Director of Public Prosecutions v CGM
[2016] VSC 661
•4 November 2016
IN THE SUPREME COURT OF VICTORIA NOT RESTRICTED
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0059
IN THE MATTER of the Serious Sex Offenders (Detention and Supervision) Act 2009
and
IN THE MATTER of an application under s 45 of the Act for renewal of a detention order
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
CGM
Respondent
NOTE: This proceeding is subject to a suppression order regarding identification
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 September and 11 October 2016 |
DATE OF JUDGMENT: | 4 November 2016 |
CASE MAY BE CITED AS: | DPP v CGM |
MEDIUM NEUTRAL CITATION: | [2016] VSC 661 |
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Application for renewal of detention order – Consideration of the risk of the respondent committing a relevant offence – Progress of rehabilitation and treatment – Suitability of Corella Place for the management of the risk – Suitability of a supervision order – Detention order to remain in force.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rose QC with Ms J Davidson | Mr J Cain, Solicitor for Public Prosecutions |
| For the Defendant | Mr J McLoughlin | Victoria Legal Aid |
HIS HONOUR:
By application dated 12 July 2016 the Director of Public Prosecutions makes application for the renewal of the detention order with respect to the respondent pursuant to s 45(1) of the Serious Sex Offenders (Detention and Supervisions) Act 2009 (‘the Act’).
On 30 September 2014 the respondent has been made subject to a detention order for 2 years commencing on 16 November 2014.[1] In accordance with s 66(1) of the Act, that order was the subject of review “not later than one year after the making of the detention order”. On 12 October 2015, the original order was confirmed.[2] It was to expire at midnight on 15 October 2016.
[1]Director of Public Prosecutions v CGM [2014] VSC 485 (Rush J).
[2]Director of Public Prosecutions v CGM [2015] VSC 558 (Rush J).
To save repeating the rather chequered history of the respondent with respect to supervision and detention orders these reasons should be read in conjunction with the two sets of reasons of Rush J referred to above.
This matter was first listed for hearing on 13 September 2016. It became apparent that there were difficulties about the attendance of Dr Karen Owen who was to be called on behalf of the applicant and therefore the efficacy of calling Dr Daniel Sullivan who was to give evidence on behalf of the respondent. It transpired that the earliest practical date for the hearing of that evidence was Tuesday, 11 October 2016. It was not practical to assume that the matter could be resolved by midnight on 15 October 2016 (Saturday). It was agreed that it would be best if an interim order could be made effectively extending the operation of the present order until midnight on 15 November 2016. I made that order by consent.
The statutory provisions relevant to the renewal of the detention order are ss 45 and 45A of the Act. Those sections relevantly provide:
45 Renewal of detention order
(1)The Director of Public Prosecutions may, at any time while a detention order is in force, apply to the Supreme Court for the order to be renewed.
(2)An application may continue to be dealt with and determined by the Supreme Court even if since it was made the detention order sought to be renewed has expired.
(3)Subject to this Division, this Act (with any necessary modifications) applies to an application under subsection (1) in the same way as it applies to an application under section 33.
(4)An application for renewal of a detention order may be accompanied by a progress report in respect of the offender instead of an assessment report.
(5)More than one application may be made under subsection (1) for the renewal of a detention order in respect of an offender.
(6)The expiry of the detention order sought to be renewed before it is renewed does not prevent the order being made renewing the detention order or it having effect as a renewed detention order.
(7)An application can be made for renewal of a detention order even if the offender is serving a custodial sentence or is remanded in custody.
45A Determination of application to renew detention order
(1)On an application under section 45 to renew a detention order, the Supreme Court may—
(a) renew the detention order; or
(b) revoke the detention order; or
(c) decide not to renew or revoke the detention order.
(2)If the Supreme Court renews a detention order, the Supreme Court may vary the period of the detention order.
The questions to be considered on the application are the same as those faced by Rush J at the time he made the original order. The relevant differences will turn on the evidence as it emerged before me, in contrast to the evidence which was before him. The history of the respondent with respect to those orders is usefully set out in the Director’s application as follows:
[CGM] is currently subject to a detention order and that order is still in force:
1. On 24 March 2010 the Director of Public Prosecutions filed an application for a detention order in the Supreme Court of Victoria in respect of [CGM] pursuant to section 33 of the Act. [CGM] was serving in Victoria a custodial sentence for a relevant offence at the time at which the application for a Detention Order was made.
2.On 10 December 2010 the Honourable Justice Williams made [CGM] subject to a supervision order (‘the supervision order’) for a period of 5 years, commencing on 10 December 2010;
3.[CGM] committed further (non-relevant) offences while subject to the supervision order;
4. On 14 November 2011, in the Magistrates’ Court at Geelong, [CGM] was sentenced to a Commonwealth sentence of 3 years and 4 months imprisonment with a non-parole period of 2 years to commence on 14 November 2011 in respect of the following offences:
a.Using a service to menace, harass or cause offence (s.474.17.1 Criminal Code Act 1995 (Cth) — 10 charges)
5. On 19 September 2012 the Respondent was convicted in relation to three charges of failing to comply with a condition of a supervision order pursuant to s.160(1) of the Act (‘breach of supervision order charges’), as a result of the Respondent committing the abovementioned Commonwealth offences while residing at Corella Place under the supervision order. On 9 October 2012 the Honourable Justice Williams sentenced the Respondent to 9 months imprisonment in respect of the breach of supervision order charges, to commence on 20 January 2013;
6. The Respondent subsequently served a custodial sentence in respect of the abovementioned Commonwealth charges at the expiration of his State sentence. The Respondent’s custodial sentence in respect of the Commonwealth charges expired on 16 October 2014;
7.By reason of the custodial sentence the Respondent was undergoing and pursuant to section 67 of the Act, an application for a review of the supervision order was not filed by the Respondent's review date of 10 December 2012;
8. On 23 April 2014 the Secretary to the Department of Justice filed an application for review of a supervision order (‘the supervision order periodic review’) in the Supreme Court of Victoria pursuant to section 65 of the Act;
9. Upon the Secretary to the Department of Justice filing the supervision order periodic review on 23 April 2014, the Director of Public Prosecutions considered that a detention order should be made in respect of the Respondent pursuant to section 73(3) of the Act;
10. The Director filed an application for a detention order in the Supreme Court of Victoria pursuant to section 73(3) on 24 April 2014;
11. On 30 September 2014 the Supreme Court of Victoria made [CGM] subject to a two year detention order pursuant to section 38 of the Act;
12. The Respondent is currently subject to a detention order and that order is still in force:
•Detention Order made by Justice Rush on 30 September 2014, for a period of two years commencing on 16 October 2014.
•The Detention Order was confirmed by Justice Rush on 12 October 2015 and is due to expire on 15 October 2016.
It follows that although the mechanism of these proceedings are based upon s 33ff of the Act, and the earlier proceedings were based on s 73(3) of the Act, there will be no real difference between them.
The first question which arises for consideration is that posed as follows:
35 Court must first be satisfied that there is an unacceptable risk
(1)On an application under section 33, the Supreme Court may make an order in respect of an eligible offender only if the Court 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.
In these proceedings it was accepted by Mr J McLoughlin, who appeared for the applicant, that the respondent did represent the unacceptable risk as defined in s 35(1). That has been the view taken on behalf of the applicant through the whole proceedings. The point of contention has been, and continues to be, that the unacceptable risk identified in s 35(1) of the Act can be satisfactorily managed pursuant to a supervision order and in particular, a supervision order which requires the respondent to live at Corella Place.
It follows that the matters set out in s 36 of the Act must be considered. That section relevantly provides:
36 Decision to make order
(1)If the Supreme Court is satisfied that the unacceptable risk set out in section 35(1) exists, the Court before making a detention order must be satisfied that the risk of the offender committing a relevant offence would be unacceptable unless a detention order were made.
(2)For the avoidance of doubt the Supreme Court may determine under subsection (1) that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not.
(3)If the Supreme Court is satisfied that the risk would be unacceptable unless a detention order were made, it may make a detention order in respect of the offender.
(4)If it is not satisfied that the risk would be unacceptable unless a detention order were made, the Supreme Court may make a supervision order in respect of the offender.
(5)The Supreme Court may make no order in circumstances where it is empowered to make a detention order or supervision order under this section.
(6)Divisions 2 to 4 of Part 2 (with any necessary modifications) apply to the making of a supervision order under this section as if it were a supervision order made under that Part.
The witnesses called on this application were Dr Kevin Ong, Dr Karen Owen, Sarah Miles and Brendan Money and Dr Danny Sullivan. The witnesses were much the same as in the earlier proceedings.
The evidence of Dr Ong, Dr Owen and Dr Sullivan is directed to the assessment of the risk the respondent would represent of committing a relevant offence[3] and whether or not that risk “would be unacceptable unless a detention order were made”.
[3]Relevant offences are those set out in Schedule 1 of the Act.
In relation to Dr Owen and Dr Ong, the reports prepared by them were in the form of progress reports. That course is specifically authorised by s 45(4) of the Act. That was appropriate since they had both provided reports and given evidence at both hearings before Rush J. The provision of the progress reports is, of course, the precise language appropriate to the review of an existing order and of course is not inconsistent with a renewal application. An original application would be accompanied by an assessment report. I do not regard there being any particular distinction between assessment reports and progress reports.
Assessment and progress reports are dealt with pursuant to Pt 8 of the Act under Divs 1 and 2 respectively.
The content of a progress report is as follows:
12 Progress report
(1) A progress report must address the following matters in relation to an offender—
(a)whether or not the offender has a propensity to commit relevant offences in the future;
(b)efforts made by the offender in the previous 12 months or since the last review to address the causes of the offender's sexual offending behaviour, including whether or not the offender participated in any rehabilitation or treatment programs; and
(c)if the offender has participated in any rehabilitation or treatment programs, whether or not this participation has had a positive effect on him or her;
(d)factors that might increase or decrease any identified risks;
(e)if an additional assessment of the offender has been obtained under section 108, the results of that assessment;
(f)any other relevant matters.
Both Dr Owen and Dr Ong addressed s 112 in terms. Although Dr Sullivan did not, it was appropriate for him not to do so, and nothing in this case turns on that difference.
Dr Owen, in her report dated 8 June 2016, set out the matters which needed to be addressed pursuant to s 112 of the Act as follows:
[CGM] will remain a High level of sexual re-offence risk in the absence of direct supervision that monitors and controls his contact with the community and potential victims. Therefore, treatment recommendations pertain to the provision of ongoing supervision of [CGM] in the manner like that provided under a Detention or Supervision Order.
MATTERS REQUIRED TO BE ADDRESSED BY SECTION 112(1) OF THE SERIOUS SEX OFFENDERS (DETENTION AND SUPERVISION) ACT 2009
ln accordance with Section 112(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 I have fonned the following opinions:
(a) Whether or not the offender has propensity to commit further relevant offences in the future
Using actuarial risk assessment methods, [CGM] is assessed as a High-risk offender who has a propensity to commit further sexual offences in the future. Using empirically guided clinical judgment, using the RSVP and considering the nature of [CGM]’s offending it is the writer’s opinion that he represents a High risk of sexual re-offending. It is noted that there are possible changes and therefore reduction of risk as a result of pharmacological intervention however, in the absence of capacity to have such changes tested in a less restrictive environment [CGM]’s assessed risk level is unable to be reduced.
(b) Efforts to address causes of the offending behaviour
[CGM] has been exposed to unprecedented levels of intervention from the time of his first offences as a juvenile at age 15 years, and continuing over his lifetime. These interventions have included anti-libidinal medication, psychotherapy, aversive therapy and contemporary group prison based treatment programs.
During the course of the Detention Order [CGM] continues to engage in individualised offence specific treatment 1:1 with High Risks Complex Needs Clinician Specialised Offender Assessment and Treatment Unit.
[CGM] continues to take pharmacological intervention (Antidepressant medication) prescribed to assist in offence specific risk.
[CGM] has continued to pursue Endocrinological examination necessary as a precursor to considering re-introduction of anti-libidinal medication.
(c) The effect of any treatment programs
[CGM] has almost always demonstrated a strong commitment to treatment participation and an apparent genuine desire to understand is offence process and curtail his offending.
Given [CGM]’s history of intervention, the purported success following past treatment efforts appeared overly optimistic given subsequent re-offending while in a structured and highly supervised environment. No treatment regime has been sufficient in effectively addressing [CGM]’s offending behaviour.
[CGM] continues to participate in treatment and it is cautiously suggested that [CGM] has made some gains in treatment in the disclosure and understanding of his offence process. It is noted nonetheless that in the past [CGM] has participated in unprecedented multifaceted interventions of psychological, pharmacological and supervision regimes that have resulted in [CGM] repeatedly reoffending despite what occasionally appeared to be treatment gains and improvements in his insight. In order to be satisfied that treatment gains have been made [CGM] needs to be able to demonstrate ability to more appropriately manage stressors even while exposed to frustrations of the residential environment. It is noted that he reports significant change in his capacity to manage anger and stress. The file material provided to the writer does not absolutely accord with [CGM]’s self-report.
(d) Factors that can increase or decrease any identified risks
A combination of strict supervision and monitoring, removal of access to potential victims, removal of access to internet and technology, together with ongoing psychological and medical interventions will assist in reducing [CGM]’s risk of re offending.
Conversely, placement in an environment that does not provide ongoing supervision, allows access to victims or un-vetted access to technology including phones and internet seek to increase the risk of [CGM]’s re-offending.
SECTION 112 OF THE SERIOUS SEX OFFENDERS (DETENTION AND SUPERVISION) ACT 2009: ASSESSMENT OF THE RISK THAT THE OFFENDER WILL COMMIT ANOTHER RELEVANT OFFENCE IF RELEASED INTO THE COMMUNITY AND NOT MADE SUBJECT TO A DETENTION ORDER OR A SUPERVISION ORDER
[CGM] has a history of non-contact and contact sexual offences dating back to 1973, commencing as a juvenile. His offence history suggests chronic, persistent, diverse and escalating sexual offences. Any apparent de-escalation from previous offending is more likely due to supervision conditions and restrictions than being internally motivated.
[CGM] has re-offended when subject to periods of parole, has committed further sexual offences within a few months of release, and committed offences while subject to a Supervision Order and living at Corella Place, a supervised transitional facility. He has committed offences within one month of release. The escalating nature of his offending when in the community (excluding the time on the Supervision Order) remains of critical concern.
[CGM]’s offending has been chronic, uncontained and pervasive and has resulted in [CGM] being free in the community for only six years in his adulthood, with the longest period of time being approximately one year nine months.
[CGM] has been offered extensive, varied and continual intervention from his early adolescence. To date no treatment regime has been eilective or assisted in providing confidence in reducing [CGM]’s risk of sexual re-offending and compromises [CGM]’s capacity to successfully and safely reintegrate into the community.
Intensive ongoing supervision and mandated intervention remains critical. As noted in the body of the report there does appear to have been some treatment gains, albeit this must be viewed with due caution as similar gains have been previously reported with [CGM] reoffending despite reported treatment gains. In reality, given the pervasive nature of his offending, progress if made will be slow.
It is also noted that [CGM] reported significant gains in management of anger and frustration, which is a clear precursor to offending, however, file material appears not to completely accord with his self-reported improvements.
While it is cautiously suggested some apparent progress in treatment has been made, over the period of the Detention Order, ongoing concerns are evident and extensive treatment targets are outstanding. The extent to which treatment gains will be sufficient to contain [CGM]’s offending behaviour should he be returned to a supervised community environment in question. As a starting point [CGM] would need to demonstrate increased capacity to manage anger and stress. [CGM] reports he has achieved this. There does appear to be reduction in the number of incidents however, it is difficult to endorse [CGM]’s report of the past 12 months in the face of charges for Threat to Kill, a change in his capacity to manage anger and stress. The file material provided to the writer does not absolutely accord with [CGM]’s elf-report.
(d) Factors that can increase or decrease any identified risks
A combination of strict supervision and monitoring, removal of access to potential victims, removal of access to internet and technology, together with ongoing psychological and medical interventions will assist in reducing [CGM]’s risk of re offending.
Conversely, placement in an environment that does not provide ongoing supervision, allows access to victims or un-vetted access to technology including phones and internet seek to increase the risk of [CGM]’s re-offending.
SECTION 112 OF THE SERIOUS SEX OFFENDERS (DETENTION AND SUPERVISION) ACT 2009: ASSESSMENT OF THE RISK THAT THE OFFENDER WILL COMMIT ANOTHER RELEVANT OFFENCE IF RELEASED INTO THE COMMUNITY AND NOT MADE SUBJECT TO A DETENTION ORDER OR A SUPERVISION ORDER
[CGM] has a history of non-contact and contact sexual offences dating back to 1973, commencing as a juvenile. His offence history suggests chronic, persistent, diverse and escalating sexual offences. Any apparent de-escalation from previous offending is more likely due to supervision conditions and restrictions than being internally motivated.
[CGM] has re-offended when subject to periods of parole, has committed further sexual offences within a few months of release, and committed offences while subject to a Supervision Order and living at Corella Place, a supervised transitional facility. He has committed offences within one month of release. The escalating nature of his offending when in the community (excluding the time on the Supervision Order) remains of critical concern.
[CGM]’s offending has been chronic, uncontained and pervasive and has resulted in [CGM] being free in the community for only six years in his adulthood, with the longest period of time being approximately one year nine months.
[CGM] has been offered extensive, varied and continual intervention from his early adolescence. To date no treatment regime has been effective or assisted in providing confidence in reducing [CGM]’s risk of sexual re-offending and compromises [CGM]’s capacity to successfully and safely reintegrate into the community.
Intensive ongoing supervision and mandated intervention remains critical. As noted in the body of the report there does appear to have been some treatment gains, albeit this must be viewed with due caution as similar gains have been previously reported with [CGM] reoffending despite reported treatment gains. In reality, given the pervasive nature of his offending, progress if made will be slow.
It is also noted that [CGM] reported significant gains in management of anger and frustration, which is a clear precursor to offending, however, file material appears not to completely accord with his self-reported improvements.
While it is cautiously suggested some apparent progress in treatment has been made, over the period of the Detention Order, ongoing concerns are evident and extensive treatment targets are outstanding. The extent to which treatment gains will be sufficient to contain [CGM]’s offending behaviour should he be returned to a supervised community environment in question. As a starting point [CGM] would need to demonstrate increased capacity to manage anger and stress. [CGM] reports he has achieved this. There does appear to be reduction in the number of incidents however, it is difficult to endorse [CGM]’s report of the past 12months in the face of charges for Threat to Kill, a prison incident that resulted in the loss of employment and reports of expressed anger, refusal to attend supervision and reactive behaviour.
It would appear to the writer that any significant change in the level of supervision or detention would necessarily be contingent on the assessed progress made by virtue of treatment using SSRT's (anti-depressant) medication. Regrettably at the time of assessment there appears to have been no progress with the proposed trials of anti-libidinal medication.
Even if subject to supervision efforts [CGM] remains a high risk of committing relevant offences.[4]
[4]Report of Dr Karen Owen dated 8 June 2016, [237]–[246] (Exhibit 6).
Dr Ong, in his report dated 20 June 2016, dealt with the matters as follows:
Matters Required to be Addressed by Section 112 (1) of the Serious Sex Offenders (Detention and Supervision) Act 2009
In accordance with Section 112 (I) of the Serious Sex Offenders (Detention and Supervision) Act 2009, the following is noted:
Whether or not the offender has a propensity to commit further offences in the future.
Based on my assessment of [CGM], and information available to me, it is my opinion that [CGM] continues to present a high risk of sexual re-offending in the future.
Efforts made by the offender in the previous 12 months or since last review to address causes of the sexual offending behaviour, including whether or not the offender has participated in any rehabilitation or treatment programs
[CGM] has continued to participate in individual treatment with Ms Natasha Shott. This is in relation to offence specific concerns via a cognitive behavioural model (for example attitudes, core beliefs, strategies in regards to emotional regulation, distress tolerance, fantasy management and interpersonal skills).
[CGM] has also been commenced on SSRI antidepressants. These have been prescribed more to reduce obsessional sexual thoughts and impulsivity, rather than depression per se.
The effect of any treatment programs.
As per the previous assessment, [CGM] continues to have gained some significant intellectual insight into his offending behaviour. He has been noted by his clinician to have been more open and seemingly honest during treatment. He has been able to name specific offending related to triggers such as anger and frustration. He has also started to explore cognitions around his target group, his sense of sexual entitlement, and his use of offending to exert his masculinity. [CGM] has also been able to acknowledge his problems with controlling angry responses when frustrated. These have been related to his sexual and nonsexual offending. However, despite this understanding, [CGM] to have ongoing difficulty in demonstrating his ability to implement strategies to reduce inappropriate responses to anger when “in the moment”. When given space and time, he is more able to do so.
[CGM] claims positive benefit from SSRl medication in reducing deviant arousal. This is entirely based on self-report, and is difficult to ascertain for reliability, and the history he gave to minimise sexual arousal compared to the history obtained by, for example, Ms Shott. However, I note that there remain no reports of inappropriate sexualised behaviour since the last review, though clearly [CGM]’s current environment is very much likely to reduce that possibility.
Factors That Can Increase Or Decrease Any Identified Risks.
It is my opinion that factors that can increase the risks for [CGM] continue to include lack of close appropriate supervision and support. This would include monitoring his use of telecommunication devices (including phone and internet access), as well as denying him access to potentially vulnerable victims, usually younger females. He is more likely to offend when angry or frustrated. Once again, this presents a conundrum, as he has previously suggested that the restrictions at Corella Place exacerbated feelings of frustration, contributing to his most recent offences.
[CGM] has demonstrated the ability to engage in individual work carried out by Ms Shott when it is in his interests to do so, though there has been a slip in motivation due to his belief that his recent conviction has sealed his fate in the short term. It would be hoped that [CGM] can be made to see that he needs to re-engage in work arow1d his difficulty with anger management, specifically going through scenarios with him in order to develop better strategies. In addition, [CGM] would benefit from improved ability to access education and recreational activities to maintain hope, and to keep him gainfully occupied. He maintains some appropriate cynicism that authorities have been slow to implement such activities until impending Court.
[CGM] has had some subjective benefit from a trial of SSRI antidepressants in order to reduce impulsivity and obsessional sexual thoughts. Given the chronicity of his offending, it is unlikely that this intervention alone would be sufficient to reduce his risk of reoffending. He has signalled some willingness to consider are-challenge with anti-libidinal medication. He awaits an endocrinology review.[5]
[5]Report of Dr Kevin Ong dated 20 June 2016, 18–20 (Exhibit 1).
Dr Sullivan, in his report dated 2 September 2016, said under the heading “Opinion and Recommendations”:
Opinion and Recommendations
[78][CGM] is a 57-year-old single man currently subject to a Detention Order, which is to be reviewed. His upbringing, education and employment were essentially unremarkable, and [CGM] has previously managed to develop and sustain adult intimate relationships over some years, and father children. However, he has spent most of his adult years imprisoned for sexual offences.
[79]I consider that [CGM] would likely satisfy a diagnosis of heterosexual paedophilia, based on repeated contact and non-contact offences against underage girls over a number of years, with some evidence that he fantasises about this age group and most recently sought this group as the target of offensive telephone calls. Given his capacity for past sexual relationships with adult females, the paraphilia would be described as non-exclusive.
[80]I note continued evidence of personality vulnerabilities, which include: empathy deficits (limited capacity for emotional appreciation of distress caused to his victims); impulsivity (self-defeating outbursts in response to minor frustrations and setbacks; sexual offending without clear preceding sexual arousal); mood dysregulation (difficulty recognising and managing negative mood states); and interpersonal problems (disconnection from others). These include overlapping borderline (emotionally unstable) and antisocial (dissocial) personality traits. He would be categorised as having a mixed personality disorder, as specified in the International Classification of Diseases, 10th Revision (ICD-10).
[81]There is no clear indication that [CGM] has ever experienced psychotic symptoms, significant mood disorder, substance abuse or has clinically significant cognitive impairment.
[82][CGM]’s offending remains difficult to understand, both to [CGM] and others. His progress in recent treatment shows perhaps an increased ability to reflect upon his management of cognitions and emotions which may precede offending or behavioural outbursts. His earliest offending involved exhibitionism and sexualised property damage. His most severe offending has involved violent and sexual assaults on girls in public places, with the use of physical force to subdue victims. Interspersed with these offences, and most recently, are episodes of telephone harassment of girls, with threats and sexualised comments. The impression is of polymorphous sexual offending against females, particularly underage females. In recent years, incarceration and supervision have restricted his access to victims and there has been no contact offending.
[83]His treatment needs remain. Many who have assessed or treated [CGM] note that he has undergone much treatment, yet continues to have difficulty applying the skills and strategies he has learnt. While he is subject to a Supervision Order or Detention Order, I consider it important that [CGM] is provided further offence-specific treatment and note that Ms Shott has suggested a range of appropriate targets for treatment.
[84]He reports some subjective improvement since commencing an SSRI medication, particularly reporting reduced irritability. I understand that [CGM] is in the process of further consideration of anti-libidinal medication. This may have health complications for [CGM], but it is difficult to see what other effective interventions would offer him the opportunity of future community access without some risk of recurrence of sexual offending. [CGM] is in the unfortunate situation of a forced choice, for it is unlikely that without anti-libidinal medication he will ever be free of a Supervision or Detention Order. Nevertheless, if this can reduce the putative role in his offending of sexual fantasy, or the paired association of negative mood with sexual arousal, then it may well be worthwhile for him.
[85][CGM] in my opinion remains at high risk of committing a relevant offence if released into the community and not made subject to a Detention Order or Supervision Order. I base my opinion on his long and diverse history of sexual offending and ongoing relevant risk factors. Despite engagement in appropriate treatment, [CGM] continues to report and demonstrate difficulty in applying strategies which will effectively contain his offending risk.
[86]However there has been only one set of relevant offences since maintenance on a Supervision Order. Maintaining [CGM] on a Detention Order contains his risk of sexual offending, but may not permit any testing of his capacity to use strategies to address offending risk. [CGM] thus will always be perceived to be at high risk, despite some gains in treatment and the effects of ageing, both of which are likely to reduce his propensity for offending. Maintenance on a Supervision Order would offer greater opportunity for [CGM] to employ his learning and demonstrate his progress. I consider this would come with a modest increase in the risk of non-contact offending, and a low risk of opportunity for contact offending, given the risk mitigation strategies which are, and could be, employed on a Supervision Order.[6]
[6]Report of Dr Daniel Sullivan dated 2 September 2016, [78]–[86] (Exhibit 7).
The applicant also filed affidavits from Sarah Miles and Brendan Money.
All of the witnesses gave evidence before me and either their reports or their affidavits were tendered and they were cross-examined.
In general the contention between the parties became that the Director maintained that, on the whole of the material, I should be satisfied that the risk of the respondent committing a relevant offence would be unacceptable unless a detention order were made.
On the other hand, it was submitted by the respondent that I should not be so satisfied. In particular, it was submitted that the respondent could reasonably be dealt with by way of a supervision order conditional on the respondent residing at Corella Place.
Although this case does not fall to be determined on the basis of the differences which exist between the position when the detention order was renewed and the present time, it is nonetheless relevant. It is accepted that, prior to the respondent’s being placed on the detention order in October 2014, he had not received any intensive one-on-one treatment. It was also accepted that he had responded to that treatment although there are still issues about the degree to which he could be said to have insight. It is not suggested that the success is anything other than qualified.
It is a major aspect of the respondent’s offending in the past the he had been driven by frustration and anger. It had been decided that the respondent should be trialled on anti-depressant medication in the hope that the medication would reduce his impulsivity and anger levels. It was also hoped that it would assist in the respondent developing strategies to manage the above matters. Since commencement of the medication there have been two episodes of inappropriate “anger responses”. One leading to charges of threat to kill, and the other the loss of his “job” at Hopkins Correctional Facility. The respondent has self-reported that he does find the anti-depressant medication helpful and he also self-reported that the continuation of sexual fantasies related to memories of his earlier offending. It follows that there has been some progress in the last twelve months. Although it is not measurable in any meaningful way, it is present.
The other matter which was in contemplation at the time of the review was the probability of the respondent receiving a course of anti-libidinal medication. When the respondent had used such medication in the past it caused him to develop significant diabetes. It does now appear that the applicant will be able to resume taking anti-libidinal medication but that medication will have to be managed in the context of his diabetes and his health generally. I received a copy of a letter from the endocrinology department at St Vincent’s Hospital containing information about such medication and its management. The respondent informs the Court that the treatment has commenced.
An examination of the material leads to the conclusion that in the two years the respondent has been subject to the detention order there have been both positives and negatives for the respondent.
The respondent is a prisoner and as such has access to the Hopkins Correctional Facility. He is permitted to have contact with other prisoners in the facility but they cannot enter Greenhills where he resides. He has access to work and, although he lost work previously because of his behaviour he now has work as a fork lift driver which he regards as positive. He also has access to educational programs. While it seems fair to say that he has been ambivalent about the programs, he is engaged in a course at the present time.
There were two aspects of the evidence of the witnesses Brendan Money[7] and Sarah Miles[8] which were said to be particularly relevant to this application.
[7]Assistant Commissioner, Offender Management, Corrections Victoria.
[8]General Manager, Sex Offender Management Branch, Corrections Victoria.
The fact was that the security at Corella Place was such that the containment of the respondent could not be guaranteed irrespective of conditions imposed or any supervision order. I might add that it would be inappropriate to impose conditions or a supervision order which tended to give effect to a supervision order as though it was in reality a detention order. The respondent could not be stopped leaving Corella Place. The evidence also made it clear that it would be very difficult to prevent the respondent from having access to electronic devices because most of the other supervisees at Corella Place have access to both mobile phones and computers. That is relevant in the context that the respondent offended when last at Corella Place through having access to other persons’ mobile phones.
The second aspect of Corella Place is that there is no work available and there is no access to education programmes. Corella Place is not a prison. The residents are not prisoners and the usual programs made available for prisoners are not available.
The absence of work and educational programmes would not, in simple terms, be taken to be a reasons for making a detention order over a supervision order but it does have relevance in the following way.
The respondent’s control over his impulsive behaviour and his tendency to react angrily to the situation he feels himself in does appear to be improved in circumstances where he is able to more usefully occupy his time.
A transfer onto a supervision order in absence of work and other supports might well doom the respondent to failure.
It was submitted by the applicant that I should be satisfied of the matters in s 36(1) of the Act, ie that since it is not contested that the respondent is an unacceptable risk of committing a relevant offence unless placed on a detention order or supervision order (s 35(1)), I ought also be satisfied that the risk of the respondent committing a relevant offence would be unacceptable unless a detention order is made. That submission is based on a thorough analysis of the history of the respondent and the material submitted in support of the application and the inadequacies of Corella Place to deal with the respondent.
The respondent submitted that I should be satisfied that such unacceptable risk as exists can be satisfactorily managed under a supervision order. It was submitted that I should be cautious to act on the assessment arising out of STATIC and RSVP. The respondent emphasised the nature of the detention order and the detrimental effect which such an order has on his rights. It was also emphasised by the respondent that he not been involved in contact offending for many years. Substantial emphasis was placed on Dr Sullivan’s recommendation that the best way to assess the respondent’s ability to regulate his own behaviour would be to put to the test while the respondent was on supervision order at Corella Place.
It appears to be common ground that the respondent has over the years been more likely to offend when subjected to anger, frustration and boredom.
As I have already observed, there appear to have been two clear incidents in the two years the respondent has been on the order. One by a threat to kill and the other being a “blow up” over work causing him to give up work for a time although in his affidavit Brendan Money identifies other incidents.[9] It appears that the respondent did not work between September 2015 and September 2016. Although the incidents were not major, they were a hostile response to relatively minor matters.
[9]The respondent refused to attend supervision for a period of time and was abusive to staff and several others (see Exhibit 2 [43.3 and 43.4]).
A reasonable analysis of the material about the sessions the respondent has had with Natasha Shott, his treating psychologist, demonstrates that the respondent has made been some progress.[10]
[10]See BFM-10 of the Affidavit of Brendan Money (Exhibit 2).
It is fair to say that a thorough examination of the material in Natasha Shott’s report reveals that the position of the respondent remains largely unresolved.
I accept that since 2014 there has been some improvement based upon a more carefully designed and operated regime for him. Such improvement cannot be in any sense described as significant.[11] It appears that the respondent is prepared to develop a coping mechanism and gains some advantage from taking antidepressant medication designed to reduce his impulsivity.
[11]The respondent started from a very low base and any improvement is welcome. Future improvement is also likely.
The respondent will now undertake a course of anti-libidinal medication and the results of that will have to be assessed in the future.
His age and medical condition are such that his general sexual drives are reduced.
I am not sure that the respondent is necessarily committed to undertake new educational tasks. I accept that access to these programs may be difficult for him even at Greenhill.
It is conceded that the alternative to a detention order is a supervision order with a condition to reside at Corella Place. Dr Sullivan suggests that if that were to be done it would be a means of testing the respondent’s ability to resist impulsivity. The difficulty is that the changes between Greenhill and Corella Place are quite significant. It would be more appropriate to have a higher degree of satisfaction about the use of such mechanisms before such a change. It is true to say that those mechanisms will eventually have to be put to the test but I regard the position as not sufficiently advanced to be put it to the test now.
There is a danger in this case that the relatively small steps forward by the respondent who has shown very little if any improvement in the past be rated as more significant than they actually are.
It seems to me that in the next year while remaining at Greenhill the respondent can engage in what he regards as meaningful work. He can continue his sessions with a psychologist, and continue to improve his insight into offending and further develop his coping mechanisms. He can start his course of anti-libidinal medication. He can, as best as he is able, undertake further educational programs.
For a long period of time the prospects of the respondent must have been regarded as hopeless. That can no longer be said. His treatment should proceed on the basis that in the future there may well be such progress that a detention order is not justified. Such treatment needs in part to address the differences between Greenhill Detention Precinct and its programmes and Corella Place, particularly in the perception of the respondent. Corella Place is designed to transition serious sexual offenders back into the community. I am not satisfied that the respondent is ready for that step.
Just what signs of progress are necessary is a matter for the Director of Public Prosecutions and/or any judge who has to consider the matter, when and if any further application is made.
It seems to that for a number of complex reasons, many of which are not to do with the respondent, the situation is not much different from the situation as it was when Rush J considered the matter 12 months ago.[12]
[12]See the affidavit of Brendan Money (Exhibit 2) [43]–[52] and its exhibits BFM-9 and BFM-10.
At the present time, I am satisfied to a high degree of probability that the risk of the respondent committing a relevant offence will be unacceptable unless a detention order is made.
I order that the detention order be renewed for 12 months.
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