The approach to 'unacceptable risk' under s 7(1) of the High Risk Serious Offenders Act 2020 (WA), as outlined in Garlett v The State of Western Australia (2022) 277 CLR 1, applies to the assessment under s 110(3) of the Criminal Law (Mental Impairment) Act 2023 (WA). The assessment under s 110(3) involves a two-stage evaluative process: first, whether there is an unacceptable risk of serious offending; second, whether an extended custody order is necessary. The term 'rehabilitation, retraining or resocialisation requirements' in s 114(2) requires identification of a causal connection between the need for supervision, community protection, and specific requirements. Where a person under disability already has a guardian appointed under the Guardianship and Administration Act 1990 (WA) with authority to act as guardian ad litem, no separate court order under O 70 r 2(5)(b) RSC is required. Whether s 47(1) applies to s 110(1) applications, and whether O 70 RSC is excluded by the CLMI Act's own protective provisions, remain open questions.
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