Director of Public Prosecutions v DW

[2023] VSC 24

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0045

IN THE MATTER OF the Serious Offenders Act 2018 (Vic)
-and-
IN THE MATTER OF an application for a detention order pursuant to s 61(1) of the Serious Offenders Act 2018 (Vic)
Between:
THE DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
-and-
DW	Respondent

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JUDGE:	Fox J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 & 21 April 2021 (before Coghlan J); 25 May 2022, 5–6 & 16 December 2022 (before Fox J)
DATE OF JUDGMENT:	27 January 2023
CASE MAY BE CITED AS:	DPP v DW
MEDIUM NEUTRAL CITATION:	[2023] VSC 24

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PUBLIC LAW — Application for detention order — Respondent currently subject to an interim detention order — Prior breach of interim supervision order — Serious sex offender — Relevance of risk of stalking — Unacceptable risk of offender committing a serious sex offence if not subject to a supervision or detention order — Whether risk can only be managed on a detention order — Detention order not the only option — No detention order made — Nigro v Secretary to the Department of Justice (2013) 41 VR 359 — Serious Offenders Act 2018 (Vic) ss 1, 3, 5, 61, 62, 63, 64, 128, 130 & 132.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr R de Vietri	Office of Public Prosecutions
For the respondent	Self-represented	N/A
For the Secretary, Department of Justice and Community Safety	Mr P Holdenson KC, with Ms A Roodenburg	Victorian Government Solicitor’s Office

HER HONOUR:

Introduction

1. This is an application for a detention order brought by the Director of Public Prosecutions (‘the Director’) under s 61(1) of the Serious Offenders Act 2018 (Vic) (‘the Act’).[1]  The Director makes the application on the grounds that the respondent, DW,[2] poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence and the risk would be unacceptable unless a detention order is made.

   [1]All references in these reasons to section numbers are references to this Act unless otherwise stated.

   [2]I have determined pursuant to s 279 to use the pseudonym ‘DW’ in respect of the respondent to prevent his identification. Parts of these reasons have been redacted for the same purpose.  A suppression order pursuant to s 279 has been in place since 7 March 2021 with respect to the earlier interim detention order proceedings. 

1. The Secretary to the Department of Justice and Community Safety (‘the Secretary’) was represented by counsel and present during the hearing, but the Secretary was not a party to the proceeding.  On occasion, senior counsel for the Secretary, who has had previous involvement in matters concerning DW, provided assistance to the Court.

Background

1. This matter has an unfortunate and lengthy history in this Court.  On 2 March 2021, four days before the expiry of DW’s sentence, the applicant filed applications for a detention order and an interim detention order. 

1. On 5 March 2021, Coghlan J heard and granted the application for a four‑month interim detention order.  The interim detention order commenced on 7 March 2021, being the date DW’s sentence expired.

1. On 15 April 2021, the substantive application for a detention order commenced before Coghlan J.  DW was represented but declined to attend.  Three witnesses were called by the applicant and cross‑examined by counsel for DW.

1. On 21 April 2021, the hearing continued.  Again, DW was represented but declined to attend.  One witness was called by the applicant and cross‑examined.  A timetable was fixed for the filing and serving of submissions, and the matter adjourned sine die.

1. DW then dismissed his lawyers.  There followed a number of mentions where the respondent either declined to appear, or appeared unrepresented.  New solicitors were engaged but then dismissed by the respondent.  Further solicitors were assigned but the respondent refused their assistance.  After multiple mentions, the respondent agreed to be represented by the assigned solicitors.  During this process, the interim detention order was extended twice by Coghlan J; first on 21 June 2021 for a period of three months and then again on 16 September 2021 for a period of four months.

1. On 7 December 2021, the matter came before me.  I extended the interim detention order for a further four months from date of expiration.[3]  On that occasion, the respondent was represented and attended for part of the hearing.

   [3]Re DW [2021] VSC 866R.

1. On 9 May 2022, the hearing that had commenced before Coghlan J was listed to continue before me.  DW again dismissed his lawyers and declined to appear.  The matter was further adjourned, and the interim detention order extended for a further four months from the date of expiration.

1. On 25 May 2022, the hearing was again listed before me.  DW appeared unrepresented and requested more time to obtain legal representation.  Having stated his position, DW then left the remote hearing room.  The applicant opposed any further adjournment. 

1. Section 130 provides that an offender ‘is entitled to a reasonable opportunity to obtain legal representation for the hearing of an application under Part 3, 4, 5, 6, 7 or 8’. Relevantly, Part 5 governs detention order applications. It was my view that the respondent had had ample opportunity to obtain legal representation.

1. Section 128(3) provides:

(3)If an offender is unable to be present at the hearing of an application under Part 3, 4, 5, 6, 7 or 8 because of illness or for any other reason, the court may proceed with the hearing of the application in the absence of the offender if the court is satisfied that—

(a) doing so will not prejudice the interests of the offender; and

(b)the interests of justice require that the hearing should proceed in the absence of the offender.

1. In the circumstances, I determined to proceed with the hearing in the absence of DW.[4]  

   [4]See T65 and discussion at T13-64, 25 May 2022.

1. The following day, DW appeared, unrepresented.  DW indicated that he still wanted to obtain legal representation, and was prepared to attend an assessment appointment with Bea Raymond, forensic psychologist.  The matter was further adjourned, mentions were held, and DW obtained new legal representatives. The hearing was listed for 5 December 2022.  In late November 2022, DW’s legal representatives withdrew. 

1. On 5 December 2022, DW appeared, unrepresented. DW advised the Court that he thought his legal representation for this matter had been arranged, and his solicitor was still acting for him on other matters. DW addressed the Court at some length, and the respondent’s position is summarised below. DW then left the hearing. In all the circumstances, I again determined pursuant to s 128(3) to proceed with the hearing in the absence of DW. My reasons for so proceeding included that DW had had the opportunity to convey to the Court his wishes; DW did not seek a further adjournment; the ongoing proceeding was causing considerable distress to DW and he wanted the matter finalised; and any further adjournment would likely prove entirely fruitless and DW would very likely continue to be unrepresented at any future hearing.

1. Ultimately the hearing concluded on 16 December 2022.  On that date, I extended the interim detention order for a further one month.  The one‑month extension commenced on 14 January 2023.

The statutory scheme

1. The primary purpose of the Act is to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision.[5]  The secondary purpose is to facilitate the treatment and rehabilitation of those offenders.[6] Pursuant to s 5, when making a decision under the Act, the decision maker ‘must give paramount consideration to the safety and protection of the community’.

   [5]Serious Offenders Act 2018 (Vic) s 1(a).

   [6]Serious Offenders Act 2018 (Vic) s 1(b).

1. ‘Serious sex offence’ is defined in s 3 to mean an offence referred to in Schedule 1. Schedule 1 lists offences of a sexual nature, including rape, sexual assault and sexual offences committed against children. ‘Serious violence offence’ is defined in s 3 to mean an offence referred to in Schedule 2.

1. A detention or supervision order may only be made in respect of an ‘eligible offender’ as defined in s 8 of the Act. At the time the applications were made, DW was an ‘eligible offender’ by virtue of s 8(2)(a) and (b)(ii) because he was serving a custodial sentence and, at the time he was remanded into custody, he was subject to an interim supervision order. Currently, DW is subject to an interim detention order and is therefore an ‘eligible offender’ pursuant to s 8(3).

1. Detention orders are provided for by Part 5 of the Act. Section 62(1) provides that the Supreme Court may make a detention order if, and only if, it is satisfied under both s 63(1) and s 64(1). Thus determination of this application involves a two‑stage process.

1. The Court must first determine whether there is an unacceptable risk. Section 63 provides:

63Finding 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

…

(2)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court must have regard to—

(a)subject to section 273, any assessment report or progress report filed in relation to the application, whether by the Secretary or the offender; and

(b)any other report filed, tendered or made, or evidence given, in relation to the application; and

(c)any other matter the court considers appropriate. 

(3) In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court must not have regard to—

(a) the means of managing the risk; or

(b)the likely impact of a detention order or a supervision order on the offender.

(4) The Supreme Court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.

(5)The DPP has the burden of proving at an offender poses or will pose an unacceptable risk under subsection (1). 

1. The Court must then consider whether there is an unacceptable risk of the offender committing a relevant offence unless a detention order were made. Section 64 provides:

64Detention 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

…

(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. 

1. For the purposes of ss 63 and 64, the Court must be satisfied ‘by acceptable, cogent evidence to a high degree of probability’ that the criteria in those provisions are met if it is to impose a detention or supervision order. While s 64 contains no equivalent subsection to s 63(5), it has been accepted that the applicant bears the onus of satisfying the requirements of s 64.[7] 

   [7]DPP v CS [2021] VSC 686, [136] (Incerti J), citing DPP v MAJ [2011] VSC 646R, [23]. See also DPP v JPH (No 2) (2014) 239 A Crim R 543, 549 [19] (T Forrest J).

1. If the Court is not satisfied that the risk referred to in s 64(1) would be unacceptable unless a detention order were made, it may make a supervision order[8] or make no order.[9]  If the Court is satisfied that the risk would be unacceptable unless a detention order were made, it may make a detention order[10] but retains the residual discretion to make no order.[11]

   [8]Serious Offenders Act 2018 (Vic) s 62(3).

   [9]Serious Offenders Act 2018 (Vic) s 62(5).

   [10]Serious Offenders Act 2018 (Vic) s 62(1).

   [11]Serious Offenders Act 2018 (Vic) s 62(5).

1. Section 132 provides that a court hearing an application under Part 5 may have regard to:

(a)whether the offender cooperated, or cooperated fully, in the preparation of an assessment report or progress report, including any examination for the purposes of an additional assessment under Part 18; and

(b)if the offender did not cooperate, or did not cooperate fully, in the preparation of an assessment report or progress report, the reasons of the offender for not doing so; and

(c)whether an assessment report or progress report was made without a personal examination of the offender.

1. This section invites consideration of the conduct of the offender during the assessment process, and also the conduct of the assessors.  An assessment report made without personal examination of the offender may, potentially, be less persuasive, particularly in circumstances where the offender was not asked to participate in an assessment.

Unacceptable risk

1. The concept of ‘unacceptable risk’ is central to this application. The phrase is not defined in the Act. However, it has been considered in the context of earlier equivalent legislative provisions. In Nigro v Secretary to the Department of Justice[12] the Court of Appeal stated that the common law presumption in favour of the liberty of the subject underpins the predictive inquiry required by the legislation.  The right to personal liberty is the most elementary and important of all common law rights.[13]  In summarising its conclusions, the Court stated:[14]

[5] … The test of unacceptable risk should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection …

[6] Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates.  There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable.  These matters must be established by acceptable and cogent evidence.  The principle in Briginshaw is relevant to an evaluation of the quality and sufficiency of the evidence.  The court must be satisfied to a high degree of probability that there is an unacceptable risk.  That is a standard well above the civil standard and approaching the criminal standard. 

[12](2013) 41 VR 359, 378 [67] (Redlich, Osborn and Priest JJA) (‘Nigro’).  The Court in Nigro was dealing with the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), but their Honours’ remarks remain relevant to the present Act: see Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707, [26] (Elliot J).

[13]Ibid.

[14]Ibid 363 [5]-[6] (Redlich, Osborn and Priest JJA) (citations omitted).

1. The Act makes clear that the likelihood that an offender will commit a serious sex offence or a serious violence offence need not be more likely than not in order for the Court to make a finding of unacceptable risk.[15] However, the Act does not specify a particular degree of risk. The test is necessarily flexible. It is not concerned with relative rates of recidivism, or assumptions as to risk occasioned by the ‘average’ offender.[16]

   [15]Serious Offenders Act 2018 (Vic) ss 63(4) and 64(2).

   [16]Nigro (n 12) 390–1 [116]–[117] (Redlich, Osborn and Priest JJA).

The evidence

1. In support of the application the Director relied upon the following:

(a)        assessment report of Ms Bea Raymond, forensic psychologist, dated 22 March 2019[17] and addendum assessment reports dated 24 April 2019, 18 November 2019,[18] 13 January 2020, 14 October 2020, 16 March 2022 and 4 July 2022;

[17]The Director also relied upon a letter of Aisling Denham of the VGSO dated 3 March 2021 in which several errors in Ms Raymond’s reports and correspondence are identified and corrected.

[18]This was styled ‘letter of advice’ not ‘addendum report’.

(b)       psychiatric reports of Dr Kevin Ong, psychiatrist, dated 8 July 2019 and 12 November 2020 and addendum assessment report dated 8 April 2022; 

(c)        affidavits of Ms Jennifer Hosking of Corrections Victoria sworn 2 March 2021, 14 April 2021, 14 April 2022 and 25 November 2022; 

(d)       affidavit and confidential affidavit of Sarah Miles of Corrections Victoria sworn 2 March 2021;

(e)        affidavit of Mr Joseph Mollica of Corrections Victoria sworn 2 March 2021;

(f)        affidavit of Ms Franca Guglielmino of Corrections Victoria sworn 13 April 2022;

(g)       affidavit of Mr Louis Andrews of the Office of Public Prosecutions sworn 14 April 2022;

(h)       incident report made under the Corrections Act 1986 (Vic) dated 16 April 2021;

(i)         monthly report of Ms Maree Zeidan and Ms Anna Young of the Department of Justice and Community Safety dated 4 May 2022; 

(j)         preliminary brief statements by police informant McKinnon, made on 9 May 2022 and 22 May 2022;

(k)       visitor list current as at 5 December 2022; 

(l)         card found in respondent’s cell on 22 June 2022.

1. The Director relied also upon the oral evidence of the following witnesses:

(a)        Ms Raymond, who gave evidence on 15 April 2021 before Coghlan J and on 5 December 2022 before me;

(b)       Ms Hosking, who gave evidence on 15 April 2021 before Coghlan J, and on 25 May 2022 and 6 December 2022 before me; 

(c)        Dr Ong, who gave evidence on 15 April 2021 before Coghlan J and on 25 May 2022 before me;

(d)       Mr Mollica, who gave evidence on 21 April 2021 before Coghlan J and on 6 December 2022 before me;

(e)        Ms Guglielmino, who gave evidence on 16 December 2022 before me. 

1. The respondent was represented on 15 and 21 April 2021 and witnesses were cross‑examined on his behalf on those days.  He was unrepresented on all other occasions and did not seek to cross‑examine anyone on those occasions. 

1. The respondent called no evidence.  However, he did provide various documents to the Court, including after the hearing concluded.  One has been marked as an exhibit, and the others remain on the Court file.

Overview of the post-sentence supervision and detention scheme

1. As set out above and in brief compass, the Act provides a scheme whereby an offender who has completed his or her custodial sentence, but is assessed as posing an unacceptable risk of committing a serious sex offence or serious violence offence (or both), may be made subject to either a supervision order or a detention order. A detention order may only be made if the risk cannot be acceptably managed by means of a supervision order.

1. It is convenient to commence by referring to some of the evidence of Jennifer Hosking, Assistant Commissioner (Sentence Management) at Corrections Victoria.  Corrections Victoria has three distinct types of post‑sentence accommodation: (1) two secure facilities for persons on detention orders, being Greenhill Detention Unit at Hopkins Correctional Centre (‘Greenhill Unit’) and Piper Detention Unit (‘Piper Unit’) at Barwon Prison; (2) a secure residential treatment facility for persons on supervision orders with intensive treatment conditions,[19] being the Rivergum Residential Treatment Centre (‘Rivergum’); and (3) non‑secure residential facilities for persons on supervision orders who are unable to reside elsewhere.  Relevantly here, those facilities include Corella Place Main (‘Corella Place’).

   [19]See Serious Offenders Act 2018 (Vic) s 32.

1. Ms Hosking is responsible for the oversight of the management and placement of prisoners within the Victorian prison system, including offenders subject to detention orders (and interim detention orders) under the Act. Persons subject to detention orders are kept in prison. They must be treated in a way commensurate with their status as unconvicted prisoners,[20] however the detention order is otherwise managed in accordance with the Corrections Act 1986 (Vic) and the Corrections Regulations 2019 (Vic). For this reason and unlike supervision orders, the Court has no statutory power to attach conditions to a detention order.

   [20]Serious Offenders Act 2018 (Vic) s 255.

1. Greenhill Unit is the least restrictive of the two units available for offenders on detention orders.  DW has never resided there.  He has moved between Piper Unit and various observation cells in different units for a multitude of reasons, including threats to staff, threats of self‑harm, threats from other prisoners, self‑harm, damage to cells, quarantine following hospital admissions and general behavioural concerns. 

1. The Piper Unit is located within the secure perimeter of Barwon Prison, but separate from the other units.  There are common areas reserved for exclusive use by detention order offenders, including visitor areas, a small gym, a communal garden with a shared barbecue, and mixed‑use recreation, program and educational rooms.  There are four separate units within Piper Unit, consisting of individual cottages with individual courtyards and one three‑bedroom cottage.  Offenders are able to self‑cater, wear their own clothing, and keep a greater range of personal items in their rooms than sentenced prisoners (subject to security requirements).  There are CCTV cameras in the common areas and individual courtyards, and kitchen knives are tethered to fixtures.  There are secure doors in all offender areas.  Offenders may be permitted to leave the Piper Unit to access other areas of the prison for limited reasons, such as attending the central program and recreational areas, and will most likely be escorted if they do.  If the Piper Unit becomes unsuitable, such as where an offender poses a significant risk to themselves or others, Corrections Victoria will determine where best to accommodate the offender within the prison system. 

The respondent

1. DW was born on 23 July 1983 in Ballarat.  His mother was Australian and his father [redacted].  DW had one older brother who committed suicide in 2009.  He has two half‑siblings.[21]

   [21]The respondent’s background is set out in various reports and sentencing remarks, and is not always detailed consistently.  This account is largely drawn from the assessment report of Bea Raymond, 22 March 2019.

1. DW’s parents separated when he was two or three years old and his childhood was marred by neglect, frequent exposure to physical violence and sexual abuse.  DW’s mother sexually abused DW and his brother, and both boys were sexually abused by one of their mother’s partners.  DW also suffered physical, emotional and medical abuse.  DW and his brother were removed into foster care.  In 1986, when DW was aged 4, he and his brother were made wards of the State.

1. [Redacted.]

1. At age 14, DW was living alone in a hostel in Ballarat.  He then moved in with his girlfriend who was several years older than him, and has one daughter ‘TT’ from this relationship.  He left school halfway through year 9 and worked occasionally as a waiter for a couple of years, and also as a door‑to‑door salesman until he was first incarcerated.  Upon release, he worked at a call centre, where he allegedly engaged in numerous sexual affairs with women in the office and was eventually sacked for unprofessional behaviour across all facets of the role.  It is somewhat difficult to place this chronologically.

1. In 2001 while DW was in Parkville Juvenile Justice Centre, a female worker, Ms C, commenced a relationship with him.  DW was aged 17 at the time and Ms C was 10 years his senior.  The relationship was discovered and Ms C was removed from her position; however, the relationship continued once DW was transferred to an adult prison.  DW was released on parole in late 2004 and lived in a de facto relationship with Ms C, which was marred by infidelity, domestic violence, alcohol abuse and volatility.  The relationship ended in 2007.

1. DW reached the adult prison system on 10 September 2001.  He was granted parole in December 2004 and his sentenced lapsed on 20 February 2007.  He returned to custody in June 2007 and since then, he has been continually in custody, other than for a brief period from 17 August 2019 until 12 November 2019, when he resided at Corella Place subject to an interim supervision order.  He is nearly 40 years old and has spent almost all his adult life in custody.  Unsurprisingly and understatedly, Ms Raymond opined that DW is at risk of being institutionalised if he is not already.[22] 

   [22]T17, 15 April 2021.

Early offending history 1997–2001

1. In July 1997, aged 13, DW was residing in a house managed by the Department of Human Services.  He indecently assaulted a carer by forcibly pulling her shirt open and handling her breasts.  The victim was a woman in her 50s.  DW forced her to remove her belt and unzip her pants, which she did, whereupon he was interrupted by others.  DW was dealt with in the Children’s Court and placed on probation for 18 months.  DW breached his probation by failing to attend the Male Adolescent Program for Positive Sexuality (‘MAPPS’) and received a further six months’ probation.  [Redacted.]  DW moved to Bendigo for a short period with his mother, before problems recurred and DW returned to Ballarat to live with friends.

1. On 6 June 1999, aged 14, DW attended a party with friends and digitally raped a young girl who was present.  He put her up against a wall, removed her clothes, lay on top of her and digitally penetrated her, ignoring her pleas for him to stop.  He was dealt with in the Children’s Court on 4 April 2000 and placed on a Youth Attendance Order.  Contemporaneous breach reports state he began well, however problems arose when DW relocated from Ballarat to Geelong.  He failed to undertake community work, engage with Youth Justice or regularly attend MAPPS.  He was prosecuted for breaching the Youth Attendance Order and sentenced to 9 months’ detention in a Youth Training Centre.

1. On 11 March 2001, DW was at a gathering and drinking with friends, including the victim.  During the day, he attempted to touch the victim’s breast and remove her bra, but was interrupted by others.  The victim left the gathering and DW followed her.  He blocked her path, pulled her to the ground, removed her jeans and committed digital and penile rape.  On 4 April 2001, while on bail for this offending, DW arranged for a female prostitute to attend his house.  They engaged in consensual sex, but when she requested payment, DW pinned her down, removed her skirt and underwear and digitally raped her.  On 10 September 2001, aged 18, he was sentenced in the County Court on two counts of rape to 5 years and 6 months’ imprisonment with a non‑parole period of 3 years and 6 months.  Given his age, it seems this sentence was initially served in a Youth Justice facility. 

Early treatment interventions

1. As noted above, DW was directed to attend MAPPS as an adolescent but was eventually removed from the program due to his continued inability to engage. According to a clinical assessment dated 25 September 2001, DW was assessed as a high‑risk offender who was recommended to participate in a level 3 intensive sex offender program.

1. While in custody in 2003, DW attended a total of 34 individual sessions with the prison psychological services, 10 of which were referred to as ‘crisis intervention’ sessions.  He had been exhibiting depression and extreme anger at the length of his sentence and the prison in general.  Following stabilisation on medication, he completed 64 group hours of a healthy living skills program and agreed to undertake a cognitive skills program in 2004.  DW engaged in management and intervention programs designed to address sexual offending between 16 June and 6 December 2004.  Overall, he was reported to be an appropriate participant, open to considering change and motivated for treatment.  He demonstrated a clear understanding of his high‑risk thoughts, feelings and behaviours and demonstrated high levels of insight.  It was reported that he would struggle with issues upon his release such as impulsivity, sensation seeking and pro‑criminal thinking.  It was recommended that he undertake a Maintaining Change program.[23]

   [23]Bea Raymond, assessment report, 22 March 2019, [58].

1. On 15 December 2004, DW was granted parole.  He commenced the recommended Maintaining Change program on 17 October 2005, but was exited in January 2006 due to a lack of engagement, denial of any problems and anger management issues.  DW completed six sessions of individual anger management in 2006 but was reportedly difficult to engage and denied having an anger management problem.

Index offending

1. On 14 May 2007, DW and Ms C were home together.  DW began to harass her for sex and money.  She refused and DW grabbed her, forcibly pinned her arms down, got on top of her and digitally penetrated her vagina.  Ms C was yelling out to DW to stop.  On 22 May 2007, Ms C obtained an intervention order against DW.  On 7 June, DW entered Ms C’s home and waited for her to return.  When she did, he grabbed her and placed his hand over her mouth.  She screamed and DW threatened to hit her if she did not calm down.  He forced her into the loungeroom and physically prevented her leaving, threatening her that if police arrived he would lock the door and snap her neck.  Ms C managed to call a friend and alert the police.  DW then left over the back fence, leaving behind a bag containing handcuffs, leg cuffs, a dildo and lubricant.  On 12 June 2007, DW handed himself into police and was remanded into custody.

1. Between 12 June and 5 December 2007, DW sent numerous letters to Ms C, begging her for another chance.  According to the material, he also sent SMS messages and returned to her house on a number of occasions, but given DW was in custody from 12 June 2007 this is difficult to reconcile.

1. On 18 May 2007, the victim, DW’s mother, was at home caring for DW’s brother’s child, while DW and his brother went out.  When they returned, DW was affected by alcohol.  DW made comments about the victim’s breasts and then approached her and tried to suck her breasts.  She pushed him away and told him to stop.  He then grabbed her wrists, pushed her front‑first onto a couch and pulled down her pants.  DW’s mother told him to stop but he inserted his penis into her vagina.  Afterwards, DW said, ‘Fuck, what happened?’  He later contacted his ex‑partner, Ms C, and told her what he had done.

1. On 17 December 2008, DW pleaded guilty to charges of rape, burglary, false imprisonment and stalking arising from the offending against Ms C.  He received a total effective sentence of seven years’ imprisonment with a non‑parole period of four years and six months. 

1. On 7 October 2010, DW pleaded guilty to one charge of the rape of his mother.  He was sentenced on 18 April 2011 to eight years and four months’ imprisonment and a new non‑parole period of five years and two months was fixed.  DW did not apply for parole and his head sentence lapsed on 17 August 2019.

Further treatment interventions[24]

[24]This information is sourced from the assessment report of Bea Raymond dated 22 March 2019.

1. After commission of the index offending, and while in prison in 2012, DW completed an Exploring Change program, however he was resistant to participating for its duration.  He stated that the group therapeutic environment was not appropriate one for him to discuss personal matters in, and tended to seat himself slightly apart from group members. 

1. In 2013, DW commenced a program designed to address offence‑specific behaviour. He was reported to be ‘guarded and with limited engagement’.

1. DW was assessed in relation to eligibility for participation in sex offender treatment in May 2015.  DW indicated that he felt he had blocked out many of his childhood experiences as he found them too traumatic.  He reported that he had a high sex drive which increased during stressful periods, but denied any deviant sexual arousal.  He was assessed as using sex as a coping mechanism and believed his offending related to his lack of regard towards consent and a desire to meet his own needs.  DW was assessed as a high‑risk offender, and recommended to engage in Specialised Offender Assessment and Treatment Service (‘SOATS’) treatment, as well as drug and alcohol treatment, employment assistance and psychological intervention for trauma‑related issues when he returns to the community.

1. In 2016 DW refused to engage with the Better Lives Program.  He refused to complete psychometric testing and said he did not agree with the treatment goals.

1. In early 2017 DW attempted 14 sessions of the Better Lives Program.  He was noted to behave childishly by attempting to move himself away from the facilitators.  He later informed them that his attitude was not about them or the treatment, but that he had difficulty being in the same room as child sex offenders.  He felt he had a problem with violence and would be happy to complete a violence program, but felt he had no difficulties with sex.  His attitude was described as ambivalent and dismissive.  DW attempted to negotiate not engaging with female clinicians, which was not endorsed, and he appeared to discount information provided by female clinicians.  He stated one or more of his victims had made up the rape allegations against him.  He was suspended and ultimately removed from the program due to his abusive behaviour towards other participants.  It was recommended that DW engage in individual treatment specifically aimed at developing distress tolerance techniques.

1. DW was provided one‑on‑one treatment through the mobile forensic mental health service between June and November 2017, attending approximately 14 sessions before being transferred to another prison.  During these sessions DW discussed his difficulties dealing with child sex offenders.  He displayed a lack of insight into his offending.  In April 2018,  DW was placed on the waiting list for one‑on‑one treatment at Forensicare.  It seems this never occurred and it is somewhat unclear why.  In May 2018, DW was assessed as not appropriate for offending behaviour programs dealing with violent offending, due to the nature of his offending and concern for the female clinical staff.  He was noted to exhibit stalking behaviour towards one of the nurses at Ravenhall Correctional Centre and lacked insight into his behaviour.

1. In October 2018, DW reported that he was prepared to engage in the Better Lives Program with the knowledge he would need to engage in order to transfer to his desired prison.  Once transferred, DW informed staff he would not take part in the program.  It appears he was then transferred back to Hopkins Correctional Centre, where he resided for the remaining eight months of his sentence.[25]

   [25]Affidavit of Jennifer Hosking, 25 November 2022, Ex JAH-111. 

Behaviour while in prison

1. DW worked in the prison industries at times.  There were instances when he received good reports and was performing well, however he was also sacked or dismissed on multiple occasions.  In 2012 he was transferred from Port Phillip Prison to Ararat due to the large amount of debt he had incurred, owing to other prisoners.  He consistently displayed poor behaviour and an unwillingness to work while at Ararat.

1. DW has a history of self‑harming or threatening self‑harm while in the prison system.  He has been considered a significant risk to others at times, and has been regularly placed in isolation.  There have also been instances of DW being targeted and threatened by other prisoners.  However, throughout his time in prison, DW was not involved in any violent altercations.  DW himself requested to be placed in isolation at times due to suffering high levels of anxiety.

1. In 2015, DW indicated he did not plan to apply for parole when eligible and was not motivated to participate in relevant program assessments.  When it was possible for DW to obtain parole, he discovered there would be issues due to his not having a place to live, as both his mother and brother had died.  DW was reportedly made aware that the reason for his parole application not progressing was his failure to complete SOATS treatment rather than his not having a proposed residential address.  It appears his parole application went no further.

1. Towards the end of his sentence, DW was reported to be suffering high levels of anxiety regarding his imminent release.  He was finding it difficult to cope and feeling very unsafe and worried about his future, and requested someone to talk to. Appointments were made with a psychiatrist.

1. DW was reported to have been infatuated with a female staff member in 2003.  In August 2014 it was reported that DW had displayed ‘inappropriate behaviour’ towards a female staff member, and in February 2016 he had sent a female chaplain ‘inappropriate letters’ and ‘acted inappropriately’ towards his female caseworker.[26] 

   [26]Bea Raymond, Assessment Report, 22 March 2019, [90].  The Review and Assessment Report and Incident Report referred to by Ms Raymond contain no further detail as to what DW did or wrote that was ‘inappropriate’.

Mental state examinations and diagnoses

1. Prior to the expiration of his sentence, DW participated in a four‑hour assessment with Ms Raymond on 29 January 2019 at the Hopkins Correctional Centre.  He denied the offending against his ex‑partner and his mother, despite having pleaded guilty to those charges.  In her report, Ms Raymond provided a detailed and comprehensive account of DW’s history including his offending, psychological assessments and treatment interventions.[27]

   [27]Bea Raymond, Assessment Report, 22 March 2019.

1. According to Ms Raymond, in 2003 DW reported symptoms ranging from depression to psychotic manifestations.  There was uncertainty about the truth of his reported symptoms, and he was noted to be manipulative.  In 2008, DW was diagnosed with schizophrenia after he was convicted of the index offences, and placed at Thomas Embling Hospital for six months.  While there, a nurse formed an inappropriate sexual relationship with DW; the nurse was subsequently dismissed.  DW was returned to prison after he agreed to resume medication, limited to Prozac and olanzapine.  In 2011, a pre‑sentence psychiatric report by Forensicare recorded that DW reported that his mother had sexually abused him as a child, including getting him drunk and persuading him to have sex with her.  He was assessed as fulfilling the criteria for conduct disorder as a child.  His psychiatric diagnosis at that time was complex and indicated a severe personality disorder of ‘antisocial and borderline (or emotionally unstable) type’.  In 2015, DW consulted with a psychiatrist while at Port Phillip prison due to feelings of anxiety and depression which appeared to be a reactive response to the death of his mother.  He reported he had no other family except for his 15‑year‑old daughter but had no access with her.  A couple of months later, Dr Ong assessed DW as not presenting with psychotic symptoms.

1. In November 2015, DW was seen by Dr Bell, psychiatrist.  Dr Bell noted that DW ‘smirked’ at the accompanying nurse and displayed no psychotic symptoms.  DW agreed to a reduction in his antipsychotic, olanzapine.  In March 2016 DW was again seen by Dr Bell.  DW referred to feeling hopeless, helpless and with no appetite but in a rehearsed manner that was not consistent with his presentation.  It was deemed appropriate to cease olanzapine but the drug was subsequently reinstated at a small dose when DW was revisited by Dr Bell three months later.

1. Ms Raymond stated that DW had been diagnosed with a personality disorder and a review of his available history suggested features of schizotypal personality disorder evidenced by his tendency to be socially isolated, reserved and distant.  She considered there was insufficient evidence to assert the presence of a specific personality disorder by reference to specific traits.  Ultimately, she opined that DW presented with a damaged personality that had significantly impacted his relationships and reflected characteristics of borderline personality disorder.[28]

   [28]Bea Raymond, Assessment Report, 22 March 2019, [150].

1. Dr Ong prepared a report dated 8 July 2019.  DW refused to attend a scheduled assessment with Dr Ong for the purpose of the report.  Dr Ong had knowledge of DW due to previous assessments, however he avoided basing his opinion on his recall alone.  He relied on additional material, including the first and second reports of Ms Raymond.[29]  According to Dr Ong, DW had a long history of contact with mental health services, mainly in custody.  However, a 2001 clinical assessment noted that DW also had an extensive history of suicide attempts prior to incarceration, including attempted overdoses, wrist cutting and attempted hanging.

   [29]Those reports are Bea Raymond, Assessment Report, 22 March 2019 and Bea Raymond, Addendum Assessment Report, 24 April 2019. 

1. In 2008, DW was transferred to Thomas Embling Hospital for assessment and management of what appeared to be psychotic and depressive symptoms.  Some of the doctors who assessed DW thought he showed signs of paranoid schizophrenic illness, whereas others had concerns he was feigning symptoms and manipulating the system.  DW was discharged from Thomas Embling Hospital back to prison on 16 October 2008.  Ultimately, DW was assessed as not suffering a psychotic mental illness, but as having antisocial personality disorder.  Dr Ong stated DW exhibited significant antisocial, borderline and narcissistic traits, characterised by affective instability, proneness to anger, impulsivity, lack of empathy and remorse, and frequent contravention of acceptable behaviour and the law.  DW has also been assessed as meeting the criteria for psychopathy, a subset of antisocial personality disorder.  In DW, this manifests in a lack of remorse, callous disregard of others, and manipulative behaviour, despite the harm it may cause others.[30]

   [30]Dr Kevin Ong, Psychiatric Report, 8 July 2019, 25.

Risk assessments

1. Ms Raymond administered a number of psychological tests and risk assessment tools in January 2019, including the Risk of Sexual Violence Protocol (‘RSVP’) and the STATIC‑99R Risk Assessment.  She also utilised the Hare Psychopathy Checklist Revised and the Historical Clinical Risk Management – 20 Violence Risk Assessment Guidelines (‘HCR‑20’).  In her opinion, the testing showed there was no evidence of deviant sexual arousal towards children, however DW did present with periods of preoccupation with sex and using sex as a coping mechanism.  His offending was considered chronic and a reflection of entrenched attitudes of entitlement associated with intimacy, poor general regulation, impulsivity and emotional variability.  The index offences against his mother and his ex‑partner were considered to reflect his extreme agitation and hostility toward both, which was intensified by his abuse of alcohol.  He had a significant history of violent sexual abuse, reflecting preoccupation with sex against a backdrop of using power and control to overwhelm his victims.  He was dismissive of women and this was reflected in his misogynistic, entitled and self‑involved attitudes and in his interpersonal style generally.  Ms Raymond opined that DW presented with a damaged personality with features of borderline and antisocial personality disorder with noted psychopathic traits.  He was easily angered with few skills to manage his anger.  He had difficulty trusting the therapeutic process and mistrusted those he perceived to be in a position of authority.  DW had not mastered risk reduction strategies to contain his behaviour or identify precursors to his offending behaviour.

1. Ms Raymond assessed DW as presenting a high risk of committing a serious sex offence, including rape, sexual assault and assault with intent to commit a sexual offence.  His sexual offending was likely to include physical violence and he was considered a high risk of violent offending against women; however, he was considered a low risk of perpetrating serious violence offences.  Ms Raymond opined that DW would be most likely to re‑offend ‘in the context of seeking out an intimate relationship or against a female who he believed had slighted him, either real or imagined, in a manner that he feels justified in exerting control’.  He would likely use additional violence to perpetrate penetrative sexual offences.  While there was some possibility that he would perpetrate the offences against an unknown victim, it was more likely that he would sexually reoffend against a female known to him for at least 24 hours.

1. Ms Raymond listed four intervention recommendations which would benefit DW: participation in offence‑specific treatment; treatment programs aimed at developing relationship skills and emotional management; significant case management to assist in the application of risk reduction strategies; and support to develop and participate in meaningful daily activities.

1. An addendum report of Bea Raymond dated 24 April 2019 noted that DW remained resistant to treatment and poorly behaved.  He was separated into a management unit on occasions.  Ms Raymond’s opinion as to risk was unchanged from her first report.  Her intervention recommendations were also unchanged.

1. Dr Ong reviewed the index offence material.  He concurred with previous opinions of others that DW’s sexual offending appeared to have been carried out due to anger, sexual entitlement and a need to assert power and control over his victims.  In Dr Ong’s opinion, alcohol abuse also appeared to be a particular factor in DW’s offending.  Dr Ong noted DW appeared to have a propensity to pursue inappropriate relationships with female staff, and unfortunately, his attitudes had been ‘reinforced by his “success” in establishing at least two such relationships in the past’.[31]

   [31]Dr Kevin Ong, Psychiatric Report, 8 July 2019, 27.

1. Dr Ong summarised and appeared to endorse Ms Raymond’s risk assessment.  Dr Ong noted that the procedure adopted by Ms Raymond was considered ‘current best practice’, and ‘[w]hilst not infallible, and maintaining a degree of imprecision, these instruments allow the identification of factors that may contribute to future risk’.[32]  Dr Ong himself did not offer an opinion as to DW’s risk of committing a serious sexual offence.  He noted that DW had refused assessment for antilibidinal medication and therefore such treatment was not an option.

   [32]Dr Kevin Ong, Psychiatric Report, 8 July 2019, 21.

Rivergum assessment

1. A Treatment and Supervision Plan dated 3 June 2019 was prepared and endorsed by Dr Davey, Clinical Services Manager, Rivergum, and Ms Sarah Miles, Post Sentence Branch.[33]  DW was assessed as ‘not suited to receiving treatment at Rivergum’ on the grounds of his ‘inability and unwillingness to engage in both the community model and treatment model as delivered’.  The authors noted DW’s inappropriate behaviour towards female staff, and his sustained and pervasive difficulties in engaging in group treatment.  They considered that DW would ‘best be treated 1:1 by a male clinician with experience in treating severe personality disorder and psychopathy, with a focus on complex trauma, attachment difficulties, emotion regulation and the violent and sexual behavioural manifestations — both offending and non‑offending related’.[34]  According to the plan, there were also ‘no less restrictive residence options suitable for [DW]’.[35]  In other words, according to the plan, there were no suitable residential options where DW could be placed post‑sentence. 

   [33]Affidavit of Joseph Mollica, 2 March 2021, Ex JM-2.

   [34]Affidavit of Joseph Mollica, Exhibit JM-2, 7.

   [35]Affidavit of Joseph Mollica, Exhibit JM-2, 4.

Release of DW onto an interim supervision order on 17 August 2019

1. Prior to DW’s sentence expiring, the Secretary successfully applied for an interim supervision order (‘ISO’). 

1. On 17 August 2019, DW was released from custody on an ISO with conditions.  A key condition sought by the Secretary, and granted, was that DW reside at Corella Place, which is a non‑secure residential facility housing eligible offenders who have served a custodial sentence for a serious sex offence.[36]  At the hearing of the Secretary’s application for the ISO, DW’s counsel advised the County Court that DW did not want to reside with child sex offenders.  According to Ms Raymond, treatment for sex offenders does not differentiate between adults who offend against children, and adults who offend against adults.  Ms Raymond accepts that the broader community, including offenders, does see a difference and draw a distinction.[37]

   [36]Affidavit of Sarah Miles, 2 March 2021, [38]–[44].

   [37]T115, 5 December 2022.

1. While at Corella Place, DW stalked a female he met in the community [redacted]. 

1. On 22 September 2019, DW attended [redacted] accompanied by two specialist caseworkers.  [Redacted.]  The next day DW sent an email to [redacted], telling the receptionist he wanted to take her to lunch.  She did not reply and reported the matter to her employer, who notified Corrections Victoria.  DW was spoken to about the inappropriateness of the email.  [Redacted.] 

1. On 5 October, DW attempted to contact Ms C by ringing her former phone number.  A condition of the ISO was that DW not contact any of the victims of his offending. 

1. Around 16 October, DW contacted a relative of a woman he had been to primary school with and obtained her mobile number.  He then began persistently texting the victim, [redacted]. 

1. As a result of this conduct, DW was charged with a number of offences including stalking, using a carriage service to harass, attempted contravention of an interim supervision order and contravention of a condition of an interim supervision order.  Notably, he was not charged with committing or attempting to commit a serious sex offence.  He was returned to custody on 8 November 2019.

1. On 10 September 2020, DW was sentenced in the County Court for the Corella Place offending to a total effective term of 23 months’ imprisonment, to be released on recognizance after 17 months for a period of 12 months. 

Further assessments and evidence of Ms Raymond and Dr Ong

Bea Raymond

1. Ms Raymond prepared five further reports between January 2020 and July 2022.  Her opinion as to risk was essentially unchanged, however the following should be noted:

·Antilibidinal medication was considered but deemed unsuitable as it would require DW to voluntarily take the medication, which he would not do.  Further,  Dr Darjee, who was consulted on this issue, concluded this type of medication would not be a suitable treatment due to DW’s psychopathic personality and attitudes towards females.[38]

·Ms Raymond considered whether DW’s recent offending while at Corella Place had changed his assessed risk.  She concluded there had been no change to DW’s presentation or circumstances since her first report, and DW continued to be a high risk of sexual reoffending in the community.[39]

·Due to the nature of DW’s offending at Corella Place, his Stalking Risk Profile was reviewed.  DW presented with cognitive distortions, misinterpretation of victim response, lack of victim empathy and delusions related to stalking.  Overall, DW was assessed as a high risk of committing further stalking offences.[40]  Ms Raymond used the expression ‘non‑contact sexual offences’ to describe the stalking offences committed by DW against adult females.  Ms Raymond explained in evidence that the reason for this characterisation is because of the underlying motivation.  That is, DW’s dogged pursuit or stalking of women is motivated by a pursuit of sexual contact with these women, regardless of their rejection of his approaches.[41]

·Based on his risk profile alone, DW should be supported to reside in a residence where there are no females (residents or staff); where his mental health issues can be addressed; where he can be supported to engage in treatment; and where his access to the community is monitored.[42]

·Ms Raymond assessed DW on 24 August 2020 for the purposes of her fifth report.  DW was cooperative and answered all questions.  DW refused to participate in a scheduled assessment with Ms Raymond in early 2022.  He later participated in two assessments on 20 and 24 June 2022.  DW was cooperative, but preoccupied by his circumstances and his belief that he was being unfairly treated.  DW said during these assessments that he would be willing to reside at Rivergum.

·Since being subject to the interim detention order, DW had been very difficult to manage and treatment resistant.  He has directed his attention to female staff and has written to female staff, telling them they are special.  In her final report, Ms Raymond stated that those managing DW continue to describe him as aggressive, focused on women, manipulative and generally resistant to offers of support or engaging in treatment.  Her risk assessment was unchanged.  DW is a high risk of committing a serious sex offence and an increased risk of engaging in stalking behaviours.  The likely scenario is described as ‘also unchanged’, however it is expressed somewhat differently.  The most likely offending scenario is an offence against an adult female at which time DW will stalk the victim and, less likely, use additional violence to perpetrate penetrative sexual offences.  It is less likely he would perpetrate sexual offences against an unknown victim (not known for longer than 24 hours).  He is likely to pursue victims relentlessly (stalking) in an effort to manipulate the victim into engaging with him.

[38]Bea Raymond, Addendum Assessment Report, 13 January 2020, [7].

[39]Bea Raymond, Addendum Assessment Report, 13 January 2020, [13]. 

[40]Bea Raymond, Addendum Assessment Report, 14 October 2020, [51].

[41]T73–4, 5 December 2022.

[42]Bea Raymond, Addendum Assessment Report, 14 October 2020, [60].

1. In evidence in April 2021, Ms Raymond agreed with Dr Ong that at this stage, DW’s treatment should be provided on an individual basis rather than in groups and be delivered by male clinicians.  In evidence in December 2022, Ms Raymond was asked whether DW should be treated by a male clinician, a female clinician or whether it did not matter.  She answered:[43]

I think that a clinician who’s got experience in – in working with people with severe personality disorders would have the skills to be able to work with [DW] regardless of whether it was male or female because it’s around the parameters – setting the parameters …  So him working within the parameters is about the experience of the therapist rather than it being male or female.

Ms Raymond stated that during her assessments, DW expressed to her that he would participate in treatment in regards to violence, but he would not participate in treatment in relation to sexual offending.[44] 

[43]T111–12, 05 December 2022.

[44]T110, 5 December 2022.

1. Ms Raymond opined that in terms of treatment, there needs to be a level of ‘rolling with’ DW’s resistance and being able to provide an environment in which he feels he has got a level of control.  She said sex offence treatment is not driven by the client and if it was, clients would not talk about their sexual offending.  The treatment is driven by the therapist.  In the case of DW, it is likely that a male clinician, at least initially, may have greater success than a female clinician because DW would be less distracted.  She said regardless of whether the clinician is male or female, it is about how to develop the environment in which DW can feel that his distress is being taken into consideration when dealing with the issues.[45]  DW will not willingly discuss his sexual offending behaviour.  Ms Raymond confirmed that the treatment she recommends could occur in a prison or in the community; it not dependent on the setting. 

   [45]T113, 5 December 2022.

1. Ms Raymond said that DW’s vitriol and dislike of men who have perpetrated sexual offences against children has heightened in recent years.  He finds it repulsive and believes he does not belong with such people, and this creates a block to him engaging in group treatment if such offenders are part of the group.  She said hypothetically, if the group did not include child sex offenders, that would ‘absolutely influence’ DW.  If he were in a group with men who had offended against adults and the group was run by a very experienced clinician, she thinks DW would engage with such a program.[46]

   [46]T116, 5 December 2022.

1. In her opinion, DW is an extreme example of a person refusing to engage in treatment. He has no protective factors.  She said ageing is a protective factor but one that is not yet present.  The key protective factor at this time is his environmental control, namely being in a prison environment.[47]

Dr Ong

[47]T118, 5 December 2022.

1. Dr Ong prepared one further report and an addendum report.  DW refused to attend both scheduled assessments with Dr Ong.  Dr Ong opined:

·DW is a high risk of committing a serious sex offence, and a moderate risk of committing a serious violence offence.  The latter would most likely be committed in the course of carrying out a serious sex offence.  DW’s severe personality disorder is the main driver of risk.

·Dr Ong did not re‑apply the Stalking Risk Profile, and essentially concurred with the opinion of Ms Raymond, with one exception.  Dr Ong was not convinced that DW experiences beliefs of a delusional intensity.  Rather, DW presents a ‘scattergun’ approach to seeking relationships, tending to form attachments with females he meets and then engaging in stalking behaviour in pursuit of the relationship.  This is best explained by DW’s personality disturbance rather than any delusional illness.

·Dr Ong reviewed material detailing DW’s progress on the interim detention order.  He could find no evidence of mental illness or psychiatric disorder. 

·DW meets the criteria for psychopathy, a subset of antisocial personality disorder.  During periods of extreme stress, DW has developed what appear to be pseudo‑hallucinations and overvalued ideas which occasionally approach delusional intensity.  However, numerous assessments have concluded that there is no evidence to support an enduring psychotic illness that requires treatment.  Although DW has a propensity to overreport symptoms, DW ‘remains a chronic risk of deterioration in mental state in the longer‑term, with raised acuity when under duress, and this should not be dismissed out of hand’.[48] 

·Appeals to self‑interest are more likely to motivate DW to engage in required treatment than mandating attendance.  Dr Ong agreed with the ‘current view’ that treatment should be at DW’s request, and delivered by male clinicians.  He stated that at this juncture, environmental measures are required to appropriately ameliorate the risk of relevant offending.  This would include monitoring interactions with female staff, and monitoring or restricting DW’s access to letter writing, internet and text messaging.

[48]Dr Ong, Psychiatric Report, 12 November 2020, p43-44.

1. In evidence, Dr Ong said the question of whether DW experiences a psychotic illness has ‘vexed psychiatrists for some time’, however he is now comfortable with the proposition that DW does not suffer from a psychotic illness.[49]  His primary concern regarding DW’s mental health is DW’s ‘personality pathology’, which predisposes him to developing depressive symptoms.  DW’s personality style results in exacerbation of anger, anxiety or lowered mood when he is subjected to external pressure.[50]

   [49]T45, 15 April 2021.

   [50]T49, 15 April 2021.

DW’s progress while subject to the interim detention order

1. DW’s progress while subject to the interim detention order is detailed in the affidavits and evidence of Jennifer Hosking.  Upon commencing on the interim order, DW was given a maximum security rating.[51]  He was transferred to Barwon Prison and placed in an observation cell due to being assessed as a risk of suicide and self‑harm.  The next day he was reassessed and transferred to the Piper Unit.  DW refused to cooperate or engage with supervision, and refused to attend further supervision sessions.  He also refused to attend treatment sessions with Forensic Intervention Services.  In March 2021, DW presented as defeated and withdrawn and reported he would not engage with anyone or progress until he was permitted visits.  [Redacted.] 

   [51]DW already had this rating when undergoing his September 2020 County Court sentence.  It is the second‑highest available rating, the four ratings (in descending order) being high, maximum, medium and low.

1. In April 2021, DW was made subject to an intensive case management plan due to his ongoing problematic behaviour and risks towards staff.  This required that three staff be present and a body‑worn camera be activated during all interactions with DW.  He was subject to a handcuff regime.  During April–June 2021, DW was transferred between Piper Unit and various high security and observation units due to threats made to staff and the risk of self‑harm.  He spent considerable time in high security units.  In June 2021, DW indicated a number of placement preferences, including prisons he had been at when serving his sentence.  He was told that due to his maximum security classification, he was not suitable for his requested placement options as they had medium security status. 

1. DW refused to attend further treatment sessions scheduled in April and May 2021.  In June 2021, following clinical advice from Mr Chia, Senior Clinician, DW was informed in writing that no further treatment or supervision appointments would be scheduled for him and if he wished to re‑engage, he could notify prison staff.  DW continues to have an allocated worker, but the onus remains on DW to request a treatment session.

1. Ms Hosking detailed numerous incidents between May 2021 and March 2022 including threats to staff, abusing staff, deliberate breaches of intervention orders, threats of self‑harm, refusal to engage with supervision, refusing to open his cottage door, possession of dangerous items including razor blades, prolific letter writing including to protected persons, [redacted].  Additionally, DW wrote to four female prison staff and sought to add them to his visitor list.  [Redacted.]

1. On 1 November 2021, DW met with the Manager of the Major Offender Unit about a potential transfer to the Hoya Unit in Barwon Prison to enable more social interaction.  DW became heightened during the discussion and indicated his preference was to move to another prison.  He was again advised that such placements were not suitable due to his status as a maximum security prisoner. DW disclosed that he had deliberately committed offences by writing to protected persons in order to get placed on remand so that he would be moved from Barwon Prison.  The next day, DW barricaded himself in his cottage and began engaging in self‑harm.  He eventually allowed staff access and was transferred to an observation cell.

1. On 14 February 2022, DW was convicted and sentenced in the Geelong Magistrates’ Court for six counts of contravening a family violence intervention order and one count of contravening a personal safety intervention order.  DW was sentenced to an aggregate three months’ imprisonment and remained at Barwon Prison in the Banksia Management Unit.  His sentence lapsed, meaning he was again on the interim detention order.  His security rating and placement remained unchanged.

1. DW’s behavioural problems continued throughout 2022.  In her affidavit of 25 November 2022,  Ms Hosking attached some 55 incident reports dated between 13 May 2022 and 7 October 2022.  DW continued to write letters and deliberately breach orders.  In April 2022, DW attempted to send six pieces of mail addressed to protected persons and wrote ‘breach#1’, ‘breach#2’ etc on the outside of the envelopes.  He also sent mail to the Bendigo police station addressed to a protected person.  DW has again been charged with multiple counts of breaching various intervention orders, and has a plea listed in the Geelong Magistrates’ Court on 1 February 2023.

1. DW has made multiple requests to add visitors to his phone list and contact list who do not want contact with him.  Cards of an affectionate or romantic nature were found in his cell, addressed to two female staff members.  One of these cards was addressed to a female pharmacist whom DW had fixated on prior to going to Corella Place.  He wrote an affectionate letter to his daughter which was also located.  It is somewhat unclear what happened to that letter, but it appears he is not allowed to write to his daughter.

1. In evidence, Ms Hosking confirmed DW’s various placements within the system, and the physical features of those placements.  In her most recent evidence, she stated all DW’s telephone calls and Zoom calls are recorded and monitored.  His outgoing mail is monitored.  His visits (if he had any) would be closely supervised but not recorded.  He has retained his maximum security rating for the duration of the interim detention order.  He continues to refuse to attend appointments and meetings.  Ms Hosking stated there is still the requirement for three staff members to be present and a body‑worn camera activated when interacting with DW.  I note that in July 2022, a monthly report stated ‘[t]hroughout July changes to the interaction methods with [DW] have continued.  Staff were not required to use the Body Worn Camera (BWC) and would interact with 2 staff rather than 3’.[52]  It may be that the regime decreased then increased again, but it is somewhat unclear.  DW’s handcuff regime ended on 25 May 2022. 

   [52]Affidavit of Jennifer Hosking, 25 November 2022, Ex JAH-105. 

1. Ms Hosking agreed it was fair to say that there has been zero rehabilitative progress in the time DW has been on the interim detention order.  In terms of his behaviours, she said they have gone backwards.  Ms Hosking provided a copy of DW’s current approved visitor list, which perplexingly includes names of persons he would not be allowed to contact.  For example, one of the victims of stalking is on the list.  If DW attempted to write to her, the correspondence would be intercepted by the prison.[53]  DW’s daughter, TT, is on the list, and DW’s ability to contact her has been the subject of restrictions and ongoing negotiations for several years.  Apparently, the persons on the list are unaware they have been placed there.  The onus is on DW to provide a telephone number or email address so they can be contacted, at which point they may say that they do not wish to be on the list.  The only active visitor is DW’s former foster mother or friend, with whom he has had Zoom calls.  The visitor list appears to be a source of great distress and frustration to DW. 

   [53]T189, 6 December 2022.

1. Ms Hosking agreed that DW has never assaulted staff or perpetrated any actual violence in the prison system.

1. I note that when one looks at the exhibited material, it is not as relentlessly negative as the contents of Ms Hosking’s affidavits.  For example, DW’s handcuff regime was relaxed in May 2022 due to his ‘improved interactions’ and the fact he ‘ha[d] not made any threats against the staffing group’.[54]  In September 2022, a female Senior Prison Officer stated that ‘[o]verall, DW interacted well with regular unit staff’.[55]  That is not to suggest the evidence of Ms Hosking was inaccurate or misleading.  DW is clearly difficult in the multitude of ways she outlined.

   [54]Affidavit of Jennifer Hosking dated 25 November 2022, Ex JAH-105.

   [55]Affidavit of Jennifer Hosking dated 25 November 2022, Ex JAH-105.

1. Ms Raymond reviewed material detailing DW’s behaviour since being subject to an interim detention order.  She noted that DW continued to present as ‘agitated and heightened’.  He has been difficult to manage, and verbally abused by other prisoners.  He was placed on a handcuff regime due to his risk of physical violence, although he did not commit any act of physical violence.  He believes prison is preferrable to being on a detention order.  He has written multiple letters, some to women who have intervention orders against him.  DW has told staff that he deliberately breached the intervention orders to ‘get off the interim detention order’.  He has directed his attention to female staff and has written to female staff, telling them they are special.  In November 2021 he barricaded himself in his unit and had to be forcibly removed.  He has superficially cut himself and threatened self‑harm.  He has refused to talk to staff for extended periods, using written notes to communicate instead.

Victim submission

1. Pursuant to s 134, a victim submission authored by Ms C was received and I have considered its contents.  Pursuant to s 135, the victim submission has not been released to DW.[56]

   [56]Ms C’s submission was not marked as an exhibit..

Respondent’s position

1. DW said he is contesting the application.  He said he is willing to go to Rivergum, but is instead being held in a facility that is causing him irreversible damage.  He said he accepts he needs help and he should not be released without supervision.[57]  He said he was only at Corella Place for eight weeks and that is the only chance he has had; he has not breached multiple orders.  He has little support and is not allowed to see his adult daughter, TT, or his other adult children.  This is causing him great distress.[58]  He said he is no more dangerous than other prisoners who have been let out, and he has never assaulted anyone in prison or been physically violent.  He said he is extremely isolated in custody and spends all day on his own.  He described his circumstances as ’pure punishment’.  He argued he has had one chance after 14 years, and that he only breached the supervision order by sending text messages.  He said other people get multiple chances but he only got one.  He admitted he made a mistake by sending the text messages, but maintained he had not physically hurt anyone.  He questioned why he needed to be in prison.  He said that Rivergum is a secure facility, but at least he would have a life there.  He said he has served his time for the crimes he committed.  He pointed out that he has never met the people who say he is not suitable to go to Rivergum.

   [57]T5, 5 December 2022.

   [58]T15, 5 December 2022.

1. DW submitted that it had been a long time since he had any contact with Dr Ong, and that his opinion has no relevance to the application.

1. He said he would not want to be released without help, because he would not cope and would not know what to do.  He said he would like to go to Rivergum and do treatment; he would like to go somewhere where he could get help and have a life at the same time.  He submitted being kept in custody is not the answer.  He accepted he has an anger problem, but said he had never been involved in any violent incidents in prison.  He has not assaulted staff.  He said he had never slashed his arms before, but he has been doing that every couple of months in Piper Unit because he has never been kept under these sorts of conditions before. 

1. He said the only person he has contact with is his foster mother via Zoom calls.  He agreed that when he was serving his sentence he did not have visitors, but he wants to see his children.  He said if he were at a medium security facility and allowed to mix with other prisoners, he might not have contested the application.  However, the conditions he is being held under make him feel ‘distressed, isolated and trapped in this unit’.[59]  He said he has been committing crimes since being on the interim detention order because he is ‘trying to get a long enough sentence where this order gets cancelled’.[60]

   [59]T28, 5 December 2022.

   [60]T29, 5 December 2022.

1. He said he did not want to cross‑examine anyone, and he was happy to leave it to Ms Raymond and the Court to come up with the best outcome, as he does not know what to do.  He said he trusts what Ms Raymond has to say, but no other witness.  He said he did not want to stay for the hearing because he knows he would just get angry, and he cannot afford to get any more angry.  DW also made various allegations about the conduct of Ms Hosking and others in the course of addressing the Court.  It is not necessary to summarise those allegations.

Applicant’s submissions

1. The applicant submits that there is extensive material before the Court that clearly demonstrates the respondent does pose an unacceptable risk of committing a serious sex offence if he is not subject to a detention order or supervision order.  The applicant submits that, on the question of risk assessment, there are only two experts — Ms Raymond and Dr Ong — and they are both in agreement. 

1. The applicant accepts that stalking, even if characterised as a ‘non‑contact sexual offence’, is not a Schedule 1 offence.  However, the applicant relies on IK v Secretary to the Department of Justice[61] and submits the evidence of stalking is relevant, as there is a link between DW’s stalking of adult females and the risk of his committing a serious sex offence.  Stalking or fixating on women is a pathway to DW committing a Schedule 1 offence, and in those circumstances, it is a relevant factor when considering the nature of the risk and the means of managing the risk. 

   [61][2012] VSCA 12.

1. The applicant submits at least some of the letters written by the applicant from custody had an underlying romantic and sexual purpose, as did the messages he sent while at Corella Place.  The applicant relies on Ms Raymond’s opinion that this conduct is demonstrative of DW’s ‘persistent and tenacious pursuit of women with coercive manipulation’.[62]  The applicant submits the Court must consider both the likelihood of the offending occurring, and the seriousness of the consequences should it occur.  Here, there is a high likelihood that the applicant will offend if a detention or supervision order is not made, and the consequences if he did would be grave, resulting in the sexual assault or rape of an adult female.  DW has a long history of sexual offending, with a multiplicity and diversity of victims. 

   [62]T285, 16 December 2022.

1. The applicant submits a detention order is the only option in this case, as other options are inappropriate and unacceptable.  Realistically, the only possible residential facility is Corella Place, and the only residential treatment facility is Rivergum.  DW is not suitable for either of those options.  The applicant does not rely upon the evidence of Ms Raymond or Dr Ong directly with respect to the question as to how DW’s risk can or cannot be managed at a particular facility.  Rather, their risk assessments inform the opinions of others as to where and how DW’s risk can be safely managed. 

1. The applicant submits DW’s risk cannot be acceptably contained and managed at  Corella Place, as environmental measures are needed that only exist in a custodial environment.[63]  DW has demonstrated that he is unable to live at Corella Place without engaging in serious criminal offending against members of the community.  The only way DW’s risk will reduce is through extensive treatment, however DW refuses to engage with treatment.  He requires one‑on‑one treatment by a male clinician for an extended period. 

   [63]T291, 16 December 2022.

1. The program at Rivergum is only for 24 months, with limited capacity to extend, and DW requires treatment for considerably longer than 24 months.  Further, a large proportion of the staff is female, and all the clinical staff are female.  The risk is that DW will become fixated on an adult female staff member and ‘go down the path’ he started going down while at Corella Place.  Rivergum may have a secure external perimeter, but internally it is a therapeutic community environment where residents and staff regularly and freely interact.  It is inappropriate to expose female staff members to the risks DW presents, as identified by Ms Raymond. The applicant further submits that Rivergum can be ‘discounted’ because if DW is sent there, he will breach the condition that requires him to engage in treatment. 

1. The applicant noted the prior convictions of DW, including his prior sexual assault of a DHS worker, albeit that was some time ago.  The risk to female staff at Rivergum may be less, as they are trained professionals, but it still exists.  The evidence of Ms Raymond is that DW does not discriminate, and is equally likely to fixate on a professional or staff member as a member of the community.  If DW is at either facility there is a high risk he will offend against female staff or, in the case of Corella Place, female members of the community. 

1. The applicant accepts that continued detention will have an adverse impact on DW, however that must be balanced against the very serious risk DW poses. The primary purpose of the Act is protection of the community, and that important purpose must not be displaced when considering the impact of the detention order on DW.

1. The applicant submits that a detention order should be made for a period of three years, being the maximum period available pursuant to s 69(1) of the Act. The applicant relies on the evidence of Dr Ong that DW’s treatment gains, should he engage, are likely to be modest and gradual at best, together with the evidence of Ms Raymond that if DW were to engage in treatment, in a ‘perfect world’ he would complete that treatment within three years.

The section 63 question

1. The first question to consider is whether DW poses, or after release from custody will pose, an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and DW is in the community.  I must be satisfied to a high degree of probability that the respondent poses or will pose an unacceptable risk. At this stage of the inquiry the likely impact on the respondent of making a supervision order or detention order, and the means of managing the risk, are excluded from consideration.  However, as the Court stated in Nigro, ‘the conceptual value of individual liberty and other human rights remain to be weighed in the balance’.[64]  

   [64]Nigro (n 12) 387 [103] (Redlich, Osborn and Priest JJA).

1. The evidence of the two experts, Ms Raymond and Dr Ong, makes clear that DW would pose an unacceptable risk of committing a serious sex offence if he were at liberty in the community and without supervision. There is no evidence to the contrary, and I have no difficulty accepting the opinions of both experts on this question, noting each of them is well qualified and experienced in this field. I am therefore satisfied pursuant to s 63(1)(a) to a high degree of probability that DW poses an unacceptable risk of committing a serious sex offence if a detention order or a supervision order is not made and he is in the community.

1. While the Act does not mandate that the means of managing the risk and the likely impact of a detention order on the offender must be considered, in my view both those matters are important considerations.

Means of managing the risk

1. It is not the role of the Court to select the most suitable treatment facility for DW.  The question is whether a detention order is the only option.  Given the practical reality is that DW will likely go to Corella Place or Rivergum if placed on a supervision order, the focus has been on those facilities.  The scenario proffered by Ms Raymond of a residential facility where there are only male residents and male staff does not exist.  The consideration of the means of managing the risk must logically involve consideration of real existing post‑sentence facilities that are available to persons on supervision orders.

1. The evidence establishes that environmental measures are necessary to safely manage the risk DW presents.  I accept that DW must be contained and closely supervised in some way if the risk is to be managed to an acceptable level. 

1. In her affidavit, Ms Miles explained at length the many ways in which Corella Place is not a secure facility.  It does not have a secure perimeter, and there is nothing to prevent a resident departing.  Most residents have a curfew but they are not locked in.  Within the facility, there is no CCTV surveillance.  Residents may be electronically monitored as a condition of their supervision order, but the device requires charging and may be removed with force.  If that occurs, Corrections Victoria will receive an alert, however the person’s whereabouts will be unknown.  I accept all this, but on the evidence I have, DW presents no more than a hypothetical risk of absconding or removing any monitoring device.  He has never done or attempted either.

1. Staffing plays an important role in risk management.  It is therefore necessary to examine the role of staff at Corella Place.  They are not prison guards.  They do not have the accoutrements of force or the ability to use force.  If there is a violent incident, then their recourse is to call the police.  The staff have limited capacity to prevent a resident who is determined to leave Corella Place from leaving.  Corrections Victoria relies upon the residents to comply with the conditions imposed by the courts, and any directions issued by the Post Sentence Authority.  Ms Miles pointed out that DW previously offended while on bail in 2007, and committed serious sex offences while subject to a Youth Attendance Order.  He also breached his interim supervision order when at Corella Place.  DW was 15 years old when he was placed on a Youth Attendance Order.  Given the historical nature of both that breach and the breach of bail, albeit more recent, I find they are of no real assistance in determining this application.  DW’s conduct while subject to an interim supervision order is, however, of evidentiary significance.

1. DW resided at Corella Place pursuant to an interim supervision order for approximately 12 weeks.  There were a number of difficulties.  However, during the time he was on the order, DW did not commit or attempt to commit a serious sex offence.  He did not assault or offend against any member of staff.  He did not fixate on, stalk or harass any female staff member.  He did not fixate on, stalk or harass any female visitor who attended Corella Place.  He did not self‑harm.  He did not abscond or attempt to abscond, despite his dislike of Corella Place and his anger at being housed with paedophiles.  He committed no acts of violence against other residents.  He did not damage property.  He did not remove or attempt to remove his electronic monitoring device.  He did not abscond when on any escorted outing.  His excursions into the community resulted in him meeting females, whom he then contacted persistently and unwantedly.  He ignored warnings by police and caseworkers that this behaviour needed to stop.  This conduct led to him being charged, convicted and sentenced for stalking and other offences.  Significantly, the conduct was detected as DW was subject to supervision.  In other words, the supervision order performed its intended function: the community was protected from the harm that would have resulted had DW committed a serious sex offence.

1. In my view, Ms Miles’ affidavit failed to deal precisely with DW’s risk of committing a serious sex offence.  For example, she referred to Ms Raymond’s assessment that DW is a ‘high risk of committing a further stalking offence’.[127]  She then stated that Ms Raymond considered DW ‘an imminent risk of re‑offending if he were to return to reside at [Corella Place]’.[128]  What Ms Raymond said was:[129]

The most obvious concern for [DW] living in a residential facility in the community is the high risk of reoffence he poses to adult females.  He has little insight into the impact of his targeted attention and historically as an adult, he has sexually abused women who he has known.  I would consider [DW] a high risk of sexual and/or violent offending if he was without significant monitoring.  Given his behaviour during the 11 weeks he resided at Corella Place, I would consider the risk of further like offending imminent.  It is also noted that he was behaving in a similar manner while incarcerated, becoming fixated on medical and prison staff, as well as a prospective legal representative.

A fair reading of Ms Raymond’s statement is that she considered DW to present an imminent risk of stalking adult females, not of committing a Schedule 1 offence.

[127]Affidavit of Sarah Miles, 2 March 2021, [118], referring to Bea Raymond, Addendum Assessment Report, 14 October 2020. 

[128]Affidavit of Sarah Miles, 2 March 2021, [121.3(d)], citing Bea Raymond, Addendum Assessment Report, 14 October 2020, [66]. 

[129]Bea Raymond, Addendum Assessment Report, 14 October 2020, [66] (emphasis added).

1. Ms Miles further stated that the interim supervision order was ‘insufficient to contain [DW’s] risk of re‑offending’,[130] however this can only be a reference to stalking.  Paragraph [128.9] of Ms Miles’ affidavit focused on the inability of Corella Place to adequately restrict DW’s access to a mobile phone, monitor his devices, record his calls or monitor his mail.  Again, this concerns the risk that DW will stalk an adult female.  While stalking, if undetected and unchecked, may lead DW down the pathway to committing a serious sex offence, stalking is not a Schedule 1 offence. 

   [130]Affidavit of Sarah Miles, 2 March 2021, [126.7].

1. Ms Raymond’s opinion is that if DW were at Corella Place, it is ‘highly unlikely he would comply with any residential restrictions’.[131]  In my view, the fact is that DW did comply with many of the residential restrictions when at Corella Place, as described above.  Ms Raymond does not refer to this, nor explain why DW did comply with these residential restrictions when at Corella Place.  Nor does she explain why, despite this compliance, she believes he will not comply with any residential restrictions in the future.  I found this aspect of her opinion unsatisfactory.

   [131]Bea Raymond, Addendum Assessment Report, 14 October 2020, [65] (emphasis added).

1. Dr Ong’s broad statement that it is unlikely DW could be ‘managed safely in a residential facility, residential treatment facility or other alternative accommodation without significant environment modification and progress in identified treatment needs’ is of little assistance.  Dr Ong does not distinguish between the different types of facilities.  His reference to the need to modify the environment so as to monitor ‘community outings’, and restrict access to internet and text messaging, has relevance to Corella Place but little relevance to Rivergum.  As stated in Nigro, the satisfaction which the Act requires means the evidentiary proof must survive careful scrutiny and appear precise, not loose and inexact.[132]

   [132]Nigro 396 [137] (Redlich, Osborn and Priest JJA), referring to RJE v Secretary to the Department of Justice (2008) 21 VR 526 at 533-4 [23]-[25].

1. I turn now to Rivergum, Victoria’s only secure residential treatment facility.  The fact that DW has been assessed as unsuitable for Rivergum is not determinative for the purposes of my task.  If it were, the practical effect would be to remove the decision from the Supreme Court and place it in the hands of those who conduct such assessments.

1. According to Dr Ong, the ‘environmental modifications’ necessary to  enable DW’s risk to be safely managed include monitoring and/or restricting his access to the internet and text messaging, and ‘monitoring interactions with female staff as well as when he is on community outings’.  The authors of the addendum to the Treatment and Supervision Plan referred to above stated that, ‘due to the therapeutic nature of Rivergum this is not possible’.[133]  I do not accept this.  Residents of Rivergum do not have access to internet‑capable phones or unrestricted access to the internet.  Rivergum is a secure facility and DW would have no access to the broader community, unless he successfully graduated to the final stage of the program.

   [133]Affidavit of Joseph Mollica, 2 March 2021, Ex JM-3, 6.

1. I turn specifically to the risk posed by DW to female staff at Rivergum, as this was a significant focus of the applicant’s evidence. It must be immediately accepted that staff form part of the community, and that safety of the community is the paramount consideration under the Act. On the evidence I have, the senior clinicians, clinicians and case managers employed at Rivergum are exclusively adult females. It is a therapeutic community, meaning staff and residents may interact throughout the facility, including in corridors and common areas. Thus, the applicant argues, interactions between DW and female staff cannot be monitored so as to make the risk DW poses to those females acceptable.

1. There are a number of points to be made.  First, the facility is designed to house violent male offenders, including sexual offenders.  Less restrictive means of managing the risk they present must have been tried or considered.[134]  It must have been anticipated that such a staffing arrangement would mean that female staff are required to treat male offenders who have sexually offended against females and present some level of risk to adult females.  The clinical staff and caseworkers are trained to work with serious violent offenders and serious sex offenders, including persons with severe personality disorders and challenging behaviours.  This reduces the risk posed to those people by DW.  In reaching this conclusion, I rely on the evidence of Ms Raymond as to her minimum expectation of trained staff and staff management in such a facility.[135]

   [134]Serious Offenders Act 2018 (Vic) s 32(1).

   [135]T8, 5 December 2022.

1. Second, it is not the evidence that DW fixates on or stalks every female staff member or clinician he encounters.  For example, he has a long history of engaging in assessments with Ms Raymond, and describes her as a ‘good person’ and someone he trusts.  He has never fixated on or stalked Ms Raymond. 

1. Third, I accept there is a risk that DW will become fixated on or obsessed with a particular female staff member, whether in custody, at Corella Place or at Rivergum.  However in the setting of Rivergum, I find it unlikely this precursor or ‘parallel behaviour’ would progress unchecked to the point of DW committing a serious sex offence against that staff member.  If the victim of DW’s stalking were unaware of his history, the risk to that victim would increase, as they may unwittingly share personal details with DW.  This is what occurred when DW met females in the community while at Corella Place.  However, even when at Corella Place, DW’s stalking conduct was detected by those supervising and monitoring him before it progressed.  DW was always accompanied by staff when in the community and logically, such supervision greatly reduces his risk of committing a serious sex offence.  If the target of DW’s unwanted attention is a professional staff member, I consider it highly unlikely that a staff member at Rivergum (or Corella Place) would provide any personal details, such as a mobile number or email address, to any of the residents of either facility.  I find it similarly unlikely that DW’s fixation with a particular staff member would progress, unchecked, to the point of DW committing a serious sex offence against that staff member.  I again refer to and rely on the evidence of Ms Raymond as to what she would expect from trained staff in such a facility.

1. Fourth, the evidence of Mr Mollica is that there are approximately 45 staff in total at Rivergum.  As I understood his evidence, the clinical staff work Monday to Friday but do not remain at the facility overnight or on weekends.  There will, however, be occasions when the facility is staffed entirely by females.  Given there are currently seven residents at Rivergum, the number of available staff suggests there is capacity to reallocate staff to DW if required, or to monitor interactions.  I accept those measures may run contrary to the therapeutic community model structure, however it would be a matter for those running the facility to consider how to best address staff safety in circumstances where the entire clinical staff is female.

1. As with Corella Place, the staff at Rivergum are not prison guards.  They have no capacity to use force against residents.  They are not able to forcibly move DW to any location, or forcibly isolate him from other residents. DW cannot be visually monitored by staff when he is inside his unit, and there is no equivalent of an ‘observation cell’.  If DW were at Rivergum and his conduct continued as it has in prison, he would likely breach his supervision order.  If he behaved as he did within the confines of the Corella Place facility, he would be difficult to manage but not unmanageable.  I accept that the respondent presents ongoing management difficulties, wherever he is housed.  However, management difficulties are only relevant to the extent they bear upon the assessment of risk of DW committing a Schedule 1 offence.  DW’s fixation on female staff is relevant in this way, but it is important not to confuse or conflate the risk that DW will be difficult to manage with the risk that he will commit a Schedule 1 offence. 

1. At the risk of repetition, it is important to emphasise that the likelihood of DW engaging in stalking behaviour (via letter, text message, phone, Facebook or other electronic means) does not equate to the likelihood of him committing a serious sex offence.  In my view, DW’s stalking behaviour does not create an unacceptable risk of the respondent committing a serious sex offence unless a detention order is made.  I accept that if DW was not monitored or supervised, his stalking behaviour may well lead to him committing a serious sex offence.  However, a supervision order could manage this risk, as evidenced by what occurred when DW was on an interim supervision order and residing at Corella Place.  The offending conduct, committed against unsuspecting members of the public and not professionals, was detected and dealt with by the criminal law.

1. If the respondent’s contrariness and problematic behaviour cause him to contravene the conditions of a supervision order, then that is a matter that will be dealt with according to law. I note that under the Act, stalking is a Schedule 3 offence and if committed, will result in a breach of the core conditions of any supervision order. Rivergum’s desire to protect the wellbeing of its therapeutic community is commendable, however I am not satisfied on the evidence to a high degree of probability that DW poses or will pose and unacceptable risk of committing a serious sex offence if placed at Rivergum. The evidence does not support such a conclusion. A person cannot be made subject to a detention order simply to protect the wellbeing of the current seven‑person Rivergum community. If DW proves to be difficult, disruptive, unmanageable and unwilling to participate in the program, then that will be a matter for those tasked with administering this system. I accept that Rivergum should not become a depository for those who cannot be managed elsewhere. However, nor should a detention order be made simply because a person does not fit within Rivergum’s narrow assessment criteria, or to protect Rivergum’s community from disruption or disturbance.

1. Ms Raymond’s evidence is that successful treatment of DW would take a number of years.  The program at Rivergum is designed to run for two years.  There is a difference between management of the risk, and successful reduction of the risk.  Of course, the two are interrelated.  If DW successfully engages in treatment, it may be expected his risk level will reduce and the means of managing the risk will alter.  While he remains unrehabilitated, his risk of committing a Schedule 1 offence is unlikely to alter, and significant environmental measures will be needed to contain his risk.  However, I do not conclude that because the Rivergum program only runs for two years, DW’s risk of committing a serious sex offence therefore cannot be safely managed at such a facility.  If DW were to successfully complete the two‑year program, which on the evidence I have is difficult to envision, then those managing him will make the necessary assessments and recommendations at that point. 

1. DW does not want to be housed at Corella Place, as he does not want to reside with child sex offenders.  DW held this view prior to going to Corella Place.  If he was aware there are child sex offenders at Rivergum, that may well alter his current preparedness to reside there.  However, what DW does or does not want is not determinative.  He also does not want to be on a detention order.  If DW continues to breach the conditions of a supervision order, including by committing Schedule 3 offences, then he may find himself returning to prison, potentially for increasingly lengthy periods.  However, that potential does not provide a basis upon which to make a detention order.

Likely impact of a detention order on the offender

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

1. Ms Raymond gave evidence in April 2021 that DW has been consistently stressed, at least over the past 12 months, and this makes him more resistant to treatment.  He has a general resistance to treatment even when not stressed or distressed, however he has been more overt in his rejection of treatment and services over the past 12 or 18 months.  In evidence in December 2022, Ms Raymond opined that DW considers his circumstances to be so deplorable that it becomes a self‑fulfilling prophecy; he has no capacity to manage that stress and so his behaviour remains unstable.  It is a ‘Catch‑22’ situation, as in order to achieve stability he needs to feel a level of control, but he only wants control over what he decides and he is not prepared to negotiate.  That sees him in ‘an endless cycle of self‑fulfilling, disenfranchised behaviour, when he actually needs a stable environment where he can engage’.[136]  In her opinion, the impact of the interim detention order has been to undermine an already unstable man, and DW feels completely out of control and without hope.[137]

   [136]T103, 5 December 2022.

   [137]T134, 5 December 2022.

1. A secondary purpose of the Act is to facilitate the treatment and rehabilitation of offenders. While it may be a secondary purpose, it is still a purpose to which the Court must have regard. The evidence makes clear that the interim detention order is not facilitating the treatment and rehabilitation of DW. It is to be expected that offenders who find themselves subject to this regime are likely to be damaged individuals, with severe personality disorders and long‑standing resistance to treatment. The proposal that treatment must be initiated by DW strikes me as somewhat unrealistic. Given DW’s extreme personality disorder, history of treatment resistance and high levels of distress and persecutory beliefs, locking him in prison and expecting or waiting for him to request treatment seems unlikely to achieve a positive outcome. I accept that DW’s level of resistance is extreme, however it remains the task of those entrusted with managing him to facilitate treatment and rehabilitation as best they are able. In this regard, Ms Raymond’s evidence is more helpful. She made the point that in terms of treatment, there needs to be a level of ‘rolling with his resistance’ and being able to provide an environment in which DW feels he has a level of control. For example, treatment should be pursued regardless of whether DW tells people to go away. Experienced clinicians and therapists are necessary for any treatment to have a chance of success. Ms Raymond described DW as a complex man, and treatment is about long‑term persistence and absorbing some of the resistance.

1. In my view, if DW were placed in a secure residential treatment facility, the prospects of his receiving and engaging in the treatment he needs would be increased.  That is not to say that I have confidence DW will engage with the necessary treatment.  Given his long history of resistance, there is every chance he will not.  I note that if DW were to reside at Rivergum on a supervision order, a mandatory condition of that order would be that the offender must attend and participate in the treatment or rehabilitation programs or activities set out in the treatment and supervision plan.[138]  Currently, there is no treatment and supervision plan beyond the documents from 2019 and 2020 that state DW is not suitable for Rivergum.  Assuming there was a treatment and supervision plan, failure to comply with mandated treatment would result in DW being breached on his order.[139]

   [138]Serious Offenders Act 2018 (Vic) s 274 provides that a court may order or request that the Secretary prepare a treatment and supervision plan.

   [139]Serious Offenders Act 2018 (Vic) s 32(4)(a) states that if the court imposes a residential treatment facility condition, the court must impose a condition that requires the offender to attend and participate in the treatment or rehabilitation set out in the treatment and supervision plan.

1. In all the circumstances, the evidence does not satisfy me to the requisite standard that a detention order is the only option in this case.

Conclusion

1. I am satisfied that the respondent poses an unacceptable risk of committing a serious sex offence if a detention order or supervision order is not made and he is in the community.  I am not satisfied that the risk would be unacceptable unless a detention order were made.  I propose therefore to refuse the detention order application. 

1. Pursuant to s 62(3), if I refuse the detention order application, I may make a supervision order in respect of the offender. That is what I propose to do. However, I have yet to hear submissions in relation to a supervision order. It would be in the respondent’s best interests to be represented in relation to the supervision order proceeding, and it may be that is achievable. Once I move to dismiss the application for a detention order, the interim detention order expires.[140]  The earlier interim supervision order has expired.[141]  This would leave DW without any form of supervisory order, which should not occur.  Further, DW has a plea hearing at the Geelong Magistrates’ Court in two working days.  If he receives a further custodial term, that will impact the immediate need for an interim supervision order or a supervision order.

   [140]Serious Offenders Act 2018 (Vic) s 82(b).

   [141]The interim supervision order expired upon the making of the interim detention order, see Serious Offenders Act 2018 (Vic) s 56(c).

1. In the circumstances, I will hear from the parties and the Secretary as to the appropriate next steps.

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