Carolan v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0172
ANTHONY JOHN CAROLAN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2015
DATE OF JUDGMENT:	26 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 167
JUDGMENT APPEALED FROM:	[2014] VCC 1095

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CRIMINAL LAW – Indefinite sentence – Appeal against refusal to discharge indefinite sentence pursuant to Sentencing Act 1991 s 18O – Nature of the appeal right – Whether judge erred in refusing to make an order under s 18M – Whether appellant is still a serious danger to the community – Appellant accepts that he would be a serious danger to the community if released unsupervised – Whether s 5(2BD) prevents the court reviewing an indefinite sentence having regard to the regime for supervision and detention under the Serious Sex Offenders (Supervision and Detention) Act 2009 – Construction which least impinges on offender’s liberty to be preferred – Charter of Human Rights and Responsibilities Act 2006 – Whether the existence of the SSODSA regime sufficient to conclude that the appellant would not be a serious danger to the community if indefinite sentence discharged – Appeal allowed – Indefinite sentence discharged and appellant made subject to a five year re-integration period.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis with Ms A I Burchill	Tony Hargreaves & Partners
For the Crown	Mr O P Holdenson QC with Mr J M Davidson	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA

REDLICH JA
PRIEST JA:

The appellant is subject to an indefinite sentence of imprisonment imposed by the County Court on 25 February 2000.[1] Following an application for review on 8 July 2014, the Chief Judge of the County Court declined to make an order to discharge the sentence pursuant to s 18M(1) of the Sentencing Act 1991 (‘the Act’). As a result, the appellant’s indefinite sentence remains in force. He appeals to this Court pursuant to s 18O of the Act, seeking an order that his sentence be discharged.
[1]R v Carolan (Unreported, County Court of Victoria, Judge Wodak, 25 February 2000).

In his amended notice of appeal, the appellant sought to rely on the following grounds:

1.A miscarriage of justice occurred as a result of the DPP — in breach of its obligations as Prosecutor and under ss 21 and 38 of the Charter of Human Rights and Responsibilities Act 2006 — choosing not to adduce evidence on what steps were likely to be taken to manage the risk presented by the Appellant in the event that his indefinite sentence was discharged.
2.The Chief Judge erred by not ordering, pursuant to s 18I of the Sentencing Act 1991, that the Adult Parole Board and the Secretary to the Department of Justice provide the Court with reports addressing the possible discharge of the Appellant’s indefinite sentence.

However, at the outset of the oral hearing counsel for the appellant conceded that those grounds could not support the order sought. Section 18O provides that on appeal the court may either confirm the refusal and dismiss the appeal or allow the appeal and make such order as it thinks ought to have been made. The grounds, if made out, would establish error but would not found a conclusion that the appellant’s sentence should be discharged or confirmed. The appellant accepted that was so and consequently sought leave to add the following ground of appeal:

The [Chief Judge] erred by declining to make an order under s 18M(1)(a) of the Sentencing Act 1991 discharging the appellant’s indefinite sentence.

Counsel for the Director of Public Prosecutions (‘Director’) did not oppose the application to amend the grounds.[2] Leave being granted, counsel for the appellant accepted that the new ground subsumed the grounds contained in the amended notice of appeal. It is unnecessary to consider those grounds further.
[2]Counsel for the Director suggested that there be added to the ground the words ‘and making the appellant subject to a 5 year re-integration program administered by the Adult Parole Board’. That was not considered necessary as it would follow upon an order made under sub-s (1)(a).

For the reasons that follow, we would allow the appeal and order that the appellant’s indefinite sentence be discharged, that the appellant be subject to a five year re-integration program administered by the Adult Parole Board (‘Board’) and that a warrant to imprison be issued in respect of that period in accordance with s 18M of the Act.

Background

The imposition of the indefinite sentence

The appellant’s indefinite sentence of imprisonment was imposed with respect to offending that took place between 1 December 1997 and 6 February 1999. The appellant pleaded guilty in the County Court to one charge of attempted sexual penetration of a child under 10, five charges of indecent act with a child under 16, two charges of sexual penetration of a child under 10 and one charge of false imprisonment, as well as to the summary offences of being a convicted sex offender and loitering and possessing child pornography. The circumstances of the offending are described in the reasons of the Chief Judge and it is not necessary to repeat them here.[3]
[3]DPP v Carolan [2014] VCC 1095, [3]–[5] (‘Reasons’).

The appellant has a significant and lengthy history of sexual offending.[4] In his remarks in February 2000 the sentencing judge said:

You have been described as an entrenched paedophile, which I accept as an apt description of you. I am satisfied that you are very much alone, without family or other communal support. Your past history is important, and in particular, that of the recurring paedophilic offending, which at your age of 47, and a life of considerable institutionalisation, and criminal activity for more than 30 years, predominantly but not exclusively associated with sexual offences committed against or on young boys and girls, must be acknowledged. I am satisfied that you do not suffer from any physical or mental impairment which is relevant for present purposes. The type of offending in which you have engaged, the manner in which you have gained access to your victims, most frequently by befriending their families to the extent where you were seen as a person who could be trusted, the tender years of your victims, the pattern in which you have repeatedly reoffended within a comparatively short time of returning to the community, and your apparent lack of means to combat the sexual urges which you possess, and are unable or unwilling to control, all of which I am satisfied on the evidence is established, are also relevant.[5]

[4]See ibid [7]–[9].

[5]Quoted in ibid [9].

On 25 February 2000, pursuant to s 18A of the Act, the sentencing judge imposed an indefinite sentence with a nominal term of 14 years with respect to the two counts of sexual penetration of a child under 10. The judge imposed concurrent sentences on the remaining counts, making a total effective sentence of 14 years.

The proceedings below

The nominal term of the appellant’s indefinite sentence expired on 5 January 2013. Pursuant to s 18H of the Act, on 3 January 2013 the Director made an application for review of the sentence. The application for review was heard by the Chief Judge on 5 and 6 August 2013.

Sections 18L and 18M provide:

18L Review hearing
On the hearing of a review under section 18H(1)(a) or (b), a court must—
(a) give both the Director of Public Prosecutions and the offender the opportunity to lead admissible evidence on any relevant matter;
(b) subject to section 18K, take into consideration any report in respect of the offender that is filed with the court;

(c) have regard to any submissions on the review made to it.

18M Review hearing
(1)On a review under section 18H(1)(a) or (b) the court, unless it is satisfied (to a high degree of probability) that the offender is still a serious danger to the community, must by order—
(a) discharge the indefinite sentence; and
(b)make the offender subject to a 5 year re-integration program administered by the Adult Parole Board and issue a warrant to imprison in the same way as if it had sentenced the offender to a term of imprisonment for 5 years.

(2)The indefinite sentence continues in force if the court does not make an order under subsection (1).

On the review, the appellant accepted that he was properly diagnosed as a homosexual paedophile, that he suffered an antisocial personality disorder, that his risk of re-offending was high and that he should not be released unsupervised into the community.

The principal issue on the review was whether the Court should discharge the appellant’s indefinite sentence in circumstances where the appellant would be under the control of the Board during the mandated five year re-integration program and could be made subject to further detention or supervision and control pursuant to the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘SSODSA’).

The appellant submitted that administration by the Board during the re-integration period and the availability of the SSODSA regime provided sufficient protection to the community to satisfy the Court that he would not, upon the discharge of the indefinite sentence, be a serious danger to the community.[6] The Director contended that the indefinite sentence should not be discharged as the Court was not entitled to have regard to the regime for detention and supervision under the SSODSA and, in any event, there was too much uncertainty as to how the Board, the Director or the Secretary to the Department of Justice (‘Secretary’) might exercise any statutory powers that they had.[7]
[6]Ibid [22], [50].
[7]Ibid [21], [55].

On 20 March 2014, the Chief Judge ruled that he was entitled to consider the availability of the SSODSA regime, but that he was nonetheless ‘satisfied to a high degree of probability’ that the appellant ‘is still a serious danger to the community’. His Honour therefore declined to make the order under s 18M(1). Following the ruling, the Chief Judge said:

Having said that, [counsel for the appellant], there is some work to be done. What is missing in the equation is any evidence of the reintegration program, any certainty about any position taken by the Secretary or the Director of Public Prosecutions. Both of those things might conceivably address [sic]. They may not resolve the problem, but at least a judge will not be left speculating about what might happen five years into the future, which is what I am required to do at the moment.

After discussion with the parties, the Chief Judge did not enter the order into the record, circulated a draft judgment in which he concluded that there was insufficient evidence as to the management of the appellant if the indefinite sentence were to be discharged, and sought further evidence and submissions from the parties.

Neither party adduced further evidence. The appellant filed further submissions to the effect that the Court should conclude that, if the indefinite sentence were discharged, the appellant would not be released into the community by the Board during the five year re-integration period. The appellant further submitted that, in the absence of evidence (which the appellant argued the Director was obliged to adduce) as to the policies and procedures of the Director and the Secretary for determining whether an application under the SSODSA should be made and their assessment as to whether an application would be made in respect of the appellant, the Court should conclude that the risk presented by the appellant could be safely managed upon discharge of the indefinite sentence.[8]

The primary judge’s findings

[8]Ibid [83]–[84].

On 8 July 2014, the Chief Judge delivered his reasons for judgment and declined to make an order under s 18M.

It is necessary to set out the evidence adduced on the application in respect of the appellant. The Chief Judge referred to a report dated 18 February 2013 from Dr Michael Davis, a consultant forensic psychologist; a report dated 27 December 2012 from Professor Simon Crowe, a clinical neuropsychologist; a report dated 15 March 2013 from Dr Danny Sullivan, a consultant psychiatrist; and a report dated 22 February 2013 by Mr Brendan Money, Assistant Commissioner of the Sentence Management Branch of Corrections Victoria. Dr Davis and Dr Sullivan also gave viva voce evidence.[9] The Chief Judge summarised their evidence as follows:
[9]Ibid [29].

(a) Dr Davis concluded that the appellant ‘posed a high risk of sexual reoffending and would require a concomitant level of supervision and resources to contain this risk should he be released into the community’,[10] and that his risk factors were ‘as high as anyone that he had seen’.[11] Dr Davis gave evidence that the appellant
[10]Ibid [33].
[11]Ibid [34].

wanted to be offence-free, he acknowledged that he has a sexual attraction to children, and that something had to be done to make sure that he did not act on that sexual attraction. He said that he would like to be placed on a supervision order and to live at Corella Place. He understood that he could not just be released to the community unsupervised.[12]
[12]Ibid.

(b) Professor Crowe concluded that behaviour change would be difficult for the appellant.[13]

(c) Dr Sullivan concluded that the risk of future sexual reoffending against male children by the appellant was high.[14] He testified that the research was not clear whether the risk of offending diminishes with age for those, like the appellant, whose offending is driven by deviant sexual arousal.[15] Dr Sullivan said that, if released, the appellant would have to be supervised closely with escorted leave only.[16]

(d) Mr Money reported that the appellant had made minor progress since commencing the Sex Offender Program in January 2012 and had expressed a willingness to seek additional treatment.[17]

[13]Ibid [37].

[14]Ibid [40].

[15]Ibid [41].

[16]Ibid [44].

[17]Ibid [38].

Having summarised the evidence of those witnesses, the Chief Judge made the following findings, about which no complaint was made on appeal:

Accordingly, both Dr Davis and Dr Sullivan were of the opinion that [the appellant] remains a high risk of sexual reoffending. Dr Sullivan describes his past offending as both impulsive and pre-meditated. Dr Davis added that [the appellant] has a ‘keen awareness of opportunistic situations in which vulnerable children may be available to groom or sexually victimise’. Both witnesses were of the opinion that [the appellant] cannot be released into the community without close supervision. Whilst Dr Davis was unwilling to comment on whether the regime provided under the SSODSA could provide an environment of sufficient safety so that a finding could be made that [the appellant] no longer constituted a danger to the community, Dr Sullivan was not as reticent and said that it could. This opinion was relevant to the primary question for determination on the review, namely, whether [the appellant] was still a serious danger to the community. [Counsel for the Director] maintained the position throughout the proceedings that s 5(2BD) of the Act prevented that issue being taken into account, either by the medical practitioner or, more importantly, by the judge determining this application.
Whilst there seems to be no dispute on the evidence that [the appellant] still poses a high risk of sexual re-offending, the parties are opposed on whether he remains a serious danger to the community. It seems to me that the central issue to be determined is whether, in this context, it is permissible for me to consider the availability of the SSODSA regime generally and its possible application to [the appellant].
Without seeking to limit the matters which may have changed over the intervening period, whilst it is clear that [the appellant] has remained in prison, has aged, and has undergone various offender programs, it seems that very little has changed with respect to the risk that [the appellant] poses. The professionals are in agreement that he is unable to be released into the community without supervision and would be a high risk of committing serious sexual offences if he was. This is so notwithstanding the passage of time in custody, undertaking a variety of programs and ageing. His deviant sexual arousal remains alive and well.[18]

[18]Ibid [45]–[47] (citation omitted) (emphasis added).

As we have said, the Chief Judge found that he was entitled to have regard to the existence of the SSODSA in determining whether the appellant was still a serious danger to the community.[19] However, the Chief Judge found that there was insufficient evidence — both as to the content of the program during the re-integration period and as to the likelihood of an order being made under the SSODSA at the conclusion of that period — to conclude that the appellant would not be a serious danger to the community if his indefinite sentence was discharged:

The [Director] contends that such an analysis depends too heavily on speculation about too many things. First, there is no capacity to manage [the appellant] in a facility such as Corella Place whilst he is undergoing the re-integration program. In fact, other than the provision itself — which provides little information about what happens during the program — there is no evidence before me that would permit an understanding of the kind of community in which [the appellant] would be ‘handled’. Next, SSODSA exists, as do the regimes under it, and it is relatively safe to assume that either the Secretary or the Director of Public Prosecutions would undertake the necessary investigations to inform a decision to apply for either a supervisory or a detention order. There is nothing before me to indicate that such a scheme will be in existence and available in 5 years’ time.
Whilst I intend to take into account the existence of the SSODSA, I find it difficult to bridge the gap of speculation. I have nothing before me that satisfies the concern that I have that if I make a re-integration order, [the appellant] would be managed by the Adult Parole Board in a way which addresses the concerns which seem to be common ground between the parties, that he represents an unacceptable risk of committing like offences if unsupervised in the community and is therefore a danger to the community in the relevant sense. Whilst it is likely, having regard to what is known about him, that the Parole Board would not permit him to be at large in the community, nothing is certain and the court should be loath to effectively abandon the supervisory role it presently has with respect to [the appellant].
Were there to be evidence from the Parole Board concerning his proposed management during the re-integration program, and an application lodged pursuant to SSODSA, I may have come to a different conclusion to that which I have. As it stands, it seems to me that [the appellant] will, having regard to his long-term prognosis, remain serving an indefinite sentence until he is physically incapable of offending and, thereby, ceasing to present as a serious danger to the community.
At the present time I am satisfied to the requisite degree that [the appellant] remains a moderate-to-high risk of committing a serious sexual or violent offence and that a person who falls into that category is a serious danger to the community in the context that those words are used in the legislation. Accordingly, I am satisfied to a high degree of probability that he is still a serious danger to the community and I decline to make the order under section 18M(1) of the Act with the result that the indefinite sentence imposed by Judge Wodak continues in force.[20]

[19]Ibid [73].
[20]Ibid [88]–[91].

Nature of the appeal

A preliminary question arises as to the nature of the appeal. Section 18O of the Act provides for an appeal from a decision under s 18M on a review of an indefinite sentence in the following terms:

(1)An offender may appeal to the Court of Appeal against the refusal of a court to make an order under section 18M(1).
(2) The Director of Public Prosecutions may appeal to the Court of Appeal against an order made under section 18M(1).

(3) On an appeal under this section the Court of Appeal may—
(a)in the case of an appeal under subsection (1), confirm the refusal and dismiss the appeal or uphold the appeal and make the order that it thinks ought to have been made; or
(b)in the case of an appeal under subsection (2), confirm the order and dismiss the appeal or uphold the appeal and set aside the order made.

(4)An indefinite sentence revives on the setting aside of an order under section 18M(1) and the original warrant to imprison or other authority for the offender’s imprisonment is to be regarded as again in force.

An appeal being a creature of statute,[21] the nature of a particular right to appeal is to be determined by construction of the statute conferring that right.[22] In Allesch v Maunz,[23] Gaudron, McHugh, Gummow and Hayne JJ explained that, on an appeal by way of rehearing, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission,[24] Gleeson CJ, Gaudron and Hayne JJ put it this way:

It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.
If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.[25]

[21]Nigro v Secretary to Department of Justice (2013) 234 A Crim R 1, 13 [28] (‘Nigro’), citing Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, 128–9 [2]; Fox v Percy (2003) 214 CLR 118, 124–5 [20].

[22]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 619–22; Nigro (2013) 234 A Crim R 1, 13 [30], citing Elliott v The Queen (2007) 234 CLR 38, 42 [7].

[23](2000) 203 CLR 172.

[24](2000) 203 CLR 194.

[25]Ibid 203–4 (citations omitted) (emphasis added).

In Nigro,[26] this Court considered the nature of the appeal under s 96 of the SSODSA. As the Court was able to obtain and receive new evidence on the appeal, it concluded that the appeal was not an appeal in the strict sense.[27] As the forms of order contemplated by the SSODSA were expressed by reference to the pre-existing decision or order, it was not a hearing de novo.[28] Therefore, the Court concluded that the SSODSA conferred a right to appeal by way of rehearing upon the evidence before the primary judge and any additional evidence adduced according to that Act.[29] The Court summarised its conclusions as follows:

Accordingly, in our view, the appeal is one by way of rehearing 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 apply both to the ultimate decision as to whether to make a supervision order and as to the terms on which such an order should be made. On the other hand, the test to be applied on an appeal ground directed to the County Court’s determination with respect to ‘unacceptable risk’ is simply whether it was plainly wrong or wholly erroneous.[30]

[26](2013) 234 A Crim R 1.

[27]Ibid 15 [34].

[28]Ibid 15 [35].

[29]Ibid 15 [37].

[30]Ibid 23 [64].

Section 18O of the Act, in contrast to the more expansive appeal provisions in the SSODSA, provides only that an appellate court may confirm the primary judge’s order or set it aside and make the order that it thinks ought to have been made. The court does not have the power to remit the matter or to allow the admission of new evidence.[31] The right to appeal conferred by s 18O is plainly not an appeal de novo. The text of s 18O implies that an appellate court must make the order that it thinks ought to have been made at first instance, there being no statutory indication that the powers may be exercised whether or not there was error at first instance. We agree with the Director’s submission that it is an appeal in the strict sense.
[31]An appellate court does not appear to have power to order reports pursuant to s 18L.

Therefore, a party appealing under s 18O must demonstrate that the primary judge erred in accordance with the principles in House v The King.[32] If error is shown, the appellate court should make the order it thinks ought to have been made.
[32](1936) 55 CLR 499, 505.

Issues on the appeal

The Chief Judge answered the question whether the appellant ‘is still a serious danger to the community’ in the affirmative and therefore refused to discharge the appellant’s indefinite sentence. The appellant must show that the judge erred in so concluding.

The uncontested finding of the Chief Judge was that the appellant, if released without supervision into the community, would be a high risk of committing serious sexual offences. The Chief Judge considered the possibility of detention or supervision under the SSODSA but despite that possibility was not satisfied on the evidence available that the appellant would not be released into the community unsupervised upon the discharge of his indefinite sentence. He therefore declined to discharge the sentence under s 18M(1).

The Director submits that while the Chief Judge was correct to decline to discharge the indefinite sentence, s 5(2BD) of the Act did not permit him to have any regard to the SSODSA scheme. Two questions were thus said to arise for determination on this appeal:

(e) Did the Chief Judge err in determining that s 5(2BD) does not apply to the review process for the purposes of a decision under s 18M, so that he was not prevented from considering the potential application of the SSODSA regime to the appellant upon discharge of his indefinite sentence?

(f) If there was no such error, did the Chief Judge err in finding that, absent any evidence as to what the relevant public authorities might do upon the discharge of the appellant’s indefinite sentence, the bare existence of the SSODSA regime for supervision and detention was insufficient to conclude that the appellant would not be a serious danger to the community?

We will consider these questions and a further question, which of necessity must also be addressed, namely whether the Board might release the appellant into the community unsupervised during the re-integration program so as to give rise to a serious danger to the community.

Application of s 5(2BD)

The resolution of the first question — whether a court is able to consider the operation of the SSODSA in deciding whether to make an order under s 18M(1) — depends on the true construction of s 5(2BD) of the Act, which is in these terms:

In sentencing an offender, a court—
(a) must not have regard to the fact that the offender is subject to an order made under the Serious Sex Offenders (Detention and Supervision) Act 2009 but, if relevant to the conditions of any sentence imposed by it, may have regard to the conditions (if any) imposed on that order and the terms of any current directions or instructions given by the Adult Parole Board under section 119, 120(2) or 121 of that Act;
(b) must not have regard to any possibility or likelihood of an application being made under that Act for an order in respect of the offender.

The critical question is whether the court, in making or refusing to make an order under s 18M to discharge an indefinite sentence, is engaged in ‘sentencing an offender’. If it is, then s 5(2BD) must apply and the court reviewing the indefinite sentence may not have regard to the possibility or likelihood of an application for a supervision or detention order under the SSODSA.

The Chief Judge held that s 5(2BD) does not apply to the review process for the purposes of a decision under s 18M. His conclusions were as follows:

I have come to the view that the prohibition in s 5(2BD) of the Act does not apply to the review for the following reasons. Firstly, in my view, the words ‘in sentencing an offender’ apply only at the stage of the imposition of the indefinite sentence and not at the point of its review. In my opinion, the purpose for the prohibition was to, in effect, concentrate the sentencing judge’s attention on matters properly to be considered in the fixing of an appropriate sentence. The sentencing guidelines provided in s 5(1) of the Act direct the sentencing judge to the fundamental principles of sentencing: punishment, deterrence, rehabilitation, denunciation, and protection of the community. In my opinion, the rationale for the prohibition was to ensure that an anticipation of the likelihood of post-sentence supervision or detention did not distort the initial sentencing process by, for example, leading to less weight being given to punishment, general deterrence, denunciation and the like, in the belief that the protection of the community, a legitimate non-punitive public interest, would be catered for at some later point in time. The nature of the review on the other hand is to focus almost solely on danger to the community, that is, the non-punitive aspects of the [appellant’s] ongoing detention.
Secondly, I am mindful that I should construe the prohibition, instructed by Momcilovic, against the background of the human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The phrase ‘in sentencing an offender’ is not free from ambiguity and, where the words of the statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Where penal legislation can be interpreted beneficially to the offender then it ought be so interpreted.
Thirdly, it seems obvious to me that, in the absence of a strict prohibition such as is now contained in the Queensland legislation, a court, in determining whether an offender is a serious danger to the community if released forthwith, must give consideration to the definition of the community into which the offender is to be released. The question of dangerousness is governed, in my opinion, by an understanding of what constitutes the relevant community. To return to the example given in the course of submissions: If [the appellant] was ill and confined to an iron lung, he would not constitute a danger to the community upon release from prison. Whilst this may be better explained by reference to the proper characterisation of [the appellant’s] capacity, rather than the community into which he is to be released, it probably does not matter in the end. What matters is that, in considering the risk, regard is had to both. He is not relevantly dangerous whilst in custody because of the nature of his detention, the supervision available, and the fact that there is no access to persons within the risk group identified by Dr Davis. The question is whether ‘community’ is to be defined by reference to the risk of offending in a proscribed way. Put another way, would it not follow that if released into a community in which there were no children, or where he was supervised all the time, or where because of some physical incapacity or restriction he was unable to contact children, would he still be a serious risk to the community?
It follows that in determining whether [the appellant] is still a serious danger to the community I am not prevented from taking into account the likelihood or possibility that at the conclusion of the sentence application may be made to a court for orders that [the appellant] either be under supervision or detained in custody. As to the former, it is common knowledge that the supervision of high risk sex offenders inevitably involves detention in Corella Place and only supervised access to the general community.[33]

[33]Reasons [73]–[76].

The appellant adopts the reasoning of the Chief Judge. The Director submits that his Honour was in error. For the reasons given by the Chief Judge and those that follow, we do not consider that the Chief Judge erred in determining that s 5(2BD) does not apply to a review under s 18M.

Whether s 5(2BD) applies to the process under s 18M is a constructional question. First resort must be to the text of the relevant provisions.

The ordinary meanings of the words ‘sentence’ and ‘sentencing’ support a conclusion that the words ‘in sentencing’ should be understood to refer only to the imposition of the indefinite term of imprisonment. The fifth edition of the Macquarie Dictionary relevantly defines ‘sentence’ to mean ‘a. the determination by the court of the penalty to be imposed on a convicted person. b. the penalty itself’. The word ‘sentencing’ is defined to mean ‘to pronounce sentence upon; condemn to punishment’. Each of these definitions focuses on the initial imposition of a sentence rather than any future administration or discharge.

The word ‘sentence’ is used throughout the Act in the context of the imposition of the penalty for the crime upon which the offender has been convicted. We reject the written submission of the Director that the review is part of the sentencing process and ‘distinct from the administration of the sentence’. The Act in dealing with indefinite sentences maintains a distinction between their imposition and their review.

Section 18A(1) provides that a court ‘may sentence’ an offender to an indefinite sentence. Section 18B(1) provides that a court ‘may only impose’ an indefinite sentence in respect of a serious offence. Sections 18D and 18F provide for an adjournment and special hearing where a court proposes or is considering ‘imposing an indefinite sentence.’ By contrast, s 18H(1), providing for a review of an indefinite sentence, distinguishes between the imposition of a sentence and its review. The language of s 18M, providing for discharge of the sentence on review, is in marked contrast to the sentencing provisions of the Act. There is no reference to imposing a sentence or sentencing an offender. The court is empowered under s 18M only to make an order to discharge the sentence. If the court refuses to make that order, the court does not confirm or otherwise impose any sentence; the sentence previously imposed remains in force.

The distinction between a review under s 18M and a court’s usual sentencing task was considered by each of the members of this Court in R v Moffatt.[34] The applicant in that case argued that the provisions of the Act providing for indefinite sentences were invalid as they were incompatible with the court’s function under ch III of the Commonwealth Constitution. In rejecting that submission, the members of the Court made observations about the nature of the power exercised by a court when reviewing an indefinite sentence. Winneke P said:

Although it can be accepted that the ‘review’ provisions of the legislation (ss 18H to 18O) engage the court in functions which it is not usually asked to perform, I cannot agree with Mr Tehan’s submission that such functions are ‘incompatible with the exercise of judicial functions’ and ‘demean the integrity of the judiciary’. In my opinion the provisions are designed to ensure that a person upon whom an indefinite sentence has been imposed is invested with a right to have that sentence terminated in accordance with a process which is both open and fair. If the process cannot be characterised as an inseverable part of the judicial process of imposing the indefinite sentence, which I take leave to doubt, it is none the less in my opinion a fair and appropriate adjunct to such process.[35]

[34][1998] 2 VR 229 (‘Moffatt’).

[35]Ibid 238.

Hayne JA said:

Counsel for the applicant sought to characterise this process as the court being involved in the ‘continuing administration’ of the sentence which it imposed after conviction and to this end sought to draw analogies between this process and the parole system. Perhaps characterisating [sic] the review as the court being involved in the continuing administration of the sentence might be said to be literally accurate, but even if it is, I do not accept that that characterisation entails that the Act is invalid.
This contention on behalf of the applicant appeared to proceed from the unstated premise that the judicial function could be exercised in the criminal law only by passing a sentence which required no further judicial working out or reconsideration except by way of appeal. That is, I understood the contention to be one which necessarily proceeded from the premise that the judicial function required a once-and-for-all determination of the fate of the offender leaving any subsequent decision about his continued incarceration to the executive. I doubt that judicial power is limited in this way. Of course, many, familiar exercises of judicial power lead to the making of orders which do not permit, let alone require, any later reconsideration. Thus, when a court awards damages for negligence, it does so once and for all. But is that to say that the legislature would not be providing for an exercise of a judicial function if it were to provide for the periodical re-assessment of damages by a judge according to the determination of the issue whether the defendant injured by the negligence of the plaintiff was still incapacitated at the time of the review? In any event, even if such a function could not be given to a Ch III court because it is not a judicial function (and I express no view on that issue) is such a task so antithetical to the exercise of judicial power as to lead to the conclusion that a State legislature may not validly pass an Act requiring the courts of the State to undertake such tasks? I think not.[36]

[36]Ibid 253.

Charles JA made similar remarks:

It is, as Mr Tehan submitted, no doubt true that the review of sentences is a function normally carried out by correctional authorities and parole boards. But the indefinite sentencing legislation is not directed at any one offender. The review process is clearly linked to the original sentence which was imposed in relation to the offender’s past criminal conduct for which the prisoner was duly found guilty and convicted. In the conduct of that review process, the court is left with a clear discretion to be exercised upon grounds which must be exposed in reasons and which are thereafter open to an appeal. In my view this power is properly characterised as a judicial function.[37]

[37]Ibid 260.

Winneke P thought the review to be an adjunct to the sentencing process and expressed some doubt that it could be characterised as severable from that process. Hayne and Charles JJA, whilst satisfied that a review fell within the court’s judicial function, considered that function under s 18M to be distinct from the usual sentencing function of a court of criminal jurisdiction. In particular, Hayne JA accepted that the review process could be ‘literally’ characterised as ‘the court being involved in the continuing administration of the sentence’. Charles JA likened the process to ‘a function normally carried out by correctional authorities and parole boards’, though he described the process as being ‘clearly linked to the original sentence which was imposed’. At least the judgments of Hayne and Charles JJA provide some support for the conclusion that a review is conceptually distinct from sentencing — the imposition of a sentence.

The conclusion that s 5(2BD) should not apply to a court undertaking a review is fortified by the purpose of that provision. Though there is no definition of ‘sentencing’ in the Act, s 5(2BD) appears to be directed to a court’s task where it is imposing a sentence. The apparent purpose of s 5(2BD) is to prevent a sentencing court imposing a lesser or greater sentence than it otherwise would because of the possibility that an order under the SSODSA may be made at the conclusion of any custodial sentence. As this Court concluded in Heath v The Queen:[38]

Section 5(2BD) was inserted into the Sentencing Act 1991 by the Serious Sex Offenders (Detention and Supervision) Act 2009. Neither the Explanatory Memorandum nor the Second Reading Speech provide any insight into the purpose of the provision. However, we agree in part with counsel for the applicant that a likely purpose of the provision is to ensure that offenders do not obtain a sentencing discount as a result of the existence or possible imposition of a supervision order. Such a discount could be the result of, for instance, an amelioration of the importance of protection of the community in fixing a sentence as a result of a supervision order. But the section has a broader reach. The existence of a supervision order cannot affect the sentences to be imposed in any way. Thus, it also precludes taking account of the order to impose a more severe penalty than would otherwise have been the case.[39]

[38][2014] VSCA 319 (Redlich and Beach JJA).

[39]Ibid [22].

The likely purpose of s 5(2BD) is to remove the existence of the SSODSA regime as a sentencing consideration when a sentencing court is fixing the length of the term of imprisonment. That purpose is not relevant to the Court’s task upon a review of the indefinite sentence. In accordance with s 18H, a review can only take place once the nominal period of the sentence has expired. The nominal sentence must reflect the non-parole period that would have been fixed had the sentencing court imposed a finite sentence.[40] As Charles JA implied in Moffatt,[41] the task of the reviewing court at that stage is more akin to that of a parole board than a sentencing court. The sole consideration then is whether protection of the community can be achieved in the event that the offender is released. The policy underlying s 5(2BD) has no force on a review.[42]
[40]SentencingAct 1991 s 18A(3).
[41][1998] 2 VR 229, 260.
[42] Reference was made to the Queensland position in the oral hearing. In R v Buckley [2008] QCA 45, the Queensland Court of Appeal considered the supervision regime when hearing an appeal against the imposition of an indefinite sentence, there being no equivalent to s 5(2BD). A provision equivalent to s 5(2BD) was subsequently introduced with respect to both imposing and reviewing indefinite sentences: Penalties and Sentences Act 1992 (Qld) ss 9(9)(b), 172D. Neither before nor after the amendment was the position analogous to Victoria.

We consider that the review function in s 18M is not subject to the prohibition in s 5(2BD).

The appellant also submits that, to the extent that there is ambiguity, s 5(2BD) should be construed in a way that least impinges upon the appellant’s liberty in accordance with the principle of legality and the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’). The Director submits that, as the comparative jurisprudence shows, indefinite sentences are compatible with the right to liberty in s 21 of the Charter. The Director further contends that the ‘existence of a separate civil scheme for detention or supervision of persons who (at the end of their sentence, and notwithstanding that sentence) are assessed as posing an unacceptable risk of re-offending, does not render the preventative detention scheme and the resulting deprivation of liberty “arbitrary”, “unlawful” or “other than in accordance with law”’.

Section 21 of the Charter provides for the right to liberty and security of person. That right is engaged by the application to the appellant of the indefinite sentence regime. Section 32(1) of the Charter provides that ‘[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’. The High Court considered the effect of s 32(1) in Momcilovic v The Queen.[43] In Slaveski v Smith,[44] this Court said:

Putting aside the disparity of views as to the application of s 7(2), it none the less emerges from Momcilovic that the effect of s 32(1) is limited. It requires:
… statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) [thus] applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application …

Consequently, if the words of a statue [sic] are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.[45]

[43](2011) 245 CLR 1 (‘Momcilovic’).

[44](2012) 34 VR 206.

[45]Ibid 215 [23]–[24], quoting Momcilovic (2011) 245 CLR 1, 50 [51] (French CJ) (citations omitted) (emphasis added).

But the issue is not compatibility of an indefinite sentence with that right but whether recourse to the alternative regime enhances or better protects that right. We would — accepting arguendo that the phrase ‘in sentencing an offender’ is ambiguous — give s 5(2BD) the meaning that best accords with the appellant’s liberty. It should not therefore be construed so as to apply to the review, as opposed to the imposition, of an indefinite sentence.

We note for completeness that s 5(2AA) of the Act provides that, ‘in sentencing an offender’, a court must not have regard to ‘any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind’. For the reasons given above in respect of s 5(2BD), this section does not apply to a review undertaken pursuant to s 18M. We are therefore entitled to consider the possibility of executive action in reaching our decision (including that by the Board, the Secretary and the Director).

Whether the existence of the Adult Parole Board’s statutory functions and the SSODSA regime are sufficient to require a discharge of the indefinite sentence under s 18M

It is clear from pt 3 div 2 sub-div (1A) of the Act that the review under s 18H of the Act is conducted at a time when the offender is in custody. He does not at that time pose any danger to the community at large.

Since R v Carr,[46] it is clear that when application is made for an indefinite sentence the assessment of serious danger is to be made at the time of sentencing. It is not by way of prediction of future dangerousness at the end of the nominal sentence. The Court said:

It is clear from these words that the learned judge took the view that the primary question for him was whether the prisoner was at the time of sentencing a serious danger to the community. In our view he was correct in so deciding. The argument that the section requires a prediction of future dangerousness at the end of the nominal sentence is, we think, contradicted by the use of the words ‘is a serious danger’ in ss 18B(1), (2) and (3), as well as by reference, in so far as there is any ambiguity in these subsections, to the remarks of the Attorney-General in her second reading speech already quoted from Hansard at p 1355. That the assessment must be made as to dangerousness at the time of sentencing is also supported by reference to the passage quoted from the judgment of the High Court in Chester, at 619, (‘cogent evidence that the convicted person is a constant danger to the community in the sense already explained’), reference to that judgment being dictated by the passage quoted from the Attorney-General’s second reading speech. Furthermore, quite apart from the difficulty of predicting dangerousness at a time which may be a decade or more distant from the time of sentencing, the express requirement of the Act by ss 18H and 18M, for review of an indefinite sentence as soon as practicable after the offender has served the nominal sentence, and the requirement that the indefinite sentence must be discharged unless the court is satisfied to a high degree of probability at that time that the offender is still a serious danger to the community, all suggest to us that the intention of s 18B is to direct the attention of a sentencing judge to the question whether the offender is a serious danger to the community as at the time of sentencing.[47]

[46][1996] 1 VR 585 (‘Carr’).

[47]Ibid 592 (emphasis added).

The express requirement of ss 18H and 18M is for review of an indefinite sentence as soon as practicable after the offender has served the nominal sentence. That calls for an evaluation of risk at the time of review as though the offender may at that time be released from custody into the community, rather than an assessment requiring a prediction of future dangerousness.

We turn then to the question whether the statutory responsibilities of the Board under the Corrections Act 1986, and those of the Secretary and the Director under the SSODSA regime, precluded satisfaction to a high degree of probability that the appellant would still be a serious danger to the community if the indefinite sentence were discharged.

The Chief Judge found that, in the absence of evidence about the appellant’s management during a re-integration program and the uncertainty as to whether he would be subject to a detention or supervision order at the conclusion of that program, he was unable to ‘bridge the gap of speculation’ and conclude that the appellant would not, if his indefinite sentence were discharged, still be a serious danger to the community.[48] As we have said, it was not contested that the appellant would be a serious danger to the community if released unsupervised. The appellant argued that the Chief Judge, having correctly determined that he could have regard to the SSODSA regime in deciding whether to make an order under s 18M, was bound to discharge the sentence as it was enough to satisfy the requirements of s 18M in respect of the appellant that the statutory scheme for supervision and detention existed.
[48]Reasons [89].

Underlying our conclusions is the now well-established principle that an indefinite term of imprisonment, being a sentencing disposition with a preventative rather than punitive character, is an exceptional sentencing disposition that should be imposed only in exceptional cases.

In Hoare v The Queen,[49] the High Court stated the principle of proportionality in the following terms: ‘a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances’. Later in the same judgment, the High Court referred to proportionality as an ‘entrenched sentencing principle’.[50] Proportionality is rooted in respect for the basic human rights of those before the court. Though punishment for a crime may be deserved, the fundamental values of the law restrain excessive, arbitrary and capricious punishment.[51] The doctrine of proportionality is one of the means by which that restraint is enforced. The doctrine lies at the heart of the principle that a case must be exceptional before indefinite detention can be justified.
[49](1989) 176 CLR 348, 354 (emphasis in original).
[50]Ibid 365.
[51]Richard G Fox, ‘The Meaning of Proportionality in Sentencing’ (1994) 19 Melbourne University Law Review 498, 492.

In Chester v The Queen,[52] the High Court considered the operation of a provision of the Western Australian Criminal Code that authorised the detention during the Governor’s pleasure of habitual criminals. Mason CJ, Brennan, Deane, Toohey and Gaudron JJ wrote in their joint judgment:

[I]t is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender. In the light of this background of settled fundamental legal principle, the power to direct or sentence to detention contained in s 662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm.[53]

[52](1988) 165 CLR 611, cited in R v Davies (2005) 11 VR 314, 331 (Charles and Nettle JJA) (‘Davies’); Moffatt [1998] 2 VR 229, 255 (Hayne JA).

[53]Chester v The Queen (1988) 165 CLR 611, 618 (citations omitted).

Their Honours went on to say that the exercise of the power under the provision should be reserved for those cases

in which the sentencing judge is satisfied by acceptable evidence that the convicted person is, by reason of his antecedents, character, age, health or mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community. The stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive, not by judicial, decision, requires that the sentencing judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense already explained.[54]

[54]Ibid 618–19.

In Carr,[55] Charles JA and Crockett and Southwell AJJA attributed the genesis of the notion of preventative restraint to an extract from the judgment of Deane J in Veen v The Queen [No 2],[56] where his Honour said:

[T]he protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence. Such a statutory system could, one would hope, avoid the disadvantages of indeterminate prison sentences by being based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts.[57]

[55][1996] 1 VR 585, 590.

[56](1988) 164 CLR 465.

[57]Ibid 495.

In Moffatt,[58] this Court dismissed an appeal against the imposition of an indefinite sentence. Hayne JA concluded his reasons as follows:

Before parting with the matter I would wish to add one further observation. The power to impose an indefinite sentence is one that will fall to be exercised in few (perhaps very few) cases. It is a sentence that goes beyond punishing the offender to the extent that is proportionate to his or her crime. In Chester v R (1988) 165 CLR 611 the High Court said (at 618–19) of the Western Australian preventive detention legislation, that:
… the power to direct or sentence to detention contained in s 662 [of the Western Australian Code] should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm … [Emphasis added.]

While I accept that there are safeguards in the Victorian legislation that were not to be found in the provisions considered in Chester’s case (safeguards like judicial rather than executive review and the identification of a narrower list of offences for which indefinite sentences can be imposed) the fundamental proposition that such powers are to be sparingly exercised, and then only in clear cases, applies to the Victorian provisions as much as it did to the Western Australian.[59]

[58][1998] 2 VR 229.

[59]Ibid 255, cited with approval in Lowndes v The Queen (1999) 195 CLR 665, 670–1; Thompson v The Queen (1999) 165 ALR 219, 220–1 [6] (Kirby J); Buckley v The Queen (2006) 224 ALR 416, 427 [44].

The exceptional nature of a sentence imposing an indefinite term of imprisonment is illustrated by the fact that, to this Court’s knowledge, an indefinite sentence has been sought by the Director only five times in this State.[60] Of those five, an indefinite sentence was ultimately imposed in respect of three offenders. One was the appellant. In the two other cases in which indefinite sentences were imposed, the sentences were eventually discharged on review.[61] Most relevantly, in R v Moffatt,[62] on the initial review of Moffatt’s indefinite sentence initiated by the Director pursuant to s 18H(1), the County Court discharged the sentence on the basis of expert reports that concluded that he was no longer a serious danger to the community. Shortly before the expiration of his five year re-integration period, an application was made pursuant to SSODSA for a supervision order in respect of Moffatt. The County Court made that order, to commence on 16 November 2012 for a period of 15 years. The supervision order contained conditions including that Moffatt reside at Corella Place and that he not leave Corella Place except in the company of a person approved by Corrections Victoria.
[60]In addition to the appellant’s case, those cases are: Carr [1996] 1 VR 585; Moffatt [1998] 2 VR 229; R v McManus [1998] VicSC 32; Davies (2005) 11 VR 314. Cf Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Lawbook Co, 3^rd ed, 2014) 740 n 2 (in which it is stated (citing the same cases) that five indefinite sentences have been imposed in this State); Director of Public Prosecutions (Vic), Director’s Policy — Continued Detention, Policy 31 (18 September 2012) [31.8.4.1] (in which it is stated that five offenders have been sentenced to an indefinite sentence, one of whom successfully appealed).
[61]Carr v The Queen [2010] VSCA 200 (where the appellant was terminally ill); R v Moffatt [2007] VCC 1.
[62][2007] VCC 1.

In the other two cases, the Director’s application for an indefinite sentence was refused. In R v McManus, the sentencing judge refused to impose an indefinite sentence sought by the Director.[63] In Davies, this Court allowed an appeal against an indefinite sentence imposed by the sentencing judge.[64] The Court accepted that the applicant was a serious danger to the community, but found that the case was not of such exceptional rarity that an indefinite sentence should be imposed:

The power to sentence for an indefinite period is, as has already been seen, one that the courts have repeatedly stressed must be confined to very exceptional cases. The applicant’s prior criminal history was quite different from that of Carr, Moffatt and Carolan. He had spent a much shorter time in prison than had they. In our view the judge was, with respect, in error in concluding that in all the circumstances an indefinite sentence should be imposed.[65]

[63](Unreported, County Court of Victoria, Judge Walsh, 28 August 1997). An appeal by the offender arguing that the finite sentence imposed was manifestly excessive was dismissed: [1998] VicSC 32.

[64](2005) 11 VR 314.

[65]Ibid 336.

The principle emerging from these cases is that an indefinite term of imprisonment is an extraordinary sentencing disposition that is reserved for those exceptional cases where the protection of the community requires the imposition of such a sentence. The exceptional nature of this disposition continues to inform the question of confirmation or discharge of the sentence under s 18M.

In answering the question whether the Chief Judge erred in concluding that he could be satisfied to a high degree of probability that the appellant is still a serious danger to the community it was not contested between the parties, and we accept, that the evaluation of dangerousness is to be made with reference to s 18B. It states:

18B When court may impose indefinite sentence in respect of serious offence
(1)A court may only impose an indefinite sentence on an offender in respect of a serious offence if it is satisfied, to a high degree of probability, that the offender is a serious danger to the community because of—
(a)his or her character, past history, age, health or mental condition; and

(b)       the nature and gravity of the serious offence; and
(c)       any special circumstances.
(2)In determining whether the offender is a serious danger to the community, the court must have regard to—
(a)       whether the nature of the serious offence is exceptional;
(b)anything relevant to this issue contained in the certified transcript of any proceeding against the offender in relation to a serious offence;

(c) any medical, psychiatric or other relevant report received by it;
(d)the risk of serious danger to members of the community if an indefinite sentence were not imposed;
(e)the need to protect members of the community from the risk referred to in paragraph (d)—

and may have regard to anything else that it thinks fit.
(3)The prosecution has the onus of proving that an offender is a serious danger to the community.

Counsel for the Director accepted that, consistently with s 18B(3), the Crown bears the onus of proving that an offender is still a serious danger to the community on a review.

The appellant concedes that he should not be released into the community unsupervised as he would still be a serious danger to the community. The evidence adduced before the Chief Judge leaves no doubt that that concession is well founded. The Director submitted, as the Chief Judge accepted, that there was insufficient certainty about the management of the appellant if his indefinite sentence was discharged such that it could not safely be concluded that the community would be protected against the danger that he posed. The appellant submitted that the existence of an alternative regime for supervision and detention that can manage the risk posed by the appellant should have satisfied the Chief Judge that the appellant is not ‘still a serious danger to the community’ for the purposes of s 18M.

For the following reasons, we agree with the appellant’s submission. We are also of the opinion that in the unlikely event that the Board determined to release the appellant during the re-integration period, it would only do so on conditions that ensured that the appellant did not pose a serious danger to the community.

The list of factors to which a court must have regard in s 18B(2) includes ‘the risk of serious danger to members of the community if an indefinite sentence were not imposed’. As we have said, in contradistinction to a sentencing court which is prohibited by s 5(2BD) from taking into account the existence of the SSODSA regime, a reviewing court may have regard to the possibility of supervision or detention under the SSODSA when evaluating whether the offender would still pose a danger to the community if an indefinite sentence is discharged. As the appellant concedes his potential danger, the only question on review was whether on release he would be so managed that he would not be a serious danger to the community.

As appears hereafter, the primary, if not sole purpose for the powers with which we are concerned, conferred on each of the statutory authorities, is protection of the community. In considering whether a person remains a serious danger to the community, a court undertaking a review should assume that the relevant public authorities will exercise their statutory powers responsibly so as to achieve the purpose for which the power is conferred. The question thus arises whether it should be concluded, despite the absence of the evidence referred to by the Chief Judge, given the powers of the relevant authorities, that the appellant would not upon discharge of his indefinite sentence be a serious danger to the community. It is therefore necessary to consider the legal framework that would govern the appellant upon the discharge of his indefinite sentence in respect of both the re-integration program and the SSODSA.

We turn first to the re-integration program. Section 69(1)(c) of the Corrections Act 1986 confers upon the Board the functions relating to indefinite sentences given it under sub-div (1A) of pt 3 div 2 of the Act. Those functions include the administration of the five year re-integration program which commences after the indefinite sentence is discharged. The Act does not specify the nature of the program but applies the parole regime under the Corrections Act and regulations to the re-integration programme.[66] Section 18N provides:
[66]See Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Lawbook Co, 3^rd ed, 2014) 748 n 167.

18N Re-integration program
The provisions of Division 5 of Part 8 (parole) and of section 112 (regulations) of the Corrections Act 1986 apply to a re-integration program in the same way that they apply to parole but as if—
(a)references in those provisions to parole or release on parole were references to a re-integration program or release under a re-integration program;
(b)persons made subject to a re-integration program were serving a prison sentence of 5 years during the whole of which they were eligible to be released under the re-integration program;
(c)references in those provisions to a parole order were references to an order made by the Adult Parole Board releasing an offender under a re-integration program;

(d) references in those provisions to a non-parole period were omitted;
(e)references in those provisions to the parole period were references to the period of release under the re-integration program.

Division 5 of pt 8 of the Corrections Act 1986 governs the Board’s obligations with respect to parole. As the re-integration period is to be treated as though it is a period of imprisonment during which the offender is eligible for parole, s 74(1) of the Corrections Act enables the Board to make an order, in the nature of a parole order, as though it is a sentence whose non-parole period has expired. In determining whether to grant parole s 73A provides as follows:

73A Safety and protection of the community paramount in parole decisions
The Board must give paramount consideration to the safety and protection of the community in determining whether to make or vary a parole order, cancel a prisoner’s parole or revoke the cancellation of parole.

The Board is well used to dealing with offenders who have committed sexual offences and addressing the question whether the risks of offending are unacceptably high and not susceptible to mitigation by parole conditions.[67]
[67]See Adult Parole Board, Parole Manual (5^th ed, April 2015) 17 [5.2].

The Board is empowered to fix terms and conditions on release. Under s 74AAB of the Corrections Act 1986 which commenced to operate in July 2014, a division of the Board, the Serious Violent Offender or Sexual Offender Parole division (‘SVOSO division’) was established, its sole function being to decide whether to release a prisoner on parole in respect of a sexual offence or a serious violent offence.[68] It may only make an order releasing such a prisoner following a recommendation of release by another division of the Board.[69] It may refuse to make the order.[70] The Board also includes a specialised division to deal with the detention and supervision of serious sex offenders.[71]That division has responsibility for supervision of offenders under the SSODSA.[72]
[68]Corrections Act 1986 s 74AAB(2), (3).
[69]Ibid s 74AAB(5).
[70]Ibid s 74AAB(7).
[71]Ibid s 64A.
[72]SSODSA s 6.

The Director referred to the High Court’s observations in Buckley v The Queen that the ‘operation of the parole system’ amongst other matters must be the subject of close attention when considering an indefinite sentence.[73] The Director then submitted that this Court may consider the risk posed by the appellant to be such that ‘it is inconceivable that the Adult Parole Board would ever release the Appellant into the community during a five year reintegration period’.
[73](2006) 224 ALR 416, 426 [43].

In summary, the combined effect of those provisions to which we have referred is that the relevant divisions of the Board when considering whether an offender may be released during the five year re-integration program, must give paramount consideration to the safety and protection of the community. They will not release on parole where there is a high risk of offending that cannot be adequately guarded against by the imposition of conditions.

If the appellant’s personal circumstances remain unchanged, the prospect of him being released into the community during the re-integration period by the Board in any circumstances is unlikely. The SVOSO division of the Board would have to recommend his release.[74] Were he to be released, it is, as the Director recognises, inconceivable that those invested with authority in this area at this point in time — the Board — would not impose necessary conditions that would protect the community from the danger he otherwise poses.
[74]Corrections Act 1986 s 74AAB.

Upon the expiration of the five year period of the re-integration program, the appellant would be released from his custodial sentence. The next question is whether the operation of the SSODSA regime for detention and supervision provides sufficient protection for the community such that it should be concluded that the appellant upon release would not constitute a serious danger to the community. The Director submits there are two primary uncertainties that lead to satisfaction to a high degree of probability that the appellant would remain such a risk: first, that it is not certain that the Secretary and/or the Director would seek an order under the SSODSA; and second, that it is not certain that the SSODSA regime will be available in five years’ time. The combined uncertainty, creating the ‘gap of speculation’ that the Chief Judge considered to be insurmountable, was said to prevent the discharge of the appellant’s indefinite sentence. We do not accept this submission.

It is true that the SSODSA does not mandate that the Secretary or Director, as applicable, make an application for a supervision or detention order.[75] Section 7 provides that the Secretary may apply for a supervision order in respect of an offender. Section 104 provides that the Secretary may determine whether an application should be made for a supervision order in respect of an offender or whether a matter should be referred to the Director for determination whether an application should be made for a detention order. If a referral is made, s 33 provides that the Director must then determine whether to make an application for a detention order.[76] These provisions do not compel the Secretary or the Director to make an application for a supervision or detention order.
[75]SSODSA ss 7, 33, 104–5.
[76]Ibid s 105.

As we have said, the assessment of risk must be made at the time of the review. This Court, in Carr, by way of considered obiter, referred, also in passing, to the review of an indefinite sentence under ss 18H and 18M as further confirming that any assessments must take place as though the offender is now, rather than at a future time, to be released.[77] Accordingly we do not accept the Director’s submission that one must look forward five years and be able to say with certainty that the SSODSA will be in existence and that the Director or Secretary will then make an application for detention or supervision under the SSODSA.
[77][1996] 1 VR 585, 592.

However, in the alternative and for the avoidance of doubt, even if we were required to make a prediction as to the appellant’s dangerousness at the end of the re-integration program five years hence, and in that connection to consider the Director’s submissions just noted, our reasoning which follows would apply equally to an assessment at that time.

It is not open to doubt that the SSODSA regime contains sufficient safeguards to ensure that the appellant is not a danger to the community. The appellant, having committed a ‘relevant offence’, is an ‘eligible offender’ for the purposes of the SSODSA and may therefore be the subject of an order.[78] Sections 11 and 39 provide that a detention or supervision order commences on the day on which the offender completes the service of a custodial sentence. A custodial sentence includes an order under s 18M of the Act.[79] In other words, an order may commence immediately upon the conclusion of the five year re-integration period which is statutorily mandated upon discharge of an indefinite sentence.
[78]SSOSDA s 4.
[79]Ibid s 3 (para (d) of the definition of ‘custodial sentence’).

A court may make a detention order if it is satisfied that the offender ‘poses an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community’, and if it is satisfied that the risk of the offender committing a relevant offence would be unacceptable unless a detention order were made.[80] If a detention order is thought to be appropriate, the effect of such an order is to commit the offender to detention in a prison for the period of the order.[81] The term of the order may not exceed three years,[82] and at any time during the period of the order the Director may apply for its renewal.[83] Similarly, a court may make a supervision order if it is satisfied that the offender ‘poses an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community’.[84]
[80]Ibid ss 35, 36.
[81]Ibid s 42.
[82]Ibid s 40.
[83]Ibid s 45.
[84]Ibid s 9(1).

The ‘unacceptable risk’ test plainly sets a lower bar than the ‘serious danger to the community’ test for an indefinite sentence, which it is accepted the appellant would satisfy if it was envisioned that he would be released unsupervised.

In Nigro,[85] this Court considered three appeals in which the appellants argued that the primary judge erred in concluding that they posed an ‘unacceptable risk’ in imposing supervision orders upon them. The Court made a number of observations in respect of the evaluation of ‘unacceptable risk’. The Court’s summary of its conclusions in this respect was as follows:

Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence. The principle in Briginshaw is relevant to an evaluation of the quality and sufficiency of the evidence. The court must be satisfied to a high degree of probability that there is an unacceptable risk. That is a standard well above the civil standard and approaching the criminal standard.
The test of unacceptable risk does not require a particular degree of risk. It need not necessarily be more likely than not. The lower likelihood of risk stated in s 9(5) is not to be confined to a particular category of offence. The likelihood may be moderate and equate to the average sex offender risk to be unacceptable in a particular case.
The potential offending should not be categorised or placed in a continuum of seriousness so as to assume that a particular level of risk must apply to that type of offending. That would remove the flexibility of the test.[86]

[85](2013) 234 A Crim R 1.

[86]Ibid 8–9 [6]–[8] (citation omitted). See also 26 [75].

Expanding on the test, the Court later said:

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.[87]

[87]Ibid 35 [111] (citations omitted).

It also said:

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and

not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[88]

[88]Ibid 40 [130].

The Court’s reasons in Nigro make clear that the question whether an offender poses an ‘unacceptable risk’ is squarely directed at the potential consequences of the possible offending. That will require an evaluation of the offender’s ‘particular circumstances’. It was not suggested by the Director and it cannot be doubted that the appellant, if his personal circumstances remain unchanged, would constitute an ‘unacceptable risk’ for the purposes of the SSODSA regime.

If it is determined that a supervision order is appropriate, the court imposing the order will have sufficient scope within that order to ensure the protection of the community. A supervision order is subject to the conditions imposed by the court.[89] Those conditions may include that the offender reside at a residential facility and the conditions under which the offender may leave that place.[90] The court may impose any condition it considers appropriate,[91] which may include a condition authorising the Board to direct the offender with respect to any condition or to direct the offender to reside at a residential facility.[92]
[89]SSODSA s 15(1).
[90]Ibid ss 17(1), 18.
[91]Ibid s 17(2).
[92]Ibid s 20(1).

The SSODSA provides that the Board is responsible for the management of offenders subject to detention and supervision orders imposed under that Act.[93] Section 119 provides that the Board may give directions to an offender in accordance with a condition of a supervision order authorising the Board to give those directions. Section 121 provides that the Board may give instructions to an offender to give effect to the supervision order. Section 120 provides for temporary emergency directions that may be inconsistent with or not provided for in the order. The period of a supervision order may be up to 15 years.[94] The Secretary may apply for the order to be renewed at any time during the period of the order.[95] Therefore, such an order (whether imposing supervision or detention) could apply indefinitely.
[93]Ibid ss 114, 118. Section 69(1)(ac) of the Corrections Act 1986 confirms that the Board has the functions conferred on it by SSODSA.
[94]SSODSA s 12.
[95]Ibid s 28.

Testing the matter as at the time of the review, we ask rhetorically, is it a realistic possibility that the Secretary or Director would not make such an application? The appellant was by his own acknowledgment an offender who would attract the operation of SSODSA. As the Director stated in its written case, ‘[i]t may well be that this Court considers … that it is inevitable that the Director and/or the Secretary would apply for a detention order and/or supervision order under the SSODSA on the expiry of the fixed term’. In our opinion it would be fanciful to suggest otherwise. The appellant is one of a small handful of offenders in this State to have an indefinite sentence imposed upon him. The Secretary has a variety of statutory responsibilities which would make it inevitable that the Secretary is and will remain fully aware of the appellant and his circumstances. In particular, the Secretary has specific statutory obligations to assist the Board in supervising those released on parole and in carrying on the functions under the SSODSA. It is inconceivable that the Secretary would not be aware that the appellant if discharged from indefinite sentence would be subject to release into the community at a particular time.

Although a prediction as to what may happen well into the future is unnecessary, it is also inconceivable that the SSODSA regime would be abolished within the next five years without some provision being made for those persons who are subject to supervision or detention orders or are likely to become subject to those provisions, and in particular anyone on an indefinite sentence.

A sentencing judge must assume in fixing a non-parole period that the parole authority will give due consideration to the exercise of its powers to release an offender.[96] A reviewing court may also assume that the relevant authorities will exercise the powers conferred upon them for the purpose of the protection of the community when it is necessary to do so. This is particularly so where there are so few persons, including the appellant, subject to indefinite sentences. The relevant authorities would be acutely aware of his circumstances. In our view, the Chief Judge should have assumed that the authorities would exercise their powers to ensure that, if the appellant’s personal circumstances remained unchanged, he would either not be released or would be supervised in a manner that protected the community.
[96]R v Denyer [1995] 1 VR 186; see Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Lawbook Co, 3^rd ed, 2014) 864.

As the Secretary or the Director will on application made under the SSODSA readily satisfy the requirement that the appellant is an unacceptable risk,[97] the court will be required to determine what protection the community requires in order to remove the danger. We note that the Chief Judge referred to the fact that the appellant sought to be housed at Corella Place under a supervision order.[98] The Chief Judge said, as set out above, ‘it is common knowledge that the supervision of high risk sex offenders inevitably involves detention in Corella Place and only supervised access to the general community’.[99]
[97]SSODSA ss 9, 35–6.
[98]Reasons [22], [34].
[99]Ibid [76].

The legislature has provided for the circumstances in which an indefinite sentence should continue after the expiration of the nominal period. Recognising that an indefinite sentence, once discharged, cannot be revived, we have not lightly concluded that the appeal should be allowed and the order of an indefinite sentence discharged. The appellant will be subject to a five year re-integration program and a warrant to imprison for that period. During this time, it is highly unlikely that the Board will release the appellant into the community and the possibility of it doing so without protective conditions is so remote as to be fanciful. Before the conclusion of that five year period, the Secretary or Director will be entitled to seek a supervision or detention order under the SSODSA to take effect on the day his custodial sentence expires. Assessing the risk as at the time of review, it is, as we have said, inevitable that an application for an order under the SSODSA would be made and granted. If the appellant’s personal circumstances remain unchanged, he may either be detained or an order would be made that would be tailored to prevent any danger to the community posed by the appellant. A supervision order might be made that includes a residential condition that the appellant reside at Corella Place. The Secretary or the Director could apply for renewal of that order indefinitely.

Although the Chief Judge gave this issue his most anxious consideration we are, with respect, unable to agree with his Honour’s conclusion that such uncertainty attended the course that might be taken by the Director or Secretary in applying for the statutory protections that one could be satisfied to the high degree required that the appellant remained a serious danger to the community. In so concluding, with respect, his Honour erred. In particular, we are satisfied that having regard to the appellant’s danger to the community:

(g) During the five year period of the mandated re-integration program, the Board will either not release the appellant into the community or will only do so on conditions which ensure that the appellant will not pose a serious danger to the community.[100]

(h) Upon the expiration of his custodial sentence, the Secretary or the Director will apply for a detention order or a supervision order under the SSODSA that will by the imposition of conditions manage the risk to the community so that he will not be a serious danger to the community.

[100]See s 74(4)–(7) of the Corrections Act 1986 and s 74AAB as to release on parole of persons imprisoned for sex offences.

The proceedings in respect of the offender Moffatt described earlier in these reasons — where the offender’s indefinite sentence was discharged and, immediately prior to the expiration of the re-integration period, applicant was made under the SSODSA which resulted in the offender being placed on a 15 year supervision order with strict residential conditions — is an illustration of the process that could be followed in respect of the appellant.

There is one final observation we should make. Anecdotally, and in the experience of this Court, it now appears that dangers posed by offenders of a similar character to the appellant are today dealt with under the auspices of the SSODSA. It is notable that each the five cases previously mentioned in which the Director sought the imposition of indefinite sentences predated the commencement of the SSODSA or its predecessor, the Serious Sex Offenders Monitoring Act 2005. It seems less than optimal that two regimes for the preventative detention and/or supervision of serious sex offenders co-exist with differing consequences yet are both directed to the same conduct. A policy document of the Director entitled ‘Continued Detention’ provided to the Court agrees this conclusion, stating:

[I]t is difficult to see how the use of the indefinite sentence provisions will practically operate alongside the new continued detention scheme as the indefinite sentence provisions have historically been relied upon in cases where the offender would now fall within the definition of ‘eligible offender’ for the purpose of a detention order application.[101]

[101]Director of Public Prosecutions, Director’s Policy — Continued Detention, Policy 31 (18 September 2012) [31.8.4.2]. We are informed that this document is currently under review.

The issue in this case only arose because the appellant reached the end of the nominal period of the indefinite sentence but, due to the lack of abatement in his condition, still constituted a serious danger to the community if released unsupervised. Under the SSODSA regime it is only a theoretical possibility that an offender in the position of the appellant would be released unsupervised into the community. Where the risk posed by the appellant can be managed by means other than an indefinite sentence — including, in particular, by use of the SSODSA regime of supervision and detention — it should be. We should guard against the ‘banalisation of indefinite imprisonment’.[102]
[102]Buckley v The Queen (2006) 224 ALR 416, 426.

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[2015] VSCA 167

26 June 2015