Director of Public Prosecutions v AJP [No 2]

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2015 00154

IN THE MATTER of the Serious Sex Offences (Detention and Supervision) Act 2009

and

IN THE MATTER of an Application for a Detention Order

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
AJP	Respondent

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JUDGE:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	30–31 March, 4–5 April 2016
DATE OF JUDGMENT:	29 April 2016
CASE MAY BE CITED AS:	DPP v AJP [No 2]
MEDIUM NEUTRAL CITATION:	[2016] VSC 198

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PUBLIC LAW – Application for detention order – Whether respondent would be unacceptable risk of committing relevant offence if detention order were not made – ‘Unacceptable risk’ – Section 35(1) threshold test of unacceptable risk – Whether s 36(1) assessed against existing circumstances – Respondent incarcerated at time of application – Respondent not currently at unacceptable risk of committing a relevant offence – Detention order not made – Application adjourned to date to be fixed – Serious Sex Offenders (Detention and Supervision) Act2009 ss 4, 33, 35, 36.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms K E Judd QC Ms J Davidson	Office of Public Prosecutions
For the Respondent	Mr C T Carr Ms A J Beech	Leanne Warren & Associates

HIS HONOUR:

On 30 March I made an order suppressing publication of various matters pursuant to s 182 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the Act’) which prohibits the publication of any evidence given in the proceeding, the content of any report or other document put before the Court, any information submitted to the Court that might enable a person who has attended or given evidence to be identified, any information that might enable a victim of a relevant offence committed by the offender to be identified. I made an order under s 184 as well, that any information that might enable the offender or his or her whereabouts to be identified must not be published except in the manner and extent permitted by the Court. There has been no permission given to publish.
This Application
By an application filed in this Court on 22 October 2015 the Director of Public Prosecutions sought a detention order pursuant to s 33(2) of the Act against AJP. At the time the application was filed AJP was an eligible offender within the meaning of s 4(1) of the Act. He was over 18 years of age, a court had imposed a custodial sentence upon him in respect of a relevant offence, as defined in the Act, and at the time the application was made he was serving a custodial sentence of 17 years' imprisonment for a relevant offence.
As well as serving that sentence AJP was also on remand, having been charged on 11 June 2015 with a number of other sex offences against two young women in February 1987 and March 1988 respectively. The sentence AJP was serving at the time he was charged expired on 29 October 2015. So that since that date he has been on remand only, awaiting trial in the County Court on those offences. That trial (or trials) are fixed for 25 July 2016.
It is accepted by both the DPP and the respondent to this application that the imposition of a detention order requires the DPP to satisfy two statutory tests; that imposed by s 35(1) of the Act, and that imposed by s 36(1).
The case against AJP for a detention order to be imposed upon him is, subject to the matters to which reference will be made hereunder, a strong one. He has a lengthy history of sexual offending culminating in the imprisonment and multiple rapes of a 17‑year‑old girl in 1988 in a disused mine in Ballarat, for which he received a sentence of 17 years' imprisonment with a non‑parole period of 15 years.
Evidence was adduced on this application from a number of experts; Drs Ho, Ong, Davis, Crowe and Sullivan. They were all of the general opinion that AJP was at a high risk of sexual reoffending. In a very long report written after extensive consultation with AJP, Dr Davis expressed the opinion that based upon AJP's history, the “most likely scenario” for him in the future was contact offending such as rape, “… upon an older adolescent female victim.” Dr Davis described a frightening escalation in AJP’s offending between about 1977 and the rape of the young woman in the mine in 1998.
Dr Ong was of a similar view. He considered AJP to remain at a high risk of committing a relevant offence, “against sexually mature female teens or adults possibly with efforts to over power or restrain them.”
Perhaps the most significant aspects of the case for a detention order is that AJP has exhibited no remorse for his offending, whilst continuing to protest his innocence in the face of multiple convictions. He has not engaged well with treatment programs and continues to hold cognitive distortions and an inability to control and moderate his responses. There is little likelihood of his behaviour changing, in the opinion of the experts.
It is highly likely that if the problem to which I shall refer hereunder had not arisen, an order under s 33 of the Act that AJP be placed in detention for the maximum period prescribed of three years would have been made.
The test imposed by s 35(1) of the Act requires the Court to be satisfied that the offender poses an unacceptable risk of committing a relevant offence if a detention order or a supervision order is not made and the offender is in the community. This test concentrates on the offender's propensity for offending by the commission of relevant offences and requires the court to make the two assumptions referred to; that no detention or supervision is made and that the offender is at large in the community. In making its evaluation the court must ignore any means of managing the identified risk and it must also ignore the likely effect of a detention or supervision order on the offender.
For present purposes it can be assumed, without necessarily deciding, that s 35(1) is satisfied in this case by acceptable cogent evidence of sufficient weight to a high degree of probability, as required by the Act.
I turn to s 36(1) of the Act. This provision is concerned with the order sought to be made. It requires a positive finding under s 35(1) and a finding that the risk identified pursuant to that section would be unacceptable unless a detention order was made. In other words the Court must be satisfied that the only remedy available to negate the risk of the offender committing one or more further relevant offences is a detention order. Only then could it impose such an order on the respondent.
But in this case, having regard to the fact that the respondent is on remand pending a further trial or trials, there is no current risk of his committing a relevant offence. He is incapacitated by imprisonment. Accordingly s 36(1) of the Act cannot be satisfied in this case at this time, even if the hypothetical conditions of s 35(1) could be.
Counsel for the DPP argued that the evidence clearly established that the respondent poses a risk of committing a relevant offence, a risk which is likely to persist “for the foreseeable future well beyond the time scheduled for his trial and irrespective of whether he is acquitted of those offences.”
Counsel referred to the permitted possible length of a detention order being three years. But there is no indication in the applicable statutory provisions or any permissible aids to the interpretation of those provisions, such as parliamentary debates or the like, which suggest that the risk of reoffending should be assessed by reference to a time other than that at which the assessment is being made.
If, as argued by the DPP here, it was necessary to take into account future contingencies in the application of s 36(1), in this case it would be necessary to evaluate the risk of the respondent applying for and being granted bail before his trial in late July, the risk of his being acquitted at the trial and the risk inherent in the sentencing process should he be convicted.
Such evaluations would be extremely difficult if not impossible to undertake. Whatever the future may hold, it must be accepted that for the moment at least the respondent is incapacitated from engaging in relevant criminal behaviour and does not pose the statutory risk. Of course the respondent may never be at risk of reoffending in the foreseeable future because he may not apply for or be successful in obtaining bail, and/or he may be convicted and sentenced to further imprisonment, thereby never creating the unacceptable risk required by s 36(1).
Counsel for the Director sought to distinguish the reasoning in DPP v JPH[1] in which Hollingworth J held that an offender subject to a then existing extended supervision order housed in ESOTAC (a ‘de-gazetted’ area within the Ararat prison) did not pose an unacceptable risk such as to satisfy s 36(1) of the Act. Counsel argued that the actual restrictions on the respondent's liberty brought about by his being in prison on remand were irrelevant to the assessment required by s 36 (1). But it was the fact that the offender in DPP v JPH was in a secure environment, ESOTAC, even if legally at large, that caused Hollingworth J to dismiss the DPP’s application for a detention order. Her Honour found that JPH did not pose an unacceptable risk of relevant offending. The current situation here is indistinguishable.
[1][2011] VSC 251.
In this case the respondent's current situation of being on remand in custody is relevant to the application of the test in s 36(1) of the Act. Whilst that situation remains the respondent does not pose an unacceptable risk as required by s 36(1) so as to justify a detention order. The only rational assessment of risk in this case must accept that, for the moment at least, the respondent is incapacitated from engaging in relevant criminal behaviour. The risks to which Counsel for the DPP pointed have not materialised and may never do so.
Whilst the temporal sequence of events currently prevents the Court from granting a detention order as sought by the DPP, the release from custody of the respondent, should it occur, might once again expose the community to an unacceptable risk of harm. That matter can be investigated and litigated when it is appropriate to do so. The DPP's application is, at this stage, premature, but he should not be prevented from pursuing this application to the Court for a detention order in respect of the respondent in the public interest and in furtherance of the purposes of the Act should the situation change.
It is thus appropriate that the further hearing of this application be postponed until it is possible to consider the application of the relevant provisions of the Act in the context of the respondent's actual situation, either as an applicant for bail, as a person on bail or as a person convicted or acquitted of the matters with which he is charged.
Accordingly the further hearing of this application will be adjourned to a date to be fixed or any further order of the Court. Should either party wish to make any application with respect to it, he should do so on notice to the other party, such application to be managed by Hollingworth J.
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[2016] VSC 198

29 April 2016