Director of Public Prosecutions v JPH (No 2)

The Director of Public Prosecutions brought an application against JPH seeking a detention order under the Serious Sex Offenders (Detention and Supervision) Act 2009. The application was based on the respondent's history of sexual offending and the risk he posed to the community if released. The matter was heard in the Supreme Court of Victoria. The central legal issues before the court were whether the respondent posed an unacceptable risk of committing a relevant offence if a detention order were not made, and whether the legislative regime for the management of detention order prisoners was consistent with the Charter of Human Rights and Responsibilities Act 2006.

The court considered the threshold test for an unacceptable risk as outlined in Nigro & Ors v Secretary to the Dept of Justice [2013] VSCA 213. It found that the test permitted consideration of the impact of the detention order on the respondent. The court determined that there was a real likelihood of further offending by the respondent, with the anticipated gravity of such offences being high. The detention order was expected to have a serious impact on the respondent, making him an unacceptable risk of committing a relevant offence. Consequently, the court made a detention order under the Act.

The court also examined whether the legislative regime for the management of detention order prisoners was inconsistent with the Charter of Human Rights and Responsibilities Act 2006. It found no inconsistency with the freedom from arbitrary arrest and detention or the right to humane treatment when deprived of liberty. The provisions of the legislative instruments creating the regime were consistent with these rights.

The final orders of the court included a detention order under the Serious Sex Offenders (Detention and Supervision) Act 2009, and a finding that the legislative regime for the management of detention order prisoners was not inconsistent with the Charter of Human Rights and Responsibilities Act 2006.