THE STATE OF WESTERN AUSTRALIA -v- PHILLIPS [2026] WADC 61

[2026] WADC 61 [2026] WADC 61 (JC) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL LOCATION : KALGOORLIE CITATION : THE STATE OF WESTERN AUSTRALIA -v- PHILLIPS [2026] WADC 61 CORAM : HERRON DCJ HEARD : 21 MAY, 29 MAY & 24 JUNE 2026 DELIVERED : 3 JULY 2026 FILE NO/S : IND KAL 61 of 2025 BETWEEN : THE STATE OF WESTERN AUSTRALIA AND ANGEL PHILLIPS Catchwords: Special proceedings - Section 41 Criminal Law (Mental Impairment) Act 2013 (WA) - Custody order s 46 Criminal Law (Mental Impairment) Act 2013 (WA) Legislation: Criminal Law (Mental Impairment) Act 2013 (WA) Result: Custody order made -- 1 of 21 -- [2026] WADC 61 [2026] WADC 61 (JC) Page 2 Representation: Counsel: Applicant : Ms F M Clare (21 May & 29 May 2026) Mr N P Fawkes (24 June 2026) Accused : Mr A I W Watson Non-party : Non-party : Non-party : Solicitors: Applicant : State Director of Public Prosecutions Accused : N R Barber Legal Non-party : Ms S Parker - Adult Community Corrections Non-party : Ms Melville - Mental Health Advocacy Service - via video link Non-party : Ms F Stewart - Mental Health Advocacy Service Case(s) referred to in decision(s): The State of Western Australia v Chokolich [2024] WASC 346 -- 2 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 3 HERRON DCJ: Introduction 1 By indictment dated 3 October 2025, the accused, Angel Phillips (Mr Phillips) is charged with three counts of indecently dealing with KH a child under the age of 13 years. Count 1 alleges the offending occurred on an unknown date between 17 July 2024 and 7 February 2025 at Kalgoorlie and counts 2 and 3 alleges two separate incidents of indecent dealing against KH when she was a child under the age of 13 years occurred on or about 7 February 2025 at Kalgoorlie. 2 On 26 February 2026 Wager CJDC, pursuant to s 29(1) of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act), having regard to the criteria set out in s 26 of the CLMI Act, determined Mr Phillips was not fit to stand trial and that pursuant to s 35 of the CLMI Act Mr Phillips will not become fit to stand trial within six months.1 3 The court also made an order pursuant to s 37(3) of the CLMI Act that a special proceeding take place under subdivision three. 4 The special proceeding was heard before me on 21 May 2026. Special proceeding - section 41 Criminal Law (Mental Impairment) Act 2023 (WA) 5 The purpose of a special proceeding is for the court to decide the charge against the accused on the evidence available.2 6 In deciding the charge, the court may find that the accused:3 41. Nature of special proceedings … (2) In deciding the charge the court may find that the accused - (a) is not guilty (other than as described in paragraph (b)); or (b) is not guilty on account of mental impairment under The Criminal Code section 27; or 1 ts 21 - ts 26. 2 Section 41(1) CLMI Act. 3 Section 41(2)(a), (b) and (c) CLMI Act. -- 3 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 4 (c) committed the offence charged or another offence which, on the charge, the accused might be found to have committed. … 7 By s 41(3): (3) To find that the accused committed an offence, the court must be satisfied beyond a reasonable doubt. 8 By s 42: 42. Conduct of special proceedings (1) A special proceeding may be conducted in the manner that the court considers appropriate in the circumstances of the case, including without holding a hearing. (2) However, the court must, to the extent practicable, endeavour to conduct the proceeding as if it were an ordinary criminal proceeding. (3) In determining the manner in which a special proceeding is to be conducted, the court must confer with the parties to the proceeding. (4) Without limiting subsection (1), for the purposes of a special proceeding - (a) the accused is taken to plead not guilty; and (b) the accused may raise any defence that the accused could raise at a trial; and (c) the rules of evidence apply, subject to any modifications determined by the court; and (d) the accused may give evidence. (5) Subsection (4)(d) does not imply that the court must hold a hearing. 9 Relevantly, by s 43(3) of the CLMI Act if the court finds the accused committed the offence charged or another offence which, on the charge, the accused might be found to have committed: -- 4 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 5 (a) the court must not enter a judgment of conviction; and … (c) in relation to an indictable offence other than an offence that was to be dealt with summarily - the finding does not prevent the accused from being charged with and tried for an offence which, on the charge, the accused might have been found to have committed. 10 If a finding is made that the accused committed the offence charged, or another offence which, on the charge, the accused may be found to have committed, the court must make an order under pt 5 in respect of the accused.4 The special proceeding hearing 11 At the special proceeding hearing I gave leave for Ms Fiona Stewart, an advocate with the Mental Health Advocacy Service, to appear. Regrettably, she was unable to appear at the hearing in person, I was informed because of budgetary restrictions, and I gave her leave to appear via telephone link from Albany. The functions and powers of mental health advocates are explained in pt 8 of the CLMI Act. 12 The prosecution brief was tendered.5 13 The child witness interview of KH conducted on 10 February 2025 was played and was tendered.6 14 KH, whose date of birth is ** **** 2018, was aged 6 when she was interviewed. Although she was very fidgety and distractable in a setting which no doubt was very unfamiliar for her, I am satisfied she gave a truthful and reliable account of her interaction with Mr Phillips which forms the basis of the three charges against him in the indictment. 15 It is not in issue Mr Phillips is KH's uncle. KH's father and Mr Phillips are half-brothers.7 4 Section 43(5) CLMI Act. 5 Exhibit 1, pages 1 - 146. 6 Exhibit 2. 7 Prosecution Brief (PB) dated 7 October 2025, police statement, page 47. -- 5 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 6 16 KH's father came from New Zealand to Kalgoorlie during 2022 to work in the mining industry. His wife, KH's mother, together with his other children arrived from New Zealand shortly afterwards and they lived together as a family. KH's father later arranged for Mr Phillips to move from New Zealand and Mr Phillips moved in with the family.8 17 KH with her mother and siblings moved to Kalgoorlie in April 2023. Mr Phillips moved to Kalgoorlie and moved in with KH and her family in May 2024.9 They lived at *** **** Street, Kalgoorlie. 18 KH turned 6 years old on ** **** 2024. 19 In her child witness interview KH said Mr Phillips had been making her touch a private part of the body that nobody's allowed to look at and had done it more than one time. She said that when he did it she screamed out for her mother and father but no one came.10 She said Mr Phillips made her 'touch his balls' by grabbing her hand and forcing her to do it by keeping hold of her hand until she screamed. She kicked him but 'he just kept on doing it'.11 It happened over his clothing.12 After she kicked him Mr Phillips smacked her.13 It happened on his bed in his room.14 20 She confirmed that the person who made her touch him was her uncle Angel Phillips.15 Everybody was in the house when the incident happened.16 21 Based on KH's evidence in her child witness interview I am satisfied beyond reasonable doubt that when she and Mr Phillips were together in his bedroom on his bed the accused made her touch his testicles and penis or genital area over his clothing by grabbing her hand and placing it on his genital area. I am satisfied KH screamed and kicked Mr Phillips to try and get him away following which he smacked her. I am satisfied she tried to yell out to her parents, but they did not hear her because they were in another part of the house. Her mother was in the kitchen making dinner and her father was likely asleep in his bedroom.17 8 PB, police statement, pages 47 - 48. 9 PB, KH's mother's police statement, page 35. 10 PB, child witness interview ts 8. 11 PB, child witness interview ts 9. 12 PB, child witness interview ts 10. 13 PB, child witness interview ts 10. 14 PB, child witness interview ts 12. 15 PB, child witness interview ts 13. 16 PB, child witness interview ts 14. 17 PB, child witness interview ts 14. -- 6 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 7 22 KH gave evidence about a second incident which occurred in the afternoon of the day her father told Mr Phillips to leave the house. It was 7 February 2025. 23 KH said her parents went to a drinking party and while they were out Mr Phillips made her touch his private part on purpose.18 After she and her siblings had a bath they were in her uncle Angel's room watching a video when he made her touch the part she was not allowed to look at.19 He grabbed her hand and made her touch his penis over his undies which were red. She then snatched his phone off him.20 Mr Phillips then touched her vagina over her clothes. She was wearing a dress.21 She smacked and kicked him and hit him to stop him touching her vagina.22 24 In his police statement dated 11 February 2025, KH's father corroborated KH's evidence that there was an occasion when he and his wife went to a work party on 7 February 2025. They left the house at about 5.40 pm and arrived home at about 3.00 am. They left the children with Mr Phillips.23 25 The next morning his wife informed him of what KH had told her and after asking his wife to take the children away he confronted Mr Phillips during which there was a physical confrontation and he asked Mr Phillips to leave the house, which he did.24 26 In her police statement dated 11 February 2025, KH's mother said that about a month or two before Christmas she noticed that KH was more irritable and had anger outbursts. She did not think much about it at the time. Also, although it was very hot over summer, KH was wearing multiple layers of clothing which she put down to them having a large air conditioner in the loungeroom. When she told KH to take off all of the clothing KH said that she was cold. KH also started to hide her body from people and made sure that no one was around when she was getting dressed. When she went back to work in January 2025, KH asked to come with her which KH's mother thought was a bit strange as Mr Phillips was regularly at home. 18 PB, child witness interview ts 15. 19 PB, child witness interview ts 16 - ts 17. 20 PB, child witness interview ts 18 - ts 19. 21 PB, child witness interview ts 21, ts 25. 22 PB, child witness interview ts 25. 23 PB, KH's father's police statement, page 50. 24 PB, KH's father's police statement, pages 52 - 53. -- 7 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 8 27 On 5 February 2025 KH's mother asked Mr Phillips to bathe the three children so she could prepare dinner. The three children bathed together while Mr Phillips sat on a chair in the bathroom. The bathroom door was open. 28 On the night of 6 February 2025 KH's mother went into Mr Phillips' bedroom at about 9.00 pm and saw KH and her younger sister watching TV while sitting on the bed. Mr Phillips and KH were sitting next to each other closest to the wall. Mr Phillips was laying on his back and KH was on her side next to him. Mr Phillips was only wearing red underwear. When she told her daughters that it was bedtime she thought she saw KH pull her hand out of Mr Phillips' underwear. She saw KH touch Mr Phillips' underwear as if she was adjusting it.25 29 On Friday, 7 February 2025 KH's mother and father went to a house party with his work friends. They left the children to be looked after by Mr Phillips. 30 KH's mother and father returned home in the early morning of Saturday. Mr Phillips told her that the girls were sleeping in his room and that he had bathed the girls and given them noodles to eat.26 31 Later that night while KH's mother was laying on her bed, KH jumped onto her, and she hugged KH. KH asked her to stop doing that because 'that's what uncle does when he makes me touch his private parts'. When her mother asked what she meant by private parts KH said, 'where he wees'.27 32 Shortly afterwards KH's mother told her husband what KH had said and then later took the children to a friend's house that night because her husband wanted to speak to Mr Phillips about what had happened. When they returned home later that night Mr Phillips had left the home.28 33 I accept KH's evidence that the incidents the subject of counts 2 and 3 on the indictment occurred. Her evidence is credible and truthful. The surrounding circumstances about her parents going to a party that night and leaving her and her siblings in the care of Mr Phillips was corroborated by the statements of each of her parents. Her evidence 25 PB, KH's mother's police statement, pages 39 - 41. 26 PB, KH's mother's police statement, pages 42 - 43. 27 PB, KH's mother's police statement, page 43. 28 PB, KH's mother's police statement, page 44. -- 8 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 9 that the three children had a bath together that night was also corroborated by Mr Phillips' admissions to KH's mother later that night. The circumstances in which Mr Phillips left the house the next day were also corroborated by the police statements of KH's parents. 34 I find that on the evening of 7 February 2025 KH, and her siblings were left in the sole care of Mr Phillips while KH's parents went to a work party at a nearby house where they remained for a number of hours, returning in the early hours of the next morning. During the night KH and her siblings had a bath together while supervised by Mr Phillips. 35 They later watched television while lying on the accused's bed. KH was wearing a dress. Mr Phillips lay on the bed with them while wearing only red underwear. 36 He lay next to KH and grabbed KH's hand and made her touch his penis over his underwear. He said to her 'you like that', and KH told him to stop. 37 Mr Phillips then started using his phone which KH took from him. Mr Phillips then touched KH's vagina with his hand on the outside of her clothing and said 'I have to do that' if she wanted his phone. KH then smacked and kicked the accused to get him to stop which he did. 38 Later that night the three children and Mr Phillips fell asleep on his bed. 39 I accept KH's mother's evidence that in the early night of the next day KH told her mother that Mr Phillips made her touch his private parts where he wees which is evidence of a recent complaint. That is, it is evidence of consistency of conduct relevant to KH's credibility as a witness to the happening of the events. It is not evidence of the truth of what she said to her mother of what Mr Phillips had done to her. -- 9 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 10 40 KH's evidence is further corroborated by, on 10 February 2025, the police arresting Mr Phillips on 10 February 2025 and during a search of the house he was then living at in Kambalda West, finding red underwear in a bag belonging to Mr Phillips. 41 Mr Phillips participated in an electronic record of interview with police on the evening of 10 February 2025 during which he denied the offending. However, he admitted that on Friday KH's father asked him to watch the children, that he had cooked dinner for the children and ran a bath for them, and that the children went into his bedroom and watched television. He admitted KH and her sister fell asleep in his bedroom. 42 He also admitted wearing red underwear at the time.29 43 I also accept the evidence of KH's mother about changes in KH's behaviour she witnessed, including wearing extra clothing in warm weather, which in my view is consistent with the allegations KH later reported to police and to her parents. 44 The accused's admissions in the electronic record of interview, while also denying the offending, are consistent with and further support the allegations made by KH. 45 Accordingly, I am satisfied beyond reasonable doubt Mr Phillips committed each of the three offences alleged in the counts on the indictment. Therefore, by s 43(5) of the CLMI Act I am required to make an order under pt 5 in respect of Mr Phillips. Part 5 Criminal Law (Mental Impairment) Act 2023 (WA) - the type of orders to be made 46 By s 46 of the CLMI Act: 46. Orders that may be made (1) If a court must make an order under this Part in respect of an accused, it must - (a) make a custody order; or (b) make a community supervision order; or (c) order that the person be released unconditionally. 29 PB, Electronic record of interview, transcript 10 February 2025, pages 23, 65 - 146. -- 10 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 11 (2) Subject to subsection (3), a custody order must be made in respect of a person if the offence that the person is found to have committed was a serious offence, unless - (a) the court is satisfied on the balance of probabilities that any risk that the person appears to present to the safety of the community can be adequately managed under a community supervision order; or (b) the person was, at the time of the commission of the offence, a child and the court is satisfied that there are exceptional circumstances. (3) A custody order must not be made in respect of a person unless the statutory penalty for the offence is or includes imprisonment. (4) An order that the person be released unconditionally cannot be made in respect of a person if the offence that the person is found to have committed was a serious offence unless the person was, at the time of the commission of the offence, a child and the court is satisfied that there are exceptional circumstances. Custody order - section 46 47 As the offences committed by Mr Phillips are sexual offences against a child under 13, they are serious offences as defined in s 9.30 Therefore, by s 46(2)(a) it follows I must make a custody order in respect of Mr Phillips unless, relevantly, I am satisfied on the balance of probabilities that any risk that Mr Phillips appears to present to the safety of the community can be adequately managed under a community supervision order. 48 Section 47(1) of the CLMI Act, sets out the considerations the court must have regard to when considering the making of a custody order or community supervision order. The relevant considerations are as follows: (a) the protection of the community; (b) the nature of the offence and the circumstances of its commission; (c) the person's character, antecedents, age and health; (d) the nature of the person's mental impairment; 30 Section 9 CLMI Act definition of 'serious offence' means an offence listed in sch 1. Item 16 of div 1(3) of sch 1 lists a sexual offence against a child under 13 pursuant to s 320 of the Criminal Code. -- 11 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 12 (e) the relationship between the mental impairment and the offending conduct; (f) the degree of risk that the person appears to present to themself or the safety of the community because of their mental impairment; and (g) the extent to which adequate resources are available for the treatment, care and support of the person in the community; … 49 Once a custody order is made, pursuant to s 50(2) of the CLMI Act the court must set a limiting term for the order, being the best estimate of the term of imprisonment that the court would, in all the circumstances, have imposed if - (a) the court were sentencing the person for the offence; and (b) any mental impairment of the person were not taken into account. 50 By s 50(3) and (4): (3) For the purposes of subsection (2), the court must assume that - (a) the person had pleaded guilty to the charge at the earliest opportunity; and (b) there is no other option but to impose a term of imprisonment or term of detention. (4) The limiting term commences on the day on which the order is made unless the court, after taking into account any time that the person has already spent in custody in relation to the offence, orders that the term be taken to have commenced on an earlier day. 51 Pursuant to s 50(1) of the CLMI Act the expression, 'term of imprisonment' means: term as defined in the Sentencing Act 1995 s 85(1). 52 Section 85(1) of the Sentencing Act 1995 states: term means a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or life imprisonment, but does not include - -- 12 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 13 (a) detention under a sentence imposed under s 279(5)(b) of The Criminal Code; or (b) indefinite imprisonment. Legal principles 53 The relevant principles governing the correct statutory construction of s 50 which are relevant in this case have been explained in The State of Western Australia v Chokolich31 as follows: (a) the court is required to determine the 'best estimate' of the term of imprisonment that a court 'would, in all the circumstances have imposed', based on certain assumptions. This task is necessarily a hypothetical exercise;32 (b) the use of the word 'would' signifies that the court is required to 'stand in the shoes' of a hypothetical sentencing court and apply the relevant principles contained in the Sentencing Act 1995 (WA), including in s 6 of that Act, in light of ordinary sentencing principles;33 (c) one of the assumptions imposed by s 50 of the CLMI Act is that in setting the limiting term, the court must not take into account the accused's mental impairment. That assumption (or counter-factual) may be relevant to the circumstances of the offence, mitigatory factors and potentially facts that might have resulted in a longer term of imprisonment;34 and (d) the other assumptions imposed by s 50 of the CLMI Act are that the court must assume that the accused has pleaded guilty to the charges, including all necessary elements of the offence, at the earliest opportunity.35 The court must also assume there is no other option but to impose a term of imprisonment. 54 When a court is performing a function under the CLMI Act, including determining a limiting term, the paramount consideration is the protection of the community.36 31 The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich). 32 Chokolich [60]. 33 Chokolich [61] - [62]. 34 Chokolich [66]. 35 Chokolich [72]. 36 Section 8 CLMI Act. -- 13 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 14 55 The court must also have regard to the principles in s 7(2) of the CLMI Act. The principles in s 7(2) of the CLMI Act which are relevant to these proceedings are: (a) persons with mental impairment should be subject to the least possible restriction on their freedom consistent with the protection of the community;37 (b) persons with mental impairment in the justice system should be provided with the best possible treatment, care and support;38 (c) persons with mental impairment in the justice system should not be subject to outcomes under the CLMI Act that restrict their freedom more severely than if they had been convicted of the offence that they have been found to have, or are alleged to have, committed;39 and (d) that victims of offences committed by persons with mental impairment should have the opportunity to be acknowledged and heard.40 56 The effect of the above provisions and principles is that the court is to estimate the term of imprisonment the accused would have received for the offence charged, without having regard to Mr Phillips' mental impairment, and assuming he pleaded guilty at the earliest opportunity. 57 The 'best estimate of sentence' exercise involves the court having regard to the principles in s 6 of the Sentencing Act, as it would if it were sentencing Mr Phillips. 58 Therefore, the limiting term must be commensurate with the seriousness of the offence. The seriousness of the offence is to be determined by taking into account (subject to the requirement in s 50(2)(b) of the CLMI Act not to take into account any mental impairment): (a) the statutory penalty for the offence; (b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; 37 Section 7(2)(a) CLMI Act. 38 Section 7(2)(c) CLMI Act. 39 Section 7(2)(e) CLMI Act. 40 Section 7(2)(k) CLMI Act. -- 14 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 15 (c) aggravating factors; and (d) mitigating factors. Findings 59 Between 17 July 2024 and 7 February 2025 (date range of incidents), Mr Phillips was aged 23 years. He has no known criminal record and has now spent more than 15 months in custody. 60 The accused has a significant intellectual impairment the extent of which is outlined in the Fitness to Stand Trial report of a clinical neuropsychologist, Dr Jonson Moyle, dated 13 January 2026. 61 The report details that the accused has a complex medical history. He is hearing impaired and declines to wear hearing aids. He speaks with an impediment due to a congenital birth defect. Apart from the family of the complainant, he has no family help in Australia but had agency help with supported living prior to his incarceration. He scored low to extremely low with testing for his core intellectual skills (putting him between the bottom 1% - 3% of the population). His attention and mental tracking skills were in the bottom 3% of the population and his verbal skills in less than the bottom 1% of the population. 62 The neuropsychologist, Dr Moyle, concluded that the accused's results were consistent with people diagnosed with an intellectual disability. 63 Under the heading 'Opinion and Recommendations' Dr Moyle stated:41 15. Providing Mr Phillips with information and instruction regarding the trial process is unlikely to be of assistance, such as to make him fit to stand trial. From current results, he lacks the cognitive ability to reliably hold this information in mind and utilise it to inform the instructions he may give his legal representative, and to anticipate the impact of those instructions. He is also unable to read information that may be given to him to support his understanding of a trial. 41 Dr Moyle's Neuropsychological Report - Fitness to Stand Trial dated 13 January 2026, Opinion and Recommendations, pars 15 - 17. -- 15 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 16 16. Current results suggest that Mr Phillips is likely to struggle to comply with orders imposed upon him by the Court without external support. He will likely need external supports and supervision to ensure that he follows any such orders. 17. The current results suggest an elevated level of vulnerability in Mr Phillips. I hold concerns that he is at risk of manipulation from others, either deliberately or otherwise, and may struggle to accurately appreciate the consequences of some actions. 64 Dr Moyle also suggests it might be appropriate to release information contained in his report to government agencies such as the National Disability Insurance Scheme (NDIS) and a consideration should be given as to whether guardianship and administration orders should be made for Mr Phillips. 65 I will return to these matters later. Relationship between the mental impairment and the offending conduct 66 There is no evidence of this. Degree of risk to himself or the safety of the community because of their mental impairment 67 The charged conduct is relatively serious, although still being towards the bottom end of the scale of seriousness for offending of this type. It is also predatory and persistent. 68 It is not a single offence and was not committed on a single occasion. 69 It does appear opportunistic in that there was easy access to the child, but it was also brazen and persistent. 70 Mr Phillips is KH's uncle. KH's parents left her in the care of Mr Phillips. Therefore, the conduct involves a breach of trust. It occurred in KH's house, a place in which she was entitled to feel safe. 71 She was a young girl at the time and the conduct has impacted on KH's emotional wellbeing. -- 16 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 17 Victim impact statement 72 Section 144(1) of the CLMI Act provides: A victim of an offence in respect of which a court must make an order under Part 5 may give a victim impact statement to the court to assist the court in determining what order to make. 73 I have received a victim impact statement from KH's mother dated 20 May 2026. 74 KH's mother states the offending has emotionally and psychologically impacted KH. She has regular nightmares about Mr Phillips which she describes as being scary. She has difficulty sleeping and will either want to sleep with her mother or have the light left on. She is not as independent as she once was. 75 KH has regularly experienced panic attacks at school, sometimes twice a week, and became reserved before male teachers. She continued to wear multiple layers of clothing during summer and would vomit. She socialised with school friends less often. She self-harmed. She is fearful around males. Custody order and limiting term 76 Before the special proceeding hearing on 21 May the court was informed by Mr Phillips' solicitor that he had spoken with Mr Phillips' family members both in Australia and New Zealand. Mr Phillips is from New Zealand. The court was informed there were issues regarding Mr Phillips staying with relatives in Western Australia once he is released from custody because his siblings all have children. Mr Phillips has a sister, Malina, who lives in New Zealand and she has advised that Mr Phillips' family are hopeful that he may return to New Zealand and live with his mother who is aged 54 and lives alone.42 77 At the hearing on 21 May I was informed by defence counsel Mr Phillips was a non-citizen from New Zealand who had relied on family members in Western Australia for support and who had assisted him to obtain some employment. Mr Phillips' mother and father live in New Zealand and Mr Phillips is hopeful of returning to live in New Zealand. 42 Email from Barber Legal dated 12 May 2026. -- 17 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 18 78 However, counsel had not spoken to any family members, nor it seemed had his instructing solicitor, and was unable to provide the court with any information regarding the willingness and ability of Mr Phillips' family to put in place arrangements for him to travel back to New Zealand. Defence counsel informed the court that Mr Phillips has two brothers who live in Kalgoorlie, but he had not had any contact with them since he had been arrested and remanded in custody. He also had some friends in Perth but did not have their phone numbers. It was conceded some work needed to be done to find out how Mr Phillips will be accommodated and dealt with. Defence counsel said that Mr Phillips hoped that his family will arrange a plane ticket to get him home but was unable to provide any details as to how that would happen.43 79 Having regard to the matters set out in s 47(1), specifically s 47(1)(f) and s 47(1)(g), and also having regard to the recommendations of Dr Moyle that it might be appropriate to release information contained in his report to government agencies such as the NDIS, and consideration should be given as to whether guardianship and administrations orders should be made although Mr Phillips was not a citizen of Australia but of New Zealand, and noting Mr Phillips did not have any family support in Western Australia because of the offending and his only family support is likely to be provided by his parents, who are separated, in New Zealand and a sister in New Zealand, I formed the view I needed further information or evidence as to what support might be available to Mr Phillips if he was released back into the community. 80 In those circumstances I adjourned the hearing for a week to 29 May to allow defence counsel to make some enquiries of Mr Phillips' family regarding their willingness and ability to put in place a plan to take Mr Phillips back to New Zealand. 81 Regrettably, at the adjourned hearing on 29 May the position was no further advanced. I was informed defence counsel had spoken with a sister living in New Zealand who confirms that Mr Phillips can return to live with his mother in New Zealand but that they were unable to assist in arranging for Mr Phillips to travel to New Zealand. The matter was therefore adjourned to 24 June to allow Mr Phillips' legal representatives further time to clarify what arrangements were able to be put in place for him to travel back to New Zealand to live with his family. 43 ts 62 - ts 64. -- 18 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 19 82 For the purposes of the hearing on 24 June I was provided with an affidavit of Mr Phillips' solicitor, Mr Neville Barber affirmed on 22 June 2026. The affidavit confirms Mr Barber's office's contact with Ms Hunia, Mr Phillips' sister in New Zealand, and whether he was able to live with his mother, Ms Burnett. There were some toing and froing communications between Mr Barber's office and Ms Hunia, by both telephone and by email correspondence. The upshot was that because Mr Phillips' mother lived in aged care accommodation, she was unable to have Mr Phillips live with her. Inquiries were also made of Mr Phillips' father as to his ability and willingness to have Mr Phillips live with him, but the advice provided to Mr Barber's office was that Mr Phillips' father was awaiting advice from his landlord. 83 It was also confirmed that Mr Phillips' family members resident in New Zealand are unable to fund Mr Phillips' return to New Zealand and are also unable to meet him at the airport. 84 I was informed by counsel that Mr Phillips is prepared to either return to New Zealand or remain living in Western Australia. 85 I formed the view that it was unlikely any further information or evidence would be obtained to assist me in the determination of the appropriate custody orders to be imposed. Determination 86 On the basis of the evidence before me I am satisfied a custody order must be made. I am not satisfied that any risk to the community can be adequately managed under a community supervision order, particularly in circumstances where Mr Phillips is a citizen of New Zealand and a non-citizen of Australia. There is no evidence before me of how Mr Phillips' condition will be adequately managed and supervised in the community. There is no evidence of a residential address nor evidence of supported living arrangements, that in my view he requires, if he is released back into the community. 87 Having regard to all of the matters to which I have referred, including the statutory criteria pursuant to s 47 of the CLMI Act, and reiterating that the primary consideration is the need for protection of the community, I make the following custody orders: Count 1 - 12 months' custody; Count 2 - 12 months' custody; Count 3 - 14 months' custody. -- 19 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 20 88 In my view, there needs to be a degree of accumulation to reflect that there are two different incidents of indecent dealing and to reflect the overall conduct. In my view, an appropriate custody order to reflect the seriousness of the overall conduct is a total term of 20 months' custody. To achieve that figure I reduce the length of the custody order imposed on count 1 to 6 months' imprisonment and order that order to be served cumulatively upon the custody order imposed on count 3, and the custody order on count 2 be served concurrently with the order imposed on count 3. 89 Taking into account the time Mr Phillips has already spent in custody in relation to the conduct, I order the custody order commence on 10 February 2025 being the date on which Mr Phillips was arrested and taken into custody.44 44 Section 50(4) CLMI Act. -- 20 of 21 -- [2026] WADC 61 HERRON DCJ [2026] WADC 61 (JC) Page 21 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. ZO Associate to Judge 1 JULY 2026 -- 21 of 21 --