Director of Public Prosecutions v DJD

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2017 0145

IN THE MATTER of the Serious Offenders Act 2018 (Vic)

and

IN THE MATTER of an application under s 100 of the Serious Offenders Act 2018 (Vic) for review of a detention order

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
and
DJD (a pseudonym)	Respondent

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	10, 11, 12, 19 and 20 September 2024
DATE OF JUDGMENT:	13 November 2024
CASE MAY BE CITED AS:	DPP v DJD
MEDIUM NEUTRAL CITATION:	[2024] VSC 699

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PUBLIC LAW – Application for review of detention order – Unchallenged evidence that respondent remains unacceptable risk of committing a serious sex offence – Whether detention order only option to mitigate risk – Detention order not only option – Detention order revoked – Supervision order to be in made in place of detention order – Serious Offenders Act 2018 (Vic) ss 63, 64, 100, 104, 105, 108, 279, 280.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Taylor	Office of Public Prosecutions
For the Respondent	Ms J Munster with Ms I Siriwardana	Victoria Legal Aid

HER HONOUR:

Summary

On 28 February 2024, the Director of Public Prosecutions (‘the applicant’) applied for a review of a detention order in respect of the respondent, DJD.

The review hearing was heard over five days. The Court received several reports and affidavits, and heard oral evidence from a number of witnesses.

In short, the applicant submitted that the detention order should remain in operation. The respondent argued that the order should be revoked, but not immediately, to allow time for appropriate accommodation to be sourced and provide certainty for the respondent.

A significant portion of the evidence focussed on the steps that had been taken since this matter was last before the Court to find alternative accommodation for the respondent, so that he could begin to transition off the detention order. It quickly became clear that regrettably, no significant progress had been made by the relevant authorities.

It also became apparent that if the detention order were to be revoked, practically speaking, the only immediately available accommodation for the respondent would be Corella Place. Corella Place, for various reasons, is not ideal accommodation for the respondent, but ultimately, it is not the Court’s responsibility to find appropriate accommodation for persons on supervision orders, or decide where they should be housed. That is a question for the relevant authorities.

In reality, there is only one question that I must decide on this review. Put simply, that question has two parts:

(a) Does the respondent pose an unacceptable risk of committing a serious sex offence or violence offence?

(b) If so, is a detention order the only way to appropriately manage that risk?

For the reasons that follow, I am satisfied that the respondent still poses an unacceptable risk of committing a serious sex offence. However, I am not satisfied that a detention order is the only way that risk can be managed. In my view, his risk can be safely managed under a supervision order.

Therefore, I intend to revoke the respondent’s detention order, and make a supervision order in its place. Before I do so, I intend to hear further submissions from the parties, including counsel for the Secretary to the Department of Justice and Community Safety (‘the Secretary’), as to the appropriate conditions to attach to that order. Necessarily, that will be done on a later date.

If the respondent is moved to Corella Place, I acknowledge that this is far from ideal. However, I expect that the evidence of the experts has been heard loud and clear by the relevant authorities, and that all steps will be taken to ensure that the respondent’s residence there is only a temporary measure until more appropriate accommodation is sourced.

I also intend to make a further non-publication order in this matter.

Background

Since 19 August 2017, over seven years ago, the respondent has been detained in the Marlborough Unit of Port Phillip Prison. He is the last person in Victoria on a detention order.[1]
[1]T251.7–9; T276.2–6.

At all times during this period, he has been held as an ‘unconvicted prisoner’;[2] that is, a person who has served his custodial sentence but who is subject to a detention order made under the Serious Offenders Act 2018 (Vic) (‘the Act’).
[2]Serious Offenders Act 2018 (Vic) (‘the Act’) s 255(1).

The respondent’s detention order was most recently renewed by Tinney J on 10 March 2023, for a period of two years. It is therefore set to expire on 9 March 2025.

The applicant filed a notice of application for review on 28 February 2024. The review was heard before me on 10, 11, 12, 19 and 20 September 2024, with written closing submissions filed on 24 and 25 September 2024 (by the applicant and respondent, respectively). The respondent himself was present in court throughout the hearing.

Counsel for the Secretary was present at the hearing and addressed the Court on what would practically happen in the event that the detention order was revoked and a supervision order made in its place, and cross-examined a witness, but did not otherwise play a part in the proceeding.

The respondent

The respondent’s background and offending history has been comprehensively set out in previous judgments of this Court,[3] and in the expert reports filed in this review.[4] I briefly repeat some of the relevant background below.

Personal background[5]

[3]DPP v DJD [2017] VSC 776 (Riordan J) (‘DJD [2017]’); DPP v DJD [2018] VSC 827 (Tinney J); DPP v DJD (2020 Review) [2020] VSC 491 (Tinney J); DPP v DJD (Renewal application) [2023] VSC 46 (Tinney J).

[4]See, for example, Dr Joel Walter Godfredson’s progress report dated 9 January 2024 (‘Godfredson’s first report’), 5–27 [23]–[75].

[5]See, generally, DJD [2017], [2]–[15] (Riordan J); Godfredson’s first report, 26–27 [73]–[75].

The respondent was born in Hobart, Tasmania, in May 1978. He completed year 11 but reports having not enjoyed it, due to learning difficulties and bullying. He reported he was sexually assaulted by his sister’s boyfriend during his teenage years. After he left school in 1997, the respondent received a disability support pension and found employment in a supported workplace. He spent time between Melbourne and Tasmania, working in Melbourne in a supported workplace between 2002 and 2004, before finally settling in Melbourne in 2006. He has not worked since 2007.

The respondent has a history of substance abuse, ranging from alcohol, to cannabis and experimentation with amphetamines and heroin, as well as numerous suicide attempts. He has been diagnosed with borderline and antisocial personality disorders, and has a mild intellectual disability.

Offending
Prior to index offence

The respondent has a long history of offending prior to the index offence, including:

(a) Between 1998 and 2007, the respondent was either convicted or dealt with by a court without conviction for offences related to driving, disorderly conduct, using threatening words in public, failing to comply with police directions, behaving in a violent manner and/or destruction of property on six occasions, for which the respondent received either an adjourned undertaking or fine.[6]
[6]Godfredson’s first report, 23 [50]–[52].

(b) On 19 March 2009, the respondent was convicted of offences including indecent act in the presence of a child under 16 (one count), indecent assault (two counts), wilful and obscene exposure in public (two counts), behaving in an offensive manner in a public place (four counts), and obtaining financial advantage by deception (one count).[7] The sex offence charges related to occasions in October and November 2008 in which the respondent masturbated in public on various occasions and made sexual advances towards teenage girls while on trams.[8] He was sentenced to 12 months’ imprisonment with a non-parole period of six months and made subject to lifelong reporting obligations under the Sex Offenders Registration Act 2004 (Vic).[9]
[7]Ibid, 14–15 [35].
[8]Ibid.
[9]Ibid.

(c) On 6 January 2010, the respondent was convicted in New South Wales of assault with an act of indecency, and was sentenced to six months’ imprisonment.[10] The offending occurred on 21 December 2009, shortly after the respondent was released from prison, in which the respondent had grabbed a woman’s breast on a bus.[11]
[10]Ibid 16–18 [36]–[37].
[11]Ibid.

(d) On 12 April 2010, the respondent was convicted, again in New South Wales, of larceny and obtaining money by deception.[12] He was sentenced to six months’ imprisonment on each charge.[13]
[12]Ibid 23 [53].
[13]Ibid.

(e) On 20 July 2010, in Tasmania, the respondent was arrested in relation to two charges of assault with indecent intent, relating to two separate incidents that month.[14] In the first, the respondent is alleged to have approached a 17 year old school student and grabbed her crotch.[15] Later that month, the respondent is alleged to have followed a 21 year old female cinema employee into a disabled toilet and groped her.[16] This matter is apparently yet to be finalised, however, the respondent admitted the facts of the offending during a police interview.[17]
[14]Ibid 18–19 [38]–[39].
[15]Ibid 18 [39.1]–[39.2].
[16]Ibid 18 –19 [39.3]–[39.4].
[17]Ibid 18 [38], 19 [39.5].

(f) On 27 April 2011, the respondent was sentenced in respect of indecent assault (two counts), intentionally causing injury and recklessly causing injury.[18] The charges related to two incidents, the first occurring on 18 August 2010, when the respondent followed a female passenger from a tram, grabbed her crotch, punched her, and yelled ‘shut up bitch’ while trying to pull down his pants.[19] The second incident occurred the following day, 19 August 2010, when the respondent approached a female passenger on a tram and tried to speak with her.[20] When she disembarked the tram, the respondent followed her and put his belt around her neck, pulled her to the ground, lay on top of her and tore her shirt open.[21] The respondent was sentenced to 20 months’ imprisonment on the injury charges, with 12 months suspended.[22] The respondent was made subject to a five-year Residential Treatment Order at Disability Forensic Assessment and Treatment Service (‘DFATS’) in respect of the indecent assault charges.[23]

(g) While at DFATS, the respondent was charged with criminal damage and unlawful assault in relation to an incident in May 2011 where he punched holes in a wall and threw fruit around the unit.[24] He was convicted and fined by the Melbourne Magistrates’ Court on 7 August 2012.[25]

Index offence[26]

[18]Ibid 7 [28].

[19]Ibid 7–8 [29.1]–[29.6].

[20]Ibid 8 [29.7]–[29.8].

[21]Ibid 9 [29.12].

[22]Ibid 7 [28].

[23]Ibid.

[24]Ibid 23–24 [55].

[25]Ibid.

[26]See generally, Godfredson’s first report, 10–13 [30]–[33], 23–25 [54]–[63].

In June 2011, while residing at DFATS, the respondent grabbed a 24 year old female disability support worker from behind, saying ‘come here you bitch’. The respondent dragged the support worker towards a bathroom as she screamed for help and broke free however the respondent grabbed her again, overpowering her, and struggled with her on the ground, attempting to pull up her T-shirt. During the struggle, the respondent opened a bathroom door saying, ‘get in here bitch’. The respondent pulled her pants down and tried to force his hand into her vagina before dragging the support worker in to the bathroom saying, ‘get in there bitch’. The attack ceased when others arrived and restrained the respondent.

The respondent was charged with intentionally causing injury and indecent assault. He was returned to custody and the Residential Treatment Order was cancelled. On 7 February 2012, following a plea of guilty, his Honour Judge Punshon sentenced the respondent to five years and four months’ imprisonment with a non-parole period of three years and four months.

While serving sentence for the index offence, the respondent was convicted of criminal damage by fire (arson) on three occasions. On each occasion he was sentenced to a term of imprisonment to be served concurrently with his sentence for the index offence. In October 2013, the respondent was sentenced to 14 days’ imprisonment for unlawful assault in respect of an incident where he grabbed a nurse, pulled her to the ground and ripped her shirt. The respondent was restrained by Corrections staff. In July 2015, the respondent was sentenced to one day’s imprisonment in relation to an assault on another prisoner.

Further offending[27]

[27]See generally, Godfredson’s first report, 3 [9]–[12].

On 21 September 2016, the respondent was placed on an interim supervision order, and from 26 September 2016 resided at Corella Place.

On 14 February 2017, the respondent was convicted of criminal damage (one count), threat to commit a sexual offence (one count), assault with weapon (two counts), and failing to comply with a supervision order (three counts). The offending concerned a number of incidents occurring on 21 October 2016, where the respondent had set fire to his unit at Corella Place, fled with a knife, and after arrest, found amongst his possessions were magazines of topless models which included annotations. One annotation dated 21 October read, ‘I love Olivia and I am going to rape you soon’. The respondent was sentenced to 10 months’ imprisonment, with 116 days reckoned as time served.

Detention orders

The respondent was originally made the subject of an interim detention order by this Court on 17 August 2017, to commence on 19 August 2017.[28] He has been the subject of a detention order since 15 December 2017.[29] The detention order has been renewed (or on review, ordered to remain in place) ever since.
[28]DPP v DJD (Renewal application) [2024] VSC 46 (‘DJD [2024]’), [3] (Tinney J).
[29]Ibid.

Significantly, although there have been numerous instances of self-harm and other instances of problematic or administratively burdensome behaviour since residing in the Marlborough Unit, the respondent has not been charged with any further criminal offences. There have been setbacks along the way, but as will be outlined below, the respondent has made progress on the detention order. Nevertheless, he has remained in the Marlborough Unit for over seven years and, even by the conclusion of this review hearing, there simply is no actionable plan in place to transition him anywhere else.

Most recently, Tinney J observed:

Insofar as it was at least implied in the hearing that the agencies concerned may not be sufficiently motivated to take the steps necessary to ensure the eventual transition of the respondent into a less secure environment, the evidence did not bear that out. As I have said in the past:
The respondent presents great challenges to the authorities. It is clear that a great deal of time, effort and expense has been expended on managing those challenges and providing an exceptional level of care, supervision and support for the respondent, whilst doing what can be done to prepare him for transition to a less restrictive environment.

The evidence before me left the distinct impression that the relevant agencies fully understand that the indefinite detention of the respondent in his current situation is not an option. Much thought has been applied, and I am sure, will continue to be applied, to the resolution of this matter in a way which will have the respondent transition out of detention and onto a supervision order as soon as realistically possible. The authorities must continue to take all possible steps to ensure that outcome. The interests of justice require nothing less.[30]

[30]DJD [2024], [76]–[77] (citations omitted).

Though made in written reasons published in February 2024, Tinney J’s comments were made in the context of the December 2022 hearing.

For all the thought both before the last hearing and in the intervening two years, no concrete plan to transition the respondent out of detention and onto a supervision order has eventuated. The respondent remains in the Marlborough Unit, where he has been for seven years, with no end in sight.

Whilst there was evidence that efforts have been made in regards to, for example, attempting to obtain a Supported Independent Living (‘SIL’) package for the respondent, those efforts have, at the time of review, proved fruitless. To put it bluntly, and from the perspective of transition planning only, the respondent is no closer to leaving the Marlborough Unit than he was in December 2022.

Although I accept that a considered and thorough plan for the respondent’s transition from a detention order to a supervision order may assist in determining my task on review, I do not consider that it is decisive. Further, whilst I accept that a transition plan may provide comfort to the applicant, the respondent, and the agencies involved in managing and supporting the respondent, that is also not a decisive matter upon review.

On review, the question I must ultimately decide is whether the respondent still 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 is not in effect and the respondent is in the community, and, importantly, whether that risk will be unacceptable unless a detention order is made.[31]
[31]The Act ss 63, 64, 104, 108.

The legislative scheme

This application for review was brought pursuant to s 100 of the Act. Section 104 of the Act outlines the purpose of a review which is, relevantly, to determine whether the detention order should remain in operation or be revoked, and, if revoked, whether the detention order should be replaced with a supervision order.[32]
[32]Ibid s 104(a) and (c).

Section 108 sets out the decisions available on review of a detention order:

108 Decision on detention order—general
(1)On a review of a detention order, the Supreme Court must revoke the order unless it is satisfied that the offender still 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 is not in effect and the offender is in the community.
(2)The Supreme Court may make an order under this section even if the offender is remanded in custody or is serving a custodial sentence.
(3)Sections 62, 63 and 64 (with any necessary modifications) apply to the review of a detention order.
(4)If the Supreme Court is not satisfied that the risk would be unacceptable unless a detention order were made, the court may revoke the detention order and make a supervision order.
(5)Part 3 (with any necessary modifications) applies to the making of a supervision order under this section.

Sections 62, 63, and 64 set out the circumstances in which the Court is empowered, upon application, to make a detention order and the criteria to which it must and may have regard. Relevantly:

62 Determination of application for detention order
(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.

…

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; or
(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.

As I stated in DPP v CS (‘CS’),[33] the process of considering whether to make a detention order pursuant to ss 63 and 64 can be summarised in the following three steps:[34]
[33][2021] VSC 686.
[34]Ibid [23].

(a)first, under s 63(1), the Court must consider whether 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;
(b)secondly, if satisfied that the risk referred to in s 63(1) is unacceptable, the Court must consider whether 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, in accordance with s 64; and
(c)thirdly:
(i)if satisfied that the risk referred to in s 64(1) is unacceptable, the Court may make a detention order under s 62(1) or exercise its residual discretion in s 62(5) to make no order; or
(ii)if not satisfied that the risk referred to in s 64(1) is unacceptable, the Court may make a supervision order under s 62(3) or make no order under s 62(5).

These three steps must necessarily be slightly modified for the purpose of a review, insofar as the Act indicates that the Court must revoke the detention order unless satisfied that the respondent still 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 is not in effect and the respondent is in the community.[35] If not satisfied that the risk would be unacceptable unless a detention order were made, the Court may revoke the detention order and make a supervision order.[36]
[35]The Act s 108(1).
[36]Ibid s 108(4).

Unacceptable risk is not defined in the Act but was considered, in the context of the predecessor legislation, in Nigro v Secretary to the Department of Justice.[37] There, the Court said:

The common law presumption in favour of the liberty of the subject underpins the predictive inquiry required under s 9. 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. A finding of unacceptable risk is compatible with human rights under the Charter because the threshold requirement depends upon both the severity of the apprehended conduct and the likelihood that the conduct will occur. Some level of risk remains acceptable. The test of unacceptable risk enables an appropriate balancing of competing considerations.
Whether a risk is unacceptable depends upon the degree of likelihood of offending 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 circumstance, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence. The principle in [Briginshaw v Briginshaw (1938) 60 CLR 336] is relevant to an evaluation of the quality and sufficiency of the evidence. The court must be satisfied to a high degree of probability that there is an unacceptable risk. That is a standard well above the civil standard and approaching the criminal standard.[38]

[37](2013) 41 VR 359 (‘Nigro’).

[38]Ibid 363 [5]–[6] (citations omitted).

Those principles have been applied in cases considering detention orders and supervision orders under the Act and is relevant to the construction of ‘unacceptable risk’ in the present statutory context.[39]
[39]CS, [24]; Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707, [26].

Section 105 sets out the matters the Court must and may consider on review of a detention order:

105 Matters to be considered by the court
(1)In reviewing a detention order or supervision order, the court must consider—
(a)a progress report relating to the offender; and
(b)any other report made, or evidence given, by a medical expert; and
(c)any report made by the Secretary, the DPP or the Authority; and
(d)any submissions made by the parties to the review.

(2)In reviewing a detention order or supervision order, the court may also consider—
(a)any previous assessment report or progress report filed with the court in relation to the offender; and
(b)anything else that the court considers appropriate.

Evidence

The following expert reports were filed on the review:

(a) Associate Professor Rajan Darjee, consultant forensic psychiatrist;

(b) Dr Joel Walter Godfredson, clinical and forensic psychologist; and

(c) Dr Kevin Ong, consultant forensic psychiatrist.

Dr Godfredson gave oral evidence for the applicant; Associate Professor Darjee gave oral evidence for the respondent. Dr Ong was not called.

Oral evidence was also given for the applicant by:

(a) Mr Anthony Enzo Calandro, Acting Director of the Post Sentence Branch, Corrections Victoria;

(b) Ms Jennifer Ann Hosking, Acting Deputy Commissioner of Custodial Operations, Corrections Victoria (and otherwise Assistant Commissioner for Sentence Management);

(c) Dr Columb Matthew John Frize, Director of Forensic Disability Services within the Department of Families, Fairness and Housing; and

(d) Ms Helen Beavan, Branch Manager Technical Advice and Practice Improvement, National Disability Insurance Agency (‘NDIA’).

For the sake of convenience, I will refer to all witnesses in this matter by their surnames only.

The applicant relied upon the following material:

(a) Godfredson’s progress report dated 9 January 2024 (‘Godfredson’s first report’), an addendum report dated 18 August 2024 (‘Godfredson’s second report’), and an affidavit affirmed 6 August 2024;

(b) Ong’s psychiatric progress report dated 26 January 2024 (‘Ong’s report’);

(c) Calandro’s affidavit affirmed 5 August 2024 (‘Calandro affidavit’), and supplementary confidential affidavit affirmed 5 August 2024;

(d) Hosking’s affidavits affirmed 6 August 2024 (‘Hosking’s first affidavit’) and 6 September 2024;

(e) Mr Marco Gardi and Ms Clara Jones’ Suitability for Entry to [a Residential Treatment Facility (‘RTF’)] Assessment report (‘RTF Assessment Report’), dated both 29 May 2024 and 12 June 2024;[40]

(f) Beavan’s response to a request for information dated 19 September 2024 (‘Beavan’s response to RFI’).

[40]The correct date was not resolved. See T324.26–325.4.

The respondent relied upon:

(a) Darjee’s forensic psychiatric report dated 25 August 2024 (‘Darjee’s first report’), and an addendum forensic psychiatric report dated 3 September 2024 (‘Darjee’s second report’);

(b) an email exchange between Calandro and Mr Matthew Ormsby, Acting Assistant Director – Justice Liaison, Complex Support Needs Branch at the NDIA, between 11 and 13 September 2024.

In determining this matter, I have had regard to all of these materials, the evidence given before me, as well as the parties’ submissions, both orally and as expanded upon in written submissions filed after the hearing.

The s 63 question

The first question I must is whether the respondent 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 respondent is in the community.

The experts were unanimous in their approach to measuring the risk the respondent poses of committing a serious sex offence or serious violence offence using both actuarial (eg, Static-99 and Static-99R) and structured professional judgement (eg, RSVP-1 and RSVP-2, HCR-20 V3, PCL-R) ratings. Though these tools may be critiqued insofar as they consider historical offending, and so people with lengthy and significant criminal history (like the respondent) will continue to be assessed as being a relatively high risk of committing future offences despite improvements or development in dynamic factors,[41] no submission was advanced as to limitations of these tools.
[41]CS, [155].

The experts agreed that the respondent poses a high risk of sexual recidivism.[42]
[42]Darjee’s first report, 7 [24]; Godfredson’s first report, 76 [346]; Ong’s report, 33 [137].

Godfredson opined:

Based on the pattern of [the respondent’s] prior sexual offences, a number of hypotheses and [sic] can be made:
[1][The respondent’s] engagement in chronic and diverse sexual offending infers the presence of longstanding psychological vulnerabilities (i.e., risk factors).
[2]Among [the respondent’s] risk factors include courtship deficits and unmet sexual needs.
[3]On some offending occasions, [the respondent] appears to have been hypervigilant to rejection and oblivious to the manner in which he orchestrated this subjective outcome.
[4]On other offending occasions, [the respondent] was probably lamenting his circumstances and anticipated rejection in the absence of any interaction with the victim.
[5]In each instance, [the respondent’s] engagement in sexual violence appears to have been associated with intense emotions which compromised his baseline reasoning abilities.
[6]The manner in which [the respondent] conveyed anger and entitlement towards the victims appears to reflect the externalisation of cumulative resentment and feelings of inadequacy.
[7][The respondent’s] hypothesised experience of perseveration would explain his apparent inability to down-regulate his offence-related thoughts and feelings.
[8][The respondent] has shown the propensity to commit sexual offences in the absence of substance intoxication, highlighting the profound influence of his emotions on his behaviour.
[9]The observation that [the respondent] committed sexual offences in a secure setting underscores the extent of his offence-related vulnerabilities.

…
Were [the respondent’s] risk of sexual offending to materialise, by reference to his prior sexual offences, there are a number of potential scenarios, including exhibitionistic behaviour, contact sexual offending, or threats to commit a sexual offence. As described below, the relative likelihood of these scenarios would depend on [the respondent’s] circumstances.
In a custodial environment or secure treatment facility, [the respondent] poses some risk of committing sexual offences against female staff members, including grabbing or touching in a sexual manner, or attempting to commit rape. He also poses some risk of exposing himself and uttering threats to commit a sexual offence. Fortunately, [the respondent] has not exhibited such offences in recent years. However, the risk may be elevated in circumstances where [the respondent] exhibits poor behavioural controls and has the opportunity to act on sexual urges towards female staff. The risk would also be elevated if [the respondent] experienced cumulative resentment regarding his desire for intimacy.
Were he left to his own devices in the community, [the respondent] would pose a high risk of committing contact sexual offences against adolescent or adult females. The offending may range from grabbing or touching in a sexual manner to attempting to commit rape. The offending might be associated with other forms of violence (e.g., assault). The offending is likely to occur against a background of difficulty coping and may or may not be associated with substance intoxication. The offending is likely to be preceded by intense feelings of rejection irrespective of whether [the respondent] has spoken to the victim. In turn, these feelings are likely to overwhelm [the respondent’s] capacity for reasoning.[43]

[43]Godfredson’s first report, 65–66 [296]; 76 [347]–[349]; See also Godfredson’s second report, 19 [72]–[74].

Ong concluded:

[The respondent] continues to fall into a High risk category for re-offending (of those in this category, as a group, 52% reoffend within 15 years without interventions). Risk factors identified in [the respondent] include multiple convictions for sexual offences, convictions for non-sexual offences, multiple prior sentencing dates, never having lived with a lover for two years, and unrelated/stranger victims.
…
Based on my assessment of [the respondent], together with the information available to me, it is my opinion that [the respondent] presents a high risk of a Schedule 1 sexual offence in the future. There has been little change since the last assessment.
[The respondent] has demonstrated criminal versatility regarding his sexual offending, ranging from exposure offences on public transport to indecent assaults within secure settings. His pattern of offending prior to his incarceration in 2011 signified an increase in frequency (often offending soon after release from periods of custody), as well as severity. [The respondent’s] later offending, for example at DFATS in 2011, constituted significantly more premeditation on his part, as well as the use of means to restrain his victim.
Any future offending is likely to be similar to previous offending, with a mixture of impulsive and premeditated actions, and is likely to involve adult female victims. This would include masturbation on public transport in front of victims, as well as contact offences where he is likely to engage in attempts to coerce victims through physical force/restraint. I believe that it is only by good fortune with the intervention of others that [the respondent’s] assaults have not escalated to penetrative offences. Assaults are more likely to occur when [the respondent] feels rejected and/or is angry towards potential victims, and is under the influence of disinhibiting substances. Of note, [the respondent] recently has behaved inappropriately toward males. This is likely to be a result of victim availability rather than preference.[44]

[44]Ong’s report, 23 [105], 33-34 [137]–[139] (emphasis in original).

Darjee agreed with both Godfredson and Ong, and did not specify an exact likely future offending scenario but observed:

The historical and static factors in [the respondent’s] case indicate that his likelihood of committing a further sexual offence if released without monitoring, supervision and support would be well above that of the average man with a sexual conviction.
The dynamic factors underpinning the risk he poses of sexual violence are: his attitudes towards women, problems with self-awareness, problems with emotional dysregulation and poor coping, overcompensating for feelings of inadequacy, sensitivity to rejection and humiliation, with problems in intimate and nonintimate relationships, behavioural disinhibition, and lack of concern for others particularly when focused on his own emotional needs.[45]

[45]Darjee’s first report, 7 [24]–[25].

Similarly, the experts agreed that the respondent poses a high risk of committing a serious sex offence if he were in the community and not subject to a detention order or supervision order.[46] There was nothing to displace this evidence.
[46]Ibid 7 [24], 8 [27]; Godfredson’s first report, 79 [357]; Godfredson’s second report, 22 [82]; Ong’s report, 35 [148]; See also T27.10–28.9.

The respondent has committed serious sex offences both in the community, and during a prior placement in a DFATS facility. Crucially, there would be no measures in place to contain the risk in the abstract, nor to mitigate any of the specific risk factors identified by the experts above, if the respondent were not subject to a detention order or a supervision order, and at liberty in the community. Importantly, the experts agreed that offending would likely occur against a background of poor emotional regulation, such as feeling rejected or humiliated. Without the necessary treatment and intervention supports, as outlined further below, the respondent would be left to navigate any such experience by himself.

The expert witnesses appeared in broad agreement about the respondent’s risk profile. There were a number of static and historical factors which informed that profile, along with the dynamic factors outlined most comprehensively by Darjee at paragraph 53 above.

Importantly, Godfredson and Darjee agreed that the respondent’s diagnoses[47] contribute to his risk assessment. As described by Darjee:

his intellectual disability means he struggles to comprehend things… And then when you consider that he also has these personality disorder features as well, the, the two go together and give an overall picture of someone who very much struggles to cope, um, in relationships, um, emotionally, um, he can struggle with his behaviour… I think it's, um, difficult with [the respondent] to kind of disentangle one from the other…they clearly underpin the risk that he poses…[48]

[47]See, generally, Darjee’s first report, 6 [20]-[21]; Godfredson’s first report, 64 [284]-[285].

[48]T23.8–24; see also T23.26–24.8 (Godfredson).

The significance of this conclusion is that it highlights the importance of the supports and interventions the respondent requires (described later in these reasons) as a key factor in risk management.

Taking into account the expert reports, and the evidence given by Godfredson and Darjee, I am therefore satisfied, to a high degree of probability,[49] that the respondent poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence if he were in the community and not subject to a detention order or supervision order. In my view, there is a high degree of likelihood that the respondent will commit a serious sex offence in the future. The magnitude of harm that any such offending will occasion is self-evident. Not only harm to a potential victim of the respondent, but to the respondent himself insofar as it will completely undo the progress he has made on the detention order.
[49]Nigro, 363 [6].

The experts differed in respect of the respondent’s risk level regarding committing a serious violence offence. Godfredson and Ong assessed that risk as moderate.[50] Whilst Darjee did not specifically address this issue, he stated he thought there would be a ‘moderate’ likelihood of violence but that it would not reach the threshold for a serious violence offence under the Act, nor did he have concern for that type of violence in the future.[51]
[50]Godfredson’s first report, 79 [358]; Godfredson’s second report, 22 [83]; Ong’s report, 36 [151].
[51]T27.30–28.9. For completeness, Ong and Godfredson agreed the respondent poses a high risk of sexual violence and violence, but only a moderate risk of committing a serious violence offence. See Godfredson’s first report, 62 [274], [276] (high risk of sexual violence), 63 [282], 77 [352]-[354] (high risk of violence, moderate risk of serious violence offence); Ong’s report, 27 [112] (high risk of sexual violence), 29 [117], 34 [140] (high risk of violence, moderate risk of serious violence offence).

Accordingly, I am not satisfied that the respondent poses, or after release from custody will pose, an unacceptable risk of committing a serious violence offence if he were in the community and not subject to a detention order or supervision order. In my view, a ‘moderate risk’ of serious violence falls short of the high degree of probability that I am required to hold to find that the risk posed by the respondent is unacceptable. Particularly, I note that the respondent has never been convicted of a serious violence offence before.

The s 64 question

Having concluded that the respondent poses, or after release from custody will pose, an unacceptable risk under s 63(1), the Court must now consider whether, under s 64(1), it is satisfied to a high degree of probability that the respondent poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both unless a detention order were made.

As I said in CS:

Section 64 calls for the balancing of competing considerations. On the one hand, these considerations include the degree of likelihood of offending and the seriousness of the consequences if the offending occurs (being the two components of ‘risk’); on the other, the capacity of that risk to be managed under a supervision order, and the impact of a detention order on the respondent and his rights.
Section 64 of the Act is titled ‘Detention order only option’. In order to enliven the Court’s power to make a detention order, the incremental risk under a supervision order (when compared to a detention order) must be sufficiently great that the overall risk is properly described as unacceptable ‘unless a detention order were made’.
Unlike s 63, s 64 does not explicitly state that the applicant bears the burden of proving that an offender poses or will pose an unacceptable risk unless a detention order were made. However, I consider that the applicant necessarily bears the onus of satisfying the requirements of s 64.[52]

[52]CS [134]–[136] (citation omitted).

The crux of the question in s 64 can be distilled, simply, to the following: is a detention order the only means of appropriately managing the risk posed by the respondent? The phrase ‘only option’, as used in the title of the section and reiterated in the Explanatory Memorandum,[53] is a forceful phrase of considerable weight. It must necessarily create a high threshold.
[53]Explanatory Memorandum, Serious Offenders Bill 2018 (Vic) 41.

In addition to the matters contained in s 64(3), that question will, of necessity, involve consideration of various ancillary factors. Logically, it will require consideration of the ‘real existing post-sentence facilities that are available on a supervision order’.[54] But available accommodation is not a determinative factor. Previous judgments of this Court have made clear that, for the purpose of the test under s 64, the Court is not concerned with issues of resourcing or other practical difficulties in implementing necessary risk-reduction measures.[55] Ultimately, the determination of where and how a particular offender will be housed under a supervision order is a matter for the relevant authorities.
[54]DPP v DW [2023] VSC 24 [174].
[55]CS, [181], [217]–[218]; DPP v LD (No 7) [2023] VSC 518 [286], [288]-[290], [311].

Parties’ submissions

The applicant submits that the Court ‘is faced with no option … but to extend the operation’ of the respondent’s detention order.[56] Before outlining the basis on which that submission is made, it is worth explaining why I consider that submission to somewhat misconstrue the powers of the Court on review.
[56]Applicant’s closing submissions dated 24 September 2024 (‘A subs 2’), 6 [20].

As noted earlier in these reasons, this application is a review pursuant to s 100 of the Act. Section 104 outlines the purposes of a review which, relevantly, is to determine whether a detention order should remain in operation or be revoked.[57] Section 108 outlines the relevant powers the Court has on review. First, the Court must revoke the order unless satisfied 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 is not in effect and the offender is in the community.[58] Secondly, if the Court is not satisfied the risk would be unacceptable unless a detention order were made, the Court may impose a supervision order.[59] There is no relevant power, on review, to ‘extend’ the detention order. The natural effect of not revoking a detention order is that the detention order would continue until it expires or a further application was brought.
[57]The Act s 104(a).
[58]Ibid s 108(1).
[59]Ibid s 108(4).

The applicant’s submission that a detention order be ‘extended’ was made on the basis that:

(a) there was consent to the extension of the detention order from the parties;[60] and
[60]A subs 2, 6 [20].

(b) there was unchallenged evidence, unanimous in all material respects, that the detention order remains necessary to contain the unacceptable risk that the respondent poses, or would pose after release from custody, of committing a serious sex offence or serious violence offence or both,[61] noting specifically that:
[61]Ibid.

(i) the lack of a transition plan was prohibitive of a finding that the respondent could be managed under a supervision order without posing an unacceptable risk to the community;[62] and

(ii) the levels and types of support required by the respondent negate an immediate transition into the community which, absent those supports, would ‘set him up for failure’.[63]

[62]Ibid 8 [28].

[63]Ibid 8-9 [31]–[32], [34].

The respondent submits the Court cannot be satisfied that he poses an unacceptable risk of committing a serious sex offence unless a detention order were made.[64] Relevantly:
[64]Respondent’s closing submissions dated 25 September 2024 (‘R subs 2’), 21 [87].

(a) the overwhelming evidence given in the review hearing is that he ‘can and could’ be safely managed in the community under a supervision order, noting that:[65]
[65]Ibid 21 [88].

(iii) there is a greater understanding of how his disability and psychological profile provide avenues to work with him;[66] and
[66]Ibid 5 [25](a).

(iv) he has engaged with services and made progress;[67] and

(b) whilst accommodation and support options are currently limited, this can be rectified and, at any rate, ought not be the reason for continued detention;[68] and

(c) there are therapeutic limits that his present custodial setting imposes, and prolonged detention is both harmful to him and potentially counterproductive to his ongoing treatment.[69]

[67]Ibid 5 [25](c).

[68] Ibid 21 [88](b).

[69]Ibid 5 [25](c)-[25](d).

Nevertheless, the respondent, ‘with great reluctance’ did not oppose ‘the temporary continuation of his [detention order]’.[70] It was submitted on his behalf that the Court should provide the applicant with ‘a short period of two to three months to transition him to the community’, after which time the Court would revoke the detention order. It was put on behalf of the respondent:
[70]Ibid 2 [7] (emphasis in original).

Immediate revocation risks setting him up to fail, given his disabilities and complexities and the fact he does not have community-based accommodation (apart from Corella Place) or supports in place. This would likely cause anxiety, fear and self-harm. It may also lead to minor offending and further custody.
This untenable situation arises from the lack of any progress, or meaningful progress, in community transition planning undertaken by the government agencies who have responsibility for [the respondent’s] forensic and disability needs.
…
The respondent proposes that the Court provide time and incentive to put community-based housing and supports in place, and at that point, revoke the [detention order].
Such an outcome could be structured in one of the following ways:
a.   Order that the [detention order] be revoked, with revocation to take effect on a future date (say, in two to three months’ time);
b.   Announce a likely intention to revoke the [detention order] on a future date and adjourn the review hearing to a future date (say, in two to three months’ time); or
c.   Adjourn the review hearing to a future date at which time arrangements to transition [the respondent] to the community will be reviewed, including (but not limited to) interagency collaboration between the Department of Justice and Community Services… (incorporating Corrections Victoria and the Post-Sentence Branch), the Department of Families, Fairness and Housing… and the National Disability Insurance Agency.

There is nothing in the Act which prevents the Court from adjourning a review hearing and/or from structuring orders in the way proposed.
Such time frame would allow for community based accommodation and supports to be put in place and provide certainty to all those involved in [the respondent’s] management and care, and to [the respondent] himself.[71]

[71]Ibid 2 [8]–[9], 22 [90]–[93].

Before turning to consideration of the evidence and its application, I note the following in relation to what was proposed on behalf of the respondent. In essence, the respondent’s proposal asked the Court to step into a quasi-supervisory role by providing a looming deadline and incentivising the authorities to act. Firstly, no power under the Act was identified by which a delayed revocation of his detention order, or an adjournment of the review, could be done for this purpose. Moreover, any of the respondent’s three suggested ‘outcomes’ would involve the Court temporising for, and to, the respondent’s advantage. This has the appearance of, or indeed actually involves, the Court taking an impermissible and partisan position. Finally, this submission optimistically assumes that the Court’s delayed revocation would actually incentivise the relevant government agencies to advance the respondent’s transition off of his detention order. It does not consider that nothing may change in the intervening two to three months. What precisely the Court might do in that situation was not articulated.

To put the Court in such a position is, to echo the respondent, untenable. It is not the responsibility of the Court under the Act to so closely monitor the relevant agencies’ progress and essentially hold the relevant authorities to ransom by announcing a future revocation date. While I understand the sheer frustration at the lack of meaningful progress towards transitioning the respondent to another facility or residential setting, the Court is not the appropriate vehicle to require or force the various agencies and stakeholders to action. This approach should be discouraged.

Evidence

I will briefly summarise the evidence that was adduced over the five days of the hearing. At this juncture, and noting the nature of much of the evidence, I wish to reiterate what I have stated above. As counsel for applicant stated in her opening remarks, in many respects the question for me to answer is ‘reasonably straightforward’[72] and concerns whether the detention order is the only option of managing the risk posed by the respondent. While a significant portion of the evidence was directed towards the transition planning that has taken place since the last hearing, and the suitability or otherwise of various accommodation options, the focus must remain at all times on whether a detention order is the ‘only option’.
[72]T8.18-9.18.

Progress on the detention order

From the outset, I consider it important to note that the evidence clearly established that there are limits to the ability of the respondent to progress in treatment within the confines of his custodial setting.[73] This is all the more so given the respondent currently has the security classification ‘A2’, which is maximum security.[74] Incredibly, ‘maximum’ is a misnomer. Hosking gave evidence that the highest security classification was, aptly, ‘high security’; she agreed with the proposition that maximum security comes ‘just below that’.[75] Hosking gave evidence that maximum security offenders are subject to greater levels of supervision and procedural restriction (eg, greater security measures taken when the person is taken outside of prison) than low or medium security.[76]
[73]T68.24–70.19; T91.10– 92.26.
[74]T228.20–24.
[75]T228.25–31.
[76]T229.8–31.

Despite his detention and security classification, Godfredson and Darjee agreed the respondent has made positive progress on the detention order since the last hearing.[77]
[77]Darjee’s first report, 7 [26]; Godfredson’s first report, 68 [302].

Nevertheless, the respondent has continued to display some problematic behaviour throughout the review period.[78] Darjee, Godfredson, and Ong identified behaviours including:

·several instances and threats of self-harm, including suicide attempts;[79]
·comments of a sexual and/or aggressive nature;[80]
·hoarding of images and newspaper clippings depicting females;[81] and
·refusal to engage in treatment.[82]

[78]Godfredson’s first report, 67–68 [300]–[307]; Ong’s report 31–32 [126]–[131]. For completeness, Darjee did not specifically identify these behaviours as problematic per se.

[79]See, for example, Darjee’s first report, 5 [15]–[16]; Godfredson’s first report, 31 [94], 36 [128]–[129,] 38 [143], 43 [173], 44 [182]–[184]; Ong’s report, 11 [45]–[46].

[80]See, for example, Godfredson’s first report, 32 [101], 38 [143], 39 [150], 45 [187]; Ong’s report, 12–13 [49]–[51].

[81]See, for example, Godfredson’s first report, 37 [134], 38 [143], 42 [171]; Ong’s report, 11 [47].

[82]See, for example, Godfredson’s first report, 36 [125], 38 [142].

Godfredson described the respondent as having a ‘great deal of motivation’ to progress.[83] Godfredson’s first report noted that, since the last review in 2022, the respondent appeared to have exhibited ‘relative emotional and behavioural stability’ which he attributed to the respondent’s ‘highly structured environment in the Marlborough Unit and his ready access to professional support.’[84] He acknowledged that the respondent had made ‘incremental improvement’[85] even if, as he posited, the respondent’s engagement in treatment is more often than not hampered by situational crises.[86]
[83]T29.26–27.
[84]Godfredson’s first report, 68 [302].
[85]Ibid.
[86]Ibid 68 [306].

Godfredson concluded:

Throughout the review period, [the respondent] has engaged in various interventions intended to address his psychological vulnerabilities. These interventions have been tailored in accordance with [the respondent’s] intellectual limitations. In respect of offence-specific treatment, [the respondent] has participated in treatment to the best of his ability. Whilst these interventions have not resulted in any material reduction in [the respondent’s] risk, they are essential to maintaining his emotional and behavioural stability. [The respondent] should be commended for his ongoing commitment to progress.[87]

[87]Ibid 78 [355].

Godfredson’s second report noted that, in the most recent review period (ie, from 9 January 2024), the respondent ‘remains limited in his capacity to maintain emotional and behavioural stability.’[88] Godfredson concluded:

Throughout the brief review period, [the respondent] has continued to engaged [sic] in various interventions intended to address his psychological vulnerabilities. These interventions have been tailored in accordance with [the respondent’s] intellectual limitations. For the most part, his progress in offence-specific treatment is hampered by situational crises and the need to re-establish emotional and behavioural stability.[89]

[88]Godfredson’s second report, 14 [46].

[89]Ibid 21 [80].

Darjee described the respondent’s motivation to progress as ‘good’.[90] Darjee’s first report summarised:

Overall, [the respondent] has maintained the progress in terms of reduced self-harm, problematic sexual behaviour, aggression and disruptive behaviour, which was apparent over the two years between my two previous meetings with him, albeit that, as one would expect, there have continued to be some incidents of note.[91]
…
Ongoing positive progress over the last two years has included a lack of significant problems with treatment or supervision (despite some occasions where he has missed sessions and him having ongoing psychosocial difficulties despite intervention), having some insight and self-awareness, good engagement with work and rehabilitative activities, and some ability to plan in a prosocial way. He has longstanding and ongoing problems with psychosocial functioning (i.e., personality disorder and intellectual disability) which are developmental in origin, underpin his long-term risk profile, and are significant responsivity factors. Despite some improvements in his functioning and behaviour, it is likely that his intrinsic functioning and behaviour will be similar to how it has been over the last few years in the medium term (next two to three years). This underpins the importance of being in a structured and supportive environment, working with multi-disciplinary staff who know him well and work to a shared plan, and having appropriate risk management measures in place.[92]

[90]T29.19–20.

[91]Darjee’s first report, 3 [9].

[92]Darjee’s first report, 3 [9], 7 [26].

Darjee did not alter his position on the respondent’s progress in his second report.[93] At the hearing, he made an important distinction between problematic behaviour, particularly in the context of a custodial setting, and behaviour that indicates or increases the risk of sexual offending:

So for example, if you look to some of the behaviours that occurred over the last two to three years, even the ones that um, may be seen as having some kind of sexual element to them, you know, none of them would reach the threshold for being a serious sexual offence.[94]

[93]Darjee’s second report, 1 [5].

[94]T58.28–59.2.

Finally, Ong’s report stated:

[The respondent] continues to be able to discuss strategies to reduce distress when emotionally heightened, though has difficulty in being able to apply strategies consistently.
…
He appears to have benefitted from the stability of intensive personal supports provided to him on Marlborough Unit. Provision of structured activity, including meaningful work and recreation has also been of benefit. Ongoing efforts should be made to address his impulsivity and emotional dysregulation, and he has been able to demonstrate modest improvement in this regard.[95]
[95]Dr Ong’s report, 34 [142], 35 [145].

Accommodation options outside of custodial setting

Extensive evidence was given regarding the suitability of existing accommodation options, which also highlighted the adaptations that would need to be made to suit the respondent’s needs and the risk he poses to the community. Although other options were canvassed (for example, in the Calandro affidavit), much of the focus was on the respondent’s suitability for a custodial setting, Rivergum Residential Treatment Centre (‘Rivergum’), Corella Place, a RTF, and SIL. For that reason, I consider them briefly below.

I note, particularly, the following opinions of Godfredson and Darjee in regards to accommodation:

Godfredson
[I]t is my opinion that [the respondent] should only be transitioned to accommodation that has been designed to meet his needs. Any transition to an unsuitable environment for the mere sake of progress is likely to undermine [the respondent’s] hard-earned gains and pose a significant risk to the public.[96]
Darjee
In principle, what [the respondent] requires is to transition from his current high security disability setting (i.e., Marlborough Unit), to a less secure disability setting where he can be prepared for and tested out further in the community, and then on to appropriate supported accommodation in the community with input from a multi-disciplinary team involving community correctional and disability services and with ongoing support, treatment, supervision and risk management. He will clearly require 24/7 support to be able to function, to keep him safe, and to manage his behaviour.[97]

[96]Godfredson’s first report, 71 [319].

[97]Darjee’s first report, 8, [29].

I note also the evidence of Frize in respect of the responsibility for finding accommodation. Despite initially agreeing with the proposition that the State of Victoria has the responsibility for obtaining suitable accommodation and treatment for the respondent,[98] Frize immediately qualified this by saying ‘we’re responsible but we’re one of a number of parties who are responsible.’[99] In what followed, Frize pushed back at the suggestion that the State was directly and solely responsible,[100] before, finally, conceding that it was the responsibility of Corrective Services and the Post Sentence Branch.[101]
[98]T375.31–376.3.
[99]T376.3–5.
[100]T376.9–377.7.
[101]T377.16–23.

To this end, I found Hosking’s evidence about the custodial setting as startling as it was bleak:

I think that’s where very much we, ah – in, in a custodial sense – are often the service of last resort… We’re the only service that can’t say no… and so we have a number of people who should be, in my opinion, accommodated elsewhere, um, but there is no service available.[102]

Custodial settings

[102]T278.30–279.5.

The common theme emerging from the experts’ evidence was that, in an ideal world, the supports offered in the Marlborough Unit at Port Phillip Prison would be transposed to any new accommodation.[103] In Godfredson’s opinion, the Marlborough Unit appeared ‘to be an ideal placement in terms of promoting [the respondent’s] emotional, behavioural and lifestyle stability.’[104] Godfredson went on to recommend:

Whether or not [the respondent] might ultimately be deemed suitable for placement in a less secure prison is a matter for Corrections Victoria. Regardless of [the respondent’s] security classification, it is strongly recommended that he continue to have access to intensive support services tailored to his needs, including intellectual disability.[105]

[103]Darjee’s first report, 9 [32]; Godfredson’s first report, 69 [311].

[104]Godfredson’s first report, 69 [311].

[105]Ibid 69 [312].

Darjee noted that, ‘there is already a template for what [the respondent] needs in terms of what he is currently provided with in the Marlborough Unit.’[106] However, he also stated that continued detention in the Marlborough Unit itself puts the respondent at risk of stagnating in terms of his treatment and of becoming entirely reliant on the supports he receives.[107] Darjee also gave evidence, generally speaking, of the suitability of the custodial setting, which also included an acknowledgment that risk could be similarly managed outside of it:

it seems certainly with the Marlborough Unit, he can be managed in a way that that's not going to be a risk, and I think if he was being supported in the right way in a less secure setting, he could be managed in a way that there wouldn't be an escalation in that particular risk.[108]

[106]Darjee’s first report, 9 [32].

[107]T93.1–94.18.

[108]T59.23–28 (emphasis added).

Hosking gave evidence that it was proposed that the respondent would remain in the Marlborough Unit, should the detention order be confirmed.[109] Her evidence outlined the interventions currently received by the respondent in the Marlborough Unit:[110]
[109]Hosking’s first affidavit, 7 [30].
[110]Ibid 7-8 [31].

(a) weekly supervision sessions with his Specialist Case Manager via videoconferencing facilities;

(b) weekly offence-specific and offence-related treatment facilitated by Mr Alex Foster, the Manager of Forensic Intervention Services, conducted either remotely or in association with rehabilitation permits;

(c) daily support provided by a Disability Coordinator (weekdays) and a custodial staff member (weekends only) in conjunction with other staff on the Marlborough Unit;

(d) a Behaviour Support Plan developed by Mr Luke Hockey, Forensic Psychologist, from Problematic Behaviour Support Services (‘PBSS’);

(e) fortnightly sessions with Mr Hugh Nehrybecki, Behaviour Support Practitioner and Psychologist, from PBSS;

(f) monthly reviews with a psychiatric nurse employed by St Vincent’s Correctional Health, in addition to ‘crisis calls’; and

(g) weekly support (12 hours) provided by Mr Valentine Gonsalves, Forensic Disability Support Worker funded by the National Disability Insurance Scheme (‘NDIS’), which aims to support the respondent in the development of daily living and life skills, including strategies related to emotion regulation and communication.

She also noted that the respondent had previously engaged with allied health providers funded by the NDIS, such as an Occupational Therapist and Speech Pathologist, but that he was not presently engaged with them.[111] She gave evidence that there was no specific planning regarding rehousing the respondent upon the closure of Port Phillip Prison in late 2025, but expressed the opinion that the most appropriate placement would be its successor, Western Plains Correctional Centre, which she said would replicate the Marlborough Unit (though, with a greater level of disability support workers).[112]
[111]Ibid 8 [32].
[112]T226.10–227.17; See also T272.5–9, T283.22–26.

Crucially, Hosking acknowledged that Western Plains was not designed to be a specialist disability accommodation, it was a ‘prison build’,[113] and that the services offered will be subject to the same limitations in terms of whatever can safely be facilitated within the context of a prison environment.[114]

Rivergum

[113]T274.15–16.

[114]T274.30–275.2.

Godfredson considered Rivergum unsuitable given the respondent’s intellectual disability. He gave evidence that residents are expected to grasp ‘surprisingly complex psychological concepts’ as part of the intensive treatment program.[115] Given most of the treatment is delivered in a group treatment basis, Godfredson could not envisage how the program could be adapted to meet the needs and profile of the respondent.[116]
[115]Godfredson’s first report, 69 [313].
[116]T114.9–14.

Darjee agreed with Godfredson that Rivergum was not an appropriate accommodation setting, as ‘the types of support, services and treatment he requires at the level of intensity he requires could not be provided there.’[117]
[117]Darjee’s first report, 8 [30].

Calandro deemed the respondent unsuitable for the Rivergum treatment model, for the reasons expressed by Godfredson.[118] In oral evidence, Calandro explained that one of the exclusionary criteria for placement at Rivergum was intellectual disability.[119]

Corella Place

[118]Calandro affidavit, 3 [15], 11-12 [35.3].

[119]T123.22–24.

In his first report, Godfredson outlined his understanding that Corella Place was designed to accommodate high-risk offenders who are capable of residing independently. He outlined some of the features of Corella Place, as follows:

·Corella Place can accommodate a maximum of 56 offenders;
·at any given time, there are a minimum of five staff on duty, split between Corella Place and 228 Warrack Rd (commonly referred to as ‘Corella Place 228’[120]);
·staff endeavour to support NDIS providers to deliver services at the facility however onsite service is subject to staff escort and the availability of something called ‘the Living Skills area’;
·Corella Place procedures ensure staff do not enter the facility alone however, by virtue of the fact it is a non-secure facility, residents could gain access to the carpark and external grounds (this was mentioned in the context of ‘the presence of lone females’);
·there have been recent discussions with local emergency services in preparation for their increased demand in the context of recent introduction of residents with complex presentations.[121]

[120]See T124.13-14.

[121]Godfredson’s first report, 69–70 [315].

Godfredson noted that the facility has been used to house complex individuals, but that the staff do not have clinical training.[122] Godfredson ultimately gave the opinion that:

Corella Place is not a suitable environment to accommodate [the respondent]. The relative stability that [the respondent] has recently exhibited in the Marlborough Unit does not infer that he is capable of managing himself in a less structured environment. Moreover, [the respondent] has not recently had the opportunity to demonstrate appropriate conduct in the presence of lone females or during accompanied outings to the wider community. Were [the respondent] accommodated at Corella Place, even temporarily, the best-case scenario might be a succession of increasingly serious incidents which undermine his ultimate transition to a more suitable living environment. The worst-case scenario would be a serious offence akin to the sexual offence he committed against a Disability Support Worker only six weeks after taking up residence at the DFATS treatment facility.[123]

[122]Ibid 70 [316].

[123]Godfredson’s first report, 70 [317].

In his second report, he noted that:

placement in such a facility would likely prolong [the respondent’s] rehabilitation and undermine efforts to transition him to a suitable living environment in the wider community. Moreover, Corella Place would not afford [the respondent] the necessary interventions, including intensive disability supports, to manage his risk of committing a Schedule 1 or 2 offence.[124]

[124]Godfredson’s second report, [52].

Darjee agreed with Godfredson that Corella Place was not an appropriate accommodation setting.[125] Nevertheless, in oral evidence and despite maintaining the unsuitability of Corella Place, Darjee said:

Corella Place um, well I haven’t been there recently, but from when I was there and from what I’ve heard doesn’t operate in a way that you could have those supports around him all the time, it just wouldn't work. So, in some way, you know, someone might say well surely, he could go to Corella Place, and you just have to put the stuff around him, but I think there'd be all sorts of issues with trying to do that in an environment that isn’t set up to support someone with his level of intellectual disability.[126]

[125]Darjee’s first report, 8 [30].

[126]T39.28–40.6 (emphasis added).

Implicit in this recognition that ‘there’d be all sorts of issues with trying to do that’, being transposing the supports to a setting like Corella Place, is that it would be possible, albeit problematic.

Calandro was of the view that Corella Place was not suitable for the respondent.[127] In coming to this conclusion, he referred to the affidavit of Franca Guglielmino sworn 21 November 2022 (‘Guglielmino affidavit’) which set out the following as relevant factors as to why the respondent’s risk could not be managed at Corella Place:
[127]Calandro affidavit, 15 [42].

Whilst I consider that none of the residential facilities would be able to manage [the respondent’s] risk of re-offending, there are a number of features of Corella Place 228 that make it even less suitable to manage [the respondent’s] risk than Corella Place. Most notably, the main goal of this facility is to assist residents to live more independently in preparation for transition to the broader community. [The respondent] requires considerably more supervision and management than a facility such as Corella Place 228 allows.
Accordingly, I have focused on the capacity of the main campus of Corella Place to manage [the respondent’s] risk of re-offending. In particular, I note that:
[1]Corella Place is not designed nor operated on a secure correctional facility model with residents being prevented from leaving the facility, restricted or subject to visual surveillance of their movement within the facility.
[2]Corella Place has limited capacity to manage self-harm behaviours as there are no 'safe cells' in the premises.
[3]There are fences around Corella Place however the gate that leads to the administration building and then the carpark is open during the day, at which point there is no physical barrier preventing someone from leaving the premises. The gate that leads to the administration building is locked at night.
[4]There are vehicles in very close proximity to Corella Place to which a resident could potentially gain access by force, in order to assist them in leaving.
[5]Corella Place has Global Position System (GPS) Monitoring in addition to Radio Frequency (RF) Monitoring. The GPS component will identify whereabouts as long as the device remains fitted to the resident and remains charged. The RF Monitoring will result in an alarm if a resident subject to electronic monitoring leaves Corella Place. RF monitoring also indicates the general vicinity of residents within Corella Place. However, electronic bracelets can be removed.
[6]Unlike prison staff, Corella Place staff have limited powers to prevent a resident from leaving.
[7]Residents of Corella Place have access to a range of items that can be used as weapons or for self-harm, including knives and woodworking tools.
[8]If [the respondent] were to abscond from Corella Place, having regard to his history of offending opportunistically and to the nature of the offending he is at risk of committing, the consequences could be very serious.
[9]There is limited capacity to prevent [the respondent] from accessing his victim group, which includes female staff members and other female professionals attending Corella Place.
[10][The respondent] has a history of offending and engaging in concerning behaviour involving female professional staff. His risk of reoffending extends to offending while he is under supervision. The material held by Corrections Victoria shows a long and persistent history of sexually inappropriate behaviour and incidents involving women working in a professional capacity with [the respondent]. For example, [the respondent’s] offending against a professional support worker whilst residing at the Disability Forensic Assessment and Treatment Service.
[11][The respondent’s] risk to female staff in a custodial environment poses a management challenge at Corella Place. Residents of Corella Place are expected to respect professional relationships and maintain appropriate boundaries with professional staff.[128]

[128]Affidavit of Franca Guglielmino sworn 21 November 2022, 13-14 [39]-[40].

Calandro also gave evidence that, as at 5 August 2024, there were 29 female staff at Corella Place.[129]

Residential Treatment Facilities

[129]Calandro affidavit, 3 [14].

Due to the respondent having been assessed and found unsuitable for placement at a RTF, Godfredson did not consider this option further.[130]
[130]Godfredson’s first report, 69 [314].

Darjee listed a RTF as one possible pathway to the community. However he did not consider it in detail, merely noting that the respondent had previously been considered unsuitable for a RTF and stating that:

It seems somewhat bizarre that a person with an intellectual disability and complex needs who poses a risk of sexual offending cannot be accommodated in a forensic disability facility, but unfortunately the range of services required to manage people with forensic disability needs just is not available in Victoria (or anywhere else in Australia).[131]

[131]Darjee’s first report, 8 [30].

Calandro noted that the respondent was found unsuitable for RTF accommodation, relying on the RTF Assessment report.[132]
[132]Calandro affidavit, 6 [25].

In regards to RTF Bundoora, the RTF Assessment report concluded:

As it currently stands, the treatment model afforded at the RTF Bundoora would be suitable for [the respondent]. However, the RTF Bundoora does not have the necessary operational requirements to ensure the safe delivery of treatment programs, particularly when compared to the requirements as set out by his current detention management plan (delivery of treatment programs needs to be equipped with the appropriate level of staffing structure and operational model of service delivery). In addition, it is operationally not feasible to only assign male staff members to [the respondent] or have a male staff member always working alongside female staff, given the roster restrictions and limited availability of male staff. Additionally, there is a need to consider the impact and compatibility of [the respondent] with other existing residents and ensure that the safety of existing residents will not be compromised by the admission.
In addition, the RTF Bundoora is an unsuitable environment as it would require [the respondent] to share all living spaces, aside from his bedroom, with co-residents. Given [the respondent’s] risk of harm to co-residents and history of problematic behaviour towards other residents, staff and prisoners (e.g., fixations, verbal threats and sexualised behaviours), it would not be suitable for him to be placed in an environment where he would be required to live in such close proximity to others.

·demonstrated disregard for supervision conditions when on, and ultimately breached, a supervision order;[184]
·demonstrated an ongoing inability or refusal to engage with treatment whilst on a supervision and on an interim detention order;[185]
·on numerous occasions, acted inappropriately towards female staff and female lawyers, including behaviour ultimately resulting in a conviction for stalking;[186] and
·presented difficulties in management (eg, through self-harm and threats of self-harm, being targeted and threatened by other prisoners, committing offences whilst in prison).[187]

[184]Ibid [131], [177].

[185]Ibid [132], [148], [196]-[198].

[186]Ibid [66], [82]-[87], [155].

[187]Ibid [98]-[107], [186]-[190].

As has been suggested in regards to DJD, it was found there was a lacuna between DW’s behaviour (eg, towards female staff) and the risk of his committing a serious sex offence.[188] Fox J relevantly noting that ‘DW’s stalking behaviour does not create an unacceptable risk of the respondent committing a serious sex offence unless a detention order is made.’[189] Similarly, it seems DJD’s hoarding behaviours have little to no relationship to his committing a serious sex offence.[190]
[188]Ibid [156], [179]-[180]; See T60.14–26; contra T61.7–9.
[189]DW, [191].
[190]See T60.14–26.

Her Honour found that whilst stalking may lead DW to commit a serious sex offence, a supervision order was capable of managing that risk.[191]
[191]DW, [191].

Unlike DJD, who appears, on the whole, to have demonstrated a certain level of engagement with treatment, DW was found to have:

made no progress while subject to an interim detention order. He has made zero rehabilitative gains and his behaviour has worsened. He has a maximum security rating and is subject to greater restrictions than he was at times when he was a sentenced prisoner.[192]

[192]Ibid [195]; See also [198].

As to DW’s ongoing management difficulties more generally, her Honour found that these were only relevant to the extent they would bear upon the assessment of risk of DW committing a serious sex offence.[193] Similarly, to the extent DW’s behavioural difficulties would affect other members of, for example, the Rivergum community, that was found to be a matter for the administrators:

I accept that Rivergum should not become a depository for those who cannot be managed elsewhere. However, nor should a detention order be made simply because a person does not fit within Rivergum’s narrow assessment criteria, or to protect Rivergum’s community from disruption or disturbance.[194]

[193]Ibid [190], [192].

[194]Ibid [192].

Importantly, and as a point of difference to DJD, DW’s inappropriate behaviour whilst at Corella Place was discovered by virtue of his being on a supervision order.[195] More precisely, her Honour noted:

the supervision order performed its intended function: the community was protected from the harm that would have resulted had DW committed a serious sex offence.[196]

[195]Ibid [191].

[196]Ibid [178].

Again, and seemingly as a point of difference to DJD, whilst at Corella Place DW complied with many of the residential restrictions imposed upon him.[197]
[197]Ibid [181].

Another factor, which was certainly alluded to in this case in regards to DJD’s ability to rehabilitate being stymied by the strictures of the Marlborough Unit, was DW being housed in prison. This, her Honour found, was unlikely to achieve a positive outcome in terms of treatment and rehabilitation (even given DW’s level of resistance to treatment) which, being a secondary purpose to the Act, the Court must have regard.[198]
[198]Ibid [197].

Finally, I note that DW did not want to be housed at Corella Place. Her Honour observed that what a respondent wants is not determinative, and that breaches of conditions of a supervision order (implicitly, wherever he is housed) may result in a return to prison.[199]
[199]Ibid [194].

DPP v LD (No 7) [2023] VSC 518

DPP v LD (No 7) [2023] VSC 518 (‘LD’) involved an application for a renewal of a detention order which Champion J refused on the ground that his Honour was not satisfied a detention order was the only means of managing the respondent’s unacceptable risk of committing a serious sex offence.[200]
[200]LD, [1]–[3], [306], [313].

LD presents points of similarity to DJD in that:

·the ‘ideal’ accommodation option in terms of managing the respondent’s needs and risk level did not exist;[201]
·more generally, significant time was spent in evidence outlining the unsuitability of a number of accommodation facilities, with asserted inability to make changes to the facilities to accommodate the respondent safely (ie, manage his risk of committing a serious sex offence);[202] and
·continued custodial detention was negatively impacting the respondent.[203]

[201]Ibid [82], [109].

[202]Ibid [237]–[244].

[203]Ibid [95]–[99], [127], [189], [290], [294].

A minor point of difference between LD and DJD appears to be the evidence that LD’s detention in prison had deskilled him,[204] whereas the evidence presented was that the DJD was at risk of becoming reliant and thereafter becoming institutionalised. In my view, this is a relevant consideration in terms of the Act’s secondary purpose of rehabilitating offenders.[205]
[204]Ibid [91], [119], [297].
[205]For completeness, it appears to be picked up in [299] to a degree.

His Honour noted that LD’s previous management in an Intensive Residential Treatment Program for over 600 days, without committing a serious sex offence, suggested his risk could be reduced to an acceptable level in a non-custodial facility, and thus there were measures that could be undertaken such that a detention order was not the only option to manage his otherwise unacceptable risk.[206]
[206]LD, [280].

Importantly, and perhaps as a point of difference to DJD, there was consensus amongst the experts that ‘much of LD’s behaviour and threats are not accompanied by sexual intent’,[207] though I note the evidence that some of DJD’s deemed problematic discussions regarding, for example, sex may be more a product of his prison environment and desire to be liked.[208]
[207]Ibid [80], [107], [281], [304].
[208]T75.7–76.13; T78.7–9.

Similarly to the respondent, although LD was disruptive and challenging to manage in certain respects,[209] this did not indicate he posed an unacceptable risk of committing a serious sex offence.[210]
[209]LD, [90], [117], [143], [150], [155], [157], [174], [176], [182].
[210]Ibid [282].

Indeed, like DJD,[211] Champion J found that some of the behaviours relied upon by the applicant as evidence of LD’s risk status had arisen due to the confined nature of prolonged incarceration, his Honour observing:

in circumstances where LD’s escalating behaviours are at least partly the product of inappropriate management, I should be very wary about accepting those factors as the main justification for ongoing detention.[212]

[211]T78.25–79.17; T61.30–62.6.

[212]LD, [283]. See also [298].

Unlike DJD’s circumstances in the Marlborough Unit, his Honour found that LD’s detention in custody meant that his medical needs were not being met.[213]
[213]Ibid [295].

Consideration

As outlined above, the evidence regarding the means of managing the respondent’s risk was detailed, though focussed primarily on available accommodation facilities. I have found it useful to begin by considering the respondent’s management requirements, in the abstract, divorced from reference to the ability of any particular accommodation option to satisfy those requirements.

I accept that managing the respondent’s risk requires various measures to be instituted, including:

(a) continued close monitoring and supervision, with limited ability to interact with females or female staff unsupervised;

(b) a structured and supportive environment, with staff who know him well and have been trained to understand the respondent’s risks and to work with him;

(c) continued levels of individualised support and interventions (eg, regarding strategies relating to emotional regulation and communication, adaptive coping skills);

(d) ongoing offence-specific and offence-related treatment;

(e) provision of structured activity, including meaningful work and recreation;

(f) provision of motivation through an incentive based system;

(g) continued abstinence from alcohol and illicit substances; and

(h) a single occupancy unit with opportunities to socialise.

While I accept that some of these measures could be most extensively and readily instituted under a detention order, as I said in CS, ‘in my view there is no reason, conceptually and practically, why they cannot be instituted to an adequate degree under a supervision order.’[214] Similarly, other of the measures may be more successfully instituted under a supervision order than a detention order.[215] I note, particularly, the evidence of Darjee that the respondent’s ability to engage in treatment can be hampered by his attendance in the community whilst in shackles (this having a flow on effect in terms of making the respondent feel humiliated and potentially activating a number of factors which may increase his risk).[216] This impediment, and others which also owe their existence to prison protocol, would be removed when, for example, the respondent attends treatment on a supervision order.
[214]CS, [177].
[215]Ibid.
[216]T68.13–27.

To be abundantly clear: the evidence did not establish that at least some of the abovementioned measures were incapable of being instituted at currently available accommodation facilities. Evidence was simply not presented about the ability of accommodation facilities to institute and make changes. Rather, the evidence was coloured with assertions of inability due to resourcing and/or appeals to the impact changes would have on other people at the accommodation in question. Such assertions and appeals fall significantly short of the level of satisfaction, to a high degree of probability,[217] I am required to hold to find that a detention order is the only option.
[217]Nigro, 363 [6]; CS, [9].

The respondent’s deemed ineligibility to RTFs, for example, really appears to be on the basis that his presence there would cause disruption to other residents, and that current resourcing is insufficient to make adjustments to house and treat the respondent.

Resourcing issues are not, ultimately, a factor which I am required to consider under s 64(3)(a). Asserted unsuitability of non-custodial settings, or the supposed practical constraints and difficulties administrators may experience in implementing changes to accommodation or service delivery, do not warrant the making of a detention order.[218] It is not for the Court to decide the most suitable accommodation facility available for the respondent and the non-existence of an ideal facility does not justify continued detention.[219] It will be up to those tasked with looking after the respondent upon the revocation of his detention order to make the necessary adjustments. As an aside, and in my view, assertions to issues with resourcing also overlook the significant NDIS package that the respondent has, though I note the distinction to be drawn between funding for forensic needs (which are the responsibility of the State) and disability needs (which may be funded by the NDIA).[220]
[218]CS, [181], [217]–[218].
[219]Ibid [189]-[190].
[220]T377.24–30; T424.13–30.

I do not consider it necessary, in this case, to highlight the ways in which each of the accommodation options could be altered to be made suitable for the respondent and what measures can be taken to appropriately manage the risk he poses. The Court is not responsible for housing him. It bears repeating again: the question under s 64 is whether a detention order is the only option.

I accept that I cannot compel the Secretary of the Department of Families, Fairness and Housing to house the respondent at a RTF,[221] despite the apparent suitability of such facilities if appropriate adjustments were made. (That appropriate adjustments could be made was eventually conceded, at least in the abstract, by Frize).[222] In those circumstances, consideration of housing the respondent at a RTF is redundant. Given he has been assessed as ineligible, it is simply not a post-sentence facility which would be available to house the respondent upon the revocation of his detention order. Similarly, I am unable to exercise any power to compel the respondent to be assessed as suitable for SIL. Consequently, the only real existing post-sentence facility that is available to the respondent is Corella Place.
[221]Disability Act 2006 (Vic) s 152.
[222]See generally, T369.24-371.27.

I am not satisfied that the risk of the respondent committing, or after release from custody committing, a serious sex offence is unacceptable unless a detention order were made. I am of the view that the respondent’s risk can be managed at Corella Place, at least on a temporary basis until appropriate SIL accommodation is sourced.

Calandro, relying on the Guglielmino affidavit, listed various factors as to why Corella Place is not suitable to manage the respondent’s risk of committing a serious sex offence. It is not designed nor operated to be a secure correctional facility, and a resident may be able to leave via the administration building and then the carpark. There are vehicles in close proximity to the facility to which a resident could gain access by force in order to assist their absconding. Residents may be able to remove electronic monitoring bracelets. Corella Place staff have limited powers to prevent a resident from leaving. Residents are not subject to visual surveillance in their movements within the facility. Corella Place has limited capacity to manage self-harm behaviours. Corella Place residents have access to a range of items that could be used as weapons or instruments for self-harm. There is limited capacity to prevent the respondent from accessing female staff members and female professionals attending Corella Place.

It bears remembering that the respondent has not resided at Corella Place since October 2016.[223] In that time, he has made progress in treatment and much more is known about the manner in which his risk can be managed. I do not find the fact he attempted to abscond, nearly a decade ago, suggestive of a proclivity to abscond in the future. At any rate, should the respondent attempt to abscond, and in doing so breach conditions of a supervision order, that is a matter that will be dealt with and, potentially, result in the respondent returning to prison. That potential presumably looms large over the respondent. Importantly, the potential, or even likelihood, of the respondent returning to prison for breach of supervision order conditions is not a basis on which to decide that a detention order is the only means of managing the respondent’s risk. Relatedly, that the respondent may prove difficult to manage (for example, for the reasons outlined at paragraph 76 above), does not justify continued detention.
[223]Godfredson’s first report, 3 [11].

No evidence was presented about the total current number of staff at Corella Place, nor the current levels of male staff specifically. Whilst I accept that the respondent’s risk profile militates against his unsupervised interactions with females, there is no evidence before me to suggest that male, or predominately male, staffing arrangements cannot be made to accommodate this particular risk factor. Similarly, there was no evidence before me to substantiate the claim that Corella Place has absolutely no capacity to manage self-harm behaviour or items which could be used to self-harm.

More generally, I make the observation that none of the alleged reasons why Corella Place is inappropriate for the respondent have any relation to the risk factors and risk profile identified earlier in these reasons, with the exception of the alleged inability to prevent the respondent from accessing female staff or visiting professionals. Such a submission, pitched at such a high level of generality, is supremely unhelpful to the Court’s task of considering whether a detention order is the only option to manage the respondent’s risk.

It was put to me by counsel for the Secretary that placing the respondent in Corella Place, being the only place he could be released to on a supervision order if the detention order was revoked, would be ‘a disaster’.[224] This submission appeared to be, implicitly, adopted by counsel for the applicant who referenced it in her closing submissions,[225] before submitting that placing the respondent in an environment without appropriate supports in place and structured transition to the community would be to ‘set him up for failure’.[226]
[224]T456.5.
[225]T461.25–31.
[226]T463.25.

This position was amplified in written closing submissions, as follows:

…Corella Place does not provide the necessary relational security, physical or procedural security, disability support or treatment that [the respondent] requires to avoid future offending. It is an entirely unsuitable environment for someone with his complex needs and placing him there would set him up for failure, both personally and in terms of community risk.[227]

[227]A subs 2, [32] (emphasis added).

I accept the Secretary’s submission that Corella Place will be the only place that the respondent can be housed.[228] Indeed, I have found as much. As I have indicated above, I do not accept that Corella Place is entirely unsuitable as a short term measure. The evidence makes clear what the respondent’s needs are, and what supports he requires to be managed and treated. It will be up to the relevant authorities to put those measures in place. The role of the Court, as explained by counsel for applicant, is to answer the question posed in the legislation. It is not the role of the Court to administer this legislation. That rests solely with the appropriate authorities. The ‘disaster’ alluded to by the Secretary and applicant is not a certainty as suggested, provided the respondent is given proper support and measures beyond his supervision order conditions. The risk that the respondent will breach the onerous conditions that will be placed on him under a supervision order does exist. Again, that risk can be ameliorated with proper supports. The upside is that he may have the opportunity to lead a life that, as it presently stands, does not involve spending 23 hours a day in a prison cell as an unconvicted man.
[228]T447.24–27; T453.4–5.

As Darjee observed, ‘there is already a template for what [the respondent] needs in terms of what he is currently provided with in the Marlborough Unit.’[229] Obviously, a perfect transplant may not be possible. But I have no doubt that with goodwill and cooperation between the agencies involved, Corella Place will be made to work (just as the Marlborough Unit has been)[230] at least on a short-term basis whilst other options, such as SIL (which the experts agreed would be the best option for the respondent) are set in motion and further explored in the light of the respondent’s newfound status as a person on a supervision order.
[229]Darjee’s first report, 9 [32].
[230]T36.14–19, 86.15–20.

Moreover, the submission overlooks the fact that, on a supervision order, the respondent will be subject to the comprehensive suite of core conditions that attach to such an order,[231] in addition to any further condition/s that the court imposes.[232]
[231]The Act ss 15, 31.
[232]Ibid ss 15, 31–39.

The expert opinions of Godfredson, Ong, and Darjee did not distinguish between a detention order or a supervision order in terms of managing the risk the respondent poses. There simply was not, contrary to what the applicant submitted, unchallenged evidence which is unanimous in all material respects, that the detention order remains necessary within the meaning of ss 63 and 64 of the Act.

Turning to the likely effect of a detention order on the respondent, in my view, the respondent’s continued detention, without any end in sight, is an insuperable hurdle to the clarity and hope that Darjee identified as crucial for the respondent. Continued detention is having a deleterious effect on him. The prevailing status quo cannot be justified on the grounds that efforts are still being made to transition him to a less restrictive environment, nor can it be justified on the grounds that a perfect facility does not presently exist to house the respondent.

All of that being so, while I am satisfied that the respondent still poses an unacceptable risk of committing a serious sex offence, I am not satisfied that the risk would be unacceptable unless a detention order is in effect. In those circumstances, the detention order must be revoked.[233]
[233]The Act s 108(1).

What is most troubling is, to a large extent, the parties’ submissions and the expert evidence was premised on the respondent residing at the Marlborough Unit, with both its benefits and disadvantages. The measures I outlined at paragraph 154 above are clearly not available to the respondent while he is in the Sirius East Unit. It was argued that these conditions made the detention order, at least in the interim, perhaps appropriate. Common sense suggests that the respondent’s progress and wellbeing are severely curtailed by his placement in the Sirius East Unit.

The respondent’s current situation is totally unacceptable. This is not managing any risk the respondent poses to the community or himself. It is simply inappropriate, and requires the respondent to live under, quite frankly, draconian conditions. Although I came to my decision based only on the evidence presented to me on the review and prior to becoming aware of the respondent’s change in circumstances, these recent developments only reinforce my view that a detention order is not the only option of managing his risk.

This may seem like a quantum leap, in circumstances where there is no clear plan in place to transition the respondent off the detention order. But the respondent has been in custody for over seven years since finishing his custodial sentence with no end in sight, and importantly, I am simply not satisfied that a detention order is the only means of managing the respondent’s unacceptable risk of committing a serious sex offence. It bears repeating that ‘only option’ is a phrase of considerable weight and creates a high threshold. To paraphrase Tinney J on the last occasion, the interests of justice require nothing less.

Given I have concluded that the respondent poses an unacceptable risk of committing a serious sex offence as per s 63, I consider it appropriate that a supervision order should be made in accordance with s 108(4) of the Act. The respondent has indicated he would consent to such an order.[234]
[234]R subs 2, [10].

There is utility in hearing from the Secretary and respondent as to what conditions should attach to that supervision order. I note that if I were to revoke the detention order today before making a supervision order, the effect would be that the respondent is released into the community without supervision. As such, before making any orders, I will invite further submissions from the parties.

Non-publication order

The respondent sought the ‘continuation’ of a non-publication order pursuant to s 279 of the Act.[235] I do not consider there to be any power under the Act for me to ‘continue’ a non-publication order. Section 279 is clear that the court ‘may order’ information enabling an offender of their location to be identified not be published. There was no submission made explaining how the power in s 279 might allow for extension of an existing non-publication order. I note that the non-publication order made by Tinney J in March 2023 was made ‘until the next review’.
[235]R subs 2, [96].

Darjee supported the making of an order on therapeutic grounds. He noted that:

publicity will not decrease risk, will likely lead to distress and a deterioration in [the respondent’s] mental health, and will hamper efforts by services to help him improve his ability to deal with difficult emotions and situations. The absence of a non-publication order may impact [the respondent’s] prospects of rehabilitation, as feeling threatened, ashamed and/or shunned by others may increase the risk of further offending.[236]

[236]Darjee’s first report, 10 [42].

There is a degree of tension between the certainty Darjee held in the first sentence (‘will hamper efforts’) and the speculation which characterises the second (‘may impact…prospects of’).

Godfredson did not specifically address the appropriateness or otherwise of making a non-publication order in his reports, but in oral evidence he indicated that he supported the making of such an order.[237]
[237]T52.5-8.

Having regard to the factors in s 280 of the Act and the evidence of the experts, I consider that it is in the public interest to order that any information that might enable the respondent or his location to be identified, not be published.

Pursuant to s 279(1) of the Act I order that information that might enable the respondent or his location to be identified not be published until further order of this Court.

Conclusion

At the conclusion of her closing submissions, junior counsel for the respondent asked for the final words to be delivered by the respondent himself.[238] This was not opposed,[239] and the respondent’s letter was read into transcript as well as being handed up (though not formally tendered nor tested from an evidentiary perspective).
[238]T475.15–16.
[239]T475.17–24.

Whilst I have not had regard to the letter in making my decision, it seems fitting that the respondent, who sat at the back of the court for the duration of the five day hearing, as he listened to others talk about him as if he was not there, should have the last word.

I quote, in full, the respondent’s letter as he read it to the Court:

Thanks for hearing us. So to the judge or who it may concern. I’m trying to so hard and in my power to do everything I can to do to get off this, my detention order to go onto a supervision order. I realise I have done the wrong thing sometimes in prison but most of the time I do the right thing but at times I feel like I don’t have a right because - sorry. I feel like I don’t have anything much as I have. I have good support and a good care team and I’m grateful for all my supports and my care team and my good legal team. I just want to be out of prison to be a better person and have a good life. Thank you for being a good judge. PS, due to Port Phillip closing down I have personally asked the Melba staff would they like to work with me on my supervision order. They’re happy - they are happy with that idea and I would like that. Thank you.[240]
[240]T475.26–476.11.

[2024] VSC 699

13 November 2024