Dojcs v M R
[2024] VCC 1634
•Ex tempore 30 September 2024 (Revised 22 October 2024)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00410
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Plaintiff |
| v | |
| M R | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2024 | |
DATE OF RULING: | Ex tempore 30 September 2024 (Revised 22 October 2024) | |
CASE MAY BE CITED AS: | DOJCS v M R | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1634 | |
RULING
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Subject:Application for interim supervision order
Catchwords: Supervision order application - interim supervision order – residential condition – contravention of supervision order – non-publication order
Legislation Cited: Serious Offenders Act 2008 (Vic)
Ruling: Application granted; condition varied
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms K Argiropoulos SC | Victorian Government Solicitor’s Office |
| For the Respondent | Ms B Proud | Victoria Legal Aid |
HIS HONOUR:
1In this case, I will rule that M R ought be transitioned to the Albion unit. That transition should occur by no later than 8 October. I will also make an order in respect of non-publication in this matter in accordance with s 279. Now to come to the brief reasons.
2The background history in this matter is non-contentious and does not need to be repeated in great detail. Broadly, M R has committed various acts of sexual offending, as set out in the reporting of Dr Reeves, psychologist, and referenced by the applicant's outline of submissions at 6-19. Respondent counsel's brief outline of submissions dated 26 September at paragraph 2.
3As a result of some of that offending, he has been placed on a supervision order since about March 2016. Since that time, he has been in controlled accommodation, currently Corella Place. More recently he has been deemed suitable for transition from Corella to living independently in the community with other certain conditions imposed by a supervision order.
4The parties agree that a supervision order is necessary and to almost all the terms of the order, save for one issue. That issue is about where in the community he is to live and from when. That issue comes into focus with a few other facts about his transition to this point. In 2021 he attempted a transition to live in the community. This lasted some seven weeks and was then abandoned.
5At the beginning of 2024, he was deemed suitable to commence transition to a unit in Albion, Melbourne. This was to be staged over a period of some eight weeks. He commenced on that staged transition in about February 2024 with a few nights in the accommodation and then building up. However, on 10 May 2024, he was arrested for contravening his supervision order and remanded in custody.
6He applied for bail and this was heard before His Honour Judge Lauritsen. Bail was granted, bailing him to the Albion unit, but on that same day His Honour heard a plea to two charges, being very broadly summarised in the following way: (a), that he had had contact with his 16-year-old daughter via phone and on a social media app; (b), he had downloaded various social media applications onto this phone which he was not permitted to do.
7His Honour Judge Lauritsen sentenced M R to time served of about 112 days. On his release that same day, the PSA revoked the direction that he reside at the Albion unit and directed that he return to Corella Place full-time. The supervision order will expire on 2 October 2024. The application before this court is for an interim order to last for four months, while the Secretary and the respondent prepare for the application to renew the supervision order in total.
8Before arriving at the dispute as to the suitability of the Albion property and when M R should begin residing there, however, it is necessary for the court to be satisfied that a supervision order ought be imposed by reason of the Serious Offenders Act. That section of the Act requires the court to be satisfied that M R will pose an unacceptable risk of committing a serious sex offence or a serious violent offence upon release into the community.
9That finding can only be reached if the court is satisfied by acceptable cogent evidence to a high degree of probability that he poses or will pose an unacceptable risk. Having considered the material, I am satisfied that the terms of the Act are made out. In reaching this conclusion, I have had regard to his history, his criminal history of offending and the report of Dr Reeves at Exhibit A1. I have also read and considered the other material tendered at the hearing.
10The legislation broadly concerns s27 of the Act and I will not repeat it. The Secretary's case really focused on the content of the charges to do with M R's contact with his daughter and other young females, allegedly in April and May 2024. That was said in the PSA reason for decision, Exhibit A6, to be that he contacted her - that he contacted his daughter and made sexual suggestions to her. This is alleged to have gone on over several weeks.
11The other assertion that M R had contact with young women aged 13-15 was found not to be reliable. While there is some debate over the severity of the actions taken by M R and leading to his arrest, the plea of guilty was entered on the basis of an agreed summary; see Exhibit R1 at p40.
12That certainly demonstrates that there was lengthy phone contact between M R and his daughter. M R knew that was wrong given the answers he gave in his record of interview; see Exhibit R1, p42 and the last question in particular. The remaining matter of whether M R had downloaded the relevant social media applications is not really in dispute.
13For balance, it should also be noted that other than the social media apps downloaded, there was no material downloaded that was prohibited. To give effect to the purposes of s27 of the Act, the concerns of his daughter also have to be considered. I have read and considered her statement to police at Exhibit R1. Coming to synthesise the matters required by s27 of the Act, I bear steadily in mind the primary purpose of s27, which is the reduction of the risk of the offender reoffending by committing serious sex offences.
14Balanced against that are the other matters set out in sub-ss(2) and (4). A part of that exercise requires the court to take into account those conditions which constitute the minimum interference with the offender's liberty, privacy and freedom. In this case, I consider the evidence of Dr Reeves to be particularly important. She is well experienced in this field and in particular, has been examining and reporting on M R for over five years.
15This gives her a unique insight into his position and her evidence has a particular power. She confirmed that he is well engaged with his treatment, and in fact, his treatment with FIS had been reduced because of his compliance. He had also in her words, 'Taken ownership of his breaches', which she described as a positive. While it was suggested by Ms Newman from the PSB that M R had offended very quickly after the start of transition, this did not in Dr Reeves' view alter his risk or make transition at this stage unsuitable; see paragraphs 114-120 of her report, 9 June 2024.
16She considered that he has developed a risk management plan and understood and engaged with her well on the topic of why he had not complied with the order; partly to do with loneliness. She described him as well advanced on transition, as he had experience in the Albion property and area, and had a good range of established supports; ACSO and his Aboriginal community worker.
17His property is available and can be made available to him on a longer basis at this stage, but it is unclear if it will be held should the lease lapse on 31 October by non-payment of rent. I can only infer that should this occur, in Dr Reeves' opinion, transition will become harder and rehabilitation much more difficult. In her reports and in cross-examination, she adhered to the view that the risk of reoffending posed was moderate and had been trending downward over some five years.
18Given that the risk of reoffending remains the same as when Dr Reeves last opined, and given one of the aims of the supervision order regime is rehabilitation, a decision which furthers the aim of the Act without increasing the risk of reoffending is to be preferred. For that reason, I will grant the interim order but I will not impose the condition as sought.
19After lunch, the Secretary produced a report from Ms Del Vescovo, the current FIS worker. On the basis of that report, the Secretary altered her position and submitted that transition should occur to the Albion property, but only after 14 days. The respondent pressed the contention that the transition should be immediate. In considering the submissions, I need to balance the protection of the community, which requires an orderly administrative and clinical handover in order to maximise rehabilitation, with the minimum interference with M R’s liberty.
20That balance is best struck, I consider, by allowing one week from tomorrow for transition and no later. That is, by 8 October 2024. I come to that decision for the following reasons:
(a), the need to ensure a smooth administrative handover with the rental property and also ACSO;
(b), the certainty that an ACSO forensic worker is in place cannot be understated. This is particularly so given the evidence of Ms Del Vescovo and Dr Reeves' advice;
(c), pro-social supports must be placed on notice prior to the transition. This in particular refers to the Aboriginal cultural advisor, to ensure that
M R is culturally supported. This was noted by Ms Del Vescovo;
(d), the care team I am told is meeting tomorrow, and that I consider is a great use in planning the transition to ensure support and guard against loneliness, which was a factor in his previous breaching behaviour;
(e), it conforms with the evidence of Ms Newman, who says it usually takes, 'A week or so', to make the necessary arrangements. In this case because of the recent transition, there is a solid basis on which to work and for that reason I consider that transition should occur by no later than 8 October. It is also relevant that in the balancing exercise, the court must ensure the minimum interference with the offender's liberty, privacy or freedom.
21If the condition is imposed, as the applicant seeks, then the respondent will continue to be confined in a controlled facility for a further 14 days. I consider that the term of detention proposed by the applicant is beyond the minimum interference with his liberty, privacy and freedom, given the existence of available suitable accommodation at the Albion unit, and the speed with which a normal process could see him safely transition.
22In fact, given the evidence is that transition for him now is in the best interests of his rehabilitation, ongoing detention does not act to promote his rehabilitation and overall, the safety of the community. I consider this to be a significant factor weighing in the respondent's favour. Lastly, I find that a non-publication order is necessary in this case as sought by the respondent.
23While there may well have been repeated breaches of the order, I prefer the evidence of Dr Reeves, that publication may well harm rehabilitation. I will now hear from the parties as to the correct form of order.
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