THE STATE OF WESTERN AUSTRALIA -v- TJD [2026] WASC 333

[2026] WASC 333 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : THE STATE OF WESTERN AUSTRALIA -v- TJD [No 2] [2026] WASC 333 CORAM : WHITBY J HEARD : 10 AUGUST 2026 DELIVERED : 14 AUGUST 2026 FILE NO/S : SO 2 of 2011 BETWEEN : THE STATE OF WESTERN AUSTRALIA Applicant AND TJD Respondent Catchwords: Criminal law - High risk serious offender - Application for restriction order - Whether acceptable risk that respondent will commit a serious offence if not subject to a restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by supervision order - Turns on own facts Legislation: Dangerous Sexual Offenders Act 2006 (WA) High Risk Serious Offenders Act 2020 (WA) -- 1 of 24 -- [2026] WASC 333 Page 2 Result: Restriction order made Supervision order made Category: B Representation: Counsel: Applicant : G Colborne Respondent : D J McKenzie Solicitors: Applicant : State Solicitor's Office Respondent : Legal Aid (WA) Case(s) referred to in decision(s): Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 Director of Public Prosecutions (WA) v TJD [2011] WASC 83 Director of Public Prosecutions (WA) v TJD [No 2] [2012] WASC 142 Director of Public Prosecutions (WA) v TJD [No 3] [2013[ WASC 43 Director of Public Prosecutions (WA) v TJD [No 4] [2014] WASC 71 Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1, 28 The State of Western Australia v TJD [2026] WASC 54 The State of Western Australia v TJD [No 5] [2020] WASC 421 The State of Western Australia v UJG [No 2] [2023] WASC 77 -- 2 of 24 -- [2026] WASC 333 WHITBY J Page 3 WHITBY J: Overview and summary 1 On 31 March 2011, the respondent was declared a dangerous sexual offender under the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The respondent was made subject to a continuing detention order (CDO) by Commissioner Sleight.1 2 On 23 April 2012, McKechnie J rescinded the CDO and released the respondent to a supervision order for a term of 10 years (2012 SO).2 3 On 18 February 2013, after a series of contraventions of the 2012 SO, Corboy J rescinded the 2012 SO and made the respondent subject to a continuing detention order.3 4 At the first annual review on 11 March 2014, Commissioner Sleight rescinded the continuing detention order and made a further supervision order for a period of 10 years (2014 SO).4 5 In 2020 the DSO Act was repealed upon the commencement of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). Pursuant to s 125 of the HRSO Act, an order made under the DSO Act continues in effect and is taken to have been made under the corresponding provision of the HRSO Act. 6 On 24 November 2020, following contraventions of the 2014 SO, Archer J (as her Honour was then) amended the 2014 SO by adding additional conditions, and extending its duration for a further two years, with an expiration date of 10 March 2026.5 7 On 16 February 2026, the State of Western Australia (State) applied for a further restriction order pursuant to s 36 of the HRSO Act (application). The State seeks the following orders: (1) A restriction order, namely a supervision order, to be imposed under section 48 of the High Risk Serious Offenders Act 2020 in relation to the Respondent. (2) Orders pursuant to section 46(2)(a), (b) and (d) of the High Risk Serious Offenders Act 2020. 1 Director of Public Prosecutions (WA) v TJD [2011] WASC 83. 2 Director of Public Prosecutions (WA) v TJD [No 2] [2012] WASC 142. 3 Director of Public Prosecutions (WA) v TJD [No 3] [2013[ WASC 43. 4 Director of Public Prosecutions (WA) v TJD [No 4] [2014] WASC 71. 5 The State of Western Australia v TJD [No 5] [2020] WASC 421. -- 3 of 24 -- [2026] WASC 333 WHITBY J Page 4 (3) An order that, with effect from the date of such order, the supervision order made by Justice Archer on 24 November 2020 is to continue until the pending proceedings are finally determined or until another specified date. 8 On 27 February 2026, the application was before Quinlan CJ for a preliminary hearing. His Honour was satisfied there were reasonable grounds for believing that the court might find that the respondent remains a high risk serious offender (HRSO) and that the 2014 SO should continue in the interim, although he was not satisfied he had power to make an order on that date given the respondent was in custody, due to a contravention of the 2014 SO, and adjourned the application to 6 March 2026.6 9 On 6 March 2026, the application came before me, the respondent having been released from custody. I made an order that the 2014 SO continue until the pending proceedings are finally determined.7 10 For the reasons that follow, I am satisfied that it is necessary to make a restriction order against the respondent in order to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious sexual offence. I therefore find that the respondent is a HRSO. I am satisfied that the risk the respondent may commit a serious sexual offence is able to be managed within the community on a supervision order in the terms proposed. The term of the supervision order will be one year from 15 August 2026. Evidence on the application 11 At the hearing, the State, with the consent of the respondent, tendered a book of materials comprising of three volumes - volumes 1 and 2 dated 14 May 2026 and volume 3 dated 16 July 2026. They are exhibits 1.1 - 1.3. The book of materials contains background material including the respondent's criminal record, chronology of offending, sentence summary, records relating to the respondent's history in prison, individual management plans, transcript and records relating to the respondent's previous offences and criminal hearings, and post sentence reports and materials. 12 The book of materials also contains the following reports prepared for the purposes of the application: 6 The State of Western Australia v TJD [2026] WASC 54. 7 ts 06.03.2026. -- 4 of 24 -- [2026] WASC 333 WHITBY J Page 5 (1) HRSO treatment options report of Emma Cashmore dated 7 July 2026; (2) psychiatric report of Dr Gosia Wojnarowska 4 July 2026; (3) psychological report of Dr Ben Bannister dated 29 June 2026; and (4) community supervision assessment of Suzane Manton dated 6 July 2026. 13 The State also relies upon its written submissions dated 4 August 2026 and a minute of proposed supervision order. 14 The respondent elected to give evidence and cross-examine Dr Wojnarwoska, Dr Bannister and Ms Manton. 15 Counsel for the respondent submits that the respondent is not a HRSO. Statutory framework and legal principles applicable to the application 16 The objects of the HRSO Act are to provide for: (1) the detention in custody or the supervision of a HRSO to ensure adequate protection of the community and of victims of serious offences; and (2) continuing control, care or treatment of a HRSO.8 17 A 'serious offence' is defined by s 5 of the HRSO Act which relevantly provides: 5. Term used: serious offence (1) An offence is a serious offence if - (a) it is specified in Schedule 1 Division 1; or (b) it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division. (2) An offence is a serious offence if - 8 HRSO Act s 8. -- 5 of 24 -- [2026] WASC 333 WHITBY J Page 6 (a) it was an offence under a written law that has been repealed; and (b) the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1). (3) An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2). 18 Section 36 of the HRSO Act provides that the State may apply to the Supreme Court for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. 19 The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.9 20 The State has the onus of satisfying the court that the respondent is a HRSO in accordance with s 7(1).10 In considering whether it is satisfied that a person is a HRSO, the court must have regard to the matters set out in s 7(3) of the HRSO Act. The matters are as follows: (1) any report prepared under s 74 of the HRSO Act for the hearing of the application, and the extent to which the offender cooperated in the examination required by that section (s 7(3)(a)); (2) any other medical, psychiatric, psychological, or other assessment relating to the offender (s 7(3)(b)); (3) information indicating whether or not the offender has a propensity to commit serious offences in the future (s 7(3)(c)); (4) whether or not there is any pattern of offending behaviour by the offender (s 7(3)(d)); (5) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation program (s 7(3)(e)); 9 Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1, 28 [55] - [56]. 10 HRSO Act s 7(2). -- 6 of 24 -- [2026] WASC 333 WHITBY J Page 7 (6) whether or not the offender's participation in any rehabilitation program has had a positive effect on the offender (s 7(3)(f)); (7) the offender's antecedents and criminal record (s 7(3)(g)); (8) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence (s 7(3)(h)); (9) the need to protect members of the community from that risk (s 7(3)(i)); and (10) any other relevant matter (s 7(3)(j)). 21 Further, the court must disregard the possibility that the respondent might be temporarily prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.11 22 The words 'high degree of probability' import more than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt. They are otherwise not capable of further definition.12 The court is required to identify what it is that constitutes the risk and what makes it unacceptable, and then consider whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.13 23 A restriction order means a continuing detention order or a supervision order.14 A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.15 A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.16 The standard conditions of a supervision order include the requirement that the offender not commit a serious offence during the period of the order.17 11 HRSO Act s 7(4). 12 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA). 13 Director of Public Prosecutions (WA) v GTR [34]. 14 HRSO Act s 3. 15 HRSO Act s 26(1). 16 HRSO Act s 27(1). 17 HRSO Act s 30(2)(f). -- 7 of 24 -- [2026] WASC 333 WHITBY J Page 8 Issues to be determined 24 As a threshold issue, the application must meet the requirements of s 36 of the HRSO Act. The application does meet those requirements in the respondent's case because: (1) on 16 February 2026 (that is the date the application was made), the respondent was subject to the 2014 SO; and (2) the 2014 SO was due to expire on 10 March 2026, that is within 12 months of the date of the application. 25 Those threshold requirements having been satisfied, the issues I must decide on the application are: (1) is the respondent a HRSO within the meaning of s 7 of the HRSO Act?; and, if so (2) should the court make an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order or CDO)18 or that he be released into the community subject to conditions that the court considers appropriate (supervision order or SO)?19 26 In order to determine these issues, I will consider the matters specified in s 7(3) of the HRSO Act. Reports and assessments - s 7(3)(a), (b), (c), (d), (e), (f), (h) and (j) Dr Gosia Wojnarowska (Forensic Consultant Psychiatrist) 27 Dr Gosia Wojnarowska is a qualified expert within the meaning of the HRSO Act.20 Dr Wojnarowska interviewed the respondent on 8 June 2026 for a duration of two and a half hours21 and prepared a report dated 4 July 2026.22 28 In Dr Wojnarowska's opinion the Respondent fulfils the criteria for antisocial personality disorder and displays narcissistic traits.23 18 HRSO Act s 26. 19 HRSO Act s 27. 20 HRSO Act s 3; Exhibit 1.3, pages 805 - 806 [9]. 21 Exhibit 1.3, page 805 [7]. 22 Exhibit 1.3, pages 804 - 823. 23 Exhibit 1.3 page 814 [68]. -- 8 of 24 -- [2026] WASC 333 WHITBY J Page 9 29 Dr Wojnarowska undertook an assessment of the respondent's risk of reoffending using the Hare Psychopathy Checklist - Revised (PCL-R), and Static-99R assessment tools. 30 Under the PCL-R tool, which assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy, the respondent's overall score was 26/30 which indicates he possesses many features of psychopathy.24 31 Under the Static-99R tool, which positions offenders in terms of their relative degree of risk of sexual recidivism, the respondent's score of 7 in 2016 had reduced to 2, placing him in the 'Average Risk' range for recidivism.25 32 Although the Respondent has previously been diagnosed with sexual sadism, Dr Wojnarowska is of the opinion that, given his 14 years in the community without committing a further serious offence, the respondent does not fulfil the criteria for sexual deviance. This is a significant factor when assessing the risk of reoffending.26 33 In Dr Wojnarowksa's opinion the respondent's risk scenarios remain unchanged - the kind of sexual violence the respondent is likely to commit is nonconsensual sexual penetration involving a weapon and threats of violence with the likely victim being an adult female stranger. The risk is that the respondent would commit such an offence in the context of relationship conflict or a relapse of drug use.27 In Dr Wojnarowska's opinion the Respondent's risk of committing a serious sexual offence has reduced from high to moderate.28 34 Dr Wojnarowska recommends that the respondent be placed on a supervision order for a duration of 1 to 2 years, on conditions that are substantially and progressively relaxed, to allow the Respondent to transition from being subject to highly restrictive conditions before potentially being unconditionally released in the future. In Dr Wojnarowska's opinion that will give the respondent the opportunity to demonstrate that he can self-manage his own risk, rather than rely on the external constraints of supervision order conditions.29 24 Exhibit 1.3, page 815 [76]. 25 Exhibit 1.3, page 815 [74]. 26 Exhibit 1.3, page 817 [92]. 27 Exhibit 1.3, page 822 [125] and [127]. 28 Exhibit 1.3, page 823 [130]. 29 Exhibit 1.3, page 823 [130]. -- 9 of 24 -- [2026] WASC 333 WHITBY J Page 10 35 In oral evidence, Dr Wojnarowska said that the respondent's anti-social personality disorder and psychopathic personality traits increase the respondent's risk of offending in general terms, but those factors are not specifically related to sexual offending.30 Dr Wojnarowska confirmed that there are no grounds currently to diagnose the respondent with sexual deviance.31 36 Dr Wojnarowska gave evidence that if the respondent continues on his current trajectory, according to the Static 99R test, in five years he would be considered at a low risk of committing a serious sexual offence.32 37 Dr Wojnarowska gave evidence that, in her opinion, a sudden transition from strict supervision and monitoring conditions to no conditions at all would not serve the purpose of adjusting the respondent to his new life situation. Dr Wojnarwoska recommended that the respondent be subject to substantially fewer conditions and relaxed conditions to allow him to demonstrate that he is able to self-manage in the community.33 38 Dr Wojnarowksa recommended that the respondent be subject to a one to year supervision order on relaxed conditions, with one year being the minimum.34 In cross-examination Dr Wojnarowksa accepted that a supervision order of one year duration would be sufficient to allow the respondent to transition to self-regulating his risk of reoffending.35 Dr Benjamin Bannister (Consultant Forensic Psychologist) 39 Dr Bannister is a qualified expert within the meaning of the HRSO Act.36 Dr Bannister interviewed the respondent on 10 June 2026 and 15 June 2026 for a total duration of three hours and 45 minutes and prepared a report dated 29 June 2026.37 40 Dr Bannister assessed the respondent's risk of recidivism using the PCL- R and Violence Risk Scale: Sex Offender Version (VRS:SO) assessment tools. 30 ts 162. 31 ts 162. 32 ts 164. 33 ts 164. 34 ts 168 - 169. 35 ts 171. 36 HRSO Act s 3; Exhibit 1.4, page 1207 [2]. 37 Exhibit 1.3, pages 824 - 849. -- 10 of 24 -- [2026] WASC 333 WHITBY J Page 11 41 Using the PCL-R tool, the respondent's score placed in the 'high' range on the features of psychopathy scale.38 42 The VRS:SO consists of seven static factors and 17 variable factors that are important predictors of recidivism.39 The respondent's total score for these variables is 35 out of 72, placing him in the 'moderate high-risk' category for sexual offending.40 43 Dr Bannister is of the opinion the most likely risk scenario for the respondent is the commission of a minor offence arising from conflict with a person in authority.41 44 Overall, in Dr Bannister's opinion, the respondent's risk of committing a serious offence outlined in the HRSO Act is assessed as 'moderate' if not subject to a restriction order.42 45 Dr Bannister recommends, should the court make a supervision order, the conditions should be less restrictive to allow the respondent the opportunity to demonstrate that has reduced his risk through self-regulation. Dr Bannister recommends that the supervision order should be for a period of two years. 46 In oral evidence Dr Bannister said that, provided the respondent has stability in his life and there are no issues in his relationship, he would be surprised to see the respondent relapse into reoffending.43 In cross-examination Dr Bannister said that a supervision order of no more than two years would be appropriate.44 Emma Cashmore (HRSO Planning Manager) 47 Ms Cashmore prepared a Treatment Options Report (TOR) dated 7 July 2026 providing an overview of the respondent's intervention history and identifying treatment options available to the respondent through the Department of Justice. 48 The respondent completed the Violent Offenders Treatment Program in February 2009 and the Intensive Sex Offender Treatment 38 Exhibit 1.3, page 838 [72]. 39 Exhibit 1.3, pages 839 [75]. 40 Exhibit 1.3, page 846 [109]. 41 Exhibit 1.3, page 847 [114]. 42 Exhibit 1.3, page 848 [123]. 43 ts 178. 44 ts 178. -- 11 of 24 -- [2026] WASC 333 WHITBY J Page 12 Program in February 2010. He has also undergone extensive individual intervention with several psychologists. 49 Given both Dr Wojnarwoska and Dr Bannister do not recommend further criminogenic treatment for the respondent, no further treatment options are provided. Suzane Manton (Community Corrections Officer (CCO)) 50 Ms Manton prepared a Community Supervision Assessment (CSA) Report dated 6 July 2026.45 Ms Manton is the respondent's current CCO. 51 Ms Manton's report was prepared for the purpose of providing an overview of the respondent's compliance with his current SO, accommodation and community supports, instances of non-compliance with his SO since 30 October 2020 and strategies to manage offending behaviours. 52 Ms Manton details the respondent's history of non-compliance with the SO since 30 October 2020. The respondent has been convicted of 15 contraventions of the SO. The respondent has an additional conviction for a further contravention on 20 March 2026.46 53 In oral evidence Ms Manton confirmed that the HRSO unit could immediately implement the terms of any supervision order imposed by the court.47 Offending history of the respondent, propensity to commit serious offences in the future and patterns of offending - s 7(3)(c), (d) and (g) 54 I must consider the respondent's antecedents and criminal record including all prior offences to the extent that such offences are relevant to the question of whether the person is a HRSO within the meaning of the HRSO Act (whether they are serious offences or not). I must also have regard to the context in which the past offences were committed.48 55 The respondent's criminal record and antecedents are not only relevant in and of themselves, but are also relevant to whether the 45 Exhibit 1.3, pages 850 - 854. 46 Exhibit 1.1, page 1. 47 ts 185. 48 The State of Western Australia v UJG [No 2] [2023] WASC 77 [35]. -- 12 of 24 -- [2026] WASC 333 WHITBY J Page 13 respondent has a propensity to commit serious offences in the future, and whether there is any pattern of offending behaviour.49 56 The respondent's relevant criminal history has previously been summarised by Commissioner Sleight.50 I adopt that summary without repeating it. The respondent's offending history contains eight convictions for serious offences (as defined by the HRSO Act). His offending on one occasion was described by the sentencing Judge as 'sinister', 'frightening' and 'predatory'.51 57 The respondent's offending history indicates a propensity to violently offend against adult females who are strangers to him by forcing them to engage in sexual activity by the threat of violence and the use of weapons. The respondent's offending is usually accompanied by the use of illicit drugs and precipitated by relationship conflict. Rehabilitation of the respondent - s7(3)(e) and (f) 58 The respondent has completed the Violent Offenders Treatment Program in February 2009 and the Intensive Sex Offender Treatment Program in February 2010. He has also undergone extensive individual intervention with several psychologists. 59 Given both Dr Wojnarwoska and Dr Bannister do not recommend further criminogenic treatment for the respondent, there are no treatment programs or interventions that are currently recommended.52 The TOR of Ms Cashmore indicates that should risk relevant concerns arise, the respondent's Senior CCO can re-refer him to the Forensic Psychological Intervention Team (FPIT), and a re-assessment of his motivation and suitability to engage in intervention can occur at that time.53 Relevant personal history - s 7(g) 60 The respondent is now 50 years old. He was born in South Australia has three older sisters and one half-brother. His family relocated to Kalgoorlie when he was 8 months old. 49 HRSO Act s 7(3)(c) - (d); The State of Western Australia v UJG [No 2] [36]. 50 Director of Public Prosecutions (WA) v TJD [13]. 51 Exhibit 1.1, page 341. 52 Exhibit 1.3, page 783 [8]. 53 Exhibit 1.3, page 783 [9]. -- 13 of 24 -- [2026] WASC 333 WHITBY J Page 14 61 The respondent describes his family as abusive and emotionally distant. His parents separated when he was 9 years old and he lived with various family members. The respondent reports that he was sexually abused from the age of seven until 11 by two women and a man who were his babysitters. He says that he told his parents but they did not believe him. The respondent's mother died when he was 18 years old and in prison. 62 The respondent started using amphetamines and cocaine at the age of 13. He says that he last positive urinalysis test was for cannabis in 2012 and he had not used illicit substances since that time. 63 He lives with his wife, with whom he has been in a relationship with since 2012. The respondent's wife has been diagnosed with early onset dementia and diabetes. He has a 24-year-old son from a previous relationship with whom he is slowly building a relationship. He has support from his sister, nieces and nephews and his 82-year-old father who lives in the Phillipines. He is also part of a Holden Commodore social group where he has made friends and attends car shows and drives. 64 The respondent commenced full time employment as a mechanic on 1 July 2026, after recovering from a workplace injury. 65 The respondent says that he now just wants to work and be with his wife and knows how to reach out for help if he needs it. Risk of committing serious sexual offences if not subject to a restriction order - s 7(h) 66 I accept the evidence of Dr Wojnarowska and Dr Bannister that the respondent presents a moderate risk of committing a future serious offence (within the meaning of the HRSO Act) if not subject to a restriction order. The need to protect member of the community from that risk - s 7(3)(i) 67 Dr Wojnarowska is of the opinion that 'the likely psychological harm to the victims in the event of reoffence would be severe' and that '[t]he harm to the victim will be psychological leading to long term maladjustment, behavioural and emotional problems and likely long term mental illness or personality disorder.'54 54 Exhibit 1.3, page 822 [125]. -- 14 of 24 -- [2026] WASC 333 WHITBY J Page 15 68 The need to protect female members of the community from the respondent committing such an offence is high. Any other relevant matter - (s 7(3)(j) HRSO Act) 69 The respondent gave evidence at the hearing that he is now anti-drug and that his chances of using drugs in the future is zero.55 The respondent said that if he were not subject to a supervision order at all, he would not reoffend. He said that 'one victim is too many'.56 70 The respondent gave evidence that he has things in place in the community - his doctor, a forensic psychologist (Dr Tara Yewers), his wife and a good friend - that can help him if he ever feels like he is not coping.57 The respondent says that he has not relapsed into drug use and has not reoffended while on the SO due to his self-management and self-control rather than because he is subject to strict conditions. He said 'it was my own brain and my heart telling me enough's enough.'58 Is the respondent a HRSO? 71 In order to determine whether the respondent is a HRSO, I must be satisfied that it is necessary to make a restriction order against him in order to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence. 72 The court is required to be satisfied of two things - firstly, that the risk the respondent will commit a serious offence is unacceptable, and secondly, that it is necessary to make a restriction order. 73 The respondent says that there is not an unacceptable risk that he will commit a serious offence given the following matters: (1) he has not reoffended since he was placed on the SO (apart from contraventions of terms of the SO which did not involve serious offending); (2) he has returned over 300 urinalysis tests negative for alcohol and illicit substances during the period of his SO; (3) he has protective factors in the community - his stable relationship with his wife, his full time employment and his 55 ts 192. 56 ts 193. 57 ts 193 - 194. 58 ts 200. -- 15 of 24 -- [2026] WASC 333 WHITBY J Page 16 ability and willingness to access professional help if he is struggling; and (4) his last serious offence was committed in 2000 - he is now significantly older and it has been a very long time since he had any deviant sexual thoughts. 74 The respondent was frank during cross-examination about his index offending and the circumstances in which it occurred. I accept his evidence that he is committed to not reoffending and to comply with any conditions of a supervision order. His substantial compliance with a supervision order for over 12 years and the fact that he has not committed a serious offence during that time support the respondent's evidence. 75 However, I must consider the expert evidence before me. In the opinion of both Dr Wojnarowska and Dr Bannister, the respondent's risk of committing a serious sexual offence is moderate. Both experts gave evidence that the respondent's risk of committing a serious sexual offence would significantly increase if the respondent found himself in circumstances of relationship conflict combined with a relapse into illicit drug use. Dr Bannister gave evidence that it is not clear whether the strict monitoring and supervision conditions have been significant reasons why the respondent has not reoffended or relapsed to drugs, as opposed to the respondent's ability to self-regulate being the reason he has not reoffended.59 76 The respondent has contravened his SO. Relevant to his risk is a contravention which involved the respondent meeting his ex-partner to discuss their son. The respondent's index offending in 2000 was committed in the context of relationship conflict with this partner and anger that the respondent had towards her. Another contravention involved the respondent being convicted of disorderly conduct and obstruction of a public officer. The respondent gave evidence that this group of contraventions occurred when he was defending his wife from threatened violence.60 77 In my view even a moderate risk of the respondent committing a serious sexual offence is unacceptable given the serious harm such offending would cause to the victims. It is necessary to make a 59 ts 177, 180. 60 ts 200. -- 16 of 24 -- [2026] WASC 333 WHITBY J Page 17 restriction order to protect the community against that unacceptable risk. 78 The evidence satisfies me to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community from an unacceptable risk the respondent will commit a serious offence. 79 I therefore declare the respondent a HRSO. Continuing detention order or supervision order? 80 Having found that the respondent is a HRSO and it is necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence, I must decide whether to make a continuing detention order or a supervision order. 81 In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure the adequate protection of the community.61 82 The court should impose the order which is least invasive or destructive to the respondent's right to be at liberty while at the same time ensuring an adequate degree of protection to the community.62 83 A supervision order, under s 48(1)(b) of the HRSO Act, is least invasive or destructive of the respondent's right to be at liberty. I must, therefore, consider whether the release of the respondent on a supervision order ensures an adequate degree of protection to the community. 84 Adequate protection for the community does not require there is no risk of the respondent reoffending, rather it requires any risk is reduced to a reasonably acceptable level.63 85 I also cannot make a supervision order unless I am satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of such an order.64 61 HRSO Act s 48(2). 62 Director of Public Prosecutions (WA) v GTR [21]. 63 Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [103]. 64 HRSO Act s 29(1). -- 17 of 24 -- [2026] WASC 333 WHITBY J Page 18 86 The respondent has been on an SO order since March 2014 and, although he has contravened its conditions on several occasions, he has not committed any serious offences while subject to the SO. The SO has achieved its desired outcome. I am satisfied that the respondent will comply with the standard conditions of a SO. Supervision order conditions 87 Both Dr Wojnarowska and Dr Bannister are of the opinion that less restrictive conditions then the current SO ought to be imposed in order to give the respondent the opportunity to demonstrate that he can self-manage his risk. 88 The State proposed conditions of a supervision order that reflected a substantial relaxation of the respondent's previous SO conditions. At the hearing of the application, counsel for the respondent accepted that, in the event the court determined that the respondent was a HRSO, the proposed terms of the supervision order were appropriate. Following the hearing, counsel for the respondent, after conferring with counsel for the State, submitted by email that the following proposed condition could be removed:65 You must report to the Officer-in-Charge of the Serious Offender Enforcement Squad (SOES) at the Hatch Building, 144 Stirling Street, PERTH WA 6000, within 48 hours. You must also report to, and receive visits from, Police at times and at locations as directed by the Officer-in-Charge of SOES or his/her delegate; 89 Counsel for the respondent referred to Dr Wojnarowska's evidence that, in her opinion, this condition could be removed from the SO to permit the respondent to take responsibility for his own behaviour without being supervised closely.66 90 The State maintains that the condition is required to ensure that the power of the police (as part of the respondent's risk management team) to manage the respondent's risk is not curtailed. 91 I am satisfied that the conditions of the supervision order proposed, removing the reporting to police condition (proposed condition 10), reflect the opinions of the experts and are appropriate. The remainder of the proposed conditions, particularly the conditions requiring the respondent to be electronically monitored and to report to a CCO, are sufficient to manage the respondent's risk. 65 Condition 23 of the 2014 SO and condition 10 of the proposed SO. 66 ts 165 - 166. -- 18 of 24 -- [2026] WASC 333 WHITBY J Page 19 92 The issue is how long should the term of the supervision order be. Dr Wojnarowska gave evidence that a term of one year would be sufficient and Dr Bannister gave evidence that the term of the supervision order should be no more than two years. Given the respondent has been on an SO for over a decade without committing a further serious sexual offence, I am satisfied that a term of one year is adequate to allow the respondent to demonstrate that he is able to self-regulate his risk of reoffending and to transition to no conditions. 93 Accordingly, the respondent is released into the community subject to the supervision order in the terms attached and marked Annexure 'A'. The term of the supervision order is one year from 15 August 2026. -- 19 of 24 -- [2026] WASC 333 WHITBY J Page 20 ANNEXURE 'A' Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of one year from 15 August 2026, on the following conditions: You TJD, must: STANDARD CONDITIONS REQUIRED BY THE HRSO ACT 1. Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of your name and address; 2. Report to and receive visits from, a CCO as directed by the Court; 3. Notify a CCO of every change of your name, place of residence, or place of employment at least 2 days before the change happens; 4. Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32); 5. Not leave, or stay out of the State of Western Australia without the permission of a CCO; 6. Not commit a serious offence during the period of the Order; 7. Be subject to electronic monitoring under section 31; -- 20 of 24 -- [2026] WASC 333 WHITBY J Page 21 ADDITIONAL CONDITIONS Residence 8. You must live and pay rent at [address redacted] (not to be disclosed in Court) and spend each night at this address. You are not allowed to spend any night (1 or more) away from this address unless you have received written approval in advance from a CCO to do so; Reporting to a CCO and supervision by a CCO 9. You must report to, and receive visits from, a CCO at times and at places as directed by a CCO. A CCO will consider any work commitments you have when they arrange these reports and visits; Search of premises and vehicle by WA Police 10. If you are asked, you must allow Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow Police Officers to take any items that they believe breach the conditions of this order; 11. You must remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020 (WA); Disclosure/exchange of information 12. You must agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information; -- 21 of 24 -- [2026] WASC 333 WHITBY J Page 22 13. You must allow a CCO, WA Police, or other person or agencies approved by a CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history, without you being present during contact with these persons or agencies; Restrictions on contract with victims 14. You must not have contact, directly or indirectly, with the victims of your serious offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim Engagement Unit of the Department of Justice; 15. Unless contact with victims is permitted under condition 19, you must immediately physically leave any situation or immediate location in which contact is made with any victim of your serious offending (including being in the immediate presence of the victim), without engaging in conversation with the victim whether by word or gesture, and you must not look at the victim at any time; Criminal conduct 16. You must not commit any sexual offence, as defined in the Evidence Act 1906 (WA) s 36A; 17. You must not commit any other criminal offence where the maximum penalty includes imprisonment and which involves violence, threats of violence, or the possession of weapons or offensive instruments; 18. You must not possess, or consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to cannabis, unless the drug has been prescribed for you by a person authorised under the Medicines and Poisons Act 2014 (WA) and your use is in accordance with the instructions of the provider; -- 22 of 24 -- [2026] WASC 333 WHITBY J Page 23 Prevention of high-risk situation 19. You must not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by a CCO. This means you must not spend time with such a person or communicate with them, directly or indirectly, unless you have been given permission in advance to do so; 20. You must not possess, or drink or use alcohol, unless given permission in advance by a CCO; 21. You must attend for and submit to urinalysis or other testing for alcohol or prohibited drugs as directed by a CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place; 22. You must provide a valid sample for testing done under condition 21; 23. You must not stay in the presence of any person who you know is affected by prohibited drugs, or who you reasonably ought to know is affected by prohibited drugs; 24. You must not stay in any place where prohibited drugs are being consumed unless such a place is your approved residence. If the place is your approved residence, you must leave that part of the residence (room or yard area) in which the consumption is taking place; 25. If you want to start a domestic, romantic, sexual or otherwise intimate relationship, you must tell the person with whom you want to commence a relationship of your past offending and the current order. You must tell them before you begin the relationship. You must comply with any CCOs direction as to how you must tell such a person and what you must tell them. You must also allow a CCO or a Police Officer to check that you have properly and fully told the person about your past -- 23 of 24 -- [2026] WASC 333 WHITBY J Page 24 offending and the current order, without you being there or listening when they check that. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CS Associate to the Hon Justice Whitby 14 AUGUST 2026 -- 24 of 24 --