AB v The Secretary to the Department of Justice and Community Safety

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0021

AB (A PSEUDONYM )[1]	Appellant
v
SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Respondent

[1]Because this is an appeal in respect of a supervision order granted under the Serious Offenders Act 2018, to ensure that there is no possibility of identification this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	NIALL CJ and T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2025
DATE OF JUDGMENT:	28 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 119
JUDGMENT APPEALED FROM:	[2024] VCC 178 (Judge Hinchey)

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CRIMINAL LAW – Appeal – Supervision order under Serious Offenders Act 2018 – Appellant convicted of serious sex offences – Whether judge erred in imposing residence condition – Whether evidence wrongly admitted – Whether appellant afforded fair hearing – High risk of re-offending – No error established – Appeal dismissed.

Charter of Human Rights and Responsibilities Act2006; Serious Offenders Act 2018 ss 8, 14, 19, 27, 28, 29, 33, 34, 35, 36, 40, 41, 115, 119, 121, 134.

Greene v Secretary to the Department of Justice and Community Safety [2021] VSCA 79; House v The King (1936) 55 CLR 499; Nigro v Secretary to the Department of Justice (2013) 41 VR 359; Thompson v Minogue (2021) 67 VR 301; WBM v Chief Commissioner of Police (2012) 43 VR 446 applied.

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Counsel
Appellant:		AB (A pseudonym) (Self-represented)
Respondent:		Mr O P Holdenson KC
Solicitors
Appellant:	N/A
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ
T FORREST JA:

As a preliminary matter, we note that s 277 of the Serious Offenders Act2018 (the ‘Act’) prohibits the publication of material, including any evidence given in a proceeding before a court under the Act, or the content of any report or other document put before a court in a proceeding under the Act. Section 278(1) of the Act allows the court, if satisfied that exceptional circumstances exist, to make an order authorising the publication of any material referred to in s 277. No order under s 278(1) has been made authorising the publication of any material referred to in s 277.
On 31 January 2024, a judge of the County Court made a supervision order under the Act in respect of the appellant (the ‘31 January 2024 order’). That order was made because the judge was satisfied, to a high degree of probability, that the appellant posed an unacceptable risk of committing a serious sexual offence if he was in the community and not subject to a supervision order.[2] The supervision order was made for a term of five years and contained a number of conditions, including that the appellant reside at a residential facility within the meaning of the Act or where otherwise directed by the Post Sentence Authority (the ‘PSA’).
[2]Secretary to the Department of Justice and Community Safety v AB (a pseudonym) [2024] VCC 178, [77] (‘Reasons’).
Before the judge, the appellant, who was represented by counsel, did not oppose the making of the order but contended that it should be of two years’ duration, rather than the five years sought, and should not contain a condition that required him to reside at a residential facility. Rather, the appellant sought to be permitted to live with his mother and stepfather at their property in regional Victoria (the ‘Family Residence’).[3] The appellant seeks to overturn the residence condition.
[3]Ibid [2].
As may be expected of a supervision order, the order and the scheme under which it is made contemplate not only judicial oversight in the form of a review but also supervision, treatment and rehabilitation which may mean that the impact of the order changes over time. Here, the judge directed that, in the event the appellant remained at a residential facility the matter would be brought before her Honour to see what steps had been taken to transition the appellant into suitable accommodation.[4] In fact, after the order was made in January 2024 the appellant was permitted by a direction of the PSA to reside in private accommodation. For various reasons, including his plea of guilty to offences for breach of obligations under the Sex Offenders Registration Act 2004, he was subsequently directed by the PSA to return to the designated residential facility (the ‘designated facility’) where he currently resides.
[4]Ibid [66].
Later in 2024 the judge granted leave to the appellant for a review of the conditions under s 110 of the Act. Her Honour conducted that review in November 2024, including by holding a hearing at which the appellant was represented by counsel. At the conclusion of this hearing her Honour confirmed the order (the ‘27 November 2024 order’).
The appellant seeks to appeal the residence condition imposed by the 31 January 2024 order on the following four grounds:
(1)Ground 1: the judge erred in her decision to impose a condition relating to ‘residence’;
(2)Ground 2: evidence provided by Dr Godfredson should not have been admissible;
(3)Ground 3: evidence provided by Ms Newman should not have been admissible; and
(4)Ground 4: the right to a fair trial and procedural fairness was not afforded to the appellant.
In addition, by a letter to this court dated 15 December 2024, the appellant seeks to challenge the 27 November 2024 order on the ground that he was denied a fair hearing and that the order should not have been confirmed. Although irregular in form, it is in the interests of justice to treat this communication as a notice of appeal from the 27 November 2024 order.
For the reasons that follow, the appeals against the 31 January 2024 order and the 27 November 2024 order must be dismissed.
By way of further general introductory point, we have not lost sight of the significance and burden imposed by a condition that requires an offender to reside at a residential facility. Such a condition is a very significant intrusion into the rights of the person and significantly reduces their autonomy. Inevitably, it will mean that the person will be forced to associate with or live in the same facility as other persons who are also offenders and who, by reason of their behaviour or disposition, pose an unacceptable risk to the community which justifies the making of a supervision order against them.

The statutory provisions

It is not necessary to rehearse all of the provisions of the Act. In short, a supervision order can be made in respect of an ‘eligible offender’ which relevantly means a person of or over the age of 18 years who is serving a custodial sentence in Victoria for a serious sex offence.[5]
[5]The Act, s 8(1).
On application by the Secretary under s 13 of the Act, the court may make a supervision order only if it is satisfied that the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence, a serious violence offence, or both, if they are in the community and a supervision order is not made.[6] To make an order, the court must be satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk.[7]
[6]Ibid s 14(1).
[7]Ibid s 14(3).
In determining whether or not the offender poses an unacceptable risk the court must have regard to various stipulated matters, including any assessment report or progress report filed in relation to the application whether by the Secretary or the offender, any other report filed or evidence given in relation to the application, and any other matter the court considers appropriate.[8] The court must not have regard to the means of managing the risk or the likely impact of a supervision order on the offender.[9]
[8]Ibid s 14(2)(a).
[9]Ibid s 14(2)(b).
Section 15 provides that the supervision order is subject to the core conditions set out in s 31,[10] and any other conditions that the court imposes under div 3 of the Act. Unless revoked earlier, a supervision order is to be for a period not exceeding 15 years specified by the court in the order.[11]
[10]The core conditions of a supervision order apply to an offender during the period of the order, irrespective of when the order is made. They include, inter alia, conditions prohibiting the offender from engaging in behaviour or conduct that threatens the safety of another person, requiring the offender to notify the PSA of any change in employment or new employment (whether paid or unpaid) at least two days prior to commencement, and directing that the offender not leave Victoria without the permission of the PSA.
[11]The Act, s 19(1).
Division 3 of the Act commences with s 27. That section provides that the primary purpose of the conditions of a supervision order is to reduce the risk of the offender re-offending by committing a serious sex offence or other relevant offence.[12] The secondary purpose is to provide for the reasonable concerns of the victim or victims of the offender in relation to their own safety and welfare.[13] Sections 27(3) and 27(4) go on to provide:
[12]Ibid s 27(1).
[13]Ibid s 27(2).
(3)In order to reduce the risk of the offender re-offending, the conditions may—
(a)promote the rehabilitation and treatment of the offender; and
(b)address the types of behaviour that may increase the risk of the offender—
(i)committing a serious sex offence or a serious violence offence or both or an offence referred to in Schedule 3; or
(ii)engaging in any behaviour or conduct that threatens the safety or any person (including the offender).
(4)The court must ensure that any conditions of a supervision order (other than the core conditions)—
(a)constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and
(b)are reasonably related to the gravity of the risk of the offender re-offending.
Section 28 allows for the Secretary and the offender to make submissions in relation to the conditions of the supervision order and requires consideration of any submission made by a victim of the offender received under s 134 of the Act.[14] Section 29 provides that in considering a condition to impose on a supervision order (other than a core condition) the court must consider any certificate of available resources provided by the Secretary. The court must not impose a condition on a supervision order that is inconsistent with a certificate of available resources.[15] We note that no certificate was supplied by the Secretary in respect of the appellant.
[14]Ibid s 28.
[15]Ibid s 29.
Section 33 provides that, when making a supervision order, the court must consider imposing conditions of the kind referred to in ss 34 and 35. Section 34 deals with conditions relating to residence. It empowers the court to impose a condition in relation to where the offender is to reside, including whether the offender is to reside at a ‘residential facility’, the hours the offender must be present at the place of residence, and the circumstances under which the offender may leave the place of residence.[16] Section 36 allows the court to impose a condition authorising the PSA to give directions to an offender in relation to the operation of any condition of a supervision order, including authorising the PSA to direct that an offender is to reside at a residential facility.[17]
[16]Ibid s 34(1).
[17]Ibid s 36(2). This power arises only if the offender has been given a custodial sentence for serious sex offence.
Section 35, headed ‘suggested conditions’, refers to a number of conditions the court may consider imposing on a supervision order, including in relation to the places the offender may or may not visit, or the type of treatment or rehabilitation programs in which the offender must participate.
Sections 40 and 41 allow for some conditions, including residence conditions, to be declared ‘restrictive conditions’.
Part 9 confers rights of appeal in relation to orders made under the Act including supervision orders. Section 115 relevantly provides that an offender who is subject to a supervision order may appeal to the Court of Appeal against a decision made by a court to, inter alia, make the order or impose conditions (other than core conditions) on the order.[18] An appeal brought under s 115 is as of right and is not subject to a grant of leave to appeal. Notably, the section appears to treat an appeal against the imposition of a condition as being the subject of a separate right of appeal rather than as an aspect of an appeal against the supervision order itself. Section 121 confers on this Court powers in respect of an appeal to make any order that the court considers appropriate, including making an order confirming the decision or, if the decision was to vary or add a condition to a supervision order, an order revoking or varying that condition.[19]
[18]Ibid s 115(1)(a), (c).
[19]Ibid s 121.
Section 119 of the Act provides that in considering an appeal, this Court may consider new evidence that is relevant to the application and direct the Secretary to provide a new assessment report or progress report in respect of the offender.[20]
[20]The Act, s 119(2).

The case below – 31 January 2024 order

The appellant is an ‘eligible person’.
In December 2009 the appellant was convicted and sentenced for a number of serious sex offences including two counts of rape.[21] The victim was 15 years of age at the time of the offence and was in the care of the then Department of Health and Human Services.
[21][REDACTED].
On 22 February 2017 the appellant was released on parole. In around June 2018 he was charged with further sexual offending and on 26 June 2018 his parole was cancelled. On 4 July 2018 he was remanded in custody on the outstanding charges, which involved sexual assault of a child under 16 years of age, unauthorised supply of a drug of dependence, breaching parole and failure to comply with reporting obligations. On 13 April 2021 the appellant was convicted of these charges. The appellant was convicted and sentenced to a further term of imprisonment.[22] This custodial sentence expired on 2 March 2024.
[22][REDACTED]. The trial was by judge alone. An application for leave to appeal to the Court of Appeal against conviction was refused: [REDACTED].
On 20 August 2020, the Secretary to the Department of Justice & Community Safety (the ‘Secretary’) applied for a supervision order in respect of the appellant. An interim supervision order was made on 10 September 2020.
In support of the application for a supervision order, the Secretary relied on an assessment report dated 9 October 2023 authored by Dr Joel Godfredson, a clinical and forensic psychologist. That report set out in some detail the opinion of Dr Godfredson based on three interviews conducted with the appellant in September and October 2023, the results of a number of risk and personality assessments taken by the appellant, and relevant material relating to the appellant’s offending and custody. Dr Godfredson concluded that the appellant poses a high risk of committing future serious sex offences, and considered that the appellant warrants a ‘high intensity of interventions’ to mitigate his risk of sexual recidivism. He recommended that the appellant be prohibited from having unsupervised contact with adolescent females and noted that it may be necessary to monitor his electronic devices. Dr Godfredson said:
Were [AB’s] risk to materialise, he would most likely commit further sexual offences in the context of a lifestyle characterised by an over-investment in the pursuit of intimate encounters and an otherwise unproductive use of time. The risk would be elevated if [AB] misused alcohol or illicit substances. The risk would also be elevated if [AB] engaged in antisocial behaviour, including selling drugs.
Any future victims are likely to be vulnerable by virtue of their young age (i.e., post-pubescent females) or their psychosocial disadvantage. [AB] is likely to meet these victims via the use of social media or internet dating websites. He might also meet future victims through his existing social network or antisocial associates. The offending would be precipitated by attempts to establish a consensual relationship or to negotiate sexual contact in exchange for a privilege or favour (e.g., the provision of drugs). Future offences may include unwanted sexual advances (i.e., sexual touching) or penetrative offences (i.e., rape). The commission of future sexual offences, particularly penetrative offences, may be accompanied by threats or actual violence (i.e., assault).
Immediately following any future sexual offending, [AB] would pose an elevated risk of harm to himself and others, including police officers and people who attempt to intervene. [AB] would most likely deny responsibility until presented with irrefutable evidence of his culpability.
In relation to accommodation, Dr Godfredson noted that the appellant was staunchly opposed to the prospect of being accommodated in a residential facility. He observed that any proposed residence will be the subject of an ‘environmental scan’ and that he was not in a position to offer an opinion about the suitability of the Family Residence for the appellant. He continued:
Ideally, [AB] should live close to friends or family who are likely to pose a positive influence. He should not reside in a neighbourhood where he has ties to antisocial peers. Similarly, [AB] should not reside in the immediate vicinity of any location frequented by adolescent females (e.g., a school or residential care facility).
Dr Godfredson also gave oral evidence on the application. In his evidence he said the ‘ideal living situation’ for the appellant would be for him to live on his own where he is responsible for his rent, engaged in legitimate employment, and otherwise living in a residence which is conducive to a prosocial lifestyle.[23] He explained that in order to make progress the appellant needed to demonstrate the capacity to be independently responsible. Noting that the appellant had been incarcerated for a long period of time, Dr Godfredson said that in his experience individuals who had spent a long time in custody and who obtain employment on release take great pride from being able to do so and enjoy the financial freedom that comes from employment.
[23]Reasons, [59].
Dr Godfredson accepted that if he was required to live there, the appellant would not be able to obtain employment at the designated facility and, when asked by the judge whether that meant that the Family Residence was a better option, Dr Godfredson said it was a complicated issue but that in his experience there had been a great deal of effort to move people on from the designated facility. Dr Godfredson also considered that if the appellant were to reside at the Family Residence he may stay there and not be incentivised to gain employment. In cross-examination, Dr Godfredson said that the appellant would get a greater priority for supported independent living if he was applying for accommodation from the designated facility than he would if he was living with his mother and stepfather at the Family Residence.
The Secretary also relied on a report prepared by Corrections Victoria entitled ‘Post Sentence Environmental Scan’ the purpose of which was to assess the suitability of the Family Residence as a place for the appellant to reside upon his release from prison. The report concluded that the Family Residence was unsuitable, relying on a number of matters including that, at the time of his last offending, the appellant was on parole and was living with his mother and stepfather. The report said this raised concerns about their ability to ‘act protectively’ in relation to the appellant. The report also noted that the location of the Family Residence was remote and meant that professional support services were some distance away. The Family Residence was also near a secondary school which meant the appellant would be living near school-aged girls.

Finally, for present purposes, the Secretary adduced in evidence a memorandum dated 29 January 2024, from Ms Cheyenne Newman, an assistant manager attached to the Post Sentence Branch (‘PSB’) of Corrections Victoria. In that memorandum, Ms Newmann summarised the adverse environmental scan in relation to the Family Residence and addressed a number of supported accommodation options, none of which were assessed as suitable or available. The memorandum concluded that there were no current vacancies in either supported or independent accommodation available to the PSB at which the appellant was eligible to reside. Consequently, it was ‘deemed appropriate’ that the appellant should reside at the designated facility until such time as an appropriate, long-term residence in the community could be identified. Ms Newman stated the PSB would continue to work towards identifying suitable long-term accommodation for the appellant including, if he consented, referral to organisations which could assist in identifying appropriate private rentals following his release from custody.

The judge’s reasons

The judge made the supervision order at the conclusion of the hearing on 31 January 2024 and gave brief oral reasons. The order commenced on 2 March 2024, upon the expiration of the appellant’s custodial sentence. Her Honour later provided written reasons for the making of the order and the imposition of the relevant conditions.
The judge found that the appellant would remain at an unacceptable risk of engaging in serious sexual re-offending if he was in the community and not subject to a supervision order.[24] In relation to the place of residence, the judge accepted the Secretary’s submission that the Family Residence was presently unsuitable because its relatively remote location posed some impediments to the appellant’s ability to adhere to his reporting and treatment conditions, successfully obtain employment and pursue independent living.[25] The judge further accepted that living with his mother could create conflict which might adversely affect the existing prosocial relationship between them.[26]
[24]Reasons, [84].
[25]Ibid [63]–[66].
[26]Ibid [59].
The judge noted that the ultimate aim was for the appellant to transition into independent living and become employed.[27] The judge considered that this objective was best served by the appellant being required to reside at the designated facility and be placed on a priority list with Corrections Victoria to be allocated suitable independent housing. It is plain that the judge regarded the designated facility as transitional accommodation and stressed her expectation that the appellant would be transitioned to suitable accommodation within a very short period of time. She directed that the court be notified when the appellant transitioned out of the designated facility and, were this not to occur by the end of April 2024, (some three months hence), listed the matter for mention at which time the Secretary would be required to attend and provide an update and explanation for why the appellant had not been assisted in relation to the matter which is central to his prospects of rehabilitation.[28]
[27]Ibid.
[28]Ibid [66].
It was in this context that the supervision order required that the appellant must reside each night at a residential facility within the meaning of the Act or where otherwise directed by the PSA.

Review and subsequent directions

Following the expiry of the appellant’s custodial sentence on 2 March 2024 he commenced his residence at the designated facility.
On 4 June 2024, the PSA issued a direction to the appellant which had the effect of allowing him to reside at a private residence in suburban Melbourne, first on particular dates and then continuously (the ‘4 June 2024 direction’). The appellant subsequently pleaded guilty to and was convicted of two offences contrary to the Sex Offenders Registration Act 2004 on 16 August 2024. He was sentenced to an aggregate term of imprisonment of 14 days, which expired on 29 August 2024. On 9 August 2024, the 4 June 2024 direction was revoked by the PSA and, following his release from custody, the appellant was returned to reside at the designated facility, where he remains.
On 18 July 2024, the appellant filed a notice of application for leave to review the conditions of the 31 January 2024 supervision order in the County Court. On 11 November 2024, the judge granted leave pursuant to s 110(3) of the Act. The review of conditions was heard on 27 November 2024.
At the 27 November 2024 hearing, the appellant was represented by counsel. Counsel for the appellant asked for an adjournment to obtain instructions. The judge refused that application but indicated that she would stand the matter down until 2:15 pm to enable counsel to receive instructions. The judge said that she was not concerned with the various minor disputes in the evidence that the appellant had raised which, it may be inferred, the judge did not regard as germane, but was keen to hear about the allegation that he had not cooperated with the PSA in his treatment, had not advised the PSA about his employment and that he was accepting work via the online job board Airtasker, which involved him going to and entering people’s houses.
We note that before the hearing counsel had supplied written submissions in support of the review. Counsel for the Secretary opened the case and tendered a further assessment report by Dr Godfredson dated 24 November 2024 in respect of the appellant and called Dr Godfredson to adopt the report and give brief oral evidence explaining aspects of his report.
As recorded in Dr Godfredson’s 24 November 2024 report, the appellant was offered accommodation at a private residential address in suburban Melbourne. Between May and July 2024 the appellant was supervised and engaged in various counselling and other treatment. The progress of that supervision was uneven and it appears that there was a breakdown in the relationship between the appellant and his clinician. Amongst other things, information from Victoria Police suggested that the appellant’s LinkedIn profile indicated that he was employed with Kids Under Cover, an organisation supporting at-risk youth. Concerns were also expressed about his use of social networking sites.
In his November 2024 report, Dr Godfredson said that his opinion remained that the appellant continues to pose a high risk of future sexual violence and warrants a high intensity of interventions to manage his risk of sexual recidivism.
At the conclusion of Dr Godfredson’s evidence-in-chief, the judge stood the matter down until 2:15 pm to enable the appellant to confer with his counsel. On the resumption of the hearing counsel for the appellant said that she had taken the opportunity to obtain instructions. She said that the appellant did not oppose the making of an order with the condition that the appellant reside at a place directed by the PSA, namely, the designated facility, and requested that steps be taken to transition the appellant out of the designated facility, provided that he engage with the treatment services available to him.
Counsel for the appellant also requested that a review date or an adjourned date be set in approximately three months’ time with leave to apply should progress not be made in the matter.
At the conclusion of the hearing, the judge made an order confirming the supervision order and directing that a Memorandum detailing the appellant’s progress be prepared on behalf of the Secretary and filed and served before 1 April 2025.

The appeal

The appellant’s notice of appeal in this proceeding was filed on 7 February 2024, following the making of the 31 January 2024 supervision order and before the judge published her reasons. It contains the four grounds of appeal set out earlier in these reasons.[29]
[29]At [6] above.
As already noted, by letter to this court dated 15 December 2024, the appellant made submissions in relation to the decision made by the judge at the 27 November 2024 hearing. In oral submissions,, the Secretary submitted that the 27 November 2024 order was outside the scope of the appeal, but did not oppose this Court treating the 15 December 2024 letter as an appeal from that order. There is overlap in the grounds covering both decisions and the appellant advanced all of his submissions against the 27 November 2024 order and the Secretary responded. There is merit in treating the 15 December 2024 letter as a notice of appeal against the 27 November 2024 order and an order regularising this state of affairs will be made.
As already observed, the appeals from the 31 January 2024 order and the 27 November 2024 order are brought as of right and focus on the residence condition. Whatever be the position in relation to an appeal that seeks to challenge an anterior finding that an offender poses an unacceptable risk,[30] it seems plain that a decision to impose a condition is a discretionary decision. That is, when considering whether to impose a condition and, if so, the terms of that condition, a judge has a degree of latitude such that there is no single correct legal outcome. For that reason, an appeal against a condition attracts the principles that apply to discretionary decisions propounded in House v The King.[31] It follows that, in order to succeed, the appellant must satisfy this Court that, in imposing one or more of the impugned conditions, the judge acted upon a wrong principle, took an irrelevant matter into account, failed to take into account a material matter or mistook the facts, or that the judge’s decision to impose the condition being considered was unreasonable or plainly unjust.[32]
[30]Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [55] (Redlich, Osborn and Priest JJA); [2013] VSCA 213; Greene v Secretary to the Department of Justice and Community Safety [2021] VSCA 79. Cf Minister for Immigration & Border Protection v SZFVW (2018) 264 CLR 541; [2018] HCA 30.
[31](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
[32]Ibid.
What follows addresses the appellant’s arguments in respect of both the 31 January 2024 order and the 27 November 2024 order.

Ground 1 – the residence condition

The appellant submits that the residence condition, imposed on 31 January 2024 and confirmed on 27 November 2024 ought not to have been made, as it was neither supported by the evidence nor consistent with the statutory scheme provided by the Act.
The appellant submits that, having regard to the primary purpose of conditions imposed under a supervision order being to reduce the risk of re-offending and the requirement that it be reasonably related to the gravity of that risk, the residence condition defeats the purpose of the Act. He submits that the residence condition was made without regard to the evidence given by Dr Godfredson, namely, that the appellant should, ideally, live independently where he could be responsible for his rent by engaging in legitimate employment, and otherwise should reside in a setting which is conducive to a prosocial lifestyle. He submits that it was irrational to require the him to reside at the designated facility given Dr Godfredson’s opinion that he should be living independently and be encouraged to obtain employment.
The appellant further submits that the requirement for him to reside at the designated facility constitutes an arbitrary deprivation of liberty in breach of the Charter of Human Rights and Responsibilities Act2006 (the ‘Charter’).
At the hearing of this appeal, the Secretary’s counsel submitted that there is no utility in the appellant’s challenge to the 31 January 2024 order to impose or make the residence condition because that order has now been superseded by the judge’s confirmation of the 31 January 2024 supervision order, on 27 November 2024. It was submitted that the 27 November 2024 order is what empowered the 9 August 2024 direction of the PSA which is what currently requires the appellant to reside at the designated facility. The Secretary further submits the condition was open to the judge on the evidence and the appellant did not oppose its confirmation by the 27 November 2024 order.

Consideration

It may be accepted that there was some tension in the evidence on whether the appellant should be required to reside at a residential facility. On the one hand, Dr Godfredson said that the ideal position would be for the appellant to live independently in the community, obtain employment, use his time productively and otherwise live in a residence which is conducive to a prosocial lifestyle. It was not in dispute that the appellant would not be able to obtain employment if he was living at the designated facility, he would have a very low degree of independence and a risk of having no prosocial relationships with other residents.
The predicament that the appellant had to confront was that the only residence he identified, living with his mother and stepfather at the Family Residence, was found by the judge to be unsuitable. There was a reasonable basis for that conclusion. The Family Residence was relatively remote, distant from rehabilitation and reporting services, and there was a risk that the appellant would not obtain independent employment from there. In our view, that finding was open to the judge.
The Secretary also adduced evidence that there was presently no suitable private or supported accommodation available to the appellant. Assuming for present purposes that this evidence was properly admitted, which is the subject of ground 3, it provided the basis for the judge to conclude that there was no other suitable accommodation available at that time. It is plain from the judge’s reasons that she considered it was important to balance the freedom that would be associated with the appellant living with his mother and stepfather against the restrictions that would be associated with living in a residential facility. In doing so she applied the correct legal test, having regard to the purposes for which conditions may be imposed.
The judge specifically adverted to the requirement that the primary purpose of imposing conditions on a supervision order is to reduce the risk of the offender reoffending by committing a serious sex offence with the secondary purpose being to provide for the reasonable concern of the victim or victims of the offender in relation to their own safety and welfare.[33] The judge expressly noted that the conditions may promote the rehabilitation and treatment of the offender and address the type of behaviour that may increase the risk committing a further offence.[34]
[33]Reasons, [24].
[34]Ibid [32].
The balance ultimately struck by the judge was to impose a residence condition which required that the appellant reside on a transitional basis at the designated facility, but with the expectation that suitable accommodation would be found in the very short-term. The judge directed the matter be returned to court within four months. In our view, that approach was also open to her Honour and no error is disclosed.
In respect of the appellant’s submissions that the residence condition constitutes an arbitrary deprivation of his liberty, this Court in Thompson v Minogue held that ‘arbitrary’ in s 13(a) of the Charter has the meaning, as adopted by Warren CJ in WBM v Chief Commissioner of Police,[35] as an
interference with privacy which is capricious or has resulted from conduct which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought.[36]
[35](2012) 43 VR 446, 472 [117] (Warren CJ, Hansen JA agreeing); [2012] VSCA 159.
[36](2021) 67 VR 301, 318 [55] (Kyrou, McLeish and Niall JJA); [2021] VSCA 358.
The judge’s consideration of all the evidence before her included that given by Dr Godfredson in relation to the residence condition, the purpose of the Act, and her Honour’s clearly expressed expectation that the appellant would be transitioned into suitable accommodation within a short period of time or that the Secretary would be required to attend court to provide an update and an explanation if this did not occur by April 2024. This consideration lead to the conclusion that the imposition of the residence condition was a reasonable, proportionate and measured response. Indeed, as adverted to by the Secretary’s counsel, the 27 November 2024 order confirming the residence condition was not objected to but, in fact, sought by the appellant’s counsel at that hearing. Nothing in the imposition of the residence condition on 31 January 2024, nor in its confirmation on 27 November 2024 could be described as unpredictable, unjust or unreasonable.
Ground 1 must be rejected.

Grounds 2 and 3 – the evidence of Dr Godfredson and Ms Newman

The appellant submitted that the evidence of Dr Godfredson given in respect of the residence condition, in particular that which adverted to the risks posed by particular accommodation options, the likely duration of the appellant’s residence at the designated facility and the possible timeframes in which alternative accommodation could be found, should not have been admitted as it exceeded his professional expertise. Dr Godfredson was characterised by the appellant as a ‘medical expert’.
The appellant similarly submitted that the evidence of Ms Newman, which suggested that proper supervision could not be provided by the Victoria Police Sexual Offences and Child Abuse Investigation Team (‘SOCIT’) at the Family Residence, should not have been admitted as it was beyond her specialised knowledge. The basis for this submission was that Ms Newman — an assistant manager employed by Corrections Victoria within PSB — was incapable of providing evidence about the investigative and supervisory capacity of the Victoria Police. He submits that this evidence should not have been accepted in the absence of a witness from Victoria Police or a certificate of available resources submitted under s 29 of the Act.

Consideration

In our view, these submissions are without merit.
Firstly, the appellant was represented by counsel at both the 31 January 2024 hearing and the 27 November 2024 hearing. No objection was made by the appellant’s counsel at either of the hearings to the admission of the evidence of either Dr Godfredson or Ms Newman. Dr Godfredson and Ms Newman were both cross-examined by the appellant’s counsel on the 31 January 2024 hearing.
In respect of Dr Godfredson’s evidence, we accept the Secretary’s submissions that his evidence did not exceed the bounds of his specialised knowledge, and was informed by his significant professional experience in the preparation of reports and the giving of evidence in applications made under the Act. Further, for present purposes, the evidence of Dr Godfredson was not totally adverse to the appellant. That evidence provided the foundation for his submission that it was preferable for the appellant to live independently and obtain employment.
True it is that Dr Godfredson gave evidence of his understanding that residents in the position of the appellant are transitioned quickly out of the designated facility and that being in a residential facility gave the appellant a higher priority in the allocation of supported accommodation. However, that issue was addressed by the judge who stressed the transitional nature of the condition requiring the appellant to live at the designated facility and directed that the matter return to Court were that not to occur.
In respect of Ms Newman’s evidence, we accept that she was in a position to give evidence as to the availability of accommodation which was factual evidence and not dependent on any opinion by her. In any event, the basis of her evidence was set out in her memorandum was capable of being challenged, and was not objected to by the appellant’s counsel.

Grounds 2 and 3 must be rejected.

Ground 4 – whether the appellant was afforded a fair trial and procedural fairness

The appellant submits that he was not afforded a fair trial or procedural fairness. Submissions to this effect were made both in relation to the hearing of 31 January 2024 and of 27 November 2024.

Submissions – 31 January 2024 hearing

In respect of the 31 January 2024 hearing, the appellant submits that he was not afforded a fair trial because the judge gave no reasons for the imposition of the residence condition at the conclusion of the hearing.
The appellant further submits that he was prevented from effectively responding to the evidence before the judge, because the documents relied on by Dr Godfredson in the assessment report were not provided until two days before the appellant was required to file his response. The appellant also submitted that he did not consent for documents to be served on his legal practitioner at the time.

Submissions – 27 November 2024 hearing

In respect of the 27 November 2024 hearing, the appellant made further submissions to the effect that he was prevented from effectively responding to evidence before the judge because evidence relied on by the respondent was only provided to the appellant’s counsel the day prior to the hearing or the day of the hearing. Certain material provided to the appellant’s counsel was provided on the basis that it not be provided to the appellant himself. Further, the judge allowed only a short adjournment of the for appellant’s counsel to consider the material and seek instructions.
The appellant further submitted that he was not afforded a fair trial as the judge did not allow appellant’s counsel to cross-examine Dr Godfredson. He submitted that this prevented the appellant from responding to the evidence put by Dr Godfredson.

Consideration

In our view, the appellant’s submissions cannot be accepted.
At both the 31 January 2024 hearing and the 27 November 2024 hearing, the appellant was represented by counsel and was given the opportunity to be heard.
As stated, the judge provided brief oral reasons for the residence condition at the conclusion of the 31 January 2024 hearing. This was followed by written reasons, provided to the parties on 29 February 2024.
While it may be accepted that delays did occur in providing the appellant’s counsel with certain documents, no complaint was made at the hearing, nor was any objection made to proceeding with the hearing on 31 January 2024. In respect of the 27 November 2024 hearing, appellant’s counsel did request that the judge grant an adjournment until the next week to allow time to seek instructions. The judge granted an adjournment of half a day for this to occur. The appellant’s counsel raised no objection to continuing the hearing following this adjournment.
Having reviewed the transcript of that hearing and the orders made by her Honour subsequently, we make the following observations. The judge, in addition to confirming the conditions of the supervision order made on 31 January 2024, pursuant to s 111(3)(b) of the Act, ordered that:
[A] memorandum detailing the progress, if any, made by [the appellant] on the supervision order made on 31 January 2024 be prepared on behalf of the Secretary to the Department of Justice and Community Safety and filed and served on or before 1 April, 2025.
This order arose from a request from the appellant’s counsel to have a review date or an adjourned date be set approximately three months after the date of the hearing with leave to apply should progress not be made in the matter. The judge refused this request as both lacking utility and requiring an unworkably short timeframe in which to complete a review. As an alternative, the judge proposed to require the Department to update the court on the progress of the appellant’s transition. Appellant’s counsel made no objection to this and initially sought to cross-examine Dr Godfredson. Her Honour did not allow the cross-examination on the basis that, in light of the order to produce a memorandum, it would be of no utility to the court. Following a brief adjournment, appellant’s counsel did not seek to cross-examine Dr Godfredson provided that the order to direct the production of a memorandum was made.
We reject the appellant’s submissions that he was not afforded a fair trial in respect of the judge’s decision to refuse his counsel the opportunity to cross-examine Dr Godfredson at the 27 November 2024 hearing. The judge did not stop counsel from cross-examining. After the matter was stood down the appellant’s counsel indicated her client’s agreement to the continuation of the residence condition. No request to cross-examine was made and, Given the order was agreed to, it is difficult to see what would have been gained from further questioning of the witness.
On this basis, it is clear the appellant was not denied the opportunity to be heard, nor did the appellant’s counsel object to the approach taken by her Honour at the 27 November 2024 hearing.
We agree with the respondent’s submissions and consider that no prejudice has been occasioned to the appellant. Ground 4 must be rejected.

Conclusion

For these reasons, we would dismiss the appeal.
In making the 31 January 2024 order, her Honour also made a non-publication order, pursuant to s 279 of the Act, over any information before the court in any proceedings under the Act that might enable the appellant or his location to be identified. The Secretary neither opposed nor consented to this order. In making the suppression order, the judge found it was in the public interest that such an order be made, stating that:
the protection of victims and the community generally lies in the successful treatment and rehabilitation of the respondent. The evidence satisfies me that, in order for the respondent to have the best chance of succeeding in his efforts at treatment and rehabilitation, it is imperative that he be able to participate in his treatment and undertake other activities which are protective in nature, unhindered by external attention.[37]
[37]Reasons, [83].
The terms of the non-publication order are such that it will remain in place until the next review of the Supervision Order is heard and determined, the expiry or revocation of the Supervision Order, or further order of the court. As these circumstances have not yet transpired, the order remains in operation.
For the reasons given by her Honour, we agree that it remains in the public interest that information in this proceeding that might enable the appellant or his location to be identified not be made public. Hence, we have prepared these reasons in a form which omits details that may identify the appellant or his location.
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[2025] VSCA 119

28 May 2025