The State of Western Australia v Tomasovich [No 2]

The State of Western Australia has applied for a restriction order in relation to Kamm Luke Levi Tomasovich, under the High Risk Serious Offenders Act 2020 (WA). The State contends that Mr Tomasovich is a high risk serious offender and that it is necessary that the court make an order detaining him in custody for an indefinite term for control, care or treatment. The issues that I must consider in this application are whether Mr Tomasovich is a high risk serious offender and if so, whether to make an order that Mr Tomasovich be detained in custody for an indefinite term for control, care or treatment (a continuing detention order) or that he be released into the community subject to conditions that the court considers appropriate (supervision order). Having considered the evidence in respect of the factors in s 7(3) of the High Risk Serious Offenders Act 2020, I am satisfied to a high degree of probability that Mr Tomasovich presents an unacceptable risk of committing a serious offence. Mr Tomasovich has been assessed by Dr Pyszora and Dr Yewers as presenting a high risk of serious offending and that offending would cause significant harm to his victims. That risk is unacceptable to the extent that it is necessary to make a restriction order in relation to Mr Tomasovich to ensure adequate protection of the community. I therefore find that Mr Tomasovich is a high risk serious offender within the meaning of the High Risk Serious Offenders Act 2020. Having concluded that Mr Tomasovich is a high risk serious offender, I must make a restriction order. The question is whether the court should make a continuing detention order or a supervision order. The court should choose the order that is least invasive or destructive of Mr Tomasovich's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community. In resolving whether the restriction order should be a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community. The court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that Mr Tomasovich will substantially comply with the standard conditions of the order. The onus of proving substantial compliance is on Mr Tomasovich. I am concerned about Mr Tomasovich's compliance with a supervision order having regard to the breaches of his interim supervision order. Although the State's witnesses accepted that some of these breaches were technical, the number of breaches is such that I am not satisfied that Mr Tomasovich would substantially comply with the standard conditions of a supervision order. I make an order that Mr Tomasovich be detained in custody for an indefinite term for control, care and treatment.