Director of Public Prosecutions v CS
[2020] VSC 713
•16 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0228
| IN THE MATTER of the Serious Offenders Act 2018 | |
| -and- | |
| IN THE MATTER of an application for a detention order | |
| BETWEEN: | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| CS | Respondent |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 March 2020 |
DATE OF JUDGMENT: | 16 March 2020 |
DATE OF REASONS | 27 October 2020 (Revised 12 February 2021) |
CASE MAY BE CITED AS: | DPP v CS |
MEDIUM NEUTRAL CITATION: | [2020] VSC 713 |
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PUBLIC LAW - Application for detention order – Duration of three years sought - Respondent on interim detention order made near the expiration of sentence for violent offending – Schizoid Personality Disorder and possible high-functioning Autism Spectrum Disorder - Evidence of assessor that respondent posed a high risk of violent recidivism if not subject to supervision order or detention order – No challenge that detention order should be made – Dispute as to duration of order – ARM v Secretary to Department of Justice (2008) 29 VR 472 considered – Three year detention order made – Serious Offenders Act 2018 ss 1, 61, 62, 63, 64, 128, 279.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms D Piekusis QC with Ms J Davidson | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr T Marsh | Victoria Legal Aid |
HIS HONOUR:
Introduction
By notice dated 23 October 2019, the Director of Public Prosecutions (‘the applicant’ or ‘the Director’) applied for a detention order in respect of CS[1] (‘the respondent’) under s 61 of the Serious Offenders Act 2018 (‘the Act’).
[1]Name anonymised to protect identity of the respondent.
By way of brief background to this application, the respondent received a custodial sentence for the index offence which expired on 1 December 2019. On 25 November 2019, before the expiry of the sentence, Taylor J made an interim detention order under s 76 of the Act for a period of four months. The effect of that order was that the respondent was detained at the Dame Phyllis Frost Centre after her sentence expired. The interim detention order was due to expire on 1 April 2020.
The application for a detention order was made on the basis that the respondent posed an unacceptable risk of committing a serious violence offence if an order under the Act, being either a supervision order or a detention order, was not made and she was in the community and, further, that such a risk would be unacceptable unless a detention order was made.
The matter came on for hearing before me on 16 March 2020. It was not challenged on behalf of the respondent that a detention order should be made. At issue was the duration of the order. The applicant sought an order for three years. On behalf of the respondent, it was contended that an order for two years might meet the needs of the case. Having heard evidence from Professor James Ogloff, considered the material filed in the Court, and heard the submissions on both sides, I made a detention order for a period of three years. I made a non-publication order pursuant to s 279 of the Act, to remain in place for the duration of the order.
It said at the time that I would publish detailed reasons for my decision at a future time. These are those reasons.
Personal background
The respondent is a 36 year old female with a diagnosis of Schizoid Personality Disorder and possible Autism Spectrum Disorder.[2] She has been in custody in one form or another since the age of 23. Prior to her incarceration, she lived with her parents and brother in the family home.
[2]Report of Professor James Ogloff AM dated 2 August 2019 (‘Exhibit B’), [52], [89]. Report of Dr Rajan Darjee dated 9 January 2020 (‘Exhibit 2’), [43]-[45].
Growing up, she experienced difficulties in her relationship with both of her parents, whom she has described as unsupportive, dismissive and neglectful of her emotional needs. At times, her parents would engage in verbal arguments that caused her to feel unsafe in the home.
Her experience of primary school was positive, but she began to struggle socially during the transition to high school. She felt unable to fit in with her friendship group and was ostracised and bullied by her peers, leading to feelings of rejection, abandonment and resentment. As a result, she became increasingly isolated and fixated on violent fantasies of revenge. During this time she consumed a significant amount of violent media including films, books and videogames involving mass murderers and serial killers.
From her teenage years onwards, the respondent began to act out her violent fantasies, which resulted in both admissions to hospital and court outcomes. Notwithstanding these issues, she completed her Victorian Certificate of Education at TAFE with high marks, allowing her to enrol in a double degree studying biology and chemistry at La Trobe University.
Criminal history
The respondent has a long history of serious violent offending both in the community and while in custody. By the time of the index offence in 2012, she had an extensive and well-entrenched history of involvement with both correctional and therapeutic services. In order to properly appreciate the setting in which the index offence occurred, it is necessary to briefly rehearse the respondent’s criminal history.
Adolescent criminal history
At the age of 16, the respondent spontaneously stabbed a stranger in the back as he was walking alone in Mill Park. She was charged with intentionally causing injury and sentenced in the Children’s Court to a 12-month good behaviour bond. The following year, at age 17, the respondent instigated a physical fight with another student at her school and later threatened that student while holding a steak knife, stating, ‘I am going to kill you, you fucking bitch’. She pleaded guilty to offences of recklessly causing injury and recklessly threatening serious injury, and was sentenced in the Preston Magistrates’ Court to a 12-month community based order.
Attempted murder
On 8 May 2007, at the age of 23, the respondent, by then a student at La Trobe University, attended the University with a backpack containing a mask, gloves and steak knives, intent upon carrying out an attack upon random victims. She waited inside a toilet cubicle on the third floor of the campus library wearing the mask and gloves, and lunged out at a random victim who was in the process of exiting the bathroom. She stabbed the victim in the back at least twice, before the victim fortuitously escaped to seek assistance. The respondent proceeded to the basement floor of the library where she waited for police to arrive.
During an interview with police, the respondent stated plainly that she had intended to kill the victim and others in the same manner if she’d had the opportunity. She pleaded guilty to a charge of attempted murder and was sentenced in this Court by King J to eight years’ imprisonment on 22 April 2009. Her Honour imposed a non-parole period of four and a half years, with a view to allowing the respondent a lengthy period of treatment in the community on parole before the expiry of her sentence.[3]
[3]R v CS [2009] VSC 154.
However, the respondent continued to engage in violent behaviour whilst in custody, resulting in further terms of imprisonment. For this reason, she was never granted parole.
Offending in custody
The respondent’s time in custody serving sentence was turbulent. She was involved in hundreds of incidents involving self-harm, harm to others and property damage.
Between 2009 and 2014, the respondent was convicted and sentenced on seven further occasions for violence and property offences committed in custody, including the index offence.
In order to control her risk of violence, the respondent was made subject to a restrictive management regime, involving significant periods of solitary confinement.[4]
[4]Director of Public Prosecutions v CS [2013] VCC 1421, 5.
The index offence
On 12 October 2012, while incarcerated at Dame Phyllis Frost Centre, the respondent spontaneously rammed a psychiatric nurse. She strangled the victim, bashed her head against a wall, and punched her to the jaw and stomach. After the victim fell to the ground, the respondent climbed on top of her and smothered her mouth and nose with one hand, while using the other hand to apply pressure to her throat. It was only upon the intervention of multiple prison officers that she desisted.
She pleaded guilty to intentionally causing serious injury and common assault (two charges).[5] On 20 September 2013, she was sentenced by Judge Meredith of the County Court to be imprisoned for a total effective sentence of six years and one month, to be served wholly concurrently with her existing sentence. She was sentenced as a serious violent offender under s 6 of the Sentencing Act 1991.
[5]The two charges of common assault related to separate attacks against prison officers in the month following the index offence.
Progress in prison
Following the index offence, the respondent was moved to a management unit at Dame Phyllis Frost Centre. She was held continuously in this unit for more than six years.
In April 2019, following significant work and a ‘courageous’[6] decision by Corrections Victoria, Justice Health and Forensicare, the respondent was moved to a purpose-built secure suite in the Marrmak Unit of Dame Phyllis Frost Centre. At the time of the application before me, she continued to reside in this suite under a high level of supervision.
[6]Exhibit B, [97].
Whilst serving her sentences, the respondent received extensive and ongoing psychiatric and mental health treatment. This continued to be the case after the making of the interim detention order. At the time the matter came before me, the respondent was meeting regularly with a psychologist, psychiatrist and occupational therapist, and had access to numerous other supports. Despite ongoing treatment, the respondent’s involvement in incidents of self-harm and harm to others has persisted, albeit reduced over time consistent with elevated levels of management and supervision.
The law
Section 1 of the Act provides, in part, as follows:
The purposes of this Act are
(a) primarily, to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision; and
(b) secondly, to facilitate the treatment and rehabilitation of those offenders
At the time that the application was filed, the respondent was an eligible offender under s 8 of the Act, being over the age of 18 and serving a custodial sentence imposed by the County Court for a ‘serious violence offence’[7] within the meaning of s 3 of the Act.[8] At the time the matter came on before me, the respondent was subject to an interim detention order.[9]
[7]‘Serious violence offence’ is defined in the Act as an offence referred to in Schedule 2 of the Act and includes the offence of intentionally causing serious injury.
[8]Section 8(1) of the Act.
[9]Section 8(3) of the Act.
The application for a detention order was filed under s 61 of the Act. Section 62 of the Act sets out the matters of which the Court must be satisfied before the discretion to make a detention order can be exercised. It provides, in part, as follows:
(1) On an application under section 61, the Supreme Court may make a detention order in respect of an eligible offender if, and only if, the court is satisfied under section 63(1) and is satisfied under section 64(1).
(2) For the purposes of sections 63 and 64, the Supreme Court must be satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk.
(3) If the Supreme Court is not satisfied that the risk referred to in section 64(1) would be unacceptable unless a detention order were made, the 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.
Section 63 and 64 of the Act provide:
63 Finding of unacceptable risk
(1)For the purposes of section 62, the Supreme Court must be satisfied that –
(a)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious sex offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and the offender is in the community; or
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and the offender is in the community.
(2)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court must have regard to –
(a)subject to section 273, any assessment report or progress report filed in relation to the application, whether by the Secretary or the offender; and
(b)any other report filed, tendered or made, or evidence given, in relation to the application; and
(c) any other matter the court considers appropriate.
(3)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court must not have regard to –
(a) the means of managing the risk; and
(b)the likely impact of a detention order or a supervision order on the offender.
(4)The Supreme Court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(5)The DPP has the burden of proving that an offender poses or will pose an unacceptable risk under subsection (1)
64 Detention order only option
(1)If the Supreme Court is satisfied as required by section 63(1), the Supreme Court must be satisfied that –
(a)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious sex offence, the risk of the offender committing, or after release from custody committing, a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made; or
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the risk of the offender committing, or after release from custody committing, a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made.
(2)The Supreme Court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(3)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court may have regard to –
(a) the means of managing the risk; and
(b) the likely impact of a detention order on the offender.
Unacceptable risk
The term ‘unacceptable risk’ is not defined in the Act, but in the context of the now repealed Serious Sex Offenders (Detention and Supervision) Act 2009, the meaning of the term was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice (‘Nigro’).[10]
[10](2013) 41 VR 359 (‘Nigro’).
In that case, the Court stated that ‘the concept of unacceptable risk is a flexible one which is “calibrated to the nature and degree of the risk so that it can be adapted to the particular case”’.[11]
[11]Ibid [165] (citations omitted).
As the Court stated:
The legislature has deliberately selected a threshold test that does not specify a particular degree of risk. Rather, the test requires an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which the offender had previously committed such an offence. It is the combination of these factors that will determine whether the risk of occurrence is of a sufficient order to make the risk unacceptable. [12]
[12]Ibid [117].
The Court held:
Whether a risk is unacceptable depends upon the degree of likelihood of offending[13] and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstances, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence.[14]
[13]Section 63(4) of the Act dictates that the risk may be unacceptable even if the likelihood is less than more likely than not.
[14]Nigro (n 10) [6].
The Court further stated:
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.[15]
[15]Ibid [130].
The Court in Nigro made it clear that the test of unacceptable risk:
should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection.[16]
[16]Ibid [5].
Duration of order
In ARM v Secretary to the Department of Justice,[17] the Court of Appeal, in considering an analogous provision relating to extended supervision orders under the previous Serious Sex Offender Monitoring Act 2005, stated:
It is implicit in s 14, and both sides accepted, that if the Court is not satisfied to a high degree of probability that the offender will remain likely to commit a relevant offence for the whole 15 year period referred to in s 14, the period of the order should be set at such lesser period as for which the court is satisfied to a high degree of probability that the offender will be likely to commit a relevant offence unless subjected to the program.[18]
[17](2008) 29 VR 472 (‘ARM’).
[18]Ibid [13].
Non-publication order
In making the interim detention order, Taylor J also made a non-publication order under s 279 of the Act, having been satisfied as required by that section that it was in the public interest to do so. That order was expressed to operate until further order of this Court.
The evidence
For the applicant
The application was supported by the following:
(a) Detention and Supervision Order Assessment Report of Professor James Ogloff AM, Clinical and Forensic Psychologist, dated 2 August 2019 (‘the Assessment Report’);
(b) Reasons for sentence of his Honour Judge Meredith of the County Court of Victoria, dated 20 September 2013;
(c) Reasons for sentence of the Honourable Justice King of the Supreme Court of Victoria, dated 22 April 2009;
(d) Affidavit of Brendan Money, then Assistant Commissioner, Corrections Victoria, sworn 18 November 2019;
(e) Affidavit of Joseph Mollica, Principal, Forensic Intervention Services, sworn 15 November 2019;
(f) Affidavit of Sarah Miles, Assistant Director, Corrections Victoria, sworn 22 January 2020; and
(g) Antecedents of the respondent as set out in the Victoria Police criminal history.
For the respondent
The report of Dr Rajan Darjee, consultant forensic psychiatrist, dated 9 January 2020, was filed by the respondent. [19]
[19]Exhibit 2.
Report of Professor Ogloff
Professor Ogloff has a longstanding therapeutic history with the respondent, having assessed her on a number of occasions over the last 12 years, including for the purpose of her sentencing in 2009 for the offence of attempted murder. On 25 March 2019, he had an assessment interview with the respondent for the purpose of preparing his report. In addition to the assessment interview, Professor Ogloff also had regard to a very large volume of other reports, files and other materials relating to the respondent, and to his prior knowledge of her.
The Assessment Report contained a high degree of detail regarding the respondent’s circumstances, including her personal background, offending history, psychosocial and psychiatric history, and progress since she was first imprisoned. For the purposes of this judgment, it is not necessary to set out these matters in any detail.
In summary, Professor Ogloff expressed the opinion that a combination of the respondent’s personality disorders and life experiences have manifested in a significant level of emotional dyscontrol which ‘erupts’ in the form of self-harm or harm to others. These acts of harm are generally precipitated by the respondent’s self-described ‘dark-thoughts’, which include grotesquely violent fantasies that have persisted for over 20 years now. In discussing these thoughts, Professor Ogloff stated:
[W]hile the thoughts are horrible, they are comforting and self-reinforcing for [the respondent]. For example, when she is distressed, angry, or even bored, she might begin to experience thoughts of harming others. These thoughts trigger fantasies in which she has power and control; as such, they are empowering and serve to reduce the stress and frustration she generally feels... Although she expresses a desire to rid herself of such thoughts (and thoughts of self-harm and suicide), they are highly entrenched for her and are functional in her emotional regulation efforts.[20]
[20]Exhibit B [91].
It is relevant to note that, prior to her incarceration, the respondent had no recorded history of engaging in self-harm.[21]
[21]Ibid [48].
In consolidating his opinion with respect to the respondent’s risk of future violence in the community, Professor Ogloff employed two structured risk assessment instruments. These were the Historical, Clinical, Risk – 20, version 3 (‘HCR-20’) and the Psychopathy Checklist, Revised (Second Edition) (‘PCL-R’). Both measures have been widely validated, including for use in relation to females and in the Australian context. According to Professor Ogloff, the results of such measures, when applied and considered in the context of both the individual case and the broader research, can provide an indication of the category of risk of violent reoffending in which an individual is likely to fall.
In summarising the respondent’s scores on the HCR-20, Professor Ogloff opined:
Taken together, [the respondent] presents a high risk for future violent offending. She has a history characterised by frequent violent thoughts and actions that have now decreased in frequency, due mainly to the restrictive regimen in which she has been placed. Although she has shown progress in her ability to refrain from engaging in interpersonal violence over time, she has still been unable to control her behaviour while imprisoned. The dynamic, or short-term and changeable, risk factors in her case also suggest that she is at a high risk for ongoing violence. No feasible plan is yet possible to ensure that she can and will control her violent fantasies and behaviour such that she would not present a risk of harm was [sic] she to be returned to the mainstream prison, let alone the community.[22]
[22]Ibid [82].
As explained by Professor Ogloff, the presence of psychopathic personality traits has been found to correlate with an individual’s risk of violent re-offending. In this case, the respondent’s scores on the PCL-R fell within the average range, indicating that she does not consistently demonstrate features associated with psychopathy.[23] In assessing her scores, Professor Ogloff took into account her diagnosis of Schizoid Personality Disorder and ‘possible high functioning autism spectrum disorder’. He also noted that, immediately preceding her past offending, she has appeared calm and even smiling. As such, he characterised her violent behaviour as ‘highly unpredictable’.
[23]Ibid [83] – [85].
In addressing each of the matters required under s 269(1) of the Act, Professor Ogloff stated his assessment of the respondent’s risk of committing a serious violence offence in the future as follows:
A formal appraisal of the risk for violence that [the respondent] poses indicates that she continues to present a high risk of engaging in violent behaviour and offending. Given the brutal nature of her offending, ongoing violent ideation, including the desire to commit homicide offences, the potential for harm should she reoffend violently could be very serious.[24]
[24]Ibid [101].
With respect to the factors that might influence her risk, Professor Ogloff opined that her risk for violence has historically increased in times of distress, any changes in setting or when she is overcome with angst. As for the potential for her risk level to change in future, he stated:
Given the extent to which her violent tendencies have been managed by physical security, the potential remains for the risk to increase as the restrictions decrease. Although psychological interventions, and perhaps medication, have had some positive effects on her thinking and behaviour, the changes have not been sustainable over time. As such, [the respondent]’s level of risk for violence does not seem to reduce, independent of physical security restrictions, monitoring and supervision.[25]
[25]Ibid [107].
Overall, Professor Ogloff concluded that the respondent would pose a high risk of committing another serious violence offence should she not be made subject to a post-sentence order. The nature of that post-sentence order is not qualified in the Assessment Report. However, Professor Ogloff gave oral evidence at the hearing of the interim detention order application before Taylor J to the effect that, in his opinion, the respondent’s risk could not be managed anywhere other than within a high security area of a prison.[26]
[26]Transcript of Proceedings, In the matter of an application by the Director of Public Prosecutions (Supreme Court of Victoria, S ECR 2019 0228, Taylor J, 25 November 2019) 10.
As to the nature of any likely future violence while detained, Professor Ogloff opined that this may take the form of opportunistic aggression against prison staff, or more serious behaviour if she is not under close supervision. If in the community, he opined that she may engage in the same conduct as gave rise to the charge of attempted murder in 2007, or possibly more serious behaviour if given the opportunity and means. Professor Ogloff noted the respondent’s fascination with mass murder and that she continues to entertain thoughts of committing such acts herself.
Evidence of Professor Ogloff
Professor Ogloff gave sworn evidence before me on 16 March 2020. He confirmed that the contents of his report were true and correct. He indicated that he had had the opportunity to consider incident reports concerning the respondent between the time of his report and the present. He had had ongoing discussions with the unit psychiatrist at the Marrmak Unit, most recently on 13 March 2020.
The recent incident reports and ongoing discussions confirmed in Professor Ogloff’s mind the fact that the respondent continued to be impulsive even under the quite restrictive regimen in which she was held, the need for a high degree of coordination of services to keep her and others safe, and the fact that she was currently quite despondent, which Professor Ogloff considered to be in part due to anxiety around the current proceedings. Incidents had escalated in frequency in recent times.
Professor Ogloff indicated that there had been a pattern of stabilisation and then deterioration in the behaviour of the respondent for some time. She had been able to live in the purpose-built suite in Marrmak for a period of time, but had then deteriorated to such an extent that over the previous six weeks, she had primarily been held in a Muirhead cell in order to reduce the risk of self-harm.
When asked to express an opinion as to the level of progress the respondent might be expected to make over the period of the detention order, Professor Ogloff indicated that whilst there was the need to maintain hope for the respondent, with her slow progress, it was ‘unrealistically optimistic’[27] to think that an order with a two year duration would suffice. For the level of risk posed by the respondent to change for the better, the authorities would need to see a reduction in the strictness of the regimen under which she was held for some considerable period of time to ensure that changes made would be sustainable.
[27]Transcript 9.
In cross-examination, Professor Ogloff confirmed that the strict conditions under which the respondent was then being held would increase her subjective level of stress, exacerbating her feelings of hopelessness. She had been managed virtually in exclusion for six years, and indeed, it had been eight years since she had been in an open environment with other women. This was the reason why Professor Ogloff had recommended to Corrections Victoria moving the respondent to a more open situation. Unfortunately, the respondent had deteriorated in this setting.
Professor Ogloff spoke in glowing terms of the work of the clinical staff, stating that they had done a remarkable job in assisting the respondent, and that without this, she may have managed to end her life. In spite of the fact that the respondent had self-harmed in a serious way very recently, a move to a lower level of restriction had still been attempted by staff, in order to try to reward the respondent for such gains as she had made.
Professor Ogloff stated, on a positive note, that the respondent, to his mind, would sincerely like to change. She intellectually understood the damage that her behaviour does and regretted it, but she had simply been unable to demonstrate an ability to control her behaviour long term.
When asked if a detention order made for two rather than three years would be interpreted by the respondent as in some sense a victory for herself, Professor Ogloff agreed, but whilst acknowledging that it was not a clinical question whether two or three years would be better, a two year order on a practical level would leave quite a narrow time-frame for the respondent to demonstrate stability, which to Professor Ogloff’s mind was unrealistic and may be setting her up for failure. Providing false hope to the respondent was something about which the witness expressed concern. In reality, he expected that she would make very limited progress in 12 to 18 months, although Professor Ogloff did outline some areas where improvement may be realistically expected, including the issue of self-harm and re-engaging with her clinical team in the Marrmak Unit.
Professor Ogloff noted the anticipatory anxiety caused to the respondent by impending court proceedings whenever these were approaching.
In re-examination, Professor Ogloff opined that during the course of a two year order, the respondent would be very unlikely to show the change necessary for a determination to be made that a further order would not be called for. Were that to be the case, the respondent would know fairly early on in the period that the necessary progress had not been made, which may lead to a deterioration.
Affidavit of Brendan Money
Brendan Money, Assistant Commissioner, Sentence Management Division of Corrections Victoria provided an affidavit sworn 18 December 2019. At the time of swearing his affidavit, the respondent had not yet been made subject to the interim order.
In his affidavit, Mr Money provided an overview of the management of offenders subject to detention orders under the Act, as well as the particular arrangements in place for the respondent should an order under the Act be made. These arrangements were informed by a letter of opinion provided by Professor Ogloff dated 25 March 2019, in which he considered that the respondent would benefit from placement in an independent living unit within Dame Phyllis Frost Centre.
Affidavit of Joseph Mollica
Joseph Mollica, Principal, Clinical Practice, Forensic Intervention Services (formerly known as the Specialised Offender Assessment and Treatment Service or SOATS) of Corrections Victoria provided an affidavit sworn 15 November 2019, annexed to which was a Treatment and Supervision Plan. Mr Mollica works closely with the Clinical Services Manager of the only designated residential treatment facility for offenders subject to supervision orders under the Act, known as the Rivergum Residential Treatment Centre (‘Rivergum’).
His affidavit provided an overview of Rivergum and the services provided by that facility, as well as his assessment as to the respondent’s suitability for placement. Mr Mollica deposed that, having regard to the suitability criteria of Rivergum and Professor Ogloff’s risk assessment, the respondent was not suitable for placement at Rivergum under a supervision order.
Affidavit of Sarah Miles
Sarah Miles, Assistant Director of the Post Sentence Branch, Corrections Victoria, provided an affidavit sworn 22 January 2020. Ms Miles is responsible for the management of offenders on supervision orders, as well as the residential facilities and residential treatment facilities under the Act.
In her affidavit, Ms Miles provided an overview of the accommodation available for persons subject to supervision orders and expressed her opinion as to whether the respondent could be managed in the community under a supervision order, rather than in a prison under a detention order.
Relevantly, in Ms Miles’ view, the respondent’s risk of violent recidivism could not be managed to an acceptable level if subject to a supervision order, given Professor Ogloff’s recommendation that she be housed in a secure facility.
For the respondent
Report of Dr Darjee
On request by the respondent’s legal representatives, a report was prepared by Dr Rajan Darjee, a Consultant Forensic Psychiatrist, addressing a number of matters as required under s 269 of the Act. His report is dated 9 January 2020.
In preparing his report, Dr Darjee had regard to a number of documents relating to the respondent including incident reports, her Forensic Intervention Services file and recent Intensive Case Management Plans, as well as a two hour interview with her on 4 December 2019 and a discussion with her then-current treating psychiatrist, Dr Anthony Barnes.
Dr Darjee’s report covered much of the same ground as Professor Ogloff’s report with respect to the respondent’s upbringing, offending history, diagnoses and treatment and ongoing violent ideation.
Dr Darjee reported that the respondent meets some but not all criteria for Autism Spectrum Disorder, noting that females with autism may present differently from males and therefore tend not to fit criteria prescribed by the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (known as the ‘DSM-5’).
Notably, he provided context to the respondent’s propensity to engage in self-harm behaviours by observing that she does so as a way of dealing with stress and to obtain short-term relief from negative emotions. In addition, the respondent reported to Dr Darjee that her violent fantasies are an alternate way of dealing with difficult feelings. According to Dr Darjee, the respondent’s episodes of self-harm tend to increase proportionate to any decrease in violent ideation, and, presumably, vice versa.[28]
[28]Exhibit 2, pp 9-10.
Dr Darjee also administered the HCR-20 and concurred with Professor Ogloff’s conclusions regarding the respondent’s risk as evidenced by her scores. He went on to state:
In terms of summary risk judgments, if she were in the community, even under supervision, or in prison without close monitoring and supervision, there would be a high likelihood of violence, a high risk of serious physical harm and the risk of violence would be imminent.
In terms of future risk scenarios, she poses a risk of violence towards males and females known and unknown to her. Such violence could involve a weapon such as a knife or be inflicted through hitting, strangling and/or kicking and has the potential to be very harmful and perhaps fatal.
…
Her lack of empathy and mechanistic view of human beings significantly diminishes her from inhibiting acting on violent urges; and the positive feelings of relief and control and alleviation of very negative feelings about herself that accompany acting violently, as well as feeling she is getting her own back on others who have wronged her, reinforce this behaviour.[29]
[29]Ibid [48] – [49].
On the question of whether the respondent’s risk necessitates a supervision order or a detention order, Dr Darjee agreed with Professor Ogloff that, if not subject to a detention order, she would present a high likelihood of imminent serious violence. In addition to her history of violence and other risk factors, Dr Darjee observed that she has few protective factors and, despite being afforded extensive treatment and intensive management, has demonstrated minimal treatment gains and persistent aggression. He therefore concluded that her risk of violence cannot be contained or managed with a less restrictive approach in the near future. He went on to say that there remains a hope that, in the long term, she may progress to a less secure environment.
At the hearing of the interim detention order application, counsel for the respondent cross-examined Professor Ogloff regarding the respondent suffering from a level of despondency or lack of hope for the future as a result of the Director’s application and how that may impact on her self-harming behaviours.[30]
[30]Transcript of Proceedings, In the matter of an application by the Director of Public Prosecutions (Supreme Court of Victoria, S ECR 2019 0228, Taylor J, 25 November 2019) 13-15.
Dr Darjee’s report addressed this issue under the heading ‘Management and treatment considerations’. In summary, he emphasised the need for the respondent to maintain a feeling of ‘power, control, mastery and hope’ in relation to her future, and opined that this may be achieved through such means as engagement in education, employment and activities, where safely possible. According to Dr Darjee, this will assist her to feel positive, which will in turn reduce her risk of violence given that she uses violence as a means of controlling negative emotions.[31] Conversely, where the respondent experiences negative mental states such as boredom, hopelessness or rejection, she will retreat into violent fantasies or conduct in order to obtain relief. This matter is particularly relevant to the second stage of the test under the Act, which permits the Court to consider both the means of managing the respondent’s risk and the likely impact of a detention order on her.[32]
[31]Exhibit 2, p 15 [54].
[32]Section 64(3) of the Act.
Finally, Dr Darjee supported a prohibition on the publication of material which might identify the respondent as publication may lead to a deterioration in her mental state, an increase in self-harm and a possible increase in violent behaviour in order to deal with any associated negative emotions.
Submissions on behalf of the parties
Both the applicant and the respondent filed written submissions. The respondent conceded in the written submissions that, on the evidence presently before the Court, the making of a detention order was supported.
However, the respondent took some issue with the duration of the order sought by the Director of three years, the maximum period allowed under s 69 of the Act. In the written submissions, Mr Marsh referred to the decision of ARM, and then to a passage in the report of Dr Darjee. He then submitted that in light of ARM, it would be open to the Court to make an order for three years, but that:
setting the duration of the order at a lesser period of 2 years would be consistent with the importance of retaining a sense of hope for progress in the respondent.[33]
[33]Exhibit 1, [12].
Ms Piekusis for the applicant, in her written and oral submissions, asserted that the evidence would well justify a detention order for a duration of three years. She submitted that on the evidence, it was highly unlikely that the respondent would make sufficient progress to enable her safe release into the community within three years.
In his oral submissions before me, Mr Marsh conceded that it would be open to the Court to make a detention order for three years, and that it was difficult for him to advance the contrary positon with much force. However, he did submit that it would be important in deciding upon the duration of the order to bear in mind the desirability of ensuring that the respondent retains hope for the future. A shorter duration of the order might foster this.
In respect of the non-publication order sought, Mr Marsh urged me to make such an order for the duration of the detention order.
Analysis
I had regard to all of the material which was filed in the Court, to the evidence given before me, and to the submissions made on both sides.
The evidence of Professor Ogloff as reflected in his report to the Court and his sworn evidence before me was of the uniformly high standard the Court has come to expect from this eminent expert in the field of risk assessment. He took his usual detailed and careful approach to the important task he was faced with, and was much aided not only by the vast array of material to which he had access, but also by his very substantial knowledge of the respondent going back over a decade.
The report of Dr Darjee, also, was detailed, comprehensive, and of great assistance to the Court.
The overall expert material made the substantial risk still posed to the community by the respondent abundantly clear, and dictated that insofar as the question of whether or not a detention order should be made in this case was concerned, there could be but one answer.
I was satisfied, by acceptable and cogent evidence to a high degree of probability, pursuant to s 63 of the Act, that the respondent would pose an unacceptable risk of committing a serious violence offence if a detention order or a supervision order was not in place and she was in the community.
Further, I was satisfied, by the same acceptable and cogent evidence to a high degree of probability, pursuant to s 64 of the Act, that the risk of the respondent committing a serious violence offence would be unacceptable unless a detention order was made. In other words, I was satisfied that a detention order was the only option.
In respect of the duration of the order, I had regard to the evidence of Professor Ogloff pointing to the unlikelihood that the respondent would be able to reach such a level of stability and safety in the near future as to warrant a detention order for a period shorter than that sought by the applicant. I took into account the submissions of Mr Marsh in support of a shorter duration. Those submissions were founded, quite properly, in the desirability of retaining hope in the mind of the respondent, and as far as possible, preventing her from becoming despondent about her future position.
Having considered all of the available material, I was satisfied that the respondent would pose an unacceptable risk of committing a serious violence offence for at least the three year period which is the maximum duration of a detention order pursuant to s 69 of the Act. There would be no proper basis for making the order of shorter duration than that.
In those circumstances, I made a detention order pursuant to s 61 of the Act for a period of three years.
I also made a non-publication order under s 279 of the Act until the conclusion of the detention order, being satisfied that it was in the public interest to do so.
Before finishing this judgment, there are three additional points it is appropriate to mention.
First, it should not be thought by anyone, least of all the respondent, that the making of this order for the maximum allowable period is an indication that the respondent’s position is a hopeless one. That is far from the case. It is true that progress has been very slow and inconsistent. That, however, has not stopped the treating team and the authorities generally from providing a high level of treatment and support to the respondent, along with the high degree of control which is currently warranted. Notwithstanding the challenges she poses, the authorities have not ‘warehoused’ the respondent, or placed her in the ‘too hard basket’. I am confident that in future, all possible measures will be pursued in order to assist the respondent, an intelligent woman who does not want to be in the position in which she finds herself, to reach the long-term stability that would be necessary for the risk she currently poses to the community to be satisfactorily ameliorated. The Court will hope for progress in the period to come, and will closely monitor that situation as the law dictates.
Secondly, I am conscious of the evidence of Professor Ogloff as to the stress and anxiety experienced by the respondent in the lead-up to, and during, any court hearing concerning her placement and status. The Court urges the parties to take an imaginative and constructive approach to future proceedings in order to try to reduce the harmful impact of such proceedings on the respondent.
Finally, and connected with the second matter, I note that during the evidence of Professor Ogloff before me, the respondent, who was seated handcuffed in the dock of the Court with custodial officers on each side of her, without any warning, physically lashed out at one of the officers and needed to be restrained. I should observe that the officers showed admirable composure and sensitivity in dealing with the actions of the respondent. Shortly after this event, the respondent was returned to the cells, and she instructed Mr Marsh to proceed with the case in her absence. He urged the Court to proceed in the absence of the respondent pursuant to s 128(3) of the Act. Mr Marsh quite correctly made the point that the hearing had, to the point of the incident, been conducted in calm and measured fashion on both sides. It was also notable, to my mind, that Professor Ogloff, in giving his evidence, had exhibited an obvious level of sympathy for the respondent.
I make it clear that the actions of the respondent in the incident summarised above had no part to play in my reasoning processes in this case. What occurred could well be considered to be consistent with the material which was already before the Court speaking to the impulsive conduct of the respondent which is still a problem for her. Furthermore, it was consistent with the proposition that the respondent finds the Court process itself very distressing.
Conclusion
For the reasons stated above, I made a detention order for three years.
Postscript
The above reasons for judgment were ready for publication when, on 30 August 2020, the Court became aware of the sudden death of the respondent in the Dame Phyllis Frost Centre on or about that date. Publication was delayed pending communication with the legal representatives of the applicant and respondent. No party expressed any objection to the reasons being published. Following the passage of a further period of time, the Court considered it to appropriate to publish these reasons, unaltered from their original form.
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