ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- JFE [2026] WASC 324

[2026] WASC 324 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- JFE [2026] WASC 324 CORAM : SOLOMON J HEARD : 26 FEBRUARY & 23 APRIL 2026 FURTHER SUPPLEMENTARY WRITTEN SUBMISSIONS 28 MAY & 11 JUNE 2026 DELIVERED : 7 AUGUST 2026 FILE NO/S : CLMI 7 of 2025 BETWEEN : ATTORNEY GENERAL FOR WESTERN AUSTRALIA Applicant AND JFE Respondent Catchwords: Criminal Law (Mental Impairment) Act 2023 (WA) - Application for an extended custody order - Whether necessary to make an extended custody order to ensure the adequate protection of the community against an unacceptable risk of a serious offence - Appropriate limiting term - Turns on own facts Legislation: Criminal Code (WA) Criminal Law (Mental Impairment) Act 2023 (WA) -- 1 of 27 -- [2026] WASC 324 Page 2 Criminal Law (Mentally Impaired Accused) Act 1996 (WA) Mental Health Act 2014 (WA) Result: Extended custody order made for a period of 2 years Category: B Representation: Counsel: Applicant : Mr J Lloyd Respondent : Ms E Zillessen Solicitors: Applicant : State Solicitor's Office Respondent : Legal Aid Case(s) referred to in decision(s): Attorney General for Western Australia v KGW [2026] WASC 137 Attorney General for Western Australia v SCS by his guardian ad litem the Public Advocate [2026] WASC 73 Attorney General for Western Australia v TKB [2025] WASC 511 Attorney General for Western Australia v TTR [2026] WASC 152 Attorney General v BWG [2025] WASC 486 Attorney General v DAMD by his guardian at litem the Public Advocate [2025] WASC 460 Attorney General v PHB [2025] WASC 312 Attorney General v WAW [2025] WASC 324 The State of Western Australia v ABC [2013] WADC 125 -- 2 of 27 -- [2026] WASC 324 SOLOMON J Page 3 SOLOMON J: Overview 1 This is an application under the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act). Among other things, the CLMI Act is an act to provide for the supervision of persons acquitted of a criminal offence on account of mental impairment, and to provide for the safe reintegration of such persons into the community.1 2 JFE (the respondent) is the subject of the application. The respondent was charged with three offences of indecently dealing with a child he knew to be his then 12-month-old daughter and therefore his lineal relative in September 2011. In August 2013, following a trial, a judge of the District Court found that all the elements of each offence were proven, but found the respondent not guilty due to unsoundness of mind. 3 Had the respondent been of sound mind and found guilty, he would have been subject to a term of imprisonment of 18 months. Due to having been found not guilty due to unsoundness of mind, the respondent has been in custody since August 2013; first under the Criminal Law (Mentally Impaired Accused) Act 1996 (Repealed Act), then after the repeal of that Act, under the CLMI Act. 4 The CLMI Act established the Mental Impairment Review Tribunal (the Tribunal). The Tribunal reports to the relevant minister regarding the need to extend custody orders of people in the position of the respondent. In late 2024, the Tribunal recommended in effect that an application for the continued custody of the respondent was not necessary. In January 2025, the Tribunal reviewed its report and came to the same conclusion. 5 Nevertheless, the relevant minister, the Attorney General of Western Australia (the Minister), has applied for orders to maintain the custody of the respondent. For the reasons set out below, I have concluded that regrettably at the present time, there is no realistic alternative but to grant the application and maintain the respondent's custody. 1 CLMI Act, long title. -- 3 of 27 -- [2026] WASC 324 SOLOMON J Page 4 The application 6 On 12 February 2025, the Attorney General of Western Australia (the applicant) filed an application under s 105(1) of the CLMI Act seeking an extended custody order in respect of the respondent. In the alternative, if the court is not satisfied that an extended custody order ought to be made, the applicant seeks that a community supervision order be made in relation to the respondent pursuant to s 110(4) of the CLMI Act. Legislative framework 7 Under the CLMI Act, the Minister may, after having regard to a report from the Tribunal, make an application for an extended custody order.2 8 The court may make an extended custody order following an application by the Minister.3 A custody order is an order that a person be detained in custody at a place determined from time to time by the Tribunal under pt 6 div 3 of the CLMI Act for the protection of the community.4 An extended custody order is defined in the same terms as a custody order, and pt 6 of the CLMI Act applies to an extended custody order as if it were a custody order.5 9 The statutory prerequisite for making an extended custody order is described in s 110(3) of the CLMI Act: Before making an extended custody order, the court must be satisfied, by acceptable and cogent evidence and to a high degree of probability, that, to ensure the adequate protection of the community against an unacceptable risk that the supervised person will commit a serious offence, it is necessary to make an extended custody order in respect of the supervised person. 10 A 'serious offence' is defined in s 9 and means an offence listed in sch 1 of the CLMI Act. 11 The onus is on the applicant to satisfy the court of the above requirements. The applicant submits that it is necessary to make an extended custody order to ensure the adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence. 2 CLMI Act s 105(1). 3 CLMI Act s 110(1), s 105(1). 4 CLMI Act s 49. 5 CLMI Act s 109. -- 4 of 27 -- [2026] WASC 324 SOLOMON J Page 5 12 If the court is not satisfied of the above, but is satisfied of the requirements in s 114(2) for the making of an extended community supervision order, then the court may make a community supervision order instead. A community supervision order is an order that a person, while residing in the community, must comply with conditions of the order for the protection of the community.6 An extended community supervision order is defined in the same terms as a custody order.7 13 Section 114(2) states: Before making an extended community supervision order, the court must be satisfied that, to ensure the adequate protection of the community, the supervised person should remain under supervision due to the person's rehabilitation, retraining or resocialisation requirements. 14 In performing a function under the CLMI Act, the court must have regard to the objects and principles set out in s 7 of the CLMI Act. Section 8 provides that the paramount consideration is the protection of the community. 15 The principles that apply on an application for an extended custody order have been explained in a number of cases, including by Lundberg J in Attorney General v PHB,8 Lemonis J in Attorney General v WAW,9 and Gething J in Attorney General v DAMD by his guardian at litem the Public Advocate,10 amongst others. I adopt, without repeating, the explanations set out in those cases.11 Background Personal circumstances of JFE 16 The respondent was born on 10 March 1980 and is 46 years of age.12 6 CLMI Act s 52. 7 CLMI Act s 113(1). 8 Attorney General v PHB [2025] WASC 312. 9 Attorney General v WAW [2025] WASC 324. 10 Attorney General v DAMD by his guardian at litem the Public Advocate [2025] WASC 460. 11 Attorney General v PHB [33] - [62] (Lundberg J); Attorney General v WAW [11] - [24], [40] - [82]; Attorney General v DAMD by his guardian ad litem the Public Advocate [11] - [32] (Gething J); Attorney General for Western Australia v TTR [2026] WASC 152 [30] - [69] (Fiannaca J); Attorney General for Western Australia v SCS by his guardian ad litem the Public Advocate [2026] WASC 73 [23] - [50] (Forrester J); Attorney General for Western Australia v TKB [2025] WASC 511 [35] - [52] (Forrester J); Attorney General for Western Australia v KGW [2026] WASC 137 (Whitby J) [30] - [45]; Attorney General v BWG [2025] WASC 486 [21] - [24] (Musikanth J). 12 Book of Materials (BoM) 2. -- 5 of 27 -- [2026] WASC 324 SOLOMON J Page 6 17 The respondent has a mother and an older half-brother. His father died when the respondent was very young. The respondent's mother, and possibly also his father, suffered from schizophrenia. The respondent lived in foster care for most of his childhood, and with his stepfather for a few years.13 18 The respondent left school after year 10. He attended TAFE but did not complete his course. He worked briefly as a cleaner and in a hotel bar.14 19 The respondent has a history of significant drug and alcohol use from a very young age.15 20 Prior to the primary offences described below, the respondent's criminal history included: assault occasioning bodily harm and stalking/intimidation with intent to cause fear of physical or mental harm; and wilfully and unlawfully destroying or damaging property.16 21 The respondent was first diagnosed with treatment resistant schizophrenia in 2002, at the age of 22. He has since also been diagnosed with schizoid personality disorder, alcohol use disorder and substance misuse disorder by various psychiatrists. He has also been diagnosed by some psychiatrists as having borderline antisocial personality disorder and, more recently, paedophilic disorder. The respondent's alcohol use and substance misuse disorders are currently in remission by virtue of being in a restricted environment.17 22 The respondent started a relationship with his ex-partner in 2009. The respondent's ex-partner also suffered from mental illness, and they met in the inpatient unit at Bentley Hospital. The respondent and his ex-partner had a daughter (the victim of the primary offences described in [26]) in 2010. She was kept in the care of the State until she was almost 12 months old. 23 Since he has been in custody, the respondent has incurred charges for: stealing; assaulting an officer in custody; and being absent without leave.18 He received fines for the first two offences, and the third offence was dismissed. 13 BoM 715. 14 BoM 715. 15 BoM 715 - 716. 16 BoM 1 - 2. 17 BoM 606, 757, 759, 785. 18 BoM 1, 4 - 6. -- 6 of 27 -- [2026] WASC 324 SOLOMON J Page 7 24 On 12 July 2019, the State Administrative Tribunal (SAT) placed the respondent under guardianship orders, with the Office of the Public Advocate being appointed as the respondent's limited guardian.19 It also appears that on 10 September 2012, the SAT placed the respondent on an administration order, with the Public Trustee appointed as plenary administrator.20 Both orders are to be reviewed again by 22 July 2026.21 25 The respondent has no contact with his daughter and her mother (his ex-partner), and there is a Family Violence Restraining Order in place to prevent him from making contact with the mother.22 Custody order 26 In 2011, the respondent was charged with three offences of indecently dealing with a child under 16 who is a relative, contrary to s 329(4) of the Criminal Code (WA). The offences were committed against his 12-month-old daughter. 27 On 2 August 2013, the respondent was found not guilty by reason of unsoundness of mind for each count.23 28 The respondent was acquitted and placed under a custody order under the Repealed Act and was placed in custody at Hakea Prison. 29 The respondent was subsequently transferred to Acacia Prison, where he was detained from August 2013 to September 2019.24 30 On 9 September 2019, the respondent was transferred to the Frankland Centre, a forensic inpatient facility located at Graylands Hospital, where he continues to remain in custody.25 Leave of absence orders 31 Under the existing custody order, the respondent has been granted leave of absence orders. The leave of absence conditions were most recently varied by the Tribunal on 27 March 2026.26 19 BoM 511. 20 BoM 413, 845. 21 BoM 413, 511. 22 ts (26 February 2026) 24. 23 The State of Western Australia v ABC [2013] WADC 125 (Bowden DCJ). 24 BoM 500, 504. 25 BoM 397, 500, 706. 26 BoM 859. -- 7 of 27 -- [2026] WASC 324 SOLOMON J Page 8 32 Under the orders, the respondent is permitted to take escorted leave of absence for certain purposes, including: to receive medical treatment; on compassionate, cultural or religious grounds; to access the grounds of Graylands Hospital for up to three hours per day; and to access the community for up to six hours per day up to four days per week. These conditions are generally subject to the approval of the treating psychiatrist. 33 The respondent is also permitted to take unescorted leave of absence to access the grounds of Graylands Hospital for up to four hours per day. As discussed below, the treating psychiatrist has not yet approved the respondent to use this leave. 34 The leave of absence orders also place certain restrictions on the respondent, requiring him to: comply with all instructions from the treating psychiatrist, medical practitioner and mental health team; have no contact with the victim and her mother; abstain from using alcohol and illicit drugs; and not leave Western Australia, except with permission from the Tribunal. Limiting term 35 On 1 September 2024, the CLMI Act came into force and repealed the Repealed Act. 36 Part 14 div 2 of the CLMI Act contains the transitional provisions for the CLMI Act. Under s 254(2), the custody order imposed in respect of the respondent under the Repealed Act continues to have effect as if it were a custody order made under pt 5 of the CLMI Act. 37 Section 261(1) requires that, as soon as practicable after the commencement day of the CLMI Act, the Director of Public Prosecutions (DPP) must apply to the court that made the existing custody order to set a limiting term for the order. A 'limiting term' for a custody order is the best estimate of the term of imprisonment or detention that the court would have imposed when sentencing the person for the offence, if any mental impairment of the person were not taken into account.27 38 In September 2024, the DPP applied to the District Court to set a limiting term for the custody order in respect of the respondent. Proceedings took place in the District Court in Perth to determine the 27 CLMI Act s 50(2). -- 8 of 27 -- [2026] WASC 324 SOLOMON J Page 9 limiting term pursuant to s 264 of the CLMI Act (limiting term proceedings).28 39 On 12 November 2024, a limiting term of 1 year and 6 months was set for the respondent's custody order by Judge Tovey of the District Court.29 This was backdated to commence on 2 August 2013, meaning that the custody order expired on 2 February 2015; however, pursuant to s 265(2) of the CLMI Act, the custody order continues to have effect under further order is made by a court. 40 The limiting term proceedings were otherwise adjourned to 15 January 2025 in accordance with s 265 of the CLMI Act. Section 265 requires the District Court to adjourn proceedings until the Minister informs the District Court either that the Minister intends to apply to the Supreme Court for an extended custody order, or that such an application will not be made.30 Tribunal report of 10 December 2024 41 Pursuant to s 254(3) of the CLMI Act, the Tribunal was required to carry out a review of the existing custody order and provide the report to the Minister as soon as practicable after commencement day. In this report, the Tribunal was required to consider the need for an extended custody order in respect of the respondent.31 42 In a report dated 10 December 2024, the Tribunal considered the matters in s 72 of the CLMI Act, which are matters that the Tribunal must have regard to when reviewing a reviewable order.32 The Tribunal concluded that the respondent was considered to be a 'low risk' of perpetrating similar offending in the future. 43 The Tribunal recommended that the Minister should not apply for an extended custody order in respect of the respondent.33 Correspondence to Tribunal 44 As discussed in [40], the respondent was scheduled to appear at the District Court on 15 January 2025. 28 BoM 350 - 372. 29 BoM 373. 30 CLMI Act s 265(4) - (6). 31 CLMI Act s 254(3)(b). 32 BoM 403 - 423. 33 BoM 403 - 423. -- 9 of 27 -- [2026] WASC 324 SOLOMON J Page 10 45 On 14 January 2025, an email was sent to the Tribunal on an urgent basis from Ms Charlotte Holt (Ms Holt), a senior social worker at the State Forensic Mental Health Service.34 The email was sent on behalf of the respondent's multidisciplinary team at the Frankland Centre in order to urgently provide further information prior to the hearing on 15 January 2025. 46 The email referred to the Tribunal's decision not to recommend the Minister to apply for an extended custody order. The email stated that additional information had been identified which was not captured in the recent Tribunal report. 47 The email attached: a letter from psychiatrist Dr Arti Parmar (Dr Parmar) dated 14 January 2025,35 and an updated Sexual Violence Risk Assessment report of Dr Lisa Richardson (Dr Richardson), which is undated but was likely prepared in January 2025.36 48 In her letter, Dr Parmar wrote on behalf of the multidisciplinary team and requested the Tribunal to recommend either an extension of the respondent's custody order, or an application for a community supervision order. The issues raised included that: the respondent's criminogenic needs had not been met; the respondent did not have appropriate National Disability Insurance Scheme (NDIS) supports or Supported Independent Living in place; the Hospital Extended Care Service (HECS) may discharge the respondent to the community without adequate supports or follow-ups; and the respondent required longer term oversight within the justice system.37 49 The report of Dr Richardson stated that the risk of sexual violence was difficult to accurately ascertain due to a lack of consistent information from the respondent, and a lack of behavioural evidence of his functioning outside of the Frankland Centre. The report raised many concerns regarding the manageability and risk of reoffending of the respondent if he were released to the community at this stage. The respondent requires specialised multidisciplinary management, monitoring and supervision, as well as accommodation and rehabilitation services that are rare and difficult to engage in the community without significant resources. Dr Richardson stated that the likelihood of future sexual violence against a child would be high if the 34 BoM 489. 35 BoM 491 - 492. 36 BoM 493 - 496. 37 BoM 491 - 492. -- 10 of 27 -- [2026] WASC 324 SOLOMON J Page 11 requisite management plans were not in place upon the respondent's release from custody.38 Hearing in District Court on 15 January 2025 50 As a result of the correspondence above, the Tribunal contacted the State Solicitor's Office (SSO) to advise that further information had been provided by the State Forensic Mental Health Services. The Tribunal requested that the SSO seek an adjournment of the limiting term proceedings to allow time for the Tribunal to give full consideration to the updated information received.39 51 At the hearing on 15 January 2025, the limiting term proceedings were adjourned to 19 February 2025.40 Tribunal addendum report 52 On 24 January 2025, the Tribunal considered the respondent's case pursuant to s 68 of the CLMI Act. Section 68 of the CLMI Act permits the Tribunal to carry out a review of a reviewable order at any time if the Tribunal considers that there are circumstances that justify it doing so. The Tribunal heard from the respondent's counsel and Mental Health Advocates.41 53 Having considered the updated reports and information received, the Tribunal determined to prepare a further report for the Minister. 54 In an addendum report dated 30 January 2025, the Tribunal again gave regard to the matters in s 72 of the CLMI Act. The Tribunal remained of the view that the transition plan and the supports that could be provided to the respondent in the community 'will be sufficient to mitigate any risk that [the respondent] will commit a serious offence'.42 The Tribunal therefore confirmed its previous recommendation that the Minister should not apply for an extended custody order. Application by the Minister 55 Upon reviewing the material above, the applicant came to the view that, contrary to the Tribunal's recommendation, there was a sufficient 38 BoM 493 - 496. 39 BoM 429. 40 BoM 427, 429. 41 BoM 429 - 430. 42 BoM 432. -- 11 of 27 -- [2026] WASC 324 SOLOMON J Page 12 basis upon which to bring an application for an extended custody order.43 56 On 12 February 2025, the applicant filed an application under s 105(1) of the CLMI Act for an extended custody order. 57 The applicant relies on the affidavit of Tse Chee Loo affirmed on 12 February 2025 in support of the application. This affidavit contains information about the respondent's criminal history, the primary offences committed, the imposition of the custody order, the limiting term proceedings, and the Tribunal reports. The affidavit annexes several documents, including: District Court transcripts; psychiatric reports; risk assessments; criminal history; and email correspondence. Most of these documents were reproduced in the Book of Materials. 58 At the resumed limiting term proceedings on 19 February 2025, the applicant informed the District Court that the Minister intended to apply to the Supreme Court for an extended custody order under pt 7 div 5 of the CLMI Act.44 Available evidence 59 The evidence that ultimately unfolded in the present proceedings created a significantly different picture from the one that was reached by the Tribunal. 60 The evidence received in support of the application was primarily contained in the applicant's Book of Materials in three volumes and was received pursuant to s 123(4) of the CLMI Act. 61 This evidence included: documents relevant to the respondent's antecedents; transcripts of previous proceedings in the District Court, including the custody order hearing for the primary offences and the limiting term proceedings; various orders made in respect of the respondent by the District Court and the Tribunal; reports of the various psychiatric and medical reports and assessments conducted of the respondent over many years; and information regarding the respondent's current treatment and support plans. 62 Among the evidence was a report prepared by Dr Edward Petch (Dr Petch), an experienced forensic psychiatrist, dated 15 October 2025. This report was prepared pursuant to the orders of Whitby J made 43 Applicant's Supplementary Submissions (28 May 2026) [47] - [50]. 44 CLMI Act s 265(7)(a). -- 12 of 27 -- [2026] WASC 324 SOLOMON J Page 13 on 25 March 2025 and s 106(1)(a) of the CLMI Act. Section 106(1)(a) requires the court to order an appropriate expert to examine the supervised person and prepare a report when an application for extended order is made.45 63 The Book of Materials also included a report titled 'Extended Order Assessment', prepared by Adult Community Corrections and dated 4 November 2025.46 The report included a 'Proposed Community Supervision Plan' and 'Proposed Supervision Order Conditions' for the respondent. The report was prepared pursuant to s 106(1)(b) of the CLMI Act, and in accordance with orders made by Whitby J on 25 March 2025 requiring the report to be prepared for the purposes of the extended custody hearing. 64 On 26 February 2026, at the hearing of the extended custody order application, the applicant called Ms Taylor Evans (Ms Evans) as a witness. Ms Evans is a Senior Community Corrections officer who has been the respondent's supervising officer since November 2025. 65 The applicant also called Dr Petch to give evidence regarding the report he prepared for the hearing. 66 At the hearing on 26 February 2026, concerns were raised regarding the lack of information and clarity around the future treatment pathways for the respondent and how a transition into the community would occur if he were released on a community supervision order. The hearing was adjourned in order for counsel for the applicant and respondent to confer and to call relevant witnesses from the State Forensic Mental Health Service to give further evidence.47 67 On 23 April 2026, the extended custody application hearing resumed. The applicant called Dr Peter Wynn Owen (Dr Wynn Owen), a consultant forensic psychiatrist and the medical co-director of the State Forensic Mental Health Service. Ms Evans' evidence 68 Ms Evans gave evidence regarding the Adult Community Corrections extended order assessment report dated 4 November 45 CLMI Act s 106(1)(a). 46 BoM 788 - 800. 47 ts (26 February 2026) 119 - 123. -- 13 of 27 -- [2026] WASC 324 SOLOMON J Page 14 2025.48 This report was prepared by the respondent's previous supervising officer at Adult Community Corrections, pursuant to s 106(1)(b) of the CLMI Act and the orders of Whitby J made on 25 March 2025 requiring the report to be prepared. 69 The Adult Community Corrections report essentially referred to the findings and conclusions of Dr Petch discussed below. The report then proposed that if the respondent is placed on an extended custody order, the current leave of absence conditions are suitable.49 If the respondent were to be placed on a community supervision order, the standard statutory conditions under s 54 of the CLMI Act were proposed, with an additional condition that the respondent is 'not to use or be in possession of alcohol or illicit substances'.50 70 Ms Evans also spoke about the respondent's current Behaviour Support Plan, which was created on 2 October 2025. The Behaviour Support Plan was produced by a NDIS Behaviour Support Practitioner, in consultation with the respondent's social workers. The purpose of the Behaviour Support Plan is to inform how the respondent's NDIS services will be used moving forwards, and to assist the respondent's support workers to engage with him appropriately once the respondent begins to gradually transition into the community.51 71 Ms Evans confirmed that the respondent has not had any unescorted grounds access since he absconded from the Frankland Centre in August 2021, as described further in [81].52 72 Ms Evans also informed the court that the respondent currently has no confirmed accommodation, and that she could not answer where the respondent would go if he were to be released on a community supervision order at this time.53 Dr Petch's evidence 73 Dr Petch's written report comprehensively reviewed the reports of various other psychiatrists that have examined the respondent since the respondent has been under the custody order, including both at Acacia Prison and at the Frankland Centre, and the developments in the respondent's health over years. Dr Petch included details of his 48 BoM 788; ts (26 February 2026) 32. 49 BoM 799. 50 BoM 799 - 800. 51 Behaviour Support Plan of Therapy Collab (2 October 2025); ts (26 February 2026) 37 - 39. 52 ts (26 February 2026) 35 - 36. 53 ts (26 February 2026) 48 - 49, 51 - 52. -- 14 of 27 -- [2026] WASC 324 SOLOMON J Page 15 interview with the respondent conducted on 1 September 2025. Dr Petch then provided his opinion, accompanied by detailed reasons, and his conclusions on the risk of serious offending. 74 Dr Petch considered that the main scenario for potential reoffending by the respondent is sexual assault against children within the respondent's care. This would constitute a 'serious offence', as defined in the CLMI Act.54 The harm from such an offence could be severe. While the harm is not imminent or likely to occur while the respondent remains detained at the Frankland Centre, the risk of this occurring on his release to the community would be moderate at least. 75 Dr Petch ultimately concluded in his report that without the imposition of an extended custody order, the risk that the respondent would commit a 'serious offence' as defined in the CLMI Act is 'moderate.' 76 Dr Petch helpfully summarised his conclusions as follows:55 Based upon my interview of [the respondent] on 1 September 2025 at the Frankland Centre and my perusal of the evidence supplied by the state, and with the reasons as specified in the report below, I have concluded that without an extended custody order, the risk that [the respondent] would commit a serious offence as defined by the Act is moderate. There are risks that without an extended custody order, he would need to be released before he has been fully reintegrated into the community after a lengthy period in hospital. Without the external restrictions that a custody order provides, I do not think he could successfully live in the community. The care and support packages he would require have not been established, and without them I think he would suffer from a relapse of his schizophrenia and substance misuse disorders, particularly alcohol. I think his living situation would rapidly deteriorate and the risks would escalate. [The respondent's] progress towards the community has been modest. He has not spent significant periods in the community, or on his own, nor has he been overnight. If he is released prematurely, either on an extended community supervision order or unconditionally, at this time I think the risk of a psychotic relapse and further sexual violence becomes very significant. I have also concluded that [the respondent's] risk to the community is being adequately contained by the current custody order with leave of absences with conditions, facilitating graduated leaves into the community. If they continue successfully under an extended custody 54 CLMI Act s 9, sch 1 div 1 sub-div 3. 55 BoM 712. -- 15 of 27 -- [2026] WASC 324 SOLOMON J Page 16 order, [the respondent] might be considered suitable for an extended community supervision order in due course. A significant amount of work would still be required. If an extended custody order is imposed, the necessary transition to the community could be started during that period. At the point when he has spent successive nights in stable community accommodation with appropriate supports in place successfully, an extended community supervision order could then be considered. 77 There are several factors that Dr Petch considers contribute to the respondent's ongoing risk, and that he refers to in his detailed reasons. These can be summarised as follows: (1) The symptoms of the respondent's schizophrenia, including distorted perceptions, impulses and behaviour, make his offending significantly more likely. While the respondent's current treatment with clozapine has reduced the risk, symptoms of psychosis remain. With this, significant risk remains. (2) The respondent seems to have little regard for the law, authority figures or social conventions, owing to his schizoid personality disorder. This means that he may not be able to abide by conditions of a community supervision order. (3) The respondent continues to have a strong drive to use alcohol and may turn to substances in periods of stress. He does not have a relapse prevention plan and has not yet started to address the role of alcohol and drugs in his life. The risk of more serious violence or sexual violence would likely escalate if intoxication were to occur on a regular basis, which is currently prevented by the restricted environment the respondent is in. (4) The respondent continues to minimise or justify his offending behaviour. His attitudes that support or condone sexual violence have not yet been resolved. (5) There is a risk that the respondent will wish to seek out his ex-partner and his daughter, and in the past, he has not understood why is not permitted to contact them. More recently, the respondent has said he would abide by conditions not to contact them, but this needs to be closely monitored. (6) The respondent has expressed sexual interest in other children. The risk of reoffending will be present if the respondent ever -- 16 of 27 -- [2026] WASC 324 SOLOMON J Page 17 has unsupervised access to children or forms a future relationship with a woman who has access to a child. (7) The respondent has been diagnosed with paedophilia, but this is a newer diagnosis by Dr Petch. The respondent's paedophilic drivers have not yet been adequately addressed in his treatment. This increases the risk of offending. (8) The respondent's severe institutionalisation over the years presents a serious barrier to his reintegration into the community, and he lacks many skills required to look after himself. There are little to no sources of external support for the respondent as he has not formed any meaningful relationships since his custody order was made. The respondent has little motivation to engage in employment or interests outside of gaming. (9) It would be very challenging to supervise the respondent in the community. The respondent is not yet trusted to have unescorted grounds access. His oppositional behaviour has caused serious difficulties for his management and engagement at the Frankland Centre. (10) The respondent's circumstances in the community are unstable as he does not have identified accommodation, an agreed Supported Independent Living package, or a relationship with a support worker who will be offering support in the community. His NDIS support package has only recently started to be put into place, and funding for 24-hour care, which is a requirement for the respondent, has not yet been agreed. It is uncertain how transition into the community will be facilitated. 78 In the report, Dr Petch referred to the decision of the Tribunal to not recommend that the Minister apply for an extended custody order, and stated:56 As a consequence of [the respondent's] treatment resistance and his personality, there was a failure over many years to overcome his inertia, and a therapeutic nihilism appeared to have taken hold. For a long time it was suggested he had made not [sic] progress, but was stable and could be managed in the community in a hostel. In my opinion the [Mentally Impaired Accused Review Board] and in turn the [Tribunal] were lulled by successive reports over many years that the risk was low 56 BoM 772 - 773. -- 17 of 27 -- [2026] WASC 324 SOLOMON J Page 18 and he might be able to move into the community. The reality in fact was that psychologically he had never fully engaged with services and treatment, and had not been open about his experiences. Not much if any psychological treatment or allied therapy was offered, other than medication for his psychosis, mainly because he had refused all attempts at rallying his participation. I don't think the risk was ever low. 79 During the hearing, Dr Petch confirmed that he believed the risk had, in truth, never been 'low'.57 Dr Petch's evidence was that the risk assessments produced over the years while the respondent was in custody did not pay realistic regard to what would happen to him if he were not in custody and were out in the community instead.58 80 Dr Petch also gave oral evidence regarding the current treatment being administered to the respondent, specifically the use of the medication 'clozapine'. Clozapine is a powerful antipsychotic medication, which needs to be administered orally every day and monitored by checking blood levels once a month.59 The respondent's schizophrenia, which is treatment resistant, responds to the clozapine (combined with other things). However, the respondent continues to suffer from residual symptoms even while on clozapine. Dr Petch stated that the respondent's mental state remains 'brittle' and fluctuating, and that evidence from the Frankland Centre suggests that the respondent experiences psychotic delusions, hallucinations and thought disorder even while on the optimal dose of clozapine.60 Dr Petch stated that the respondent's psychosis deteriorated significantly during previous times that the clozapine had been reduced or stopped, suggesting that any destabilisation in the clozapine medication could result in a subsequent escalation of risk.61 81 Dr Petch commented that the respondent has not spent any time in the community since he has been in custody. On 31 August 2021, the respondent absconded from his unescorted grounds access. During this incident, he was found by police at the address where he used to live with his ex-partner and daughter, and had consumed several alcoholic drinks.62 All leave was suspended after this incident. The leave of absence has gradually been increased in the months following this, but the respondent does not yet have approval for unescorted leave. 57 ts (26 February 2026) 63. 58 ts (26 February 2026) 110. 59 ts (26 February 2026) 62. 60 ts (26 February 2026) 62. 61 ts (26 February 2026) 62. 62 BoM 460, 462, 757, 780. -- 18 of 27 -- [2026] WASC 324 SOLOMON J Page 19 82 In his report, Dr Petch commented on how the respondent will potentially respond to living in the community in the future:63 Gradually [the respondent] is beginning to acclimatise to the idea of community living. He appears to be coping with the pressures that this brings. The majority of his time however is still spent within the confines of the Frankland Centre. He has not yet spent a night at the accommodation on overnight leave. The longest he spends in the community is three hours. He has not spent any time in the community or on the grounds unaccompanied. There is a high chance that at some stage when he has been released into the community he will find himself alone. It is not yet known how he will respond. He has not started having to undertake the normal activities of daily living outside hospital, and it is not yet known how he will cope with these tasks. I suspect he does not yet have sufficient motivation or drive to return to the community. He is highly institutionalised. He does not have a single meaningful therapeutic or social relationship. If the transition is to go well, he needs to develop the motivation to become well, stay well, and to work hard to rehabilitate himself, so that with support he might be able to stay in the community. Despite his current apparent improvement, there are still significant risks that continue to require close management. These are described above. Just because the management plan over years appeared to be effective and was containing the perceived risk, this does not mean that he was making progress. If the current management and his current circumstances continue, there is no reason why the current effectiveness of containing of his risks should not persist into the future. 83 In Dr Petch's opinion, the respondent is not currently able to function in the community or abide by conditions of any community supervision order. Further, any change in the respondent's level of supervision, support and containment, his health, or other circumstances, would escalate the risk of serious reoffending. This risk is currently only being contained due to the respondent being in custody and continues to require close management. 84 Dr Petch summarised the above in his report as follows:64 There are however possible circumstances in which his risk could escalate, increasing the likelihood of serious reoffending. Essentially this includes a change of circumstances (whether that be his health, mental health, support and accommodation arrangements, relationships, alcohol, drug intake), or (the key consideration for the court), a change in level of supervision, support and containment. This includes his 63 BoM 779 - 780. 64 BoM 780. -- 19 of 27 -- [2026] WASC 324 SOLOMON J Page 20 discharge into the community. It also includes a change in his mental health, whether by non-compliance with medication, the effectiveness of the medication, or a natural fluctuation in the course of his illness. I think that the risk is being as well managed now as it could be, as a result of the effect of the support he is receiving in hospital and the containment provided through the custody order and the conditions and requirements of the leave of absence order. If these circumstances materially changed (i.e. take one of those pillars away), I think the risk would no longer be adequately managed and I think the risk to the community would escalate. I think that the risk of [the respondent] committing a serious offence is currently low. This is due to the current circumstances. If the custody order no longer provided that degree of containment, I think the risks would escalate and would be at least moderate. I think [the respondent] needs the containment that the custody order provides. He has not been able to function in the community previously when left to his own devices. He may not understand or remember conditions and would need support to abide by them. 85 In cross-examination, Dr Petch spoke further about the degree of institutionalisation of the respondent, and the potential risk if he is released into the community at this time:65 I thought that under a supervision order, if he was released into community, he would relapse because he's not ready to leave because of this degree of institutionalisation, as I've discussed earlier. And I thought that other risks may then kick in if he does destabilise[.] 86 Dr Petch gave his opinion on the need for a process to gradually transition the respondent into the community:66 I do know he's very institutionalised. Everything's been done for him for years. I don't think he would manage five minutes in the community on his own. And that's basic living before you're thinking about - before you think about his offending. I have to worry about whether even when he gets supported living accommodation with community support. Because if he doesn't want to do something he just doesn't. He can be so defiant when he wants to be. And if he's like that, and he may well be, then how are they to respond? So any transition to the community, in my opinion, needs to happen at a very slow and steady pace, very closely supervised and monitored. Not just to ensure that he doesn't offend, but also that his mental health needs are maintained. … 65 ts (26 February 2026) 111. 66 ts (26 February 2026) 65, 67 - 68. -- 20 of 27 -- [2026] WASC 324 SOLOMON J Page 21 And therefore, there is sort of a well-known path of gradual, very gradual rehabilitation into the community, step by step, progressing according to his progress and his levels of anxiety, fears, and wishes. And I think that has to be done in a very moderate way without pressure. And I think that would be the case, whether or not he was liable to offending or not, whether or not he was on a custody order. I don't think the custody order of itself would change the need to go through that process. I think … if he did it on a custody order or a supervision order, [it] would actually help because it would provide him a greater degree of support than he would have otherwise. The problem we have got at the moment is that that process hasn't started, and it's not even been identified who the suppliers of these services would be or where he would live or anything. … In the absence of those supports, I think the risk will be high. With those supports, I think it might be possible to manage them. 87 In Dr Petch's opinion, if an extended custody order is imposed, 'the duration of the order needed for [the respondent] to complete his transition to the community would be about 12 - 24 months'.67 Dr Wynn Owen's evidence 88 Dr Wynn Owen gave oral evidence at the hearing on 23 April 2026. 89 Dr Wynn Owen confirmed that the treating team at the Frankland Centre was exploring HECS as a community-based option for the respondent to transition into in the future.68 HECS is an inpatient facility for people with long-term mental illnesses, located on the Graylands Hospital campus. However, the respondent has been assessed as currently not being suitable for HECS. Dr Wynn Owen referred to a letter that was sent from the HECS Assessment Team to the respondent's treating team at the Frankland Centre on 22 April 2026, which concluded that the respondent does not meet the criteria for the HECS programme at this time.69 This was based on a formal risk assessment of the respondent, which looked at a number of 67 BoM 786; ts (26 February 2026) 75. 68 ts (23 April 2026) 160. 69 BoM 853 - 854; ts (23 April 2026) 160 - 161. -- 21 of 27 -- [2026] WASC 324 SOLOMON J Page 22 criteria.70 The main criteria for finding that the respondent is not suitable for admission to HECS can be summarised as follows:71 (1) the respondent poses a risk of interpersonal conflict, physical aggression and behavioural instability; (2) the respondent demonstrates a lack of volition to engage in recovery-oriented goals; (3) the respondent presents as an absconding risk; (4) there is a concern regarding the respondent's ability to abstain from alcohol and illicit drugs; and (5) the respondent possesses poor insight into his mental health and support needs. 90 Dr Wynn Owen stated that if the respondent was placed on an extended custody order, the treating team would consider a re-referral to HECS, if further progress was made with the respondent. The other options for transition into the community include Supported Independent Living, funded by NDIS. Alternative accommodation in the community such as psychiatric hostel accommodation could also be considered, but at the moment is 'completely unsuitable' for the respondent.72 91 Dr Wynn Owen confirmed that, although the respondent's leave of absence conditions permit unescorted grounds leave subject to the approval of the treating psychiatrist, the respondent is not yet approved for unescorted leave.73 92 Evidence was also given about the process that is likely to occur in the event that the respondent is discharged entirely from the custody order. Dr Wynn Owen stated that the respondent would undoubtedly meet the criteria under the Mental Health Act 2014 (WA) to be detained on an involuntary treatment order and receive care from a civil mental health service rather than the forensic health service.74 However, Dr Wynn Owen stated that the view of the respondent's treating team is that at this time 'the level of risk presented by [an] absolute discharge 70 BoM 853 - 854; ts (23 April 2026) 163. 71 BoM 853 - 854. 72 ts (23 April 2026) 161. 73 BoM 859; ts (23 April 2026) 156. 74 ts (23 April 2026) 164. -- 22 of 27 -- [2026] WASC 324 SOLOMON J Page 23 would be too high'.75 This is primarily due to the fact that the respondent's treating team and the State Forensic Mental Health Service would no longer be involved in any treatment decision, and a high degree of supervision and monitoring would not be present as in the Frankland Centre, as well as concerns about increased exposure to alcohol and drugs.76 Further, Dr Wynn Owen spoke about concerns related to the duration of inpatient care and the possibility of premature discharge from a civil mental health service, due to the 'enormous pressure' placed on the sector and the focus on prioritising autonomy, rather than community protection, which is the priority for forensic health services.77 This supports Dr Petch's concerns above regarding the respondent being released into the community before he is ready. 93 Dr Wynn Owen also gave evidence regarding the respondent's current treatment with clozapine, which is the 'gold standard' medication for treating people with treatment resistant schizophrenia. He stated that if the respondent was not on clozapine, it is 'highly likely that his more florid psychosis would return'.78 Further, the effectiveness of the clozapine could be reduced by small things such as the use of cigarettes and must be carefully monitored.79 This is consistent with Dr Petch's evidence above, which suggests that any destabilisation in the respondent's current treatment with clozapine could potentially increase the risk of the respondent committing a serious offence. 94 In Dr Wynn Owen's view, it would require three to five years before community placement could realistically be considered for the respondent.80 Recent psychiatric report to the Tribunal 95 The psychiatric report of Dr Rachel Kovac dated 12 March 2026 is the most recent report that provides an update on the respondent's progress. The report was prepared at the request of the Tribunal ahead of the Tribunal review scheduled for 27 March 2026 and was included in the Book of Materials.81 75 ts (23 April 2026) 164. 76 ts (23 April 2026) 151 - 155, 163 - 164, 168 - 169. 77 ts (23 April 2026) 163. 78 ts (23 April 2026) 170. 79 ts (23 April 2026) 169 - 170. 80 ts (23 April 2026) 167. 81 BoM 840 - 852. -- 23 of 27 -- [2026] WASC 324 SOLOMON J Page 24 96 Dr Kovac conducted a risk assessment of the respondent. The risk was formulated as follows:82 [The respondent's] most recent [Historical, Clinical and Risk Management - 20 assessment] was completed 23 February 2026. Regarding his risk of physical violence to others, compared to the previous report and in the inpatient setting, [the respondent's] risk of imminent violence has been reduced from moderate to low after a period of mental state instability (at the time of last report) resolved. However his risk of future violence outside the hospital is considered high, and his risk of causing serious physical harm low. … However, if [the respondent] is released from his custody order and discharged to a community setting, deterioration in his mental state, drug or alcohol use, medication non-adherence, and disengagement from services would mean his risk of imminent violence should be considered high, while the risk of serious physical harm would increase to moderate (e.g., he has previously used a knife to threaten and assault causing superficial physical injuries). Together, these features strongly indicate that [the respondent] should remain a high priority for risk reducing resources and services. Regarding [the respondent's] risk of sexual violence, [the respondent] can be considered a moderate risk of further sexual violence. While he is subject to external controls, the likelihood of imminent sexual violence can be considered low. Based on the nature of his prior offending and current presentation, the severity of future sexual violence can be considered low. 97 Dr Kovac commented that the treating team believe the respondent is not currently able to comply with conditions associated with unescorted grounds access. Further, '[r]educed restrictions or release from hospital under an order would, in the treating team's opinion, carry an even greater risk of non-compliance' for the respondent.83 98 Dr Kovac also stated that in preparation for a possible discharge from the respondent's custody order, increased focus has been placed on securing appropriate NDIS supports and commencing training for the support workers using the current Behaviour Support Plan that has now been finalised (after a prolonged process). The NDIS support 82 BoM 847 - 848. 83 BoM 851. -- 24 of 27 -- [2026] WASC 324 SOLOMON J Page 25 workers have recommenced escorted grounds access for the respondent and anticipate slowly commencing escorted community access.84 99 Dr Kovac stated that though the respondent could eventually be managed in the community with 24-hour NDIS support, and input from the Community Forensic Mental Health Services, the appropriate NDIS supports and structures to facilitate this are not yet in place.85 100 In Dr Kovac's opinion, the 'least restrictive approach consistent with the need to protect the community' continues to be the inpatient setting for the respondent, while the treating team assesses his response to the increased community access with NDIS supports.86 101 In the report, Dr Kovac recommended increases in the leave of absence conditions in order to facilitate increased NDIS contact and supports. At the Tribunal review on 27 March 2026, the leave of absence conditions were varied to include an increase in the hours of escorted grounds access, as discussed from [31]. Consideration Whether an extended custody order should be made 102 In light of the cogent evidence given by Dr Petch, Dr Wynn Owen and Dr Kovac, I am satisfied to a high degree of probability that, to ensure the adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence, it is necessary to make an extended custody order in respect of the respondent. On the basis of the evidence, there is regrettably no alternative other than to make an extended custody order. 103 The evidence strongly suggests that the respondent is likely to commit a serious offence if he is released into the community. The respondent is not in a position to safely transition into the community at this stage. In supplementary written submissions, counsel for the respondent quite properly acknowledged that 'in the absence of available alternatives and suitable institutional placements other than the Frankland Centre', the options open to the court are extremely limited, as a community supervision order is effectively ruled out at the present time.87 84 BoM 851. 85 BoM 851. 86 BoM 851. 87 Respondent's Supplementary Submissions (11 June 2026) [10]. -- 25 of 27 -- [2026] WASC 324 SOLOMON J Page 26 104 The first of the objects of the CLMI Act is to ensure the protection of the community, and s 8 provides that in performing a function under the CLMI Act, the paramount consideration is the protection of the community.88 Those provisions and other provisions of the CLMI mandate the necessity to make an extended custody order in this case. 105 It is nevertheless appropriate to observe that this necessity, in part, appears to arise from the lack of progress in the respondent's psychiatric treatment over the past 13 years that the respondent has been detained in custody. 106 The objects of the CLMI Act also include that people such as the respondent are reintegrated into the community in a safe manner.89 The incarceration of those living with mental illness for a term of imprisonment years in excess of what they would serve if they were not unwell may well be necessary for the protection of the community; but it is well to remember that it is nevertheless a human tragedy. The tragedy is made all the more acute by the reality that prolonged imprisonment can make a person so institutionalised that their reintegration into the community may never be safely achieved. The mechanism adopted to protect the community thus itself may contribute to the potential danger the statute is intended to guard against. While in some circumstances that may be inevitable, the statutory object of societal reintegration requires every effort to avoid such an outcome. At this stage, it is not apparent to me that efforts to that extent have been fully explored or deployed. 107 For the reasons above, I am satisfied to the requisite standard that, to ensure the adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence, it is necessary to make an extended custody order in respect of the respondent. Limiting term 108 The limiting term for the extended custody order should be no longer than is necessary to achieve adequate protection of the community.90 In determining the limiting term, it is relevant to assess 88 CLMI Act s 7(1)(a) and s 8. 89 CLMI Act s 7(1)(c)(ii). 90 Attorney General v WAW [74], [153] (Lemonis J). -- 26 of 27 -- [2026] WASC 324 SOLOMON J Page 27 the likely time it will take for the respondent to have good prospects of making a successful transition to the community.91 109 As stated above, Dr Petch supported a limiting term of 12 to 24 months, in order to allow the respondent adequate time to transition from the Frankland Centre into the community. Dr Wynn Owen suggested that it could take up to three to five years before the respondent is suitable for placement in the community. 110 I have come to the view that a limiting term of two years, commencing upon the delivery of these reasons, is appropriate. Conclusion 111 For these reasons, I make an extended custody order in respect of the respondent. The limiting term of the extended custody order will be set for two years, commencing upon the delivery of this judgment. 112 Consistent with the objects of the CLMI Act, it is imperative that the next two years be utilised to every extent reasonably possible to address the treatment needs of the respondent. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. MS Associate to the Hon Justice Solomon 7 AUGUST 2026 91 Attorney General v WAW [154] (Lemonis J). -- 27 of 27 --