Director of Public Prosecutions v JPH (No 2)

[2014] VSC 177

IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0111 of 2012

IN THE MATTER of the Serious Sex Offences (Detention and Supervision) Act 2009 (Vic)

and

IN THE MATTER of an Application for Detention Order

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
JPH	Respondent

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	6, 11, 12, 13 and 14 November 2013
DATE OF JUDGMENT:	16 April 2014
CASE MAY BE CITED AS:	DPP v JPH (No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 177	Revised 2 June 2014

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[Redacted Version]

PUBLIC LAW – Application for detention order – Whether respondent would be unacceptable risk of committing relevant offence if detention order were not made – ‘Unacceptable risk’ – Nigro & Ors v Secretary to the Dept of Justice [2013] VSCA 213 – Under s 36(1) threshold test of unacceptable risk permits consideration of impact of detention order on respondent – Real likelihood of further offending – Anticipated gravity of further offences high – Detention order will have serious impact on the respondent – Respondent is unacceptable risk of committing a relevant offence – Detention order made - Serious Sex Offenders (Detention and Supervision) Act 2009 ss 9, 33, 35, 36, 42, 73, 115.

CHARTER – Whether ‘regime’ created for the management of detention order prisoners inconsistent with provisions of the Victorian Charter – Freedom from arbitrary arrest and detention – ‘arbitrary’ – Whether freedom applies to fact or conditions of detention – Humane treatment when deprived of liberty – No inconsistency between provisions of legislative instruments creating ‘regime’ and these rights – Charter of Human Rights and Responsibilities Act 2006 ss 21(2), 22(1)-(3), 32 and 38.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. Rose SC with Ms J. Davidson	Office of Public Prosecutions
For the Respondent	Ms H. Spowart with Ms J. Munster	Victoria Legal Aid
For the Attorney-General (intervening)	Mr O. P. Holdenson QC with Ms C. Dixon	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

1. This is an application brought by the Director of Public Prosecutions (‘DPP’) under s 73(3) of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the 2009 Act’).  The Director seeks a detention order in respect of the respondent.

1. The respondent is currently the subject of an Extended Supervision Order (‘ESO’) made in the County Court by Judge Chettle on 21 September 2009.  The latest date for the first review of that order was 21 September 2012.  This ESO was made under the Serious Sex Offenders (Monitoring) Act 2005 (‘the 2005 Act’), which was superseded by the 2009 Act. 

1. On 29 May 2012, the Secretary to the Department of Justice applied to the County Court for the first review of the ESO.  On 6 September 2012, the Director made this application to this Court for a detention order under the 2009 Act.  Detention orders were not available under the 2005 Act. 

1. Thus the Director has, in effect, interposed this application under s 73(3) of the 2009 Act and the County Court review has been adjourned sine die. I set out the legislative framework for these applications below. In very short compass, this application will involve an assessment of the relative capabilities of a supervision or detention order to manage acceptably the respondent’s risk of committing a relevant offence. It will conclude with the making of a detention order, a supervision order, or no order at all.

1. The respondent has filed an Amended Charter Act Notice dated 30 August 2013 purporting to identify three questions of law and three questions of interpretation concerning the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter Act’). The Attorney-General has intervened under s 34(1) of the Charter Act and made submissions in relation to the operation of that Act as it concerns this application.

1. In theory, the respondent is currently being supervised ‘in the community’ under his existing ESO.  In practice, he is imprisoned in a small de-gazetted part of the Hopkins Correctional Centre (formerly Ararat Prison) known as the Extended Supervision Order Transitional Accommodation Centre (‘ESOTAC’).  He is free to come and go provided he does not go.

1. If this application is successful the respondent will be detained within the prison system at the Hopkins Correctional Centre. He will be the first person to be the subject of a detention order and will, at his election, be housed in purpose-built detention accommodation within the gazetted prison grounds or with the general prison population. If a supervision order is made the respondent will leave ESOTAC for Corella Place, a transitional accommodation facility.

1. In 2010, the DPP made a similar application in respect of the respondent under s 33 of the 2009 Act.[1]  Hollingworth J dismissed the application on a narrow basis.  As long as the respondent remained on an ESO under the old Act, and as long as he could continue to be housed at ESOTAC he was not an unacceptable risk of committing a relevant offence.  The parties agree that it is not open to take this narrow approach to the current application.  The legislative arrangements that allowed a person to be ordered to reside at ESOTAC will cease to apply either at the determination of this application or, in the event that this Court does not impose a supervision or detention order, when the required application for review of the existing ESO is determined in the County Court.[2]

   [1]DPP v JPH [2011] VSC 251.

   [2]Under the 2005 Act a person subject to a supervision order could be ordered to reside at ESOTAC. There is no such power under the 2009 Act. Transitional provisions of the 2009 Act allow for the continued operation of the 2005 Act and associated regulations in respect of orders existing under the 2005 Act until, inter alia, the order is revoked or a supervision order or detention order is made under the 2009 Act. Part 5 of the 2009 Act applies to the review of an extended supervision order as if it were a supervision order under the 2009 Act. If the court conducting the review determines to confirm the extended supervision order it must, pursuant to s 4(2) of Schedule 2, make a supervision order under the 2009 Act. The respondent is the last person subject to an ESO under the 2005 Act. It follows that the determination of this application, or the adjourned review proceedings in the County Court, will have the effect I have described.

The statutory scheme

1. In Director of Public Prosecutions v MAJ,[3] Hollingworth J provided a convenient analysis of the statutory scheme.  I have relied upon it heavily in the following paragraphs.

   [3][2011] VSC 646R at [14]-[18].

1. The 2005 Act commenced operation in May 2005.  Its major purpose was expressed as being “to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community.”[4]  There was no provision for the detention of such persons.  The Act contemplated that they be supervised “in the community”.  Conditions could be attached to an ESO by the court making the order (the Supreme or County Court) and the Adult Parole Board was given various powers to give directions to ESO offenders.

   [4]The 2005 Act, s 1(1).

1. ESOs made under the 2005 Act were required to be regularly reviewed.  As I have observed, the first review of the respondent’s existing ESO has been adjourned pending the outcome of this application made under the 2009 Act.

1. On 1 January 2010, the 2005 Act was repealed and the 2009 Act came into operation.  The 2005 Act continues to apply in relation to existing ESOs, until they are revoked or a new order is made under the 2009 Act.[5] The transitional provisions in the 2009 Act provide that the review provisions in Part 5 of the 2009 Act apply to the review of an ESO as if it were a supervision order under the 2009 Act.[6]

   [5]The 2009 Act, Sch 2 cl 3.

   [6]Ibid, Sch 2 cl 4.

1. The purposes of the 2009 Act are set out in s 1:

(1)The main purpose of this Act is to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision.

(2)The secondary purpose of this Act is to facilitate the treatment and rehabilitation of such offenders.

1. Under s 7 of the 2009 Act the Secretary may apply to the Supreme or County Courts for a supervision order. Under s 33, the Director may apply to the Supreme Court for a detention order. Applications may only be made in respect of eligible offenders.[7] 

   [7]Ibid, s 4.

1. If on a review of a supervision order the Director considers that a detention order should be made in respect of the offender, the Director may apply to the Supreme Court for a detention order.[8] This is the process by which this application has reached this Court. If such an application is made, Division 2 of Part 3 of the 2009 Act applies as if it were an application under s 33.[9]  If on such an application the Supreme Court does not make the detention order it may confirm (on the same or different terms and conditions) or revoke the supervision order.[10]

   [8]Ibid, s 73(3).

   [9]Ibid, s 73(4).

   [10]Ibid, ss 73(6) and (9).

1. A person subject to a supervision order under the 2009 Act resides ‘in the community’, albeit subject to various conditions including conditions as to where the offender may reside (for instance, at a ‘residential facility’).[11]  A detention order, on the other hand, has the effect of committing an offender to detention in prison for the period of the order.[12]

   [11]Ibid, s 17(1)(a).

   [12]Ibid, s 42.

1. Applications for detention orders are dealt with in Part 3 of the 2009 Act and involve a two-stage process. First, the Court must consider whether the offender is an unacceptable risk of committing a relevant offence[13] if a detention order or supervision order is not made and the offender is in the community. Section 35 provides:

   [13]A “relevant offence” is defined in s 3 as an offence listed in Schedule 1 to the 2009 Act; they are essentially offences of a sexual nature including rape, incest, sexual penetration of a child under 16, indecent assault, assault with intent to rape, abduction or detention and others.

Court must first be satisfied that there is an unacceptable risk

(1)On an application under section 33, the Supreme Court may make an order in respect of an eligible offender only if the Court is satisfied that the offender poses an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community.

(2)In determining whether the offender is likely to commit a relevant offence in the circumstances described in subsection (1), the Supreme Court must, subject to this Division, have regard to—

(a)any assessment report or progress report filed in the Court, whether by or on behalf of the Director of Public Prosecutions or the offender; and

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

(c)anything else the Court considers appropriate.

(3)In determining whether or not the offender poses an unacceptable risk as set out in subsection (1), the Supreme Court must not consider the means of managing the risk or the likely impact of a detention order or supervision order on the offender.

(4)For the avoidance of doubt the Supreme Court may determine under subsection (1) that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not.

(5)The Director of Public Prosecutions has the burden of proving that the offender poses an unacceptable risk as set out in subsection (1).

1. Then the Court must consider whether there is an unacceptable risk of the offender committing a relevant offence unless a detention order were made.  Section 36 provides:

Decision to make order

(1)If the Supreme Court is satisfied that the unacceptable risk set out in section 35(1) exists, the Court before making a detention order must be satisfied that the risk of the offender committing a relevant offence would be unacceptable unless a detention order were made.

(2)For the avoidance of doubt the Supreme Court may determine under subsection (1) that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not.

(3)If the Supreme Court is satisfied that the risk would be unacceptable unless a detention order were made, it may make a detention order in respect of the offender.

(4)If it is not satisfied that the risk would be unacceptable unless a detention order were made, the Supreme Court may make a supervision order in respect of the offender.

(5)The Supreme Court may make no order in circumstances where it is empowered to make a detention order or supervision order under this section.

(6)Divisions 2 to 4 of Part 2 (with any necessary modifications) apply to the making of a supervision order under this section as if it were a supervision order made under that Part.

1. The Director accepts that he bears the onus of satisfying the requirements of s 36.

1. Applications for supervision or detention orders must be accompanied by at least one assessment report from a medical expert which complies with s 109.

1. I have observed that the effect of a detention order is to commit the offender to detention in prison for the period of the order.[14] The status of that offender is as set out in s 115:

   [14]The 2009 Act, s 42.

Status of offender on detention orders or interim detention orders

(1)An offender in custody in a prison under a detention order or interim detention order must be treated in a way that is appropriate to his or her status as an unconvicted prisoner subject to any reasonable requirements necessary to maintain—

(a)the management, security and good order of the prison; and

(b)the safe custody and welfare of the offender or any other prisoners.

(2)Except as provided in subsection (3), an offender in custody in a prison under a detention order or interim detention order must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving custodial sentences.

(3)An offender may be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving custodial sentences—

(a)if it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation and other group activities of this kind; or

(b)if it is necessary for the safe custody or welfare of the offender or prisoners or the security or good order of the prison; or

(c)if the offender has elected to be so accommodated or detained.

1. The Supreme Court may only be satisfied as required by ss 35(1) or 36(1) by “acceptable, cogent evidence” and “to a high degree of probability” that the evidence is of sufficient weight to justify the decision.[15]

   [15]Ibid, s 37.

1. If it is satisfied that the risk would be unacceptable unless a detention order is made the Supreme Court may make a detention order under s 36(3). If it does not reach the requisite level of satisfaction under s 36(1) the Supreme Court may, under s 36(4), make a supervision order. Alternatively, it may make no order under ss 36(3) or (4) in circumstances where it is empowered to do so.[16]

   [16]Ibid, s 36(5).

1. The 2009 Act requires regular review of both types of orders.[17]

   [17]Ibid, ss 65 and 66.

Unacceptable Risk

1. At the heart of the threshold inquiries under ss 35 and 36 is the concept of “unacceptable risk”.

1. The Court of Appeal recently considered this phrase in the context of s 9(1) of the 2009 Act.[18] I consider that the reasoning of the Court of Appeal applies equally to the concept of “unacceptable risk” as it is relevant to this application. The immediate statutory contexts of ss 9(1) and 36(1) differ, however. This will have some bearing on the scope of the evaluative task under s 36(1).

   [18]Nigro & Ors v Secretary to the Department of Health [2013] VSCA 213 (‘Nigro’).

1. In Nigro the Court of Appeal held that the test of unacceptable risk enabled an appropriate balancing of competing considerations, including the ‘conceptual value’ of the right to liberty at Common Law and other rights under the Charter Act.[19]  The level of risk to be balanced against these competing considerations will depend on the degree of likelihood of offending and the seriousness of the consequences should the risk eventuate.[20] 

   [19]Ibid at [103].

   [20]Ibid at [6].

1. Section 9(4) limits the matters a court may take into account in determining whether there is an unacceptable risk under s 9(1). It provides:

In determining whether or not the offender poses an unacceptable risk as set out in subsection (1), the court must not consider the means of managing the risk or the likely impact of a supervision order on the offender.[21]

An equivalent subsection is noticeably absent from s 36.

[21]The 2009 Act, s 9(4).

1. In Nigro, the Court of Appeal held that s 9(4) prohibits the consideration of the impact of a supervision order on the offender.[22] It follows that s 9(4) prohibits the consideration of the effect of a supervision order on the offender’s rehabilitation or treatment.[23] Though it necessarily allows a court to take into account the conceptual value of liberty and other human rights, s 9(4) prohibits the consideration of the impact of an order on the individual offender’s rights.[24] The effects of an order upon the offender are matters to be taken into account when exercising the discretion under s 9(7).[25]

   [22]Nigro at [178].

   [23]Nevertheless, the Court of Appeal held the section permitted consideration of any ‘treatment, therapy or other rehabilitative measures which the offender might engage in [if no order were made] and which are relevant to the evaluation of whether the risk is unacceptable’: Ibid at [9] and [178]

   [24]Ibid at [103].

   [25]Ibid.

1. Section 35(3) establishes an equivalent limitation for the purpose of the threshold test under s 35(1). As I have said, there is no equivalent subsection to s 36. To the extent that Division 2 of Part 3 of the Act creates a two-stage process for the making of detention orders s 35(3) applies only to the first stage of that process. This is not a case of vague or confusing drafting; nor is it a case in which it is necessary to read words into an existing provision if the purpose of the act is to be achieved.[26]

   [26]See, Bermingham v Corrective Services Commissioner of New South Wales (1988) 38 A Crim R 412 at 422 (McHugh P).

1. Explicit language would have been required had it been Parliament’s intention to prohibit, under s 36(1), consideration of the impact of a detention order on the relevant offender. The presence of provisions such as ss 9(4) and 35(3) elsewhere in the Act is a further, persuasive argument against an implied limitation to s 36. In other words, it is evidence of a positive parliamentary intention not to make s 36(1) subject to such a limitation. Extrinsic materials support this conclusion, albeit in a limited way.[27]

   [27]‘The means of managing the risk will be addressed by the Supreme Court in s 36’: Explanatory Memorandum, Serious Sex Offenders (Detention and Supervision) Bill 2009 (Vic), cl 35.

1. Consideration of the impact of a detention order on the offender forms a part of the evaluative task under s 36(1). Under ss 36(1) and 9(1) the unacceptability of the risk will depend, in part, on an assessment of the objective gravity of the conduct said to constitute the risk and the likelihood that that conduct will occur. Both sections require consideration of the conceptual value of liberty and autonomy, recognising that the offender has not committed an unpunished offence. Under s 36(1), however, the Supreme Court must also balance the risk against the actual impact of a detention order on the offender and on his rights. In this sense the threshold inquiry under s 36(1) is broader than the test under s 9(1), qualified as that section is by s 9(4). This interpretation is consistent with the approach taken to similar provisions by Courts in Western Australia and New South Wales.[28]

   [28]Concerning the Dangerous Sexual Offenders Act 2006 (WA) see: DPP (WA) v Williams (2007) 35 WAR 297 at [63] (Wheeler JA); Woods v DPP (WA) (2008) 38 WAR 217 at 241 (Steytler P and Buss JJA); DPP (WA) v GTR (2008) 38 WAR 307, 315 [26]. DPP (WA) v Italiano [2009] WASCA 116 at [46] (Buss JA, Miller JA agreeing); Concerning the Crimes (Serious Sex Offenders) Act 2006 (NSW) (title since amended) see: New South Wales v Richardson (No 2) (2011) 210 A Crim R 220 at 228-229; The State of New South Wales v Darrego [2011] NSWSC 1449 at [25]-[27]; Attorney-General for the State of New South Wales v Steadman [2013] NSWSC 170 at [66].

1. If the Court reaches the requisite level of satisfaction it must then consider whether it ought to make the relevant order.  It is not open on the text and purpose of the Act to interpret the Court’s discretion to make an order as subject to human rights limitations.[29]  Nevertheless, before the Supreme Court may exercise the discretion in a manner unfavourable to the offender it must again turn its mind to the impact of the order on that offender.[30] Under ss 36(3), (4) and (5), just as under s 9(7), ‘[t]he Court must consider whether the limitations on the offender’s human rights are necessary to protect the community from the risk that the offender poses.’[31]

   [29]Nigro at [179] and [188]-[204].

   [30]Nigro at [196].

   [31]Ibid.

The present application

1. The respondent is currently subject to an ESO and is therefore an eligible offender under s 4(3) of the 2009 Act.[32]  No issue was taken with the ‘relevance’ of the risk; if the respondent presents a risk it is a risk of committing a relevant offence.

   [32]The 2009 Act, s 4(3).

1. The Director assumes the burden of proving the risk to be unacceptable under ss 35 and 36 by acceptable, cogent evidence to a high degree of probability. In this case the respondent concedes through his counsel that he is an unacceptable risk as countenanced by s 35(1) but argues that I ought not be satisfied that that risk remains unacceptable, under s 36(1), unless a detention order is made. In less cumbersome language the respondent accepts that he is an unacceptable risk but contends that a supervision order is sufficient to manage that risk to an acceptable level.

1. Despite the respondent’s concession, I must examine the clinical nature of the risk that he currently presents as only then can it be measured against Corrections’ capacity to manage it. It is this risk that must be balanced against the other, relevant, features of this case.

The Respondent

1. The respondent will shortly turn 40.  He has a history of sexual offending from the age of 14.  The table below summarises his history of both sexual and non-sexual offending in reverse chronological order:

SENTENCE	OFFENCES	SENTENCE/PENALTY
18.6.2004 Melbourne County Court	Intentionally Causing Injury Indecent Assault False Imprisonment (Common Law)	18 months 18 months concurrent 9 months concurrent Total 18 months New non-parole period of 5 years 9 months
26.4.2002 Melbourne County Court	Attempted Rape Aggravated Burglary – Person Present	7 Years 3 Years and 6 Months Concurrent Total 7 years Non-Parole Period of 5 years (463 days served by way of pre-sentence detention)
27.11.1997 Sydney District Court, Parramatta NSW	Maliciously Destroying Property by Fire Maliciously Destroying Property by Fire	Minimum Term: Commencing 19.2.1996 Concluding: 18.08.1998 Additional Term: Commencing: 19.08.1998 Concluding: 18.08.2000 Fixed Term: 2 Years and 6 Months Commencing 18.08.1998
02.05.1996 Parramatta Local Court NSW	Maliciously Destroying Property by Fire	Committed for Trial (see above)
26.07.1994 Hornsby Local Court NSW	Offensive Conduct Whilst on Enclosed Lands	Recog Self $2000 18 Months Supervision
22.04.1994 No Appearance Court, Hornsby NSW	Revocation of Parole	Return to Former Custody
18.03.1992 Sydney District Court, Bondi NSW	Attempted Sexual Intercourse Without Consent	Minimum Term 18 months Add Term 18 Months
28.10.1991 Bidura Children’s Court, Bondi NSW	Attempted Sexual Intercourse Without Consent Assault	CFS Sydney District Court (see above, 18.03.1992) Adj Gen
18.01.1991 Gosford Children’s Court NSW	Public Mischief	Control Order 1 Month
24.08.1990 Picton Children’s Court, Bowral NSW	Assault	Control Order 5 Months
15.06.1990 Bowral Children’s Court, NSW	Sexual Assault (Category 4)	Without Conviction Control Order 8 Weeks
15.01.1990 Moss Vale Children’s Court, Bowral NSW	Sexual Assault Female 10 to 16 Years Without Consent	Without Conviction Recog
14.06.1989 Goulburn Children’s Court NSW	Attempted Sexual Assault Commit Act of Indecency	On each charge Without Conviction Probation 12 months To reside at Anglewood
14.06.1989 Goulburn Children’s Court NSW	Sexual Assault Assault Attempted Sexual Assault Assault	On each charge Without Conviction Probation 12 months To reside at Anglewood (JPH stated that Anglewood was a “state ward home”)

1. The 26 April 2002 sentence for attempted rape and aggravated burglary related to conduct that occurred on 19 January 2001.  In his sentencing remarks, Judge Jones set out the factual background to the offending.[33]  The respondent had 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 senior citizens home.  He grabbed his victim by the throat, pushed her to the floor and asked her if she wanted to die.  He punched her in the right eye and then tore off her dress and underpants.  He undid his pants and unsuccessfully attempted to penetrate her.  He stood up, masturbated himself and ejaculated over her.  He then left the unit.

   [33]R v [JPH] (Unreported, County Court of Victoria, Jones J, 26 April 2002).

1. The 18 June 2004 sentence related to conduct that occurred on 26 May 2003 at Ararat Prison.[34]  The respondent was approximately one year into the 26 April 2002 sentence.  The respondent was being interviewed by a female psychologist at Ararat Prison.  She informed him the interview was over.  The applicant blocked the doorway effectively imprisoning the psychologist.  He asked her “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 great 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”.

   [34]R v [JPH] (Unreported, County Court of Victoria, King J, 18 June 2004).

1. The respondent’s release date was to be 27 June 2009.  On 18 June 2009, he was placed on an interim ESO (to begin 27 June 2009) and on 23 September 2009 he was placed on a 10 year ESO.

1. There have been other reports of inappropriate sexual behaviour.  The 26 April 2002 sentencing remarks of Judge Jones refer to a sexual assault on a Salvation Army staff member in 1999.[35]  This conduct apparently led to his parole being revoked.[36]  On 6 September 2010, a female prison officer was cornered in the respondent’s unit in ESOTAC.[37]  The respondent was the only resident present.  The prison officer had acceded to his request to help shift his bed so that an ant problem could be attended to.  “I went to reach the front door handle to open it and (JPH) leant in and leant on the closed door and said to me: “You know I’m told that (MJ) is a massive masturbator”….Then he said “I like to masturbate too.”….I then told him “I don’t need to hear this”.  I observed (JPH) lean towards me…(He) then said “well Miss I’m feeling really horny”….  I said “Open the door…” but he ignored me.  I said “open the door now” but he ignored me again…  I raised by voice and said “open the fucking door now”…(JPH) then stepped back and opened the door (and) I walked straight out”.[38]

   [35]Above n 36, at 30.

   [36]Ibid.

   [37]Exhibit ‘JAH-36’ to the affidavit of Jennifer Ann Hosking, 4 September 2012: ‘Copy Memorandum by [JC], Prison Officer, dated 6 September 2010’.

   [38]Ibid.

1. The following witnesses testified as to JPH’s mental state:

(a)Dr Michael Davis – forensic psychologist;

(b)Dr Kevin Ong – forensic psychiatrist attached to Forensicare; and

(c)Professor James Ogloff – forensic psychologist.

Drs Davis and Ong were called as witnesses for the applicant.  Professor Ogloff was called for the respondent.  All prepared reports which were tendered as part of their evidence.[39]

[39]Report of Dr Michael Robert Davis, dated 8 May 2012; Addendum Report of Dr Michael Robert Davis, dated 17 June 2013; Report of Dr Kevin Shyong-Tze Ong, dated 6 June 2012; Report of Dr Kevin Shyong-Tze Ong, dated 10 August 2012; Addendum Report of Dr Kevin Shyong-Tze Ong, dated 27 September 2013; Report of Professor James Ogloff, dated 11 November 2012; Report of Professor James Ogloff, dated 30 September 2013.

1. Each expressed the view that the respondent presented a really significant risk to the public.

·     “The configuration of risk factors…indicates that (JPH) previously had many difficulties across all five domains of risk factors (sexual violence history, psychological adjustment, social adjustment, and manageability).  There has been very little change in (JPH’s) risk factors since being placed on the ESO.  Indeed, it could be argued that his risk has increased since our first assessment interview in March 2009 because he has since been taken off anti-libidinal medication for medical reasons.[40]  Moreover, many of (JPH’s) risk factors appear to be chronically problematic, particularly his personality disorder, sexual deviance, violent ideation, lack of insight, lack of non-intimate relationship and poor coping skills.”[41]

·     “It is my opinion that the configuration of risk factors, and the information available to me indicates a high and chronic risk of sexual recidivism.”[42]

·     “An analysis of (JPH’s) previous crimes suggests that any future sexual offending is most likely to take one of two forms.  First, there are the more physically violent sexual offences that are driven to some extent by sexually sadistic fantasies…(It) should be noted that despite the overt violence in his two most recent offences, (JPH) has not yet acted out his sadistic fantasies in full.  A second form of possible future sexual offending will involve [JPH]’s desire to make females feel uncomfortable, humiliated and degraded by masturbating in front of them and discussing this and other sexual topics with them”.[43]

·     “From the information available to me, it is my opinion that (JPH) continues to present a high risk of sexual re-offending if he is not made subject to an Order under the Act.  As shown by the recent incident in 2010 within the ESOTAC compound involving a female officer, even when under supervision, (JPH) has difficulty controlling his impulses in an appropriate manner when given the opportunity to take advantage of a vulnerable potential victim.”[44]

·     “Based on the information available to me (JPH) presents a high risk of reoffending sexually in the future.  This means that he is significantly more likely than the typical sex offender to re-offend.”[45]

·     “Unfortunately (JPH) does not seem to have benefitted significantly from rehabilitation programs aimed at reducing his risk of sexual offending.  …(JPH’s) case is particularly difficult given his sexual paraphilia, his limited level of intellectual functioning and his psychopathic personality disorder.”[46]

·     “The progress in (JPH’s) case is particularly unfortunate.  He has shown very limited ability to control his inappropriate sexual impulses, even during incarceration and while under supervision.  While he has apparently had greater success when prescribed synthetic hormone treatment (i.e. Depo Provera) the side effects of the medication are extreme for him.”[47]

[40]Anti-libidinal medication was discontinued as it was thought to be responsible for the respondent suffering deep vein thrombosis.

[41]Report of Dr Davis, 8 May 2012 at [196].

[42]Ibid at [197].

[43]Ibid.

[44]Report of Dr Ong, 10 August 2012.

[45]Report of Prof. Ogloff, 11 November 2012 at [110].

[46]Ibid at [113].

[47]Ibid at [117].

1. These reports were of some antiquity by the hearing date but all three witnesses gave oral evidence and were cross-examined. All confirmed their earlier assessments of risk.

Section 35

1. I am satisfied to a high degree of probability that the respondent is an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community. It follows that I am satisfied that a risk of the nature contemplated by s 35(1) exists. I proceed to determine the issue of risk under s 36(1).

Section 36

1. I have observed that the argument before me focussed on whether the risk could managed to an acceptable level by a new supervision order or whether that risk would remain unacceptable where managed by anything less than a detention order.

1. The respondent contended, inter alia, that the applicant had failed to demonstrate that the risk he posed was would be unacceptable unless a detention order were made.  He submitted that he has been on an ESO since 2009, that it has continued uneventfully (at least in recent times), and that practical arrangements at Corella Place are sufficient to manage the degree of risk he presents.  He submitted that in light of the serious consequences a detention order will have for him I ought not be satisfied that the applicant has made out its case to the high standard required.

1. The applicant submitted that the respondent’s current ESO, conditioned as it is, is in many respects much closer to a detention order (unavailable before the enactment of the 2009 Act) than to an ESO.  The applicant further submitted that the available accommodation arrangements if a supervision order were made are incapable of mitigating the proven risk to an acceptable degree. It is necessary to examine briefly the evidence relating to the following:

(a)JPH’s current ESO arrangements;

(b)the practical effect of a new supervision order; and

(c)the practical effect of a detention order.

This will involve consideration of the four residential options presently available at the Hopkins Correctional Centre.[48]

JPH’s current ESO arrangements

[48]On Thursday 7 November 2013 a view was conducted to the Hopkins Correctional Centre. Together, the parties drafted and then filed a document titled ‘Agreed Facts in Relation to ‘View’ of New Greenhill, Temporary Greenhill, ESOTAC and Corella Place’. This document summarises what the parties saw, heard and otherwise noticed during the inspection of the facilities.

1. As I have observed, the respondent is currently housed at ESOTAC, which is a secure residential facility that houses persons subject to ESOs.  The facility was established to deal with the small number persons subject to ESOs who were either unable to secure accommodation within the community or whose risk profile necessitated that they reside in a secure facility.[49]

   [49]Affidavit of Janice Margaret Shuard, 15 August 2012, at [5]-[7]; this affidavit was adopted by the affidavit of Jennifer Ann Hosking, 4 September 2012, at [20].

1. ESOTAC is located on de-gazetted land.  It is, therefore, part of ‘the community’.  It is located within the secure perimeter fence at the Hopkins Correctional Centre but is separated from the prison by internal cyclone fencing.  It follows that leaving ESOTAC means entering the prison.

1. ESOTAC was established to accommodate persons subject to supervision orders.  In reality, one of its functions has been to provide for the effective detention of a small number of dangerous offenders at a time when detention orders were not legally available.  The security of the facility reflects this fact.  Leaving to one side the alleged incident in 2010, the parties agreed that this facility has successfully managed the respondent’s risk of offending.

1. Corrections Victoria now offers two distinct accommodation options that, they say, recognise the clear distinction between supervision and detention under the 2009 Act.[50]  As I have explained, the transition from the old regime to the new means that ESOTAC will be closed at the determination of this application.  Previous residents of ESOTAC have been relocated to Corella Place or have obtained other accommodation within the community.

   [50]Ibid, at [14].

1. The result is that the respondent is the only person resident at ESOTAC.  His cat is permitted to live with him.  So too are his birds.  He lives independently, which is another way of saying he lives alone.

The practical effect of a new supervision order

1. In theory, a supervision order could be imposed that did not require the respondent to reside at a residential facility.[51]  It was not, however, disputed that if a supervision order is to be made in respect of the respondent a condition of that order would be that he reside at a residential facility.  That facility would be Corella Place.

   [51]The 2009 Act, s 17(1)(a).

1. Corella Place is a 40-bed ‘non-secure’ residential facility for persons on supervision orders who have not been able to obtain suitable accommodation within the community.[52]  It is located next to the Hopkins Correctional Centre, outside the prison walls. It is of residential design, resembling a small gated community. Residential units are positioned in a horse-shoe configuration around shared open spaces.

   [52]Affidavit of Janice Margaret Shuard, 15 August 2012, at [14]; affidavit of Andrew Reaper, 2 October 2013, at [7].

1. The primary purposes of Corella Place are to enhance community safety, reduce re-offending, provide supported accommodation for offenders and to facilitate their transition to independent housing.[53]  To this end:

Corella Place is not institutional in appearance or operation, and promotes a normalised environment that encourages the development of residents’ independent pro-social living skills. This includes residents taking individual responsibility for maintain their living environment to an appropriate standard. Residents are community members and within the parameters of their orders, they are encouraged to lead independent and normalised lives as far as it is possible to do so.[54]

[53]Exhibit ‘JAH-2’ to the affidavit of Jennifer Ann Hosking, 4 September 2012: ‘Local Operating Procedure No: 5.8/1 – Corella Place Mission Statement’.

[54]Ibid.

1. Corella Place was designed to maximise the treatment and rehabilitation of offenders while imposing the minimum necessary interference with liberty, privacy or freedom of movement.  These aspirations are consistent with the primary and secondary purposes of the 2009 Act, despite the fact that physical security at Corella Place has been kept to a minimum.  This consistency reflects the limited function of a residential centre in the broader context of the statutory response to serious sex offending and is consistent with s 15(6)(a) of the 2009 Act, which ensures a degree of parsimony in the fixing of additional conditions under supervision orders.[55]

   [55]See, Nigro at [199].

1. I make the following observations of security arrangements at Corella Place.  I consider these observations to be uncontroversial.

·     There are no physical security or containment features built into the facility. There is no secure perimeter fence, only pool type fencing around the facility;

·     The entry gates to the facility are open during daylight hours and there is no physical barrier to prevent a resident departing. After hours, a resident may request the gates be opened by pressing a button;

·     Curfews are imposed that require residents to be in their own units at certain times. Residents are not, however, locked in by staff. Residents have keys to their units;

·     There is no secure entry/exit point or barrier control with facilities to control screening of visitors, staff and/or offenders;

·     The accommodation, grounds and amenities are not under any form of closed circuit TV (‘CCTV’) surveillance.  There are, however, at least four CCTV cameras at the entrance to the facility that monitor the car park and the breezeway between the interview rooms and administration building;

·     There is no supervision post with a line of sight to all units and common areas;

·     Residents are free to move around the facility including the outdoor areas, other accommodation units and common rooms and can attend the staff offices and interview rooms;

·     Residents are electronically monitored.

1. This last topic was the subject of extensive in-camera examination at the hearing of the application.  Mr Andrew Reaper, Deputy Commissioner of the Offender Management Division, Corrections Victoria, gave evidence about the operational capacities of the Global Positioning System (GPS) and Radio Frequency (RF) monitoring technologies in use at Corella Place.  The examination of Ms Jennifer Hosking also touched on these topics, although in a limited way.

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1. It is necessary to say something about staffing and staff powers at Corella Place. Staffing has an important part to play in risk management. Staff at Corella Place are Community Corrections staff, not prison officers.  Many staff members work in a clinical, rather than custodial, capacity.

1. Staff have only limited coercive powers under the 2009 Act.  Under s 137 they may give a resident such reasonable instructions as are necessary to ensure:

(a)the good order of the residential facility; or

(b)the safety and welfare of offenders or of staff of the facility or visitors to the facility; or

(c)compliance with the conditions of the supervision order; or

(d)compliance with any directions given by the Adult Parole Board to the offender in accordance with the supervision order.

The power to give instructions includes the power to give instructions outside the residential facility provided the instruction is necessary to give effect to the supervision order.[56]

[56]The 2009 Act, s 137(2).

1. The power to enforce instructions is equally limited, if not more so. Under s 146 a supervision officer may only use reasonable force to compel a resident to obey an instruction if the supervision officer believes on reasonable grounds that force is necessary to:

(a)prevent the offender or another person being killed or seriously injured; or

(b)prevent serious property damage.

1. There is, then, a serious question as to whether staff could use force to prevent sexually inappropriate behaviour where this behaviour was not coupled with a risk of death or serious injury.  In the respondent’s case this question may be academic given the persistently violent nature of his sexual offending.  There is, however, little scope for Corella Place staff to physically detain an offender should they choose to abscond from the facility.  In such circumstances Corella Place staff must contact the police.

1. The staff profile presents risks of its own.  The respondent poses a high and ongoing risk of sexual offending against women of all ages.  I accept that if he is placed at Corella Place he would, at least occasionally, have contact with this victim group.  I also accept that the respondent’s clinical history demonstrates that he has engaged in sexually inappropriate behaviour and/or offending against women he encounters in a professional capacity.

1. At the time of the hearing of the application Corella Place had a staff of 51.  Of these, eight staff members were female.  The facility also receives weekly visits from the Victorian Association for the Care and Resettlement of Offenders (VACRO).  One of the four VACRO personnel who regularly attend at Corella Place is female.  A number of other, assorted professional or clinical staff are or will be female. Corrections staff, such as Ms Hosking, will also visit the facility from time to time.

The practical effect of a detention order

1. The legal effect of a detention order would be to commit the respondent to detention in a prison for the period of the order.[57]  An offender on such an order must be treated in a way that is appropriate to their status as an unconvicted prisoner.[58] Subject to exceptions, the general rule is that they must be detained separately to prisoners undergoing custodial sentences.[59]

   [57]The 2009 Act, s 42.

   [58]Ibid, s 115(1).

   [59]Ibid, s 115(2) and (3).

1. A purpose-built facility for serious sex offenders on detention orders is under construction at the Hopkins Correctional Facility.  The anticipated occupation date for this facility, the Greenhill Detention Unit, is May 2014.[60]

   [60]Affidavit of Andrew Reaper at [13].

1. A temporary facility is available to accommodate detention order prisoners in the interim.  This is a 16-bed facility within the secure perimeter at the Hopkins Correctional Facility.  It is separated from the prison, though it currently houses convicted prisoners.  If a detention order were made these prisoners would be relocated unless the respondent chose to share the precinct with them.[61]

   [61]Ibid, at [14].

1. There are currently no recreational or other facilities in place at the unit.  Ms Hosking – and through her, Ms Shuard – deposed that if a detention order was made Corrections would discuss with the respondent which of the recreational facilities at ESOTAC he would like to have in the temporary Greenhill unit.

1. I do not propose to consider this temporary Greenhill facility in greater detail. Counsel did not dwell on it in submissions.  If a detention order were made the respondent’s residency there would be short, at most a matter of months.  It is, of course, a fact in the mix.  

1. The new Greenhill Detention Unit is also located within the Hopkins Correctional Centre grounds.  At capacity, it will house eight offenders, in six units.  It is a physically secured area of the prison.  Convicted prisoners will not be able to enter the Greenhill facility.  There will be strict controls on when and how offenders detained at the facility may leave and access other areas of the prison.[62]  Visitor access will be subject to similar controls.[63]  It is said that Corrections officers will be able to maintain a line of sight to all common areas and individual residential units from their office.[64]  CCTV will operate in common outdoor areas.[65]

   [62]Affidavit of Janice Margaret Shuard, 15 August 2012, at [20.2]

   [63]Ibid at [20.4].

   [64]Ibid.

   [65]Ibid.

1. Ms Shuard described the anticipated amenities at Greenhill in her affidavit. I adopt the following from paragraph 23 of that affidavit:

23.The Greenhill facilities will include accommodation for eight residents with:

23.14 x 1 bedroom units and 2 x 2 bedroom units. These units are fully self-catering, including kitchen and laundry facilities.

23.2Open plan dining, kitchen and living room space with TV’s provided.

23.3Key board and computer screen connected to a central server to allow for educational programs and a resource library via a prisoner intranet.

23.4Personal laundry with washing machine and clothes lines.

23.5Recreation building divided into two areas, one with soft furnishings and TV and the other with work benches and a small kitchenette.

23.6Outdoor BBQ facility and two outdoor fitness stations and a walking track.

23.7In addition to being separate from the rest of the prison population, those persons who will be housed in Greenhill will be subject to different standards and guidelines that will operate to recognise the fact that their detention is for preventative and protective purposes only, rather than punishment for their offences. These include:

23.1.1Being able to self-cater, including training in food hygiene and cooking skills, thereby promoting their independent living skills for when they are able to be released in the community.

23.1.2Having the option to access the Canteen at a separate time from convicted prisoners.

23.1.3Being able to wear their own clothing.

23.1.4Being able to have visits separate from convicted prisoners.

1. The respondent did not challenge these descriptions when Ms Hosking, who adopted Ms Shuard’s affidavit, was cross-examined.  The respondent did, however, put a number of propositions to her, which she accepted.  I set these out now.  If a detention order is made and the respondent was detained at Greenhill:

·     He would no longer have access to his mobile phone, which he currently uses to call his fiancé;[66]

[66]Mr Reaper noted that the respondent would, however, be permitted to use a prison phone. He said a phone would be available for use within the Greenhill unit. He said the respondent would be required to pay for the cost of phone calls.

·     He would no longer have access to many of his garden utensils;

·     If he were to have access to dangerous cooking utensils, such as knives, these would be tethered to the bench;

·     If he wished to keep his pets with him he would require the permission of the General Manager of the Hopkins Correctional Centre, and;

·     He would not be permitted to smoke within his unit, though he would be permitted to smoke in the common outdoor areas;

·     He would be confined to his unit between the hours of 20:00 and 07:00.

1. Offenders at Greenhill will have access to offender treatment and rehabilitation programs in an adjacent therapeutic accommodation area.  If they wish, they may interact with other prisoners participating in these programs.  There may be only limited opportunity to engage in treatment and rehabilitation programs if they do not wish to mix with convicted prisoners.

1. Detention order prisoners may also apply for limited leave permits.  These would allow a prisoner to be temporarily removed from a prison for various reasons, including the administration of justice, health, rehabilitation and treatment, attendance at funerals and visits to family members in the event of serious illness.[67] The maximum duration of a permit is four hours, not including travel time.[68]

   [67]Exhibit ‘JAH-3’ to the affidavit of Jennifer Ann Hosking, 2 November 2012: ‘Corrections Administration Permits for Detention Order Offenders’.

   [68]Ibid.

1. A detention order prisoner may choose to be accommodated with the general prisoner population.[69]  In certain circumstances detention order prisoners may be accommodated with convicted prisoners even though they have not elected to be so accommodated.[70]  If an offender was at risk of self-harm it would be necessary to relocate them. Residential units do not permit the level of visual supervision required where a person is at risk of self-harm.  An offender might also be relocated if their security rating became such that it exceeded the security rating permitted at Greenhill.

   [69]The 2009 Act, s 115(3)(c).

   [70]Ibid, s 115(3)(a) and (b).

1. Finally, and depending on their treatment needs, an offender may need to be relocated to Marngoneet Correctional Centre in order to attend an intensive Sex Offender Treatment Program as part of their rehabilitation.[71]

Is the respondent an unacceptable risk of committing a relevant offence if a detention order is not made?

[71]Affidavit of Janice Margaret Shuard, 15 August 2012, at [25].

1. As I have said, the threshold test of unacceptable risk requires the balancing of competing considerations.  On the one hand these include the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates; on the other, the impact of a detention order on the offender and on his rights.

Risk

1. The respondent presents a ‘high and chronic risk of sexual recidivism.’[72]  He is ‘significantly more likely than the typical sex offender to re-offend.’[73]  The respondent’s criminal history is one of persistently violent, sexual offending and I consider there to be a real possibility that any future offending will involve serious injury or death.

   [72]Report of Dr Davis, 8 May 2012, at [196].

   [73]Report of Prof. Ogloff, 11 November 2012, at [110].

1. I am of the view that environmental security is required to adequately manage the respondent’s risk.  The respondent has not responded significantly to rehabilitation or treatment.[74]  His case is complicated by ‘his sexual paraphilia, his limited level of intellectual functioning and his psychopathic personality disorder.’[75]  These and other clinical risk factors appear to be chronically problematic.[76]  For medical reasons, anti-libidinal medications are not available to him.

   [74]Ibid at [113].

   [75]Report of Dr Ogloff, 11 November 2012, at [113].

   [76]Report of Dr Davis, 8 May 2012, at [196].

1. A simple distinction may be drawn between two categories of risk the respondent would present if he were resident at Corella Place.  The first is the risk of offending while the respondent is within the facility.  As I have observed, a significant percentage of staff and visitors at Corella Place are women.  This is unlikely to change.  In the past the respondent has offended against women he encounters in a professional capacity.  This offending is occasionally planned although frequently opportunistic.[77]  As Corella Place presently operates, the movements of staff, visitors and residents are subject to few controls.  The respondent would therefore be in at least occasional contact with his victim group, adult women.  In my view, supervision of the kind currently employed at Corella Place would not be sufficient to reduce the respondent’s risk of offending against these women to an acceptable level.  This is demonstrated by the respondent’s previous offending: in 2010, an alleged offence occurred while the respondent was being supervised at ESOTAC; in 2004, he was convicted of offences that occurred while he was incarcerated.

   [77]Dr Ong opines that the respondent ‘has difficulty controlling his impulses in an appropriate manner when given the opportunity to take advantage of a vulnerable potential victim.’: Report of Dr Ong, 10 August 2012.

1. Second, there is the risk that the respondent will abscond from Corella Place and commit further, relevant offences against a member or members of the community.  I have already described the security arrangements at Corella Place.  There is no secure perimeter fence. GPS and RF monitoring bracelets are easily removed.

1. Mr Reaper deposed that between March 2010 and September 2013 eight offenders had absconded from Corella Place.[78]  By the hearing of this application, in November, there had been one further incident of absconding.  At least one resident evaded authorities long enough to travel interstate.[79]  There is also some evidence that the respondent previously absconded from a residential drug rehabilitation facility while on Parole in 1999.[80]

   [78]This figure was current to 19 September 2013.

   [79]Transcript at 131.

   [80]Exhibit ‘JAH-12’ to the affidavit of Jennifer Ann Hosking, 4 September 2012: ‘Parole Report: Department of Corrective Services’.

1. Ms Hosking gave opinion evidence concerning the capacity of Corella Place to manage these risks.[81]  It was her opinion that Corella Place would be unable to manage the respondent’s risk of re-offending.  She agreed that the actual opportunity for the respondent to be alone with a woman would be very low.[82] She stressed that her concern was that the risk could not be eliminated completely. Section 36(1) does not turn on whether there is a risk. The test is whether the risk is unacceptable.

   [81]Ms Hosking gave opinion evidence concerning the operational capacity of Corella Place to manage the respondent’s risk. In her various affidavits, but in particular in her affidavit of 4 September 2012, Ms Hosking summarised large portions of the evidence given on affidavit by the medical experts in this case. Ms Hosking is not qualified to give an expert opinion on the respondent’s clinical risk. She is, however, entitled to set out the foundation for her opinion. To the extent that her affidavit went beyond this, and purported to offer a medical opinion, it was inadmissible and I have not considered it.

   [82]Transcript page 270.

1. Ms Hosking also considered what measures might be taken to reduce the respondent’s risk of offending at Corella Place.  At the hearing of the application Ms Hosking stated her opinion that there were no measures that could be taken to sufficiently reduce the risk.  Again, at the heart of this opinion is the concern that ‘nothing is 100 per cent safe’.[83]  When pressed, Ms Hosking said it might be possible to lock unit doors at night, or increase staff and CCTV surveillance.

   [83]Transcript page 277.

1. In her affidavit of 4 September 2012, Ms Hosking was more compromising.  She said that ‘significant’ changes would be necessary to manage the respondent’s risk of offending at Corella Place.[84]  I infer from this that she considered these significant changes to be logistically possible.  She opined that these changes would have an equally significant detrimental impact on other residents at Corella Place.  Increasing security for the respondent would, in her opinion, ‘impact upon the culture within Corella Place, resulting in it becoming more akin to a custodial environment.’[85]  Ms Hosking, and through her, Ms Shuard, deposed that it was possible these changes would violate s 15(6)(a) of the 2009 Act.[86]  That is a submission of law, not an expert opinion. I do not take it into account.

Competing Considerations

[84]Affidavit of Jennifer Ann Hosking, 4 September 2012, at [109]

[85]Ibid.

[86]Additional conditions of a supervision order must constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions.

1. I must balance the nature and degree of this risk against a range of competing considerations.  Only then can I say whether the risk will be unacceptable if a detention order is not made.

1. I take into account the conceptual value of the respondent’s right to liberty and autonomy, as I do the other rights afforded him under the Charter and at Common Law.  If a detention order is made these rights will be subject to significant limitations. The respondent will be a prisoner.

1. I accept that a detention order will have some adverse impact on the respondent’s rehabilitation and I accept that Corella Place is theoretically better equipped to deliver treatment and other rehabilitative programs.  Having said this, I am satisfied that at Greenhill and Marngoneet Correctional Centre the Corrections authorities have made provision for the rehabilitation and treatment of detention order prisoners.  Limited leave permits allow for off-ground treatment.  The applicant would, for example, be able to continue treatment with the Victorian Institute of Forensic Mental Health (Forensicare).

1. Facilitating the treatment and rehabilitation of relevant offenders is an express purpose of the 2009 Act. The impact of a detention order on an offender's rehabilitation and treatment is one of the competing considerations this Court must balance when it determines whether there is an unacceptable risk under s 36(1). The weight this consideration is given must, however, reflect the fact that this is a secondary or subordinate purpose of the Act.

1. I am also cautious not to overstate the effect detention will have on the respondent’s rehabilitation.  The medical experts in this case have been unanimous in their opinion that the respondent has derived little clinical benefit from treatment and rehabilitation.  I accept, however, that continued engagement of this kind may be significant to the respondent in other ways, for instance at a personal level.  I also accept the evidence of Dr Ong that if the respondent is transferred to a more restrictive environment than ESOTAC, he ‘would be at risk of worsening depressive symptoms, and further disengagement with any treatment (however minimal those gains are perceived to be).’[87]

   [87]Report of Dr Ong, 6 June 2012, at 18.

1. A detention order would have consequences for the respondent’s quality and enjoyment of life.  In theory the most significant of these would be his continued isolation.  Unless he chose to mix with the general prison population at Greenhill he would, at least for the time being, live alone. Continued isolation ‘will likely be damaging to him over time.’[88]

   [88]Report of Prof. Ogloff, 30 September 2013 at [121].

1. I accept that, from Greenhill, it would be more difficult for the respondent to maintain his relationship with his fiancé.  This relationship is dependent on their regular telephone contact.  In this way the relationship has been sustained since 2010.  At Greenhill the respondent would no longer have access to his mobile telephone.  He would have only limited capacity to pay for calls from the facility’s landline.  It seems that the respondent would continue to be eligible to receive his pension although it is unclear what attitude the Department of Human Services would take to the making of a detention order.

1. These are real consequences that would attend the making of a detention order, however a bald comparison between the facilities at Corella Place and Greenhill is misleading.  As I have said, if a supervision order were made and the respondent required to reside at Corella Place significant operational changes would be necessary. It is probable that the respondent would often be confined to his unit.  It is unlikely he could have unsupervised access to the grounds or other public areas.  He would require almost constant surveillance.  These and other measures would inevitably isolate him from other residents and decrease his ability to engage in treatment and rehabilitation.  His rights would be subject to significant limitations.  It is likely that some rights, such as the right to privacy, would be more significantly limited at Corella Place than at Greenhill.

1. I balance the nature and degree of the respondent’s risk against these competing considerations.

Unacceptable Risk

1. I am satisfied to a high degree of probability that the risk of the respondent committing a relevant offence will be unacceptable unless a detention order is made. The likelihood of the respondent committing a relevant offence, though less than a likelihood of more likely than not, is sufficiently high given the gravity of his offending as to compel me to this conclusion.

1. I do not accept Ms Hosking’s opinion that Corrections could not take reasonable steps to reduce the risk of offending within Corella Place and I consider that this risk, within the facility, could be reduced to an acceptable level with only relatively minor disruption to staff and other residents.  There is, however, the intractable fact that the respondent would be free to leave if he pleased and in my view there is a very real risk that he will leave.  Community Corrections officers would be powerless to restrain him and there is no guarantee that local police would be able to respond promptly to a call.

1. I consider that the adverse impact on the respondent of a detention order is not by itself sufficient to render the risk acceptable, nor is it when combined with the inevitable consequence that his rights under the Charter and at Common Law will be subject to significant limitations. Section 36(1) calls for the balancing of competing considerations; it is not a process of addition and subtraction. In that way the exercise is similar to the instinctive synthesis undertaken by a sentencing judge.

Submissions under the Charter Act

1. The respondent further submits that the combined effect of the 2009 Act, the Corrections Act and the Corrections Regulations is to infringe one or more of his rights under the Charter. It is said that the regime established for the management of detention order prisoners under these instruments is inconsistent with ss 22(1), (2) and (3) of the Charter, as well as s 21(2). Sections 22(1), (2) and (3) concern the humane treatment of persons deprived of liberty; s 21(2), the freedom from arbitrary arrest and detention.

1. The respondent seeks declarations of inconsistent interpretation under s 36 of the Charter in respect of each of these rights. The respondent also submits that this alleged rights inconsistency is a factor relevant to the Supreme Court’s discretion to make or refuse to make a detention order under s 36(3) of the 2009 Act.

1. The Director resists each of these submissions. So too does the Attorney-General intervening. Together, they submitted there was no inconsistency between the statutory provisions concerning the making and management of detention orders and ss 22 and 21(2) of the Charter Act. Further, they submitted that the incompatibility of statutory provisions with the Charter Act would not entitle the Court to refuse to exercise its discretion to grant a detention order if it were otherwise minded to do so. Finally, they submitted it was not open to the Court to make a declaration of inconsistent interpretation.

1. For the Director, this was so because no question of interpretation arose in relation to the impugned provisions of the 2009 Act. The Director submitted that the power to make a s 36 declaration was tied to the interpretation of statutory provisions under s 32. The Director took the Court to the judgments of French CJ and Crennan and Kiefell JJ in Momcilovic v The Queen.[89]The Attorney-General, on the other hand, argued that if the respondent sought a declaration of inconsistent interpretation he was required to state, with clarity, the section or sections in respect of which the declaration was sought and the manner in which the interpretation of those provisions was inconsistent with rights protected by the Charter.  These submissions may be the one submission and they did not occupy a great deal of court time.

   [89](2011) 245 CLR 1 at [88] (French CJ) and at [535], [567] and [583] (Crennan and Kiefel JJ).

1. The submissions touch upon a number of issues, some of them unresolved in the authorities. It will not be necessary to settle them all here.

Arbitrary Detention

1. The respondent submits that the making of a detention order will result, or is liable to result, in his arbitrary detention contrary to s 21(2) of the Charter Act. Specifically, he argued that s 42 and Part 9 of the 2009 Act, combined with various provisions of the Corrections Act and Regulations, create a regime that ‘permits’ or ‘allows’ the arbitrary detention of persons subject to detention orders.

1. As I have observed, under s 42 of the 2009 Act, the effect of a detention order is to commit the relevant offender to detention in a prison for the period of the order. Part 9 of the Act deals with the management of those offenders. Section 114 makes the Adult Parole Board responsible for reviewing and monitoring their progress. Section 115 deals, broadly, with the status of these offenders. I will summarise its contents as they are relevant to this aspect of the application.

1. Section 115(1) provides that a person subject to a detention order or interim detention order must be treated in a way that is appropriate to their status as an unconvicted prisoner. This requirement is subject to measures that are reasonably necessary to maintain the management, security and good order of the prison as well as the safe custody and welfare of the offender or any other prisoners. Subsection (2) requires persons subject to these orders to be detained in a separate area or unit of the prison to persons who are serving custodial sentences. This is subject to subsection (3), according to which detention order prisoners may be accommodated or detained with persons serving custodial sentences if:

(a)it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation and other group activities of this kind; or

(b)it is necessary for the safe custody or welfare of the offender or prisoners or the security or good order of the prisoner; or

(c)if the offender has elected to be so accommodated or detained.

1. Finally, s 116 provides that an offender on a detention order is to be managed under the Corrections Act 1986.  This is subject to the requirements of Part 9 of the 2009 Act that I have just described.

1. The significance of this section, the respondent submitted, was that a person in respect of whom a detention order is made will require security classification in accordance with Division 6 of Part 3 of the Corrections Regulations 2009 (Vic). The respondent drew the Court’s attention to the following provisions:

22       Classification of prisoners

A prisoner's classification—

(a)includes decisions about a prisoner's security rating, placement and sentence plan; and

(b)may include reasons for decisions made under paragraph (a), directions as to future placement reviews and conditions applicable to the decision.

(2)Subject to this Division, a prisoner may be given one of the following security ratings—

(a) high security;

(b) maximum security;

(c) medium security;

(d) minimum security.

…

24 Review and assessment committees

…

(2)Subject to any rules determined by the Secretary, a review and assessment committee may vary the classification of a prisoner or make recommendations to a sentence management panel regarding the classification of a prisoner.

…

(6)The Secretary or a sentence management panel may at any time vary the classification of a prisoner by a review and assessment committee.

1. In written submissions, the respondent then advanced nine propositions in support of their contention that detention according to this regime would be arbitrary. I set these out in full:

The detention of a person subject to the regime set up by the Corrections Act and Corrections Regulations is arbitrary because:

(a)The requirement that an unsentenced and unconvicted person be classified according to criteria applied to sentence prisoners means that a person may be held in maximum security or high security;

(b)Such a person would be ineligible for detention at the Greenhill facility or precinct, set up to ensure that detention order prisoners are accommodated separately from sentenced prisoners;

(c)Such a person in maximum or high security will be accommodated with high risk prisoners convicted of the most serious offences;

(d)A person’s security rating is open to variation at any time he or she is detained

(e)The court has not control over the conditions in which a person is detained once an order is made;

(f)A person classified as maximum security is ineligible for rehabilitation and transition permits, except in exceptional circumstances. Exceptional circumstances is not defined. Access to the transitional arrangements and rehabilitative activities would be extremely limited;

(g)Such detention is, or would be, oppressive, unreasonable and disproportionate;

(h)     Such detention is not “appropriate” for a person who is unconvicted;

(i)A person subject to the Corrections Regulations may be subject to serious interferences with their Charter rights, including being subject to:

(i)The use of dogs (Part 3, Division 2);

(ii)The use of restraints, including handcuffs, arm restraints, leg restraints and belts (Part 3, Division 3);

(iii)Control of communication (Part 3, Division 4);

(iv)Regulation of money (Part 3, Division 9);

(v)Regulation of property (Part 3, Division 10);

(vi)Prison offences (Part 4, Division 1);

(vii)Strip searches (Part 6, Division 1).

1. Two legal issues occupied counsel’s time during oral submissions. The first concerned the correct interpretation of the term ‘arbitrary’ as it appears in s 21(2) of the Charter Act; the second, whether that section, as an instance of the right to liberty and security of the person, is concerned with the fact or conditions of detention. Ultimately, the s 21(2) question will not turn on the resolution of either of these issues. It is nevertheless necessary to understand something about them.

‘Arbitrariness’

1. In Victoria, Judges have taken two approaches to the interpretation of the term ‘arbitrary’.  The first, urged upon me by the Director and Attorney-General, adopts the ‘ordinary’ or dictionary meaning of the word.  The second embraces a broader notion of arbitrariness that has developed in the international and comparative domestic human rights jurisprudence.

1. In WBM v Chief Commissioner of Police[90] Kaye J considered the meaning of arbitrary in the context of s 13(a) of the Charter Act, the freedom from arbitrary interference with privacy, family, home or correspondence. His Honour concluded that under the Charter Act ‘arbitrary’ referred to a decision or action that was not based on any relevant identifiable criterion but that stemmed from an act of caprice or whim.[91]  In reaching this conclusion, his Honour had the following to say of two earlier decisions[92] that had deferred to the human rights interpretation:

…[That] definition of ‘arbitrary’ does not accord with the plain ordinary meaning of it. Of necessity, it imports a significant degree of judicial value judgment, which is not warranted by the Charter… To do so would be to introduce a degree of judicial policy making into the application of s 13(a) of the Charter, which is not warranted by its plain and unambiguous terms, and which is inconsistent with the established role of the judiciary in this State.[93]

[90][2010] VSC 219 (‘WBM’).

[91]Ibid at [51].

[92]Nolan v MBF Investments Pty Ltd [2009] VSC 244; Re Kracke and Mental Health Review Board (2009) 29 VAR 1 (‘Kracke’).

[93]WBM at [53].

1. In PJB v Melbourne Health & Anor[94] Bell J rejected this approach.  Though his Honour had previously considered the issue in Kracke, the Court of Appeal’s decision in R v Momcilovic, which clarified the relevance of s 7(2) of the Charter Act to statutory construction, meant it was now necessary to re-examine the scope of s 13(a).

   [94][2011] VSC 327 (‘PJB’).

1. Bell J held that in s 3(a) and elsewhere in the Charter the word ‘arbitrary’ does not possess its ordinary or dictionary meaning.  Instead, it bears the meaning embodied in s 17(1) of the International Covenant on Civil and Political Rights (‘ICCPR’).[95] His Honour reasoned that the express terms of the Charter Act, the report of the Human Rights Consultative Committee, the Attorney-General’s second reading speech and the explanatory memorandum made it very clear that the rights contained therein were drawn, in large part, from the ICCPR.[96] This, in combination with s 32(2) of the Charter Act,[97] led his Honour to conclude that ‘Parliament intended to place in s 13(a) the concept of arbitrariness which is embodied in the protection afforded by art 17(1) of the ICCPR’. [98]

   [95]Article 17(1) of the ICCPR provides: ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.’

   [96]PJB at [78].

   [97]Section 32(2) of the Charter provides: ‘International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.’

   [98]PJB at [79].

1. Bell J canvassed various international, foreign national and domestic authorities that dealt with the interpretation of art 17(1).  He concluded that arbitrary interference, in the ICCPR and in the Charter:

…extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.[99]

[99]Ibid at [84].

1. An appeal in WBM was heard and determined in 2012.[100]  By this time PJB had also been decided.  The Court of Appeal was, therefore, equipped with both judgments. Ultimately, the facts in WBM did not drive the Court of Appeal to determine the issue.  In a more recent case, Victorian Police Toll Enforcement v Taha,[101] the same or similar occurred.  Although in that case Tate JA expressed a preference for the human rights approach, Nettle and Osborn JJA, did not consider the issue.  The upshot of all this is that the issue is not settled in this jurisdiction.  For reasons that appear at para [128]ff I also will not be expressing a preference.

Fact or Conditions of Detention

[100]WBM v Chief Commissioner of Police [2012] VSCA 159.

[101][2013] VSCA 37.

1. The Director and Attorney-General submit that the respondent has misconceived the scope and application of s 21(2) of the Charter Act.  Arbitrary detention, they say, is concerned with the arbitrariness of the fact of detention; the respondent’s submissions relate to its conditions.  The Director cited three cases, from foreign jurisdictions, as authority for the proposition that the conditions of a person’s detention cannot make what would otherwise be lawful detention ‘arbitrary’.[102]  The respondent sought to factually distinguish these.

Conclusion

[102]R v Secretary of State, ex parte Hague [1992] 1 AC 58 (HL) at 165 (per Lord Bridge), and 173 (per Lord Jauncey); Zaoui v Attorney-General [Habeas Corpus] [2005] 1 NZLR 577 at [276] per McGrath J (O’Regan J concurring); R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148 at [30] per Lord Bingham, at [85] per Lord Hope cf at [43] per Lord Steyn.

1. The respondent’s arguments on the s 21(2) question fail whether one adopts the broad or narrow construction of the term arbitrary and whether one applies it to the fact or conditions of detention.

1. Section 36 of the 2009 Act involves the balancing of competing considerations. It includes an assessment of the objective gravity of the conduct said to constitute the risk versus the likelihood that that conduct will occur. It also calls for consideration of the offender’s rights, both under the Charter and at common law. In balancing these rights against the nature and degree of the risk a court is, by necessity, applying a test of proportionality to the making of a detention order. As the Court observed in Nigro, “[w]ere it otherwise, any risk would be unacceptable”.[103]

   [103]Nigro at [103].

1. There will always be risk.  If the risk were of a nature and degree that meant it could be reduced to an acceptable level by the imposition of a supervision order it would be arbitrary, in the broad sense of the word, to impose a detention order.  To do so would be out of all proportion to what is reasonably necessary to achieve the primary purpose of the 2009 Act, the protection of the community.

1. But that is not what the Act permits. If the Supreme Court is to make a detention order it must be satisfied that the risk cannot be reduced to an acceptable level if that order is not made (s 36(3)). If the risk can be acceptably managed through the imposition of a supervision order the Supreme Court may make an order under s 36(4) or, alternatively, make no order at all (s 36(5)). But it has no power, in such circumstances, to make a detention order. In this way the Act limits the powers of the Supreme Court to what is reasonably necessary to achieve the primary purpose of the Act.

1. As I have said, the respondent’s arguments under the Charter go to the conditions of detention.  Principally, they concern the respondent’s anticipated security classification in the event a detention order is made.  They also involve speculation about the exercise, by the Corrections authorities, of other powers that might interfere with the respondent’s rights.  These included the use of restraints, the control of property and communication and sanctions for prison offences.  In this way, these submissions were not concerned with the actual conditions awaiting the respondent in the Victorian prison system but conditions that are possible when one has regard to these general custodial powers. 

1. The fact that the 'regime' does not by express provision prohibit the exercise of those powers cannot, of itself, mean that it is inconsistent with the Charter.

1. Each of these powers must be exercised according to law. The Corrections Authorities are bound, under s 38 of the Charter Act, to act in a way that is compatible with human rights; if they make a decision, they must give proper consideration to relevant rights. Section 115 of the 2009 Act provides an additional safeguard, recognising a detention order prisoner’s peculiar status as an unconvicted prisoner. If the corrections authorities were to arbitrarily restrain a detainee or increase his or her security classification they would act unlawfully. But redress, in these circumstances, would be found in s 38 of the Charter Act and by way of judicial review. In the absence of any evidence to the contrary this Court must assume the public authorities will act lawfully.

Is the ‘regime’ set up under the 2009 Act inconsistent with ss 22(1), (2) and (3) of the Charter Act?

1. The respondent submitted that ‘the regime for detention orders set up under the Act is inconsistent with ss 22(1), (2) and (3). In my view this submission suffers from the same vice as the submission concerning s 21(2). Section 22 provides:

22      Humane treatment when deprived of liberty

(1)All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

(2)An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary.

(3)An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.

1. The Corrections authorities are bound under s 38 to administer an unconvicted prisoner’s custody in a way that is compatible with these rights, subject to reasonable limitations. Nothing in the 2009 Act, or the combination of that Act and the Corrections Act and Regulations, means that this is not so. If anything, s 115 of the 2009 Act is protective of these rights. Section 115(1) provides that persons subject to detention orders must be treated in a way that is appropriate to their status as an unconvicted prisoner. Section 115(2) provides that such prisoners must be accommodated or detained separately from prisoners serving custodial sentences, subject to reasonable exceptions. These sections reflect the principles embodied in ss 22(2) and (3) of the Charter Act.

1. As I have said, in the absence of evidence to the contrary this Court must assume the relevant public authorities will act lawfully.

Summary of Conclusions and Orders:

1. I summarise my conclusions:

1.I am satisfied that the respondent poses an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and he is in the community.

2.I am satisfied that this risk would be unacceptable unless a detention order were made. Pursuant to s 36(1) I may therefore make a detention order in respect of the respondent.

3.I consider the impact of the order on the respondent, including the limitations on his rights, to be necessary given the nature and degree of the risk he presents. I do not consider there to be any less restrictive means of managing this risk to an acceptable level. Accordingly, I consider I ought to make a detention order in respect of the respondent pursuant to s 36(3).

4.There is no inconsistency between ss 21(2) and 22(1), (2) and (3) of the Charter Act and the regime established for the management of detention order prisoners under the 2009 Act, the Corrections Act and the Corrections Regulations. It follows that I cannot make a declaration of inconsistent interpretation under s 36(2) of the Charter Act.

5.It also follows that I have not considered the relationship between rights inconsistency and the discretion to make or refuse to make a detention order under s 36(3) of the 2009 Act. There are, however, the general observations at paragraph [33] of these reasons.

1. Pursuant to s 36(3) of the 2009 Act I make a detention order in respect of the respondent.

1. I will hear the parties as to the appropriate form of orders.