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The State Of Western Australia v. Mbw - (09 Mar 2018)

A person subject to a supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence

Criminal

The Respondent has a history of violent sexual offending. He was last convicted of a serious sexual offence on 1st September, 2017. The offence was committed on 25th June, 2016. It was committed while the Respondent was subject to a supervision order (the Supervision Order) made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The Respondent contravened a requirement of the Supervision Order by committing the sexual offence on 25th June, 2016. He further contravened requirements of the order on that date by consuming alcohol, leaving his approved residence without his hand-held electronic tracking device and exchanging text messages with sex workers. On 17th November, 2017, he pleaded guilty to four charges made under Section 40A of the DSO Act with respect to those contraventions. The State has applied for a continuing detention order under Section 23 of the DSO Act (the Contravention Application).

The State relied on the Respondent's convictions to establish that, the requirements of the Supervision Order had been contravened. Section 40A(1) of the DSO Act provides that a person subject to a supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence. Section 40B(4)(d) of the DSO Act provides that, any findings of fact made by the Supreme Court in proceedings on a charge made under Section 40A may be used in proceedings under the DSO Act. The Contravention Application was a proceeding under that part and division. However, the DSO Act does not contain a provision corresponding to Section 40B(4)(d) of the DSO Act where an offence against Section 40A(1) of the DSO Act has been tried in a court of summary jurisdiction. Accordingly, the effect of the DSO Act is that, the State was required to prove in the Contravention Application the fact of the respondent's conviction and the circumstances in which his contraventions had occurred.

The onus rests on the State to establish that, there is an unacceptable risk that the Respondent would commit a serious sexual offence if a continuing detention order was not made. The civil standard of proof on the balance of probabilities applies but the principles in Briginshaw v Briginshaw must be applied given the nature of the State's application.

By not opposing the State's application, the Respondent has, in effect, accepted that there is an unacceptable risk he would commit a serious sexual offence if a continuing detention order was not made (although, it is possible his consent was an acknowledgement that the outcome of the State's application is inevitable given the seriousness of his contravention of the Supervision Order). Section 23 of the DSO Act, requires the Court to be satisfied that a continuing detention order should be made but it would be an extraordinary result for an order not to be made where a respondent accepts that the grounds for the order have been established.

The risk of the Respondent committing a serious sexual offence in the future is high. The Respondent has derived little benefit from past psychological interventions due to his psychopathic personality traits and associated willingness to engage in deceptive and manipulative strategies in counselling. The Respondent was involved in on-going counselling at the time that, he committed the aggravated indecent assault in June 2016. However, neither counselling nor the requirements of the Supervision Order operated as sufficient protective mechanisms to prevent the Respondent from committing a serious sexual offence (nor in engaging in risky behaviour in the period immediately prior to the offence).

Doctor’s opinions, and the most recent sexual offence committed by the Respondent, strongly suggest that the factors contributing his risk of sexual offending are entrenched. They are likely to remain difficult to treat unless he is able to moderate the personality traits that condition his egocentric approach to counselling. However, he has demonstrated some capacity for control and it may be that, in the future, a combination of anti-libidinal medication, close supervision and intensive counselling could provide sufficient protection for the community. At present, the risk of the Respondent committing a serious sexual offence, if a continuing detention order was not made is, in my view, unacceptable.

Relevant : Briginshaw v Briginshaw (1938) 60 CLR 336

Tags : SEXUAL OFFENCE   DETENTION ORDER   CONTINUATION  

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