The State of Western Australia v Tipping [No 2]

[2023] WASC 300

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TIPPING [No 2] [2023] WASC 300

CORAM:   DERRICK J

HEARD:   8 AUGUST 2023

DELIVERED          :   8 AUGUST 2023

FILE NO/S:   SO 5 of 2023

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

HIRIM GEORGE TIPPING

Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 - Whether an interim detention order or an interim supervision order should be made pending determination of restriction order application

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Interim detention order made

Category:    B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	T Hager

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid (WA)

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

Garlett v The State of Western Australia [2022] HCA 30

The State of Western Australia v Latimer [2006] WASC 235

The State of Western Australia v Patrick [No 5] [2022] WASC 61

The State of Western Australia v Tipping [2023] WASC 228

DERRICK J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction

1. On 22 June 2023 I heard the State of Western Australia's (State) application for orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the High Risk Serious Offenders Act 2020 (WA) (Act). I made the orders sought and listed the hearing of the restriction order application for 17 November 2023. I published reasons for my decision (primary judgment).[1]

   [1] The State of Western Australia v Tipping [2023] WASC 228.

2. Save to the extent that is necessary, I will not repeat what I said in the primary judgment.  These reasons should be read in conjunction with the primary judgment.

3. On 22 June 2023 I also made, for the reasons stated in the primary judgment,[2] orders as follows:

   1.The respondent be detained in custody until 9 August 2023 pursuant to s 46(2)(c)(i) of the Act; and

   2.The restriction order application be listed for a directions hearing on 8 August 2023 for the hearing of any application by the respondent pursuant to s 58(5) of the Act for an order that he be released on an interim supervision order.

   [2] The State of Western Australia v Tipping [100] - [112].

4. A primary reason for making an interim detention order in respect of the respondent at the time of the hearing on 22 June 2023 (preliminary hearing) was that the respondent did not have suitable accommodation available to him in the community.  I found that the absence of available suitable accommodation for the respondent was the factor that weighed most heavily against the conclusion that releasing the respondent on an interim supervision order would ensure adequate protection of the community.[3]  

   [3] The State of Western Australia v Tipping [110].

5. In accordance with the second of the orders referred to in par 3 above a further hearing has taken place before me today.  During the hearing the respondent did not make an application pursuant to s 58(5) of the Act for an order that he be released on an interim supervision order.

6. At today's hearing the State has sought an order pursuant to s 46(2)(c)(i) of the Act that the respondent be detained in custody until the final determination of the application for the restriction order.

Additional information

1. Since the preliminary hearing the State has provided some additional information in relation to the respondent's accommodation situation.  The additional information is accepted as accurate by the respondent.  The relevant additional information is as follows:[4]

   1.The respondent has been seen by a Senior Community Corrections Officer (CCO) with the Department of Justice's Community Offender Monitoring Unit (COMU) on 19 July 2023 and 4 August 2023;

   2.Since the preliminary hearing the respondent has not identified for the COMU any proposed address for his release;

   3.On 17 July 2023 the respondent made contact with the proprietor of Tate Street Lodge in relation to possible accommodation.  The respondent has been informed that he will need to pay a deposit of $1,000 to secure waitlisting with Tate Street Lodge.  At present the respondent only has approximately $8.00 in gratuities and no other source of money.  The respondent has not indicated how he could pay the required $1,000 deposit;

   4.The COMU has referred the respondent to the Uniting WA High Risk Serious Offender Supported Accommodation Programme (SAP) for accommodation and reintegration support.  The respondent met with Uniting WA representatives on 2 August 2023.  Uniting WA representatives are due to interview the respondent within the next two weeks to determine his suitability for acceptance into the SAP.  The respondent will have to engage in six months of pre-release support with Uniting WA before being accepted into the SAP unless a lesser period of pre-release support is able to be negotiated; and

   5.The COMU has provided the respondent with application and consent forms for placement on the Department of Communities, Housing public waitlist.  Once he signs the application and consent forms they will be submitted for review by the Department of Communities, Housing.  The respondent is aware that this is a longer term housing option.

   [4] Email from Ms Aimee Goode of the Community Offender Monitoring Unit to the State Solicitor's Office dated 4 August 2023 sent at 12.04 pm (exhibit 1); email from Ms Goode to the State Solicitor's Office dated 4 August 2023 sent at 3.39 pm.

2. Accordingly, the position that existed at the time of the preliminary hearing has not changed.  The respondent does not currently have available to him suitable accommodation in the community.  Further, on the evidence before me there is no basis for thinking that suitable accommodation will become available to the respondent prior to the hearing of the restriction order application.

Approach to determination of application for interim detention order

1. In determining whether to make the interim detention order sought by the State I must make an assessment of what is required to ensure adequate protection of the community pending the determination of the restriction order application.  In making this assessment I must bear in mind not only that the scheme of the Act requires that the court do no more than is necessary to achieve adequate protection of the community[5] but also that the court has not yet found the respondent to be a high risk serious offender.

   [5] The State of Western Australia v Latimer [2006] WASC 235 [24]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [2022] HCA 30[85], [229] - [230].

Parties' submissions

1. The State submits for substantially the same reasons as it gave at the preliminary hearing that in the absence of suitable accommodation for the respondent in the community it is necessary, to ensure adequate protection of the community, to make an interim detention order in respect of the respondent pending the determination of the restriction order application.  The respondent does not seek to argue to the contrary.

Decision

1. As I stated in the primary judgment, it is no small thing to order the detention of a person who has served his full sentence and who has not yet been found to be a high risk serious offender.  As I also stated in the primary judgment, I am very conscious of the need to do no more than is necessary to achieve adequate protection of the community.  Nonetheless, and for the reasons I gave in the primary judgment for making the interim detention order that is currently in existence, I am not, in the absence of suitable accommodation being available to the respondent in the community, satisfied that releasing the respondent without making any order so that he will be subject only to the post-sentence supervision order made in respect of him on 24 May 2023, or releasing him on an interim supervision order, will ensure adequate protection of the community.  To the contrary, I am satisfied that to ensure adequate protection of the community it is necessary to make an interim detention order detaining the respondent in custody until the final determination of the restriction order application.

Order

1. I order pursuant to s 46(2)(c)(i) of the Act that the respondent is to be detained in custody until the final determination of the restriction order application.

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

JP

Research Associate to the Honourable Justice Derrick

8 AUGUST 2023