Continuing Detention Orders in New South Wales

The High Court of Australia has recently upheld the validity of a West Australian law relating to preventive or ‘continuing’ detention of inmates.

The case before the court involved 28-year-old Noongar man Peter Garlett, who sought to challenge his classification as a ‘high-risk offender’, which resulted in a decision for his incarceration to continue after his original sentence had expired.

The decision was made under the High Risk Offenders Act 2020 (WA), which provides that offenders who are found to pose a continuing threat to the community can either be subjected to ongoing detention or extended supervision in the community.

Ongoing detention or a ‘continuing detention’ order essentially involves a court ordering an offender to continue to be held in custody, past the end date of their imprisonment sentence.

The argument before the court centred on how the regime was ‘unconstitutional’ and breached principles previously set out in the case of: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

These principles enforce that a separation between the powers of the government and judiciary is necessary, and that a state cannot impose a non-judicial function upon its courts.

Garlett argued that continuing detention orders thus breached this function by making the Court punish inmates, even where they have done nothing wrong.

However, a majority of the High Court found that the imposition of ‘post-sentence’ detention did not involve judges exercising non-judicial functions or being punitive.

It found that rather than the Court merely following the government’s will, it was enforcing ‘protective’ orders aimed at preventing harm to the community.

Therefore, the Court held that an imposition of such an order amounted to the Court exercising judicial power, within determining whether an offender can be classified as ‘high risk’ and requires further imprisonment.

“The court, in making a restriction order, is required to act upon its own evaluative judgment, by reference to prescribed criteria, in order to determine whether such an order is necessary for the purpose of protecting the community from harm,” the Court noted in its majority judgement.

Despite this, Justice Michelle Gordon disagreed, ultimately finding that by extending detention for serious offenders, the Court was essentially attempting to prevent crimes ‘one offender at a time’ – which is a function of the executive.

Her Honour warned that judicial extension of time to be served was becoming normalised across Australia, which may lead to the blurring of the distinct role that the court plays in being the arbiter of rights disputes between citizens and the state.

Garlett was only 23-years-old at the time of the 2017 incident, which led to his conviction for aggravated robbery.

The offence involved him entering a dwelling, threatening those inside whilst pretending to be armed with a handgun, and stealing a pendant necklace and $20 in cash.

Garlett had a lengthy history of offending, which included numerous aggravated burglaries, robberies, stealing motor vehicles, and a record of poor behaviour whilst in custody.

He was sentenced in July 2019 to three years and six months imprisonment, which was backdated to commence on 20 November 2017.

On 12 January 2021, he was sentenced to a further five months’ imprisonment for an offence relating to damage caused whilst he was in custody, which extended his release date to 19 October 2021.

In the lead up to this, West Australian authorities made an application for his sentence to be extended.

Ultimately, Garlett was not made subject to a continuing detention order, aside from the further time he spent in custody following the preliminary hearing of the application.

The initial decision to pursue a continuing detention order by the West Australian authorities was subject to the challenge by Garlett.

Whilst the states and territories across Australia all have regimes related to continued detention for ‘high risk’ offenders, Western Australia is unique in that it expressly enables indefinite detention.

Furthermore, it may be argued that the state has a wider range of offences, that may lead to a person being deemed a high risk offender.

In Western Australia, schedule 1 of the High Risk Offenders Act 2020 (WA), lists serious offences that can lead to a person being deemed a high risk offender, and thus subject to an order.

Offences outlined range from sexual assault related offences, murder, kidnapping, robbery, stalking, and dangerous driving causing death or grievous bodily harm.

Section 7 lists a set of factors that, coupled with the commission of a serious offence, can lead to an offender being subjected to such an order.

These factors include:

• information indicating whether or not an offender may commit a further serious offence,
• whether or not there is any pattern of offending behaviour by the offender,
• any efforts made by the offender with respect to rehabilitation,
• the offender’s antecedents and criminal record,
• the risk posed by the offender, and the need to protect members of the community from that risk.

Section 26 of the Act allows for a ‘continuing detention order’ to be imposed on an offender for an “indefinite term.”

The Act also provides for an offender’s detention under a continuing detention order to be regularly reviewed.

Similar to other Australian states and territories, West Australia has also legislated supervision orders, which involve extended monitoring in the community, with an end date being stipulated.

What is a Continuing Detention Order?

A continuing detention order is where the state of NSW can apply to the Supreme Court for a prisoner to be continually detained past the expiration of his or her original imprisonment sentence if the prisoner has committed certain offences and satisfies certain factors.

Continuing detention orders are legislated under the Crimes (High Risk Offenders) Act 2006 (NSW), the Crimes (Serious Sex Offenders) Act 2006 (NSW) and the Terrorism (High Risk Offenders) Act 2017 (NSW).

The Crimes (High Risk Offenders) Act 2006 (NSW), and the Terrorism (High Risk Offenders) Act 2017 (NSW) both have provisions detailing that continuing detention orders made under either Act may be treated as equivalent.

Under the ‘Crimes (High Risk Offenders) Act’ continuing detention orders are legislated under Part 3.

It applies to those serving imprisonment for a serious offence, an offence of a sexual nature, those who have breached supervision orders, or those subject to an existing continuing detention order.

Under the ‘Crimes (Serious Sex Offenders) Act’ continuing detention orders are also legislated under Part 3.

It applies to those serving imprisonment for a serious sex offence, an offence of a sexual nature, or subject to an existing continuing detention order.

What is a ‘serious offence’? A serious offence is defined as a serious sex offence, or a serious violence offence. A serious violence offence, involves an offence punishable by 5 years of imprisonment or more, that is committed by a person:

• engaging in conduct that causes the death or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death or grievous or actual bodily harm to another person, or
• attempting to commit, or conspiring with or inciting another person to commit, the aforementioned conduct.

What is a ‘serious sex offence’? A serious sex offence is defined as a broad range of offences, including those carrying a maximum penalty of at least 7 year in prison, such as:

• sexual assault,
• aggravated sexual touching,
• sexual act with a child under 10,
• persistent sexual abuse of a child, or
• producing, disseminating, or possessing child abuse material.

Offences of a sexual nature are defined to include offences such as:

• using an intoxicating substance to commit a sexual offence,
• entering or breaking into a dwelling to commit a sexual offence, and
• failing to comply with reporting obligations under the Child Protection Registry.

Under the ‘Terrorism (High Risk Offenders) Act’ continuing detention orders are also legislated under Part 3.

An order may be sought in relation to those classified as a ‘convicted NSW’ terrorist offender, underlying terrorism offender or terrorism activity offender.

What is a ‘terrorist offender’? A terrorist offender is classified as a person who has been sentenced for being a member of a terrorist organisation, whereas an underlying terrorism offender is a person who has been sentenced for a serious offence which occurred in a terrorism context.

A terrorism activity offender is a person who has been sentenced for an indictable offence, and has been subject to a control order, has been a member of a terrorist organisation, or has previously advocated support for any terrorist act or violent extremism or has associations to any relevant group.

Here is more on terrorism laws.

All Acts essentially prescribe that a continuing detention order may only be made where it is satisfied that the offender poses an unacceptable risk of committing a further serious relevant offence if not kept in detention under the order.

Matters the court will consider when imposing an order include:

• the safety of the community,
• the offender’s criminal history,
• the views of the court which sentenced the offender, and
• the results of any assessment or report prepared as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment.

How Long Does a Continuing Detention Order Last?

Orders made under ‘Crimes (High Risk Offenders) Act’ and ‘Crimes (Serious Sex Offenders) Act’ cannot exceed 5 years, whereas orders under the ‘Terrorism (High Risk Offenders) Act’ are limited to 3 years.

However, further applications can be made for such orders at any time.

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