Director of Public Prosecutions v DJD (Renewal application)
[2024] VSC 46
•10 March 2023
| 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
BETWEEN
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| DJD | Respondent |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 14, 15 and 16 December 2022 |
DATE OF RULING: | 10 March 2023 |
DATE OF REASONS: | 16 February 2024 |
CASE MAY BE CITED AS: | DPP v DJD (Renewal application) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 46 |
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CRIMINAL LAW – Application for renewal of detention order – Unchallenged evidence that respondent remained an unacceptable risk of committing a serious sex offence or serious violence offence if detention order not made – No challenge by respondent to renewal of order but contention as to duration – Respondent detained in Marlborough Unit, Port Phillip Prison, since original detention order made – Progress made, but more work to be done – No less restrictive option currently available, but authorities exploring all options – Two years the appropriate duration of order – Detention order renewed for period of two years – SeriousOffendersAct2018 ss 1, 8, 61, 62, 63, 64, 69, 71, 73, 75, 100, 108, 279.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms K Hamill | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr S Collins with Ms I Siriwardana | Victoria Legal Aid |
| For the Secretary to the Department of Justice and Community Safety | Ms S Flynn KC | Secretary to the Department of Justice and Community Safety |
HIS HONOUR:
Introduction
On 16 September 2022, the Director of Public Prosecutions (‘the Director’) applied to renew the detention order with respect to the respondent, DJD, for a period of two years.
Two other applications were brought by the Director in this proceeding:
· Application for review of the detention order pursuant to s 100(1)(a) of the Serious Offenders Act 2018 (‘the Act’), filed 8 December 2021; and
· Application for an interim detention order pursuant to s 75 of the Act, filed 2 December 2022.
The respondent was originally made the subject of an interim detention order by this Court on 17 August 2017 and a detention order on 15 December 2017.[1] The order has since been renewed twice, on 14 December 2018,[2] and on 10 December 2020.[3] In the interim, on 18 February 2020, the detention order renewed on 14 December 2018 was, on review, ordered to remain in operation.[4]
[1]DPP v DJD [2017] VSC 681R (Coghlan JA); DPP v DJD [2017] VSC 776 (Riordan J).
[2]DPP v DJD [2018] VSC 827 (Tinney J).
[3]Detailed reasons not published.
[4]DPP v DJD (2020 Review) [2020] VSC 491 (Tinney J).
The two applications referred to in paragraph [2] were dealt with, by agreement, before the hearing of the renewal application.
On 13 December 2022, the day before the commencement of the renewal application hearing, I made an interim detention order in respect of DJD, by consent in chambers, that commenced on 14 December 2022 for a period of three months. This order was sought by the Director in circumstances where the detention order was set to expire before the hearing of the renewal application.
On 14 December 2022, I ruled on the Director’s application to review the detention order, pursuant to s 108(1) of the Act, that the order should remain in operation. Having regard to the reports filed, I was satisfied that DJD still posed an unacceptable risk of committing a serious sex offence if a detention order was not in effect and he was in the community. The respondent did not seek to be heard on this application.
For background, the application for review was filed by the Director within one year of the detention order that commenced on 14 December 2020, and was listed for hearing in May 2022.[5] In the lead up to this hearing, the respondent sought an adjournment to enable DJD’s suitability for a residential treatment facility to be assessed. DJD was ultimately assessed as unsuitable for this facility and, following this, the Director filed its application for renewal. As a result, the review no longer served a practical purpose, the renewal application overlapping with the review application and effectively replacing it.[6] However, it was the Director’s view that orders on the review were required, with no power under the Act to withdraw the review application.[7]
[5]Per the requirement under the Serious Offenders Act 2018 s 100(1) (’the Act’).
[6]Ibid ss 62–64.
[7]Written submissions on behalf of the Applicant, 9 December 2022 [5] (‘Applicant’s submissions’).
The renewal application was heard on 14, 15 and 16 December 2022. The Director sought the renewal of the detention order for a period of two years. Whilst in the written outline of submissions filed on behalf of the respondent,[8] it was indicated that the making of a detention order was not consented to by the respondent, as the application proceeded, it was apparent that no issue was taken by the respondent with the detention order being renewed. What was in contention was the duration of the renewed order. The respondent sought a renewal for a period of one year only. At the conclusion of the hearing, I reserved my decision.
[8]Dated 13 December 2022.
On 10 March 2023, by an email sent to the parties, I announced my decision on the application to renew the detention order for a period of two years, indicating that I would publish reasons ‘in the coming months’. Regrettably, I have not done so until now. I publish my reasons for the above decision, with my apologies to the parties for the delay in the provision of these reasons.
Background
The respondent’s past history and his index offending are detailed in the four earlier decisions of this Court.[9] In brief summary, DJD has convictions for several serious sex offences dating back to 2008.[10] This offending includes:
[9]DPP v DJD [2017] VSC 681R (Coghlan JA); DPP v DJD [2017] VSC 776 (Riordan J); DPP v DJD [2018] VSC 827 (Tinney J); DPP v DJD (2020 Review) [2020] VSC 491 (Tinney J).
[10]DPP v DJD [2017] VSC 776 [18].
· Indecent assault (two charges), intentionally causing injury and recklessly causing injury in 2010, arising from two separate incidents. On 18 August 2010, DJD followed a female victim from a tram and grabbed at her genitals and clothing, saying ‘shut up bitch’ when the victim screamed, punching her in the face, and trying to remove his own trousers. The next day, he followed another female victim from a tram, pushing her, putting his belt around her neck and dragging her to the ground. He lay on top of the victim and ripped off her t-shirt.
· Intentionally causing injury and indecent assault arising from an incident in 2011, when DJD attacked a female disability support worker.
· Unlawful assault in 2013, when DJD grabbed a female nurse around the head and neck area, shaking her.
· Threat to commit a sexual offence, criminal damage, assault with a weapon (two charges) and failing to comply with a supervision order at Corella Place in 2016. This offending involved staff discovering handwritten notes in DJD’s unit which referred to the names of two female employees. These notes included the lines, ‘I love [employee A], this is my girlfriend from Corella Place. I want to rape’ and ‘rape her soon [employee B] true.’[11]
[11]Ibid [42].
DJD’s offending at Corella Place occurred one month after he had been placed on an interim supervision order by her Honour Judge Quin and ordered to reside at the facility.[12] DJD was sentenced to ten months’ imprisonment.
[12]This order was made under the Serious Sex Offenders (Detention and Supervision) Act 2009, the predecessor legislation to the Serious Offenders Act 2018 which came into operation on 3 September 2018.
Whilst DJD was serving this sentence, he was placed on an interim detention order that commenced upon his release from custody. The interim order was followed by a detention order imposed on 15 December 2017. From the time of the interim order, DJD resided in the Marlborough Unit (‘MU’) at Port Phillip Prison, a secure facility for offenders with disabilities.
In December 2022, DJD came before the Court as a 44-year-old man with a mild intellectual disability and diagnoses of antisocial personality disorder, borderline personality disorder, and both alcohol and cannabis dependence (both in remission).[13] His criminal history is extensive, dating back to 1998.
[13]Detention and supervision order progress report by Distinguished Professor James Ogloff AM, 14 November 2022 [21], [22], [26] (‘Report by Professor Ogloff’).
The law
The respondent at the time of this renewal application was an eligible offender in the terms of s 8 of the Act because of the existence of the interim detention order I made on 13 December 2022.
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 of the Act provides:
(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)
Section 64 of the Act provides:
(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.
Evidence
I have had regard to the following materials filed by the applicant:
· Psychiatric progress report by Dr Kevin Ong, 14 August 2022.
· Affidavit of Zandra Carino, 9 November 2022.
· Detention and supervision order progress report by Distinguished Professor James Ogloff AM, 14 November 2022.
· Affidavit of Franca Guglielmino, 21 November 2022.
· Affidavit of Jennifer Hosking, 21 November 2022.
· Psychiatric report by Dr Rajan Darjee, 30 November 2022.
On the hearing of the application, five witnesses were called by Ms Hamill who appeared for the Director. One witness was called by Mr Collins, who appeared with Ms Siriwardana for the respondent. A summary of their evidence follows.
Jennifer Hosking
The first witness called was Jennifer Hosking, Assistant Commissioner for Sentence Management with Corrections Victoria (‘CV’), who supervises DJD’s management within the MU. An affidavit of Ms Hosking sworn 21 November 2022 outlined the facilities available for the housing of offenders subject to detention orders. She detailed the housing conditions of the respondent in the MU at Port Phillip Prison, and the reasons why other accommodation options have been considered unsuitable for him. In light of the expert opinion to which I will later turn, she indicated the intention of CV that the respondent remain in the MU should the detention order be renewed. The detention management plan for the respondent is reviewed and updated quarterly. Monthly reports to the Post Sentence Authority (‘PSA’) detail the respondent’s progress. Ms Hosking outlined further aspects of the management of the respondent in the MU. In her sworn evidence, Ms Hosking described the prison’s transition plan for the respondent, an important aspect of which is a phased approach to his accompaniment around the prison, aimed at progressing him to a position where he would be able to move about unaccompanied. The aim is to provide him the opportunity to demonstrate improvement in the way he interacts with others. Overall, the plan is towards less restriction. The respondent has shown significant improvement. Ms Hosking expressed no difficulty with the ultimate goal of the respondent being moved permanently to a less secure environment, that being what the authorities would always be working towards with anybody subject to a detention order.
Dr Matthew Frize
The next witness called by the applicant was Dr Matthew Frize, director of the Forensic Disability Services (‘FDS’) within the Department of Families, Fairness and Housing, and a registered clinical, forensic and educational psychologist. Dr Frize gave evidence concerning the two residential treatment facilities (‘RTFs’) for which DJD has been considered and ultimately assessed as unsuitable. These facilities are:
· The Long-Term Residential Program in Bundoora (‘LTRP’); and
· The Intensive Residential Treatment Program in Fairfield (‘IRTP’, previously known as ‘DFATS’).
Dr Frize described the features of the two facilities, and the reasons why the respondent had been found unsuitable for them, an assessment which had been confirmed in the lead-up to the hearing in December 2022. Dr Frize described the respondent as being ‘a very complex individual who requires a solution that’s specific to him’.[14] Dr Frize saw the respondent’s best option for transitioning out of prison as being a purpose-built facility aided by National Disability Insurance Scheme (‘NDIS’) funding and services. In the view of Dr Frize, the respondent did not, at the time of the hearing, have the capacity to be able to engage in such a facility. As for the likely timeframe for that being possible, he considered two years to be a short period. It could not be done sooner than that, bearing in mind the need for the respondent to comfortably transition, and the need for there to be suitable accommodation available. In respect of the IRTP, Dr Frize opined that it would be unlikely that the respondent would meet the eligibility requirements for the facility in the reasonable future, although the prospect could not be entirely ruled out. He made the point that the IRTP is not an accommodation service, but rather, a residential treatment facility at which the expectation would be that a resident would engage in the treatment program.
[14]Transcript 35.
Dr Kevin Ong
Dr Kevin Ong, consultant forensic psychiatrist, prepared his psychiatric progress report based on his video-link consultation with the respondent on 29 July 2022 and his consideration of a large array of material, including his earlier reports. The focus of the report was on the progress of the respondent in the previous year. He confirmed the respondent’s well-established diagnoses of borderline and antisocial personality disorders and mild disability.[15] Among other things, Dr Ong detailed incidents in which the respondent had been involved over the previous year.
[15]Psychiatric progress report by Dr Kevin Ong, 14 August 2022, 8.
Dr Ong repeated his risk assessment of the respondent with the assistance of the STATIC-99 and RSVP tools. He concluded that the overall combination of the results of those tools indicated that the respondent remains a high risk of sexual re-offending. Although he had displayed less overt sexualised behaviour during the then-current reporting period, that was likely the function of ongoing intensive support, as well as his gradually developing skills in emotional regulation and distress tolerance.
Dr Ong also assessed the respondent’s risk of future violent offending using the HCR-3, finding that the respondent remains a high risk of future violent offending.
Dr Ong expressed the view that if the respondent is not able to be transitioned to the IRTP, he would benefit from a clear, written pathway regarding requirements to be met for such a transition to occur, or a transition to an alternative setting. He needs to be provided with the necessary motivation of gradual lessening of restrictions and gaining of privileges when he is able to consistently demonstrate the ability to engage in appropriate behaviour. If he becomes despondent, his risk potentially increases.
Dr Ong indicated that he was not aware of any services in the community other than the IRTP which would adequately meet the respondent’s requirements. He continues to require a secure facility to contain his safety risks. Dr Ong considered the respondent not to be a suitable candidate for anti-libidinal treatment, his sexual offending being intimately tied to his personality disorder rather than sexual deviancy or hypersexuality.
In conclusion, Dr Ong assessed the respondent as presenting a high risk of a Schedule 1 sexual offence in the future if not the subject of an order under the Act. He assessed the respondent as presenting a moderate risk of Schedule 2 violent re-offending if not made the subject of an order under the Act.
The focus of the cross-examination of Dr Ong before me was on the steps the respondent has taken in recent times, the gradual way in which transition should be approached, and the lack of accommodation and treatment options in Victoria for people such as the respondent.
In terms of the realistic time frame for transition into another facility, Dr Ong considered that by the time appropriate accommodation is identified and the respondent embarks on a graded process of transition, ‘at least 12 months’ would be required.[16]
[16]Transcript 67.
Franca Guglielmino
Ms Guglielmino, the Director of the Post Sentence Branch (‘PSB’), CV, is responsible for the management of serious offenders who are on supervision orders under the Act, and for the management of residential facilities including Corella Place and Rivergum Residential Treatment Centre. In her affidavit, sworn 21 November 2022, Ms Guglielmino expressed the view that the respondent’s risk of committing a future serious sexual or violence offence could not be managed to an acceptable level if he was on a supervision order. She touched on the Suitability for Residential Treatment Facility Report of 2 August 2022, which analysed the respondent’s suitability for an RTF, and outlined the reasons why even the IRTP has been assessed as unsuitable. Corella Place would also be unsuitable for reasons outlined in the affidavit.[17]
[17]See pages 13-14.
In her evidence before me, Ms Guglielmino confirmed her opinion as to the respondent’s unsuitability for Corella Place. She touched on the possibility of a bespoke facility being made available to the respondent with NDIS support. In cross-examination, she indicated that discussions as to the possible funding of such a facility had been taking place for close to a year.
Ms Guglielmino spoke of the desirability of the respondent achieving some goals in the prison setting. Progress has been made, so the authorities want to extend that in a safe and graduated way.
Distinguished Professor James Ogloff AM
Dr Ogloff,[18] like Dr Ong, has had a long history with the respondent, preparing many previous reports. His seventh such report, the Detention and Supervision Order Progress Report dated 14 November 2022, was intended to be read in conjunction with his other reports. His aim was to address the respondent’s progress in the year preceding the report. Like Dr Ong, he had access to a vast array of material, including Dr Ong’s report. He also assessed the respondent on 6 October 2022.
[18]The witness has previously expressed a preference to be addressed as ‘Dr Ogloff’.
Dr Ogloff set out some features of the criminal history of the respondent, before turning to his recent progress in the MU. The respondent continues to be well-maintained in the MU, and his overall stability has increased over time, with fewer incidents. Nonetheless, the respondent still presents with complex needs and his stability is most likely a function of the familiarity of the treatment and corrections team with him, rather than increasing insight and self-control. Notwithstanding this qualification, Dr Ogloff indicated that the respondent has demonstrated an increased capacity in several respects.
Dr Ogloff turned to the four main areas of concern which he had previously outlined.
He noted that the respondent had been subject to a comprehensive suitability assessment for a RTF. He was found unsuitable.
As is recommended practice, Dr Ogloff re-administered and re-scored the risk assessment measures used previously by him to help determine the respondent’s current level of risk of reoffending sexually and violently.[19] These scores reflected that despite the respondent’s relative stability in the MU, there has been little material change in his level of risk of either type of offending.
[19]Static-99/Static-99R, RSVP, PCL-R and HCR-20.
Dr Ogloff emphasised the importance of the respondent not losing hope for the future. He commended the respondent for continuing to make gains, and being able to recover from setbacks. Although he has made gains, the progress can be attributed to the high level of support he receives from a team of committed professionals who tend to his needs. Although he has shown greater insight and behavioural control, he must demonstrate a greater capacity to internalise change, which can only come with time and constant reinforcement and support.
Dr Ogloff noted the necessity to continue to plan for a step-down in the restrictive environment over time. Unfortunately, with the unsuitability of the respondent for admission to either the LTRP or the IRTP, the options for his movement in the short to medium term are limited. Dr Ogloff concurred with Dr Ong’s recommendation that the respondent would benefit from a clear transition pathway to assist him in understanding what is required of him prior to transition. He expressed the opinion that it would be possible to eventually trial the respondent in a less restrictive environment. Before that would be possible, however, a clear plan and pathway would need to be developed between FDS, CV and the PSB. Funding support of the National Disability Insurance Agency would also be required.
Dr Ogloff re-affirmed his opinion that the respondent poses a high risk of committing sexual and violent offences if released into the community without a detention order or supervision order. The respondent has had difficulties in all of the facilities in which he has been housed. He has been most settled in the MU. He requires a level of security that can contain his risks, including by restricting his direct access to females alone. His risk of absconding also must be reduced. In light of all of his characteristics, the respondent is complex and at the time of the report, the safety needs cannot be adequately managed outside of a secure facility.
As to what accommodation would be required to adequately address the respondent’s needs, Dr Ogloff indicated that the transition goal in the first instance should be a RTF, although he is not presently suitable. There is not currently another suitable facility to which he could step down in the foreseeable future. The MU meets his current needs. An RTF would not. There is a need for the respondent to eventually transition to a less restrictive setting. Further change in his behaviour is necessary before this can occur. The transition needs to occur over time in a step-down fashion where the respondent’s restrictions are gradually reduced. Dr Ogloff recommended that CV work with the PSB to identify areas where the respondent’s restrictions can be relaxed to determine whether he can maintain the gains he has made. It would be useful for FDS to also be involved in that planning. Dr Ogloff was of the opinion that throughout any transition, which should be conducted in a stepped and careful manner, the respondent should remain in his current secure environment.
In his sworn evidence before me, Dr Ogloff agreed that the experts are unified in their view that the respondent has made some significant progress over the previous year. This is due to a combination of factors, the most significant of which is the extent to which he is settled in the MU and well known by those who deal with him and treat him there. He still needs to be on a detention order, however, for the foreseeable future. There is presently nowhere for the respondent to go other than the MU. It would be a very big step for the respondent to go from confinement at the MU, with all of its supports and physical security, to something like the IRTP.
In respect of the duration of the renewed detention order, Dr Ogloff noted that in his experience, an overly long extension may lead to inaction by the authorities, whilst on the other hand, a too-short extension may leave no realistic possibility of meaningful progress. A person with concrete thinking like the respondent may equate the end of the renewal period with the time he will be going off the detention order, leading to the risk of great disappointment. On balance, Dr Ogloff considered a period of two years to strike the correct balance, leaving time for a meaningful transition plan to be developed and commenced without enabling the authorities to rest on their laurels.
Dr Ogloff reiterated his evidence that there is presently no suitable facility for the management of the respondent outside the MU. Essentially, a facility replicating the supports within the MU, but in a less secure setting, is required. This will necessitate some additional investment and modification.
In cross-examination as to the appropriate duration of the renewed detention order, Dr Ogloff resisted the contention that a period of twelve months would suffice. In his view, two years would be necessary.
Dr Rajan Darjee
Dr Rajan Darjee, a consultant forensic psychiatrist who was engaged by the respondent, provided a psychiatric report and gave evidence in the hearing before me. In preparing his report he had access to all of the material seen by Dr Ong and Dr Ogloff, as well as their reports. He had previously assessed the respondent and provided a report at the request of the PSB. He agreed with the diagnoses of Dr Ong and Dr Ogloff as to the mild intellectual disability and personality disorder suffered by the respondent. When he applied the risk assessment instruments used by Professor Ogloff, he came to almost identical ratings and conclusions.
Dr Darjee in his report noted the improvement of the respondent in a number of respects over the previous year. Such improvement was primarily due to the structured environment in which he resided and his relationships with staff and risk management measures. Additionally, to some extent the respondent showed improvements in his level of self-awareness, ability to cope, better self-regulation and ability to engage with others.
Dr Darjee was of the view that given the high risk the respondent poses of serious sexual offending, he clearly requires to be on a supervision order or detention order. The current environment around him and the services he receives are important in minimising the risk posed.
Dr Darjee emphasised the importance of there being a clear pathway for the respondent to follow from his current high security management to a less secure arrangement. It is important that he be kept motivated. Whatever the next step is, he should be given a gradual structured program of increasing freedoms and reduced monitoring within prison, with small steps and clear criteria based on his behaviour and risk level, for stepping down through such a program.
Dr Darjee did not recommend the respondent coming off the detention order at the time of the report. He agreed with the opinions of Dr Ong and Dr Ogloff as to the risk posed.
In his evidence before me, Dr Darjee agreed with the other experts that the respondent has made considerable progress. An important juncture has been reached where the authorities need to consider what can be offered to the respondent towards a pathway of transition out of his current restrictive environment. Dr Darjee considered this to be the first time such a position has been reached in DJD’s case.
The finding of suitable accommodation for offenders with intellectual disability and complex needs is no novel situation. It is a recurrent issue, stated Dr Darjee. Dr Darjee could see three possible steps forward. He outlined these, and indicated that those involved in the respondent’s management have to make a decision.
Dr Darjee stated that a suitable length of time for the renewed detention order would be about one year. He was not saying that the respondent would definitely be able to progress in that time, but he could feasibly get to that stage in one year. Dr Darjee did not feel that it would be a setback to the respondent should the transition not be achieved in that time. The problem with a two year period is that it would not provide much impetus for the authorities to move forward, he opined.
In cross-examination, Dr Darjee maintained his opinion that, on balance, there would be advantages to a one year extension of the detention order which would outweigh the disadvantages. A one year period would give the respondent the message that he has made progress and give him something to work towards, and if it could not be achieved, his disappointment could be managed.
In terms of the respondent’s unsuitability for the IRTP, Dr Darjee indicated that he would defer to the views of Dr Frize as to the period of time which might be required for him to become suitable. Likewise, Dr Darjee could not speak to the period of time which may be required for a bespoke facility to be made available.
Submissions for the applicant
Ms Hamill for the applicant relied on her written and oral submissions in support of the contention that the detention order should be renewed for a period of two years. The written outline set out the background of the case, the statutory framework, and some of the relevant authorities. In her oral submissions, Ms Hamill focused on the sole matter in dispute, namely, the period for which the renewal should be granted.
As Ms Hamill put it, the fact that the application sought a renewal for a period of two rather than the maximum three years recognised the good progress made by the respondent. The principles to be considered when determining the duration of the order are those discussed in the analogous decision of ARM v Secretary to the Department of Justice (‘ARM’).[20] As Ms Hamill put it:
If the court is not satisfied to a high degree of probability that the respondent will remain likely to commit a relevant offence for the whole of the 3-year period, then the detention order should be made for such lesser period during which the court is satisfied the respondent will be an unacceptable risk of committing a relevant offence unless subjected to a detention order.[21]
[20][2008] VSCA 266 [13] (‘ARM’). This was a decision in relation to s 14 of the Serious Sex Offenders Monitoring Act 2005, the equivalent provision to s 69 of the Act.
[21]Applicant’s outline [17].
Ms Hamill submitted that the fact that the respondent has been on a detention order since 2017 and has remained a high risk of sexual reoffending throughout that period is an indicator of the difficult exercise facing the Court. The evidence would suggest that it is only in recent times that the respondent has shown the necessary improvement in his behaviour to indicate that a transition may be possible.
Ms Hamill summarised the relevant expert evidence as to the appropriate period of time for which to renew the order. She submitted that the evidence is clear that, at the time of hearing, there would be nowhere to safely transition the respondent. That is not to say that the authorities are sitting on their hands or not motivated to do anything. Motivating the agencies, in any event, is not the statutory purpose, or one of the statutory purposes, of fixing a timeframe for a detention order. The question is one of risk.
Ms Hamill submitted that when the respondent’s history is considered, and the expert evidence is properly taken into account, the term of the detention order which would be appropriate in light of the principle set out in ARM is a period of two years.
Submissions for the respondent
As indicated earlier, the written outline filed before the hearing on behalf of the respondent indicated that the making of a further detention order was not consented to. In his written submissions to the Court following the evidence, Mr Collins accepted that the weight of the expert evidence was that there should be a detention order for at least some period of time. He did not seek to dissuade me from renewing the detention order. At issue was the duration of the order. Mr Collins submitted that the detention order should be ‘of the shortest possible duration’.[22]
[22]Transcript 189.
In summarising the evidence touching on the period for which the detention order should be renewed, Mr Collins submitted that whilst Dr Ogloff expressed the view that two years would be the ‘sweet spot’ or about right, there are other considerations. He submitted that a shorter period of renewal ‘would encourage those agencies and departments to continue their work on transitioning [the respondent] into that appropriate accommodation’.[23] Having made the submission, Mr Collins accepted that the applicant’s contention that motivating agencies is not the statutory purpose, or even part of the statutory purpose of the provisions in the Act, was correct.
[23]Ibid 192.
In his amended written submissions filed immediately prior to the final day of the hearing, Mr Collins described what he called a ‘cost-benefit analysis of the duration of the order’.[24] In this analysis, he submitted that a shorter term would encourage the respondent and motivate him to continue his progress. It may also motivate the relevant agencies. These were pointed to as two benefits of a year-long order.
[24]Respondent’s final written submissions [22]-[23].
As for the costs, it was submitted that the progress of the respondent would be monitored and assessed. If he was not able to be moved onto a supervision order after a year and there was more work to be done, then the order could be renewed. In cost terms, it was submitted, there would be no practical difference between the review of a long detention order and a renewal of it. It was submitted that the cost would be the same either way, because it would require the same level of work and same reviews. Indeed, bearing in mind the benefit of encouragement being provided to the respondent and the agencies, on a cost-benefit analysis, there would be more to be said for a shorter, year-long order.
This cost-benefit analysis in the written submissions did not take into account the expert evidence describing the potential negative impact upon the respondent of the discouragement he may feel on finding out at the end of a short renewal period that he was still not able to be transitioned from a detention order to a supervision order. In his oral submissions, Mr Collins conceded that the sense of setback the respondent may feel in that situation may well be a cost, but he submitted, relying on the evidence of Dr Darjee, that the respondent is able to handle setbacks, so it would not really be much of a cost to factor into the analysis.
Analysis
In the determination of this matter, 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, not forgetting the evidence of Dr Darjee, 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 MU and the beneficial effect of that treatment and support, as well as the evidence of the unsuitability at this time of every other possible accommodation, there could be but one outcome of this application for the renewal 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.
As for the duration of the detention order, having carefully considered the competing positions, and contemplated some intermediate course such as a period of 18 months for the duration, I was satisfied that the two year period sought by the applicant was appropriate. The preponderance of the evidence supported that proposition. In my view, the one year period sought by the respondent’s counsel and supported by the evidence of Dr Darjee was ambitious to the point of being unrealistic. Bearing in mind the long period of time during which the respondent has remained a high risk of reoffending, notwithstanding the very high level of treatment and supervision provided to him, as well as the current lack of an appropriate alternative facility into which he could transition, the very gradual steps that would be required before transition could even be possible, and the current lack of a real transition plan, a period of one year would be inadequate. I accepted the evidence of Dr Ogloff that a period of two years would be appropriate.
I was satisfied to a high degree of probability that the respondent will remain likely to commit a relevant offence for the whole of the two year period which I determined to specify as the duration of the order.
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.[25]
[25]DPP v DJD (2020 review) [2020] VSC 491 [73].
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.[26] The authorities must continue to take all possible steps to ensure that outcome. The interests of justice require nothing less.
[26]Ms Flynn KC, who was not a party to the proceeding, but appeared as an observer for the Secretary to the Department of Justice and Community Safety, lest the need may arise for the making of an application for a supervision order, made a brief submission for the assistance of the Court at the conclusion of Ms Hamill’s submissions. She summarised the regular meetings and reviews concerning the position of the respondent in support of a contention that the authorities are considering appropriate accommodation and transition plans for the respondent on a very regular basis.
Non-publication order
Having heard unchallenged evidence from expert witnesses supporting the making of a non-publication order in this case for reasons elaborated on in the evidence, I made an order pursuant to s 279(1) of the Act prohibiting the publication of any information before the Court in the proceeding that might enable the respondent or his location to be identified until the next review.
Conclusion
I renewed the detention order in respect of the respondent for a period of two years. The order commenced on 10 March 2023.
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