ARM v Secretary to the Department of Justice
[2008] VSCA 266
•18 December 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 94 of 2008
| ARM | |
| Appellant | |
| v | |
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE | Respondent |
---
JUDGES: | MAXWELL P, NETTLE and WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 11-13 November 2008 | |
DATE OF JUDGMENT: | 18 December 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 266 | |
---
CRIMINAL LAW – Appeal – Competence – Extended supervision order – Whether competent to appeal from extended supervision order on ground of excessive duration of order – Suppression order – Whether competent to appeal from judge’s refusal to make suppression order – Whether Court of Appeal empowered to make suppression order despite judge’s refusal to do so – Serious Sex Offenders Monitoring Act 2005, ss 36, 39 and 42; County Court Act 1958, s 74.
CRIMINAL LAW – Extended supervision order – Meaning of ‘satisfied to a high degree of probability that the offender likely to commit a relevant offence’ – Whether open on evidence to be satisfied to a high degree of probability that offender to remain likely for duration of order to commit relevant offence – Serious Sex Offenders Monitoring Act 2005, ss 11 and 14.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G J Thomas SC with | Victoria Legal Aid |
| For the Respondent | Ms P M Tate SC, SG with Mr D Grace QC, Mr C P Young and Ms J Davidson | Russell Kennedy Solicitors |
MAXWELL P:
NETTLE JA:
WEINBERG JA:
This is an appeal under s 36 of the Serious Sex Offenders Monitoring Act 2005 (‘the Act’) against an extended supervision order of eight years’ duration. The appellant contends that it was not open to the judge to be satisfied to the requisite standard that an order of more than five years’ duration was warranted. The appellant also appeals against the judge’s refusal to order pursuant to s 42 of the Act that publication of his name and whereabouts be prohibited.
The respondent contends that the appeal is incompetent and otherwise without merit.
Competency of the appeal
Section 36 of the Act provides as follows:
36. Appeals by offenders
(1)In this section, relevant decision means a decision made by a court under Part 2-
(a)to make an extended supervision order in respect of an offender; or
(b)to renew an extended supervision order to which an offender is subject; or
(c)not to revoke an extended supervision order on a review, whether initiated by an offender or the Secretary, under Division 3 of that Part.
(2)An offender who is subject to an extended supervision order may appeal to the Court of Appeal against a relevant decision.
Section 39 provides that:
39. Powers of Court of Appeal
(1) On an appeal under this Part, the Court of Appeal may-
(a) confirm the relevant decision; or
(b)revoke the extended supervision order or the renewed extended supervision order; or
(c)if the relevant decision was to revoke an extended supervision order, make an order reviving the extended supervision order; or
(d)quash the relevant decision and remit the matter to the court which made that decision, with or without any directions.
(2)If the Court of Appeal makes an order under subsection (1)(c), the period between the making of that order and the revocation of the extended supervision order must be taken to have been a period of suspension arising by force of section 19.
(3)If the Court of Appeal remits a matter to a court under subsection (1)(d), that court may make or renew an extended supervision order in respect of the offender even if-
(a)the offender is not then an eligible offender because he or she is no longer serving a custodial sentence as required by section 4(1)(b); or
(b) the extended supervision order has expired-
as the case requires.
(4)Directions under subsection (1)(d) may include directions as to whether or not the court to which the matter is remitted should be constituted by the judge who made the relevant decision.
The respondent’s principal argument as to the incompetency of the appeal is that an appeal against the duration of the order is not an appeal against the order as such; therefore, that it is not an appeal against a relevant decision; and, therefore, that there is no power to deal with the order under s 39.
We reject that argument. It is tantamount to saying that, although it is permissible to appeal against an extended supervision order on the ground that it was not open to make an order of any duration, it is not open to appeal against an order on the ground of excessive duration, no matter how excessive its duration, so long as an order of some duration was warranted. To construe s 36 in that fashion would be contrary to the plain and ordinary meaning of the section and contrary to common sense. According to ordinary conceptions, an appeal against an order on the ground of excessive duration is just as much an appeal against the order as an appeal upon any other ground and, as a matter of common sense, there is no reason to suppose that Parliament would have intended that they be treated any differently.
One of the orders sought in the appeal is for a variation of the extended supervision order by reduction of the term of its duration. As the respondent correctly points out, it is not open to this court to make such an order under s 39. But perforce of the amendments made to s 39 by the Justice Legislation Amendment Act 2008, it is open in an appropriate case to quash a continuing supervision order under s 39(1)(d) and remit the matter to the County Court for reconsideration in accordance with law.[1]
[1]Cf TSL v Secretary to the Department of Justice (2006) 14 VR 109, 117 [23] (Callaway JA) which dealt with the legislation as it was before amendment.
The respondent’s argument as to the incompetency of the appeal concerning the suppression order is more compelling. A suppression order under s 42 is not a relevant order within the meaning of s 36. Consequently, there is no right of appeal under s 36 against a suppression order or refusal to make a suppression order. Section 74 of the County Court Act 1958 is not applicable either. It is limited to orders made to ‘any party to a civil proceeding’ and, although a suppression order as such is in the nature of a civil order, s 26 provides that, except as otherwise provided, ‘Proceedings on an application under this Part [scil. Part 2] are criminal in nature’.
So to say does not mean that there is nothing which a litigant can do to overcome an erroneous refusal of a suppression order. Section 42 applies in terms to ‘any proceeding before a court under this Act’, and there is no reason to doubt that an appeal to this court under s 36 is a proceeding before a court under the Act in the relevant sense. In an appropriate case, therefore, it is open to this court on appeal against an extended supervision order to make its own suppression order under s 42. It is also conceivable that a judge’s refusal to make a suppression order would be amenable to judicial review under Order 56 of the Rules of Court. But the point remains that there is no right of appeal as such against a s 42 suppression order or a refusal to make a s 42 suppression order.
Excessive duration
We turn to the substance of the matter and so to the appellant’s main argument that it was not open to the judge on the evidence before her to be satisfied that an order of more than five years duration was requisite.
Section 11 of the Act provides that:
(1) A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order. (Emphasis added)
(2) The Secretary has the onus of proving the existence of the likelihood referred to in subsection (1)…
Section 14 of the Act provides that:
(1) Unless sooner revoked, the period of an extended supervision order is the period (not exceeding 15 years) determined by the court and specified in the order…
It is implicit in section 14, and both sides accepted, that if the court is not satisfied to a high degree of probability that the offender will remain likely to commit a relevant offence for the whole 15 years period referred to in s 14, the period of the order should be set at such lesser period as for which the court is satisfied to a high degree of probability that the offender will be likely to commit a relevant offence unless subjected to the programme.
There was a dispute, however, as to the meaning of ‘likely’ in that context. The appellant contended that it means ‘at least more likely than not’. The respondent argued on the basis of this court’s decision in TSL v Secretary to the Department of Justice[2] that, although the risk must be ‘significant’, there is no need for the Secretary to show that it is even as much as 50 per cent. But since the case was argued, this court has determined in RJE v Secretary to the Department of Justice[3] that ‘likely’ in s 11 means more likely than not.
[2](2006) 14 VR 109, 117 [23].
[3][2008] VSCA 265.
Error in the application of principle
Not surprisingly, the judge decided the application for an extended supervision order on the basis of the test laid down in TSL. As it now appears, the application should properly have been decided on the basis that ‘likely’ in s 11 (and hence for the purposes of s 14) means at least ‘more likely than not’. To that extent the judge proceeded upon the basis of wrong principle, albeit through no fault of her own. But, given the evidence below, we are satisfied that it could not have made a difference to the outcome of the case.
No error in result
The reasons which the judge gave for setting a duration of eight years were as follows:
As I have already said, I have heard evidence and argument on the appropriate length of the Extended Supervision Order, and the frequency of any review.
In my view, realistically, the time for monitoring a serious sex offender so as to reduce the risk of sexual recidivism to a level which makes monitoring no longer necessary, is not something that is capable of any precise measurement.
From the estimates given by the witnesses, the time required for the assessment process and the respondent’s participation in programs such as the Intensive Sex Offenders Program followed by a Maintaining Change Program, which consolidates any gains made in the Sex Offenders Program not to mention participation in other necessary programs, is probably between two and three years.
In my view, and allowing for the respondent’s current desire to complete all programs as soon as possible, the level of his cognitive impairment, his anti-social personality traits and his history of sexual deviancy warrant that the order for the first review to determine whether the respondent remains subject to the Extended Supervision Order should require that it be undertaken no later than three years from the date of today’s Order. In reaching this conclusion I have allowed for a period of supervision and monitoring beyond the two-year period in which Dr Sullivan predicted the respondent could conclude the treatment programs.
Of course, the Act is concerned with the successful monitoring of serious sex offenders where there is a high degree of probability that the offender will commit a relevant offence in the community. Therefore, the treatment, care and rehabilitation regime which flows from the making of an Extended Supervision Order is only one factor in determining the length of the Order made, as supervision and monitoring in an individual case may be required for many years before it can be said that, by reference to the test contained in s. 11 of the Act, monitoring is no longer justified.
This much is evident from Ms Raymond’s statement that she would be surprised if the respondent was able to attain all the treatment goals within six or seven years of the making of this Order.
The respondent is 53 years of age, has a long history of sexual deviancy, sexual offending and problems with substance abuse. In the respondent’s case, I think it is unrealistic to approach the complex question of altering entrenched behaviour and attitudes, as well as supervising and monitoring the implementation of any strategies to maintain an offence-free lifestyle, by imposing an order for supervision for less than eight years.
According to the appellant, her Honour’s reasoning was deficient in failing to deal with evidence given by the consultant psychiatrist, Dr Danny Sullivan; the willingness of the appellant to undertake offence specific and other programmes while serving his last sentence; his willingness to undertake offence specific and other programmes during the extended supervision order; his willingness to continue Depo-Provera treatment and to increase the dosage if required to do so; his ability to complete all programmes required of him within three years and thus cease to be at high risk of re-offending; the fact that the nature and seriousness of his offending has reduced significantly over time; and his age of 53 years and the effect of age on advancing recidivism rates. In the result, it is said, the period of the order is too long. According to the submission, the judge ought to have applied the principle of parsimony and made the period of the order ‘no longer than was necessary’.
In our view, that contention is misplaced. It is clear that the judge did refer to Dr Sullivan’s evidence and carefully assessed its effect. As her Honour put it:
I note that Dr Sullivan examined the respondent on 11 January 2008, and as his report dated 1 February 2008, shows, at the time he also had access to the historical material referred to by Ms Raymond and her report, as well as to the reports made by Professor Crowe.
Dr Sullivan gave evidence confirming his opinion that the respondent currently represents a high risk of sexual re-offending, although unlike Ms Raymond, he utilised a different instrument, the Risk Sexual Violence Protocol, to determine the stable and dynamic risk factors which might impact upon future offending risk. Dr Sullivan also said that the respondent’s risk category may be reduced to a moderate risk category should he successfully complete the Sex Offenders Program, continue his use of anti-androgen medication, albeit at a higher dose, and minimise his risk of alcohol abuse. To these moderating factors Dr Sullivan added the diminishing impact of advancing age.
The judge also dealt specifically with the extent of the appellant’s willingness to undertake offence specific and other programmes in the past and while serving his last sentence:
Notably, despite some treatment, limited interventions and periods of imprisonment for sex and other offences, and, in particular, the lengthy term of imprisonment the respondent served after his Honour Judge Lewis sentence him in 1992, the respondent has not been deterred from further sexual offending.
Indeed from the materials I have read, coupled with the commission of the two relevant offences in 2005, I have concluded that in the absence of the recommended intensive offence-specific treatment, the respondent probably has maintained a deviant sexual interest in children. This is so notwithstanding the fact that his last conviction for contact offending with children was in 1992.
Moreover, even though it did not involve a child, the indecent assault offence in 2005 against a 19 year old boy who, in answer to the respondent’s advertisement, worked one day in the respondent’s cleaning business and was sexually assaulted after being given alcohol by the respondent, arguably represents an extension of the pool of young males from which the aging respondent is prepared to select sexual victims.
…
What is clear from all of the medical reports, past and current, is that the respondent’s status as a high risk offender warrants an order that facilitates offence-specific programs as well as pharmacological and psychological treatment and supervision on his return to the community.
The judge took into account, too, the appellant’s long time use of Depo-Provera and his willingness to continue with it and engage in further courses. As her Honour observed, when the appellant was assessed in 1997 he refused to discuss the offending for which he was sentenced and that prevented him from undertaking the Sex Offenders Programme as recommended. In 1998, he expressed an interest in undertaking appropriate programmes prior to his release and undertook some broad self-development programmes, although those programmes were not associated with the intensive Level 3 Sex Offenders Program and there had been insufficient time after being sentenced in 2006 to complete the Sex Offenders Program. During the appellant’s last sentence he had completed a number of useful programmes and exhibited a change in behaviour and attitude which her Honour considered lent weight to Dr Sullivan’s opinion that participation in suitable programmes and treatment had the potential to bring about a meaningful reduction in his risk or relevant offending. Nevertheless, the judge’s overall impression was that the appellant had not always grasped the opportunities available to him and, while he deserved credit for persisting with the use of anti-androgen medication and for involvement in more recent years in some psycho-educational and behavioural programmes, his current willingness to participate in an Intensive Sex Offenders Program should be viewed with cautious optimism.
The appellant in fact accepts[4] that he is at present at high risk of re-offending but contends that Ms Raymond’s evidence does not support the conclusion that he will remain at high risk of re-offending for the full eight years of the order. Alternatively, he submits that, in face of Dr Sullivan’s evidence, it was not open on Ms Raymond’s evidence to be satisfied to a high degree of probability that the appellant would for the full eight years continue to be more likely than not to offend.
[4]As he did before the judge.
In our view, it does and is. Ms Raymond gave evidence that she would be surprised if the appellant were able to complete all the treatment goals within a period of six or seven years and that it was only then that a proper assessment could be made of whether the programmes had worked to the extent of reducing the risk of re-offending below a high risk. She also gave evidence that nothing in Dr Sullivan’s opinion altered her attitude. The effect of her evidence was that one could only speculate as to when and if the present high risk of the appellant re-offending will be significantly reduced.
In effect Dr Sullivan’s evidence was little different. In his written report he opined that the appellant was currently in the high risk category for sexual re-offending but that it may be reduced to the moderate risk category through successful completion of the Sex Offender Program, continuation of the anti-androgen medication and attention to minimising alcohol abuse. Similarly, in his oral evidence, Dr Sullivan stressed that:
were he to respond well to all of those treatments [the appellant] would still be in the moderate category rather than low, so I don’t think anyone’s indicating that a risk is going to be absent.
and that:
[I]f he responded to treatment, that we would see some demonstrable improvement, probably manifest in an increased depth of insight into offending and risk patterns rather than what previously has been manifest as denial or minimisation…[but that] obviously, at the completion of the sex offender program, in its totality, would will then have a better idea of the risk.
But asked how long that would be after commencement of the programme, Dr Sullivan replied that he was uncertain. He said it was probably something better asked of a sex offender programme clinician, and that in effect the best he could say was that:
A ball park estimate for me in terms of whether there’d been any meaningful development in his insight and ability to employ strategies to reduce that risk would be around two years.
And asked then whether he considered that, after completion of the Sex Offender Program and any other programmes undertaken, there would need to be a period of observation or supervision in the community before an assessment could be made of whether the appellant remained a high risk. Dr Sullivan replied in effect that there would be:
The assessment of whether a risk continues is likely to be an ongoing task and I think that at the completion of the sex offender program, the next stage is the maintenance phase where one seeks to see someone with less frequency and less intensity, but to continue to challenge them, to ask them about risk situations they’d been in, to determine whether they’ve handled those appropriately and indicated to the clinician thereby that they’ve learned the lessons of the sex offender program and internalised them and were able to use them. Now, that’s an ongoing task, but again, because the figures for re-offending project well into the future; I mean, one will never know until someone has, you know, lived the rest of their life and not re-offended or has re-offended.
Finally, in cross-examination, Dr Sullivan said this:
What you’ve really indicated is that, however, if a number of positives occur, then that may reduce? - - - Yes.
Then again, it may not? - - - Yes.
One very significant feature that will have to be addressed is abstinence from alcohol? - - - Yes.
That isn’t something that’s necessarily easy to overcome if you’ve had a longstanding history of substance abuse? - - - No, that’s correct.
In terms of the fact that it may be that a person might be able to undertake relevant programs within a couple of years in a supervised sort of a setting, there is undoubtedly benefit to the community in supervision beyond that stage to see – to monitor and see to what extent the lessons learned are being put into practice in everyday life? - - - Yes, there certainly could be.
Given the qualified terms in which Dr Sullivan so spoke of the possibility of improvement and that at best he foresaw no greater degree of improvement than a reduction from high risk to moderate risk after a period of two to three years of programmes and a subsequent additional monitoring stage, it seems to us that there was in the end very little inconsistency between Ms Raymond’s and Dr Sullivan’s prognoses.[5] In effect each expert’s opinion came down to there being a possibility of a reduction, from high risk to moderate risk of re-offending, but no reduction until and unless the appellant completes the courses; that there may be no reduction even then; and that one will not know what if any reduction there has been until the appellant completes the courses and is assessed in the further monitoring period.
[5]TSL v Secretary to the Department of Justice (2006) 14 VR 109, 117 [23] (Callaway JA).
We allow for the possibility that the treatment will be quicker and more effective than predicted. In that event, it is to be assumed that the order would be revoked or varied on review under s 23 of the Act. But the judge allowed for that possibility, too, by requiring that the first review be carried out within three years and thereafter that there be further reviews at two yearly intervals.
Overall, it remains on the evidence (including Dr Sullivan’s evidence) that, until and unless the appellant does undergo treatment and is reassessed, one may be satisfied to a high degree of probability that the appellant will remain at high risk of re-offending (which is to say, at least more likely than not to commit a relevant offence). In that state of affairs, we consider that the judge was right to make an order of eight years’ duration.
The refusal to make an order under s 42
Section 42 of the Act provides that:
42. Suppression orders
(1)In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order-
(a) that any evidence given in the proceeding; or
(b)that the content of any report or other document put before the court in the proceeding; or
Ithat any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified-
must not be published except in the manner and to the extent (if any) specified in the order.
(2) An order under this section may be made on the application a party or on the court’s own initiative.
(3) A person must not publish or cause to be published any material in contravention of an order under this section.
Penalty: 500 penalty units in the case of a body corporate; 120 penalty units or imprisonment for 1 year or both in any other case.
Dr Sullivan gave evidence below that:
I think that disclosure of these gentlemen’s identities has a devastating effect on them. As a consequence I have amended my normal report format, and paragraph 2 contains what I hope is a very explicit statement about the limits of where the information Mr AM gave me would be used. Certainly, in previous ESQ applications which have been successful for clients seen by Forensicare I am fully aware that it has a devastating impact on them, that it leads to mood disturbance and depression, that some people become suicidal and in some situations that disclosure of people’s names may be a risk factor indeed to the community in that people feel hopeless and figure that they might as will just offend and go back into prison. I feel very strongly that these informations [sic] shouldn’t be divulged to the public.
That caused the judge to remark to counsel to the effect that her Honour was more concerned with evidence which bore directly on the likely effect of disclosure on the appellant than with effects which disclosure may have had on other offenders in the past.
That led in turn to Dr Sullivan giving the following further evidence:
I balance against the fact that the members of the community have short memories and don’t tend to remember individual’s names [that] although there is no publicly sanctioned searchable database that does exist [in Australia as opposed the USA], a website for the Macho which publishes details which are in the public domain of offenders on a searchable website with details about them … seeks to replicate that American system of a publicly searchable database. So I always have concerns that although there’s no government sanctioned publicly searchable database … in fact that material does carry forward. Mr AM belongs to a category of people who, I think, are subject to very destabilising public influences. Obviously, it’s not my position in this situation today to speak for the public interest in the disclosure of his name, but I can say that from the point of view of a clinician it is not in his interests to have his identity published at all.
…the National Society for the Prevention of Cruelty to Children in the UK published a literature review and opinion on the benefits of disclosing the identity of sexual offenders and they found no benefit to it and in fact suggested that the evidence point to a likelihood that it reduced compliance of people with treatment and made them more likely to flee from orders or to seek to evade the orders in the future and I think we’ve seen similar situations in New South Wales, even within the last few months of high risk sex offenders upon release into the community absconding promptly. My personal feeling and my reading of the research evidence is very strongly that the public disclosure is a risk factor which might escalate risk of offending.
Despite that evidence, however, the judge refused the application for a suppression, for reasons which she expressed as follows:
In cases involving the supervision of serious sex offenders in the community, the operation of the principle of open justice will, in many instances, cause some inconvenience in the administration of the supervisory scheme and, so far as the respondent is concerned, some degree of disquiet should there be public disclosure of his identity and whereabouts. However, in my view, to justify suppression of this information there needs to be cogent evidence of negative impact either in the administration of the scheme or on the respondent to a degree that satisfies the court that publication is not in the public interest because it is likely to frustrate the purposes of the Act. In this instance I have not been satisfied from the material and evidence available to me that it is presently in the public interest to suppress information that might enable the respondent or his current whereabouts to be identified.
As already explained, there is no appeal from her Honour’s refusal to make the suppression order which was sought. Consequently, this is not an occasion to assess the validity of her Honour’s reasons for refusing the make the order sought. The only question is whether we should exercise the power which we have as a court in a proceeding to make an order under s 42 and, therefore, whether we consider that it is in the public interest to make the order sought. Based upon the evidence given by Dr Sullivan, we are of the clear view that it is.
A supervision order is not and is not intended to be a punishment.[6] An offender such as the appellant who has served all the sentence of imprisonment imposed on him for his offending is taken to have discharged his debt to society. Subject to extraordinary statutory exceptions of the kind constituted by the Act, he is as free as any other member of society to live lawfully without unwanted publicity or intrusions upon his or her privacy. Evidently, it is in the public interest that police and correctional authorities be aware of the identity and whereabouts of an offender the subject of an extended supervision order. That is the principal justification for the profound intrusion upon the liberty of the subject for which the legislation provides. But, as at present advised, it appears to us to be less clear that there is any public interest in further unwanted disclosures of an offender’s identity or whereabouts. In this case, we consider that the likely effects of such disclosures on the applicant are sufficient in themselves to warrant suppression. In other cases it may be necessary to consider the right to privacy and reputation conferred by s 13 of the Charter of Human Rights and Responsibilities[7] and, along with it, the effect of s 32 of the Charter on the interpretation of s 42 of the Act.
[6]Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, 597 [34] (McHugh J), 610 [73]–[74] (Gummow J), 647 [196]–[197] (Hayne J), 655 [219] Callinan and Heydon JJ.
[7]Charter of Human Rights and Responsibilities Act 2006.
Conclusion and orders
For the reasons given, we would dismiss the appeal but we would order, pursuant to s 42 of the Act, that until the first review or further order there be no publication of any evidence given in this proceeding, the content of any report or other document put before the court in the proceeding or any information that might enable the appellant to be identified.
- - -
72
5
0