The State of Western Australia vs. Gorham

Australia

26.11.2022

Criminal

If the Court hearing a restriction order application finds that the offender is a high risk serious offender, the Court must make a continuing detention order

In facts of present case, on 23 November 2021, the State of Western Australia applied for orders under the High Risk Serious Offenders Act, 2020 (HRSO Act). The State contended that the Respondent was a serious danger to the community and sought an order that he be detained in custody for an indefinite term or, if released, be made subject to a supervision order.

Under Section 35 of the HRSO Act, the State may seek a 'restriction order' in relation to a 'serious offender under custodial sentence' who is not a 'serious offender under restriction'. A restriction order is a 'continuing detention order' or a 'supervision order'. At the time the application was made, the respondent was a serious offender under custodial sentence. He was not already the subject of a continuing detention order or a supervision order, and was therefore not a serious offender under restriction. Section 43 of the HRSO Act requires there to be a preliminary hearing of an application made under Section 35. The purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the offender is a 'high risk serious offender'. If a court is so satisfied, it must order reports and set a date for the hearing of the application.

Section 48 of the HRSO Act provides that, if the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make a continuing detention order in relation to the offender; or except as provided in section 29, make a supervision order in relation to the offender. In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

There is the nature of offence that the Respondent would be at risk of committing. If he had enough time, he may commit murder. There is the Respondent's attitude towards treatment. The respondent has repeatedly demonstrated an incapacity or unwillingness to control his violent behaviour. Present Court is satisfied that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent would commit a serious offence. Accordingly, the Respondent is a high risk serious offender. Therefore, present Court must make a continuing detention order or a supervision order.

Tags : High risk Custody Detention

Share :