Attorney-General (NT) v JF - [2021] NTSC 14

CITATION:Attorney-General (NT) v JF [2021] NTSC 14
PARTIES:ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
v

JF

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:18 of 2020 (22034945)
DELIVERED:  22 February 2021
HEARING DATE:  12 February 2021
JUDGMENT OF:  Brownhill J
CATCHWORDS:

ADMINISTRATIVE LAW – PREVENTATIVE DETENTION LEGISLATION - Application pursuant to the Serious Sex Offenders Act (NT) on basis respondent a “serious danger to the community” – onus of satisfying the Court rested upon the applicant – paramount consideration need to protect victims or potential victims, their families and members of the community generally – secondary consideration desirability of providing rehabilitation, care and treatment for the person subject to the order – respondent remained a serious danger to the community – protection of the community could be met by making a supervision order subject to appropriate conditions – supervision order made.

Correctional Services Act 2014 (NT)
Serious Sex Offenders Act (NT) s 3, s 4, s 6, s 9, s 14, s 18, s 19, s20, s 22, s 23, s 25, s 27, s 31, s 63, s 79, s 82, s 83, s 88, s 89, sch 1.
Attorney-General (NT) v JD [2015] NTSC 28, Attorney-General (NT) v Harrison [2018] NTSC 33, Director of Public Prosecutions (WA) v GTR (2008) 38 WAR 307, EE v Attorney-General (NT) [2017] NTCA 2, considered.

REPRESENTATION:
Counsel:
Applicant:T Anderson
Respondent:  P Bellach
Solicitors:
Applicant:Solicitor for the Northern Territory
Respondent:  Not applicable
Judgment category classification:    B
Judgment ID Number:  Bro2105
Number of pages:  29

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Attorney-General (NT) v JF [2021] NTSC 14

No. 22034945
BETWEEN:

ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Applicant

AND:

JF

Respondent

CORAM: BROWNHILL J
REASONS FOR DECISION
(Delivered 22 February 2021)

The Attorney-General made an application under s 23 of the Serious Sex Offenders Act (NT) (‘SSO Act’) for a final continuing detention order or, in the alternative, a final supervision order in relation to the respondent. The application is made on the basis that the respondent presents a serious danger to the community.
The respondent is now 34 years old. Between November 1999 and October 2012, he was convicted of thirty-four offences, primarily involving sexual assault, common assault, stealing or property offences, unlawful entry, motor vehicle offences, weapons offences and breach of conditions offences.
The respondent was first convicted of sexual offending at the age of 14. The circumstances of the offending were as follows. On 6 January 2001 at 1.00am, the respondent was intoxicated. He returned to his house and entered a bedroom where he knew a number of young girls were sleeping. The victim was an 11 year old girl, who was asleep on a bed between two other girls. Whilst she was asleep, the respondent removed her pants and underpants and got on top of her. The victim woke up and tried to push the respondent off. He told her to “shhh” a few times. Another person in the house entered the bedroom and turned on the light. That person saw the respondent on top of the victim. The respondent got off the victim, zipped up his pants and went into another room where he pretended to go to sleep. On 11 November 2002, the respondent was convicted and sentenced to six months in detention, which sentence was fully suspended on a condition of good behaviour for 12 months.
The respondent’s second conviction for a sexual offence was recorded on 3 May 2007 for offending which occurred on 17 May 2006, after he had been released from custody on 30 November 2005. He was then 19 years old. The circumstances of that offending were that, on the evening in question, the respondent drank a lot of alcohol and became very drunk. At 8.00pm he approached the two victims, who were sisters. They were sitting under a tree and drinking alcohol. He asked them for a cigarette, which they refused. He then attempted to become intimate with the first victim. He licked her on her face and pushed her to the ground. She struggled with him and tried to push him away. He bit her on her neck while holding onto her shoulders and restraining her on the ground. She pushed him away. He then walked behind her and picked up an iron framed chair. He swung the chair and hit her across the back of the head, causing a wound that required six stitches. She ran from the area fearing further assault. He ran after her but did not catch her. He then returned to the area where the second victim was still sitting. She suffered from cerebral palsy. He punched her several times to the head with considerable force. She was knocked to the ground and stunned. She was lying on her back. He lay on top of her. He pulled her pants down to her knees with the intention of having sexual intercourse with her. He pulled down his own pants and attempted to insert his penis into her vagina. He moved up and down on her, continuing to attempt to have intercourse with her, until her cries alerted persons nearby. He stood up and began chasing people away. The first victim returned to assist the second victim get away. The respondent returned and the first victim left the scene. The respondent then kicked the second victim to her body as she lay on the ground. The respondent was convicted of two counts of aggravated assault and one count of attempting to have sexual intercourse without consent. He was sentenced to a total of four years and three months imprisonment, with a non-parole period of three years.
The respondent’s third conviction for a sexual offence was recorded on 29 October 2012 for offending which occurred on 27 August 2011, after he had been released from prison on 30 January 2011. He was then 24 years old. The circumstances of that offending were that the female victim was walking along a road, the respondent grabbed her shirt from behind and started pushing her towards a house he had been living in. She resisted and he pushed her, causing her to fall on the ground. He then kicked her in the face. When she tried to get up, he kicked her in the chin. He told her to go inside and be quiet and he took hold of her shirt and pushed her into the house. Once inside the house, the respondent took her to a bedroom and pushed her onto a mattress on the floor. He told her to be quiet. She said she wanted to go home. He told her that if she had sex with him he would let her go. She agreed to do so out of fear. He removed her shirt and pulled her shorts down. She struggled to pull them back up. He told her to “suck my dick” and she said she did not want to. He placed her on her hands and knees and told her he wanted to have sex from behind. She said no but he engaged in penile anal intercourse, causing her significant pain. She screamed at him to get off saying he was hurting her. He stopped. She told him she wanted to wash because she was bleeding and wanted to go home. He told her she should stay and he would get her steak to eat. He told her to have a shower and followed her into the bathroom. He said he wanted to join her in the shower and she refused. When he left the room, she tried to open the door, but it was bolted. When she tried to release the bolt, he returned and told her to sit down to eat food. Shortly thereafter, other residents of the house arrived. She sought their help. He was convicted of aggravated assault and sexual intercourse without consent. He was sentenced to a total of nine years and six months imprisonment, with a non-parole period of seven years.
Before that sentence was passed, the respondent was assessed by a psychiatrist, Dr Olav Nielssen, who reported on 10 June 2011 that the respondent’s pattern of behaviour suggests he might commit similar offences unless he is able to derive some lasting benefit from therapeutic programs whilst in custody and is able to adhere to appropriate counselling and supervision after his release on parole.
At the time this application was made under the SSO Act, the respondent was serving the sentence in respect of the third episode of sexual offending. His sentence will expire on 25 February 2021.

The history of the proceedings

The application was filed on 4 November 2020. A preliminary hearing was conducted on 14 December 2020, following which the Court determined that the matters alleged, if proved, would satisfy the Court that the respondent is a serious danger to the community. Pursuant to s 25(2)(b) of the SSO Act, the Court made a medical assessment order within s 79 of the SSO Act, which authorised two psychiatrists to examine the respondent and prepare reports about him.
The application was heard on 12 February 2021. During that hearing the Court received into evidence the following:
(a)pursuant to s 82 of the SSO Act, reports:
(i) dated 17 January 2021 from Dr Danny Sullivan, a Consultant Forensic Psychiatrist; and
(ii) dated 24 January 2021 from Dr D Rajan Darjee, a Consultant Forensic Psychiatrist; and
(b)pursuant to s 89 of the SSO Act, a supervision report prepared pursuant to s 88 of the SSO Act dated 8 February 2021 from the Acting Commissioner for Correctional Services.
The Director of the Crime Victims Services Unit sought victim submissions about the respondent from registered victims pursuant to s 83 of the SSO Act and no victim submissions were received.
At the close of the hearing on 12 February 2020, I made a final supervision order in terms which are set out at the end of these reasons. These are my reasons for doing so.

The scheme of the legislation

It has been observed[1] that the SSO Act seeks to remedy a concern that there is an unacceptable risk prisoners who have committed very serious sex offences will commit another serious sex offence when they return to the community upon their release, and that the SSO Act represents an important shift in the administration of justice because it impacts the fundamental principle that a person’s liberty is not to be affected except upon proof of a criminal offence, and then only for so long as the sentence of the court in respect of that offence allows, and no longer. The scheme of the SSO Act permits this Court, in the exercise of its civil jurisdiction, to make an order for continued detention or supervision beyond expiration of the sentence imposed in relation to a criminal offence, even though no further offence has been committed, albeit in very limited circumstances.[2]
The primary object of the SSO Act is to enhance the protection and safety of victims of serious sex offences and the community generally by allowing for the control, through continued detention or supervised release, of offenders who have committed serious sex offences and pose a serious danger to the community (s 3(1)). The secondary object of the SSO Act is to provide for the continuing rehabilitation, care and treatment of those offenders (s 3(2)).
The term “serious sex offence” is defined to mean any of the offences listed in Schedule 1 of the SSO Act, an offence which substantially corresponds to such an offence, or an attempt, conspiracy or incitement to commit such an offence (s 4). The offences listed in Schedule 1 include sexual intercourse without consent, aggravated indecent assault, sexual offences against children under the age of 16 years, and a range of less common offences with a sexual element.
The SSO Act provides that a person is a “serious danger to the community” if there is an unacceptable risk that a person will commit a serious sex offence unless they are in custody or subject to a supervision order (s 6(1)).
The essential operation of the SSO Act has been described elsewhere[3] and need not be repeated here.

Qualifying offender

As set out in paragraph [5] above, the respondent was most recently convicted of, and sentenced for, two offences, one of which was sexual intercourse without consent (Count 2), which comprises a “serious sex offence” (s 4, Sch 1). The first limb of s 22(1) is therefore satisfied.
The other offence was aggravated assault (Count 1). The total term of imprisonment was nine years and six months. The total sentence period will end on 25 February 2021. The sentencing remarks do not separately specify the final terms of imprisonment for each offence, but they do indicate that the sentence on Count 1 was to be served cumulatively on the sentence for Count 2 to the extent of 8 months. This suggests, although it is not clear, that the respondent would now be serving the accumulated part of the sentence on Count 1.
There are two relevant possibilities. First, that the respondent is under sentence of imprisonment for the offence in Count 2, the serious sex offence. If so, he falls within the first part of the second limb of s 22(1) (ie, s 22(1)(b)(i)). Secondly, that the respondent has served his sentence for the offence in Count 2, is under sentence of imprisonment for another offence (the offence in Count 1), and has not at any time since commencing to serve the sentence, ceased to be under sentence of imprisonment for an offence or in custody for any other reason. If that is so, he falls within s 22(4) and therefore within the second part of the second limb of s 22(1), namely, s 22(1)(b)(ii).
It follows that the respondent is a qualifying offender within s 22 of the SSO Act.

Serious danger to the community

The first question for determination is whether the respondent presents a “serious danger to the community” within the meaning of the SSO Act. A qualifying person presents such a danger if there is an unacceptable risk that he or she will commit a “serious sex offence” unless he or she is in custody or subject to a supervision order.
In deciding whether the respondent is a serious danger to the community, the Court must have regard to the likelihood that he will commit another serious sex offence; the impact of the serious sex offences committed, or likely to be committed, by the respondent on the victims and the community; and the need to protect people from those impacts. A statutory formulation of the Briginshaw standard[4] applies to that assessment and the applicant bears the onus (s 27).[5]
To assess whether there is an “unacceptable risk”, the Court must undertake a balancing exercise, requiring the Court to have regard, amongst other things, to the nature of the risk (commission of a serious sex offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender on the other, if an order is made.[6] What is being referred to is not any risk that the respondent may commit a further serious sex offence because some risks can be acceptable consistently with the adequate protection of the community.[7]
Dr Sullivan’s report sets out a record of the respondent’s personal history, medical history, psychiatric history, substance abuse history, and psychosexual and offending history. The report noted that the respondent had completed the Indigenous Sex Offender Treatment Program (‘SOTP’) in 2016, but the exit report dated 23 September 2016 opined that he had not genuinely engaged given his denial of the offending and lack of demonstrated insight into his sexual offending behaviour. After further individual sessions in the SOTP in 2018, the exit report expressed a range of concerns about the respondent’s release. In February and April 2020, the respondent declined to participate in further assessment. Dr Sullivan’s report opines that it does not appear that the respondent has developed significant insight into his behaviour and his plans to return to the community and address risks of future offending appear limited.
The report then makes the following observations or opinions. It does not appear that the respondent suffers any gross cognitive impairment. He has evidence of polysubstance abuse involving alcohol, cannabis, synthetic cannabinoids and, in the past, inhalants. His offending appears associated with intoxication and he reports impaired judgement, aggression and sexual disinhibition when intoxicated. He has not completed residential rehabilitation programs and has rapidly reoffended after relapse into substance abuse. There is insufficient evidence to indicate a sustained or pervasive mood disorder in the past. There is no evidence of psychotic symptoms or other serious mental illness. The respondent has spent most of his adult life in prison. His offending history, disciplinary infractions in prison, impulsivity, superficial emotional engagement and minimisation of offending are consistent with dissocial personality disorder.[8] There is no clear indication of sexual deviance. Factors associated with his sexual offending include cognitive distortions related to gender roles and sexual entitlement, attitudes supporting use of violence, difficulty managing negative emotions, and disinhibition when intoxicated. There is no clear evidence of hyper-sexuality, but some evidence of sexual preoccupation. The respondent reports a range of negative emotions frequently, which emotions have been linked to his offending.
Dr Sullivan’s report opines that the respondent:
(a)demonstrates significant reoffending risk factors on a model of prediction based on the risk factors of unrealistic long-term goals, poorly developed release plans and poor coping skills;
(b)scores in the high risk category of reoffending risk assessed on the STATIC-99 instrument;
(c)has a significant range of past risk factors in three of the domains and a moderate number of risk factors in one other domain under the Risk for Sexual Violence Protocol (‘RSVP’) model of assessment.
Dr Sullivan’s report ultimately opines that the respondent is at high risk of committing another serious sex offence if not detained in custody or subject to a supervision order.
Dr Darjee’s report sets out a record of the respondent’s offending history, personal history, substance abuse history, physical and mental health history, and personality functioning. The report makes the following observations or opinions. The respondent meets the criteria for antisocial personality disorder[9] or moderate to severe personality disorder with dissociality and disinhibition.[10] The personality disorder traits are submissiveness, hostility, restricted affectivity, irresponsibility, impulsivity, distractibility and risk taking. The respondent would, prior to his incarceration, have met the criteria for substance misuse disorder, relating to alcohol and cannabis. He does not have a paraphilic disorder, nor does he suffer from a major mental illness, a psychotic disorder or a major mood disorder. There was no obvious evidence of cognitive deficits. The respondent appears to have developed underlying hostile attitudes towards females and sexualising views of females, and has used sex to cope with negative feelings. Alcohol intoxication is the key destabilising factor. Factors which perpetuate the respondent’s risk of reoffending include his personality difficulties, poor coping skills, lack of self-control, attitudes towards women, lack of prosocial supports, lack of stable accommodation, lack of employment and the risk of returning to alcohol misuse. He has shown limited gains in treatment focused on addressing his sexual offending behaviour, although he has developed some awareness of relevant risk factors.
The report opines that the respondent:
(a)scores in the high risk category of reoffending risk assessed on the STATIC-99 instrument;
(b)places in the well above average category of reoffending risk assessed on the STATIC-99R instrument, indicating he is far more likely than the average man convicted of a sexual offence to be convicted of a further sexual offence over the long term;
(c)has a relatively high number of relevant risk factors under the RSVP model of assessment; and
(d)has a low level of protective factors which may mitigate risk of violence or sexual violence under the Structured Assessment of Protective Factors (‘SAPROF’) if he is in the community not on a supervision order, a moderate level if detained in prison and a moderate-low level if on a supervision order.

Ultimately, Dr Darjee’s report opines that the respondent poses an ongoing risk of committing sexual offences analogous to those previously committed and, if released without supervision, there is a significant risk of further sexual offending.
Having regard to the opinions of Dr Sullivan and Dr Darjee, and taking into account the considerable adverse impact of the serious sex offences committed, and likely to be committed, by the respondent on the victims and the community, and the need to protect people from those impacts, I find that the respondent presents a serious danger to the community. This is on the basis that there is an unacceptable risk he will commit a “serious sex offence” unless he is in custody or subject to a supervision order. Counsel for the respondent did not contend otherwise.
Ultimately, the counsel for the applicant sought the making of a final supervision order and counsel for the respondent did not oppose that course. The only issue was in regards to two of the proposed components of that supervision order.

Continuing detention order or supervision order

On the hearing of an application, the Court may make a final continuing detention order or final supervision order if satisfied that the qualifying offender is a serious danger to the community (s 31). The applicant has the onus of satisfying the Court that it is appropriate to make a final continuing detention order or final supervision order.
In deciding whether to make a continuing detention order, the Court must have regard to the paramount consideration (ie the need to protect victims and members of the community), and to the secondary consideration (ie rehabilitation, care and treatment for the respondent) (s 9). In the consideration of those matters, the Court must have regard to the likelihood that the respondent will commit another serious sex offence and whether adequate protection could reasonably be provided by making a supervision order in relation to the person (s 9).
It necessarily follows that a continuing detention order should not be made if adequate protection could be afforded to victims and the community by making a supervision order.[11] In deciding whether to make a supervision order, the Court must have regard to the same paramount and secondary considerations (s 14). In doing so, the Court must have regard to the likelihood of the respondent committing another serious sex offence, whether it will be reasonably practicable for the Commissioner of Correctional Services to ensure that the respondent is appropriately managed and supervised in the community and whether adequate protection could only reasonably be provided by making a continuing detention order (s 14).
Section 18 sets out a list of “compulsory requirements” which the Court must include in any supervision order, but the Court is expressly empowered to include any other requirements the Court considers appropriate, which are described as “optional requirements” (s 19).
Dr Sullivan’s report opined that the respondent will require a relapse prevention strategy and further offence-specific interventions aimed at improving his self-management and emotional regulation, which may require intensive psychological input to address his understanding of his childhood and relationships, and assist the respondent to develop strategies to monitor and manage negative emotions. The report says that the respondent appears not to have any practicable strategies, motivation or capacity to abstain from substance use in the community and his repeated relapses into substance use are strongly associated with his offending. Dr Sullivan’s report opines that the respondent will require extensive support to return to the community safely and appropriate accommodation and opportunities for employment will be critical to reducing future offending risk.
Dr Darjee’s report opines that if monitoring, supervision, support and treatment can be provided to the respondent, preventing a return to alcohol use and achieving social stability, it would be feasible and safe to manage the respondent in the community on a supervision order. The measures required include ongoing support and treatment to address alcohol and drug misuse, stable accommodation that is away from the antisocial and alcohol related influences of family and former peers, where he has access to services that can provide intense monitoring, supervision and support, and ongoing psychological treatment to address emotion regulation and anger, substance misuse, prosocial skills, communication and relationships.
The supervision report concludes that it would be reasonably practicable for the Acting Commissioner of Correctional Services to ensure that the respondent was appropriately managed and supervised in the community as required by s 63 of the SSO Act. It recommends sixteen conditions to assist in the management and reduction of risk to the community.
The supervision report notes that, since his incarceration on 29 August 2011, the respondent has had sixty reportable incidents recorded, a number of which involved incidents of sexualised, violent or aggressive behaviour. The report refers to an incident on 28 January 2021, following which the respondent’s security classification was changed to high security. After a television was removed from the respondent’s accommodation when he damaged its wires, and he was told he would not be receiving another television, the respondent became aggressive, punched a Perspex screen, threw a rubbish bin and threw a punch at correctional officers.
The supervision report states that Correctional Services have prepared a transition plan for the respondent and are managing him under it. The purpose of the transition plan is to provide a suitable and structured transition to the community while managing safety and security risks. The transition plan has four stages, of which the respondent has completed the first three, being “support to obtain internal employment”, “identification and recreation” and “reconnection”. The fourth stage is “day leave”, which the respondent will not participate in whilst he remains on a high security classification.
The supervision report makes detailed reference to the reports, particularly the management recommendations of Drs Sullivan and Darjee. It states that Correctional Services can provide offence specific treatment for the respondent to address the intervention targets identified by Drs Sullivan and Darjee, and that access to such specialised treatment is available in the Darwin area. In particular, a senior psychologist from Offender Services and Programs is able to conduct weekly counselling sessions with the respondent at the Palmerston office. The respondent confirmed he is willing to engage in that counselling. He also indicated a willingness to take the medication recommended by Dr Sullivan, Naltrexone, to assist with abstinence from alcohol.
The supervision report states that supervision and reporting requirements were discussed with the respondent and he is willing to engage with Community Corrections under supervision and reporting requirements. He indicated he understood the consequences of failing to comply with such requirements. The report notes the respondent’s prior poor history of compliance with conditions and of poor compliance whilst in custody, which suggest that he may not comply with supervision conditions in the future. It notes that Community Corrections can provide compliance officers to assist and escort the respondent in the community (such as for grocery shopping), but they would not have any power to restrain him and would respond to non-compliant behaviour by calling the Police.
The supervision report states that a case plan has been developed with the respondent which identifies the respondent’s goals of employment, accommodation and treatment, and identifies interventions, strategies and supports to address the respondent’s criminogenic risks. The report states the respondent demonstrated a good level of understanding and motivation to achieve his goals. The case plan includes an example supervision schedule (attached to the report) which indicates a possible structured week of activities for the respondent once his routine stabilises. On a weekly basis, Community Corrections could work with the respondent to create and update such schedules.
The supervision report states that the respondent is willing to comply with any alcohol or drug abstinence conditions and testing conditions. He also indicated a willingness to participate in alcohol and drug counselling if directed to do so.
The supervision report refers to the respondent’s relationships with family or other persons who might support him in the community. He identified four people who might do so, and has had limited contact with such persons while in prison.
The supervision report considered various options for accommodation for the respondent with family in Corella Creek and Borroloola. The report opines that in both locations it would be impossible to provide the respondent with the intense monitoring, supervision and support recommended by Drs Sullivan and Darjee. In addition, the respondent indicated he did not wish to reside at either location.
The respondent’s preference is to reside in Darwin. The supervision report states that Correctional Services has been unable to identify suitable private or public accommodation within the community to which the respondent could be released on supervision. However, the respondent has been identified as suitable to reside at one of the Multipurpose Cottages within the Darwin Correctional Precinct. The respondent is agreeable to residing there and to complying with the conditions of residence. The report opines that accommodation in the Cottages is the only viable accommodation option and that if the respondent is accommodated there, Correctional Services can appropriately implement and manage the required conditions of supervision to address the respondent’s high risk of re-offending.
The supervision report states that Correctional Services can support the respondent to engage with community based employment and job seeking services.
The supervision report states that electronic monitoring would enhance the ability of staff to monitor and manage movement conditions and curfew conditions, and thereby reduce the respondent’s risk of re-offending. The respondent is willing to comply with the rules of electronic monitoring. He has also been given the opportunity to try out a device and demonstrated an ability to charge the device, allowing it to maintain sufficient battery level and functioning.
Having regard to that body of evidence, and in the circumstances, I find that it would be appropriate to make a final supervision order, with conditions for supervision and management consistent with those recommended in the supervision report, in relation to the respondent, given my satisfaction that he is a serious danger to the community in the relevant sense. Having regard to the risk of reoffending which the respondent presents, and the conclusions drawn in the supervision report, I find that it will be reasonably practicable for the Commissioner of Correctional Services to ensure that the respondent is properly managed and supervised under a supervision order subject to appropriate conditions, and that it is unnecessary to make a continuing detention order at this point.
The only points of contention between the parties related to two aspects of the proposed final supervision order.
The first aspect was as to paragraph 3 of the proposed order, which provides that, pursuant to s 18(2) of the SSO Act, there are no matters about which a probation and parole officer cannot give directions to the respondent pursuant to s 20 of the SSO Act. Counsel for the respondent opposed the inclusion of this paragraph and instead sought a paragraph that a probation and parole officer cannot give directions to the respondent compelling him to take medications. It was argued that, given that Dr Sullivan had made some suggestions as to medications that might assist the respondent, and given there is a proposed condition that the respondent must comply with any direction given by a probation and parole officer to participate in any specified rehabilitation, care or treatment, there was a concern that a probation and parole officer might direct the respondent to take certain medications.
The right of a competent adult patient to consent to treatment, together with the associated right to refuse medical treatment, is recognised and protected by the common law, including, for example, the law of trespass to the person. That right may be supplemented or diminished by statute. There is no express power in the SSO Act or the Correctional Services Act 2014 enabling Community Corrections to compel a person to take medication. The existence of an implied power to do so in either statute is highly unlikely, but I need not consider the question of power any further.
In addition, whether or not a person has access to prescription medication is a matter for their health professional in the exercise of their professional relationship with their patient. A direction of the kind under consideration would purport to compel the respondent to obtain the medication and that is not something within the respondent’s power.
I was told by counsel for the applicant that it is the position of Community Corrections that a probation and parole officer does not have the power to give a direction to a person under their supervision and management to take medication.
In my view, there is no prospect of a probation and parole officer making any such direction in relation to the respondent. That makes the respondent’s counsel’s concerns about paragraph 3 of the proposed final supervision order unfounded and the proposed change to that paragraph unnecessary.
The second aspect of the proposed final supervision order to which counsel for the respondent took exception was paragraph 4(p), which provides that the respondent must not, without lawful reason, enter any private premises. Counsel for the respondent argued that the paragraph is futile because the respondent is not entitled, without lawful reason, to enter private premises.
In my view, the paragraph has utility because it confirms the respondent’s obligations to comply with the law relating to entry to private premises, provides an additional compulsion to comply with that law, and provides an avenue to address any failure on his part to do so. The proposed paragraph is no more futile than the paragraph of the final supervision order which provides that the respondent must not commit a serious sex offence, this being one of the compulsory conditions contained in s 18(1)(a)(i) of the SSO Act.

Disposition

The final supervision order is in the following terms.
Pursuant to s 31 of the Serious Sex Offenders Act (NT) (“the Act”), the respondent is subject to a final supervision order for a period of five years, which order is to be subject to the following requirements.
Pursuant to s 18 (compulsory requirements) of the Act:
(a)the respondent must not commit:
(i) a serious sex offence; or
(ii) an offence of a sexual nature;
(b)the respondent must report to a probation and parole officer as directed by a probation and parole officer;
(c)the respondent must receive visits and accept communications from a probation and parole officer as directed by a probation and parole officer;
(d)the respondent must give to a probation and parole officer information about his place of residence and place of employment or education as directed by a probation and parole officer;
(e)the respondent must not leave, or stay out of, the Territory without the permission of a probation and parole officer; and
(f)the respondent must comply with any directions that a probation and parole officer gives him (pursuant to s 20 of the Act), as part of this supervision order.
Pursuant to s 18(2) of the Act, there are no matters about which a probation and parole officer cannot give directions to the respondent pursuant to s 20 of the Act.
Pursuant to s 19 (optional requirements) of the Act:
(a)the respondent must reside and remain at a location specified by a probation and parole officer and not leave the premises at any time of the day or night without first obtaining permission from a probation and parole officer, except in the case of a personal medical emergency;
(b)the respondent must not purchase, possess or consume alcohol or remain in the presence of any person consuming alcohol and must submit to testing as directed by a probation and parole officer for the purpose of detecting the presence of alcohol;
(c)the respondent must not purchase, possess or consume any dangerous drug or remain in the presence of any person consuming a dangerous drug and must submit to testing as directed by a probation and parole officer for the purpose of detecting the presence of any dangerous drug;
(d)the respondent must not remain in the company of any person or persons who are at the time under the influence of an intoxicating substance;
(e)the respondent must have attached and wear any monitoring device as directed by a probation and parole officer;
(f)the respondent must allow the placing and installation of anything necessary for the effective operation of any monitoring device he is required to wear;
(g)the respondent must comply with the Rules for Electronic Monitoring (which are attached to these orders);
(h)the respondent must comply with any direction given by a probation and parole officer to participate in any specified rehabilitation, care or treatment;
(i)the respondent must have no contact with children under the age of 18 years (except in the course of a normal business transaction) except in the presence of an adult who has been approved for the purposes of this order by a probation and parole officer;
(j)the respondent must not own or use any laptop, computer, phone and/or devices with storage or internet capabilities without the permission of a probation and parole officer;
(k)the respondent must not possess or view any form of pornography;
(l)the respondent must permit a probation and parole officer to access his place of residence at all times for the purposes of ensuring compliance with the terms of his supervision order and to search for and seize any electronic item or any other thing he is not permitted to possess;
(m)the respondent is not to have possession or control of a firearm or a controlled weapon within the meaning of the Weapons Control Act 2001 (NT);
(n)the respondent must disclose to a probation and parole officer the details of any person who he enters into a relationship with, including the full name of the person;
(o)the respondent, while residing at the Multipurpose Cottages at Darwin Correctional Precinct, must not permit visitors to attend or reside at his place of residence without the prior approval of a probation and parole officer; and
(p)the respondent must not, without lawful reason, enter any private premises.

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[1] Attorney-General (NT) v JD [2015] NTSC 28 at [3] per Mildren AJ, cited in Attorney-General (NT) v Harrison [2018] NTSC 33 at [7] per Grant CJ.

[2] Ibid.

[3]See EE v Attorney-General (NT) [2017] NTCA 2, which description was summarised in Attorney-General (NT) v Harrison [2018] NTSC 33 at [8]-[14] per Grant CJ.

[4] Briginshaw v Briginshaw (1938) 60 CLR 336.

[5] Attorney-General (NT) v Harrison [2018] NTSC 33 at [38] per Grant CJ.

[6]JD v Attorney-General (NT) [2020] NTCA 11 at [60], citing Director of Public Prosecutions (WA) v GTR (2008) 38 WAR 307 at [27].

[7] Ibid at [61].

[8]See World Health Organisation, International Classification of Diseases, 10th ed (1993) (ICD-10).

[9] See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed (2013) (DSM-5).

[10]As set out in ICD-11.

[11] Attorney-General (NT) v Harrison [2018] NTSC 33 at [49] per Grant CJ.