McGarry v Director of Public Prosecutions (WA) [No 5]

The Supreme Court of Western Australia was presented with an application from Michael Alexander McGarry, who sought a review of his detention under the Dangerous Sexual Offenders Act 2006 (WA). McGarry's detention order was made on 24 September 2009, and he had not commenced serving this order until 5 August 2011 due to a subsequent prison sentence for additional sexual offences. The DSO Act mandates annual reviews of detainees, with Section 30 allowing for an additional review if the detainee can demonstrate exceptional circumstances. McGarry's application for a Section 30 review was made on 1 February 2013, after his first annual review on 20 September 2012. The basis of McGarry's application was that a deficit in his release planning, identified at the last review, had now been addressed through additional psychological treatment and an increase in his anti-libidinal medication dosage.

The legal issues before the court included determining whether the circumstances presented by McGarry constituted 'exceptional circumstances' as required by Section 30 of the DSO Act. The court had to interpret the phrase 'exceptional circumstances' within the statutory context, considering the ordinary and expected changes in a detainee's circumstances over a 12-month period. The court also had to assess whether the changes presented by McGarry were significant and unusual enough to warrant a departure from the mandatory annual review process.

In delivering the judgment, Hall J emphasised that the requirement for leave to make a Section 30 application was a substantive one, not a mere formality. The court must be satisfied that exceptional circumstances exist, which are both significant and unusual in nature. The court considered the evidence provided, which included a memorandum from the Manager of Forensic Psychological Services stating that McGarry had completed the risk scenario counselling to the satisfaction of his psychologist, though further benefits from continued therapy were uncertain. The court noted that while the completion of treatment was a change in circumstances, it was not significant or unusual enough to constitute exceptional circumstances. The court held that such changes were to be expected in the course of a normal 12-month period following an annual review and did not warrant an exceptional review. Consequently, the court refused leave to make the application and dismissed the application.

This decision underscores the high threshold for granting leave under Section 30 of the DSO Act and highlights the importance of distinguishing between ordinary changes in a detainee's circumstances and those that are truly exceptional.