DPP v CS

Case [2021] VSC 686 26 October 2021

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0003

IN THE MATTER of the Serious Offenders Act 2018 (Vic)

and

IN THE MATTER of an application for a detention order

BETWEEN:
THE DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
and
CS	Respondent

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5, 6, 9, 10 and 17 August 2021
DATE OF JUDGMENT:	26 October 2021
CASE MAY BE CITED AS:	DPP v CS
MEDIUM NEUTRAL CITATION:	[2021] VSC 686

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PUBLIC LAW – Application for detention order for a period of three years – Unacceptable risk of serious sex offence, serious violence offence or both – Extensive criminal history – Prior serious sex offences – History of violent offending but no serious violence offence – Previous supervision order – Current interim detention order – Nigro v Secretary to the Department of Justice (2013) 41 VR 359 applied – No detention order made – Serious Offenders Act 2018 (Vic) ss 1, 3, 8, 21, 32, 62, 63, 64, 65, 66, 75, 255, 279.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Davidson	Office of Public Prosecutions
For the Respondent	Mr J McLoughlin with Mr G Cooper	Victoria Legal Aid
For the Secretary of the Department of Justice and Community Safety	Mr P Holdenson QC	Russell Kennedy

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Summary of conclusions.................................................................................................................. 3

Relevant principles............................................................................................................................ 6

Evidence............................................................................................................................................. 12

View of facilities.............................................................................................................................. 15

Respondent’s background.............................................................................................................. 16

Psychological and psychiatric evidence...................................................................................... 24

Expert evidence – risk of sexual offending............................................................................. 25
Expert evidence – risk of violent offending............................................................................ 29
Expert evidence – risk management........................................................................................ 32

Section 63........................................................................................................................................... 40

Section 64........................................................................................................................................... 42

Parties’ submissions.................................................................................................................... 43
Unacceptable risk of serious sex offence................................................................................. 44
Unacceptable risk of serious violence offence........................................................................ 45
Risk of serious violence offence....................................................................................... 46
Management of risk........................................................................................................... 53
Rivergum............................................................................................................... 60
DFATS IRTP.......................................................................................................... 64
Corella Place.......................................................................................................... 65

Likely impact of detention order..................................................................................... 68

Conclusion......................................................................................................................................... 71

Appendix A....................................................................................................................................... 73

HER HONOUR:

Introduction

This is an application by the Director of Public Prosecutions (‘the applicant’ or ‘the DPP’), made on 7 January 2021, under s 61 of the Serious Offenders Act 2018 (Vic) (‘the Act’) for a detention order for a period of three years in respect of CS (‘the respondent’).[1]
[1]I have determined, in accordance with s 279 of the Act, to use the pseudonym ‘CS’ in respect of the respondent to prevent his identification. I note that this course was supported by Dr Darjee: Report of Dr Rajan Darjee dated 31 May 2021, [67]. For the same reason, the respondent’s detailed criminal history set out in Appendix A will be omitted from the published judgment.

The respondent is a 36 year old Aboriginal man. He had an extremely disadvantaged childhood and has been diagnosed with a mild intellectual disability and manifests features consistent with a diagnosis of anti-social and borderline personality disorders. He has an extensive criminal history which includes the commission of serious sex offences, as defined in the Act. In 2013, he was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v CS

Details

AGLC: Director of Public Prosecutions v CS [2021] VSC 686
Case: [2021] VSC 686
Decision Date: 26 October 2021

CaseChat Overview and Summary

The case of DPP v CS involved the Director of Public Prosecutions applying for a detention order under the Serious Offenders Act 2018 (Vic) to detain the respondent for a period of three years. The application was based on the unacceptable risk posed by the respondent of committing a serious sex offence, a serious violence offence, or both. The respondent had an extensive criminal history, including prior serious sex offences and a history of violent offending, although no serious violence offence. The respondent was currently subject to an interim detention order, and the application sought a final detention order.

The legal issues in the case centred on whether the respondent posed an unacceptable risk of committing a serious sex offence, a serious violence offence, or both. The court considered the respondent’s extensive criminal history, prior serious sex offences, and history of violent offending in making its determination. The court also considered the principles set out in Nigro v Secretary to the Department of Justice (2013) 41 VR 359, which required a high threshold of proof to be met before a detention order could be made. The court had to balance the respondent's unacceptable risk with the principles of proportionality and the right to liberty.

The court found that, while the respondent posed an unacceptable risk of committing a serious sex offence, the risk of committing a serious violence offence was not proven to the required standard. The court found that the respondent’s history of violent offending did not amount to an unacceptable risk of a serious violence offence. The court also considered the principles of proportionality and the right to liberty, which required a high threshold of proof before a detention order could be made. The court found that the evidence did not meet this threshold, and therefore, a detention order was not appropriate in this case.

The court did not make a detention order for the respondent. The interim detention order remained in place until the next review. The court emphasised the importance of the principles of proportionality and the right to liberty in making its decision. The court also noted that the respondent remained subject to ongoing supervision and monitoring to manage their unacceptable risk.

Orders