Director of Public Prosecutions v JPH (No 10)
[2022] VSC 388
•8 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0111
| IN THE MATTER of the Serious Offenders Act 2018 | |
| and | |
| IN THE MATTER of an application under section 71 of that Act for renewal of a detention order | |
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| Applicant | |
| v | |
| JPH | |
| Respondent | |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 15, 16 and 17 June 2022 |
DATE OF JUDGMENT: | 8 July 2022 |
CASE MAY BE CITED AS: | DPP v JPH (No 10) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 388 |
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PUBLIC LAW – Application for renewal of detention order – Whether respondent an unacceptable risk of committing a serious sexual offence or serious violence offence or both if detention order were not made – Significant change in level of risk posed by respondent – Anticipated future application for supervision order – Interim detention order extended for four months – Serious OffendersAct 2018 (Vic) ss 63, 64, 71, 73, 76, 81, 85 and 279.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Davidson | Office of Public Prosecutions |
| For the Respondent | Ms J Munster with Mr G Cooper | Victoria Legal Aid |
HER HONOUR:
Introduction
The respondent has been in some form of post sentence detention since 2009.
In that year the respondent was made the subject of an Extended Supervision Order (‘ESO’) under the Serious Sex Offenders (Monitoring) Act 2005 (‘2005 Act’). Detention orders were not available under the 2005 Act. He was, in theory, being supervised ‘in the community’. He was, in fact, imprisoned in a small degazetted part of Hopkins Correctional Centre (‘HCC’). As stated by T Forrest J, the applicant was ‘free to come and go provided he [did] not go’.[1]
[1]DPP v JPH (No 2) [2014] VSC 177, [6].
The 2005 Act was superseded by the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘2009 Act’). In 2014 the respondent was made the subject of a detention order under the 2009 Act. He was transferred to the Greenhill Detention Unit (‘Greenhill’), a purpose-built facility for serious sex offenders on detention orders. It is located within the HCC.
In turn the 2009 Act was superseded by the Serious Offenders Act 2018 (‘Act’). In 2019 the respondent was made the subject of a detention order under that Act. His residency at Greenhill continued.
The various detention orders have been periodically reviewed, confirmed and renewed by this Court.
By Notice dated 12 July 2021 the applicant sought the renewal of the then extant detention order for a period of one year. The hearing of that application, originally listed in late 2021, was adjourned to mid-2022 as a result of serious health conditions experienced by the respondent. Those conditions, as well as other factors considered below, are highly relevant to the issue of risk at the heart of the application.
As a result of the delay in the hearing of the application, the detention order sought to be renewed expired and the respondent has been the subject of an interim detention order since 14 January 2022.[2]
[2]That expiry does not prevent the renewal of the order: Act, s 74(2).
On the second day of the hearing of the renewal application, the parties proposed a resolution of the matter involving a renewal of the detention order for a period of four months in the expectation that Corrections Victoria would establish and implement a transition program during that time and apply for a supervision order at the end of it.
Decision
For the reasons articulated below, on 17 June 2022 I extended the interim detention order in respect of the respondent for a period of four months commencing on 20 June 2022.
The statutory scheme
At any time before the expiry of a detention order, the Director of Public Prosecutions (‘DPP’) may pursuant to s 71(1) of the Act apply to this Court for the renewal of the order. The application may be made and determined despite the expiry of the detention order sought to be reviewed.[3]
[3]Act, s 73(2).
On such application being made, the Court may do one of four things: renew the order; revoke the order; make a supervision order, an interim supervision order or an interim detention order; or make no order.[4]
[4]Act, s 73(1).
In determining the s 71(1) application, the three sections of the Act governing the determination of an application for a detention order under s 61(1) apply.[5] That requires a two-step analysis: the Court may make a detention order ‘if, and only if’[6] it is satisfied ‘by acceptable, cogent evidence to a high degree of probability’[7] that the requirements of s 63(1) and s 64(1) are met.
[5]Act, s 73(3).
[6]Act, s 62(1).
[7]Act, s 62(2).
Section 63(1) requires the Court to be satisfied that 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. If the Court is satisfied as required by s 61(3), s 64(1) of the Act further requires the Court to be satisfied that that risk would be unacceptable unless a detention order were made.
In determining whether an offender poses or will pose an unacceptable risk under s 63(1), the Court must have regard to any assessment report or progress report filed in relation to the application, any other report or evidence given in relation to the application and any other matter the Court considers appropriate.[8] The DPP bears the burden of proof.[9]
[8]Act, s 63(2).
[9]Act, s 63(5).
The degree of likelihood of the respondent committing a serious sexual and/or a serious violence offence together with the seriousness of the consequences if the risk eventuates, as well as any other matter considered relevant, contribute to the evaluation of whether the risk is unacceptable.[10] At both steps the Court may determine that an offender poses or will pose an unacceptable risk 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.[11] The critical factor in the determination is likely to be the gravity of harm of the offence which the respondent is at risk of committing.[12]
[10]Nigro v Secretary to the Department of Justice (2013) 41 VR 359; [2013] VSCA 213 (‘Nigro’), [125] (with respect to the equivalent legislative provisions of the 2009 Act).
[11]Act, ss 63(4) and 64(2).
[12]Nigro, [130].
At the first step the Court must not have regard to the means of managing the risk or the likely impact of a detention order or a supervision order on the offender[13] but may have regard to the ‘conceptual value of individual liberty and other human rights’.[14] At the second step the Court may have regard to the means of managing the risk and the likely impact of a detention order on the offender.
[13]Act, s 63(3).
[14]Nigro, [103].
An interim detention order may be made if the Court is satisfied that an application for a detention order or renewal of a detention order has been commenced but not determined[15] and (relevantly) the previous detention order has or will have expired before the application for renewal is determined.[16] It must further appear to the Court that the documents in support of the application for a detention order or renewal of a detention order would, if proved, justify the making or renewal of a detention order.[17] And, the Court must be satisfied that it is in the public interest to make an interim detention order.[18] The period of an interim detention order, including any extensions of it, must not exceed four months unless the Court is satisfied that exceptional circumstances exist.[19]
[15]Act, s 76(1)(a)(i).
[16]Act, s 76 (1)(a)(ii)(B).
[17]Act, s 76(1)(b).
[18]Act, s 76(1)(c).
[19]Act, s 81(1) and (2).
It follows that the evidentiary threshold for the making of an interim detention order is lower than that for the making or renewal of a detention order. The former requires only that ‘it appears’ that the documents in support of the application for a detention order or renewal of detention order ‘would, if proved’ justify the making of the order sought. It does not require satisfaction that the offender will pose an unacceptable risk of committing a serious sex offence or serious violence offence or both if a detention order was not made and the offender was in the community. That is, it does not require the Court to be satisfied that detention is the only option to address unacceptable risk.
The respondent
It has been some time since the background of the respondent has been summarised in any detail. It is convenient to do so here.
The respondent is now aged 48 years. His criminal history reveals sexual and other offending since he was 14 years of age. Between 1989 and 2004 he received both custodial and non-custodial dispositions. The most recent of the respondent’s convictions relate to offending in 2001 and 2003.
On 19 January 2001 the respondent approached a number of women in the Wodonga area and made inappropriate sexual comments. He followed a 75 year old woman into her unit at a retirement home. The respondent grabbed the woman by the throat, pushed her to the floor and asked her if she wanted to die. He then punched her in the right eye and tore off her dress and underpants. The respondent undid his pants and attempted unsuccessfully to penetrate her. He stood up, masturbated himself and ejaculated over her. The respondent then left the unit.
On 26 April 2002 he was convicted in the County Court of attempted rape and aggravated burglary (person present). He received a total effective sentence of seven years with a non-parole period of five years.[20]
[20]463 days had been served by way of pre-sentence detention.
The respondent reoffended while serving the sentence of imprisonment imposed in April 2002. On 26 May 2003 he was being interviewed by a female psychologist at Ararat Prison. When she informed him that the interview was over, the respondent blocked the doorway effectively imprisoning her. He asked the psychologist ‘is it alright if I masturbate’ and fondled his genitals. She noticed he had an erection. He refused to move away from the door. She asked again to be released and said that if he did not do so she would have to report the matter. The respondent grabbed her around the neck with both hands. The psychologist felt significant pressure to her neck and fell, dropping to the floor on her hands and knees. The respondent pulled her jumper up exposing her skin. He then desisted and said ‘I don’t know why I did that’.
On 18 June 2004 the respondent was convicted in the County Court of intentionally causing injury, indecent assault and false imprisonment. He received a total sentence of 18 months. That led to a new non-parole period of five years and nine months.
The respondent’s release date was to be 27 June 2009. He was placed on an interim ESO on 18 June 2009 (to commence 27 June 2009). On 23 September 2009 he was placed on a 10-year ESO. And, as noted above, he has been subject to some form of post-sentence detention ever since.
In that period there has been one reported incident with a female prison officer. On 6 September 2010 the officer was assisting the respondent in his unit. As she went to leave the respondent leaned in and made comments about masturbating and ‘feeling really horny’. The officer had to ask three times before the respondent acceded to a request to open the door.
The respondent has attracted various diagnoses relevant to his history of sexual offending. He has Sexual Sadism Disorder and Antisocial Personality Disorder. He exhibits borderline and paranoid personality traits. He has a high number of psychopathic traits. He may have Exhibitionistic Disorder. He has significant cognitive limitations. This particular constellation of issues has limited the effectiveness of psychiatric and psychological interventions to reduce his high and chronic risk of recidivism.
Until very recently, he has been universally and consistently assessed as posing a high risk of reoffending. The expert evidence heard on each occasion the matter was before this Court established that the respondent posed an unacceptable risk of committing a serious sex offence (and, since the commencement of the Act, also an unacceptable risk of committing a serious violence offence) which could only be mitigated by a strict, custodial supervision regime.
It is unsurprising that the respondent has often expressed a sense of hopelessness and frustration. He has met the diagnostic criteria for an Adjustment Disorder, which manifests when a person’s stressors exceed their capacity to cope. He has been prescribed both an antidepressant and a mood stabiliser.
The respondent has a number of other ongoing medical issues. These are hypertension, Klinefelter syndrome, hyperlipidaemia, asthma, pulmonary embolism and deep vein thrombosis and anaphylaxis. Appropriate medications have been prescribed.
The respondent has in the past been prescribed antilibidinal treatment from which he suffered serious and life-threatening complications. In 2019 Dr Rajan Darjee, a consultant forensic psychiatrist, proposed that the respondent should be treated with a gonadotrophin-releasing hormone (GnRH) such as triptorelin if the respondent gave full and informed consent. This is a new generation antilibidinal medication. The antilibidinal treatment is designed to work by lowering the level of the respondent’s testosterone to the point that he cannot have sexual fantasies, urges and motivation.
Developments since the detention order was last renewed
The respondent received the first injection of triptorelin in about April or May 2021. He was then on step five of a six step incremental step-down plan with regards to his security arrangements. He commenced the last step in mid-2021. That afforded him access to the Oliver Unit of HCC without direct accompaniment by prison staff (although he remained monitored by prison staff who had a line of sight to him).
The second three-monthly dose of triptorelin was administered on 9 August 2021. The respondent did not report any immediate side effects in terms of energy levels or mood. His antidepressant medication was lowered from 100mg to 50mg following consultation with a psychiatric nurse.
In September 2021 the respondent expressed concerns about his medications. After consulting medical staff, he ceased the antidepressant medication. The respondent was concerned about the feminising effects of the antilibidinal medication in addition to its effectiveness. He reported that the treatment had eliminated sexual thoughts but expressed concern about the emergence of violent thoughts regarding his ex-girlfriend’s ex-partner.
Notwithstanding there being no adverse behavioural issues, the meeting of the Major Offender Review Panel in September 2021 determined that there would be no step seven of the step-down plan in light of the cessation of his antidepressant medication and his disclosure of violent thoughts.
The respondent’s concern about the feminising effect of the antilibidinal medication continued into October 2021. He expressed ‘second thoughts’ about the treatment. He described frustration that his honesty in speaking of his violent thoughts had been used to delay further progression on the step-down plan.
On 21 October 2021 the respondent was found to have swelling and redness in his right leg. He was referred for an ultrasound due to concerns about possible blood clotting. On 22 October 2021 he was reviewed (by video link) by Dr Prashant Pandurangi and also by Dr Andy Carroll. At 7:10 pm that evening the respondent contacted staff to report blurred vision and trouble breathing. He was taken by ambulance to Ballarat Base Hospital and then returned to the prison medical centre for observation. He received twice daily doses of blood thinning medication and appeared to be recovering.
On 27 October 2021 Dr Pandurangi told the respondent he would not receive the next dose of antilibidinal medication, which was scheduled for early November.
The respondent returned to his Greenhill unit on 2 November 2021.
On 15 November 2021 a case conference was convened with medical staff involved in the respondent’s antilibidinal treatment, the Forensic Intervention Services (‘FIS’) clinician and those assessing the respondent as part of the detention order regime. Dr Pandurangi noted it was uncertain if the clot had arisen as a result of the course of antilibidinal medication. Dr Kevin Ong, a forensic psychiatrist, said that the respondent remained open to resuming triptorelin pending further medical tests. The respondent’s tendency to health-related anxiety and frustration regarding his circumstances was discussed. Dr Darjee noted that it would be counter-productive to return the respondent to strict security measures, but it may be appropriate to pause his further progression. The practitioners agreed that the respondent might experience a return of sadistic fantasies after three months.
At about 1.00am on 18 November 2021 the respondent called for help, indicating he had fallen, was in pain and could not feel his legs. He was taken by ambulance to Ballarat Base Hospital and then transferred to St Vincent’s Hospital in Melbourne. Hospital records describe that the respondent underwent a ‘thoracic laminectomy T4/5, T5/6, T6/7 with fenestration of arachnoid cyst.’ He remained at St Vincent’s until he was discharged to the inpatient hospital unit at Port Phillip Prison on 24 November 2021. The respondent was noted to have ongoing numbness in the right leg. This was attributed to his original spinal compression and expected to improve.
The respondent was transferred to HCC on 13 December 2021 and admitted to the subacute inpatient medical unit. He received nursing support and physiotherapy. He was returned to his Greenhill unit on 16 December 2021. Physiotherapy and daily nursing reviews continued.
On 31 December 2021 the respondent reported falling in his unit. He was taken by ambulance to East Grampians Health Service and returned the same day. A later medical review on 3 January 2022 recorded that the respondent was investigated with a CT scan of his brain and cervical spine.
At about 1 am on 5 January 2022 the respondent called for assistance. He was lying on the floor and said that he could not move, was in extreme pain and could not feel his legs. He was transferred by ambulance to Ballarat Base Hospital. He returned on 6 January 2022. Medical notes dated 7 January 2022 record that the discharge summary reported normal results for blood tests and CT of brain, cervical spine, chest and abdomen. A normal result was also reported for a CT myelogram. Cerebrospinal fluid (CSF) was taken by way of a lumbar puncture and results of this test were pending.
On 11 January 2022 the respondent requested to return to his Greenhill unit to complete his quarantine period (consequent upon COVID-19 protocols).
In the early hours of 28 January 2022 the respondent activated his personal duress alarm. Staff found him lying on the floor of his unit complaining that he could not move. He was transported to Ballarat Base Hospital by ambulance. He underwent tests before being discharged to the HCC medical unit and commencing a 14-day quarantine period. The blood tests taken raised a concern about possible misuse of Warfarin by the respondent.
The respondent recommenced triptorelin on 28 April 2022.
The physical issues experienced by the respondent since November 2021 have had an impact on his mobility. These were described by Mr Bhavik Dadia, a physiotherapist who commenced treating the respondent on 21 December 2021. Mr Dadia prepared a report dated 7 June 2022 and gave viva voce evidence at the hearing of the application.
Mr Dadia said that the respondent uses a four wheel walker for ambulation, with supervision outside. He is able to transfer (that is for example from sitting to standing) safely. He reports reduced sensation and strength in his lower right limb, but his physical functioning and capacity has improved over time. He can, for example, carry a light to medium weight load and he has not experienced a fall for a period of six to eight weeks.
Mr Dadia said that in the medium term the respondent has the potential to reduce the assistance he needs from the walking aid and progress to a frame, stick or crutch if he is regular and persistent with his strengthening regime. In the longer term, assuming the same regularity and persistence and in the absence of further surgical procedures or setbacks, Mr Dadia said he would expect the respondent to gain more functional capability with activities of daily living and risk free ambulation.
Mr Dadia stated that the respondent in his present state would be extremely unlikely to have the ability to walk the five kilometres from the HCC to Ararat or scale the 1.8m fence at Corella Place.
Current Risk Assessment
Dr Ong
Dr Ong, who has long been involved in the matter, wrote a progress report dated 6 May 2021, an addendum report dated 19 April 2022 and a further addendum report dated 9 June 2022. Additionally, an email dated 14 June 2022 in which Dr Ong responded to a series of questions asked by a solicitor of the Victorian Government Solicitor’s Office and which had not been filed and served prior to the commencement of the hearing, was tendered.[21] Dr Ong gave viva voce evidence at the hearing of the application.
[21]The DPP was made aware of the existence of this email on 15 June 2022.
In his report of 6 May 2021 Dr Ong noted the respondent told him that he hoped to be placed on a supervision order and accepted that if he were he would be ‘watched like a hawk’ in regard to interactions with female staff at Corella Place. Dr Ong said that, unlike previous years, the respondent expressed satisfaction with his progress, which he attributed to the ongoing support of clinicians, the antilibidinal medication and the removal of a resident (that he found problematic) from another of the Greenhill units. Dr Ong stated that the respondent had benefited from the incentive of the step-down plan and appeared to be aware of the expectations placed on him for progress. He noted the respondent to present as calmer and more affable in manner.
Dr Ong said the following:
Whilst I would not suggest that commencement of antiandrogen medication has been a panacea for [the respondent], he has not been involved in any sexual or physical aggression in the past year. He is consistently reporting abeyance of deviant sexual around (sic) (indeed, any sexual arousal). His self-report of a general decrease in hostility and aggression overall is in keeping with other case reports of sex offenders who have been treated with antiandrogen medication. I would expect this to be the case, perhaps even more so, when he is established on the injectable medication.
Dr Ong said that as to the respondent’s progress, the ‘practice of hastening slowly remains paramount’ and that he should be tested through progressively less restrictive security measures with each change to be assessed over a period of three to six months.
Dr Ong used the STATIC-99 and RSVP (Risk for Sexual Violence Protocol) actuarial and structured judgement tools to assess the respondent’s risk of sexual reoffending.
The STATIC-99 relies entirely upon historic factors and the respondent’s ‘high’ risk is, consequently, unchanged since Dr Ong’s last review. The RSVP tool contains both static (or historic) and dynamic variables. Dr Ong stated:
In my opinion, the combination of the STATIC-99 and RSVP indicates a moderate-high risk of sexual reoffending. This risk level assumes that [the respondent] were to be in the community, and not subject to Supervision or Detention. However, it also assumes that [the respondent] remains on antiandrogen medication. [The respondent] himself is correct in stating that the current environmental restrictions have limited opportunity to re-offend, and that he has been afforded limited opportunity to be tested in the community. Should he demonstrate ability to comport his behaviour in gradually less restrictive settings, it is my contention that the risk rating could be further discounted. However, should he discontinue antiandrogen medication for any reason, the risk rating will clearly increase.
As to the nature of any likely sexual offending, Dr Ong stated that it would be impulsive and occur where the respondent has access to potential victims. Those victims are likely to be adult females. The offending could range from threats to assaults and is more likely to occur when there is a lack of structure and environmental supports in the context of anger and frustration.
Dr Ong used the HCR-20 tool to assess the respondent’s risk of future violent offending. Dr Ong stated:
[The respondent] has many risk factors indicative of risk for violent offending, both sexual and non-sexual. Overall, the identified risk factors for violent reoffending in the HCR-20 have significant overlap with the ones identified for risk of sexual offending in the RSVP. It is to be noted that the HCR-20 captures risk of both physical harm as well as, for example threat to physically harm another. It is my opinion that the risk of any future violence, as per the HCR-20, remains high.
Dr Ong described the respondent’s likely risk scenario for violent offending as involving impulsive aggression when angered, irritated, goaded or humiliated. An alternative scenario is a serious assault against a female during a sexual assault, although Dr Ong noted this to be perhaps now more likely to occur if the antilibidinal medication was ceased.
In the 19 April 2021 addendum report, written at a time after the administration of triptorelin had ceased and before it had recommenced, Dr Ong gave the following opinion:
… the combination of the STATIC-99 and RSVP places [the respondent] at a moderate-high risk of sexual re-offending. The situation is more fluid and uncertain compared with previous assessments. This risk level assumes that [the respondent] remains off antilibidinal treatment. Whilst there does not appear to have been a return of sexually deviant thoughts, this will require careful monitoring in the near term as the physiological effect of antilibidinal medication should have subsided by now. Should [the respondent] be re-established on antilibidinal medication, the risk rating would likely be lower. Whilst not directly considered by the above assessment tools, [the respondent’s] current physical health may reduce his risk of re-offending due to restriction in mobility and thus partially balances out the cessation of antilibidinal treatment. However, this should not be relied upon to mitigate risk as there is an expectation that his physical health will recover.
The current environmental restrictions have limited opportunities for [the respondent] to reoffend. Should he continue to demonstrate ability to comport his behaviour in gradually less restrictive settings, it is my contention that the risk rating could be further discounted.
Dr Ong again used the HCR-20 tool to assess the respondent’s risk of future violent offending. He rated it as moderate-high.
Dr Ong’s opinion as to the likely nature of sexual reoffending or violent reoffending remained unchanged from his earlier reports.
In his further addendum psychiatric report of 9 June 2022, Dr Ong stated that as the respondent had been re-established on triptorelin, he considered him to be a moderate risk of committing either a serious sexual offence or serious violence offence. The latter is most likely to be committed in the course of committing a sexual offence.
In answer to the specific question of whether the respondent needed more time to show that the triptorelin was working before transitioning off a detention order, Dr Ong said:
Despite being only recently re-established on triptorelin, I am not aware of any sexually inappropriate behaviour displayed by [the respondent] during the time of being unmedicated. I would expect the triptorelin provides additional safeguard for transition and no further time is necessary to demonstrate the efficacy of this medication.
Dr Ong stated that the respondent would only need more time to work through a step-down program before transitioning off a detention order if such a plan was designed to facilitate meaningful community transition. Dr Ong noted the respondent to be a highly institutionalised individual who, despite his desire to progress from detention, was very likely to be anxious about such a move. Dr Ong said it would be ideal for him to have a period of transition that allowed him to become familiar with the environs of Corella Place.
As to supports required if the respondent were to be made the subject of a supervision order, Dr Ong noted that ongoing support from those who are familiar to him would be beneficial. That included Corella Place, Australian Community Support Organisation (‘ACSO’) and FIS staff. Dr Ong said that the respondent would require ongoing monitoring of his antilibidinal treatment and efficacy by Forensicare clinicians. Compliance with triptorelin is relatively easy to monitor as it is injected rather than taken orally. Blood tests should indicate ongoing suppression of testosterone below baseline levels.
In the email dated 14 June 2022 Dr Ong said that he did not believe that either the less structured environment of Corella Place or the increase in ‘free time’ available to the respondent should he be placed there would significantly change the risk he poses. The main concern in terms of mitigating the risk he does pose would be to avoid lone female staff attending to him. That aside, Dr Ong was of the view that the respondent should be afforded the same opportunity to access the grounds and community on the same terms as other residents at Corella Place.
As to issues of management, Dr Ong stated that any evidence of increasing irritability or utterances of threats should be discussed with the respondent to ascertain the reasons for those behavioural changes. Dr Ong reiterated that Forensicare should monitor compliance and efficacy of the antiandrogen medication via a combination of monitoring behaviour, direct questioning and blood tests. Cessation of the antilibidinal medication would warrant a re-assessment of risk.
As to issues of transition, Dr Ong stated:
The priority for transition is to enable [the respondent] to become comfortable in the new environment, to be aware of expectations at Corella, and to meet staff and other residents. He would benefit from access to Corella from Hopkins during the transition period, as well as beginning some community outings. It would be best if staff who are familiar with him can remain to support him during and after the process (Corella, FIS, ACSO etc).
Dr Ong gave oral evidence consistent with his written opinions.
Dr Godfredson
Dr Godfredson prepared a progress report dated 28 April 2021, an addendum report dated 7 April 2022 and a letter of advice dated 13 June 2022. Additionally, an email dated 13 June 2022 in which Dr Godfredson responded to a series of questions asked by a solicitor of the Victorian Government Solicitor’s Office and which had not been filed and served prior to the commencement of the hearing, was tendered.[22] Dr Godfredson gave viva voce evidence at the hearing of the application.
[22]The DPP was made aware of the existence of the email on 15 June 2022.
In his progress report dated 28 April 2021, Dr Godfredson noted that he had administered the Hare Psychopathy Checklist – Revised (PCL-R) and that, consistent with previous assessments, the respondent’s result was indicative of a high number of psychopathic traits.
Like Dr Ong, Dr Godfredson also administered the Static-99 and RSVP. Dr Godfredson said that the respondent’s score on the former placed him ‘well into the high risk category’.
Dr Godfredson said:
The final risk judgement takes into account the results of the Static-99, PCL-R and RSVP. The current risk assessment, as defined by the Act, assumes that [the respondent] were in the community and not subject to a Detention or Supervision Order. In these circumstances, it cannot be assumed that he would comply with the antilibidinal medication regime. On this basis, [the respondent] has been assessed as posing a high risk of committing a further serious sexual offence.
Dr Godfredson’s description of the likely nature of future sexual offending was in the following terms:
…[the respondent] would likely enact a ruse to garner the attention of an adult female, for example, by asking for help or eliciting personal information. He might then make sexual comments intended to make the victim feel uncomfortable, embarrassed, and even fearful. [The respondent] might then commit sexual offences such as sexual assault and/or rape, including the commission of serious violence. [The respondent’s] target group is comprised solely of adult women. It is hypothesised that females in authoritarian or power dependent relationships, such as prison officers, case managers, psychologists and other health care professionals would be among those at risk. In this regard, the prospect of ‘reversing’ perceived dominance or power might appeal to [the respondent’s] sexual interests.
[The respondent] has not been responsible for managing his risk of sexual reoffending in a number of years. Furthermore, he is prone to blaming others for his behaviour. In the event that [the respondent] found himself alone with a female and he became sexually aroused, he might construe the lapse in security measures as license to commit a sexual offence.
Dr Godfredson also administered the HCR-20 with respect to risk of future violent offending. He said:
On the basis of the HCR-20-v3 risk profile, [the respondent] falls into the high risk category for engaging in any type of future interpersonal violence. Were [the respondent’s] risk of violence to materialise, he would most likely engage in the utterance of threats. He may also engage in relatively minor instances of physical violence, such as pushing or shoving. Such instances may occur in response to perceived provocation. Whilst the utterance of threats and instances of minor physical violence might occur in an impulsive manner, such behaviours appear to serve a function of ensuring others treat him with respect or keep their distance altogether.
In his addendum report dated 7 April 2022, Dr Godfredson again noted the results of the various psychometric tests completed by the respondent.
There were no changes in the PCL-R and Static-99 findings.
With respect to the RSVP, Dr Godfredson noted improvement on a number of risk factors. These concerned the respondent’s sustained commitment to demonstrating progress and improving his ‘manageability within a secure environment’ as well as the impairment of his physical strength consequent upon his medical conditions.
Dr Godfredson again noted that his assessment of risk assumed that the respondent was in the community and not subject to a detention or supervision order. He said that the respondent would probably struggle to establish and maintain lifestyle stability if this were the case. Dr Godfredson also said:
Given [the respondent’s] conflicted view of antilibidinal medication, I am not confident he would be incentivised to continue treatment in the community. Assuming he were in the community and not in receipt of antilibidinal medication, it is my view that [the respondent] continues to pose a high risk of committing a further serious sexual offence.
With respect to the HCR-20, Dr Godfredson reiterated his opinion that the respondent fell into the high risk category for engaging in any type of future interpersonal violence.
Dr Godfredson’s description of the likely nature of any sexual or violent reoffending remained unchanged from his April 2021 report.
In his letter of advice dated 13 June 2022, Dr Godfredson said that it was a reasonable assumption that the respondent’s risk would be considerably lowered while he is compliant with the medication regime. Given he did not have any medical training, he otherwise deferred to medical experts as to the intended benefits of the medication.
When asked his view of the risk of the respondent committing a serious sex offence or a serious violence offence which is not driven by sexual fantasies or urges, Dr Godfredson said that it was conceivable that the respondent could commit a sexual offence that was motivated by anger in the absence of any sexual drive. However, that would be a departure from the pattern of his prior sexual offending and the scenario was, therefore, somewhat speculative.
Dr Godfredson was also asked his opinion about a transition plan in the event the respondent was placed on a supervision order. He said that it may be helpful to distinguish transition plans from step-down plans. He gave the example of transition plans at the Rivergum Residential Treatment Centre, which take place over the final 34 weeks of an intensive treatment period of two years and which are designed to enhance a person’s capacity to establish and maintain an offence-free lifestyle in the community. A step-down plan, on the other hand, is a planned and graded reduction in environmental security measures. Dr Godfredson noted that the step-down plan completed by the respondent to date had fulfilled its intended purpose of providing him with greater opportunities for socialisation in the Oliver Unit. It had also enhanced the respondent’s motivation to demonstrate progress.
Dr Godfredson noted the respondent’s limitations with respect to consequential thinking and coping strategies before stating:
Transitioning [the respondent] from prison to a residential facility such as Corella Place would entail a profound reduction in security measures that go far beyond the previous stepdown plan. It follows that any planned transition to a residential facility such as Corella Place would necessitate a further, more comprehensive, stepdown plan. In addition, the broad range of practical and clinical objectives associated with transition necessitate the development of a comprehensive transition plan.
Dr Godfredson then detailed some 26 items that might be considered when devising such a transition plan.
When asked if four months for such a plan was sufficient time, Dr Godfredson said:
In my view, a period of four months would not be sufficient to realise the objectives of a comprehensive transition plan that was intended to promote [the respondent’s] emotional and behavioural stability. On the other hand, [the respondent] might consider a period exceeding 12 months to be unreasonable, leading him to become unmotivated and uncooperative. In ideal circumstances, both Corrections Victoria and [the respondent] should be content with the plan’s duration. In other words, there is much to be gained from [the respondent] perceiving that the stakeholders are invested in his progress.
When pressed in viva voce evidence to nominate a figure with respect to any transition plan, Dr Godfredson said:
If I was to pick a somewhat arbitrary number, I would say within the vicinity of six months or more and the purpose of that would be for [the respondent] to visit Corella Place, to attend recreational activities, to get to know the residents and then to be able to meet with his forensic intervention services clinician and talk about - and process those experiences.
In the email dated 13 June 2022 Dr Godfredson said the respondent appeared capable of entertaining himself with a range of solitary activities and there is no reason to suggest that he would experience any more difficulty doing so in Corella Place than in Greenhill. He said the major challenge for the respondent will be getting used to being disturbed or irritated by other residents. Dr Godfredson said that it would be beneficial if a particular (male) prison officer that the respondent was comfortable with could continue to have contact with the respondent for a period of time.
As to risk, Dr Godfredson said that whilst the main concern was the respondent’s access to lone females, his difficulty managing interpersonal conflict was also an influential factor. Potential triggers could include being taunted, unwanted intrusion and perceived interference with his possessions. This could be mitigated by ensuring an adequate response by Corella Place staff to any complaint made by the respondent.
To manage the risk posed by the respondent Dr Godfredson recommended that he be placed in a single unit but one which does not allow him to monitor the arrival and departure of staff. Further, female staff should not be permitted to attend or enter the respondent’s unit. The respondent should be accompanied in the community and not allowed to consult with lone female medical staff.
Corrections Victoria
Multiple affidavits by each of Ms Sarah Miles, Acting Deputy Commissioner, Offender Services, Corrections Victoria and Ms Jennifer Hosking, Assistant Commissioner (Sentence Management), Corrections Victoria were filed in the proceeding. Multiple affidavits of Mr Louis Andrews, solicitor for the applicant, were also filed. The purpose of these affidavits was to exhibit various materials on which the applicant intended to rely, including material relating to Corrections Victoria’s management of the respondent.
The affidavits of Ms Miles are similar in content to others that have been filed with respect to previous applications concerning the respondent and are principally concerned with the asserted inability of Corrections Victoria to manage the risk posed by the respondent if he were on a supervision order and resident at Corella Place (or Emu Creek Homestead).
The most recent affidavit was sworn 23 May 2022. The difficulties of managing the risk posed by the respondent identified by Ms Miles are of four major types. First, the risk of him absconding (which also involves him cutting off his GPS bracelet). That is said to subsist despite the respondent’s present mobility and health issues. Second, the ‘limited capacity’ to prevent the respondent having access to adult females whilst on a supervision order. This arises from the occasional situation where staff at Corella Place are comprised only of females, particularly on the overnight shift, the event that the respondent is hospitalised in the community and the occasional presence of external contractors at Corella Place. Third, the ability of the respondent to live independently given his medical issues. Corella Place does not have onsite healthcare staff or a dedicated medical centre. Nor would there be a duress button in the event that the respondent requires immediate assistance. However, obtaining a duress button would be ‘considered’ if the respondent was placed on a supervision order. Fourth, the COVID-19 pandemic has affected staffing numbers and there is a possibility that staff would be unable to immediately respond to a medical incident.
The affidavits of Ms Hosking detail the management and behaviour of the respondent in Greenhill. The most recent affidavit was sworn 23 May 2022. It notes with respect to the step down plan that the next phase of the plan was yet to be finalised, but it was anticipated that step seven would involve the respondent attending the recreation centre at HCC one day a week whilst unaccompanied.
Since then and following the most recent of the reports of Dr Ong and Dr Godfredson, the position of Corrections Victoria as to the management and transition of the respondent changed dramatically.
On the second day of the hearing of the application, Ms Hosking gave evidence about a proposed transition plan for the respondent, which would be of four months’ duration. Her evidence was that she expected the plan to be completed and formalised by 27 June 2022. And, Ms Hosking stated that she expected that at the expiry of the transition plan, the Secretary to the Department of Justice and Community Safety (‘Secretary’) would apply for a supervision order in respect of the respondent.
That transition plan was filed on 27 June 2022.
The plan contains a 16-week timetable outlining the respondent’s transition to Corella Place. Weeks one to four involve the respondent becoming familiar with the environment of Corella Place, the staff and co-residents, by visiting three days a week. These visits will involve social activities with co-residents, appointments and debriefs with staff and free time (some of which will be eventually spent in a single occupant unit identified for him). From week five, the respondent will commence community outings on a fortnightly basis. By week 10, his community outings will increase to weekly. From approximately week 13 to the end of week 16, the frequency of his visits to Corella Place may increase to four days per week and continue to include one weekly community outing.
Whilst attending Corella Place, the respondent will be accompanied full time by a male prison officer in civilian clothes as well as a Corella Place staff member. At a time to be determined by his progress, this will reduce to line of sight monitoring by custodial staff and finally to the respondent being unaccompanied in Corella Place. When on accompanied community outings, the respondent will be accompanied by a male custodial officer and a male Specialist Case Worker (‘SCW’).
The respondent will be required to wear an Electronic Monitoring (‘EM’) bracelet for the duration of his visits to Corella Place and on any community outings. A charged EM bracelet will be provided to him and fitted prior to each visit.
The respondent’s FIS will have conducted a training session with Corella Place staff on 4 July 2022. The respondent’s progress on transition plan will be reviewed during fortnightly case conferences between the various stakeholders involved in his supervision and management.
Analysis
It is obvious that there have been many changes in the circumstances of the respondent that are relevant to the risk he poses of committing a serious sexual offence, a serious violence offence or both.
The antilibidinal medication has eliminated the sexual fantasies and urges of the respondent. Despite the issue with the blood clot in late 2021, it would appear that there is no medical reason that the respondent cannot remain on the medication indefinitely. Indeed it is far from clear that the triptorelin and the October 2021 blood clot are causally linked. Given that the medication is injected on a three-monthly basis, it is easy to monitor compliance. Its efficacy is observable (in large part) through blood tests. And, in the event that the respondent ceased the medication (for any reason) its effects would take some months to wear off. In other words, there would not be an immediate reversion to a state in which he could experience – and therefore potentially act upon – sadistic sexual urges and fantasies.
The respondent’s mobility is also currently restricted. While capable of some walking absent any aid, he uses a walker to move any distance of note. His prognosis in this regard is unclear. The respondent remains a tall and strong man, but his physical ability is significantly restricted.
The respondent has also demonstrated the capacity to cope with and abide by the incremental decreases in his security arrangements. He has been treated as a patient in public hospitals without incident.
Further, there has been a marked change in the analysis of risk posed by the respondent, by Dr Ong in particular. I accept Dr Ong’s evidence that the risk posed by the respondent of sexual and/or violent offending sits in the moderate range.
While the assessment of unacceptable risk under the Act requires judicial discretion and is not determined by the evidence of psychiatrists and/or psychologists alone, Dr Ong’s opinion is of significant weight. The respondent’s risk of violent offending is largely linked to his risk of sexual offending. Any other scenario is, as Dr Godfredson said, speculative. It is the latter that has been addressed by the antilibidinal medication. And there does not need to be any further period of testing its efficacy.
Taking all of the evidence into account, I am satisfied under s 63(1) of the Act that the respondent will pose an unacceptable risk if he is in the community and not subject to a supervision order or detention order. However, the assessment to be conducted under s 64(1) of the Act is more difficult. Given the state of flux posed by the respondent’s antilibidinal treatment, health issues, evidence regarding the decline in his risk and the preparedness of the respondent and those managing him to commence his transition to a less restrictive environment, it is less clear whether the respondent now remains an unacceptable risk of committing a serious sexual or serious violence offence or both if he is not subject to a detention order.
I accept the evidence of both Dr Ong and Dr Godfredson that the respondent would benefit from a transition period to Corella Place and that there are, in any event, risks associated with the respondent residing at Corella Place. In having regard to how those risks may be managed, Corrections Victoria is now willing to take the appropriate steps to mitigate them, particularly with respect to the respondent’s access to lone females. And, I accept that the content of the four-month transition plan for the respondent underpins an intention of the Secretary to apply for a supervision order at the conclusion of it.
I must also consider the impact of the making of a further detention order on the respondent. He has demonstrated a willingness to take the antilibidinal medication and to do all things required of him to eventually move forward from his current situation. The parties and the Secretary recognise that there has been a fundamental shift in the risk posed by the respondent. The parties and the Secretary also realise that the respondent needs support and assistance adjusting to a less restrictive environment. He does not expect to be released into the community at large. He has long desired to reside at Corella Place. The respondent must not be set up to fail.
It is my view that it is not necessary to make a determination under s 64(1) of the Act. Section 73(1) of the Act allows the making of an interim detention order in these circumstances. No party sought to argue that that power to make an interim detention order did not include the extension of an extant interim detention order.
Given that the respondent has been subject to an interim detention order since 14 January 2022, I am satisfied that exceptional circumstances exist that justify the four month extension of that order. They are the combination of the need for the respondent to be given time to adjust to Corella Place, the need to implement a comprehensive and structured transition plan and the evidence in relation to the respondent’s declining level of risk.
Non-publication
Considering the evidence of the distress caused to the respondent by the publication of matters concerning him, I am satisfied pursuant to s 279(1) of the Act that it is in the public interest to order that any information before the Court in this proceeding that might enable the respondent to be identified must not be published.
Conclusion
The orders of the Court will be as follows:
(a) The interim detention order in respect of the respondent, imposed on 14 January 2022, is extended.
(b) The extension of the interim detention order commences 20 June 2022.
(c) The period for which the interim detention order is extended is four months.
(d) Pursuant to s 85 of the Act, the Court is satisfied that the extension of the interim detention order is justified, and that it is in the public interest to grant the extension.
(e) The Director of Public Prosecutions file the transition plan prepared by Corrections Victoria within three days of the plan being finalised.
(f) Pursuant to s 279(1) of the Act, the Court is satisfied that it is in the public interest to order that any information before the Court in this proceeding that might enable the respondent or his whereabouts to be identified must not be published until further order is made.
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