When choosing between an indefinite detention order and an extended supervision order for a sexual offender, the court must consider the full range of powers available under the HRO Act, including the power to impose a continuing detention order upon breach of ESO conditions. A court cannot treat the choice as binary (detention with treatment versus release without treatment) when breach of an ESO would itself result in detention and compulsory treatment. The amendments to s 58 of the Sentencing Act 2017 (SA), which removed the power to release on licence and made indefinite detention effectively permanent absent proof of capacity and willingness to control sexual instincts or advanced age/infirmity, will be a weighty consideration against making indefinite detention orders where supervision alternatives exist.
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