Director of Public Prosecutions v CGM

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. S CR 2014 00059

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
CGM	Respondent

NOTE: This proceeding is subject to a suppression order regarding identification

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JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 - 30 July 2014 and 1 August 2014
DATE OF JUDGMENT:	30 September 2014
CASE MAY BE CITED AS:	DPP v CGM
MEDIUM NEUTRAL CITATION:	[2014] VSC 485	First Revision: 30 September 2014

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PUBLIC LAW – Application for a detention order – Respondent accepts he is an unacceptable risk of committing a ‘relevant offence’ if a detention order or supervision order is not made – Whether appropriate order is a supervision order or a detention order - Whether the risk of the respondent committing a relevant offence would be unacceptable unless a detention order was made – Consideration of the risk presented by the respondent - Hopkins Correctional Centre - Greenhill Detention Precinct - Corella Place transitional accommodation facility – Detention order made for a period of two years – Director of Public Prosecutions v JPH (No 2) [2014] VSC 177 – Nigro & Ors v Secretary to the Department of Justice [2013] VSCA 213 - Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) ss 9, 33, 35, 36, 37, 42, 65, 73 and 115.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. Rose QC with Ms J. Davidson	Office of Public Prosecutions
For the Respondent	Mr J. McLoughlin with Mr P. Smallwood	Victoria Legal Aid

HIS HONOUR:

Introduction

This application is brought by the Director of Public Prosecutions (‘DPP’) pursuant to s 73(3) of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) (the ‘Act’). The DPP seeks a detention order in respect of CGM (the ‘respondent’).

The respondent is currently serving a custodial sentence[1] which is due to expire on 16 October 2014, for offences committed in June 2011. These offences were committed while the respondent was subject to a supervision order[2] made pursuant to s 9 of the Act. Despite being incarcerated, the respondent remains subject to that supervision order. In this application, the DPP is seeking to replace the supervision order with a detention order.[3]
[1]On 14 November 2011 in the Geelong Magistrates’ Court, the respondent was sentenced to three years and four months’ imprisonment with a non-parole period of two years to commence on 14 November 2011 in respect of ten charges of using a carriage service to menace, harass or cause offence pursuant to s 474.17.1 of the Criminal Code Act 1995 (Cth).
[2]On 9 October 2012 in the Supreme Court of Victoria, the respondent was convicted of breaching a supervision order and sentenced to a total of nine months’ imprisonment, with that sentence to commence on 20 January 2013. This sentence has been served.
[3]The Secretary of the Department of Justice applied for review of the supervision order pursuant to s 65 of the Act. However, that review was stayed when the DPP made this application for a detention order.

The DPP seeks a detention order on the basis that the respondent ‘poses an unacceptable risk of committing a relevant offence if a detention order … is not made and the offender is in the community’.[4] The DPP submits the risk of the respondent committing an offence is unable to be managed under the current or any other supervision conditions. The period of detention sought by the DPP is three years.
[4]The Act s 35(1).

Mr J McLoughlin, counsel for the respondent, did not contest that the respondent poses an unacceptable risk of committing a relevant offence if a detention order or a supervision order is not made.[5] However, Mr McLoughlin contended that the appropriate order should be a supervision order rather than a detention order. Accordingly, this review requires an assessment of the effectiveness of both a supervision order and detention order in managing the risk of the respondent committing a relevant offence. In other words, the Court must consider whether there is an unacceptable risk of the respondent committing a relevant offence as defined in the Act[6] unless a detention order is made.
[5]Transcript at 235.8 – 235.14.
[6]‘Relevant offence’ means an offence listed in Schedule 1 of the Act. This is described in further detail later in these Reasons.

If this application is successful, the respondent will be detained within the Hopkins Correctional Centre at Ararat. At his election, the respondent would be housed in purpose built detention accommodation within the gazetted prison grounds (the ‘Greenhill Detention Precinct’) or within the general prison population. If a supervision order is made, the respondent will be housed at Corella Place, a transitional accommodation facility adjacent to but outside the Hopkins Correctional Centre. It is also open to the Court to make no such order at all.

Statutory framework

The Act has two objectives, as expressed in s 1, in respect of serious sex offenders:

(1)The main purpose of this Act is to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision.
(2)The secondary purpose of this Act is to facilitate the treatment and rehabilitation of such offenders.

Pursuant to s 73(3) of the Act, on review of a supervision order the DPP may make an application to the Court for a detention order if the DPP considers that a detention order should be made in respect of the offender. If the Court makes a detention order it must revoke the supervision order.[7] Alternatively, if the Court does not make the detention order, it may confirm (subject to the supervision order being varied in respect of its conditions or term) or revoke the existing supervision order.[8] The supervision order remains in force until the determination of any such application.[9]
[7]The Act s 73(5).
[8]Ibid s 73(6) and (9).
[9]The Act s 73(7).

An offender, who is the subject of a supervision order, resides in the community, subject to conditions imposed by the Act and the Court.[10] The primary purpose of the conditions is to ‘reduce the risk of re-offending by the offender’, whilst the secondary purpose is to ‘provide for the reasonable concerns of the victim or victims of the offender in relation to their own safety and welfare’.[11] The Court must ensure that any conditions imposed in respect of a supervision order (other than the core conditions) ‘constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions’ and ‘are reasonably related to the gravity of the risk of the offender re-offending’.[12] The Court must also consider imposing conditions relating to where the offender may reside (including whether he or she may reside at a residential facility), and the times at which the offender must be at his or her place of residence.[13]
[10]A supervision order is subject to core conditions imposed under s 16 of the Act and any other conditions imposed by the Court under Division 3 of Part 2 of the Act pursuant to s 15 of the Act.
[11]The Act s 15(3) and (4).
[12]Ibid s 15(6).
[13]Ibid s 17(1).

Conversely, an offender, who is the subject of a detention order, is detained in a prison for the term of the order.[14]
[14]Ibid s 42.

In determining whether an application for a detention order should be successful, the Court is required to consider s 35 of the Act. This section prescribes that the Court must, firstly, 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. Section 3 of the Act defines ‘relevant offence’ to be those listed in Schedule 1 of the Act. For the purposes of this application, relevant offences include rape, sexual penetration of a child under 16, indecent assault, assault with intent to rape, abduction or detention, using a carriage service to procure persons under 16 years of age and using a carriage service to ‘groom’ persons under 16 years of age. Importantly, attempts to commit any relevant offence are also covered under Schedule 1 of the Act.

Section 35 provides:

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.
(2)In determining whether the offender is likely to commit a relevant offence in the circumstances described in subsection (1), the Supreme Court must, subject to this Division, have regard to—
(a)any assessment report or progress report filed in the Court, whether by or on behalf of the Director of Public Prosecutions or the offender; and
(b)any other report made, or evidence given, in relation to the application; and
(c)anything else the Court considers appropriate.

(3)In determining whether or not the offender poses an unacceptable risk as set out in subsection (1), the Supreme Court must not consider the means of managing the risk or the likely impact of a detention order or supervision order on the offender.
(4)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.
(5)The Director of Public Prosecutions has the burden of proving that the offender poses an unacceptable risk as set out in subsection (1).

As stated above, Mr McLoughlin did not contest that the respondent poses an unacceptable risk of committing a relevant offence if a detention order or a supervision order is not made. For reasons further explained in paragraphs 71 to 81 below, I am satisfied that concession was properly made. Accordingly, the Court must determine in accordance with s 36 of the Act whether there is an unacceptable risk of the respondent committing a relevant offence unless a detention order is made.

Section 36 provides:

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 DPP acknowledges that it bears the onus of satisfying the requirements of s 36 of the Act.[15]
[15]DPP’s Exhibit 9 (DPP-9), Submissions of the DPP, at 3. See also Director of Public Prosecutions v JPH (No 2) [2014] VSC 177 at [19] (T. Forrest J).

The Court may only make a detention order, in accordance with s 36(1) of the Act, if it is satisfied by ‘acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the decision’ to impose a detention order.[16]
[16]The Act s 37.

It is also relevant to consider the status of offenders who are made the subject of a detention order, as contained in s 115 of the Act:

Status of offender on detention orders or interim detention orders
(1)An offender in custody in a prison under a detention order or interim detention order must be treated in a way that is appropriate to his or her status as an unconvicted prisoner subject to any reasonable requirements necessary to maintain—
(a)the management, security and good order of the prison; and
(b)the safe custody and welfare of the offender or any other prisoners.

(2)Except as provided in subsection (3), an offender in custody in a prison under a detention order or interim detention order must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving custodial sentences.
(3)An offender may be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving custodial sentences—
(a)if it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation and other group activities of this kind; or
(b)if it is necessary for the safe custody or welfare of the offender or prisoners or the security or good order of the prison; or
(c)if the offender has elected to be so accommodated or detained.

The Act requires that both detention and supervision orders be reviewed regularly.[17]
[17]The Act ss 65 and 66.

Unacceptable risk and prior sexual offending

Integral to the Court’s assessment as to whether a supervision or detention order should be imposed is the concept of ‘unacceptable risk’. The Court of Appeal, in Nigro & Ors v Secretary to the Department of Justice (‘Nigro’),[18] held that the test for unacceptable risk is contingent upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates.[19] The Court went on to explain that the gravity of the consequences, if the risk were to eventuate, is the ‘critical factor’:

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.[20]

[18][2013] VSCA 213.

[19]Ibid at [125] (Redlich, Osborn and Priest JJA).

[20]Nigro [2013] VSCA 213 at [130] (Redlich, Osborn and Priest JJA).

In Nigro, the Court described the legislature as seeking ‘…to achieve a balance between the offender’s rights and the rights of members of the public to be protected against the risk of the offender committing further sexual offences. When the degree of risk and its nature makes it unacceptable has been left to the courts to determine’.[21]
[21]Ibid at [103].

The respondent is currently serving a custodial sentence and is therefore an ‘eligible offender’ under s 4(3) of the Act. No issue was taken as to the ‘relevance’ of the risk meaning that on the basis the respondent presents a risk, it is a risk of committing a relevant offence. The Court is required to examine the nature of the risk the respondent currently presents in order to accurately assess Corrections Victoria’s capacity to manage such risk by either a supervision order or a detention order.

In this application, the DPP relied upon the evidence of expert witnesses Dr Kevin Ong,[22] consultant forensic psychiatrist, and Dr Karen Owen, consultant forensic and clinical psychologist, together with the evidence of two employees at Corrections Victoria; Mr Andrew Reaper,[23] Deputy Commissioner of the Offender Management Branch, and Ms Sarah Miles,[24] Acting General Manager of the Sex Offender Management Branch.
[22]DPP-1, Affidavit of Dr Kevin Ong sworn 10 July 2014 which, amongst other things, exhibited his psychiatric assessment report dated 3 July 2014 at Exhibit ‘KO-1’ (‘Ong Report’).
[23]DPP-5 and DPP-6, two Affidavits of Andrew Reaper sworn 27 June 2014. The factual material contained in these affidavits were largely uncontradicted and unchallenged.
[24]DPP-7, Affidavit of Sarah Miles sworn 27 June 2014. Similar to the affidavits of Mr Reaper, the facts contained in this affidavit were largely uncontradicted and unchallenged.
The DPP also relied upon the affidavits of Ms Colleen Bell affirmed 15 May 2014[25] and 26 June 2014[26] comprising multiple volumes of exhibited material, including the assessment reports of Dr Owen.[27] This material was provided to Dr Ong and Dr Owen for consideration in preparation of their assessments.
[25]DPP-3.
[26]DPP-2.
[27]See the ‘Detention and Supervision Order Assessment Report of Dr Karen Owen‘ dated 4 February 2014 (‘Owen Report’), which is exhibited to DPP-3 at Exhibit ‘CLB-1’. See also the ‘Detention and Supervision Order Assessment Report – Addendum’ of Dr Karen Owen dated 6 April 2014 (‘Owen Addendum Report’), which is exhibited to DPP-3 at Exhibit ‘CLB-2’.
The respondent relied upon the evidence of expert witness Dr Daniel Sullivan, forensic psychiatrist. Dr Sullivan, in his evidence, referred to his assessment report concerning the respondent dated 17 July 2014.[28]
[28]Respondent’s Exhibit 3 (RESP-3).
The respondent is 56 years old with an extensive history of both sexual and non-sexual offending. The respondent’s sexual offence history is imperative to an assessment of the respondent’s current risk assessment. For this reason, I set out a summary of the respondent’s relevant sexual offending below.[29]
[29]It was accepted by Mr McLoughlin that the offence history of the respondent, as outlined in DPP-7 at [39], was accurate: see Transcript 218.8 – 218.15. Accordingly, the summary of the respondent’s relevant sexual offending contained in these Reasons largely reflects what is stated in that affidavit. Details of other non-sexual offences have not been included.
The respondent has committed numerous sexual offences over an approximate 40 year period including obscene exposure, indecent assault, rape, attempted rape, kidnapping, inflicting grievous bodily harm, aggravated indecent assault, making threats to kill, abduction of a child under 16 years and using a telephone to menace and harass another.
In May 1973, when the respondent was 15 years old, he was convicted of wilful damage, larceny from dwelling and being unlawfully on premises. The circumstances of this offending included entering a neighbour’s house and ripping the clothing and beds of two girls residing in the house.[30] He at no time entered the boys’ bedrooms. He was placed on probation for 52 weeks. Later that year, in October, the respondent was convicted of obscene exposure after exposing himself to a seven year old girl who was riding past his house on a bicycle. The respondent was placed on probation for another 52 weeks.
[30]While these offences are not considered to be sexual offences, the circumstances of the incident, namely the respondent’s focus on the clothing and beds of the girls in the house, warrant its inclusion in these Reasons.

In March 1974, the respondent was convicted of larceny in a dwelling for which his probation was extended. The offence was committed in the same property as the offences on 15 May 1973.
In November 1974, the respondent was convicted of indecent assault, burglary, assault, larceny, obscene exposure and being unlawfully on premises, for which he was sentenced to six months detention in a youth training centre. No details of the indecent assault are available other than the victim being a girl.[31]
[31]DPP-7 at [39(e)].
In May 1975, the respondent was convicted of assault and indecent assault for incidents which included the reported touching of two women on their genitalia as he was riding past them on a bicycle, and later that day, attempting to indecently assault a girl.[32] He was placed on probation for 52 weeks. In July 1975, the respondent was convicted of obscene exposure after exposing himself to two young girls in a female toilet at a primary school. The respondent received a fine of $100. Later that year, in September, the respondent was again convicted of obscene exposure and fined $100, for exposing himself to a girl and indicating that he was going to have sex with her.
[32]Ibid at [39(h)]. See also Owen Report at [110].
In October 1977, the respondent was convicted of indecent assault, assault with a weapon, and two charges of obscene exposure after exposing himself to two young girls and, later that same day, intercepting an eight year old girl, removing her clothes and digitally penetrating her vagina. During the incidents the respondent was carrying an inoperable rifle. The respondent was sentenced to a six month jail term for each assault charge, to be served concurrently, and 14 days on each charge of obscene exposure.
In April 1978, the respondent was convicted of wilful and obscene exposure after exposing himself to three young girls. The respondent was fined $200.
In August 1981, the respondent was convicted of wilful and obscene exposure after he noticed two 12 year old girls riding their bicycles on a country road and exposed himself to them. The respondent was fined $400.
In September 1982, the respondent was convicted on two charges of aggravated indecent assault and unlawful assault for an incident which involved the respondent dragging a nine year old girl from her bicycle and digitally penetrating her vagina.[33] The respondent was sentenced to five years’ imprisonment with a non-parole period of three years.
[33]DPP-7 at [39(x) - (y)] and Owen Report at [115]. The respondent also forced his penis into the victim’s mouth and struck her across the face when she spat it out.
In December 1984, the respondent was convicted on two charges of rape, attempted rape, maliciously inflicting grievous bodily harm and kidnapping. The circumstances involved the respondent abducting a 16 year old girl from a footpath by striking her over the head with a tyre lever and driving her to a deserted location at a beach. The respondent then took off her clothes and raped her vaginally and anally with his fingers whilst the victim was unconscious. The respondent then laid the victim in a hole and covered her with branches.[34] The respondent was sentenced to a total of ten years’ imprisonment with a non-parole period of eight years.
[34]Owen Report at [117]. The victim was also penetrated with sticks.
In February 1993, the respondent was convicted of indecent exposure and unlawful assault after exposing himself to a 16 year old girl. He was sentenced to four months’ imprisonment.
Between 1994 and 1995, the respondent made a number of obscene phone calls to young females whom he had identified and tracked from photographs published in Geelong newspapers. During one telephone call he said to a victim, ‘my mates and I are going to come with our weapons and we are going to tie you up and rape you and I am going to fuck you till you die’.[35] The respondent was convicted of making a threat to kill and several charges of using a phone service to menace, harass or offend, and was sentenced to four years’ imprisonment with a two year non-parole period.
[35]DPP-7 at [39(ww)] and Owen Report at [121].
In October 1998, the respondent was convicted of indecent assault and abducting a child under the age of 16 years with the intention to sexually penetrate. In the incident, the respondent, whilst returning from a compulsory appointment with a psychologist, snatched a ten year old girl from a group of about six young children who were walking along the footpath of the main street in Skipton, Victoria. The respondent picked up the victim with his hand between her legs, placed the victim on a nearby grassy area and proceeded to rub her vagina and crutch area. The other children saw the incident and ran towards the respondent screaming at him to release the victim, at which point the respondent walked away. He was sentenced to ten years and six months’ imprisonment with a non-parole period of nine years.[36]
[36]This sentence was subject to an appeal, which was heard by the Supreme Court of Victoria in 2000. The sentence was upheld.
In January 2001, the respondent was convicted of using a postal service in an offensive manner after sending letters containing references to sexual acts with the recipients including group, oral and anal sex. The respondent was sentenced to two months’ imprisonment.
In March 2010, the respondent was made the subject of an interim supervision order which imposed numerous conditions on him, including that he reside at Corella Place.[37] Later that year, in December, the respondent was made the subject of a supervision order which imposed similar conditions upon him.[38]
[37]DPP-7 at Exhibit ‘SM-3’.
[38]Ibid at Exhibit ‘SM-4’.
In 2011, the respondent was convicted of using a carriage service to offend and harass after making numerous obscene telephone calls to male and female children between the ages of ten and 16[39] and adult females between the ages of 20 and 71; this while he was a resident at Corella Place. He was sentenced to three years and four months’ imprisonment with a non-parole period of two years.
[39]The charges in respect of two girls involved the respondent obtaining their telephone numbers from a telephone book after having seen their photos in the Geelong Advertiser.
In 2012, the respondent was convicted of a breach of his supervision order (in respect of the conviction referred to above) for which he was sentenced to nine months’ imprisonment.
Assessment reports and evidence

Dr Ong, an experienced forensic psychiatrist, interviewed the respondent via video link on 20 June 2014. He had previously assessed the respondent in March 2011 for the purpose of assessing his suitability for anti-libidinal treatment.

Dr Ong was of the opinion that there was no evidence of the respondent having any major mental illness to account for his offending. Dr Ong observed that whilst the respondent maintained his offences were caused during periods of impulsivity, anger and frustration, this had not always been the case, and that his most recent offences (the offences of making telephone calls whilst a resident at Corella Place in 2011) demonstrated ‘clear planning’ in the sense of obtaining a mobile phone and looking up names and numbers of victims which he derived from a newspaper photo.[40]
[40]Ong Report at 13. See also Transcript at 14.1.

Dr Ong noted multiple attempts at intervention over many years had failed to modulate the respondent’s sexual offending. He said there was little in his developmental history to explain his offending. Dr Ong stated:

It is likely that only a combination of strict supervision and monitoring, removal of access to potential victims together with ongoing attempts at psychological and medical interventions will have any hope of reducing [the respondent’s] risk of re-offending.[41]

[41]Ong Report at 19.

Dr Owen had undertaken a previous assessment of the respondent in 2009. In all, she had interviewed the respondent on five occasions, the most recent on 4 February 2014. Dr Owen, like Dr Ong, could not identify factors to explain the onset of the respondent’s offending behaviour. She stated in her report:

It appears clear that there are precursors related to anger and frustration, however, the steps between those feelings and [the respondent] using sexual behaviour to deal with unpleasant feelings remain elusive, with [the respondent] saying that he can provide no insight into how this occurs.[42]

[42]Owen Report at [65].

This inability to explain conduct is despite the respondent recently completing 51 sessions of a Skills Based Intervention Program aimed at providing victim empathy and strategies to overcome high risk thoughts, feelings and behaviours.

Dr Owen, like Dr Ong, observed that there was little in the way of background features to explain the respondent’s offending. There was nothing to suggest major mental illness.[43] What was apparent, she said:

…is that [the respondent’s] offending is demonstrative of entrenched deviant arousal, with possible sadistic interests. He has a significant profile of antisocial personality traits and these have been recognised over a 30 plus year history of psychological and psychiatric intervention.[44]

[43]Transcript at 68.22.

[44]Owen Report at [297(e)].

Dr Owen concluded on this aspect that the respondent attempts to present a picture of compliance, but has no ability to curtail what she considered is the high risk of relevant sexual offending.[45] She assessed the most likely risk:

…in the absence of supervision (or concealed while under supervision) [the respondent] will seek opportunity to make contact either by phone, letter or direct contact with an adult or child female in order to offend…While subject to supervision, it is more likely that non-contact offences will occur.[46]

[45]Ibid at [279] – [280].

[46]Owen Report at [282] and [284].

Dr Owen believed that, absent supervision, there was a high risk of the respondent perpetrating contact penetrative offences against an adult woman or child, with potential presence of violence and use of weapons to gain compliance.

Dr Owen noted that the respondent had completed many forms of treatment over an extended period of time without success. Prognosis for success of further treatment, she believed, was poor.[47]
[47]Ibid at [289] and [297(d)].

Dr Owen referred to the prospect of the respondent re-offending whilst subject to supervision and whilst having immediate access to intervention support. In her opinion, his history provided a strong basis to think that the respondent, even if under strict supervision, remained a high risk of committing relevant offences. In fact, as Dr Owen noted, the respondent identified the restrictions of the supervision order at Corella Place as the precursor of his most recent offending.[48] Dr Owen was of the opinion that a supervision order with increased conditions would lead to levels of frustration and anger that would exacerbate the potential risk of re-offending. This, she said, was a real and concerning possibility. Dr Owen concluded:

…given that Corella Place is supervised as opposed to a contained environment, I am of the opinion that placement in an environment such as Corella Place is insufficient to contain [the respondent’s] high risk status.[49]

She repeated this opinion during cross-examination, stating that the level of supervision at Corella Place was not sufficient to manage the likely increased frustration as a consequence of a stricter supervision regime.[50]

[48]Owen Addendum Report at [6].

[49]Ibid at [9]; Transcript at 148.5 - 148.16.

[50]Transcript at 153.9 - 153.13.

In the opinion of Dr Owen, there had been an escalation in the seriousness of the offences committed by the respondent over time. Whilst she acknowledged the most recent offences were less serious, she believed this had been achieved only because the respondent had effectively been in custody, under an imposed supervision regime in recent times, not because of any change or ability to control his impulsive behaviour. Dr Owen believed the nature of any re-offending would depend upon the level of supervision.[51]
[51]Transcript at 72.22 - 72.31.

Dr Sullivan provided a psychiatric assessment on 17 July 2014. He had previously assessed the respondent in 2010 and 2011.

Dr Sullivan observed that risk scenarios concerning the respondent are difficult to determine due to diverse offending types and because the respondent has been under supervision in prison for many years. He stated that the respondent:

…demonstrated propensity to commit relevant offences. This propensity is demonstrated in a recurrent history of impulsive or opportunistic offending, persistence of offending despite constraints on his behaviour, contact and non-contract offending, and a poor response to treatment.[52]

[52]RESP-3 at [64].

Dr Sullivan referred to two main concerns regarding the respondent: impulsive and opportunistic violent contact offences against female strangers, likely minors; and offensive behaviour such as exposing himself, or more recently, making obscene phone calls. Dr Sullivan believed the likelihood of contact offences would be reduced by supervision.[53]
[53]Ibid at [55]; Transcript at 195.20 - 195.25.

Dr Sullivan, in evidence, stated that the type of supervision order that the respondent had previously been under (at Corella Place) would be satisfactory to address a risk of contact offending.[54] In his opinion, the lack of any history of the respondent attempting to abscond when previously at Corella Place made the risk of serious offending unlikely.[55] Nevertheless, he said there remained an increased risk of relevant offences being committed by the respondent in circumstances of stress and anger. The respondent was at high risk in such circumstances of ‘opportunistic violent contact offences against female strangers, likely minors’.[56]
[54]Transcript at 188.9 - 188.12 and 196.11 - 196.16.
[55]Transcript at 196.12 – 196.15 and 196.23 – 197.7.
[56]Ibid at 212.2 – 212.10.

Dr Sullivan stated that if the respondent was to be subject to a supervision order, such supervision would need to be ‘close supervision’ – if there was access to the community, it would need to involve a person (escort) ‘close by’.[57] If the respondent was to be placed at Corella Place, Dr Sullivan envisaged that he should be ‘under observation and where possible, to reduce access to the sorts of things like mobile telephones that might be difficult to police at times’.[58] When asked if a condition of residency at Corella Place be that the respondent not use a telephone, Dr Sullivan agreed that other residents at Corella Place were allowed telephones and there was nothing to prevent a resident providing telephone access to the respondent.[59] Dr Sullivan stated that he did not believe the history of previous offences where the respondent had used a telephone demonstrated a predilection for ‘grooming’ in that the respondent made little effort to engage in any significant conversation; he did not seek to build relationships.[60]
[57]Ibid at 207.25.
[58]Ibid at 208.6 - 208.10.
[59]Ibid at 208.16 - 208.21.
[60]Ibid at 210.20 - 210.25 and 211.8 - 211.12.

The nature of supervision/detention

Accompanied by legal representatives of the DPP and the respondent on 29 July 2014, I attended the Hopkins Correctional Centre and inspected the Greenhill Detention Precinct (construction to be completed November 2014). I also inspected the Corella Place accommodation facility.

Under the Act, there is a distinction between those persons the subject of a detention order and those persons the subject of a supervision order and the accommodation for each. Section 42 of the Act provides that the effect of a detention order is to commit a person to prison for the period of the order. As referred to above, s 115 of the Act provides that a person in custody in a prison under a detention order must be treated in a way that is appropriate to his or her status as an unconvicted prisoner.

The Greenhill Detention Precinct will accommodate offenders who have reached the end of their custodial sentence but who are the subject of a detention order.[61] The security of the Greenhill Detention Precinct is facilitated by it being located within the perimeter walls of the Hopkins Correctional Centre. The Greenhill Detention Precinct is a controlled area within the prison.[62] There is a regular accounting for offenders, controlled entry and exit points, closed circuit television (‘CCTV’) surveillance of the common areas and strict supervision of items that may facilitate offending, such as telephones, computers or communication devices. Mr Reaper provided uncontradicted evidence that as a separate facility within the Hopkins Correctional Centre, it ‘would enable offenders to be detained separately from convicted prisoners, whilst maximising rehabilitation and treatment opportunities. Offenders would also have access to broader rehabilitative and social activities, including work programs if they choose to do so’.[63]
[61]DPP-5 at [22].
[62]Ibid at [21]
[63]Ibid at [19].

Up to eight persons, the subject of detention orders, can be detained in self-contained one or two bedroom units within the Greenhill Detention Precinct. There is an outside area, an undercover barbeque and separate building facilities for a ‘men’s shed’. Persons subject to a detention order have access to facilities of the prison. At their election, they can reside in the prison.

Corella Place comprises self-contained accommodation units around a large open space, including a barbeque area, shrubs, lake, workshop and activities building.[64] It is a 40 bed community facility for serious sex offenders who have completed their term of imprisonment and who are subject to a supervision order because of an unacceptable risk of re-offending and who are not in a position to transition into the community.[65]
[64]DPP-8, ‘Copy of agreed facts in relation to the view of Greenhill and Corella Place, Ararat’ at [15] and [16].
[65]DPP-5 at [79].

Corella Place operates on the basis that its residents are intended to be living ‘in the community’. Each resident has responsibility for themselves and compliance with the conditions of their supervision order.[66] Residents also have access to services and activities within the community. However, to manage risk, most residents are not permitted to leave Corella Place unless accompanied by staff. Specialist case management is used at Corella Place to motivate the sexual offenders to reduce the risk of offending, to transition towards living in the general community.[67]
[66]Ibid at [91].
[67]Ibid at [96] and [97].

Corella Place is not a secure facility. The entry is open during the day and there is no physical barrier to prevent a resident departing. Further, the accommodation and grounds are not under any form of CCTV surveillance.[68]
[68]Ibid at [88] and [89].

Corella Place residents have their own telephones, and telephone calls are not monitored in any way.[69] However, mobile phones are not permitted to be internet capable.[70] Mail and correspondence of residents at Corella Place is not inspected as a matter of course.[71]
[69]Ibid at [90(c)].
[70]Ibid at [90(e)].
[71]Ibid at [90(d)].

Residents are required to live at Corella Place, and wear electronic ankle monitor bracelets: a Radio Frequency (‘RF’) monitor and a Global Positioning System (‘GPS’) monitor. The monitors are worn by way of a band on the ankle. The GPS is able to track and monitor the approximate location of the wearer.[72] The GPS requires daily charging for approximately one hour. If the charge runs down, the GPS will not function. The RF monitoring is normally associated with a condition of curfew, i.e. the requirement that a resident be in a certain place within the facility at a particular time. The RF bracelet also provides the general vicinity of the location of the resident in the facility.[73]
[72]Ibid at [108].
[73]DPP-5 at [110].

Both GPS and RF bracelets, if cut or tampered with, trigger an alarm with Corrections Victoria. If the wearer of the RF bracelet moves outside the Corella Place facility, an alarm will be triggered.[74] If a Corella Place resident absconds and is located by staff, the resident will be encouraged to return to the facility voluntarily. If the resident does not return, they will be followed by staff, as best staff are able, until police arrive.[75] On occasions, residents have not been located for days, with some absconding residents found in residential areas and interstate.[76]
[74]Ibid.
[75]Ibid at [112].
[76]Ibid at [113].

Ms Miles, after consideration of the extensive files held by Corrections Victoria, including police and parole files, treatment histories and the reports of Dr Owen, considered the risk of the respondent re-offending was such that it could not be managed to an acceptable level with a supervision order; that Corella Place was therefore not a suitable residence for the respondent. Ms Miles referred to a limited capacity to prevent the respondent escaping, and to prevent the respondent identifying, locating or contacting children to commit offences of the type for which he is currently serving a term of imprisonment or in preparation for more serious contact.[77] At Corella Place, residents are entitled to newspapers and magazines.[78]
[77]DPP-7 at [35] and [58] – [81].
[78]Ibid at [35(b)(i)].

Ms Miles referred to the respondent’s previous residency at Corella Place when subject to an interim supervision order and supervision order in 2010-11. The conditions of the interim supervision order required the rear door of his unit to be locked to prevent absconding, restricted access to areas within Corella Place and active monitoring of the respondent within Corella Place. These measures, Ms Miles stated, were considered unsustainable in the long term and were the subject of regular complaint by the respondent, who found them oppressive.[79]
[79]DPP-7 at [48] – [50].

Mr Reaper referred to the Sentencing Advisory Council’s comment that it is important that there is a clear distinction between detention and supervision, particularly in respect of accommodation. Mr Reaper offered the opinion that particular difficulties would be encountered accommodating offenders, such as the respondent, at Corella Place, who have an unpredictable, impulsive, unknown trigger to offending, even when subject to supervision. He was of the opinion such offenders require a greater level of security. He stated intrusive supervision deleteriously impacts on the integrity of the intended model of operation of Corella Place and the rehabilitation of its residents.

Is the respondent an unacceptable risk of committing a relevant offence if a detention order is not made?

The respondent, for over 40 years, has demonstrated ‘persistent, chronic, diverse’ sexual offending.[80] Some of that offending has involved violence. The respondent was imprisoned in 1998 after conviction for offences involving sexual assault on a ten year old girl in daylight on the main street of Skipton. As stated above, since that time, the respondent has been convicted:

(a)in 2001, for using a postal service in an offensive manner, sending a letter containing references to sexual acts with the victim, including group, oral and anal sex; and
(b)in 2011, whilst residing at Corella Place and the subject of a supervision order that included a provision he not have supervised or unsupervised contact with children or young persons under the age of 18, for making obscene telephone calls to three girls aged between 14 and 16. He also made obscene calls to a number of adult females aged between 20 and 71.

[80]Owen Report at [300].

In 2011, the respondent was not charged with a ‘relevant offence’ concerning the phone calls. Nevertheless, the offending phone calls commenced with requests to girls to commit sexual acts upon him or to have phone sex with him and it is a relevant offence to use a carriage device to transmit a communication with the intention of procuring a child recipient to engage in or submit to sexual activity or attempt to do so.[81]
[81]Criminal Code Act 1995 (Cth) s 474.26.

Mr McLaughlin submitted that in making any determination I should give consideration to the likely impact of a detention order on the respondent and to the common law presumption of a right to personal liberty, which is a right of supreme importance.[82] I agree with T. Forrest J in Director of Public Prosecutions v JPH (No 2),[83] that a consideration of the impact of a detention order on the offender forms part of the evaluative task under s 36(1) of the Act. Further, this section requires consideration of the conceptual value of liberty recognising that the offender has not committed an unpunished offence. His Honour made the further finding with which I agree: ‘…under s 36(1), however, the Supreme Court must also balance the risk against the actual impact of a detention order on the offender and his rights’. [84]
[82]Nigro [2013] VSCA 213 at [67] (Redlich, Osborn and Priest JJA).
[83][2014] VSC 17.
[84]Ibid [2014] VSC 17 at [32].

There is little evidence as to the impact a detention order would have on the respondent. It is obvious to me that a detention order is likely to impact negatively. The respondent will be isolated, contained within a restricted area unless he chooses to live in the prison population. Whilst treatment and rehabilitation services will be available to the respondent in the Greenhill Detention Precinct, it is apparent such treatment and services are not provided at the same level of intensity as at Corella Place. I balance this consideration against the evidence in this application that sustained treatment and rehabilitation attempts concerning the respondent over many years have been ineffective.

I do not consider that the presumption of a right to liberty or any adverse effects on the respondent by imposition of a detention order are sufficient in themselves to outweigh the gravity of the risk and likelihood that such conduct will occur.

Concerning the risk of re-offending, Mr McLaughlin submitted the ‘Actuarial Risk Assessment Instruments’ referred to by the expert witnesses provide a basis for prediction of re-offending on the part of a cohort, but it is not a tool that can predict the behaviour of an individual such as the respondent within the cohort. This submission is supported by the evidence. However, the submission must be considered against the admission made during the hearing that the respondent poses an unacceptable risk of committing a relevant offence if a detention order or a supervision order is not made.

It was suggested the most recent offending, the convictions of 2001 and 2011, demonstrated a de-escalation in the nature of the respondent’s offending. I do not accept this proposition. The respondent has been, since 1998, either imprisoned or the subject of restrictions and supervision curtailing his ability to commit more serious offences.[85] The evidence supports the following comment and opinion of Dr Owen:

The longest consecutive period that [the respondent] has managed to remain offence-free in the community has been approximately one year and nine months and the shortest period before re-offending one month. These figures, while noting the escalating nature of his offending when in the community (including the time on the supervision order) are of critical concern.[86]

[85]See Owen Report at [300] – [301].

[86]Ibid at [301].

It is not contested on the evidence that the nature of the trigger for the respondent’s sexual offending is not understood. The respondent has reported he has no idea why he offends. However, it is apparent that the precursors to the respondent’s offending are related to anger and frustration.[87] The most recent offending behaviour of the respondent has been associated with an inability to cope with restrictions placed on him whilst under a supervision regime as a resident of Corella Place. The respondent reported to Dr Owen that he had buried a (prohibited) internet-capable phone in the garden at Corella Place and used other residents to purchase a restricted item. Dr Owen provided the opinion that if the respondent was subject to a supervision order with increased restrictions that this:

…exacerbates potential re-offence risk…the possibility of increasingly impulsive and diverse attempts to offend are a real and concerning possibility if the respondent becomes progressively frustrated by restrictions placed upon him as is anticipated will occur…[88]

[87]Ibid at [65].

[88]Owen Addendum Report at [8].

This is a concerning commentary of the potential of the respondent to re-offend. It is supported by the evidence of Dr Sullivan. He referred to the unpredictability of determining the risk of the respondent re-offending[89] and that one of his two main concerns concerning the respondent remained the risk of ‘impulsive and opportunistic violent contact offences against female strangers likely minors’.[90] In considering the evidence put before me, I was struck by the sentencing remarks of Judge Hart in the County Court made in October 1998[91] when sentencing the respondent for the sexual assault on the ten year old girl in Skipton. His Honour observed that the respondent had no self-control, virtually no thoughts as to the likely consequences of his actions on himself or the victim at the time of offending, that his behaviour was irrational, unpredictable, that he accepted little responsibility for his actions and that he had not shown any signs of learning from experience or modifying behaviour. On the totality of the evidence before me, each of the matters identified by Judge Hart remains relevant to any assessment of the respondent.
[89]Transcript at 212.17 - 212.26.
[90]RESP-3 at [55].
[91]See DPP-2, Exhibit ‘CLB-3’, at 564 – 565.

It is apparent if the respondent was subject to a supervision order, the order would require conditions that are unsuitable to residency at Corella Place. As indicated above, the respondent in previous offending has identified potential victims from photographs in local newspapers. There is no restriction on newspapers or magazines at Corella Place, nor the use of telephones. The respondent’s two most recent offences involved the use of telephones. Ms Miles stated in evidence that to prevent access by the respondent to magazines, newspapers and telephones at Corella Place would be a condition impossible to enforce unless there were constraints and monitoring of other residents’ use of such items.[92] Such a regime is inconsistent with the purpose and functioning of Corella Place.
[92]DPP-7 at [63].

Dr Sullivan, as referred to above, indicated that if the respondent was to be accommodated at Corella Place, there would be a need for him to be under close supervision. When the respondent was under supervision orders not normally applicable to residents of Corella Place, such measures were the subject of regular complaint by the respondent and as referred to above, he attributed his re-offending to such restrictions.

Conclusion

The evidence in two important respects indicates that a supervision order at Corella Place is not appropriate. Firstly, the nature of the conditions that would need to be imposed on the respondent if a resident at Corella Place are not suitable to the proper management and functioning of that facility. Secondly, such conditions are productive of frustration and anger in the respondent and exacerbate the risk of re-offending by commission of a relevant offence.

I am satisfied that the evidence, to a high degree of probability, justifies the making a detention order[93] in respect of the respondent. I am satisfied that Corella Place is not, at this time, a suitable place for the management of the unacceptable risk of the respondent committing a relevant offence.
[93]The Act s 37(a) and (b).

The DPP seeks a detention order for three years. I have determined an order for two years is more appropriate. Over this time, the respondent can undertake treatment and rehabilitation programs. In evidence it was pointed out that the respondent had trialled anti-libidinal medication, but only for a short time due to the complications of diabetes. Dr Ong suggested a trial of anti-depressant medication which has been shown to reduce impulsivity and obsessional thinking.[94] The respondent has expressed willingness to consider this treatment.[95] According to Dr Sullivan, the anti-depressant medication has been associated with a reduction in re-offending.[96] The success of this treatment or any other treatment and rehabilitation programs can be assessed when the detention order is reviewed on an annual basis as required by s 66(1) of the Act.
[94]Transcript at 20.2 - 20.7.
[95]Ibid at 26.1 – 26.2.
[96]Ibid at 190.2 - 190.10.

I will hear from the parties as to the appropriate form of orders.

[2014] VSC 485

30 September 2014