. -- 5 of 25 -- [2026] WASC 230 MCGRATH J Page 6 12 Corboy J recognised in The State of Western Australia v Garlett that the current form of s 7(1) of the HRSO Act requires that the need to ensure adequate protection of the community form part of the Court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order), and should not merely be the paramount consideration in deciding what form of order should be made in respect to an offender who has been found to be a high risk serious offender (the second step).9 13 In The State of Western Australia v D'Rozario [No 3],10 Quinlan CJ agreed with Corboy J's construction of s 7(1) of the HRSO Act. 14 I also agree with Corboy J's construction of the HRSO Act. Therefore, the Court is required to make two evaluative judgments under s 7(1) of the HRSO Act, being first, whether the risk of future offending is unacceptable and, second, whether it is necessary to make a restriction order to adequately protect the community. 15 The Court could find that it is not necessary to make a restriction order to adequately protect the community despite the Court finding that the risk of future offending was unacceptable. As Quinlan CJ observed, it would be a rare situation that the Court would find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has been found that the risk of future offending was unacceptable.11 Quinlan CJ gave the example where other external restraints on an offender (such as a post-sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').12 16 A finding that there is an unacceptable risk involves a balancing exercise requiring the Court:13 [T]o have regard to, among other things, the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for the respondent if an order is made (either detention, without having 9 Garlett [139]. 10 The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 (D'Rozario [No 3]). 11 D'Rozario [No 3] [21]. 12 D'Rozario [No 3] [21]. 13 Italiano v The State of Western Australia [2009] WASCA 116 [46]. -- 6 of 25 -- [2026] WASC 230 MCGRATH J Page 7 committed an unpunished offence, or being required to undergo what might be an onerous supervision order). 17 An unacceptable risk in the context of s 7(1) of the HRSO Act is therefore a risk which is unacceptable having regard to a variety of considerations. These may include the likelihood of the person offending, the type of serious offence which the person is likely to commit (if that can be predicted), and the consequences of finding that an unacceptable risk exists. 18 I am required to consider whether, having regard to the likelihood of the respondent offending and the nature of the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding the fact that the respondent has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.14 19 In Garlett v The State of Western Australia,15 the High Court stated: 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 harm said to be in prospect. Further, whether a restriction order is 'necessary' to protect against that risk requires recognition of what would be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community. 20 Section 7(3) of the HRSO Act sets out a number of matters that the Court must have regard to in considering whether a person is a serious danger to the community. Those matters are: (3) In considering whether it is satisfied as required by subsection (1), the court must have regard to the following - (a) any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section; (b) any other medical, psychiatric, psychological, or other assessment relating to the offender; 14 Williams [63] (Wheeler JA). 15 Garlett v The State of Western Australia [2022] HCA 30 [73]; (2022) CLR 1 (Kiefel CJ, Keane & Steward JJ). -- 7 of 25 -- [2026] WASC 230 MCGRATH J Page 8 (c) information indicating whether or not the offender has a propensity to commit serious offences in the future; (d) whether or not there is any pattern of offending behaviour by the offender; (e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme; (f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender; (g) the offender's antecedents and criminal record; (h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence; (i) the need to protect members of the community from that risk; (j) any other relevant matter. 21 I note that s 7(3)(j) of the HRSO Act provides that the list of matters to be considered by the Court is not limited by those otherwise delineated in s 7(3). 22 While s 7(3)(g) of the HRSO Act provides that the Court must have regard to the offender's criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious offence in the future. The relevance of a prior criminal record would depend on the nature of the offences committed, the number of offences, and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct. 23 If the Court determines that an offender is a high risk serious offender, then the Court is required to make a restriction order.16 24 The term 'restriction order' is defined in s 3 of the HRSO Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in s 26 16 HRSO Act s 48. -- 8 of 25 -- [2026] WASC 230 MCGRATH J Page 9 and s 27 respectively, in similar terms to those that were used in the DSO Act.17 25 Section 26 of the HRSO Act provides: (1) In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. (2) A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court. 26 Section 27 of the HRSO Act provides: (1) In this Act 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, in accordance with section 30. (2) A supervision order has effect in accordance with its terms - (a) from a date stated in the order; and (b) for a period stated in the order. (3) The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible. 27 In making a determination between those two alternatives, the paramount consideration is the need to ensure the adequate protection of the community.18 28 However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore, the protection of the community will always favour such an order.19 29 Given the more onerous nature of a continuing detention order, the scheme of the HRSO Act requires that the Court do no more than is 17 DSO Act s 17. 18 HRSO Act s 48(2). 19 Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14] (Decke). -- 9 of 25 -- [2026] WASC 230 MCGRATH J Page 10 necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection of the community.20 30 Section 29 of the HRSO Act provides that the Court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The onus of proof is on the respondent pursuant to s 29(2) of the HRSO Act. 31 The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious offence.21 32 The term 'standard condition', in relation to a supervision order, is defined by s 3 of the HRSO Act as meaning a condition that under s 30(2) must be included in the order. Section 30(2) of the HRSO Act provides seven conditions that must be included in any court ordered supervision order. Therefore, the respondent must satisfy the Court that he will substantially comply with those standard conditions before the Court can make a supervision order. The seven standard conditions set out in s 30(2) of the HRSO Act require that the person: (a) report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and (b) report to, and receive visits from, a community corrections officer as directed by the court; and (c) notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and (d) be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and (e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and (f) not commit a serious offence during the period of the order; and 20 The State of Western Australia v Latimer [2006] WASC 235 [24]; Decke [15]. 21 Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]. -- 10 of 25 -- [2026] WASC 230 MCGRATH J Page 11 (g) be subject to electronic monitoring under section 31. Evidence 33 The State tendered a Book of Materials in three volumes that comprised the relevant material pursuant to s 84(5) of the HRSO Act.22 The State relied upon the testimony of four witnesses: namely, Dr Peter Wynn Owen, Consultant Forensic Psychiatrist; Ms Julie Hasson, Consultant Forensic Psychologist; Ms Emma Cashmore, HRSO Planning Manager; and Ms Mechele Carvell, Senior Community Corrections Officer at the Department of Justice and author of the Post Sentence Supervision Order Report dated 1 October 2025 and the Community Supervision Assessment Report dated 4 May 2026. 34 The respondent did not give evidence nor adduce any evidence at the hearing. 35 I now turn to the matters relevant to determining whether or not the respondent is a high risk serious offender pursuant to s 7 of the HRSO Act. I will do so by considering the evidence in the context of the HRSO Act. Factors under s 7 of the HRSO Act History of offending and antecedents - s 7(3)(c), s 7(3)(d) and s (7)(g) 36 In deciding whether a person is a high risk serious offender, the Court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act. 37 The criminal record and antecedents are relevant in and of themselves but are also relevant as to whether the person has a propensity to commit serious offences in the future,23 and as to whether there is any pattern of offending behaviour.24 Antecedents 38 The respondent is now 36 years of age, having been born on 30 January 1991. The respondent lived predominantly with his grandparents growing up, his father having left when he was 3 years of 22 Exhibit 1, Book of Materials. 23 HRSO Act s 7(3)(c). 24 HRSO Act s 7(3)(d). -- 11 of 25 -- [2026] WASC 230 MCGRATH J Page 12 age.25 The respondent's mother visited intermittently from Perth and at times the respondent spent time with his mother in Perth. The respondent reported that at 13 years of age he commenced living with his uncle in the Pilbara.26 39 The respondent reported a childhood marked by the experience of and exposure to trauma including multiple episodes of physical abuse, sexual abuse, abandonment and neglect. Ms Hasson stated that the respondent's parents, extended family members and guardians failed to provide or establish the necessities of life including stable attachment and trust.27 40 The respondent commenced consuming alcohol at 5 to 6 years of age and became a regular drinker from 14 years of age. The respondent regularly consumed cannabis from his early teens and then commenced regularly consuming methamphetamine between 14 and 17 years of age. The level of consumption of methamphetamine escalated as an adult upon release from prison. 41 The respondent's formal education was affected by his moving residence during his childhood.28 The respondent reported that he did not enjoy school for the reason he believed he was 'singled out for physical punishment' by some teachers and being the subject of racial abuse.29 The respondent has participated in education and vocational training whilst in custody including a cabinet making traineeship and units in electrotechnology.30 42 The respondent has not been employed since he was in his late teenage years when he did undertake some farm labour employment. Ms Hasson observed that not surprisingly the respondent has a very limited formal work history given that since 15 years of age he has spent most of his life incarcerated.31 Relevant criminal history 43 The respondent has committed a significant number of offences in Western Australia. The respondent's offending history is outlined in his 25 Exhibit 1, Book of Materials, page 757. 26 Exhibit 1, Book of Materials, page 778. 27 Exhibit 1, Book of Materials, page 777. 28 Exhibit 1, Book of Materials, page 757. 29 Exhibit 1, Book of Materials, page 757. 30 Exhibit 1, Book of Materials, pages 778 - 779. 31 Exhibit 1, Book of Materials, page 778. -- 12 of 25 -- [2026] WASC 230 MCGRATH J Page 13 criminal record which forms part of the material relied upon by the State.32 44 The offending history is summarised, in part, in a chronology of offending which was received in evidence.33 I will outline the index offending and then turn to the respondent's other convictions. Index offences 45 On 15 January 2013, the respondent committed the index offences, being one count of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code (WA); five counts of sexual penetration without consent, contrary to s 325 of the Criminal Code; one count of attempted sexual penetration without consent, contrary to s 325 of the Criminal Code; one count of robbery, contrary to s 392(e) of the Criminal Code; and one count of sexual coercion, contrary to s 392(d) of the Criminal Code. 46 The charges involved the respondent entering a residence, via an upstairs window, that was occupied by a 36-year-old female (the victim) and two children. The respondent went into the upstairs bedroom where the victim was sleeping, turned on the light, and confronted the victim. The respondent demanded money from the victim, who handed him $50 in assorted notes from her purse. The respondent demanded more money and threatened to murder the victim's children who were asleep downstairs. 47 After unsuccessfully rummaging through the bedroom in search of more money, the respondent told the victim to remove her clothes and threatened to hurt her if she did not comply. The respondent then performed numerous non-consensual sexual acts on the victim, including penetrating her vagina, forcing his penis in her mouth, and attempting to penetrate her anus with his penis. The respondent also forced the victim to perform oral sex on him and masturbate him. The respondent then masturbated his penis and ejaculated into the victim's mouth, before telling her to swallow the contents and wash it down with water so as to remove his semen. The victim, in fear of her safety and that of her children, complied with the respondent's demands. 48 The respondent then forced the victim to drive to a nearby shopping centre, where she was forced to withdraw $400 from her bank account. 32 Exhibit 1, Book of Materials, Criminal Record of the Respondent, pages 1 - 12. 33 Exhibit 1, Book of Materials, Chronology of Offending, pages 13 - 16. -- 13 of 25 -- [2026] WASC 230 MCGRATH J Page 14 49 On 5 November 2013, the respondent was sentenced to a total effective term of 11 years' immediate imprisonment. Other serious offences 50 The respondent has committed other serious offences as defined in s 5(6) of the HRSO Act. 51 On 8 June 2009, the respondent committed one count of aggravated robbery, contrary to s 392(d) of the Criminal Code. The offending involved the respondent approaching and wrestling with a 65-year-old man (the victim) who was walking along a footpath carrying a money bag. The respondent obtained the money bag from the victim which he later dropped while being pursued by two witnesses. The respondent was sentenced to a term of imprisonment of 18 months conditionally suspended for 18 months. 52 On 21 September 2008, the respondent committed two counts of robbery contrary to s 392(e) of the Criminal Code. The offences were committed by the respondent as a juvenile. The offending involved the respondent calling out to a man (the victim) asking for cigarettes. The victim replied that he did not have cigarettes, and the respondent subsequently asked him to phone a taxi. The victim refused. The respondent then struck the victim with a fist to the side of the head. The respondent then demanded the victim hand over his wallet and blocked the victim's path. The victim, fearing for his safety, handed over some notes to the respondent who then fled the area. The respondent was sentenced to 8 months' detention. 53 On 3 January 2014, the respondent committed one count of aggravated robbery contrary to s 392(d) of the Criminal Code, one count of escaping lawful custody contrary to s 146 of the Criminal Code and one count of stealing a motor vehicle contrary to s 378 of the Criminal Code. The offending involved the respondent, after escaping lawful custody at the Geraldton Airport, approaching a female worker at a car rental company and grabbing her shoulders and searching her person for keys to a vehicle she was washing, before locating the keys nearby and leaving the area in the vehicle. 54 On 30 April 2014, the respondent was sentenced to 2 years' immediate imprisonment to be served cumulatively with his existing term of imprisonment. -- 14 of 25 -- [2026] WASC 230 MCGRATH J Page 15 Other offences 55 The respondent has committed other offences not deemed as serious under the HRSO Act. 56 On 15 January 2013, within the same factual circumstances giving rise to the respondent's index offences, the respondent also committed one count of indecent assault contrary to s 323 of the Criminal Code; one count of common assault contrary to s 313(1)(b) of the Criminal Code; one count of entering with intent, contrary to s 401(1)(a) of the Criminal Code; and one count of making threats to kill, contrary to s 338(a) of the Criminal Code. 57 On 23 December 2011, the respondent committed one count of aggravated burglary and commit, contrary to s 401(2)(a) of the Criminal Code and one count of stealing a motor vehicle, contrary to s 378A of the Criminal Code. The respondent was sentenced to 1 year immediate imprisonment. 58 On 8 February 2010, the respondent committed one count of burglary and commit, contrary to s 401(2)(c) of the Criminal Code and one count of breaching a conditional suspended imprisonment order. The respondent was sentenced to 18 months' immediate imprisonment. 59 The respondent also has an extensive and diverse history of juvenile offending, recording his first conviction in 2005 at 14 years of age, and with offences ranging from property offences, motor vehicle thefts, escaping from custody and aggravated robbery. Propensity to commit serious offences in the future - s 7(3)(c) & whether or not there is any pattern of offending behaviour - s 7(3)(d) 60 The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR, Murray AJA stated that:34 [Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder. 34 GTR [178] (Murray AJA). -- 15 of 25 -- [2026] WASC 230 MCGRATH J Page 16 61 The questions of whether the respondent has a propensity to commit a serious offence in the future and whether there is a pattern to his offending are informed by his antecedents; in particular, his past offending, and by the assessments that have been made by the experts who have assessed his risk of offending.35 62 The State submitted that the respondent's criminal history and the assessment of the experts demonstrates a propensity for serious violent offending, with likelihood for an escalation in the future. Further, the pattern of offending has involved the respondent being intoxicated and then inflicting violence on members of the community to steal in order to buy more drugs. Dr Wynn Owen expressed the opinion that the index serious sexual offending did not appear to be premeditated or related to sexual deviance, rather the offending was opportunistic whilst undertaking a burglary and appeared to be a demonstration of power and control over a vulnerable female victim and his inability to manage sexual urges heightened by methamphetamine.36 I accept the State submission that the respondent has a propensity for serious violent offending. Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(e) and s 7(3)(f) 63 I must also consider if the respondent has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs and whether or not the participation has had a positive effect. 64 The respondent has undertaken a number of courses including the Violent Offender Treatment Program in 2015, and the Pathways Program in 2018. 65 With regard to the Violent Offender Treatment Program, the respondent's identified treatment needs included substance misuse, emotional regulation/mental health, problem solving/impulsivity, antisocial thinking patterns, and interpersonal skills including negative peer associations. 66 The respondent's engagement in the Violent Offender Treatment Program fluctuated, with periods of positive engagement and apparent understanding and other periods of irritation and hostility, the hostility 35 The State of Western Australia v ZSJ [2020] WASC 330 [116]. 36 Exhibit 1, Book of Materials, page 771. -- 16 of 25 -- [2026] WASC 230 MCGRATH J Page 17 being directed mainly toward the female facilitator. On completion of the program, all of the respondent's identified treatment needs were deemed still outstanding, or at most partially addressed or understood.37 67 With regard to the Pathways Program in 2018, the respondent's treatment needs were identified as being substance use, negative peer associations, and emotional management. The respondent's engagement with the Pathways Program was reported to fluctuate, at times becoming easily distracted and distracting others. Some limited gains were made, though it was noted that the respondent appeared at times 'challenged and struggling to identify changing antisocial thinking and behaviours'. Further programmatic intervention and counselling were recommended to address the respondent's antisocial cognitions, emotional regulation, positive coping strategies and problem solving.38 68 The respondent has not participated in the Intensive Sex Offender Treatment Program (ISOTP) due to his status as a 'High Security Escort' prisoner; his refusal to participate; and the current lack of availability of the program at the prison.39 Psychiatric reports prepared under s 74 and extent to which the respondent cooperated with examination - s 7(3)(a) - Dr Wynn Owen 69 Dr Wynn Owen, Consultant Forensic Psychiatrist, produced a report dated 28 April 202640 and gave evidence at the hearing.41 70 Dr Wynn Owen conducted his interview with the respondent via video link over two sessions on 9 and 10 April 2026. 71 Dr Wynn Owen undertook an assessment of the respondent's risk of reoffending utilising the Static-99R, the Hare Psychopathy Checklist - Revised (PCL-R), the Violence Risking Appraisal Guide (VRAG-R), and the Historical, Clinical and Risk Management 20 - Version 3 (HCR-20). 72 In respect to the Static-99R assessment, the respondent was in the Level IVb ('Well Above Average Risk') range and was considered to be a High Risk High Needs offender due to his range of outstanding 37 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, page 758. 38 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, page 758. 39 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, page 759. 40 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, pages 754 - 774. 41 ts 25 - 41 (18/05/2026). -- 17 of 25 -- [2026] WASC 230 MCGRATH J Page 18 treatment needs. The respondent had a five-year sexual recidivism rate of 17.6%, compared to a rate of 25.7% for others in his sample range.42 73 In respect to the PCL-R assessment, the respondent's score did not show prototypical psychopathy, but his combined facet 3 and 4 (social deviance) score fit with traits associated with an antisocial personality disorder.43 74 In respect to the VRAG-R, the respondent's score was in the highest of nine risk categories. Offenders with the same score, on release, had a 76% likelihood of committing a new violent offence within five years and an 87% likelihood within 12 years.44 75 Dr Wynn Owen was unable to identify a pattern in the respondent's sexual offending, given he has only committed one serious sexual offence. However, utilising the HCR-20 assessment, Dr Wynn Owen concluded that the risk factor 'history of problems with violence' is present, along with a history of problems with other antisocial behaviour, relationships, employment, substance use, personality disorder, traumatic experiences, violent attitudes, and treatment or supervision response, all of which bear high relevance to his overall risk of violence, save for employment and relationships which only bear a moderate relevance.45 76 Dr Wynn Owen expressed the opinion that the respondent's violence risk is underpinned by antisocial attitudes with a history of using violence to achieve specific goals notwithstanding the emotional or physical effects on the victim. Characteristics of aggressiveness, impulsivity, lack of consequential thinking and lack of empathy will be heightened by the use of alcohol or methamphetamine.46 77 Dr Wynn Owen stated that the most likely future serious offence is a serious violent offence. In respect to the risk of sexual offending, Dr Wynn Owen stated that a future sexual offence will likely be similar to the index offence. The respondent will enter the property of a person unknown to him, having recently used methamphetamine, and then engage in an opportune sexual assault against a lone adult female. The offending may involve threats and physical coercion with multiple sexual penetration offences. Dr Wynn Owen stated that there was a 42 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, page 763. 43 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, page 764. 44 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, page 764. 45 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, pages 765 - 766. 46 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, page 767. -- 18 of 25 -- [2026] WASC 230 MCGRATH J Page 19 moderate to high likelihood of a future serious sexual offence should he continue to enter homes unlawfully.47 78 Dr Wynn Owen stated in summary that the respondent, who has spent almost his entire adult life in custody, has always returned to substance use on release from prison. On the basis of clinical assessment and the risk assessment tools, Dr Wynn Owen stated that the respondent presents a high risk of committing a serious offence in the future if not subject to a restriction order.48 79 Dr Wynn Owen concluded that the respondent has outstanding treatment needs in relation to violence and substance abuse noting that he has made minimal gains in programs completed in 2015 and 2018. Dr Wynn Owen recommended that the respondent participate in the ISOTP. Dr Wynn Owen stated that in respect to the release of the respondent into the community on a supervision order, he was very concerned that given the array of outstanding treatment needs in respect to substance use, violent offending and sexual offending, even strict conditions would not be sufficient to protect the community.49 The benefit of undertaking the ISOTP would be that it would assist in understanding the necessary supervision conditions should he be released into the community. Dr Wynn Owen stated that it would be necessary for the respondent to engage and be motivated and make the necessary gains.50 80 Dr Wynn Owen stated that the respondent would struggle in the community without additional support and without adequate preparation prior to release.51 Psychological report prepared under s 74 and extent to which the respondent cooperated with examination - s 7(3)(a) - Ms Julie Hasson 81 Ms Hasson, Consultant Forensic Psychologist, produced a report dated 30 March 202652 and gave evidence at the hearing.53 82 Ms Hasson undertook an assessment of the respondent's risk of reoffending utilising the Static-99R, RSVP-V2, HCR-20:v3 and PCL-R. 47 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, page 773. 48 Exhibit 1, Book of Materials, Report of Dr Wynn Owen, page 773. 49 ts 39 (18/05/2026). 50 ts 39 (18/05/2026). 51 ts 43 (18/05/2026). 52 Exhibit 1, Book of Materials, Report of Ms Hasson dated 30 March 2026, pages 775 - 774. 53 ts 41 - 51 (18/05/2026). -- 19 of 25 -- [2026] WASC 230 MCGRATH J Page 20 83 Ms Hasson assessed the respondent as being a well above average risk of being charged or convicted of another sexual offence compared to other sex offenders using the Static-99R. In routine samples of sexual offenders, the average five-year sexual recidivism rate is between 5% and 15%. Ms Hasson expressed the opinion that the respondent was at a high risk of reoffending. 84 Ms Hasson utilised the RSVP-V2 which is a set of structured professional guidelines identifying 23 individual risk factors from five domains as well as any additional case-specific factors that assist in identifying the likely scenarios of future sexual violence and recommended strategies for managing that risk. Ms Hasson identified numerous risk factors including physical and psychological coercion in sexual violence, problems with self-awareness, problems with stress or coping, problems arising from childhood abuse, substance abuse, problems with intimate relationships, problems with non-intimate relationships, problems with employment, problems with antisocial attitudes, and problems with his manageability in the community. 85 Ms Hasson stated that in respect to future offending, the most likely future offence will be a repeat of the current index offence with the respondent entering a property and committing a sexual offence upon a female impulsively and opportunistically. Ms Hasson also postulated that there may be an escalation where the respondent would commit a sexual offence against female strangers in public spaces during the commission of a robbery. 86 Ms Hasson used the HCR-20:v3 to evaluate the respondent's risk for violent recidivism. Using this instrument, Ms Hasson stated the most likely scenario of future offending in a violent manner involves acts of motivated aggression arising from a robbery to support alcohol and drug abuse. 87 Ms Hasson stated that the respondent would benefit from participating in a group-based sex offending treatment program to address his outstanding treatment needs in respect to sexual offending. Further, he would also benefit from engaging in individual psychological counselling to address his adverse life experiences, institutionalisation, and issues related to his personality and functioning.54 54 Exhibit 1, Book of Materials, Report of Ms Hasson, page 808. -- 20 of 25 -- [2026] WASC 230 MCGRATH J Page 21 88 During her testimony, Ms Hasson stated that the respondent would struggle in the community without additional supports and without adequate preparation for release.55 Ms Hasson stated the respondent, if released in the future, would need a highly structured environment to reduce the likelihood and risk of reoffending. Ms Hasson stated that at this stage the respondent does not have a relapse prevention plan or good understanding or awareness of his sexual offending for him to self-manage potential future risk. Ms Hasson stated the overriding issue is that the respondent should complete the ISOTP and that is only available whilst in custody.56 89 Ms Hasson assessed the respondent as being in the low-moderate range but not meeting the clinical construct of psychopathy on the PCL-R.57 90 Ms Hasson expressed the opinion that if the respondent was not subject to a restriction order, he would present as a high risk of committing a serious offence (as defined in the HRSO Act) as he has outstanding treatment needs, both of a criminogenic and clinical nature.58 Section 7(3)(b) medical or other assessments relating to the respondent - Treatment Options Report 91 Ms Cashmore, HRSO Planning Manager, produced a report dated 29 April 202659 and gave evidence at the hearing.60 92 Ms Cashmore confirmed the respondent does not have an active referral with the Forensic Psychological Intervention Team and would need to be re-referred if made subject to a restriction order. This requirement is problematic if the respondent was to be released on a supervision order, given that there are no clinicians or counsellors currently in place.61 93 Ms Cashmore stated that the respondent's high security rating in prison is a barrier to his engagement with the ISOTP. It would be 55 ts 43 (18/05/2026). 56 ts 48 (18/05/2026). 57 Exhibit 1, Book of Materials, page 806. 58 Exhibit 1, Book of Materials, Report of Ms Hasson, page 810. 59 Exhibit 1, Book of Materials, Report of Ms Cashmore, pages 750 - 753. 60 ts 52 - 61 (18/05/2026). 61 Exhibit 1, Book of Materials, HRSO Treatment Options Report of Ms Cashmore, page 753. -- 21 of 25 -- [2026] WASC 230 MCGRATH J Page 22 necessary for the respondent to move to another prison and be placed in a protection unit in order to undertake the ISOTP.62 Other reports or assessments relating to the respondent - s 7(3)(b) - Ms Carvell Community Supervision Assessment Report 94 Ms Carvell, Senior Community Corrections Officer, produced a report dated 4 May 202663 and gave evidence at the hearing.64 95 Ms Carvell confirms that despite multiple attempts to contact the respondent's mother, the Community Offender Monitoring Unit were unable to assess the suitability of her residence. Therefore, an in-person accommodation assessment has been unable to be conducted but an assessment may be made on the basis of previous assessment and police knowledge of the proposed residence.65 The property was assessed on 26 November 2025 as part of the respondent's parole application process and was deemed unsuitable. The main concerns with the property were the respondent's mother's lack of awareness of the respondent's offending and the presence of antisocial persons at the address.66 96 The alternative address of the respondent's sister was also unable to be assessed due to difficulties in consulting with the sister. The police identified concerns with the property due to problematic alcohol consumption and family and domestic violence incidents. Further, the ability to electronically monitor the respondent would be limited beyond 5 km of the townsite and the ability for police to attend to issues in a timely manner would be reduced due to the police station not being manned 24 hours a day. 97 Ms Carvell concludes that, in agreement with the experts, the respondent would benefit from a further period of detention via a detention order under the HRSO Act to further explore accommodation and rehabilitation options available to him. 98 Therefore, at this time, appropriate accommodation has not been secured for the respondent. The accommodation being considered does 62 Exhibit 1, Book of Materials, HRSO Treatment Options Report of Ms Cashmore, page 753. 63 Exhibit 1, Book of Materials, HRSO Community Supervision Assessment Report of Ms Carvell, pages 812 - 824. 64 ts 18 - 25 (18/05/2026). 65 ts 21 (18/05/202). 66 Exhibit 1, Book of Materials, HRSO Community Supervision Assessment Report of Ms Carvell, page 815. -- 22 of 25 -- [2026] WASC 230 MCGRATH J Page 23 not provide the necessary stability to ensure that the respondent does not reoffend if released. The risk that a serious offence will be committed if a restriction order is not made - s7(3)(h) 99 Dr Wynn Owen and Ms Hasson expressed the opinion that the respondent is at a high risk of committing a serious offence if he is not subject to a restriction order. 100 I am satisfied that the evidence supports the finding that the respondent must be subject to a restriction order under the HRSO Act. The respondent has outstanding treatment needs that have not been addressed. The respondent poses a risk of committing serious acts of violence and further, serious sexual offences against adult females. The need to protect members of the community from that risk - s 7(3)(i) 101 I find that there is a need to protect the community from the risk that the respondent will commit a serious offence if not subject to a restriction order. Assessment 102 After considering the evidence in respect to the factors under s 7(3) of the HRSO Act, and finding that evidence to be acceptable and cogent, I am satisfied to a high degree of probability that the respondent currently presents an unacceptable risk that he will commit a serious offence under the HRSO Act. 103 Accordingly, I am satisfied there is a high degree of likelihood that the respondent will commit a serious violent offence in the future and that that risk is an unacceptable risk. 104 In respect to the evaluative judgment as to whether it is necessary to make the restriction order, I am of the opinion that it is so. I make that finding based on the experts' opinion, in respect to the respondent's risk of reoffending and committing a serious offence being at a high risk or above average risk. The likely offending will involve acts of serious violence. Further, there is the risk of the respondent engaging in opportunistic sexual violence against a random adult female after unlawfully entering a residence. The offending will occur in circumstances of intoxication from illicit substances such as methamphetamine. -- 23 of 25 -- [2026] WASC 230 MCGRATH J Page 24 105 Having determined that a restriction order should be made, it is necessary for me to determine whether a detention order or supervision order should be made. 106 The Court must choose the order that is the least invasive to the respondent's liberty, while ensuring an adequate degree of protection of the community. 107 In considering whether a supervision order will adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent, his care and treatment needs, and the adequate protection of victims of offences committed by the respondent.67 108 I must also be satisfied, on the balance of probabilities, that the respondent has established that he will substantially comply with the standard conditions of the order under s 30 of the HRSO Act. 109 I am satisfied that the respondent has outstanding treatment needs which were identified by Dr Wynn Owen and Ms Hasson. The principal outstanding treatment need is to undertake the ISOTP. Both Dr Wynn Owen and Ms Hasson stated that it was necessary that the respondent engage with and successfully complete the ISOTP. 110 The risk to the community is unable to be managed by a supervision order under the HRSO Act. 111 I am not satisfied that the respondent will substantially comply with the standard conditions of the supervision order under the HRSO Act. Conclusion 112 For the above reasons, I have determined that it is necessary to make a restriction order in relation to the respondent and that the respondent be subject to a detention order. 67 HRSO Act s 30(5). -- 24 of 25 -- [2026] WASC 230 MCGRATH J Page 25 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CEM Associate to the Hon Justice McGrath 8 JUNE 2026 -- 25 of 25 --