Director of Public Prosecutions v DG

[2022] VCC 1389

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DG

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2022
DATE OF RULING:	4 August 2022
CASE MAY BE CITED AS:	DPP v DG
MEDIUM NEUTRAL CITATION:	[2022] VCC 1389

REASONS FOR RULING

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Kapitaniak
For the Accused	Mr M. Cramer

1HER HONOUR:  I have read those submissions.  I have to say, that I am in agreement with the interpretation given by Her Honour Judge Sexton in relation to this, Ms Kapataniak.  The concern that I have is this:

2Supervision orders are in it of themselves unusual.  They allow for the continued constraint, if you like, of a person after they have served their sentence.  There are reasons for this, and they are clearly legislated for.  But the unusualness of them and the onerous nature of them is very much recognised by the legislation and its insistence upon the minimum interference on the liberty, privacy or freedom of movement. 

3Now there is no non-association section or condition contained in the supervision order relating to DG.  That being so, it is extremely important that the operation of the PSA relates specifically to the existing conditions of the order.  The fact that if you take a broad phrase such as actions designed to minimise the risk posed by someone like DG, that in my view gives a width and breadth to PSA determinations which goes beyond what is intended by the legislation, given the extremely unusual scenario presented by the supervision orders which was very much a matter which concerned  the Minister or the Attorney-General when supervision orders were introduced.

4I am satisfied that interpreting the legislation in the way that you have very efficiently and eloquently outlined to me would however result in a breadth of action by the PSA which could undermine what was clearly intended by Parliament.  That is, that the PSA is limited in conditions that it can impose, stating that as this is a residence clause and that the work the order has to do means the condition imposed by the PSA therefore relate to the way in which DG operates his residence, is to give a breadth to the operation of the PSA, such that any condition of a supervision order could be subject to the imposition of PSA conditions on the basis that it minimised the risk or it extended the work of an order.

5It is simply too broad and goes against what I see to be made quite clear by the Second Reading Speeches. 

6MS KAPITANIAK:  Your Honour, can I just suggest on one factor, I think you said the decision of your sister Judge Sexton, highly persuasive.  This, on a factual basis it might be almost identical, but Her Honour was dealing with a different wording of the direction.

7HER HONOUR:  Yes, all right.

8MS KAPITANIAK:  So the 'must reside alone' is what Her Honour Judge Sexton was dealing with.  That is not the direction that Your Honour is dealing with, okay, so I just wanted to make that ‑ ‑ ‑

9HER HONOUR:  No, I understand that but ‑ ‑ ‑

10MS KAPITANIAK:  I understand - I understand Your Honour's reasoning in terms of too broad ‑ ‑ ‑

11HER HONOUR:  I do not think it makes ‑ ‑ ‑

12MS KAPITANIAK: ‑ ‑ ‑ but I just wanted to make - yes.

13HER HONOUR: ‑ ‑ ‑ sufficient difference.  They are saying he must not allow these people to be at his residence within a particular time.

14MS KAPITANIAK:  Yes.

15HER HONOUR:  And the effect is still the same.  I mean, the subject of Her Honour Judge Sexton’s order could still associate with that woman or he could have her at the house if he wanted, as long as she was not living there.

16MS KAPITANIAK:  That is right.

17HER HONOUR:  All right.  Here DG can have his daughter and her partner at the house as long as they are not staying overnight.  It is the same effect.

18MS KAPITANIAK:  Yes.

19HER HONOUR:  In my view that sort of order or condition could only be imposed pursuant to a non-association condition.  To interpret it more widely is to undermine the very clear direction from Parliament pursuant to s27(4)(a).  That is, constitute the minimum interference with the offender's liberty, privacy or freedom ‑ ‑ ‑

20MS KAPITANIAK:  That is by a court.  The authority is directed by 139 which they can ‑ ‑ ‑

21HER HONOUR:  That is by a court ‑ ‑ ‑

22MS KAPITANIAK: ‑ ‑ ‑ aim to, they do not have to. 

23HER HONOUR:  Yes, they might ‑ ‑ ‑

24MS KAPITANIAK:  Your Honour is against me but - yes.

25HER HONOUR: ‑ ‑ ‑ aim to it but it must be related to a condition of the supervision order ‑ ‑ ‑

26MS KAPITANIAK:  That is right.

27HER HONOUR: ‑ ‑ ‑ and there is no non-association condition.

28MS KAPITANIAK:  Yes.

29HER HONOUR:  And in my view to order otherwise is to give an ambiguity to the operation of the various conditions of a supervision order which are specifically referred to by the Ministers in the two Reading Speeches I have been referred to. 

30MS KAPITANIAK:  Yes, Your Honour.

31HER HONOUR:  Again as Judge Sexton stated, I understand that it takes considerable patience and hard work to deal with people like DG.  It is a matter for DG as well. 

32MS KAPITANIAK:  I accept that, Your Honour, and I think as Judge Sexton said, there was no suggestion and I do not think my learned friend takes any particular issue with this either, but there is no suggestion that the PSA or those proposing recommendations to the PSA, the case workers, have done anything wrong here other than their job ‑ ‑ ‑

33HER HONOUR:  No they have not done - they have not wrong ‑ ‑ ‑

34MS KAPITANIAK:  It is acting on what they viewed ‑ ‑ ‑

35HER HONOUR:  I am sure they are worried about it but I do find that it is ultra vires.

36MS KAPITANIAK:  Yes, Your Honour.

37HER HONOUR:  But having said that, if you do not mind me, I will just address DG.

38MS KAPITANIAK:  No, not at all.

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