Director of Public Prosecutions v DJD
[2018] VSC 827
•14 December 2018
| 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 renewal of a detention order | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| DJD | Respondent |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 12, 13, 14 December 2018 |
DATE OF JUDGMENT: | 14 December 2018 |
DATE OF REASONS | 30 May 2019 |
CASE MAY BE CITED AS: | DPP v DJD |
MEDIUM NEUTRAL CITATION: | [2018] VSC 827 |
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PUBLIC LAW – Application for renewal of detention order – Unchallenged evidence that respondent an unacceptable risk of committing a serious sex offence or serious violence offence if detention order not made – Respondent detained in Marlborough Unit, Port Phillip Prison since original detention order made – Some progress – No less restrictive option available – No dispute that 2 years the appropriate duration of order – Detention order renewed for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Sally Flynn QC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr J McLoughlin | Victoria Legal Aid |
HIS HONOUR:
Introduction
By notice dated 19 October 2018, the Director of Public Prosecutions (‘the Director’) made an application for the renewal of a detention order under s 71 of the Serious Offenders Act 2018 (‘the Act’).
The application came on for hearing before me on 12 December 2018. On that day, I heard some evidence to which I will later turn. On the morning of 13 December 2018, I visited the Marlborough Unit at Port Phillip Prison, the location where the respondent had been housed for some time. On the recommencement of the hearing, I heard further evidence, and then submissions from the parties. There was agreement between the parties that the appropriate course, and indeed, the only course open to me, was to renew the detention order.
On that day, I made orders renewing the detention order, specifying the period of the order as being two years. I said at the time I would publish my reasons at a later time. These are those reasons.
Background
The respondent is a 40 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 are summarised in the judgment of Riordan J in The Director of Public Prosecution v DJD.[1] These matters are also dealt with in some detail in a number of the reports and affidavits to which I have had regard in this matter. It is unnecessary in these reasons for me to dwell too long on those matters.
[1][2017] VSC 776.
In June 2011, while the respondent was subject to both a suspended sentence and a Residential Treatment Order which had him reside at the Disability Forensic Assessment and Treatment Services in Fairfield, Victoria (‘DFATS’), he carried out a serious, sexually motivated assault on a female worker at the facility.
He was sentenced by Judge Punshon in the County Court on 7 February 2012 to a total effective sentence of 5 years and 4 months’ imprisonment with a non-parole period of 3 years and 4 months.
That head sentence was due to expire in September 2016. Before that occurred, on 21 September 2016, Judge Quin in the County Court made an interim supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009. The order was expressed to commence upon his release from prison on 26 September 2016.
On 24 January 2017, Judge Quin extended the interim supervision order to 23 May 2017.
On 14 February 2017, Judge Quin dealt with the respondent for a number of sexual and violent offences, as well as two charges of breaching the interim supervision order constituted by the offending. This conduct had all occurred on 21 October 2016 at Corella Place. Judge Quin sentenced the respondent to a total effective sentence of 10 months’ imprisonment and made a declaration as to pre-sentence detention.
On 17 August 2017, shortly before the expiration of the sentence of Judge Quin, Justice of Appeal Coghlan made an interim detention order in respect of the respondent under the Serious Sex Offenders (Detention and Supervision) Act 2009. His Honour published his reasons on 10 November 2017.[2] The order was for a period of four months, commencing upon the respondent’s release from prison on 19 August 2017.
[2]DPP v DJD [2017] VSC 681R.
On 15 December 2017, just before the expiry of the interim detention order, Justice Riordan made a detention order under the Serious Sex Offenders (Detention and Supervision) Act 2009, which commenced on 15 December 2017 and was expressed to run until 15 December 2018.[3]
[3]DPP v DJD [2017] VSC 776.
The Serious Offenders Act 2018 (‘the Act’) commenced operation on 3 September 2018, and repealed the Serious Sex Offenders (Detention and Supervision) Act 2009. Pursuant to clause 4 of Schedule 4 of the Act, the detention order made by Justice Riordan continued to operate until it expired or was replaced by an order under the Act.
As indicated above, the Director of Public Prosecutions brought an application to renew the detention order made by Justice Riordan.
The law
The respondent at the time of my consideration of the matter was an eligible offender in the terms of s 8 of the Act because of the existence of the detention order of Justice Riordan.
Section 71(1) of the Act provides:
At any time before the expiry of the detention order in respect of an eligible offender, the DPP may apply to the Supreme Court for the renewal of the order.
Section 73 of the Act relevantly provides:
(1) On an application under section 71 to renew a detention order, the Supreme Court may –
(a) renew the detention order; or
(b) revoke the detention order; or
(c) make a supervision order, an interim supervision order or an interim detention order; or
(d) make no order under paragraph (a), (b) or (c).
…
(3) Sections 62, 63 and 64 apply to the determination of an application under section 71 as if a reference to an application under section 61 were a reference to an application under section 71.
Section 61(1) of the Act provides:
The DPP may apply to the Supreme Court for a detention order in respect of a person who is an eligible offender at the time when the application is commenced.
Section 62 of the Act relevantly provides:
(1) On an application under section 61, the Supreme Court may make a detention order in respect of an eligible offender if, and only if, the court is satisfied under section 63(1) and is satisfied under section 64(1).
(2) For the purposes of sections 63 and 64, the Supreme Court must be satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk.
(3) If the Supreme Court is not satisfied that the risk referred to in section 64(1) would be unacceptable unless a detention order were made, the court may make a supervision order in respect of the offender.
…
(5) The Supreme Court may make no order in circumstances where it is empowered to make a detention order or supervision order under this section.
Section 63 and 64 of the Act provide:
63 Finding of unacceptable risk
(1)For the purposes of section 62, the Supreme Court must be satisfied that –
(a)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious sex offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and the offender is in the community; or
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and the offender is in the community.
(2)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court must have regard to –
(a)subject to section 273, any assessment report or progress report filed in relation to the application, whether by the Secretary or the offender; and
(b)any other report filed, tendered or made, or evidence given, in relation to the application; and
(c) any other matter the court considers appropriate.
(3)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court must not have regard to –
(a) the means of managing the risk; and
(b)the likely impact of a detention order or a supervision order on the offender.
(4)The Supreme Court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(5)The DPP has the burden of proving that an offender poses or will pose an unacceptable risk under subsection (1)
64 Detention order only option
(1)If the Supreme Court is satisfied as required by section 63(1), the Supreme Court must be satisfied that –
(a)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious sex offence, the risk of the offender committing, or after release from custody committing, a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made; or
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the risk of the offender committing, or after release from custody committing, a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made.
(2)The Supreme Court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(3)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court may have regard to –
(a) the means of managing the risk; and
(b) the likely impact of a detention order on the offender.
The evidence
In the circumstances of this application being unopposed, of the various medical reports having been filed in the matter and being available for analysis, and of there being unanimity amongst the three medical witnesses whose evidence I came to consider in the application, I will only summarise the evidence briefly.
Professor James Ogloff
Professor James Ogloff, a Consultant Forensic Psychologist, provided a Progress Report pursuant to s 273 of the Act, dated 12 October 2019. He did so in the context of having earlier provided an Assessment Report and sworn evidence which were relied upon by Riordan J when he made the original detention order.
The earlier report and sworn evidence indicated that the opinion of Professor Ogloff was that the respondent would pose a high risk of sexual offending should he be released into the community.[4]
[4]Unlike the Act, the Serious Sex Offenders (Detention and Supervision) Act 2009 was concerned with the risk of future sex offending only.
Professor Ogloff assessed the respondent in the Marlborough Unit (‘the Unit’) for 110 minutes on 24 July 2018. In preparing the Progress Report, he also had regard to a vast array of other material as set out in paragraph 5.
In the Progress Report, Professor Ogloff noted some significant improvement and stabilisation in the condition of the respondent, who has now been in the Unit for some time. As he put it, ‘[The respondent’s] psychopathology, while still very much present, has been more stable over the past year than has been the case over the recent past’.[5]
[5]Progress Report [23].
Professor Ogloff indicated that in his view, staff in the Unit, including the respondent’s disability coordinator Luke Casey, had accommodated the respondent’s intellectual disability well. He also remarked upon how well the respondent’s two peer mentors interacted with him, supporting him, yet challenging inappropriate thoughts and behaviours. He further stated:
[The respondent] has struggled over many years to achieve and maintain stability whilst initially on a residential treatment order, whilst in prison and, finally, while on the interim supervision order. While he is still unable to maintain stability on the Marlborough Unit at Port Phillip Prison, he has certainly been more settled over the past year. This is likely as the result of the degree of support he is receiving and the well-coordinated Management Plan.[6]
[6]Ibid [40].
On the topic of the progress of the respondent since the making of the detention order last year, Professor Ogloff opined that the respondent had been afforded a high level of support. He detailed the different aspects of that support.
That is not to say that the respondent’s time in the Unit had been without incident. Professor Ogloff outlined a number of incidents in which he had been involved, including attacks upon and verbal altercations with other prisoners, occasions of self-harm and threats to staff members. Troublingly, the respondent has continued to develop a focus or fixation on female staff members, and has sometimes behaved inappropriately towards female staff. In addition, on multiple occasions, he was found with numerous clippings of females in his cell, including some of young girls in school uniform.
In respect of the risk of sexual reoffending of the respondent, Professor Ogloff stated:
The focus of my 2017 report was on a comprehensive assessment of [the respondent’s] risk of sexual offending and non-sexual violent offending. 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 with future offending (history of offending, history of relationship stability, etc.) than are the so-called dynamic or changeable variables (emotional regulation, impulse control, etc.). Given [the respondent’s] high risk of offending, my current assessment of his level of risk for reoffending sexually or in a non-sexually violent way remains largely unchanged. Indeed, when [the respondent] is able to demonstrate sustained change and stability in the dynamic risk factors he presents with, over time it would be possible to consider that the level of risk he presents is reducing. The ongoing instability he displays, as well as the inappropriate behaviour he has displayed, suggests that his level of risk remains high.[7]
[7]Ibid [72].
Professor Ogloff indicated that as part of his assessment of the respondent, he readministered the same tests upon the respondent as he had administered previously, leading to similar results. In summary, in dealing with the overall level of risk of sexual reoffending of the respondent, he stated:
Unsurprisingly, given their very nature, the static variables present in [the respondent’s] case, as assessed by the Static-99/Static 99R,[8] remain unchanged and indicate that his static level of risk falls in the high/well above average range. Similarly, a comprehensive evaluation of the combination of static and dynamic risk factors associated with sex offending using the RSVP[9] indicate that he continues to possess a high level of sex offence risk factors. Taken together, I continue to hold the opinion that [the respondent] presents a high risk of engaging in future sexual offending. He is to be commended for begin (sic) to show a level of stability that has not been seen whilst in prison and under supervision; however, he will need to increase his level of stability, engage better in treatment, and develop a greater degree of insight into the factors that contribute to his offending and how he might control the (sic), before he will show an appreciable reduction in the level of risk that he presents.[10]
[8]The Static-99 is a brief actuarial risk assessment tool designed to assist in the prediction of recidivism among adult males who have been convicted of at least one sexual offence against a child or non-consenting adult. The assessment is based upon static or historical factors empirically linked to sexual recidivism and is intended to measure long-term risk potential. The Static-99R is an updated model of the Static-99.
[9]The Risk for Sexual Violence Protocol (RSVP) is a structured professional judgement instrument that includes both static and dynamic factors that have been associated with the risk of future sexual violence. The RSVP was developed to assist the identification of a comprehensive range of factors related to sexual offending in order to assist in the management of those factors.
[10]Progress Report [99].
As for the risk of non-sexual violent offending, Professor Ogloff stated that, as in the past, he had applied a test known as HCR-20[11] to assist in the evaluation of the risk of such offending.
[11]The HCR-20 Version 3 is a validated risk assessment apparatus used to assess risk for non-sexual violence and violent offending including those with a cognitive impairment. The HCR-20 V3 provides information about both static and dynamic factors that relate to the likelihood of violent reoffending.
He stated that it was his opinion that [the respondent] ‘continues to present a high risk of non-sexual violence’.[12]
[12]Progress Report [107].
In summary, upon a consideration of matters required to be addressed in the Progress Report by section 270(2) of the Act, Professor Ogloff opined:
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 committing a violent offence if released into the community and not made subject to a detention order or a supervision order.
In an Addendum Report dated 15 November 2018, the purpose of which was to address the suitability of the newly opened Rivergum Residential Treatment Centre (Rivergum) in Ararat, Professor Ogloff expressed the view that it would not be suitable to accommodate the respondent in Rivergum. As he put it:
Based on my knowledge and understanding of the physical design of the facility and the model of care, [the respondent’s] needs and risks cannot be adequately managed at the facility.
Professor Ogloff gave evidence before me, concurrently with a witness called on behalf of the respondent, Dr Dion Gee. He attested to the truthfulness of his Progress Report and Addendum Report, and swore that the opinions expressed therein were still opinions he held.
In further evidence, Professor Ogloff confirmed his view that the respondent has made good progress in the Unit. That environment, and the supports it entailed, had been instrumental in that improvement and Professor Ogloff stated he would not like to see the level of support reduced. Because of the long period over which the behaviour of the respondent had been problematic, progress had been relatively slow.
Professor Ogloff confirmed his opinion that no location other than the Unit would meet the needs of the respondent.
Professor Ogloff reiterated that his opinions expressed in the Progress Report as to the respondent’s risk of sexual or violent offending remained the same, albeit he noted that he now had more optimism for the future.
As to the duration of the detention order sought by the applicant, namely, two years, he considered this to be appropriate.
Dr Kevin Ong
Dr Kevin Ong, a Forensic Psychiatrist, provided a Psychiatric Progress Report at the request of the Post Sentence Branch, and gave sworn evidence before me. He did so in the context of having provided previous reports dated 15 May 2017 and 14 July 2017 which were amongst the material relied upon by Riordan J in making the detention order on 15 December 2017. In the report of 15 May 2017, Dr Ong stated:
From the information available to me, it is my opinion that [the respondent] continues to present a high risk of sexual reoffending if he is not made subject to an Order under the Act. As shown by the incident in 2011 at DFATS involving a female staff member, even when under supervision [the respondent] was able to commit what appears to be a premeditated sexual offence.
Currently, it is my opinion that [the respondent] requires close monitoring and supervision, combined with both psychological and medical interventions, in order to reduce his risk of reoffending.
The judgment of Riordan J indicates that Dr Ong confirmed this opinion in his further report dated 14 July 2017.[13]
[13]DPP v DJD [2017] VSC 776 [82].
In his Psychiatric Progress Report, which I will deal with relatively briefly, Dr Ong indicated that he had had a 95 minute interview with the respondent via video link from the Post Sentence Branch on 17 August 2018. He also had regard to a large array of other reports and materials to inform him about the respondent’s past history, recent progress and current status.
Dr Ong, like Professor Ogloff, noted the improvement in the respondent over the past year, but outlined some of the remaining concerns, including, importantly, the fact that he has continued to behave inappropriately towards female staff.
In terms of the risk assessment carried out by Doctor Ong, he explained his reliance on testing to explore static and dynamic factors. He indicated he had used two widely used tools in particular, namely, the STATIC-99 and RSVP, to assess the risk of sexual reoffending. The results of these tests, as was the case in the past with the respondent, indicated a high risk of sexual reoffending. As Dr Ong put it:
The corollary of 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 is despite [the respondent] demonstrating some improvement with service providers on Marlborough Unit, and a modest reduction in the frequency of some of his problematic behaviours (e.g. self-harming and property damage).[14]
[14]Psychiatric Progress Report 23.
The risk of future violent offending was also assessed, utilising the Historical Clinical Risk Management-20, Version 3 (HCR-20 V3). It was the opinion of Dr Ong that the risk of future violence by the respondent, as indicated by the test results, remains high.
In consideration of the matters to be addressed by virtue of s 270(1) of the Act, Dr Ong stated:
Based on my assessment of [the respondent], together with the information available to me, it is my opinion that [he] continues to present a high risk of both sexual and non-sexual re-offending in the future.[15]
[15]Ibid 27.
Dr Ong went on to opine:
Any future offending is likely to be similar to previous offending, with a mixture of impulsive and premeditated actions, and would involve 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.[16]
[16]Ibid 28.
In respect of section 270(2) of the Act, Dr Ong expressed the opinion that, from the information available to him, [the respondent] continues to present a high risk of sexual re-offending and violent re-offending if he was not made subject to an order under the Act.
In his evidence before me, Dr Ong confirmed the truthfulness of the contents of his most recent report, and that the opinions expressed therein were opinions which he still held.
Dr Dion Gee
Dr Dion Gee, a Forensic Psychologist engaged by Victoria Legal Aid on behalf of the respondent, provided a psychological report dated 4 December 2018. He had provided two earlier reports dated 1 October 2017 and 12 November 2017 and had also given evidence before Riordan J during the application for the earlier detention order. During that evidence, Dr Gee had stated:
Based on the information available to me and in light of my assessment, I am of the opinion that [the respondent] presents with a high risk of committing a relevant sexual offence in the community if not made subject to an order under the Serious Sex Offenders (Detention and Supervision) Act; an order that would – at least initially – now best take the form of a Detention Order.[17]
[17]DPP v DJD [2017] VSC 776 [80].
At that time, Dr Gee did not consider that the Unit would be optimal for the treatment of the respondent, but opined that it would be the ‘least worse’/’least harmful’ of the accommodation options.[18]
[18]Ibid 81.
Prior to preparing his most recent report, Dr Gee interviewed the respondent and had resort to numerous reports and other materials relevant to the respondent, including the recent reports of Professor Ogloff and Dr Ong. The particular focus of the report was to track the respondent’s progress since the making of the detention order in late 2017.
Dr Gee conducted much of the same testing as was carried out by Professor Ogloff and Dr Ong to assist in an assessment of risk of future reoffending. Essentially, the results of such testing were much the same.
In stating his opinion as to the risk of future offending by the respondent, Dr Gee stated:
Based on the information available to me and in light of my assessment, I am of the opinion that [the respondent] currently presents with a high risk of committing a relevant ‘serious sex offence’ and a high risk of committing a relevant ‘serious violence offence’ in the community if not made subject to an order under the Serious Offenders Act 2018; an order that would – at least for the present time – still best take the form of a Detention Order.
In his sworn evidence given before me, Dr Gee adhered to his opinions expressed in his report of 4 December 2018. He attested that the environment in which the respondent had lived had played a big part in the progress he had made in the last year. Like Ogloff, he considered the level of support had been very helpful and he did not want to see it reduced. In his opinion, the only location which would meet the needs of the situation was the Unit.
Dr Gee stated that the risk levels of the respondent reoffending had not changed since December 2017.
In respect of the proposed two year duration of the detention order, Dr Gee raised the prospect that in 18 months, there may be the scope for the commencement of a stepped move into a different environment. He also gave some evidence about possible aspects of treatment which may be beneficial to the respondent.
Brendan Money
Brendan Money, the Assistant Commissioner (Sentence Management) Corrections Victoria provided an affidavit sworn 15 November 2018, and gave sworn evidence before me on 13 December 2018. He is responsible for the oversight of the management and placement of prisoners, both sentenced and on remand, within the Victorian prison system, and of offenders subject to detention orders.
In his affidavit, he provided an update in relation to the management and behaviour of the respondent since he had been subject to a detention order. In his evidence, he was asked about a number of aspects of the future treatment of the respondent, and what other facilities may be suitable for him in the future.
Other material before the Court
I was also provided with two affidavits of Sarah Miles, Assistant Director of the Post Sentence Branch, Corrections Victoria, and an affidavit from Simone Shaw, Clinical Director, Corrections Victoria. In the circumstances, I will not summarise this material.
Submissions on behalf of the applicant
Ms Flynn QC, who appeared on behalf of the Director of Public Prosecutions in the application with Ms Davidson, provided written submissions and made oral submissions in Court. She largely, however, relied on the written submissions.
The written submissions set out the statutory framework for the making of a detention order, noting that the Act had retained the two-stage process discussed by Forrest J in DPP v JPH (No 2).[19]
[19](2014) 239 A Crim R 543 [17] – [18].
Ms Flynn acknowledged that the applicant bears the onus of proof in the application, and that the standard of proof is as set out in s 62(2) of the Act.
She submitted that the question of whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates.[20] An assessment of the gravity of the consequences will usually be the critical factor. Ms Flynn set out the following passage from Nigro v Secretary to the Department of Justice:
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]Nigro v Secretary to the Department of Justice (2013) 41 VR 359.
[21]Ibid [130].
Although, as was pointed out, the previous order was made under the Serious Sex Offenders (Detention and Supervision) Act 2009 on the basis that the respondent posed an unacceptable risk of committing a serious sex offence, the applicant now relies upon the respondent’s risk of committing a serious sex offence and/or a serious violence offence.
In respect of the duration of the order to be specified, which is limited to 3 years by section 69 of the Act, Ms Flynn noted that the equivalent provision in respect of extended supervision orders under the Serious Sex Offenders Monitoring Act 2005 was considered by the Court of Appeal in ARM v Secretary to the Department of Justice.[22] As the Court in that case explained:
It is implicit in section 14, and both sides accepted, that if the court is not satisfied to a high degree of probability that the offender will remain likely to commit a relevant offence for the whole 15 year period referred to in s 14, the period of the order should be set at such lesser period as for which the court is satisfied to a high degree of probability that the offender will be likely to commit a relevant offence unless subjected to the program.[23]
[22][2008] VSCA 266.
[23]Ibid [13].
It was submitted that, applying those principles to the test of unacceptable risk in sections 63 and 64, it was implicit that if the Court is not satisfied that the respondent will remain an unacceptable risk of committing a relevant offence unless a detention order is made for the whole of the 3 year period referred to in the provision, the period of the detention order should be set at such lesser period as for which the Court is satisfied that the respondent will be an unacceptable risk of committing a relevant offence unless subjected to a detention order.
In the present case, the applicant sought an order for two years.
Ms Flynn submitted that the psychiatric and psychological material before the Court clearly established that the first stage of the test in s 63 was made out, namely, that the respondent posed an unacceptable risk of committing both a serious sex offence and a serious violence offence if neither a detention nor a supervision order was made and the respondent was in the community.
She further submitted that the evidence clearly established that the second stage of the test under s 64 was also made out. The respondent posed an unacceptable risk of committing both a serious sex offence and a serious violence offence if a detention order was not made. A supervision order, even one with strict residential conditions, would not be sufficient to reduce the respondent’s risk to an acceptable level.
In advancing that contention, Ms Flynn pointed to evidence showing why all of the other possible residential locations other than the Unit would be unsuitable in the circumstances.
As to the duration of the order, the evidence of Professor Ogloff was that this period was the appropriate one. I was invited to act upon this evidence.
Submissions on behalf of the respondent
In his written submissions on behalf of the respondent, Mr McLoughlin conceded that it would be open to the Court to be satisfied of the matters set out in ss 63(1) and 64(1) of the Act on the basis of the reports of Professor Ogloff, Dr Ong and Dr Gee.
Notwithstanding those concessions, the Court should accept Dr Gee’s view that the respondent’s current risk of re-offending if released unsupervised into the community was ‘moderate-high’ rather than ‘high’ as assessed by Professor Ogloff.
Mr McLoughlin did not argue that a supervision order would be appropriate. Rather, he conceded that if a detention order was made, which he implicitly conceded was appropriate, the respondent should be held at the Unit.
Mr McLoughlin’s written submission went on to assert that the Court, if it made a detention order, should direct the Secretary of the Department of Justice and Regulation to facilitate during the life of a detention order certain treatment recommendations made by Dr Gee in his report. Furthermore, it was submitted that the Court should direct the Secretary to explore the availability of alternative supervised residential placements other than the Residential Facilities gazetted under the Act for future consideration in respect of the respondent.
In his oral submissions before me, Mr McLoughlin did not persist in the submission that I should make a finding of risk that varied from that indicated by Professor Ogloff and Dr Ong. Nor did he persist in the submission that I should give any directions to the Secretary as to the details of future treatment or the exploration of future accommodation options.
Mr McLoughlin did not dispute that both aspects of the two-stage test were made out in this case, and that therefore a detention order should be made. Nor did he dispute that the Unit would be the appropriate location for the respondent to be held during that order.
In addition, there was no challenge by Mr McLoughlin to the appropriateness of the two year duration of the detention order sought by the applicant, in spite of Dr Gee’s slight reservations about that period.
Indeed, Mr McLoughlin did not make any submission in opposition to the appropriateness of all of the details of the orders provided to the Court in draft, which ended up being the order made by the court, including the one year period for a review of the detention order.
Analysis
The respondent was an eligible offender by virtue of the detention order to which he was subject at the time he came before me.
Based on the affidavit and other material before me filed on behalf of the applicant, which to my mind was acceptable and cogent evidence and in the end was essentially unchallenged, I was satisfied to a high degree of probability that the respondent would pose an unacceptable risk of committing both a serious sex offence and a serious violence offence as defined in the Act if a detention order was not made and he was in the community.
The appropriate location for the respondent to be detained was the Unit. The appropriate duration of the order was a period of two years.
Conclusion
I renewed the detention order in respect of the respondent for a period of two years. The order is attached to these reasons.