The Court declined to make an extended custody order under s 110(3) of the Criminal Law (Mental Impairment) Act 2023 (WA) and instead made a three-year community supervision order under s 110(4) and (5), finding on the expert evidence that the respondent's risk of sexual reoffending — assessed as moderate without supports — could be adequately managed in the community through NDIS-funded accommodation, 24/7 support, medication supervision, and substance use restrictions. The Court confirmed that the test for an ECO under s 110(3) of the CLMI Act, while similar to the HRSO Act test, is discretionary rather than mandatory, and that prison is a last resort for persons with mental impairment, with the court required to do no more than necessary to achieve adequate community protection. The factors in s 47(1) of the CLMI Act, though directed at custody orders under Part 5, were treated as useful guides for assessing unacceptable risk and necessity under s 110(3).
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