Perth High Risk Serious Offenders

High Risk Serious Offenders Act 2020 (WA)

This legislation (‘HRSO Act’) provides the State Government with the power to continue to detain or subject offenders to onerous supervision conditions long after they have served their sentence. If you receive notice that you are the subject of an application under the HRSO Act, it is imperative to obtain fulsome legal advice at the earliest opportunity. These are complex and involved applications. The team at Assurance Legal has the experience to represent you throughout this process.

If convicted of a serious offence, the DPP may make an application for a Restriction Order, to continue the detention of the offender or to supervise the offender beyond the expiration of their sentence.

Historically, a similar scheme was applied to ‘dangerous sexual offenders’. However, with the enactment of the HRSO Act in 2020, the number of offences to which this scheme applies was expanded drastically.

The HRSO Act still allows the WA Government to apply for Restriction Orders in relation to offenders who have committed sexual offences against adults or children. However, in addition, the WA Government can also seek Restriction Orders for offenders who have been convicted of other offences such as Arson, Dangerous Driving Causing Death or Grievous Bodily Harm, and Robbery.

A 5:2 majority in the recent High Court case of Garlett v Western Australia [2022] HCA 30 held that the HRSO Act does not require the Supreme Court to exercise a non-judicial function, does not adversely affect the integrity of the judiciary, and is therefore not unconstitutional. The State Government is within its powers to apply for a restriction order even in relation to robbery offences, as was the case in Garlett. It was held that the HRSO Act provides for a scheme requiring the Supreme Court to evaluate the circumstances of each case to determine whether a Restriction Order is necessary to protect the community.

• Court process
  • These applications must be filed by the DPP within the final 12 months of an offender’s sentence.
  • At a preliminary hearing, the Supreme Court will consider such factors as the nature of the offender’s record, substance abuse issues, psychological functioning, rehabilitation, and compliance with past Court orders to determine whether there is a reasonable chance that a person might be found to be a ‘High Risk Serious Offender’.
  • If so, the Court will impose either an interim Supervision Order or interim Detention Order, depending on whether the Court considers that there are adequate conditions that it can impose to ensure the protection of the community if the offender is released from custody.
  • The matter will then be adjourned for the offender to be examined by a psychiatrist and psychologist, with reports to be prepared for the Court in advance of the final hearing.
  • At a final hearing, the Court will determine whether an offender is a ‘High Risk Serious Offender’. If, after a comprehensive review of all relevant material, the Court determines that the offender is a ‘High Risk Serious Offender’, it must make a restriction order – either a Continuing Detention Order or a Supervision Order.

• Conditions of Continuing Detention Order
  • An offender subject to a Continuing Detention Order will be detained in custody for an indefinite term for control, care or treatment. The Continuing Detention Order will be re-evaluated after one year, and if affirmed, every two years thereafter.
  • In determining whether to reaffirm the Continuing Detention Order, the Court will assess the offender’s risk of reoffending, having regard to any changes in the offender’s circumstances, such as any completion of rehabilitation programs. If it is determined that an offender remains a High Risk Serious Offender, the Court may either affirm the Continuing Detention Order, or subject the offender to a Supervision Order. If it is determined that the offender is no longer a High Risk Serious Offender, the Court must rescind the Continuing Detention Order.

• Conditions of Continuing Detention Order

  An offender subject to a Supervision Order will be subject to strict monitoring conditions for a period specified by the Court. While the broader conditions of the Order will be determined with reference to the requirements of the specific case at hand, the following mandatory conditions apply to all Supervision Orders. The offender must:

  • Immediately report to Community Corrections to advise of the offender’s name and address;
  • Report to, and receive visits from, Community Corrections officers as directed by the Court;
  • Notify a Community Corrections officer of any change to the offender’s name, residence, or place of residence at least two days prior to the change occurring;
  • Comply with any reasonable direction of a supervising Community Corrections officer;
  • Not leave Western Australia without the permission of a Community Corrections officer;
  • Not commit a serious offence during the period of the Order; and
  • Be subject to electronic monitoring.

  Additional conditions will also be imposed, which can include residing at a specified address, complying with a curfew, attendance at rehabilitative treatment programs, prohibition from accessing social media or other digital platforms without permission, provision of all passwords to internet-enabled devices, and restrictions on employment, relationships, associations, memberships of certain organisations (e.g. those involving children).

• Breaching a Supervision Order
  • As is apparent, conditions of a Supervision Order are as extensive as they are strictly enforced. Failing to comply with these conditions is an offence with extremely serious consequences. If you have been charged with breaching a Supervision Order, it is in your best interests to obtain legal advice as soon as possible.
  • If an offender is charged with contravening a requirement of the supervision order without reasonable excuse, you may face penalties of up to 3 years imprisonment. A mandatory 12-month imprisonment term must be imposed unless the Court it is determined that it would be unjust in the circumstances to do so.
  • If an offender is charged with breaching a Supervision Order, the DPP may also make an application to rescind the Supervision Order and impose a Continuing Detention Order in its place, or to amend the terms of the Supervision Order (including extending the period of supervision). The DPP may also apply for the offender to be detained while breach proceedings are ongoing.