The State of Western Australia v Farrell
[2025] WASC 50
•20 FEBRUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- FARRELL [2025] WASC 50
CORAM: MCGRATH J
HEARD: 18 FEBRUARY 2025
DELIVERED : 18 FEBRUARY 2025
PUBLISHED : 20 FEBRUARY 2025
FILE NO/S: SO 9 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
NATHAN ALBERT REGINALD FARRELL
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:
Offender detained pending determination of contravention proceedings
Category: B
Representation:
Counsel:
| Applicant | : | Ms T-M Hollaway |
| Respondent | : | Mr G F H Chin |
Solicitors:
| Applicant | : | State Solicitor's Office |
| 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 Rao [2021] WASC 476
The State of Western Australia v Slater [No 2] [2021] WASC 465
MCGRATH J:
On 2 August 2024, the State commenced proceedings for the respondent to be subject to a restriction order under s 48 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act).
On 17 February 2025, the State commenced contravention proceedings under s 55 of the HRSO Act, relying upon the respondent's convictions for contravening the interim supervision order.
In support of the application the State has filed an affidavit of Ms Carvell, Senior Community Corrections Officer, affirmed 14 February 2025 and an affidavit of Mr McDonnell, legal practitioner, affirmed 17 February 2025.
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. Counsel for the respondent submitted that, given the circumstances, the interim detention of the respondent is not opposed. I find the concession of the respondent was properly made and that the respondent must be subject to interim detention pending the determination of the contravention proceedings for the following reasons.
Procedural history
On 27 September 2024, Forrester J heard the preliminary hearing and determined that there were reasonable grounds for believing that a court might find that the respondent is a high risk serious offender pursuant to s 46(1) of the HRSO Act. Her Honour made an order that the respondent be released on an interim supervision order until the final determination of the application.
On 24 November 2024, at the completion of his term of imprisonment, the respondent was released into the community.
Since his release, the respondent has been charged with numerous contravention offences and been convicted. The charges are outlined in detail in the affidavit of Ms Carvell.
The State's application pursuant to s 48 of the HRSO Act is listed to be heard before a judge of the court on 10 March 2025. These contravention proceedings will be heard at the same time that the State's application pursuant to s 48 is determined. In the meantime, I must determine whether or not the respondent should be detained pursuant to an interim detention order pending the determination of the substantial application.
The alleged contraventions
The conduct upon which the applicant relies in support of the contention that the respondent has contravened the interim supervision order comprises criminal convictions, pending charges and other behavioural issues. The charges and behavioural issues are particularised in the affidavits of Ms Carvell and Mr McDonnell.
The respondent has been charged with the following eight offences of contravening a requirement of a supervision order contrary to s 80(1) of the HRSO Act:
(1)On 28 November 2024, the respondent was charged with two offences. First, his failure to remain at his approved address during the curfew period, and second, that he tested positive to a random breath test with a subsequent reading of alcohol of 0.122. The respondent pleaded guilty and received a $500 fine and was released into the community.
(2)On 13 December 2024, the respondent attended urinalysis testing as directed in accordance with the conditions of his interim supervision order. The respondent tested positive to amphetamine and methylamphetamine. The respondent pleaded guilty and received a fine of $400 and was released into the community.
(3)On 20 December 2024, the respondent attended urinalysis testing as directed and he tested positive to amphetamine and methylamphetamine. The respondent pleaded guilty and received a suspended fine of $500 and was released into the community.
(4)On 27 December 2024, the respondent was charged with conspiring to possess or use a prohibited drug arising from the previous contravention. The respondent pleaded guilty and received a suspended fine of $500 and was released into the community.
(5)On 24 January 2025, the respondent returned a sample with a positive result of 0.098 in respect to alcohol. The respondent pleaded guilty and received a fine of $400 and was released into the community.
(6)On 24 January 2025, upon being placed under arrest for the previous contravention charge, the respondent kicked the door of the rear pod of the police vehicle and made a number of threats to officers. Accordingly, the respondent was charged with obstructing police officers. The respondent pleaded guilty and received a $750 fine and was released into the community.
(7)During the previous contravention charge, the respondent was placed in a holding cell where he made threats to officers to unlawfully do an act, namely assault the officers. The respondent pleaded guilty and received a $600 fine and was released into the community.
Ms Carvell deposes that during the period of the interim supervision order the respondent has only spent 35 days in the community and 54 days on remand in respect to the charges.
Mr McDonnell deposes that on 14 February 2025, the respondent was arrested and charged with a further offence of contravening a requirement of the interim supervision order. The charge concerns the alleged failure of the respondent to attend for urinalysis testing for alcohol and prohibited drugs. The respondent remains in custody pending the determination of that charge.
Ms Carvell also deposes that the respondent has had ongoing illicit substance and alcohol use issues in the community. Further, that concerns are held regarding the non‑compliance with his mental health medication regime and overall engagement issues with services provided by departmental officers and other professional persons.
The State submits that the respondent no longer has suitable accommodation. The respondent was residing with his father but that accommodation is no longer available. Therefore, immediately prior to this contravention application the respondent was residing in emergency accommodation at a hotel which is unsuitable.
Relevant legislative provisions
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.
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.
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.
As to the phrase 'substantially comply', this was considered by Fiannaca J in Director of Public Prosecutions (WA) v Hart,[1] in the context of contravention proceedings. I apply the reasoning of Fiannaca J.
[1] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].
An issue that arises for determination is whether it is necessary for the respondent to establish exceptional circumstances to justify his release or whether the onus is on the State to establish that the respondent be detained pending the contravention proceedings. The respondent was not brought before the Supreme Court under a warrant issued under s 51(3) or s 56(7)(d) of the HRSO Act. Rather, the State specifically relies upon s 53(1)(b) of the HRSO Act.
Quinlan CJ considered the relevance of s 56 of the HRSO Act to an application under s 53 in The State of Western Australia v Slater [No 2] stating: [2]
[2] The State of Western Australia v Slater [No 2] [2021] WASC 465 [15] ‑ [20].
The present application also points up another issue, which is the possible application of ss 56(2) and (3) of the Act to this case, and relationship of those provisions to s 53(2)(b).
Sections 56(2) and (3) provide:
(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).
An issue which arises in this case is whether the requirement for exceptional circumstances in s 56(3) is engaged in relation to the State's application. That, in turn, depends upon whether s 56(2)(a) is engaged.
In that regard, the first question is whether Mr Slater is 'detained in custody' within the meaning of s 56(2)(a).
Prima facie, in my view, 'detained in custody', within the meaning of s 56, means detained pursuant to the provisions of the Act. Section 56(2)(a) cannot be construed as providing this Court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences. In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act in relation to a suspected or anticipated contravention of a supervision order. An order of the Court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply - including the requirements of s 56(3).
Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).
Accordingly, in The State of Western Australia v Slater [No 2], Quinlan CJ held that given the respondent was not in custody, for the reason that the respondent was not brought before the court pursuant to a warrant under s 51 of the HRSO Act, then s 56(3) had no application. For that reason, the requirement in s 56(3) that there be exceptional circumstances did not apply.[3] I subsequently applied that reasoning in The State of Western Australia v Rao.[4] The State accepted that the reasoning of the Chief Justice in The State of Western Australia v Slater [No 2] applies in respect of the present application.
[3] The State of Western Australia v Slater [No 2] [24].
[4] The State of Western Australia v Rao [2021] WASC 476.
The respondent is not in custody under the HRSO Act. The State did not make an application to a magistrate for a warrant to arrest and to take the respondent into custody to be brought before the court. Rather, the respondent was charged with offences under s 80(1) of the HRSO Act and has yet to be granted bail.
Therefore, the respondent is in custody not subject to any warrant under the HRSO Act, but rather after his arrest for contravention offences. The State's application is that the respondent be detained in custody under s 53(2)(b), while the contravention proceedings under s 55 are pending. Accordingly, s 56(3)(a) has no application in respect of the respondent for the reason that the respondent is not in custody under the Act. Therefore, for that reason, it is not necessary that the release of the respondent be justified by exceptional circumstances. Rather, the State must establish 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.
Assessment of the application
I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.
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.
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.
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.
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.
Conclusion
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
20 FEBRUARY 2025
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