The State of Western Australia v ACW [No 6]

Case •

[2025] WASC 120

•

11 APRIL 2025

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ACW [No 6] [2025] WASC 120

CORAM:   MCGRATH J

HEARD:   10 APRIL 2025

DELIVERED          :   10 APRIL 2025

PUBLISHED           :   11 APRIL 2025

FILE NO/S:   SO 10 of 2019

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

ACW

Respondent


Catchwords:

Criminal law - High risk serious offender - Contravention proceedings - Application for interim detention pending determination of contravention proceedings - Need to ensure adequate protection of the community

Legislation:

High Risk Serious Offenders Act 2020 (WA) s 53, s 56

Result:

Respondent detained pending determination of contravention proceedings

Category:    B

Representation:

Counsel:

Applicant : Mr D S McDonnell
Respondent : Mr T Hager

Solicitors:

Applicant : Director of Public Prosecutions (WA)
Respondent : Legal Aid (WA)

Case(s) referred to in decision(s):

Director of Public Prosecutions (WA) v Hart [2019] WASC 4

The State of Western Australia v ACW [No 2] [2020] WASC 4

The State of Western Australia v ACW [No 3] [2022] WASC 41

The State of Western Australia v ACW [No 4] [2023] WASC 14

The State of Western Australia v ACW [No 5] [2023] WASC 433

MCGRATH J:

  1. The State has filed an application under s 55 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) commencing contravention proceedings in respect of the respondent. The State seeks an order under s 53(2)(b) of the HRSO Act that the respondent be detained in custody pending the finalisation of the contravention proceedings. In support of the application, the State relies upon the affidavit of Ms Stockton, sworn 9 April 2025, and the affidavit of Ms Hollaway, affirmed 10 April 2025.

  2. On 22 November 2019, the State applied for orders under the Dangerous Sexual Offenders Act 2006 (DSO Act) that the respondent was a serious danger to the community and that he be detained in custody or released subject to a supervision order under the DSO Act.

  3. On 2 December 2020, Archer J determined that the respondent was a high risk serious offender for the purposes of the DSO Act.[1]  The respondent's offending history and antecedents were outlined in detail in Archer J's reasons for decision.  Archer J determined that the respondent had significant outstanding treatment needs that could not be adequately met in the community.  Further, that the only accommodation available for the respondent in the community at the time was not satisfactory.[2]  Accordingly, Archer J ordered that the respondent be detained under the DSO Act.

    [1] The State of Western Australia v ACW [No 2] [2020] WASC 4 [80].

    [2] The State of Western Australia v ACW [No 2] [2020] WASC 4 [142], [145] - [163].

  4. On 16 February 2022, after the annual review of the respondent's detention, Archer J was satisfied that the respondent's risk may be managed in the community and accordingly, he was released on a supervision order.[3] 

    [3] The State of Western Australia v ACW [No 3] [2022] WASC 41.

  5. On 8 March 2022, the respondent was released into the community.

  6. On 13 February 2023, the State commenced contravention proceedings in respect to the respondent and applied for an interim detention order under the HRSO Act.  Archer J determined that the respondent should be detained pending the determination of the contravention proceedings.[4]

    [4] The State of Western Australia v ACW [No 4] [2023] WASC 14.

  7. On 13 November 2023, Solomon J determined that the respondent should be released on an amended supervision order.[5]

    [5] The State of Western Australia v ACW [No 5] [2023] WASC 433.

  8. The issue that I must decide is whether the respondent may be released on an interim supervision order pending the determination of the new contravention proceedings or be detained in custody.  Counsel for the respondent submitted that given the circumstances, the interim detention of the respondent is not opposed.  I find that submission was properly made and that accordingly, the respondent must be detained in custody pending the determination of the contravention proceedings for the following reasons.

Relevant legislative provisions

  1. The State brings the application under s 53 and s 56 of the HRSO Act. Section 53 of the HRSO Act provides:

    State may seek orders

    (1)This section applies to -

    (a)an offender who is brought before the Supreme Court under a warrant issued under section 51(3) or 56(7)(d); and

    (b)an offender who is charged with an offence under section 80(1).

    (2)In relation to the offender, the State may apply for -

    (a)an order under section 55; and

    (b)an order for the offender to be detained in custody while proceedings on the application for an order under section 55 are pending.

    (3)The application must state what order is sought under section 55.

  2. Section 56 of the HRSO Act, relevantly, provides:

    (1)This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect to the offender are pending (the pending proceedings).

    (2)The court may at any time in the pending proceedings -

    (a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or

    (b)if the offender is not detained in custody, order the offender to be detained in custody.

    (3)The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -

    (a)releasing the offender is justified by exceptional circumstances; and

    (b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).

    (4)The onus of proof as to the matter described in subsection (3)(b) is on the offender.

  3. The respondent was in custody pursuant to an arrest warrant under the HRSO Act. Therefore, I must apply s 56(3) of the HRSO Act.

  4. I must be satisfied on the balance of probabilities of both matters specified in s 56(3) before I can order the respondent's release.

  5. The term 'exceptional circumstances' used in s 56(3) is not defined in the HRSO Act. The term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special, or an exception to the general trend of cases.

  6. As to the phrase 'substantially comply', this was considered by Fiannaca J in Director of Public Prosecutions (WA) v Hart,[6] in the context of contravention proceedings.  I apply the reasoning of Fiannaca J.

    [6] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].

  7. The standard conditions of the supervision order referred to in s 56(3)(b) are those set out in s 30(2), which provides:

    A supervision order in relation to an offender must require that the offender -

    (a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and

    (b)report to, and receive visits from, a community corrections officer as directed by the court; and

    (c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and

    (d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and

    (e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

    (f)not commit a serious offence during the period of the order; and

    (g)be subject to electronic monitoring under section 31.

  8. The relevant questions to be decided are therefore as follows:

    1.Is the respondent's release justified by exceptional circumstances?

    2.If released, will the respondent substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?

Assessment of the application

  1. I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.

  2. Ms Stockton in her affidavit deposes that the respondent has a significant history of non-compliance, lack of co-operation, supervision failure and disengagement from services in the community designed to support him.  Ms Stockton further deposes that the respondent's behaviour most recently in the community highlights his difficulty with conforming to rules and that he is at risk of committing further serious sexual offences if he remains in the community.

  3. In respect to accommodation, Ms Stockton deposes that the respondent is currently being accommodated in emergency accommodation by way of a hotel in the CBD following his removal from the Unity WA Program due to non-compliance with program requirements and tenancy rules.  Therefore, the respondent has no suitable or appropriate accommodation available to him in the community at this time.

  4. Ms Hollaway outlines the offending history of the respondent whilst subject to the supervision order.  Ms Hollaway particularises each offence and the material facts upon which the respondent was charged. 

  5. On 12 July 2024, the respondent was sentenced to a total term of imprisonment of 6 months and 1 day in respect to two charges of contravening a requirement of a supervision order contrary to s 80(1) of the HRSO Act and thereby being in breach of a suspended imprisonment order that had been imposed on 15 December 2023 for contravening the supervision order.

  6. Between 29 December 2024 and 31 March 2025, the respondent was convicted of a further 12 offences of contravening a requirement of a supervision order contrary to s 80(1) of the HRSO Act.  The offences were dealt with by way of the imposition of fines in the Magistrates Court. 

  7. The respondent currently has a further 12 charges contrary to s 80(1) of the HRSO Act outstanding.  The respondent has been granted bail in respect to the contravention charges.

  8. In total, the respondent has spent the following periods in custody since 14 November 2023 whilst subject to the supervision order under the HRSO Act.

    1.8 December 2023 to 15 December 2023 (8 days on remand).

    2.29 December 2023 to 17 May 2024 (141 days on remand).

    3.17 June 2024 to 12 July 2024 (26 days on remand).

    4.12 July 2024 to 17 December 2024 (159 days as sentenced prisoner).

    5.31 December 2024 to 6 February 2025 (38 days on remand).

    6.21 February 2025 to 7 March 2025 (15 days on remand).

  9. A significant issue that has now arisen is that the respondent no longer has suitable accommodation in the community.  The respondent needs stable, appropriate accommodation to ensure that he will comply with his supervision order and to protect the community.

  10. I am satisfied, on the basis of the alleged contraventions that I have outlined, that the State has established that the protection of the community against the risk of the respondent committing a serious offence under the HRSO Act requires that he be detained.

  11. When the contravention offences are viewed together, and in light of other evidence that the State relies upon, there appears to be good reasons for the authorities to be concerned about their ability to manage the respondent in the community.

  12. On the basis of the information that I have at the time of hearing this application, I am not satisfied that the respondent would substantially comply with the standard conditions if released.  In particular, I am not satisfied that the respondent would substantially comply with the conditions regarding supervision by a community corrections officer and compliance with all reasonable directions issued by such an officer. 

  13. I am satisfied that exceptional circumstances have not been established that justify the respondent's release.

  14. Accordingly, I am satisfied that the respondent must be detained in custody to ensure the adequate protection of the community pending the determination of the contravention proceedings.

Conclusion

  1. Therefore, the respondent will be detained in custody pending the determination of the contravention proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CEM

Associate to the Hon Justice McGrath

11 APRIL 2025


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