The State of Western Australia v Clarke [No 2]

In this case, the State of Western Australia sought a restriction order against the respondent, Johnathan Leon Martin Clarke, under the High Risk Serious Offenders Act 2020 (WA) (the Act). The application followed the completion of the respondent's sentence for two serious offences, aggravated sexual penetration without consent and aggravated assault occasioning bodily harm. The court heard evidence from expert witnesses, including a forensic psychologist, a forensic psychiatrist, a high-risk serious offender planning manager, and a senior community corrections officer. The court was required to decide whether the respondent was a high-risk serious offender and, if so, whether a continuing detention order or a supervision order should be made.

The court found that the respondent was a high-risk serious offender and that a continuing detention order should be made in respect of him. The court considered the respondent's antecedents and offending history, which revealed a pattern of violent and sexual offending, often linked to intoxication. The court also considered the reports of the expert witnesses, which assessed the respondent's risk of reoffending as high and identified his unmet treatment needs in relation to sexual offending, violent offending, intimate relationships, emotional and behavioural self-management, and substance use. The court concluded that the respondent's unmet treatment needs and the risk he presented of committing a serious offence unless those treatment needs were addressed were so significant that a supervision order would not afford adequate protection of the community. The court also noted the absence of suitable accommodation for the respondent in either Broome or the Perth metropolitan area, making it impossible to be satisfied that a supervision order was a viable option.

The court made a continuing detention order in respect of the respondent, with the purpose of providing care and treatment for him, including participation in a Sex Offender Intensive Treatment program, a Violent Offender Intensive program, a Pathways program for intensive substance use intervention, and individual psychological counselling. The court also noted the disproportionate effect the Act has on Indigenous Australians, who may be deprived of the possibility of a supervision order and subjected to a continuing detention order due to the lack of suitable accommodation options in their regions.