ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- BIG by his guardian ad litem the PUBLIC ADVOCATE [2026] WASC 173

[2026] WASC 173 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- BIG by his guardian ad litem the PUBLIC ADVOCATE [2026] WASC 173 CORAM : WHITBY J HEARD : 28 APRIL 2026 DELIVERED : 28 APRIL 2026 FILE NO/S : CLMI 3 of 2026 BETWEEN : ATTORNEY GENERAL FOR WESTERN AUSTRALIA Applicant AND BIG by his guardian ad litem the PUBLIC ADVOCATE Respondent Catchwords: Criminal Law (Mental Impairment) Act 2023 (WA) - Application for extended custody order - Whether an interim custody order should be made - Turns on own facts Legislation: Criminal Law (Mental Impairment) Act 2023 (WA) -- 1 of 14 -- [2026] WASC 173 Page 2 Result: Interim custody order made Category: B Representation: Counsel: Applicant : R Panetta Respondent : J Tiller Solicitors: Applicant : State Solicitor's Office Respondent : In Person Case(s) referred to in decision(s): Nil -- 2 of 14 -- [2026] WASC 173 WHITBY J Page 3 WHITBY J: (This judgment was delivered extemporaneously on 28 April 2026 and has been edited from the transcript.) Introduction 1 On 5 November 2021, the respondent was charged with unlawfully doing grievous bodily harm with intent contrary to s 294(1) of the Criminal Code (WA) (Criminal Code).1 2 On 20 December 2022, the respondent appeared in the District Court in relation to that charge. Miocevich DCJ found the respondent was unfit to stand trial, dismissed the charge, and made a custody order pursuant to s 16(5)(b) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (Repealed Act). His Honour determined the respondent presented an unacceptable risk to the community if released without some expert consideration of his care.2 3 The Repealed Act was replaced by the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act). The CLMI Act came into operation on 1 September 2024. Pursuant to s 254(2) of the CLMI Act, the existing custody order imposed by Miocevich DCJ continues to have effect as if it were a custody order made under the CLMI Act. 4 On 26 November 2024, Gething DCJ (as his Honour was then) set a limiting term of five years and six months for the existing custody order, taken to commence on 28 January 2021. The limiting term will expire on 27 July 2026.3 5 Division 3 of pt 6 of the CLMI Act provides for the Mental Impairment Review Tribunal (Tribunal) to determine places of custody. Section 62(1) of the CLMI Act provides that the Tribunal must not determine a supervised person is to be detained in a prison or detention centre unless it is satisfied there is no available alternative place of custody that would be suitable. On 13 June 2025, the Tribunal determined the place of custody for the respondent was to be Graylands Hospital.4 1 Affidavit of Fleur Marie Allen affirmed on 7 April 2026 [5] - [6]; Annexure 'B' (Allen Affidavit). 2 Allen Affidavit [8] - [9]; Annexure 'C', page 38. 3 Allen Affidavit [12] - [16]; Annexures 'H' - 'J'. 4 Allen Affidavit [25] - [27]; Annexures 'O' - 'P'. -- 3 of 14 -- [2026] WASC 173 WHITBY J Page 4 6 On 19 December 2025, the Tribunal reviewed the respondent's matter and appointed a communication partner pursuant to s 21 of the CLMI Act.5 7 Under s 103(3) of the CLMI Act the Tribunal reviewed the respondent's matter in January 2026 and prepared a report to the Attorney General of Western Australia (applicant) recommending the applicant apply for an extended custody order.6 8 By way of application dated 7 April 2026, the applicant applies for: (1) an extended custody order for the respondent pursuant to s 110(1) of the CLMI Act; (2) the making of an interim custody order under s 107(2) of the CLMI Act pending the determination of the extended custody order application; and (3) orders pursuant to s 106(1) of the CLMI Act that the respondent be examined and reports prepared. 9 The respondent is currently a 'supervised person' as defined in s 9(1) of the CLMI Act, as he is subject to a custody order. It is not possible for the applicant to apply for an interim community supervision order in relation to a supervised person who is subject to a custody order. 10 The applicant relies on the affidavit of Fleur Marie Allen affirmed on 7 April 2026 (Allen Affidavit) in support of the application for an interim custody order. Applications for extended orders under the CLMI Act 11 Section 105 of the CLMI Act provides that the applicant may apply for an extended custody order. 5 Allen Affidavit [31], [34]; Annexures 'S' and 'U'. 6 Allen Affidavit [35] - [38]; Annexures 'V' - 'W'. -- 4 of 14 -- [2026] WASC 173 WHITBY J Page 5 12 Section 106 of the CLMI Act provides for the preparation of reports as follows: 106. Report to be prepared for application (1) If an application is made for an extended order in respect of a supervised person, the court - (a) must order that the person be examined by a psychiatrist, psychologist or other appropriate expert and that a report be prepared and submitted to the court; and (b) may make any related orders it considers appropriate. (2) The Minister must arrange for the examination and report. (3) A report under subsection (2) must set out - (a) in relation to an application for an extended custody order - the expert's assessment of the likelihood that the supervised person will commit a serious offence if not subject to an extended custody order; and (b) the expert's assessment of the supervised person's rehabilitation, retraining or resocialisation requirements; and (c) the reasons for the expert's assessment. 13 Section 107 of the CLMI Act provides for the making of interim custody orders. That section provides: 107. Interim custody orders (1) If, after an application for an extended custody order is made but before the application is determined, the current custody order will or is likely to expire, the Minister may apply to the Supreme Court for an interim custody order in respect of the supervised person. (2) If the court is satisfied that, to ensure the adequate protection of the community, it is desirable that the supervised person continue to be subject to a custody order while the application for an extended custody order is yet to be determined, it may make an interim custody order in respect of the person, which has effect until the application for the extended order is determined. -- 5 of 14 -- [2026] WASC 173 WHITBY J Page 6 14 Section 107(4) of the CLMI Act provides that if an interim custody order is made, pt 6 of the CLMI Act applies as if the interim custody order were a custody order. 15 The making of a final custody order is provided for in s 110 of the CLMI Act. 16 A person performing a function under the CLMI Act must have regard to the principles in s 7(2) of the CLMI Act. The objects and principles are set out in s 7(1) of the CLMI Act. Section 8 provides that the paramount consideration of a person when performing a function under the CLMI Act is the protection of the community. The background of the application 17 The background to the application is set out in the Allen Affidavit and its attachments, as well as the applicant's outline of submissions in support of the current application for an interim custody order dated 7 April 2026. 18 The respondent is currently 52 years old. He is an Ethiopian born Oromo man.7 19 The respondent had an arranged marriage in his thirties and he and his wife had one son. He decided to flee Ethiopia after a musical band that he played in was identified as promoting anti-government sentiment. The respondent immigrated to Australia as a refugee in 2016.8 Prior to this, the respondent was also exposed to violence in Kenya as a victim of a militant group. 20 The respondent was not in contact with his son or ex-wife after fleeing Ethiopia. However, social work staff at Frankland Centre and the Red Cross managed to locate the respondent's now adult son, and they are now in regular phone contact.9 21 The circumstances surrounding his offending are as follows. On 28 January 2021 at about 2.00 pm, the respondent and the victim, who knew each other, were at the State Library of Western Australia, sitting next to each other in the Discovery Lounge area. The respondent sat next to the victim while the victim was using one of the computer terminals. They spoke to each other for about 15 minutes. 7 Allen Affidavit [40]; Annexure 'Y', page 156. 8 Allen Affidavit [40]; Annexure 'Y', page 158 [3]. 9 Allen Affidavit [40]; Annexure 'Y', pages 158 - 159 [3]. -- 6 of 14 -- [2026] WASC 173 WHITBY J Page 7 The respondent then stood up and spoke again to the victim, after which the victim took off his vest and the respondent tried it on. The victim remained seated and continued to use the computer. The respondent then reached into his clothing and pulled out a 30 cm kitchen knife and stabbed the victim to his right abdomen. The respondent ran out of the library and was arrested shortly after in the Murray Street Mall. The victim was taken to hospital where he had surgery. He suffered a penetrating stab wound to his abdomen and his iliac artery was severed. 22 The offending occurred in the context of the respondent's acute delusional thinking that he was in a relationship with his real estate agent. This was coupled with his perception that the victim was a rival for that person's affections. 23 The offending behaviour was extremely serious as it occurred in a public place, involved the use of weapon, and the victim was vulnerable and sustained serious life-threatening injuries and psychological harm. 24 The respondent has no previous criminal history in Western Australia and has reported no criminal behaviour outside of this offending. 25 The respondent has been diagnosed with treatment resistant paranoid schizophrenia, intellectual disability and poor English comprehension. His paranoid schizophrenia directly contributed to his offending.10 The respondent's most recent psychiatric report is that of Dr Tobias Richards dated 15 January 2026. Dr Richards states that due to the respondent's residual symptoms of psychosis there remains a low-grade paranoia towards the victim of his offending. The respondent has not stated any desire to harm or threaten the victim, rather a fear for his own safety.11 26 Dr Richards is of the opinion that the respondent's schizophrenia and intellectual disability affect his ability to problem solve and to manage his stress and anxiety. In Dr Richard's opinion, the respondent's insight into his condition is superficial and he does not understand or appreciate the nature of his diagnosis and his need for ongoing treatment. Although the respondent has a history of non-compliance with his medications, he now passively engages with treatment and readily accepts his medication.12 10 Allen Affidavit [40]; Annexure 'AB', page 175. 11 Allen Affidavit [40]; Annexure 'AB', pages 175 - 176. 12 Allen Affidavit [40]; Annexure 'A8', page 196. -- 7 of 14 -- [2026] WASC 173 WHITBY J Page 8 27 The respondent requires an Oromo translator for all reviews and will require language support in the community. 28 On 8 January 2026, the respondent was approved for National Disability Insurance Scheme (NDIS) funding for a 12-month period in the amount of $368,889. This includes supported independent living at a 1:3 ratio, 21 hours per week of community participation, 30 hours of positive behaviour support and specialised support coordination. Implementation of these supports may take up to six months.13 29 The respondent has an appointed guardian, the Public Advocate,14 and an appointed administrator, the Public Trustee.15 Communication partner 30 Counsel for the respondent has indicated that the respondent's existing communication partner from the Department of Justice's Communication Partner Program, appointed on the recommendation of the Tribunal pursuant to s 21 of the CLMI Act, should be appointed by the court for the purposes of the extended custody hearing. 31 Under the relevant provisions of the CLMI Act, the court may have regard to the extent to which reasonably available 'support measures' will enable a supervised person to give evidence or otherwise communicate with the court.16 Accordingly, the court may order a supervised person be provided with any reasonably available support measure. 32 A 'communication partner', defined in s 21 of the CLMI Act, is an example of a support measure that may facilitate participation of a supervised person in proceedings before the court. The function of a communication partner is to communicate any questions put to the supervised person and to communicate any response from the supervised person to the court.17 33 I make orders pursuant to s 21(1) of the CLMI Act that Ms Claudia Rodriguez be appointed as the communication partner to the respondent for the purposes of an extended custody hearing. 13 Allen Affidavit [37] - [38], [51]; Annexures 'W', 'AG', pages 134, 187 - 201. 14 Allen Affidavit [53]; Annexure 'AJ', pages 218 - 219. 15 Allen Affidavit [52]; Annexure 'AH', page 216. 16 CLMI Act s 21(1). 17 CLMI Act s 21(2). -- 8 of 14 -- [2026] WASC 173 WHITBY J Page 9 Whether an order under s 106 CLMI Act should be made 34 The applicant seeks orders that the respondent be examined by a psychiatrist for the purpose of preparing a report under s 106(1) of the CLMI Act. Section 106(1)(a) of the CLMI Act provides I must order the respondent be examined by a psychiatrist, psychologist or other appropriate expert. 35 I am therefore required to order that the respondent be examined by a psychiatrist, and I will make that order. The applicant proposes the respondent undergo examination by one qualified expert psychiatrist, namely Dr Edward Petch, for the purposes of preparing a report as required by s 106(1) of the CLMI Act, having regard to the requirements of s 106(3). 36 Pursuant to s 106(1)(b) of the CLMI Act, Adult Community Corrections, Corrective Services, Department of Justice is to produce a 'Case Manager's Report' including a 'Proposed Management Plan', which is to be provided to the applicant at least 35 days prior to the date of the hearing of the extended custody order application. I will also make that order. Whether an interim custody order should be made 37 Turning to whether an interim custody order should be made, s 107(2) of the CLMI Act provides that I may make an interim custody order if I am satisfied that, to ensure the adequate protection of the community, it is desirable the supervised person continue to be subject to a custody order while the application for an extended custody order is yet to be determined. 38 If no interim custody order is made, the respondent will be released unconditionally after the current custody order expires on 27 July 2026. 39 Dr Richards is of the opinion that the respondent:18 (1) has a moderate risk of violence if his custody order was revoked; (2) has a history of non-compliance to oral medications; 18 Allen Affidavit [40]; Annexure 'AB', pages 174 - 176. -- 9 of 14 -- [2026] WASC 173 WHITBY J Page 10 (3) has communication challenges and will require some form of language support upon his transition to the community; and (4) does not understand or appreciate the nature of his diagnosis. 40 In his extended order assessment report dated 27 November 2025, Mr Shaun Warnock notes:19 (a) the respondent has been treatment compliant at the Frankland Centre, but lacks insight into his mental illness and his need for treatment; (b) if the respondent is released into the community, he would need supports in place to ensure he remains treatment compliant; and (c) so long as he is treatment compliant, the respondent does not pose a risk of committing a serious offence, however that risk would be present if he ceased taking his medication while in the community. 41 In her report dated 29 May 2025, Dr Katinka Morton outlines that, in order to minimise the respondent's risk to the community, the respondent requires:20 (a) 24/7 supported accommodation via the NDIS; (b) 1:1 support in the community; (c) ongoing guardianship and administration; (d) engagement with Community Mental Health Services; (e) long term medication supervision due to his history of non-compliance with treatment and foreshadowed unreliability in remembering medication and appointments; and (f) the ability to communicate with his clinical team and NDIS team. 19 Allen Affidavit [40]; Annexure 'Z', pages 165 - 170. 20 Allen Affidavit [40]; Annexure 'X', pages 137 - 154. -- 10 of 14 -- [2026] WASC 173 WHITBY J Page 11 42 The review report of Ms Tayla Evans dated 8 January 2026 indicates that:21 (1) the NDIS services have not yet commenced and may take up to six months to be implemented; and (2) the respondent requires supported independent accommodation in the community which he has not currently secured due to availability rather than an unwillingness to engage. His transition to a supported independent living facility will not be in place, trialled and finalised before the respondent's ECO expires. 43 Since July 2024, the respondent has been granted leave of absence orders. Those orders have gradually increased the period of time that the respondent is permitted to leave Graylands Hospital. Pursuant to those leave of absence orders:22 (a) the respondent is permitted to have: (i) escorted leave of absence to access the grounds of Graylands Hospital for up to six hours per day, subject to the approval of the treating psychiatrist; (ii) unescorted leave of absence to access the grounds of Graylands Hospital for up to two hours per day, subject to the approval of the treating psychiatrist; and (iii) escorted leave of absence in the community for up to 20 hours per week subject to the approval of the treating psychiatrist. (b) the respondent is not permitted to have direct or indirect contact with his victim; and (c) the respondent is required to comply with all instructions from the treating psychiatrist and/or medical practitioner and/or mental health team, including taking appropriate medications as directed. 21 Allen Affidavit [40]; Annexure 'AA', pages 171 - 173. 22 Allen Affidavit [32]; Annexure 'S', page 118. -- 11 of 14 -- [2026] WASC 173 WHITBY J Page 12 44 There have been no incidents while the respondent has been accessing his leave of absence orders.23 45 However, for the reasons outlined in Ms Evans' review report of 8 January 2026, the respondent's transition and progression into the community is in the initial stages and is unlikely to be finalised prior to the expiry of the existing custody order. 46 Based on the expert evidence, I am satisfied that there is an unacceptable risk that the respondent will commit a serious offence if not subject to an interim custody order because: (1) given his use of a knife during the offending, an inherently dangerous weapon, there are several serious offences that he may commit, including manslaughter and grievous bodily harm. These are offences that may be life threatening or cause serious injury to the victims of that offending; and (2) the respondent's lack of insight into his psychotic illness and his past non-compliance with treatment mean he is at risk of committing a serious offence if untreated in the community. 47 I find in these circumstances it is desirable that the respondent continue to be subject to an interim custody order until the application for an extended custody order is determined to ensure adequate protection of the community. 48 I make orders in terms of the applicant's minute of proposed orders that the respondent be subject to an interim custody order until the application for the extended custody order is determined. 49 For the reasons above, I make orders in the following terms: 1. The name of the respondent be amended to 'BIG by his guardian ad litem the Public Advocate'. 2. Pursuant to s 107(2) of the Criminal Law (Mental Impairment) Act 2023 (WA), the respondent be subject to an interim custody order until the application for the extended custody order is determined. 23 Allen Affidavit [38]; Annexure 'W', page 129. -- 12 of 14 -- [2026] WASC 173 WHITBY J Page 13 3. The hearing of the application for an extended custody order pursuant to s 105(1) of the Criminal Law (Mental Impairment) Act 2023 (WA) be heard on a date to be fixed. 4. The respondent undergo examinations by one qualified expert, namely Dr Edward Petch, psychiatrist, for the purposes of preparing a report as required by s 106(1) of the Criminal Law (Mental Impairment) Act 2023 (WA), having regard to the requirements of s 106(3), that is to be used on the hearing of the extended custody order application. 5. The expert named in order 4 is not to include in their report 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. 6. The report of the expert be provided to the applicant at least 42 days prior to the hearing of the extended custody order application. 7. Pursuant to s 106(1)(b) of the Criminal Law (Mental Impairment) Act 2023 (WA) Adult Community Corrections, Corrective Services, Department of Justice, is to produce a 'Case Manager's Report' including a 'Proposed Management Plan', which is to be provided to the applicant at least 35 days prior to the date of the hearing of the restriction order application. 8. The expert named in order 4 is to liaise with Adult Community Corrections, Corrective Services, Department of Justice, as to the development of the 'Proposed Management Plan' referred to in order 7. 9. At the hearing of the extended custody order application, the report provided by the expert named in order 4 shall stand as the evidence in chief of the expert and no further evidence in chief may be adduced without the leave of the court. 10. Pursuant to s 21(1) of the Criminal Law (Mental Impairment) Act 2023, Ms Claudia Rodriguez be appointed partner to the respondent. -- 13 of 14 -- [2026] WASC 173 WHITBY J Page 14 11. Access to documents filed in these proceedings, that are categorised as containing restricted information, is limited to: (a) the parties and their legal representatives; and (b) judges and registrars of the court and their staff; and (c) any court officer who is required to deal with the documents for the purposes of these proceedings; and (d) any person required by the Criminal Law (Mental Impairment) Act 2023 (WA) and/or the Criminal Law (Mental Impairment) Regulations 2024 (WA); and (e) any other person ordered by the presiding judge. 12. 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. SF Associate to the Hon Justice Whitby 5 MAY 2026 -- 14 of 14 --