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Key decisions

  • Garlett v Western Australia [2022] HCA 30

Constitutional law

Judicial power of the Commonwealth

In Garlett v Western Australia [2022] HCA 30 (7 September 2022) (‘Garlett’), the High Court was required to determine whether the High Risk Serious Offenders Act 2020 (WA) (‘HRSO Act’), insofar as its provisions apply to a person who has been convicted of a robbery, was contrary to Ch III of the Constitution by reason of the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (‘Kable).

In November 2017, Mr Garlett, in the company of others, broke into a home and, with threats of violence, stole a pendant necklace and $20 in cash. He was arrested the following day and pleaded guilty to offences of robbery and assault with intent to rob (‘November 2017 offences’). At the time of his arrest, Mr Garlett had a lengthy history of offending. Indeed, he committed the November 2017 offences a mere two months after being released from prison. Mr Garlett had a record of poor behaviour while in custody. He had abused alcohol and drugs from the age of 12. He admitted that at the time of the November 2017 offences, he had been injecting methylamphetamine daily.

On 29 July 2021, the State applied for a restriction order, under the HRSO Act, in relation to Mr Garlett based on the November 2017 offences. Section 35(1) of the HRSO Act provides the first respondent (‘State’) may apply to the Supreme Court of Western Australia (‘Court’) for a restriction order in relation to a ‘serious offender under a custodial sentence who is not a serious offender under restriction’. A ‘serious offence’ is defined in s 5(1) of the HRSO Act as an offence specified in Schedule 1. Relevantly, Schedule 1 lists robbery and assault with intent to rob as serious offences. Under s 48 of the HRSO Act, the Court must make either a continuing detention order or a supervision order if the Court finds the offender is a ‘high risk serious offender’. Section 7(1) of the HRSO Act provides that an offender is a ‘high risk serious offender’ if the Court is ‘satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence’. Section 7(3) of the HRSO Act sets out the range of matters the Court must have regard to in making this determination.

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