and As v The Secretary to the Department of Justice
[2014] VSCA 83
•7 May 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0192 | |
| AS | Appellant |
| v | |
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE | Respondent |
---
JUDGES: | REDLICH, WEINBERG and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 April 2014 | |
DATE OF JUDGMENT: | 7 May 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 83 | |
JUDGMENT APPEALED FROM: | Secretary to the Department of Justice v AS (Unreported, County Court of Victoria, Judge Murphy, 17 September 2013) | |
---
CRIMINAL LAW – Supervision order under Serious Sex Offenders (Detention and Supervision) Act 2009 – Relevant offence – Eligible offender – Unacceptable risk of committing a relevant offence – Imposition of conditions – Whether judge erred in imposing certain additional conditions – Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 applied – Serious Sex Offenders (Detention and Supervision) Act 2009, ss 4, 7, 9, 15, 17, 96 and 137.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M D Phillips | Victoria Legal Aid |
| For the Respondent | Mr O P Holdenson QC | Russell Kennedy Lawyers |
REDLICH JA:
For the reasons given by Beach JA I agree that condition 5.2 should be set aside, but the appeal should otherwise be dismissed.
WEINBERG JA:
I agree with Beach JA.
BEACH JA:
Introduction
On 25 January 2013, the appellant pleaded guilty to two counts of indecent assault and was sentenced to 182 days’ imprisonment. Indecent assault is an offence listed in Schedule 1 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the Act’). Indecent assault is thus a ‘relevant offence’ within the meaning of the Act; and the appellant, having been sentenced to a term of imprisonment in respect of an indecent assault, is an eligible offender within the meaning of the Act.[1]
[1]See s 4 of the Act.
On 31 January 2013, the Secretary to the Department of Justice (‘the Secretary’) issued an application in the County Court under s 7 of the Act for a supervision order in respect of the appellant. The application was made on the basis that the appellant was an eligible offender within the meaning of the Act; and on the grounds that the appellant poses an unacceptable risk of committing a relevant offence[2] if a supervision order is not made and the appellant is in the community.
[2]One listed in Schedule 1 of the Act.
On 17 September 2013, following the conclusion of a three day hearing in the County Court, a judge of the County Court granted the Secretary’s application and made a supervision order, the period of which was two years. The order was made subject to the core conditions required by s 16 of the Act. In addition, the judge imposed conditions under s 17 of the Act and under Division 3 of Part 2 of the Act.
These conditions included a condition that:
(a) the appellant must reside each night at a specified residential facility (‘the residential facility’) or where otherwise directed by the Adult Parole Board and must not move from this address without the prior written consent of the Adult Parole Board (condition 5.1);
(b) the appellant must be present at the residential facility or a residence as otherwise directed by the Adult Parole Board between 10.00pm and 7.00am during summer daylight savings hours and between 8.00pm and 7.00am at any other time unless directed by the Adult Parole Board (condition 5.2); and
(c) the appellant must not use prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind (condition 5.6).
Pursuant to s 96 of the Act, the appellant appeals to this Court against the making of the supervision order. The grounds of the appellant’s appeal are:
1.The learned judge erred in finding that the appellant posed an unacceptable risk of committing a relevant offence if a supervision order were not imposed.
2.The learned judge erred by imposing a condition that the appellant reside at [the residential facility], which condition did not constitute the minimum interference with the appellant’s liberty and freedom of movement to ensure the purposes of the conditions.
3.The learned judge erred by failing to give sufficient weight to the value of the appellant being able to return to New South Wales and the impact of a supervision order on the appellant in that regard.
4.That the learned judge erred in failing to give sufficient weight to the effect on the expert evidence of the lack of historical material about the appellant whilst in New South Wales between 1999 and 2012.
5.The learned judge erred in imposing a curfew on the appellant as part of his supervision order without proper evidentiary basis and where the evidence was that such a condition was sought for administrative convenience and was not related to the risk of the appellant committing a relevant offence.
6.The learned judge erred in imposing a condition that the appellant ‘must not use prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind’ where such prohibitions already exist at law and where to do so merely exposes the Appellant to the potential of double punishment.
The appellant’s background
The appellant was born in Somalia and completed his secondary schooling there. He then received a scholarship to study agriculture at an overseas university. While studying overseas he met and married an Australian woman. The appellant migrated to Australia with his wife in 1993. They have three children. He and his wife separated and/or divorced around 1996-1997. The nature and frequency of the appellant’s contact with his children is, on the evidence before this Court, unknown. The appellant has given different accounts on this issue.
The appellant worked in agriculture for about 10 years and in a supermarket in Chatswood (NSW). He stopped work in 2003 or 2004 when he became sick and has been unemployed since that time. He lived in Sydney from 1993 until early June 2012 when he came to Victoria as a tourist. Apart from his time in custody, and now under the supervision order, the appellant has had no fixed address in Victoria. He has expressed a wish to leave Victoria and return to Sydney, as he considers Sydney to be his home.
The appellant suffers from an ongoing, serious, mental illness. He reports developing this condition in 1995. In 2009, he was noted to have a 13 year history of schizophrenia.
The appellant has been involved with the New South Wales State Trustee since 2001, and it currently controls his finances. The New South Wales State Trustee’s records state that the appellant has not had an address in Sydney for a prolonged period of time. He has been listed by them as homeless.
The appellant has given conflicting reports on his drug use, but has admitted to having used heroin, cannabis, amphetamines and methamphetamine. On several occasions, the appellant has been admitted to a psychiatric hospital and treated as an involuntary patient.
The appellant has an extensive history of offending in New South Wales. Most of this offending is of a non-sexual nature. The appellant’s record contains 18 drug related convictions, almost all for possessing a prohibited drug.
As to offending of a sexual nature, within the appellant’s prior convictions in New South Wales are three offences of assault with an act of indecency. These offences occurred on 2 January 2001, 7 June 2002 and 19 August 2006. The first offence involved the appellant grabbing a portion of one of the breasts of his victim. The second offence involved attempts by the appellant to insert his fingers up his victim’s anus through her clothing, with his hand between her buttocks. The third offence involved the grabbing and squeezing of his victim’s breasts. The first offence occurred at about 7.00am, the second at about 7.20am and the third at 1.00pm. All three offences involved adult female victims.
In August 2013, a Victorian guardianship order was made and EA was appointed as the appellant’s guardian.
The relevant offences
While the three offences of assault with an act of indecency committed in New South Wales are relevant offences for the purposes of the Act,[3] the Secretary’s application for a supervision order identified the two counts of indecent assault for which the appellant was sentenced to 182 days’ imprisonment as the relevant offences upon which the application was brought. These two offences (involving different adult female victims) occurred on 19 October 2012. The first of these offences occurred at a residential facility at about 1.30pm, and the second occurred on a tram at about 1.45pm. Both of these offences involved the appellant grabbing his victim on the buttocks.
[3]See items 45 and 5 of Schedule 1 of the Act.
The hearing of the application
At the hearing of the Secretary’s application below, a number of documents, files and reports were tendered. The Secretary called evidence from a consultant forensic and clinical psychologist, Dr Karen Owen. The appellant called a consultant psychiatrist, Dr Danny Sullivan, and the appellant’s guardian, EA. Following submissions, the judge then delivered a ruling granting the Secretary’s application. There was then further debate between counsel and the judge as to the conditions the judge proposed to impose as part of the supervision order. During the course of this debate, the Secretary called Ms Sarah Miles, the manager of state-wide operations for the Sex Offenders Management Branch of Corrections Victoria. As it was put by counsel for the Secretary below, Ms Miles was called to give evidence ‘with respect to the reasons for conditions’.
The evidence given below that is relevant to the issues in this appeal may be briefly stated as follows. Dr Owen expressed the opinion that the appellant was a high risk for future sexual offending, albeit ‘the tariff of the offending’, that is the degree to which there was physical or psychological coercion and physical contact, was said to be low at the time of the application. Dr Owen said that it was likely that relevant offending would occur if the appellant ceased contact with psychiatric services, ceased psychotropic medication and used drugs and/or alcohol.
In summary, Dr Owen’s evidence was as follows. There is a link between the appellant ceasing contact with psychiatric services and a higher likelihood of him engaging in drug and/or alcohol use. Each time the appellant offended in Victoria it was when he was non-compliant, had not been taking medication, and had been using drugs. Dr Owen could not say that any of this was particularly causal but, when in combination, it was a precursor or a significant contributing factor to relevant offending.
Further, Dr Owen said that the appellant’s mental health instability contributes directly to his risk of all re-offending, including sexual re-offending. The appellant has a long-standing chronic mental health problem that will require ongoing management and supervision. When the appellant’s mental health is unstable it is more likely he will engage in offending behaviour.
Dr Owen gave evidence that she did not have any information to suggest that when the appellant is offered mental health intervention and medication treatment he has voluntarily maintained that stability for any length of time. She said that in the absence of that information it was too much of a risk to say when there is a short period of compliance that therefore the appellant is able to manage himself. At this point, it was said, that in the absence of categorical information about how the appellant manages, oversight is necessary.
Dr Owen said that in order to best ensure that there are no further sexual offences there needs to be some form of mandated intervention, whether by supervision order or by mental health services. Even if there is stability of the appellant’s treatment, there has to be external oversight to ensure that he continues to comply. Supervision of the appellant’s mental health regime would reduce his risk of opportunistic conduct. This could be in a supported residence where the appellant has a good relationship with a worker.
Dr Owen could not exclude that the appellant could be adequately treated in the community so long as those services are able to be made mandatory, and not voluntary. She said that when the appellant is travelling well he would need relatively little ‘assertive input’, but when there is a downturn in the appellant’s mental health stability there needs to be resources that encourage or require the appellant to be hospitalised or involuntarily treated. The judgment of when that is enacted could not be left to the appellant as he has demonstrated in the past that when his mental health becomes unstable he is not able to utilise those services voluntarily.
Dr Owen agreed with Dr Sullivan that effective risk reduction with respect to the appellant will require abstinence from substance use, compliance with mental health treatment, the support of community agencies, assistance with accommodation and linkage to mental health agencies.
In cross-examination Dr Owen agreed she did not have any information that examined the relevant NSW offences with regard to how compliant the appellant was with medication, what drugs he might or might not have been using, or the immediate precursors to the offending. She agreed it was speculative to look back at the Sydney years and decide whether or how non-compliance featured in the offending. Dr Owen’s understanding, from the police materials, was that the offending in New South Wales occurred in a context where there was disengagement with the treatment provided by mental health facilities.
Dr Owen gave evidence that the appellant being in an environment that he feels comfortable in, as opposed to an environment wherein he demonstrates an oppositional attitude, is a feature that might tend towards stability and facilitate stability in his risk factors. She would place value on him being in an environment that he knows and feels supported in and has a history of supporters in.
Ms Miles gave evidence that the Secretary sought a curfew with respect to the residential facility because there is a curfew for all residents of the residential facility to ensure the good order and management of the facility, as the facility is presently close to capacity. She said that when the appellant is not at the residential facility, the curfew condition can be varied by the Adult Parole Board. The intention is for the appellant to move into supported accommodation, and often accommodation becomes more suitable if there is the capacity to have a curfew condition in place. It was said that often service providers will be comforted by the curfew condition and it might help in placing the appellant in alternative accommodation.
Ms Miles gave evidence that the Secretary sought the condition relating to drug use because of the evidence of both expert witnesses for the need for the appellant to abstain from substance use. Further, it was said that the appellant has psychiatric issues so it was important that the order be very clear in terms of what the appellant can and cannot do.
In cross-examination Ms Miles agreed that night time offending was not a feature in the appellant’s case. She agreed there is no direct relationship between the curfew and minimising any risk to prospective victims.
Ms Miles also agreed that Corrections Victoria staff at the residential facility would not encourage or facilitate the appellant accessing illicit drugs but gave evidence that there are other residents living at the residential facility who may encourage the appellant, or provide him with those substances, or who are themselves breaking the law.
Dr Sullivan gave evidence that the appellant is at high risk of future sexual offending. He said that he could not say with any certainty what led to or caused the three relevant offences in New South Wales as, other than the community correctional services file, he did not have any material to base that on.
In summary, Dr Sullivan’s evidence was as follows. On each occasion the appellant committed a relevant offence in New South Wales he was adversely affected by his mental illness and by drugs and had disengaged with the mental health treatment that had been provided for him. When the appellant committed the two relevant offences in Melbourne he was adversely affected by his mental illness, his ingestion of prohibited drugs and clearly required psychiatric treatment. There is a strong casual association between the appellant’s deteriorated mental state and intoxication and secondly between those factors and his offending. It is a pattern that the appellant offends when he is consistently non-compliant with his mental health medication regime.
The appellant’s offending is related to his deteriorated mental state or intoxication rather than an underlying drive to offend and is consistent with the marginalised existence of people with severe mental illness.
All of the appellant’s sexual offending is impulsive and associated with disorganised mental state. Optimising the appellant’s mental health and reducing his propensity to use substances are factors that will reduce his offending. Effective treatment for the appellant’s ongoing psychiatric illness, abstinence from drugs and alcohol, and support for the appellant to engage in a meaningful and responsible way in the community are protective factors which would reduce the likelihood of relapse of the appellant’s psychotic illness or of offending. Dr Sullivan would not support a plan that did not involve external constraints to provide the appellant with accommodation, manage his finances and ensure that he complies with medication and other treatment.
Dr Sullivan gave evidence that, for the foreseeable future, it is necessary that the appellant is subject to involuntary psychiatric treatment. A clinical situation would be optimal. Anything that moves away from that model becomes increasingly inadequate. The most inadequate situation would be where the appellant is in independent accommodation and expected to look after himself with limited support.
If Dr Sullivan were managing the appellant in the Victorian community he would have the appellant under the care of the Mobile Support Team of clinicians who would visit the appellant daily to ensure that he was witnessed taking his medication. Ideally the appellant would be living in accommodation staffed and run by mental health service people who understand mental health, engaged in activity and living the best life he can within the constraints of his illness. This type of service is geared towards not just being seen by the doctor and taking medication but a range of other activities that fit into the psychosocial domain which would have a tendency to minimise the impact of the appellant’s schizophrenia. Some of these types of facilities are staffed 24 hours; some only have a person who sleeps there overnight but is available for crises or disasters. They monitor medication and try to move people towards self-management of their medication, within the limits of an individual. If the individual is subject to involuntary treatment they may well prompt and supervise. Dr Sullivan said that these facilities exist in Victoria and all around Australia.
Supported accommodation would reduce both the likelihood of absconding and homelessness. A situation where the appellant is living independently, is meant to attend fortnightly to receive medication, and maybe has a telephone call from his case manager provides more latitude to the appellant then he could reasonably exercise. By contrast, in supported accommodation the clinical staff are able to monitor his mental state, ensure his compliance with medication and where necessary take measures to reduce the effects of substance use or if necessary hospitalise him in the event that he has a deteriorated mental state.
Dr Sullivan said that the appellant required more supervision and support than would normally exist in the residential facility. He requires a residential facility more geared towards the needs of someone with a severe and enduring mental illness. Optimally this would be a staffed residence with staff trained in psychosocial activities. There is a need for psychosocial aspects of treatment, in particular stimulation, to prevent inanition or becoming de-skilled or unmotivated.
Dr Sullivan said that the potential for the appellant to have links with community organisations or people appeared greater in New South Wales than in Victoria. Since the appellant’s detention in the residential facility there has been minimal engagement with the community. The appellant’s engagement in an appropriate activity or occupation is the thing that is most missing. The appellant can access medication and obtain employment in either state, but the likelihood that he would be able to fill his time with something more meaningful is increased in New South Wales. If the appellant has any personal relationships or passing acquaintances with people, those would appear to be in New South Wales. There is a risk that the appellant will become institutionalised if he is not given the support to engage in the community.
It was Dr Sullivan’s understanding that while receiving treatment in New South Wales the appellant repeatedly absconded and consequently was not taking medication when he was required to. The appellant has walked away from accommodation that was provided and paid for and become homeless. At that time he has become isolated from the professional care systems that have looked after him and, based on the limited materials, would be unable to sustain relationships of a social nature.
Dr Sullivan agreed that he did not have sufficient information about what happened in New South Wales to say with exactitude that the appellant only complied with his treatment there when compelled to. Dr Sullivan had not had access to the appellant’s files to determine how many times he was admitted, where he was admitted, how long he was admitted for, what his mental state was on admission and what his medications were in the community.
EA was appointed on 22 August 2013 as the appellant’s guardian. EA has been focusing on finding staffed Supported Residential Services (‘SRS’). He has talked to the appellant’s administrator in New South Wales about paying for such a service and the financial resources for that were said to be available.
There are two places that have been recommended, one in Ashwood and one in Box Hill. They were recommended because of their level of supervision, level of staffing, their ability or capacity to administer oral, but not injectable, medication, overnight staffing and activities during the day.
In the Ashwood residence there is 24 hour staffing and a range of non-therapeutic social activities be it painting, gardening and other activities within the facility. The accommodation in Box Hill has similar staffing levels and varying degrees of activities.
EA was not sure whether the staff at Box Hill or Ashwood have any level of medical training in terms of monitoring medication. EA gave evidence that he did not know if the staff are trained in the mental health system. Someone with a mental illness would not be unknown to an SRS. These services are familiar with dealing with people with mental health issues and would have access to telephone numbers in relation to engaging CAT teams and area mental health services.
The term of a client’s stay at an SRS is indefinite, as long as they pay the rent and comply with the conditions of the residences. SRS services are unique to Victoria, this sort of service does not exist in New South Wales. These were not the same type of organisation that Dr Sullivan gave evidence about. EA said that Dr Sullivan was talking about community care placement through the Mental Health Act. EA said that SRS are privately run and distinct from the hospital run psychiatric units that are run as part of the Mental Health Service. EA went on to give evidence that it was hard to say whether the SRS services match the criteria for services that Dr Sullivan was talking about. EA suspected the degree of supervision and attention to psychiatric treatment may be more intense in a psychiatric service than in an SRS.
EA gave evidence that he was endeavouring to have a mobile support team brought in to monitor the appellant’s medication. A Mobile Treatment Service is not restricted in terms of what SRS they attend so long as it is within their area. If accommodation were available in Ashwood he believes there would be an area mental health service that applies to that area.
EA also gave evidence that if the plan in the medium term was to pursue the appellant’s desire to return home to Sydney, EA would be in a position to facilitate that.
EA said that, as the appellant’s guardian, he has full authority to choose to call the CAT team who have extensive powers about detaining and treating the appellant should there be a need. If there were unsafe or criminal activity that warranted it, he could call the police and advise them of where the appellant is. However, it is not within EA’s power to require somebody to remain in the residential facility. A supervision order is necessary in order for person to be required to live in the residential facility.
EA said that he has no coercive powers under the guardianship. If the appellant walks out of a service that has been arranged for him, there is nothing EA can do to stop him. EA agreed the appellant had a history of walking away from accommodations in New South Wales that had been organised and paid for by his administrator.
The judge’s reasons
The judge’s reasons were given in two parts. First, the judge gave reasons as to why he proposed to make the order sought by the Secretary. Secondly, and after hearing the evidence of Ms Miles, the judge gave further reasons in relation to the conditions he proposed to attach to the supervision order.
In his first reasons, the judge noted that the evidence of both Dr Owen and Dr Sullivan was that the appellant ‘is at high risk of committing a further relevant offence’. However, the judge accepted the submission by the appellant’s counsel below that ‘there is little evidentiary basis that [the appellant] is likely to escalate in his offending’.
The judge then referred to the appellant’s submission that the Court could not be satisfied to the requisite degree of the likelihood of the appellant committing further relevant offences. His Honour noted the submission of the appellant that the evidentiary basis for Dr Sullivan’s opinion was ‘insufficient’, in that Dr Sullivan did not have enough information about what had happened in New South Wales to reach the conclusions expressed by him. Having noted these submissions, the judge went on to say:
Having considered the whole of the evidence of Dr Sullivan and Dr Owen, I am satisfied that Dr Sullivan in particular has a more than sufficient basis upon which to express his opinion as to the risk that the respondent poses.
His Honour then continued his analysis of the evidence called and tendered before him, before concluding:
It follows that while I discount the possibility of escalation, [the appellant] has not succeeded in undermining the evidentiary basis for the opinions of Drs Sullivan and Owen, and having regard to Dr Sullivan’s opinion as to [the appellant’s] underlying psychiatric condition and the need for continuing assertive or coercive intervention under the Mental Health Act, [the appellant] I find is an unacceptable risk unless an order is made.
I have considered whether to exercise a discretion not to make such an order under s 9(7). Again the opinion of Dr Sullivan as to the requirement for assertive engagement with the mental health system outweighs the proposal put by [EA] on behalf of [the appellant] and for that reason I am not prepared to exercise my discretion not to make such an order.
Finally, I urge the Secretary to explore alternative residential options for [the appellant] for consideration by the Adult Parole Board.
Further, given [the appellant’s] long-term ties to New South Wales it is clearly in the wider community interest that all options to have [the appellant] returned to New South Wales be explored. In the meantime, the Victorian community is, I am satisfied, entitled to the order sought by the Secretary and I propose to make the order in the terms sought by the Secretary in the draft order proposed.
In his Honour’s further reasons for the conditions ordered, his Honour dealt with the curfew condition in the following terms:
Whilst it does have an administrative purpose, it is also relevant to the question of preventing reoffending by [the appellant], particularly given Dr Sullivan’s views that he is in an unstable mental state with a history of non-compliance with his medication and with his mental health regime. So, in those circumstances, I am satisfied that [condition 5.2] is an appropriate condition and I do not accept the submissions by [the appellant] on that point.
The nature of the appeal
The nature of an appeal under s 96 is, as this Court said in Nigro v Secretary to the Department of Justice,[4] by way of re-hearing on the evidence before the County Court, supplemented by such further evidence as is admitted on the appeal. Subject to the admission of new evidence, the principles stated in House v The King,[5] apply both to the decision whether to make a supervision order and to the terms on which the order should be made. However, as was also said in Nigro, the test to be applied on an appeal ground directed to a determination with respect to ‘unacceptable risk’ is whether the decision is ‘plainly wrong’ or ‘wholly erroneous’.[6]
[4](2013) 304 ALR 535.
[5](1936) 55 CLR 499.
[6]Nigro v Secretary to the Department of Justice (2013) 304 ALR 535, 539-40 [13] (see further, Nigro at (2013) 304 ALR 545-6 [39]-[41], 551 [55] and [60] and 552 [64]).
Ground 4
It is convenient to start (as the appellant did in his argument) with ground 4. Ground 4 makes complaint about the judge’s acceptance of the opinions of Dr Sullivan and Dr Owen in circumstances where there was said to be a lack of historical material about the appellant while he was in New South Wales between 1999 and 2012.
In arguing ground 4, the appellant relied upon what this Court said in Nigro about the need for matters to be established by cogent acceptable evidence and that the Court must be satisfied to a high degree of probability (by such cogent and acceptable evidence) in relation to the issue of unacceptable risk. Specifically, the appellant relied upon the passage in Nigro where the Court said:
The evaluative task requires the court to assess the degree of likelihood of the occurrence of the risk and the nature of the risk and its consequences. These matters must be established by cogent acceptable evidence having regard to the seriousness and gravity of the decision to be made. The court must be satisfied to a high degree of probability that the offender poses an unacceptable risk.[7]
[7]Nigro v Secretary to the Department of Justice (2013) 304 ALR 535, 579 [167].
In argument, counsel for the appellant took us to various passages in the transcript where concessions were made by both Dr Sullivan and Dr Owen that there was a paucity of detail concerning the circumstances surrounding the appellant’s relevant offending in New South Wales. Both Dr Sullivan and Dr Owen made relevant and appropriate concessions in relation to this issue.
However, it is to be remembered that Dr Sullivan was called by the appellant. A curiosity in relation to ground 4 is that the appellant now seeks to impeach the opinion expressed by Dr Sullivan, in circumstances where Dr Sullivan was called by the appellant. Indeed, in support of his argument under ground 4, the appellant took us to concessions made by Dr Sullivan in evidence-in-chief concerning the lack of more detailed material relating to the appellant’s life in New South Wales.
While Dr Owen and Dr Sullivan made appropriate concessions concerning the lack of detail about matters affecting the appellant in New South Wales, the lack of detail identified did not cause either of them to change their opinions concerning the appellant’s unacceptable risk of committing further relevant offences. The judge was entitled to accept the evidence given by Dr Owen and Dr Sullivan. That evidence was properly regarded by the judge as cogent acceptable evidence having regard to the seriousness and gravity of the decision to be made by the judge on the Secretary’s application. Further, the judge was entitled to conclude that, notwithstanding the absence of greater detail about the appellant’s life and offending in New South Wales, when one looked at the evidence as a whole (including the detail in summaries of the circumstance of the three relevant offences committed in New South Wales), there was a high degree of probability that the appellant posed an unacceptable risk of committing further relevant offences. At the very least (so far as ground 4 is concerned), the lack of additional detail about the appellant’s life and offending in New South Wales did not disentitle the judge from accepting the opinions of Dr Owen and Dr Sullivan that the appellant was at high risk of committing further relevant offences. More particularly, the appellant has not shown any error in the judge’s approach to, or conclusions on, this issue.
Ground 1
Ground 1 is related to ground 4. In ground 1 the appellant asserts that the judge erred in finding that the appellant posed an unacceptable risk of committing a relevant offence if a supervision order were not imposed. There is no substance to this ground. As the appellant conceded, the evidence of both experts was that the appellant was at high risk of committing further relevant offences. It was well open to the judge to accept this evidence.
Further, to the extent that the appellant submitted that his prior sexual offending was at the lower end of the spectrum, and that this was a relevant matter to be taken into account, this submission must be rejected as both wrong in fact and wrong in law. First, at least two of the appellant’s relevant offences were at the more serious end of the spectrum of indecent assaults (or assaults with an act of indecency: one involved the ‘very hard’ squeezing of a victim’s breast; and another involved what might easily have been described as an attempted rape which left the victim in that case suffering soreness around the area of her anus. Secondly, the submission falls foul of what this court said in Nigro about the inappropriateness of seeking to place a relevant offence within a continuum.[8]
[8]See Nigro v Secretary to the Department of Justice (2013) 304 ALR 535, 568 [129]-[130].
Far from there being error in the judge’s approach to, and conclusions on, the issue of whether the appellant was an unacceptable risk of committing a relevant offence if a supervision order was not to be imposed, in my view the judge’s conclusions were plainly correct on the evidence called and tendered before him.
Ground 2
In ground 2, complaint is made that the judge erred in imposing a condition that the appellant reside at the residential facility. It was submitted that the imposition of this condition did not constitute the minimum interference with the appellant’s liberty and freedom of movement to ensure the purposes of the conditions as required by s 15(6)(a) of the Act. Specifically, the appellant submitted that before the judge could impose this condition, ‘further inquiries into the availability and appropriateness of less isolated and restrictive facilities ought to have been carried out by the Secretary and considered by the court’.
There is no merit in ground 2. First, at no time during the application before the judge did the appellant seek to have the matter adjourned for the purpose of gathering further evidence as to the existence of appropriate, but less restrictive, facilities in which the appellant might be ordered to reside. While there was evidence of a non-specific nature about other possible residential options for the appellant, the application below was essentially conducted upon the basis that if a supervision order were to be made then the appellant would likely be ordered to reside in the residential facility.
Secondly, in the light of the way in which the parties were content to let the application proceed before the judge, it cannot be said that the judge’s failure to call for additional evidence about other less restrictive residential facilities that might exist constituted any error entitling the appellant to any success on this appeal.
Thirdly, the judge’s reasons disclose that he was acutely aware of the requirement of s 15(6)(a) of the Act that any condition imposed constitute the minimum interference with the appellant’s liberty and freedom of movement that is necessary to ensure the purposes of the conditions. So much may be seen from the penultimate paragraph of the judge’s first reasons, where his Honour ‘urge[s] the Secretary to explore alternative residential options for [the appellant] for consideration by the Adult Parole Board’ and the actual terms of condition 5.1.
Ground 3
In ground 3, complaint is made that the judge failed to give sufficient weight to the ‘value of the appellant being able to return to New South Wales and the impact of a supervision order on the appellant in that regard’. There are a number of reasons why this ground must be rejected.
First, while there was evidence of the appellant’s greater connection with New South Wales, and of the appellant’s preference to live in New South Wales, there was no actual evidence of suitable accommodation for the appellant in New South Wales. At best, these matters were the subject of on-going investigations and inquiries.
Secondly, it was not explained by counsel for the appellant how any identified ‘value’ in the appellant being returned to New South Wales was to be properly taken into account by the judge in determining whether the appellant posed an unacceptable risk of committing a relevant offence or (assuming that matter was made out) how the asserted ‘value’ might properly have been taken into account when exercising the discretion to make the supervision order. No doubt a difficulty in this regard for the appellant was the fact that the evidence did not permit the judge to make any determinative finding of precisely what ‘value’ there was in the appellant being returned to New South Wales.
Thirdly, and in any event, it cannot be said that the judge was not alive to the issue of a potential benefit in returning the appellant to New South Wales: the judge made specific reference to this issue in the last paragraph of his first reasons.
Fourthly, the judge having given consideration to the benefit that might accrue from returning the appellant to New South Wales, there is simply no basis for saying that insufficient weight was given to this matter. The judge’s decision was a decision to which the principles in House v The King[9] applied. His Honour made no error of the kind referred to in House v The King.[10] Further, his Honour’s decision was neither ‘plainly wrong’ nor ‘wholly erroneous’. Indeed, and with respect, in my view the judge’s decision was plainly correct.
[9](1936) 55 CLR 499.
[10]Ibid, 505.
Ground 5
Section 17(1)(b) of the Act required the judge to consider imposing conditions relating to times at which the appellant must be at his place of residence. In ground 5, complaint is made by the appellant about the imposition of the curfew condition (condition 5.2) requiring the appellant to be present at the residential facility or a residence as otherwise directed by the Adult Parole Board between 10.00pm and 7.00am during summer daylight savings hours and between 8.00pm and 7.00am at any other time unless directed by the Adult Parole Board.
In his second reasons, the judge said that he imposed the curfew condition for an administrative purpose (no doubt accepting the evidence of Ms Miles as to the administrative necessity), and to prevent reoffending ‘particularly given Dr Sullivan’s views that [the appellant] is in an unstable mental state with a history of non-compliance with his medication and with his mental health regime’.
Sections 15(4) and (5) of the Act provide that the primary purpose of supervision order conditions is to reduce the risk of re-offending by the offender, and the secondary purpose of such conditions is to provide for the reasonable concerns of the victims of the offender in relation to their own safety and welfare. No other purpose for conditions is specified in the Act. However, s 137 of the Act permits a supervision officer[11] to give an offender ‘such reasonable instructions as are necessary to ensure … the good order of the residential facility’.
[11]The expression ‘supervision officer’ is defined in s 3 of the Act to mean a community corrections officer within the meaning of the Corrections Act 1986 or an employee in the public service who is working at a residential facility and engaged in the supervision of offenders or the day to day management of the facility.
Ms Miles gave evidence that the curfew condition was needed so as to facilitate the ‘good order and management’ of the residential facility. If this was the only basis upon which the condition was imposed, then the condition would have been imposed for a purpose outside those purposes contemplated by the Act. In the light of ss 15 and 137 of the Act, and notwithstanding s 17(1)(b), it is not permissible for a court to impose a condition the only purpose of which is ‘administrative’ or to ensure the good order of a particular residential facility.
The curfew condition imposed by the judge was in identical terms to that required generally of residents in the residential facility. If the appellant was to be moved to a different residential facility with different curfew hours, it would require a decision of the Adult Parole Board to change the appellant’s curfew. When one looks at the evidence and the judge’s reasons one is left with the impression that the principal (if not sole) reason for the curfew condition was for the administrative convenience of those running the residential facility.
In the circumstances of this case, the validity of the curfew condition falls to be determined by whether there was sufficient evidence to justify its imposition on the basis that it had a relevant capacity to reduce the risk of re-offending. In my view there was no such evidence. The appellant’s sexual assaults have been committed at different times of the day and in different circumstances. The evidence does not disclose that imposing any particular curfew on the appellant has any real capacity to reduce the risk of re-offending. It follows that, in my view, the curfew condition was wrongly imposed: first, because it was not imposed for a recognised purpose under the Act; and secondly, because it was, in any event, unnecessary having regard to s 137 of the Act.
In argument, the Secretary maintained that a curfew condition should be imposed because it was easier to enforce curfew conditions ordered by a court than those imposed by a supervision officer. For present purposes, I am prepared to accept that this may be so. But it is not a basis for imposing a condition for a purpose outside those specified in the Act. Further, the same may also be said of every other reasonable instruction given by a supervision officer that is necessary to ensure the good order of a residential facility. Merely because it can be said that offenders generally take court ordered conditions more seriously than the lawful directions of supervision officers is not a basis for imposing conditions not otherwise mandated or permitted by the provisions of the Act.
While I would set aside the curfew condition, it follows from what I have said above that the appellant will remain the subject of whatever curfew arrangements are currently in place as are necessary to ensure the good order of the residential facility.
Ground 6
In ground 6, the appellant complains that the condition (condition 5.6) that he ‘must not use prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind’ should not have been imposed because such prohibitions already exist at law, and the condition merely exposes the appellant to double punishment. This ground (which was but faintly pressed) must be rejected.
First, condition 5.6 prohibits the abuse of drugs of any kind. One can easily imagine many circumstance in which particular drugs that are not illegal might be abused without the imposition of any criminal liability. So the argument of mere exposure to double punishment falls away immediately.
Secondly, s 17(1)(g) specifically requires a court to consider imposing a condition ‘requiring that the offender must not use prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind’. If the appellant’s argument was a valid one, then it is difficult to see what (if any) work s 17(1)(g) of the Act might do.
Finally, ground 6 cannot stand in the face of the reasoning in this Court’s decision in Lecornu v The Queen.[12]
[12](2012) 36 VR 382, 398[65] (Maxwell P, with whom Hollingworth and Cavanough AJJA agreed).
Conclusion
I would allow the appeal in part, only for the purpose of quashing condition 5.2. The appeal should otherwise be dismissed.
- - -
0
3
0