Department of Justice v B, J

[2022] VCC 1321

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

DEPARTMENT OF JUSTICE	Plaintiff
v
B, J	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2022
DATE OF RULING:	19 August 2022
CASE MAY BE CITED AS:	Department of Justice v B, J
MEDIUM NEUTRAL CITATION:	[2022] VCC 1321

RULING
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Subject:APPLICATION FOR ORDER RESTRICTING PUBLICATION OF OFFENDER’S IDENTITY AND LOCATION

Catchwords: Application pursuant to section 279 of Serious Offenders Act 2018 (Vic) – Defendant made application for suppression of both identity and location – Whether identity should be suppressed – Psychiatric evidence regarding efficacy of suppression order – Evidence regarding reduction of stressors which heighten risk of reoffending – Consideration of section 280(d) of Serious Offenders Act 2018 (Vic)

Legislation Cited:      Serious Offenders Act 2018 (Vic)

Ruling:  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A Roodenburg	Victorian Government Solicitor’s Office
For the Defendant	T Marsh	Victoria Legal Aid

HIS HONOUR:

1Ms Roodenburg, appearing for the Secretary to the Department of Justice (“the Secretary”) makes application for a Supervision Order pursuant to section 13 of the Serious Offenders Act 2018 (Vic) (“the Act”). The Respondent, Mr B, J, was represented on the application by Mr Marsh.

2Mr Marsh advised that the Respondent did not ultimately oppose the making of the order or the proposed conditions.  This was after both Dr Ramsey,[1] psychologist, and Ms Cress[2] of the Post-Sentence Branch, were called to tender materials and were cross-examined. 

[1]        A pseudonym

[2]        A pseudonym

3I have read all the materials tendered on this application but particularly the material from Dr Ramsey.  Her reports relevantly dated 1 May 2022 and a further letter which opines specifically on the issue of the efficacy of a suppression order dated 5 August 2022 were tendered.  Based on the material in those reports, the antecedent history and the earlier materials tendered as part of the application, I am satisfied that the Respondent poses an unacceptable risk of committing a relevant offence if a Supervision Order is not in effect and he is released unsupervised into the community.  I am satisfied that the core conditions and additional conditions are necessary to address the risk of further offending.

4Application was also made by Mr Marsh on behalf of B, J that his identity and location not be published in accordance with section 279 of the Act. That section permits the Court, in a proceeding under the Act, to make an order for non-publication of an offender’s name and location if “it is in the public interest to do so”.

5Ms Roodenburg submitted that it was agreed that the location of the Respondent could be suppressed but that his identity should not be.  The parties were at issue over this one central issue.  Having regard to the letter of Dr Ramsey dated 5 August 2022, however, the evidence is overwhelming that suppression of both location and identity is necessary for therapeutic and clinical reasons.  Dr Ramsey noted that if a suppression order was not made, Mr B, J’s mental health would be adversely impacted which would affect his prospects for rehabilitation.  She noted that Mr B, J presented with a major mental illness, schizophrenia and a mild intellectual disability.  She said he would be more susceptible to stresses and these could be due to details of his residence, identity and offending being made known to the public.  Further, without such an order, he would be likely to stressed by publication of his name and location.  This in my opinion can only serve to detrimentally affect rehabilitation and increase the risk of further sexual offending and thus endanger the safety and protection of the community.

6As set out, the Secretary opposes the non-publication order as to identity, but not as to location.  The basis is the offender’s breaches of the existing order on a number of occasions in 2013, 2015 and 2016.  Details of those breaches are set out in the Secretary’s submissions, filed with the Court. 

7While those breaches are, as any breach of a supervision order is, serious and for which B, J has received further jail sentences, that offending was not sexual or violent in nature. These are features of his offending which led to the imposition of the supervision order and for which Dr Ramsey recently assessed him as being a continual risk of reoffending in respect of. It is clear by section 280(d) that Parliament intended for breaches to be taken into account in determining whether to make a non-publication order, however, there is no provision in the Act which says that in the event of a breach an offender must be automatically taken to lose the protection of such an order. It can be seen that Parliament obviously considered that there would be circumstances where a non-publication order should continue or be made notwithstanding that a breach has occurred. This is such a case particularly given the view of Dr Ramsey. That opinion touches on the fact that Mr B, J has a major mental illness which needs treatment and the reduction of stressors which heighten the risk of reoffending. He has made good progress in more recent times and this is noted in Dr Ramsey’s report. In context the earlier breaches are now of significant historical importance only given the substantial progress made of more recent times and the more hopeful note in Dr Ramsey’s substantial report of May of this year. Further, I am not convinced either he, or others in a similar circumstance, would be deterred from breaching by the risk of removal of the non-publication order. Therefore, it falls to balance on the one hand the risk of endangering the community and the Court denouncing breaching behaviour on the other. In this circumstance, in particular given the force of Dr Ramsey’s final opinion from August this year, I will make the order sought by B, J and suppress both location and identity.