THE STATE OF WESTERN AUSTRALIA -v- WARMDEAN [2019] WASC 6 (14 January 2019)

1. As s 7(3)(j) implies, the list of matters to be considered by the court is not closed. There is clearly overlap between a number of the matters in the list, and some of the matters inform others.
2. It has previously been noted that, while s 7(3)(g) provides that the court must have regard to any criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they have occurred. However, past behaviour is often a good indicator of future conduct. Further, as I noted earlier, offences other than serious sexual offences may be relevant in assessing the risk of the respondent committing a serious sexual offence in the future, because they may demonstrate behaviour which has the real potential to lead to serious sexual offending
3. Once a court has concluded that an offender is a serious danger to the community, it must make either an indefinite detention order or a supervision order.[10] In deciding between those two possibilities, the paramount consideration is the need to ensure the adequate protection of the community.[11] That does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order.[12]
4. The court should choose the option which is least invasive or destructive of the respondent's right to be at liberty. At the same time it must ensure an adequate degree of protection of the community.[13] Therefore, if the court is not satisfied that a supervision order is capable of providing adequate protection of the community (having regard to the possible conditions which might be imposed, as identified in the evidence), it must make a continuing detention order.[14]
5. Section 17(3) of the Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. Pursuant to s 17(4) of the Act, the onus of proof is on the respondent. These provisions were introduced as a result of an amendment that commenced on 29 March 2018.[15]
6. The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act as meaning a condition under s 18(1) that must be included in the order. Section 18(1) of the Act provides seven conditions that must be included in a supervision order. Therefore, the effect of s 17(3) and 17(4) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order. I have expressed my views as to what is meant by substantially comply with in Director of Public Prosecutions (WA) v Hart [2019] WASC 4. In essence, I consider that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.[16]
7. Although it was not raised by either party, there is a possible argument that s 17(3) and s 17(4) do not apply in this case because the application in these proceedings was filed before those subsections came into operation.[17] The bases for such an argument and the contrary argument were discussed in The State of Western Australia v A by Corboy J at [50] - [56] and in The State of Western Australia v Newland by Hall J at [25],[18] although in each case the judge came to the conclusion that it was not necessary to determine the issue. That was also the case in The State of Western Australia v Bentley (a Division 2 hearing) and in Director of Public Prosecutions (WA) v Allen [No 5] (a periodic review under s 33 of the Act).
8. I have come to the same conclusion in this case, because, regardless of whether or not s 17(3) and s 17(4) have effect, the evidence adduced by the applicant plainly establishes that there are no conditions that could adequately reduce the risk that the respondent would commit a further serious sexual offence if released on a supervision order. The requirement in s 17(3) is one consideration (albeit a determinative consideration if the court is not satisfied it has been met) in determining whether the offender's risk can be managed adequately in the community, so as to provide adequate protection of the community.
9. I am inclined to agree with the views expressed by Corboy J in The State of Western Australia v A that, even before the amendment, s 17 required consideration of the likelihood of an offender complying with the standard conditions (and any other conditions) to be imposed if a supervision order was made, and if there was real doubt about whether the offender would comply with a supervision order, the court could not be satisfied that the community could be adequately protected by such an order. However, in this case, apart from any question of whether the respondent would comply with the standard conditions, I am not satisfied that a supervision order would provide adequate protection of the community.
10. Had the issue of substantial compliance been a live one in this case, I would have sought submissions from the parties in respect of the controversy that has arisen in the other cases, which was not considered at the hearing. That has not been necessary.

(2007) 35 WAR 297

(2008) 38 WAR 307