Director of Public Prosecutions v Forde

[2023] VCC 1763

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-06-00893

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM FORDE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2023
DATE OF RULING:	8 September 2023
CASE MAY BE CITED AS:	DPP v Forde
MEDIUM NEUTRAL CITATION:	[2023] VCC 1763

REASONS FOR RULING

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Subject:  CRIMINAL LAW – Review of Indefinite Sentence

Catchwords:  Review of Indefinite Sentence – Rape – False Imprisonment – Kidnapping – Armed Robbery – Indecent Assault – Gravity and Exceptional Nature of the Offending – Nominal Term – Serious Danger to the Community – Level of Harm – High Probability Respondent is Still Serious Danger to the Community – Discharge the Indefinite Sentence – Five Year Integration Program.

Legislation Cited:     Sentencing Act 1991 (Vic), ss 18B and 18M.

Cases Cited:R v Forde [2007] VCC 1610; Carolan v The Queen [2015] VSCA 167; 48 VR 87.

Ruling:Discharge the indefinite sentence and order the Respondent be subject to a five year reintegration program and issue a warrant for imprisonment for five years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Davidson	Office of Public Prosecutions
For the Accused	Ms K. Mildenhall	Leanne Warren & Associates

HIS HONOUR:

1Before me is an application to review an indefinite sentence imposed on William Forde on 13 December 2006.  William Forde is the respondent to the application which is made by the Director of Public Prosecutions.  I will refer to him as the respondent though that may necessarily change in discussing, as I must, some of the offending.

2The court is required to determine this application pursuant to complex provisions of the Sentencing Act 1991 (Vic). However, before I outline those provisions, and the fundamental questions raised in those provisions, regarding dangerousness, and before I turn to the effect of a binding Court of Appeal decision that requires me to resolve this application with what I consider are counter-intuitive conclusions, I want to make clear that the origins of this application are the brutal criminal acts perpetrated by the respondent upon a real person, Jessica.

3I want to first concentrate or elevate the human dimensions that are at the core of why in 2023 this court is called on to determine this application.  I will return to the provisions of the Sentencing Act 1991 in due course, but only when the proper context is understood.

4On the morning of 6 February 2006 in Ballarat, a young woman Jessica, arrived at and opened up the small gift shop to begin her day at work.  It was just her third day at this new job.  Shortly after she opened up the shop, the respondent William Forde came into the shop.  You had only criminal purposes on your mind, Mr Forde.

5After waiting for another customer to leave, you produced a knife and threatened Jessica, demanding she get onto the floor behind the counter.  From that point on, Jessica was forced at your hands to endure a most horrific and protracted ordeal, involving almost unimaginable sexual brutality.  She was abducted and throughout feared for her life.

6The ordeal which lasted 30 hours commenced with violent rapes while she was tied up, first in the shop, then in her car, which you used to kidnap her.  Then it continued in isolated and remote places in the bush.  On the roadside, in various parts of the state, as far as the New South Wales border.

7Ultimately after this 30 hour nightmare, Jessica was released near her home in Ballarat.  You, Mr Forde, tried to escape in her stolen car but, were stopped near Maryborough by an observant local police officer.  Your arrest then lead ultimately to a presentment being filed in the County Court.  In all there were 16 counts being: 11 counts of rape, 1 count of false imprisonment, 1 count of kidnapping, 1 count of armed robbery and 2 counts of indecent assault.

8Some of the counts were rolled up counts.  Some were representative and some were continuing offences.

9You pleaded guilty to the 16 counts on arraignment in the County Court before His Honour Judge Wodak on 13 September 2006.  I have read His Honour's comprehensive model sentencing remarks, delivered on 13 December 2006.  I have read the prosecution outline of the facts of your crimes.  I have read the quite remarkable victim impact statement of Jessica tendered on the plea.

10At this point I indicate that with her approval, I have so far referred to her as Jessica.  By this I avoid the sometimes crushing depersonalised labelling of her as the victim.  I have not used the term 'victim' because I discerned, albeit from my much distant vantage point, that in 2006 when she wrote of the impact on her of these crimes, there was some deep, but at the time faint hope, that what had happened to her would not define her.

11What she wrote bears being heard again in this quite different court proceeding in 2023.  She wrote: 

My name is Jessica.  I once knew what that meant.  Now all I can tell you is that I am still Jessica, however this no longer holds any meaning to me.  I have lost my identity in the cruellest of ways. 

I was a 23 year old single mother, a sister, a daughter, a girlfriend, partner, friend, and confidant to many people.  I was strong, independent, and willing to make an effort.  I was attempting to hold down a second job to make a better life for my child and a better person out of me. I was destroyed. 

I was raped.  Not once, not twice, but so many times and in so many ways that it all becomes a blur.  These images haunt my days, my nights, my dreams and my realities.  I am no longer the person I was before.  I was once the person that people could rely on.  Now I am a shell of my former self, a speck of the brave person that was Jessica. I had my way of life, my self-esteem, my respect and my dignity stripped from me in the most terrifying of situations.[1]

[1] Victim Impact Statement (undated, written in 2006).

12It may be asked why in 2023 I am again referring, in perhaps painful detail, to the ordeal Jessica was forced to endure and to the lasting impact on her.  I am doing so because as I have said, that even though I have before me a particularly technical application, it is important that I do not lose sight of the fact that this application in 2023 is based on the horrors of what Jessica endured and has had to endure ever since.

13In my view to make this point, I can do no better than turn to the words of Jessica herself who concluded her impact statement with these poignant words: 

I am a real person who went through torture.  I am not a statistic or a nameless face on the street.  I am your mother, your sister, your daughter, and your friend.  What happened to me was real.  I am Jessica.[2]

[2] Ibid.

14Jessica has been involved in these review proceedings, attending court, supported by many good people.  In the words of Judge Wodak in his sentencing remarks in 2006, in describing Jessica, they are again apt in describing her to this day.  His Honour said:

I consider that Jessica acted with enormous bravery and strength of mind during what must have been for her a prolonged ordeal of physical and mental pain, degradation, humiliation and despair.[3]

[3] R v Forde [2007] VCC 1610, [34].

15His Honour acknowledged that the full extent of the impact on Jessica was something, 'only she can know'.[4] In the sentencing proceedings in 2006, the Director of Public Prosecutions made application to Judge Wodak that the sentence be an indefinite sentence. The application was made pursuant to s 18A of the Sentencing Act 1991.  Each of the rape charges were serious offences, as that term was defined in the Sentencing Act 1991, allowing for an indefinite sentence to be imposed. 

[4] Ibid, [33].

16An analysis of Judge Wodak's reasons for sentence reveal that by the application of instinctive synthesis, His Honour considered and weighed up all the facts of the 16 serious crimes, the gravity and nature of them, the level of moral culpability, the impact on Jessica, the respondent's personal circumstances, including his frightening prior criminal history of many like brutal sexual crimes.  His Honour considered the expert evidence called at the plea, on the question of the respondent's dangerousness.  He considered all the purposes for sentence as set out in the Sentencing Act 1991.

17His Honour eventually concluded that what confronted him was criminality that was so exceptional, so grave, so cruel, and when all that was added to the respondent's extraordinary past sexual offending history, it meant the need for community protection was so acute, and the respondent's dangerousness so serious that the only just and appropriate sentence was an indefinite sentence.  It is clear His Honour appreciated the exceptional nature of such a sentence.  There can be no doubt His Honour understood that it was a grave step to impose such a sentence.

18But what the respondent did, the offences he committed with his history, meant such a sentence was required to protect the community, especially women from the respondent's truly evil propensities. What is clear is His Honour considered and weighed up all the criteria governing the imposition of an indefinite sentence as set out in s 18B of the Sentencing Act 1991. I will refer shortly to the criteria set out in s 18B because those criteria have ongoing relevance to the review application that is before me.

19But first it is necessary to understand that the Sentencing Act 1991 has established a procedure by which a review of an indefinite sentence is to operate.  First, the Sentencing Act 1991 required that the sentencing judge who imposed an indefinite sentence must have fixed what is called the nominal sentence.  The nominal sentence is the term that would have been fixed as the minimum non-parole period if a finite sentence had been imposed.  Judge Wodak fixed the nominal sentence at 17 years.

20The next step in the process is that there must be a review of an indefinite sentence as soon as practicable after the expiry of the nominal sentence.  The respondent's nominal sentence has recently expired.  The application before me is the first review of the respondent's indefinite sentence.  The regime in the Sentencing Act 1991 allows for more than one review.

21The statutory framework or the questions that must be considered on a review are set out in s 18M which reads as follows:

(1) On a review under s18H(1)(a) or (b) the Court, unless it is satisfied to a high degree of probability that the offender is still a serious danger to the community, must by order –

(a) discharge the indefinite sentence; and

(b) make the offender subject to a five year reintegration program administered by the Adult Parole Board and issue a warrant to imprison in the same way as if it had sentenced the offender to a term of imprisonment for five years.

(2) The indefinite sentence continues in force if the Court does not make an order under subsection (1).[5]

[5] Sentencing Act 1991 (Vic), s 18M.

22The critical phrase in s 18M is whether the Court is satisfied to a high degree of probability that the offender is still a serious danger to the community. This phrase of whether the offender is still a serious danger to the community refers back to the criteria or the foundational finding of the sentencing judge, that the respondent was a serious danger to the community. That finding was one made by Judge Wodak according to the criteria set out in s 18B.

23Section 18B relevantly reads:

(1) A Court may only impose an indefinite sentence on an offender in respect of a serious offence if it is satisfied to a high degree of probability that the offender is a serious danger to the community because of –

(a) his or her character, past history, age, health, or mental condition; and

(b) the nature and gravity of the serious offence; and

(c) any special circumstances.

(2) In determining whether the offender is a serious danger to the community, the Court must have regard to –

(a) whether the nature of the serious offence is exceptional;

(b) [I move on, (b) is not relevant at this point];

(c) any medical, psychiatric and other relevant report received by it;

(d) the risk of serious danger to members of the community if an indefinite sentence were not imposed;

(e) a need to protect members of the community from the risk referred to in paragraph (d);

and may have regard to anything else that it thinks fit.

(3) The prosecution has the onus of proving that an offender is a serious danger to the community.[6]

[6] Sentencing Act 1991 (Vic), s 18B.

24Plainly a key to the finding of dangerousness to the community at the time of the sentence was the nature and gravity of the offending and whether the nature of the offending was exceptional.  Also of critical importance was the respondent's past character or criminal history. 

25I will briefly refer to how Judge Wodak described the nature and gravity of the offences and how on any measure it was exceptional offending.  I will refer also to the respondent's extraordinary past criminal history.  I do so because these matters inform an assessment of the respondent's current level of dangerousness, that is, whether the respondent is still a serious danger to the community.

26The nature, gravity and exceptional aspects of the offending was explained by Judge Wodak from paragraphs 5 to 35 in his reasons for sentence.  I have already briefly referred to the horrific ordeal that Jessica endured.  I do not want to gratuitously repeat and perhaps unintentionally trigger or heighten her trauma, but I must ensure that my finding as to the respondent's current level of dangerousness is one that is fully informed and that the respondent, the parties, the community and Jessica can understand why I have reached the conclusions I have come to. 

27In order that the circumstances of the offending can be properly expressed at this time, or this part of the ruling, I will revert to referring to the respondent directly as might occur and did occur in Judge Wodak's sentencing remarks.

28So the circumstances reveal that Jessica was at work on her own, and in that sense she was vulnerable, something that you exploited.  That adds to the gravity.  Though it was to a degree accepted that what you did was more spontaneous than planned criminality, that cuts both ways.  By that I mean that you so quickly lost any control or restraint or any sense that Jessica was another human and entitled to her dignity and bodily integrity.  In other words, while more spontaneous than planned, what is revealed is that your dangerous characteristics were so close to the surface, which in turn means that any woman that you came across was one who was endangered.

29This feature adds to the gravity and to the exceptional nature of the offending.  The gravity, nature and exceptional aspect of your crimes are also exposed by you holding her captive in the shop for three hours, cutting her clothing from her, binding her hands, feet and gagging her mouth, leaving her in excruciating fear as you moved from one cruel episode of rape to the next, then repeating it again after some time.

30You must have known that part of the nightmare that you were creating was her not knowing when a painful, brutal and degrading episode of penetration would start up again.  There were repeated violations by anal and vaginal rape.  The gravity of these crimes, which paints a clear picture of your dangerousness, was added to by reason of the fact that each episode and in between each episode, was accompanied by chilling words and threats and the use of a knife to make your threats and enforce your self-centred demands.

31You then acted in a more planned way, extracting information as to where her car was and then using it to kidnap her, so as you could continue your sexual violence in more remote places.  The abduction itself was brazen, occurring in a street in Ballarat, observed by confused members of the public.  Again, the gravity and nature of your crimes can be seen as truly at the extreme end of the spectrum as you drove long distances, stopping at remote places to repeat again and again the cruelty of the rapes and the torturous humiliation.

32You left Jessica alone tied up while you went away to get things that you wanted.  Then you came back and continued the ordeal.  The whole ordeal lasted 30 hours with stops in far distant and remote places like the Hume Dam and as far as the New South Wales border.  You stopped overnight.

33Jessica pleaded with you, telling you of how her absence would be traumatic for her very young child.  It made no or little different to you.  Your callousness in this regard is obvious and again the absence of any semblance of empathy exposes the very high level of your dangerousness.

34I have myself now had many, many years of being exposed to serious and brutal sexual crimes as defence counsel and a judge in the main trial court of this state.  With all of that, I am nonetheless in complete agreement with Judge Wodak when he said in sentencing you that your crimes were of a gravity and nature rarely seen, I add, thankfully.

35Put bluntly, that you could commit such cruel and depraved acts over such a protracted period without the least concern for the humanity of Jessica, establishes to the high degree of probability the deep and serious danger you presented to the community at the time of your sentence.  For myself, I am of the view of the high level of proof required that you were a very serious danger to the community based on this offending alone.  However, this was not the first time you had sexually offended.

36It was the fourth example of when your dangerousness was manifested and your sexual depravity inflicted on victims – always women, age though from a 13 year old child to a 57 year old woman who you raped at knifepoint.

37In summarising your bewildering past sexual offending I refer to the concise account as set out by counsel for the Director of Public Prosecutions in her submissions, which were based on the sentencing remarks of Judge Wodak who in turn referred to the sentencing remarks of the other County Court judges, Judges Callarty and Judge Stott who imposed sentences upon you.

38The summary reads:

At the time of this offending the Respondent was 49 years old.  Over the course of the previous 17 years from age 31 he committed rape on three separate occasions.  More particularly:

(a) On 8 September 1988 at age 31 the respondent raped and indecently assaulted a 31 year old woman, a neighbour, in her home.  He was sentenced after trial to imprisonment for five years with a three year non-parole period.  It was alleged at the time that he had used a knife to intimidate his victims but the jury acquitted him of rape and indecent assault with aggravating circumstances.  He was granted pre-release for six months on 24 August 1990 and parole on 7 December 1990:

(b) On 20 June 1991, 10 months after being released from prison on pre-release and while on parole, the respondent raped and indecently assaulted a 57 year old woman, previously unknown to him, who had attended his home to collect some ironing.  The offending included locking the door behind the victim, confronting her with a knife, subjecting her to verbal abuse and threats.  Tearing her clothing, punching her to the jaw and then anally and vaginally raping her.  He was sentenced to 10 years imprisonment with 7 years non-parole.  The respondent was released from prison on 24 March 1998.

(c) On 28 September 1998, six months after his release from prison the respondent raped a 13 year old girl.  The respondent was 41 years old.  The respondent went for a drive with his then girlfriend and the 13 year old victim.  He stopped in a remote location and the girl got out.  The respondent followed the girl and sat down with her.  When she tried to get up, he pushed her down, lay on top of her and attempted to kiss her.  Despite her resistance and requests to stop, he pulled down her pants and vaginally raped her.  He told her to relax or he would punch her to death.  He was sentenced to 7 years with a 5 year non-parole period.  He was released from custody on 7 November 2005. Three months later he committed the offences against Jessica for which the indefinite sentence was imposed.[7]

[7] Written Submissions on Behalf of the Director of Public Prosecutions dated 14 July 2023, [7].

39In the expert psychiatric and psychological reports tendered and relied upon before Judge Wodak it is clear that the respondent has no cognitive or intellectual impairment and no diagnosed mental illness.  The respondent could not provide any explanation or motivation for his offending.  No expert could discern any obvious motivation.  The expert opinion of the highly regarded forensic psychiatrist Dr Danny Sullivan, which was expressed in 2006, and cited in Judge Wodak's sentencing reasons was as follows:

Mr Forde's offences have no understandable basis and due to their recurrence and escalation he would be regarded on actuarial and clinical grounds as a high risk of future offending, until he is too physically frail to offend.[8]

[8] R v Forde [2007] VCC 1610, [41].

40Again, to make it clear in this review application, where the question is whether you are still a serious danger to the community, the statute requires that I must consider those past offences.  Having set out the serious circumstances of each, in very brief terms, I am of the view that on any measure the nature and the gravity of your past offending over 17 years reveals the depth of your dangerousness.  What adds a very concerning element again emphasising your dangerousness, is just how quickly after years of imprisonment you again sexually offended in like-manner to the past offending that saw you in prison, though it is to be noted that the last offending against Jessica was a significant escalation in the seriousness and the length of the crimes.

41The mere passing of the three months before you committed the offences in 2006, that is three months from when you were last in prison or released from prison, is only to be said for your dangerousness once in the community to be clearly seen.

42Another matter I must consider is any expert evidence that may assist on the question of dangerousness.  There was considerable expert evidence put before me in writing and orally that addressed the respondent's current level of dangerousness.  Before I move to that evidence, I pause to make clear what is meant or involved in assessing the respondent's level of dangerousness. 

43The question of whether the respondent is still a serious danger to the community gives rise to what is meant by the concept of danger to the public or the community.  I accept that the jurisprudence that has developed in analysing offender's risk to others in cases involving supervision orders or mental impairment provides the best guide to the concept of danger to the public.  The appellate cases in the supervision and mental impairment area have made clear that risk or danger is to be assessed by examining the likelihood of an offender committing a relevant offence, which here in the respondent's case is another violent sexual offence.  What is also to be assessed is the level of harm that would be caused if the risk eventuated.

44Taking first the latter aspect, that is, the harm that would be caused if the respondent did reoffend, in my view there can be no dispute, there would be very significant harm.  What happened to Jessica is powerful evidence of that.  In other words, it is powerful evidence of the degree of harm that would be caused. 

45As to the likelihood or the risk that unsupervised, the respondent would commit further offences as he had in the past, that is, violent sexual offences, I need to turn to and discuss the evidence of the experts who directly considered and reported on what they considered was the level of the respondent's risk.

46The expert evidence called by the Director of Public Prosecutions and the respondent was evidence of the highest quality.  The Director of Public Prosecutions tendered expert reports from Dr Ong, psychiatrist and Professor Ogloff, psychologist.  Both witnesses also gave oral evidence.

47The defence tendered the report of Dr Davis, psychologist.  He too gave evidence.  By agreement between the parties, the experts gave concurrent evidence.  That process was most helpful.

48Each of the experts addressed in detail the respondent's level of risk or dangerousness to the community.  Each expert comprehensively surveyed all aspects of the respondent's prior offending and the details of the respondent's offending against Jessica.  They had access and had absorbed vast amounts of information, including the expert reports prepared in 2006 and in the earlier County Court cases – that is, reports for the sentencing hearings in 1989, 1991 and 1999. They had voluminous prison files, both of a general kind and the health files.  There were no gaps at all in the historical information the experts had except for one area which I will refer to.

49Each of the experts had interviewed the respondent at length and some on more than one occasion.  Each witness was not only pre-eminently qualified to assist the court in this review, but each was deeply informed about the respondent and in particular his level of risk.

50Each witness utilised well-recognised and accepted risk assessments.  Each explained what tool they had used and why.  Dr Ong, as a psychiatrist, acknowledged that his colleagues Professor Ogloff and Dr Davis as psychologists were more qualified in the use of the risk assessment tools than he was. 

51Each expert acknowledged the difficulties inherent in risk assessments and in particular when there are some change or dynamic factor in the respondent's circumstances.

52In the end and importantly, what was common ground with all the experts was the respondent's level of risk for committing sexual offending was very considerable indeed.  The experts did not see any meaningful difference in the conclusions they came to as to the level of risks.  Notwithstanding that Dr Ong wrote in his report that the risk was high, whereas Professor Ogloff and Dr Davis concluded that it was moderate to high.

53In the concurrent oral evidence, each of the witnesses made it clear that in practical terms there was very little, if any difference, in the opinions as to the respondent's overall risk. 

54Given that my assessment is of the respondent's level of dangerousness right now, that is, when he is a man as he is, now aged 66, having spent the last 17 years in prison, the experts paid particular attention to the respondent's age, given that in the ordinary course risk reduces as an offender ages.  I refer back to but do not repeat now the words of Dr Sullivan saying that he will remain a high risk until he becomes too frail to offend.

55Counsel for the Director of Public Prosecutions raised this topic of the respondent's age in the concurrent evidence.  Professor Ogloff acknowledged that ordinarily risks reduce as age advances, but that the respondent's particular circumstances were atypical in that his sexual offending started later than is usually seen at the age of 31 and it continued unabated to age 49 when the respondent engaged in the almost astonishing number of rapes over 30 hours.

56Also, as Professor Ogloff and Dr Davis pointed out, the respondent presents now as a fit and very healthy 66 year old.  Thus the usual diminution of risk due to aging needed to be adjusted because of the atypical features evident in the respondent's circumstances.

57Professor Ogloff pointed out that the risk assessment tools do not easily accommodate a man with the offending history of the respondent at the age that he was when he offended.  In short, the respondent is an anomaly.  Each of the other witnesses considered that the usual reduction in risk as a consequence of aging had to be moderated or adjusted to the respondent having this unusual or atypical set of circumstances as to when he commenced offending and his age at the time of the last and most serious offending.

58Thus, the most obvious, perhaps the only factor that might be considered as reducing risk, that is, that the accused is now much older, 17 years older than he was when he offended, is in his case, a matter that does not mean that there is much, if any, reduction in risk. 

59Each of the experts noted with concern that despite being incarcerated for much of the past three decades, the respondent had not participated in a targeted sex offenders program until the last few months.  Dr Ong in particular stressed the importance of the respondent undergoing high level targeted treatment.  Dr Ong considered that the respondent's level of dangerousness could only be controlled or lowered from high if he had proper treatment if and when he was to be amongst others in the community.

60The other experts agreed with both Professor Ogloff and Dr Davis, pointing out the respondent's poor insight and the need for him to complete proper sex offenders programs and then be, to quote Dr Davis, 'tested' as it were by being in the community. 

61The respondent's current participation in the program at the Karreenga Prison is seen by all as a positive step, though Professor Ogloff in particular was concerned that there was no feedback on his progress, that the experts could utilise in their efforts to assess or predict risk.  This was the one gap in information that I alluded to before.

62I should conclude on this topic of treatment that I do not make anything of what seemed to be a dispute before Judge Wodak as to whether the respondent was cooperative or not in engaging in treatment.  This also applies to the later years while he was undergoing sentence or the nominal period, when the accused was seeking treatment but by treatment in the Corrections system he was not considered suitable.

63That issue does not loom large or at all in my review.  I am encouraged that he is doing the intensive program now and progressing through it.  I was well-assisted by the respondent's counsel on this topic and the respondent's recent steps to engage in offence-specific treatment was encouraging.

64At this point, I can say having considered all of the evidence and matters set out in the s 18B criteria, and in particular the comprehensive expert evidence that I have just referred to, I can say, at this point, I have no difficulty in finding that the respondent is at this time, or is still, a serious danger to the community. After full consideration of all of the evidence and the submissions, I can say I hold this view with considerable certainty. Or in other words in my view, there is a high, or even very high, probability that the respondent is still a serious danger to the community.

65However, there was further evidence other than the experts, and I need to discuss that evidence, and the implications of that evidence and the Court of Appeal decision in Carolan v The Queen (‘Carolan’). [9] The final witness called by counsel for the Director was Ms Jennifer Hosking.  She is the assistant commissioner sentence management division at Corrections Victoria. 

[9] Carolan v The Queen (2015) 48 VR 87.

66Ms Hosking provided a comprehensive affidavit and gave very helpful oral evidence.  She made it clear that despite what was confidently said by the Court of Appeal in Carolan as to the number of prisoners who were the subject of indefinite sentences, that part of the Court of Appeal judgment was in fact wrong, in that there was no reference in Carolan to the respondent.  What Ms Hosking said was that the respondent is in fact now the last prisoner who is the subject of an indefinite sentence.

67Before I outline the other key aspects of Ms Hosking's evidence regarding the five year reintegration program to be supervised by the Adult Parole Board, and what might or would take place with regard to an ongoing supervision order under the Serious Offenders Act, I need to examine in more detail what was decided in Carolan.

68That case was an appeal from a decision of the then Chief Judge of the County Court of Victoria, who heard and determined an application for a review of an indefinite sentence.  In other words, in Carolan the Chief Judge of the County Court undertook the same task that I am undertaking now.

69His Honour the Chief Judge declined to discharge Carolan's indefinite sentence.  His Honour found that Carolan was still a serious danger to the community.  His Honour also considered that what was proposed or may eventuate from future decisions of the Adult Parole Board, and/or the relevant departmental secretary, with regard to supervision orders, were simply too speculative to enable His Honour to discharge the indefinite sentence. 

70Carolan appealed.  The joint judgment of the Court comprising Justices of Appeal Ashley, Redlich and Priest, set aside the Chief Judge's decision and discharged Mr Carolan's indefinite sentence and ordered he commence the five year reintegration program.  In the judgment of the Court of Appeal, it was first held that a review is not or not part of the sentencing of an offender, and that the task of the reviewing court is more akin to that of a parole board rather than a sentencing court.

71This conclusion squarely raises questions of what a reviewing court can have regard to and I will turn to that point shortly.

72The second preliminary point from Carolan is that when conducting a review under s 18M, the assessment as to whether the prisoner is still a serious danger:

…calls for an evaluation of risk at the time of the review as though the offender at that time may be released from custody into the community, rather than an assessment requiring a prediction of future dangerousness.[10]

[10] Carolan v The Queen [2015] VSCA 167; 48 VR 87, [51].

73But for my purposes, the most important aspect of the Court of Appeal's decision in Carolan related to what regard the Court could engage in when in review, in particular whether regard could be had to executive decisions as to the possibility of an ongoing supervision order or the possible future decisions of the Adult Parole Board made to ensure the community was protected.

74By contrast, a judge in sentencing generally and specifically when considering imposing an indefinite sentence is explicitly prohibited by s 5(2BD)(b) of the Sentencing Act 1991 from having regard to the possibility of an application being made for a supervision order under the relevant Act, now the Serious Offenders Act 2018, and also s 5(2AA) prohibits regard to any executive action of a kind such as decisions of the Adult Parole Board.

75Thus the critical, and as I have said, binding aspect of the decision of the Court of Appeal in Carolan is that a court engaged as I am in reviewing an indefinite sentence:

…may assume that the relevant authorities will exercise the powers conferred upon them for the purpose of protection of the community when it is necessary to do so.[11]

[11] Ibid, [91].

76Therefore, it is to be assumed that the Adult Parole Board will administer the five year integration program so as to ensure the public are protected from someone as seriously dangerous as the respondent is.  Further, it is to be assumed that the appropriate departmental officer, being the Secretary to the Department of Justice and Community Safety will apply for a supervision order or the Director of Public Prosecutions will make application on referral for a continuing detention order pursuant to the Serious Offenders Act2018. 

77I am able to consider that a supervision order can be of considerable length, up to 15 years, and applications made be renewed so that in effect, a supervision order is made indefinite.  I am able and must consider in my assessment of the respondent's dangerousness to the community, that he can be housed potentially in a restrictive environment of a facility like Corella Place.  There are other facilities.

78There are said in the decision of Carolan to be the critical ameliorating considerations.  In Carolan the Chief Judge failed to take those matters into account and this failure was the basis for overruling the Chief Judge's decision to order Carolan's indefinite sentence to continue.

79What was said by the Court of Appeal in Carolan at paragraph 93 which can in turn be applied to this respondent's review was the following:

The legislature has provided for the circumstances in which an indefinite sentence should continue after the expiration of the nominal period.  Recognising that indefinite sentence, once discharged, cannot be revived, we have not lightly concluded that the appeal should be allowed and the order of an indefinite sentence discharged.  The appellant will be subject to a five year reintegration program and a warrant to imprison for that period. During this time, it is highly unlikely that the Board will release the appellant into the community and the possibility of it doing so without protective conditions is so remote as to be fanciful.  Before the conclusion of that five year period, the Secretary or the Director will be entitled to seek supervision or detention orders under the relevant Act, which could take effect on the day his custodial sentence expires. Assessing the risk at the time of the review it is as we have said inevitable that an application for an order under the Serious Offenders Act would be made and granted.  If the appellant's personal circumstances remain unchanged he may either be detained or an order would be made that would be tailored to prevent any danger to the community posed by the appellant.  A supervision order might be made that includes a residential condition that the appellant reside at Corella Place.  The Secretary or the Director could apply for renewal of that order indefinitely.[12]

[12] Ibid, [93]

80To return to the substance of what Ms Hosking said in her evidence, the key part of her evidence was to explain or outline what would be involved in a five year reintegration plan or program.  I do not need to descend into the finer detail, but in more general terms Ms Hosking explained that within the five year plan or program, for the first few years the respondent would be able to apply and be considered, and hopefully progress through a lowering of his security rating, allowing him to move to less restrictive prisons.  Then he would move to, or have access to, rehabilitative or transitional permits, which in general terms would allow some time away from a low security prison camp, to do community work or learn tasks necessary such as banking, to enable reintegration.  These would be all subject of supervision by prison officers when he would be away from the prison.

81Also and perhaps ultimately, work would be done under the supervision of the Adult Parole Board to examine options for housing in the community.  Ms Hosking made clear all these decisions and plans and practical steps in the five year reintegration program would be very closely monitored by the Adult Parole Board who would ensure that their key purpose of protection of the community was to the forefront and being adhered to in anything done by or with the respondent.

82Ms Hosking also gave evidence as to whether the respondent would be the subject of an application for a supervision order or a continuing detention order made by the Secretary to the Department of Justice and Community Safety, applications being made to the County Court or to the Supreme Court.  Ms Hosking's evidence was that the offences the respondent had committed made him a person that had to be assessed for an application for a supervision order or a continuing detention order.  Ms Hosking was herself involved in the process of making recommendations to the Secretary of the Department of Justice and Community Safety, to apply for a supervision order or a detention order.

83Ms Hosking's evidence was, not only would the respondent be subject of a recommendation to the Secretary, but that with her considerable experience in this area she was absolutely confident that the Secretary would accept the recommendation and apply for a supervision order or a detention order to the appropriate court.

84In other words, the effect of Ms Hosking's evidence was that although she could not speak for the Secretary who had the ultimate decision making authority, it should be seen as all but an absolute certainty that an application for a supervision order at least, or a detention order, will be made to the courts.

85Further, she agreed with questions from me that although it was a matter for the court, with her considerable experience in this area, she was confident that the application for at least a supervision order would be successful, and the respondent would be the subject of a supervision order. 

86Based on this evidence, it was said that the serious danger that the respondent poses if he were to be released into the community can be properly managed by the Adult Parole Board and via a supervision order.  This meant that following the decision in Carolan, I ought to, or I must do, as the Court of Appeal did in Carolan and discharge the indefinite sentence and order the respondent to be subject to the five year reintegration program and warrant for imprisonment for five years.

87As I have said earlier in drawing conclusions from the expert evidence and all of the materials, I now even with the evidence of Ms Hosking's added in, I remain of the firm view that the respondent is at this time still a serious danger to the community.  I repeat I hold this view with considerable certainty, or in other words in my view there is a high or even very high probability that the respondent is a serious danger to the community.

88However, by reason of the decision or the judgment of the Court of Appeal in Carolan, and in particular the evidence of Ms Hosking as to the priority of the Adult Parole Board to the protection of the community, and her evidence of the near certainty of the respondent being made the subject of at least a supervision order, I then must discharge the respondent's indefinite sentence and order he be put on a five year reintegration program.

89Both parties submitted that there was no other available course.  Thus I will sign an order that has the effect of discharging this indefinite sentence and then sentencing the respondent to five years' imprisonment, but he will be placed on the five year integration program. 

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