WA Introduces Bill To Treat Serious Violent Offenders In The Same Way As Dangerous Sexual Offenders

Friday 5 July 2019 @ 12.42 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On 26 June 2019, the WA Attorney General, the Hon John Quigley LLB JP MLA (the Attorney General) introduced into the WA Parliament the High Risk Offenders Bill 2019 (the Bill).  The Bill was broadly described by the Attorney General as legislation seeking to deal with serious violent offenders in the same way as dangerous sexual offenders are dealt with, while also establishing a new High Risk (Sexual and Violent) Offenders Board. In his second reading speech, the Attorney General said:

 "This Bill delivers . . . a high-risk offenders board and extend[s] the Supreme Court’s ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the Dangerous Sexual Offenders Act 2006. In doing so, this Bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the Dangerous Sexual Offenders Act."

The Key Difference to Current Sentencing

According to the Attorney General, the provisions of the Bill are complementary to the existing provisions of Part 14 of the Sentencing Act 1995 (WA) (the Sentencing Act), which allow a court to impose an indefinite sentence on an offender. They are complementary because both have regard to the protection of the community from the risk of re-offending by the offender and are informed of that risk by having regard to psychological, psychiatric or medical reports relevant to the offender. Unlike the Sentencing Act, where an indefinite sentence can be imposed only at the time of conviction, under the proposed law the relevant provisions are activated when an offender nears their earliest possible release date. 

Amendments In Detail

The Bill would expand the categories of offenders who currently fall under the Dangerous Sexual Offenders Act 2006 by introducing the term "high-risk offender", which includes "offenders who commit . . . serious violent offences and who present an unacceptable risk of re-offending in a like manner, if not subject to a continuing detention order or a supervision order". Clauses 3 and 7 of the Bill set out the test to be used by the Supreme Court of WA to determine whether an offender is a "high-risk offender". The Bill does not intend to change the test under the Dangerous Sexual Offenders Act that decides whether the court makes a "continuing detention" order or a "supervision order". Application can be made for a continuing detention order or a supervision order in respect of a serious offender under a custodial sentence and a person cannot be such an offender unless they have committed a serious offence.

Clauses 3 and 5 of the Bill define the term “serious offence”, referring to a list of offences contained in Schedule 1 of the Bill. The offences listed in Schedule 1 are all serious sexual offences and violent offences, most of which attract a maximum penalty of imprisonment for seven years or more. The Bill includes all serious sexual offences under the Dangerous Sexual Offenders Act and all offences contained in Schedule 4 of the Sentence Administration Act 2003 (WA), for the purposes of a post-sentence supervision order, are included in Schedule 1 to the Bill. The term "serious offences" is intended, according to the Attorney General, to also include

". . . offences against the law of the Commonwealth or any place outside Western Australia if the offender’s acts or omission that constituted the offence under that law would have constituted a serious offence if they had occurred in Western Australia, as well as prescribed Commonwealth offences." 

It should be noted that the Bill also proposes to deal with those offenders who use a firearm in the commission of an offence, as a result of a consequential amendment to the Sentencing Act which gives a court the power to declare an offence as a serious offence for the purposes of this Bill.

Two-tiered Scheme

In what is described by the Attorney General as a "unique feature", the Bill will establish a two-tiered scheme of post-sentence management to deal with high-risk offenders. 

The first tier is set out in Part 4 of the Bill.  According to the Attorney General, it provides, "the most stringent control of the highest risk offenders in order to protect the community through continuing detention orders and supervision orders". These order are to be collectively referred to as "restriction orders", are to be made by the Supreme Court, and are defined in clause 3 of the Bill. In Parts 4, 5, 6 and 7 the Bill contain provisions supporting the application process, disclosure of evidentiary material, the making of orders, amending of supervision orders, reviews of continuing detention, appeals and reports used to inform the court.

In practice, the first tier will start to operate in the lead-up to the offender’s earliest release date, which may be the date that they are eligible to be released on parole or the end of their term of imprisonment. At that point they will be assessed, based on their risk profile. If an offender’s risk profile warrants it, the Attorney General would be empowered to make an application to the Supreme Court for a restriction order. This will be done through State Solicitor or the Director of Public Prosecutions in the name of the state of WA, which has the burden of satisfying the Supreme Court, by acceptable and cogent evidence, and to a high degree of probability, that it is necessary to make an order for continuing detention or supervision to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. In the Supreme Court, matters are progressed by way of a preliminary hearing to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the offender is a high-risk offender. Following a finding that an offender is a "high- risk offender" the Bill details the process to be followed in reaching a final order.

Part 5 of the Bill ensures that continuing detention orders are reviewed at regular intervals and replicates the provisions of Part 3 of the Dangerous Sexual Offenders Act.

Part 6 of the Bill is modeled on Part 4 of the Dangerous Sexual Offenders Act and deals with appeals, which provide for the state or the offender to appeal to the Court of Appeal against a decision of the Supreme Court. However, the Bill now includes a provision clarifying that appeals only lie from final decisions of the court.

The second tier deals with post-sentence supervision orders, as found in Part 5A of the Sentence Administration Act, and applies to persons who are not at the highest risk of re-offending, but still present a significant risk of re-offending if not supervised beyond their term of imprisonment. This tier already effectively exists but according to the Attorney General, was in need of amendment to remove various potentials for court challenge to its constitutional validity. This is said to be addressed in the Bill. 

Current Status

The Bill is currently at second reading stage in the Assembly.  In commending the Bill to the house, the Attorney General said that he believes that the Bill delivers on the government's

".commitment to deal with those offenders for which the community expects the strongest response from the government and maintains our legacy to protect the Western Australian community, especially the most vulnerable, from sexual and violent offenders".

In a Media Release the Attorney General has indicated that in the Government's view:

"This new legislation will allow the courts to deal with WA's most dangerous and violent criminals in the same way as dangerous sexual offenders. . . . By expanding the current cohort of offenders under the Dangerous Sexual Offenders Act to include offenders who commit serious violent offences, we are making our community safer and protecting the most vulnerable from sexual predators and violent criminals."

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