Director of Public Prosecutions v DJD (2020 Review)
[2020] VSC 491
•18 February 2020
| 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 | |
| - and - | |
| IN THE MATTER of an application for review of a detention order | |
| BETWEEN: | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| DJD | Respondent |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 February 2020 |
DATE OF JUDGMENT: | 18 February 2020 |
DATE OF REASONS | 2 September 2020 |
CASE MAY BE CITED AS: | DPP v DJD (2020 Review) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 491 |
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PUBLIC LAW - Application for review of a detention order – Respondent detained in Marlborough Unit, Port Phillip Prison since original detention order made in 2017 – Continued, albeit not linear improvement since that time - Unchallenged evidence that respondent remained a high risk of committing a serious sex offence or a serious violence offence – No less restrictive option available – Unacceptable risk of serious sex offence or serious violence offence unless detention order made – Order that detention order remain in operation – Serious Offenders Act 2018 ss 1, 62, 63, 64, 100, 104, 108.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Flynn QC with Ms A Roodenberg | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr J McLoughlin | Victoria Legal Aid |
HIS HONOUR:
Introduction
By notice dated 10 December 2019, the Director of Public Prosecutions (‘the Director’) made an application under s 100 of the Serious Offenders Act 2018 (‘the Act’) for the review of a detention order made on 13 December 2018.
The application came on for hearing before me on 18 February 2020. On that day, I heard some evidence to which I will later turn. There was agreement between the parties that the appropriate course was for the Court to make an order that the detention order remain in operation.
At the hearing I made an order that the detention order made on 15 December 2017 and renewed on 13 December 2018 remain in operation. I also made a non-publication order under s 279 of the Act. I said at the time that I would publish my reasons at a later time. These are those reasons.
Background and procedural history
The respondent is a 42 year old mildly intellectually disabled man with a long history of sexual, violent and other offending in Tasmania, New South Wales, and Victoria. His offending history and pertinent aspects of his background were summarised in the judgement of Riordan J in The Director of Public Prosecutions v DJD.[1] I need not repeat those matters here. Also set out in his Honour’s judgment was the procedural history which led to the matter coming before him. Again, I see no need to set out that history again.
[1][2017] VSC 776.
On 15 December 2017, Riordan J made a detention order under the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the SSODSA’).[2] Clause 4 of Schedule 4 of the Act stipulates that the detention order made by Riordan J continued to operate until its expiry or replacement by an order under the Act.
[2]The Serious Offenders Act 2018 came into operation on 3 September 2018 and repealed the Serious Sex Offenders (Detention and Supervision) Act 2009.
On 19 October 2018, the Director made an application for the renewal of the detention order pursuant to s 71 of the Act. The application came on for hearing before me on 12 and 13 December 2018. On 13 December 2018, I made an order renewing the detention order for a period of two years under s 73 of the Act.
This matter came back before me on 18 February 2020 as a result of the Director having applied for a review of the detention order as required by law.
The law
Section 100 of the Act relevantly provides:
(1)The DPP must apply to the Supreme Court for review of a detention order-
(a)not later than one year after it was first made or any earlier first review date specified in the order;
…
Section 103 dictates that the application for review is required to set out the nature of the order sought, and to be accompanied by a progress report in respect of the offender.
Section 104 of the Act relevantly provides:
The purpose of a review is to determine -
(a)whether a supervision order of a detention order should remain in operation or be revoked; and
…
(c)if a detention order is revoked, whether it should be replaced with a supervision order.
Section 105 of the Act sets out the matters to be considered by the Court and states:
(1)In reviewing a detention order or supervision order, the court must consider-
(a) a progress report relating to the offender[3]; and
[3]Section 98 of the Act mandates that a progress report must be prepared in respect of an eligible offender for the purposes of an application under Part 8 of the Act.
(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.
The test for a review of a detention order is set out in s 108 of the Act and relevantly provides:
(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.
…
(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.
…
Section 62, 63 and 64 of the Act relevantly provide:
62 Determination of application for detention order
(1)On an application under s 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.
…
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 the 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.
The evidence
I had regard to the following materials filed by the applicant in support of her application:
(a) Detention and Supervision Order Progress Report of Professor James Ogloff dated 11 November 2019;[4]
[4]Exhibit B.
(b) Psychiatric Progress Report of Dr Kevin Ong dated 19 November 2019;[5]
[5]Exhibit A.
(c) Affidavit of Sarah Miles, Assistant Director, Post Sentence Branch, Corrections Victoria, dated 20 January 2020;
(d) Confidential Further Affidavit of Sarah Miles dated 20 January 2020;
(e) Affidavit of Joseph Mollica, Principal, Clinical Practice for Forensic Intervention Services, Corrections Victoria, dated 21 January 2020;
(f) Affidavit of Jennifer Hosking, then Acting Assistant Commissioner (Sentence Management), Corrections Victoria, dated 21 January 2020;[6]
(g) Applicant’s written submissions dated 3 February 2020; and
(h) Respondent’s written submissions, undated and filed on 11 February 2020.
[6]Exhibit C.
On the day before the hearing, I attended at Corella Place and Rivergum along with a number of people including the legal representatives of the Director and the respondent and representatives of Corrections Victoria including Ms Hosking. I had the opportunity of viewing both facilities and meeting with a number of those who work within the facilities.
On the hearing of the application I heard oral evidence from Dr Ong, Professor Ogloff, and Ms Hosking.
Dr Kevin Ong
Dr Ong, a Forensic Psychiatrist, provided a Psychiatric Progress Report prior to giving sworn evidence before me on the day of the application. For the purposes of the previous application before me, Dr Ong also provided reports dated 15 May 2017, 14 July 2017 (an addendum) and 26 October 2018. I am familiar with the contents of these reports.
In the preparation of his most recent report, Dr Ong had access to materials documented in previous reports and new information provided by the Post Sentence Branch as to the respondent’s progress in the previous 12 months. He assessed the respondent via video link on 13 September 2019 for approximately 100 minutes.
Dr Ong opined that the respondent had made a number of gains during the previous year and continued to benefit from the high level of support being provided to him in the Marlborough Unit (‘the Unit’). During this period, problematic behaviour such as self-harming or collecting inappropriate magazine clippings for example, had continued to occur, but had appeared to reduce in severity and frequency. That said, two incidents involving female staff members were of particular concern. Dr Ong detailed these in his report.
In assessing the respondent’s risk of sexual reoffending, Dr Ong relied on the results of both the STATIC-99[7] and RSVP[8] tools to assess the Respondent’s static and dynamic risk factors and overall status. As a result, Dr Ong opined:
The combination of STATIC-99 and RSVP continues to indicate a High risk of re-offending. The corollary to this is that [the respondent] continues to require a high level of support and intervention in order to reduce his risk of re-offending. This will need to continue in whatever setting [the respondent] should find himself.[9]
[7]The Static-99 is a brief actuarial risk assessment tool designed to assist in the prediction of recidivism.
[8]Risk for Sexual Violence Protocol.
[9]Exhibit A page 23.
Dr Ong also assessed the respondent’s risk of future violent offending utilising the Historical Risk Management-20, Version 3, known as HCR-20 V3. Although Dr Ong noted some modest improvement relative to previous testing, the result of testing indicated that his risk of future violence remained high.
Dealing with the matters required to be addressed in his report, pursuant to s 270(1) of the Act, Dr Ong expressed the opinion that the respondent ‘continues to present a high risk of both sexual and non-sexual re-offending in the future’. He expressed his view as to the likely nature of future offending, repeating the opinion he had voiced in previous reports that ‘it is only by good fortune with the intervention of others that [the respondent’s] assaults have not escalated to penetrative offences’.
Dr Ong noted gains made in the previous 12 months in respect of the respondent identifying strategies to reduce distress and anger and being able to more consistently apply these strategies at times of stress.
In respect of decreasing risk, the respondent:
would continue to benefit from close monitoring and supervision. 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. [10]
[10]Ibid page 30.
Dr Ong expressed his continuing belief that anti-androgen medication may have a place in future risk management of the respondent.
In addressing the matters touched on in s 270(2) of the Act, Dr Ong stated:
From the information available to me, it is my opinion that [the respondent] continues to present a high risk of sexual re-offending if he is not made subject to an order under the Act.
It remains my opinion that [the respondent] requires close monitoring and supervision, combined with both psychological and medical interventions, in order to reduce his risk of re-offending.
From the information available to me, it is my opinion that [the respondent] continues to present a high risk of violent re-offending if he is not made subject to an order under the Act.[11]
[11]Pages 30-31.
In his evidence before me, Dr Ong confirmed the truth of the contents of his report, and that he still held the opinions expressed therein.
The improvements in the behaviour of the respondent, in terms of self-harm and behavioural incidents, could be put down to the intense level of supports received by him.
In terms of the future, Dr Ong expressed the view that albeit that it was clear that the respondent has benefitted from the level of supports and treatment he has received, it would be important to see the incidents continue to decrease in frequency.
In cross-examination by Mr McLoughlin for the respondent, Dr Ong confirmed that the respondent’s behaviour had become ‘progressively more settled’ in the Unit, although there was a further incident of self-harm only weeks before the hearing. As to whether it would be possible to provide a similarly settled and supportive environment without the level of physical security provided by a prison, Dr Ong said that this was outside his area of expertise.
Professor James Ogloff
Professor Ogloff, is a Clinical and Forensic Psychologist of vast experience. In his Detention and Supervision Order Progress Report, Professor Ogloff provided an updated assessment of the respondent’s risk of sexual and violent offending as well as a summary of his progress over the previous year. He had access to all previous reports, including his own, and a wealth of other material which he detailed in the report.
Professor Ogloff noted that although the respondent’s intellectual deficits are permanent, he has shown that he can adapt his behaviour to management strategies and support. He does, however, require careful direction and redirection. The respondent indicated that he had felt much more settled in the past year, and was getting on better with other residents of the Unit. His mental state had been more stable, but he still presented with symptoms of depression. He had continued to engage in a range of inappropriate behaviour and incidents. In particular, the respondent had continued to have difficulties in his interactions with some female staff members.
Professor Ogloff noted that arrangements put in place in the Unit had helped the respondent to stabilise in a manner which he was unable to do at DFATS[12] or at Corella Place.
[12]Disability Forensic Assessment and Treatment Service.
Professor Ogloff detailed what he saw as the respondent’s four main areas of concern which need to be addressed and managed. These were emotional control, self-harming behaviour, sexually inappropriate behaviour, and lack of compliance and threatening behaviour.
The respondent had continued to make progress in his ability to control his emotions under the restrictive regimen applicable to him, but still struggled at times. There had been a reduction in the frequency and severity of self-harming behaviour, but instances still occurred.
In respect of sexually inappropriate behaviour, there had been some progress made, although there was still concerning behaviour exhibited.
As to the matter of lack of compliance and threatening behaviour, despite progress made, this remained a particular area of challenge for the respondent. On a regular basis, he had failed to comply with orders, and on occasions had engaged in threatening behaviour, particularly towards staff.
As a result of the plethora of issues presented by the respondent, there had been little focus on offence-specific intervention, which Professor Ogloff believed should be a goal in the future.
In spite of the progress made by the respondent, there had been little material change in his level of risk for sexual offending. Reiterating what he had said in the past, Professor Ogloff noted that the nature of assessment of risk for sexual offending and violence is such that over the medium to long term, historical and so-called static variables are stronger predictors of future offending than are the so-called dynamic, or changeable variables. Only when the respondent is able to demonstrate sustained change and stability in the dynamic risk factors would it be possible to consider that the level of risk he presents is reducing.
Professor Ogloff utilised the STATIC-99, STATIC-99R, and RSVP tools to assess the risk of future sexual offending by the respondent. He stated:
In consideration of the assessment results and [the respondent’s] risk factors, it is my opinion that he continues to present a high risk of committing future sexual offences. While it is positive that he has continued to show improvement whilst on the Marlborough Unit, such change would need to be amplified and consistent for a long period of time (i.e., approximately one year) for there to be any confidence that the level of risk he presents has reduced in a meaningful way.[13]
[13]Exhibit B, [66].
Professor Ogloff went on to say:
Based on my re-evaluation of the Static-99/Static-99R and the RSVP, my opinion remains that [the respondent] presents a high level of risk of reoffending sexually in future.[14]
[14]Ibid [68].
Professor Ogloff considered the respondent’s level of risk of non-sexual violent offending using the HCR-20. The result of the use of that tool indicated that the respondent continues to present a high risk of non-sexual violence.
Dr Ogloff made it clear that it is most important that the respondent does not lose hope for the future. He is to be commended for continuing to make gains while in the Unit. The fact was, however, that the changes had been slow, and the respondent was often still in a rather fragile state, with frequent lapses. Much of his progress had come from the supports he received from the team of professionals tending to his needs. The challenge would be for him to internalise change, which could only come with time and constant reinforcement and support. Professor Ogloff noted the challenge presented by the respondent. The authorities would face the dilemma of reinforcing his progress while recognising the risk he continues to pose. A loss of hope would lead to deterioration.
Professor Ogloff stated:
On the facts available, [the respondent] has now been more stable at Marlborough Unit than he has been for many years. It is my opinion, nonetheless, that he still requires the level of support and expertise of the Unit staff into the future – and certainly for the next year. As noted in the 15 November 2018 addendum report, it remains my opinion that [the respondent] can best be managed on the Marlborough Unit given the other options available. Neither Corella Place nor Rivergum have the capacity to manage either his level of risk or the challenges from his intellectual deficits. While staff at DFATS have expertise in managing people with cognitive impairments, [the respondent’s] level of risk is too high for him to be managed there. However, during the next year, careful consideration should be made to where [he] can transition. Much will depend, of course, on [his] progress, but if possible, other options need to be considered and developed to enable a transition.[15]
[15]Ibid [77].
In summary, Professor Ogloff noted
[The respondent] has become more settled whilst he has been on the Marlborough Unit, and that stability has continued to increase (relatively) during the review period. He has an almost unparalleled level of supervision and support, which has greatly contributed to his increased wellbeing. The restrictive regimen in which he resides has also reduced the opportunity for him to engage in untoward behaviour. As summarised in this report, whilst [the applicant] has made progress this year, he continues to demonstrate difficulties with 1) emotional control; 2) self-harming behaviour; 3) sexually inappropriate behaviour; and 4) lack of compliance and threatening behaviour.[16]
[16]Ibid [85].
Dealing with the matters touched on in s 270(1) of the Act, Professor Ogloff opined that the respondent presents a high risk of committing a sexual offence and also non-sexual violence.
In respect of s 270(2) of the Act, Professor Ogloff stated:
It is my opinion, based on my assessment of [the respondent], and the administration and interpretation of the risk assessment measures I have undertaken, that he would pose a high risk of sexual offending should he be released into the community and not made subject to a detention order or a supervision order.
It is my opinion based on my assessment of [the respondent], and the administration and interpretation of the risk assessment measures I have undertaken, that he would pose a high risk of committing a violent offence if released into the community without a detention or supervision order in place.[17]
[17]Ibid [101]-[102].
In his evidence before me, Professor Ogloff confirmed the truth of the contents of his report, and that he still held the opinions expressed therein. He elaborated on a number of the matters set out in his report. In particular, he commended the breadth and effectiveness of the current supports and services in place, and confirmed the suitability of the Unit and current unsuitability of other possible locations, and detailed the risks posed. In cross-examination, he elaborated on the reasons why the other possible locations would be unsuitable for the needs of the respondent.
Jennifer Hosking
The affidavit of Ms Hosking provided an update in relation to the management and behaviour of the respondent while subject to the detention order first made on 15 December 2017 and renewed on 13 December 2018. In her evidence before me, Ms Hosking informed the Court about two other facilities mentioned in her affidavit. She outlined the then current treatment and activities regime of the respondent. She informed the Court that there will be regular multi-agency case conferences to consider the management of the respondent and all options available for him. Any long term planning is dependent on the progress made by the respondent.
Ms Hosking indicated that Corrections Victoria remained of the view that at this time, the most suitable accommodation arrangement for the respondent remains within the Unit.
In cross-examination, Ms Hosking agreed that there had been overall improvement in the behaviour of the respondent since about August 2018, but said that it was not a linear improvement.
Submissions on behalf of the applicant
Ms Flynn QC, who appeared on behalf of the Director with Ms Roodenburg, relied to a large part on the written submissions to which I have already referred.
The written submissions took the Court through the applicable legislation. It was pointed out that the provisions establish a two-stage test for the making of or review of a detention order. Reference was made to the decision of Forrest J in DPP v JPH,[18] a case concerning the SSODSA, and it was submitted that the Act retained the two-stage process discussed by his Honour in that case.[19]
[18](2014) 239 A Crim R 543.
[19]Ibid [17]-[18].
The submissions also discussed the case of Nigro v Secretary to the Department of Justice,[20] noting that the Court in Nigro had stated:
It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[21]
[20](2013) 41 VR 359 (‘Nigro’).
[21]Nigro [130].
The applicant submitted that the reports of Dr Ong and Professor Ogloff clearly established the first stage of the test in s 63 of the Act, namely, that the respondent would pose an unacceptable risk of committing both a serious sex offence and a serious violence offence if a detention or supervision order was not made and he was in the community.
The applicant further submitted that the evidence also clearly established the second stage of the test, that is, that the respondent would pose an unacceptable risk of committing both a serious sex offence and a serious violence offence unless a detention order was made. A supervision order, even one with strict residential conditions, would not be sufficient to reduce the risk posed to an acceptable level.
The submissions canvassed the reasons why all alternative residential options would be unsuitable for the needs of this case.
It was submitted that the expert evidence overwhelmingly supported the conclusion that a detention order is necessary to manage the risk posed by the respondent. That risk could not be managed to an acceptable level if a supervision order was made.
In respect of the impact of a detention order upon the respondent,[22] it was submitted for the applicant that the expert evidence would justify the view that the accommodation of the respondent in the Unit, and the high level of support available to him there, have been of benefit to him, and meet his present needs.
[22]Section 64(3) of the Act.
In conclusion, Ms Flynn submitted that the tests in ss 63 and 64 having been made out, the Court should determine that the detention order should remain in operation.
Submissions of behalf of the respondent
The written submissions of Mr McLoughlin expressed some misgivings about the circumstances which led to the respondent exiting Corella Place in 2017, and noted the enhanced security arrangements now in place there. Mr McLoughlin acknowledged that Corella Place was currently unsuitable for the respondent, but asserted that the real reason why that was so was the lack of appropriate supports for a resident with the respondent’s disabilities, and lack of expert staff in these fields.
Mr McLoughlin did not contend that the respondent should be placed at Rivergum.
He described the circumstances of the application as the Court being ‘presented with a fait accompli by the applicant’.[23] He acknowledged that:
at least in the medium term the respondent needs institutional support and supervision. It is acknowledged that the respondent has benefitted from the regime at Marlborough and from the expertise of staff both clinical and correctional.[24]
[23]Submissions [8].
[24]Ibid [8].
In spite of these concessions, Mr McLoughlin submitted that the long-term placement of the respondent at the Unit would be ‘inconsistent with the values of a free society’.[25] He submitted that in light of the improved behaviour noted by Professor Ogloff, and the continued improvement since the date of Professor Ogloff’s report, with appropriate staffing and supports, the respondent could be safely accommodated in the community ‘in a setting similar to the LTRP’ [sic].
[25]Ibid [9].
He went on to submit that:
the Court should be reluctant to renew the Detention Order if it appears that the respondent is being ‘warehoused’ at Marlborough and active steps are not being taken to provide a less restrictive environment into which he can transition.[26]
[26]Ibid [13].
In his submission before me, notwithstanding the sentiments expressed in his written submissions, and the opportunity he had to cross-examine Dr Ong, Professor Ogloff and Ms Hosking, Mr McLoughlin stated:
Can I indicate, your Honour, that there won’t be any submissions that your Honour shouldn’t make the order. It’s regrettable but there doesn’t seem to be any alternative.[27]
[27]Transcript 70.
Analysis
I had regard to all of the material which was filed in the Court, to the evidence given before me, and to the submissions made on both sides.
In light of the essentially unchallenged evidence of Dr Ong and Professor Ogloff as to the risk posed by the respondent of both sexual and non-sexual violent offending in the future, their evidence as to the high level of treatment and support he has received and will continue to receive in the Unit and the beneficial effect of that treatment and support, and the evidence pointing to the unsuitability at this time of every other possible location for his accommodation, there could be but one outcome of this review of the detention order to which the respondent is currently subject.
I was satisfied, by acceptable and cogent evidence to a high degree of probability, pursuant to s 63 of the Act, that the respondent would pose an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order was not in place and he was in the community.
Further, I was satisfied, by acceptable and cogent evidence to a high degree of probability, pursuant to s 64 of the Act, that the risk of the respondent committing a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order was made. In other words, I was satisfied that a detention order was the only option.
In those circumstances, I ordered pursuant to s 104 of the Act, that the detention order made on 15 December 2017 and renewed on 13 December 2018 should remain in operation.
I also made a non-publication order, until further order, pursuant to s 279(1) of the Act, in respect of any information which might enable the respondent or his whereabouts to be identified.
Insofar as the written submissions of Mr McLoughlin asserted that the Court should be reluctant to renew the detention order if it appeared that the respondent was being ‘warehoused’ at the Marlborough Unit and active steps were not being taken to provide a less restrictive environment into which he could transition, the evidence before me left me with no impression at all that the respondent has been or is being ‘warehoused’. 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. Bearing in mind the primary purpose of the Act of protecting the community, whether that transition will be possible, and when that may be, are matters yet to be determined, and will largely depend on the progress the respondent is able to continue to make while subject to the detention order.
Conclusion
The detention order made on 15 December 2017 and renewed on 13 December 2018 was ordered to remain in operation.