DPP v CS
[2021] VSC 686
•26 October 2021
| 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 made subject to a supervision order under the now repealed Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) (‘the superseded Act’). The respondent remained subject to a supervision order imposed under the superseded Act at the time of this application, and is therefore an ‘eligible offender’ within the meaning of s 8 of the Act.[2]
[2]See the Act sch 4, s 3.
The application was heard before me on 4, 5, 6, 9, 10 and 17 August 2021. Counsel for the Secretary of the Department of Justice and Community Safety (‘the Secretary’) was present at the hearing of the application, however, it was the Secretary’s position that she was not a party to the application, and no application to be joined as a party was made.
At the time the application was heard the respondent was on remand in the Marlborough Unit at Port Phillip Prison. The application was made on the grounds that the respondent poses an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and he is in the community, and that that risk would be unacceptable unless a detention order were made.
On 26 August 2021, after I had reserved my decision, an application under s 75 of the Act for an interim detention order (‘IDO’) in respect of the respondent was heard as it had become clear that the respondent’s release from remand was likely to be imminent. I made an IDO in respect of the respondent on that day.[3]
[3]DPP v CS (No 1) [2021] VSC 534R.
After reserving my decision, it also became clear that the respondent’s conviction for violent offending in October 2009 was inconsistently described in the tendered materials. Some documents record that offence as intentionally causing serious injury (which is a serious violence offence for the purposes of the Act), whereas other documents record the offence as intentionally causing injury (which is not a serious violence offence for the purposes of the Act). Following a request for clarification, the parties confirmed on 22 September 2021 that the respondent was convicted of intentionally causing injury in October 2009, and that he has never been convicted of a serious violence offence for the purposes of the Act.
Accordingly, the two offences in respect of which the respondent has been convicted and which are covered by the Act are serious sexual offences — specifically, convictions for assault with an intent to rape in 2005, in relation to offending which occurred in 2004, and attempted rape in 2009, in relation to offending which occurred in 2006. References in the applicant’s submissions to the risk of ‘reoffending’, to the extent they relate to serious violent offending, must therefore be understood as references to the risk of the respondent committing a serious violence offence for the first time. I also note that it is unclear from the evidence whether all of the witnesses were aware that none of the respondent’s previous violent offending amounted to a serious violence offence.
For the following reasons, I am not satisfied to a high degree of probability that the risk of the respondent committing a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made. Having reached that conclusion I am empowered to make a supervision order under s 62(3) or to make no order under s 62(5). I have concluded that the respondent is an unacceptable risk under s 63 and I consider that the protection of the community requires that he be placed on a supervision order. I will therefore invite further submissions on the orders which should be made in the present application and provide an opportunity for any further applications to be made.
Summary of conclusions
To make a detention order, the Court must be satisfied ‘to a high degree of probability’ (being a standard approaching the criminal standard)[4] that:
(a) the respondent poses or, after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention or supervision order is not made; and
(b) the respondent poses or, after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both unless a detention order were made.
[4]The Act s 62(2); Nigro v Secretary to the Department of Justice (2013) 41 VR 359 (Redlich, Osborn and Priest JJA) (‘Nigro’), 363 [6].
‘Risk’ is a function of the likelihood of future offending and the seriousness of its consequences. ‘Unacceptable risk’ is a function of risk and other relevant factors including, in the case of a detention order, the means of managing the risk and the likely impact of a detention order on the respondent. Given the gravity of the consequences flowing from a finding of unacceptable risk (infringement or deprivation of liberty), it should not be produced by inexact proofs, indefinite testimony or indirect inferences.
I am satisfied that the respondent poses or, after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention or supervision order is not made. I consider that the respondent’s access to potential victims, weapons, and alcohol in the community, and the relative difficulty of containing his violence in a timely manner in a community setting, mean that his risk of committing a serious sex offence or a serious violence offence or both would be unacceptable if he were unsupervised in the community.
However, I am not satisfied to a high degree of probability that the risk would be unacceptable unless a detention order were made.
In relation to the risk of serious sexual offending, I am satisfied that the respondent’s access to potential victims and disinhibiting substances can be adequately restricted under a supervision order so that the risk is not unacceptable.
The consequences of the respondent committing a serious violence offence are, by definition, serious. However, it is difficult to accurately evaluate the gravity of those consequences in circumstances where the respondent has never before been convicted of a serious violence offence, and the characteristics of his serious violent offending are as a consequence, uncertain. The experts’ description of the respondent’s violence as ‘impulsive’ and ‘reckless’ may be contrasted with cases where the subject offending is, for example, highly premeditated and deliberate, and the consequences of that offending capable of more precise prediction.
Furthermore, the likelihood of the respondent committing a serious violence offence, while submitted by the applicant to be high, is subject to significant uncertainty for the following reasons:
(a) assessing the likelihood of future offending is a notoriously difficult task;
(b) the respondent has not been convicted of a serious violence offence before;
(c) the experts’ risk assessments do not clearly distinguish between the likelihood of the respondent committing a serious violence offence, and violence of any kind;
(d) the formal risk assessment tools provide a relative, rather than absolute, likelihood of offending (by reference to the average offender);
(e) the evidence identifies a number of triggers for the respondent’s violence, which indicate that the violence is less unpredictable (and therefore, more manageable) than was at times suggested by the applicant;
(f) the respondent’s breaches of his existing supervision order are of limited relevance to assessing his likelihood of committing a serious violence offence; and
(g) the respondent’s most concerning behaviour occurred at a time when his management was inappropriate for his circumstances and requirements, and is therefore not a reliable predictor of his behaviour when managed appropriately.
Therefore, while the applicant has led evidence that the gravity and likelihood of future serious violent offending by the respondent is high, I consider that the basis for reaching that conclusion is imprecise and inexact.
In relation to risk management, while the evidence does not precisely identify the combination (or combinations) of measures that are required to best manage the respondent’s risk, it has also failed to establish that no such combination can be successfully instituted under a supervision order. Specifically:
(a) the containment measures posited as the mainstay of the respondent’s current management (such as physical containment, robust security and the ability to respond to aggression) are not exclusively available in a custodial setting;
(b) while the applicant regards the respondent’s engagement with treatment as a precondition to adequate management under a supervision order, the evidence identifies a range of ‘non-therapeutic’ measures that may be immediately instituted under a supervision order in circumstances where the respondent is not actively engaged with traditional and/or formal psychological treatment;
(c) the respondent’s deemed unsuitability for placement at a residential treatment facility is based mainly on his disabilities and current inability to engage with a narrow treatment paradigm, and the potential disruption to other residents, rather than his risk of serious offending at those facilities; and
(d) the respondent’s improvement while at the Marlborough Unit does not establish that an ongoing detention order is required to adequately manage his risk. Such reasoning would confuse correlation with causation — it is largely the enhanced management of the respondent while at the Marlborough Unit, and not solely his incarceration that has contributed to his improvement. The evidence suggests that the non-custodial aspects of the respondent’s management while at the Marlborough Unit are central to his improvement and, critically, does not establish that those measures can be instituted only in a custodial setting.
In summary, I consider that the applicant conflates the difficulties surrounding managing the respondent’s risk on a supervision order with the necessity to take protective action by way of a detention order in circumstances where the precise nature and scope of the potential risks are equivocal.
The above uncertainties regarding the gravity and likelihood of relevant offending and posited inability to adequately manage the respondent under a supervision order are sufficient to prevent the applicant’s case from satisfying me to the requisite ‘high degree of probability’ of unacceptable risk unless a detention order were made. Furthermore, when combined with consideration of the effect of a detention order on the respondent — in particular, the serious risk of self-harm occasioned by a consequent sense of hopelessness and despair, and the significant effect of a detention order on the respondent’s rights — it is clear that a high degree of probability of unacceptable risk has not been established. I am therefore not satisfied that the risk of the respondent committing a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made.
Relevant principles
The relevant purposes of the Act are set out in s 1 as follows:
The purposes of this Act are—
(a)primarily, to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision; and
(b)secondly, to facilitate the treatment and rehabilitation of those offenders; …
The central provisions dealing with an application for a detention order are in ss 62 to 64 of the Act which relevantly provide:
62 Determination of application for detention order
(1)On an application under section 61, the Supreme Court may make a detention order in respect of an eligible offender if, and only if, the court is satisfied under section 63(1) and is satisfied under section 64(1).
(2)For the purposes of sections 63 and 64, the Supreme Court must be satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk.
(3)If the Supreme Court is not satisfied that the risk referred to in section 64(1) would be unacceptable unless a detention order were made, the 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.
…
63 Finding of unacceptable risk
(1)For the purposes of section 62, the Supreme Court must be satisfied that—
(a) in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious sex offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and the offender is in the community; or
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and the offender is in the community.
(2)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court must have regard to—
(a)subject to section 273, any assessment report or progress report filed in relation to the application, whether by the Secretary or the offender; and
(b)any other report filed, tendered or made, or evidence given, in relation to the application; and
(c) any other matter the court considers appropriate.
(3)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court must not have regard to—
(a) the means of managing the risk; or
(b)the likely impact of a detention order or a supervision order on the offender.
(4)The Supreme Court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(5)The DPP has the burden of proving that an offender poses or will pose an unacceptable risk under subsection (1).
64 Detention order only option
(1)If the Supreme Court is satisfied as required by section 63(1), the Supreme Court must be satisfied that—
(a)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious sex offence, the risk of the offender committing, or after release from custody committing, a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made; or
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the risk of the offender committing, or after release from custody committing, a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made.
(2)The Supreme Court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(3)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court may have regard to—
(a)the means of managing the risk; and
(b)the likely impact of a detention order on the offender.
Section 3 defines ‘serious sex offence’ to mean one of the sexual offences referred to in sch 1 of the Act. It defines ‘serious violence offence’ to mean an offence referred to in sch 2 of the Act. The statutory and common law offences of kidnapping aside, the defined ‘serious violence offences’ involve death or serious injury, or intention, conspiracy or incitement to commit, or attempting to commit such an offence.
Under the above legislative sections, the process of considering whether to make a detention order can be summarised in the following three steps:
(a) first, under s 63(1), the Court must consider whether the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and the offender is in the community;
(b) secondly, if satisfied that the risk referred to in s 63(1) is unacceptable, the Court must consider whether the risk of the offender committing, or after release from custody committing, a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made, in accordance with s 64; and
(c) thirdly:
(i) if satisfied that the risk referred to in s 64(1) is unacceptable, the Court may make a detention order under s 62(1) or exercise its residual discretion in s 62(5) to make no order; or
(ii) if not satisfied that the risk referred to in s 64(1) is unacceptable, the Court may make a supervision order under s 62(3) or make no order under s 62(5).
The meaning of ‘unacceptable risk’ is not defined in the Act. However, this expression was considered by the Court of Appeal in Nigro in the context of a supervision order under the superseded Act. This remains relevant to the present legislative context,[5] particularly insofar as it relates to the first stage in the determination of a detention order application. In that case, the Court of Appeal stated:
… The test of unacceptable risk should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection. A finding of unacceptable risk is compatible with human rights under the [Charter of Human Rights and Responsibilities Act 2006 (Vic)] because the threshold requirement depends upon both the severity of the apprehended conduct and the likelihood that the conduct will occur. Some level of risk remains acceptable. The test of unacceptable risk enables an appropriate balancing of competing considerations.
Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence. The principle in [Briginshawv Briginshaw (1938) 60 CLR 336] is relevant to an evaluation of the quality and sufficiency of the evidence. The court must be satisfied to a high degree of probability that there is an unacceptable risk. That is a standard well above the civil standard and approaching the criminal standard. [6]
[5]Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707, [26].
[6]Nigro, 363–4 [5]–[6] (citations omitted).
Further, the Court of Appeal held:
It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[7]
[7]Nigro, 394 [130].
As is evident from the extracts above, the Act references the related concepts of likelihood and probability — specifically, the likelihood of serious offending (in ss 63(4) and 64(2)) and the probability of risk (in s 62(2)). It is important that these concepts are not conflated.[8]
[8]See Nigro, 391 [118].
Consistently with the above comments of the Court of Appeal, the likelihood of a serious sex or violence offence being committed is only one component of the concept of ‘risk’ for the purposes of Part 5 of the Act — the other being the seriousness of the consequences should that offending occur. ‘Likelihood’ in this context is concerned with the prediction of future events, which courts have acknowledged to be notoriously difficult.[9]
[9]Nigro, 392 [124], citing Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 622–4 [123]–[126] (Kirby J) and Attorney-General v David [1992] 2 VR 46, 61–2 (Hedigan J).
The concept of ‘probability’ in s 62(2) goes to the standard to which unacceptable risk must be established.[10] Unlike the concept of likelihood described above, it is not exclusively predictive, but rather looks to the adequacy of the evidence presently before the Court.
[10]See Nigro, 391 [118].
The likelihood of offending has no prescribed threshold in the legislation: if the consequences of offending are sufficiently grave, the likelihood of that offending may be relatively low and still support a finding of unacceptable risk. The Act makes clear that the likelihood need not be more likely than not: ss 63(4), 64(2).
However, unacceptable risk (which incorporates, but is not limited to, consideration of the likelihood of relevant offending) must be established by acceptable, cogent evidence to a ‘high degree of probability’: s 62(2). That threshold is well above the civil standard and approaches the criminal standard.[11] Evaluation of the evidence is also informed by the principle in Briginshaw[12] that the gravity of the consequences flowing from a particular finding should be considered when determining whether it has been proved. As noted by the Court of Appeal in respect of the superseded Act:
… Adapting the observations of Dixon J in Briginshaw, the finding ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’ [at 362]. The proofs must survive careful scrutiny and appear precise and not loose and inexact [citing Rejfek v McElroy (1965) 112 CLR 517, 521].[13]
[11]Nigro, 402 [156].
[12]Briginshaw v Briginshaw (1938) 60 CLR 336.
[13]Nigro, 403 [161].
Critically, it is the finding of unacceptable risk to a ‘high degree of probability’ — and not any particular finding about the likelihood of offending — that is required to enliven the Court’s power to make a supervision order or detention order. That finding is necessarily informed by a range of factors, including the likelihood of future relevant offending, the seriousness of its consequences and, in the case of s 64, the means of managing the risk and the likely impact of the detention order on the offender.
Evidence
The following expert witnesses testified amongst other things, as to the respondent’s mental state:
(a) Dr Kevin Ong, forensic psychiatrist;
(b) Mr Simon Candlish, psychologist; and
(c) Dr Rajan Darjee, forensic psychiatrist.
Dr Ong and Mr Candlish were called as witnesses for the applicant. Dr Darjee was called for the respondent. Each of these witnesses prepared reports which were tendered as part of their evidence.[14]
[14]Exhibit A3 (Two reports of Dr Kevin Ong, dated 24 August 2020 and 17 June 2021); Exhibit A4 (Reports of Mr Simon Candlish dated 19 November 2017, 8 April 2020, 16 April 2020, 1 August 2020, and 15 June 2021); Exhibit R1 (Report of Dr Rajan Darjee dated 31 May 2021).
Oral evidence was also given by:
(a) Dr Columb Matthew John Frize, Director of Forensic Disability Services, within the Department of Families, Fairness and Housing (‘DFFH’), whose responsibilities include executive management for the operation of all forensic disability services delivered by the department under the Disability Act 2006 (Vic);[15]
[15]Dr Frize holds a doctorate in clinical psychology, a PhD in forensic psychology and a master’s degree in educational and developmental psychology. He is registered as a clinical psychologist, forensic psychologist and educational and developmental psychologist.
(b) Ms Sarah Miles, Director of the Post Sentence Branch (formerly the Sex Offender Management Branch) within Corrections Victoria, whose responsibilities include the management of serious offenders on supervision orders under the Act and the management of residential facilities, including Corella Place, and the first residential treatment facility, Rivergum Residential Treatment Centre (‘Rivergum’);
(c) Ms Jennifer Hosking, currently the Acting Deputy Commissioner of Custodial Operations and substantively in the position of Assistant Commissioner of the Sentence Management Division within Corrections Victoria. In her substantive role, Ms Hosking is responsible for the oversight of the management and placement of prisoners within the Victorian prison system, including offenders subject to detention orders under the Act;
(d) Ms Colleen Hirst, an Advocate/Guardian of the Office of the Public Advocate, through the Department of Justice and Community Safety. Ms Hirst is currently the respondent’s guardian, having powers and duties delegated to her by the Public Advocate under s 19(1) of the Guardianship and Administration Act 1986 (Vic); and
(e) Ms Sally Lamshed, an occupational therapist, holding a Bachelor of Arts and a Master of Occupational Therapy Practice. Ms Lamshed became involved in the respondent’s care from 12 February 2020 until her contact was ended by the Post Sentence Authority on 14 January 2021. In the 10 months she was working with the respondent, Ms Lamshed met with him at least every two weeks. However, due to the COVID-19 pandemic, only two of their meetings were face-to-face.
The applicant also relied upon the following material:
(a) statement of agreed facts filed 4 August 2021;
(b) affidavit of Nicola Rostron, an Australian Legal Practitioner employed by the Office of Public Prosecutions, affirmed 9 March 2020;
(c) a letter from Dr Frize to Ms Miles dated 9 April 2020 (exhibited to the non-confidential affidavit of Ms Miles sworn 5 March 2021 as exhibit SM-26);
(d) affidavit of Dr Frize sworn 30 July 2020 (exhibited to the non-confidential affidavit of Ms Miles sworn 5 March 2021 as exhibit SM-25);
(e) the following affidavits of Ms Miles: Confidential affidavit sworn 1 October 2020; confidential affidavit sworn 5 March 2021; non-confidential affidavit sworn 5 March 2021; and further non-confidential affidavit sworn 3 August 2021;
(f) affidavit of Nicole Sakellaridis, a clinical social worker and Senior Clinical Advisor, Service Delivery and Practice in the Service Delivery Branch for Forensic Intervention Services, Corrections Victoria, sworn 18 June 2021; and
(g) the following affidavits of Ms Hosking: Affidavit sworn 21 September 2020; supplementary affidavit sworn 1 July 2021; and further supplementary affidavit sworn 8 August 2021.
The respondent relied on the following material:
(a) the Intervention Pathways Recommendations authored by Mr Andy Chia, Senior Clinician, High Risk & Complex Needs, Forensic Intervention Services, Corrections Victoria, dated 19 May 2020 (exhibited to the affidavit of Ms Rostron affirmed 9 March 2020 as exhibit NGR-35);
(b) affidavit of Ms Hirst affirmed 30 July 2021;
(c) the instrument of delegation issued by Colleen Pearce, the Public Advocate under s 19(1) of the Guardianship and Administration Act 2019 (Vic) to Ms Hirst in relation to the respondent dated 2 March 2020; and
(d) affidavit of Ms Lamshed affirmed 5 August 2021.
In making my assessments under ss 63 and 64, I have had regard to all of the evidence in this case. In addition to the level of the respondent’s risk, the ways it could be managed, and the potential impact of a detention order on the respondent, the evidence canvassed a number of matters including:
(a) the respondent’s prior management and conduct while subject to a supervision order and whilst in custody;
(b) the potential supports which are available to the respondent, both at particular facilities and through National Disability Insurance Scheme (‘NDIS’) funding;
(c) the potential units within prison environments in which the respondent may be placed on a detention order;
(d) residential arrangements which may be possible under a supervision order and the extent to which they could cater for the respondent’s needs and his risk of offending; and
(e) arrangements and planning which have been made for the future, including the Multiple and Complex Needs Initiative (‘MACNI’) Assessment & Care Plan dated 16 March 2020 (exhibited to the affidavit of Nicola Rostron affirmed 9 March 2021 as exhibit NGR-12) (‘MACNI Plan’).
View of facilities
Pursuant to s 53 of the Evidence Act 2008 (Vic), I also conducted a view of a number of facilities where the respondent could be placed under a detention order or supervision order.
Between 7 and 8 July 2021, I attended three sites where the respondent could be placed if a detention order were made:
(a) Greenhill Unit at the Hopkins Correctional Centre, a medium security unit which accommodates offenders subject to detention orders under the Act;
(b) Piper Unit located at Barwon Prison, separately from other units but within the secure perimeter of the Prison. Piper Unit is a maximum security unit providing for the secure accommodation of offenders subject to a detention order under the Act; and
(c) Marlborough Unit at Port Phillip Prison, a 35 bed maximum security unit which accommodates a combination of prisoners on remand and sentenced prisoners with disabilities, including cognitive impairments (mainly intellectual disability and acquired brain injury). As at 1 July 2021 there was one person subject to a detention order accommodated at the Marlborough Unit.[16]
[16]Supplementary affidavit of Jennifer Hosking sworn 1 July 2021, [45].
On 7 July 2021, I attended two facilities where the respondent could reside under a supervision order. The first was Corella Place, a residential facility for the purposes of the Act, designed and operated as transitional residential accommodation for persons on a supervision order. It seeks to provide an environment in which residents can live independent and normalised lives while working towards transition into living independently in the broader community, depending on their individual risks, needs and capabilities.
The second, Rivergum, is currently the only residential treatment facility for the purposes of the Act.[17] Rivergum is a short-term, intensive treatment and supervision facility, in which residents are supported in their rehabilitation through the delivery of intensive treatment, supervision and other interventions provided by a multidisciplinary team of on-site clinicians, an occupational therapist, specialist case managers, activities officers, and specialist case workers. It provides for the intensive treatment and supervision of persons subject to a supervision order (or interim supervision order) in a secure, therapeutic environment.
[17]An individual can only be in a residential treatment facility if a court imposes an intensive treatment and supervision condition in accordance with s 32 of the Act.
The security features of Corella Place and Rivergum were canvassed in Ms Miles’ confidential affidavits sworn 1 October 2020 and 5 March 2021.
A summary of the view was finalised with the assistance of the parties and encompasses some but not all of my observations at the view.
Respondent’s background
The respondent is a 36 year old Aboriginal man born in November 1985 in Moe, Victoria.
The respondent had an extremely disadvantaged childhood. He is one of six of his mother’s children. His father had no involvement in his upbringing. The respondent was removed from his mother’s care by child protective services at age 11 and thereafter resided in different foster care and other residential placements.
The respondent had significant perinatal and developmental problems, particularly his delayed ability to speak. He was assessed as having an intellectual disability and attention deficit hyperactivity disorder at primary school age, and displayed severe behavioural problems from an early age including violence towards other children and staff. He attended four primary schools including Baringa Special School, but ceased his formal education prior to commencing high school.
From the age of 12 the respondent moved between foster placements, respite placements and living with his mother. His behaviour included aggression, threats, absconding, threatening self-harm, substance abuse and fire lighting with a number of services refusing to accommodate him.
The respondent has historically maintained contact with his mother and a brother, but reportedly does not wish to have contact with his mother anymore.[18]
[18]Report of Dr Kevin Ong dated 24 August 2020, 6.
There are reports that the respondent experienced sexual abuse as a child.[19] During his early teens he commenced using alcohol and cannabis and inhaling insolvents. He has admitted to using heroin, methamphetamine and amphetamine, and is currently on an opiate substitution program (methadone).[20] However, his main substances of abuse as an adult have been alcohol and cannabis. It has been noted that there appears to be a strong link between his offending behaviour (both minor and serious offending) and alcohol consumption.[21]
[19]Report of Mr Simon Candlish dated 8 April 2020, [139] states that the respondent disclosed that he had been sexually abused by his grandfather involving forced oral-penile penetration, at the age of seven years.
[20]Report of Dr Kevin Ong dated 24 August 2020, 14.
[21]MACNI Plan, 40.
The respondent has an XYY genotype characterised by tallness, learning disabilities and behavioural problems such as impulsivity (Jacob’s syndrome).[22]
[22]Report of Associate Professor Brewer (neuropsychologist) dated 23 March 2020 (exhibited to the affidavit of Nicola Rostron affirmed 9 March 2021 as exhibit NGR-13), [24].
There have been diverging opinions regarding the ambit of the respondent’s intellectual ability in the past, however the three experts agree that the respondent has a verbal learning disability and an inability to read or write.[23] A neuropsychological assessment in 2020 considered that the respondent’s ‘current neuropsychological profile is consistent with a diagnosis of Mild Intellectual Disability in the context of a long-standing and significant verbal learning deficit.’[24] The respondent also manifests features consistent with diagnoses of both anti-social and borderline personality disorders.
[23]Report of Dr Kevin Ong dated 24 August 2020, 8 outlines the results of neuropsychological testing by Associate Professor Simon Crowe in February 2017 and of speech pathologist Jan Mackey in October 2018.
[24]Report of Mr Simon Candlish dated 8 April 2020, [134].
The respondent has no real employment history and is on a disability support pension. His guardian, Ms Hirst, makes decisions regarding accommodation, medical treatment and access to services.
The respondent has a history of sexual offending from the age of 16. He has numerous convictions for violent offences, the first of which occurred when he was 13 years old. He has accumulated convictions for assault with a weapon, recklessly cause injury, unlawful assault, intentionally threaten serious injury, reckless conduct endangering serious injury, assault of police and armed robbery. The respondent’s history of offending is set out in reverse chronological order in the table in Appendix A to this judgment.
The respondent’s most serious offending occurred in 2004 and 2006. In 2004, the respondent grabbed an unknown woman from behind, put his hands over her mouth and fell on top of her. He put his hands around her throat, turned her onto her stomach and began thrusting his pelvis into her backside. He then began groping inside the woman’s pants, around her anus and vagina. On 24 January 2005, the respondent was sentenced to an aggregate 18 months’ imprisonment for the offences of assault with intent to rape and assaulting police.
On 1 June 2006, the respondent met a woman at a mutual friend’s house. They drank alcohol together into the evening. The respondent asked to stay the night at his friend’s house, but was refused. The woman offered her spare bedroom. The respondent was initially cordial when at the woman’s home but, without warning, became aggressive and punched her repeatedly to the head and face causing her to lose consciousness intermittently. The respondent was on top of the woman and attempted to penetrate her vagina with his penis whilst continuing to punch her. When the woman regained consciousness, she was not wearing pants, and had blood on her face, front and ear. She suffered bruises and abrasions to her face and neck and her false teeth were broken. She did not seek medical treatment at the time.
The respondent was arrested on 13 September 2006 and indicated to police that he had been under the influence of alcohol and cannabis, and could not remember the details of the night. The victim provided a victim impact statement which outlined that she continued to suffer psychological trauma as a consequence of the incident. On 16 October 2009, the respondent was sentenced in the County Court by Judge Leckie to 3 years and 4 months’ imprisonment for the index offences of attempted rape and intentionally causing injury.
Subsequently, the respondent was made subject to a supervision order, commencing on 14 February 2013 for a period of five years, under the superseded Act. The supervision order was varied on 4 March 2015 to add electronic alcohol monitoring for a period of four months. That condition was extended on 4 September 2015. The supervision order was reviewed, and not revoked, on 22 February 2016. It was further varied on 21 August 2017 to upgrade the existing condition not to use prohibited drugs or unlawfully obtain drugs to a restrictive condition, attracting a minimum penalty of 12 months if breached unless special circumstances exist. The supervision order was renewed on 7 June 2018 for a further five years.
Each supervision order contained a condition that in effect required the respondent to reside at Corella Place, save for a brief period from 18 March 2015 to 10 April 2015 when the respondent resided in the community in Carnegie. However, it should be noted that the respondent has not resided at Corella Place consistently during his time subject to a supervision order due to spending significant periods in custody since 2013.
In the period he has been subject to a supervision order the respondent has been convicted of further offending on nine occasions, including for violence offences on six occasions. The respondent also has 28 prior entries on his criminal history for breaching, failing to comply with, or contravening a condition of, a supervision order. This includes two incidents of absconding from Corella Place in June 2013 and February 2014.
The respondent has not committed any sexual offences while subject to a supervision order. Nor has he been convicted of any serious violence offences as defined in the Act. However, the respondent has demonstrated some concerning and violent behaviours during the period. Perhaps the most serious incidents occurred on 8 July 2019 and 17 August 2019.
The 8 July 2019 incident occurred at Corella Place where, after storming out of a meeting with the Post Sentence Authority, the respondent was seen outside his unit with a steak knife. This resulted in the attendance of both Victoria Police and the Security and Emergency Services Group (‘SESG’). Upon their arrival, the respondent was holding a homemade spear and a knife. He approached a SESG dog handler and repeatedly ignored demands to drop the knife. The dog was deployed, enabling the respondent, while still holding the knife, to be brought to the ground by the dog handler. The respondent was restrained and found to be in possession of three knives. In relation to this incident, the respondent was convicted of two counts of contravening a condition of a supervision order, by committing a violent offence (common law assault) and by possessing, carrying and using a knife.
The 17 August 2019 incident occurred while the respondent was in custody in relation to outstanding charges of intentionally causing injury, recklessly causing injury and unlawful assault. The respondent is alleged to have punched another prisoner, before pushing his eye socket and using both hands to pull the prisoner’s mouth in a ‘ripping motion’. This caused the left side of the complainant’s lip to split in two. The complainant required transfer to hospital by ambulance to have approximately 50 stiches inserted on the inside and outside of his mouth.
There was also evidence of other concerning behaviour from the respondent including aggressive behaviour, the possession of weapons, threats of absconding from Corella Place, threats of engaging in self-harm including ‘suicide by cop’ and threats of harming others.
There have been attempts to assist the respondent and manage his behaviour while subject to a supervision order. Notably, in 2019 a referral was made to the MACNI Panel which resulted in a pre-MACNI assessment performed by a team of psychologists. MACNI is underpinned by the Human Services (Complex Needs) Act 2009 (Vic). This Act establishes the authority for a collaborative and coordinated approach to planning service delivery for people with multiple and complex needs.
However, in January 2021, the MACNI Panel decided to place the respondent’s MACNI program on hold until the outcome of the present application is determined.
Prior to that suspension, the MACNI Plan was developed which made recommendations regarding the respondent’s placement, treatment and progress. In relation to accommodation, the MACNI Plan proposed a staged transition for the respondent into the community. The first stage was to be a ‘secure option’ while an option in the community was created or identified. Rivergum was initially identified as such an option; however, after Corrections Victoria assessed the respondent to be ineligible for Rivergum, the MACNI Panel did not endorse his placement there. The MACNI Plan also contemplated the Disability Forensic Assessment and Treatment Service (‘DFATS’) Intensive Residential Treatment Program (‘IRTP’) as a possible residential option at the first stage, but noted that the respondent had also been deemed ineligible for that service.
After completing a period in the ‘secure option’, the MACNI Plan posits that the respondent should move to a ‘community option’ for a two to five year period. The MACNI Plan states:
It is recommended that a community placement option be sourced and set-up during the period that [the Respondent] is accommodated in the secure facility. It is anticipated that, depending on the community option, set-up of this option would take considerable effort if completed in a coordinated and comprehensive manner. It is further hoped that the benefits of working with [the Respondent] clinically within a secure environment would result in increased self-management skills.[25]
[25]MACNI Plan, 23–24.
The MACNI Plan considered a range of accommodation settings for the respondent under the community option. The respondent was considered unsuitable, or there were no vacancies, for Specialist Forensic Disability Accommodation (SFDA), Long Term Rehabilitation Program (LTRP) managed by the Forensic Disability Statewide Access Service (FDSAS), Nicolson House operated by the Australian Community Support Organisation (ACSO) and Kookaburra House, a transitional facility managed by the former Department of Health and Human Services, and now by the DFFH.
Specialist Disability Accommodation (‘SDA’) was recommended by the MACNI Plan as a second stage option for the respondent. However, the MACNI Plan noted that: SDA funding approval and a disability support pension would be required; a robust physical build was likely required due to the respondent’s history of extensive property damage; the respondent would require residential support (thus meaning that a two bedroom house was likely required); a developer would need to be engaged and the property would need to be built over an estimated nine to 12 month period; a behaviour support plan would be required to determine the need for a secure perimeter with restrictive intervention; and there was concern about the respondent being isolated in a highly restrictive environment.
Private rental accommodation was also considered as a possible second stage or medium term option for the respondent. The MACNI Plan noted that: private rental would need to be sought and a lease obtained; modifications to the rental would need to be made with landlord approval including a secure perimeter, staff safe room, robust features and a sprinkler system; significant costs would be associated with the required modifications; 24/7 staffing would need to be sought through a disability support agency; an NDIS plan review would be required to obtain sufficient funding for the support model; and a behaviour support plan would be required to determine the need for a secure perimeter with restrictive intervention. The MACNI Plan noted that a six-month lead time was required to source and set-up this option and that significant coordination was required.
The MACNI Plan also made a range of recommendations concerning the respondent’s health and wellbeing including his disability support, mental and emotional health, substance use, physical health, living skills, social interaction and meaningful occupation, family, culture and identity, challenging behaviours, forensic issues and risks, and outcome measures. I have had regard to these recommendations in my analysis below.
The respondent is currently receiving NDIS funding for support services. He has a care team who meet regularly to discuss how to best provide him with a coordinated and supported approach to relevant services pathways. The care team is comprised of Complex Psychology, who provide NDIS support coordination, Cadence Consulting Services who provide specialist behavioural consultations, Applied OT who provide occupational therapy services, Applied Communication Skills who provide speech therapy, representation from various programs within the DFFH, and the Department of Health, Disability Justice and Post Sentencing Branch.
The respondent has an NDIS providers team who meet more often and focus on his disability support needs to assist him to achieve his goals, which includes transitioning to live in the community.
Since Rivergum was rejected as an accommodation option, the respondent’s NDIS providers have pursued an application for SDA for the respondent. An application was made and submitted to the National Disability Insurance Agency (‘NDIA’). However, the application was declined because the NDIA believed that there was not enough evidence that the respondent’s offending behaviours were related to his disability.[26] Another application can be made, and there is work underway at the moment with the NDIS providers to look at re-submitting the application.[27]
[26]Transcript of Proceedings, DPP v CS (Supreme Court of Victoria, S ECR 2021 0003, Incerti J, 4-6, 9–10, 17 August 2021) (‘T’) 434.04–13.
[27]T434.14–24.
Psychological and psychiatric evidence
Before considering whether the respondent poses an unacceptable risk for the purposes of ss 63(1) and 64(1) of the Act, I will briefly summarise the expert psychological and psychiatric evidence which I also further discuss in my analysis below.
Dr Darjee’s evidence, as reflected in his report to the Court and his sworn evidence before me, was of a high standard and I consider him to be an eminent expert in the field of risk assessment. Dr Darjee provided a detailed and careful approach to the important task he was faced with, and was aided by a vast array of material to which he had access, as well as his one and a half hour video link interview with the respondent. Dr Ong’s and Mr Candlish’s reports, and their oral evidence, were also detailed, comprehensive and of great assistance to the Court.
The experts’ evidence was that the respondent presents as having complex needs resulting from his childhood deprivation and trauma, his Jacob’s syndrome, intellectual disability, borderline personality disorder and anti-social personality disorder, verbal learning disability, substance abuse issues and instability in his living arrangements.
Dr Ong said that the respondent’s mental conditions are not amenable to treatment with pharmacotherapy, and that the mainstay of future treatment would be psychological interventions to reduce impulsivity and develop appropriate problem-solving skills.[28] However, the experts noted that the respondent is currently disengaged from formal psychological treatment, particularly offence-related treatment, and agreed that the respondent is not currently ready for treatment of this kind.
[28]T45.04–21.
The experts all expressed the view that the respondent poses a high risk of sexual and violent offending in the community and requires a supervision or detention order to manage this risk. That conclusion was informed by their application of a number of risk assessment instruments.
Expert evidence – risk of sexual offending
In relation to the respondent’s risk of sexual offending the experts utilised the Static-99R and the Risk for Sexual Violence Protocol (‘RSVP’). The Static-99R is an actuarial measure of long-term potential risk for sexual offence recidivism in adult male sexual offenders. The RSVP is a set of structured professional guidelines which represent an empirically guided approach to the assessment of risk for sexual offenders. The RSVP contains both static (historical) and dynamic variables, categorising 22 items into five domains: sexual violence history, psychological adjustment, mental disorder, social adjustment, and manageability.
Applying the Static-99R both Mr Candlish and Dr Darjee placed the respondent in the ‘well above average risk’ group.[29] Dr Darjee observed that those in this category have a much higher rate of sexual recidivism than average men with a conviction for a sexual offence but that ‘this rating says nothing about the likely nature, severity, context or imminence of potential future sexual offending’.[30] Similarly, Mr Candlish explained:
In general routine samples of sexual offenders, the average five-year sexual recidivism rate is between 5% and 15%. This means that out of 100 sexual offenders of mixed risk levels, between 5 and 15 would be charged or convicted of a new sexual offence after five years in the community. Conversely, between 85 and 95 would not be charged or convicted of a new sexual offence during that time period.
Based on [the Respondent’s] Static-99R score of ten, the five-year sexual recidivism rate for [sic] is between 45% and 60%. This means, for example, that out of 100 sexual offenders with the same risk score between 45 and 60 would be charged or convicted of a new sexual offence after five years in the community. Conversely, between 40 and 55 would not be charged or convicted of a new sexual offence during that time period.
An alternative way of describing risk is through articulation of risk ratios. Risk ratios describe differences between recidivism rates. For the Static-99R, risk ratios compare the expected recidivism rate for offenders with a particular score, to the expected recidivism rate of offenders in the middle of the risk distribution. The middle of the risk distribution is defined as the rate for offenders having the median score of two. On average, offenders with [the Respondent’s] score have a sexual recidivism rate that is more than seven times that of the typical or average sexual offender.
It is recognised that the Static-99R has some limitations. It does not address all relevant risk factors for sexual offenders. It is also based on groups of offenders and so is not individualised. Additionally, due to the Static-99R risk factors being historical or static, the score will often not change. The authors of this actuarial tool recommend the consideration of other external factors, such as dynamic or changeable risk factors, that may influence risk in either direction.[31]
[29]Report of Mr Simon Candlish dated 8 April 2020, [175]; Report of Dr Rajan Darjee dated 31 May 2021, [30].
[30]Report of Dr Rajan Darjee dated 31 May 2021, [30].
[31]Report of Mr Simon Candlish dated 8 April 2020, [176]–[179] (citations omitted).
Dr Ong did not specifically set out how he scored the respondent using the Static-99R. Instead he expressed his conclusion, in combination with his assessment using the RSVP, as follows:
I have used the STATIC-99 and RSVP (Risk for Sexual Violence Protocol) in assessing [the Respondent’s] risk of sexual reoffending. These tools are widely used in assessing risk of sexual re-offending.
…
Based on this, [the Respondent’s] risk is High (of those in this category, over half reoffend within 15 years, twice the base rate of reoffending in the sexual offender population).[32]
[32]Report of Dr Kevin Ong dated 24 August 2020, 37 (italics in original).
Applying the RSVP, Dr Darjee identified a large number of relevant risk factors, consistent with his Static 99-R rating, and observed:
The future risk scenarios pertinent in this case are ones like the previous sexual offences he has been convicted of. If he were to commit a further sexual offence this would most likely be against an adult female known or unknown to him who he happens across; with the offence being impulsive and opportunistic; in the context of alcohol intoxication, unstable lifestyle, wanting to have sex and feeling entitled to do this; involving attempted or completed rape; with him using sufficient force to subdue the victim including potentially hitting or beating the victim.
My summary risk judgement ratings using the RSVP are high case priority, moderate risk of serious physical harm, and if he was unsupervised in the community there would be immediate concern that a sexual offence could occur imminently if he was abusing substances and his lifestyle was unstable. On a Supervision Order in a residential facility such a risk would not be imminent.[33]
[33]Report of Dr Rajan Darjee dated 31 May 2021, [32]–[33].
While Mr Candlish expressed his RSVP case prioritisation outcome as follows:
Based on the configuration of risk factors, [the respondent] appears to require High case prioritisation to effectively manage the risk posed. He displays definite risk markers across all domains. Psychological and Social Adjustment domains as well as Manageability are highly relevant for future risk. Substance abuse is also highly relevant.[34]
[34]Report of Mr Simon Candlish dated 8 April 2020, [212].
Mr Candlish and Dr Darjee also used the Structured Assessment of Protective Factors (‘SAPROF’). Mr Candlish explained that:
… The SAPROF Second Edition is a 17-item empirically guided assessment tool that assesses factors that may ameliorate risk of violent and/or sexual offending. The SAPROF considers 17 protective factors across three facets, representing internal, motivational and external items. These items that [sic] are associated with lower levels of risk offending.
This tool has been subject to retrospective validation and continues to be subject to validation research. Studies have demonstrated moderate to large predictive accuracy for non-recidivism.
The SAPROF tool was administered based on the assumption that [the Respondent] is in the community and not subject to further monitoring or supervision.[35]
[35]Report of Mr Simon Candlish dated 8 April 2020, [213]–[215] (citations omitted).
In his 8 April 2020 report, Mr Candlish discussed the SAPROF while considering the respondent’s risk for sexual recidivism and stated that none of the protective factors relevant to the respondent’s risk of sexual recidivism in the internal, motivational or external domains were ‘coded as present’ and stated that the respondent’s current level of protection is considered low.[36] In his report, Dr Darjee stated:
Applying the SAPROF, I too could not identify any internal, motivational or external protective factors if he was in the community and not on a Supervision Order. If he was on such an order in a residential facility then there would be three external factors (external control, professional services and living circumstances). On a Detention Order these three factors would be stronger. Overall, though there is a low level of protective factors.[37]
[36]Ibid [216]–[217].
[37]Report of Dr Rajan Darjee dated 31 May 2021, [37].
Dr Darjee did not identify whether the SAPROF was utilised to consider protective factors for violent offending or only for sexual offending.
Taking into account the actuarial risk outcome, the structured professional judgment and the respondent’s individual risk factors and protective factors, Mr Candlish ultimately expressed his empirically guided clinical judgment of the respondent’s risk for sexual recidivism as follows:
[The Respondent’s] risk appears best reflected by the consideration of the RSVP and his individual circumstances. He is considered to fall into the High-risk category for sexual recidivism of the nature outlined in the risk scenarios section, in the absence of any interventions designed to increase his risk manageability.[38]
[38]Report of Mr Simon Candlish dated 8 April 2020, [219].
In relation to risk scenarios for sexual offending, Mr Candlish stated that future offending might involve the rape or attempted rape of a stranger or known female, and that the respondent is highly likely to assault the victim.[39] He is likely to be substance affected but could also be sober, and is most likely to offend in the context of psychological and lifestyle inability.[40] Mr Candlish also noted that while the respondent is most likely to sexually offend against females, it is plausible that he might pose a risk for sexual offending against males.[41] While Mr Candlish did not specifically relate his opinion to the definition of a serious sex offence in the Act, rape and attempted rape are classified as such in sch 1 of the Act.
[39]Ibid [302].
[40]Ibid.
[41]Ibid [303].
Dr Ong similarly opined that the respondent presents a high risk of committing a serious sex offence and that the respondent is likely to engage in behaviour similar to previous offending — that is, a sexual assault of a stranger female victim, possibly when he is in a state of intoxication, and occurring in situations where he has access to potential victims.[42]
[42]Report of Dr Kevin Ong dated 24 August 2020, 42.
Dr Darjee also identified that the respondent poses a high risk of serious sexual offending in the community.[43] As noted above, Dr Darjee identified that future risk scenarios pertinent in this case are ones like the previous sexual offences for which the respondent has been convicted.[44]
[43]Report of Dr Rajan Darjee dated 31 May 2021, [38].
[44]Ibid [32].
Expert evidence – risk of violent offending
Each expert utilised the Historical Clinical Risk-20, Version 3 (‘HCR-20’) in relation to the respondent’s risk of future non-sexual violence. Mr Candlish explained that:
The HCR-20 is a 20-item set of structured professional guidelines, similar to the Risk for Sexual Violence Protocol (RSVP) that covers three domains of risk factors specifically related to general violence: Historical (past), Clinical (present) and Risk Management (future). Violence is defined as having occurred when a person has engaged in an act, with some degree of wilfulness that caused, or had the potential to cause, physical or serious psychological harm to another person or persons.
The HCR-20 has been extensively validated in studies throughout the world and has been found to be among the most accurate assessment methods for assessing risk for violence. Indeed, more than 150 empirical studies have been conducted in a range of forensic psychiatric, correctional, and civil psychiatric settings. It has been validated for use with both males and females, and in inpatient and outpatient settings. Structured judgments made on the basis of the HCR-20 results have been found to have at least a moderate-to-large, and very often a large relationship with subsequent violence.[45]
Mr Candlish also utilised the Violence Risk Appraisal Guide – Revised (‘VRAG-R’) which he stated was designed to estimate the likelihood that a released offender will meet the criteria for violent recidivism at two fixed lengths of opportunity (five years and 12 years).
[45]Report of Mr Simon Candlish dated 8 April 2020, [239]–[240] (citations omitted).
At this stage it is important to note that the offences which constitute a ‘serious violence offence’ for the purposes of the Act (as set out in sch 2 of the Act), aside from the offence of kidnapping, all involve serious injury or death.[46] Whereas, as Mr Candlish identifies in the passage above, the definition of violence within the HCR-20 encompasses a far broader range of violent offending or conduct. Furthermore, while Mr Candlish explained that the VRAG-R estimated the likelihood of ‘recidivism’, the respondent has never been convicted of a serious violence offence as defined. None of the experts expressly discussed whether, and if so how, the HCR-20 or the VRAG-R, could predict escalation of violent offending or the potential commission of a serious violence offence within the meaning of the Act, as compared to the risk of recidivism.
[46]Or intention, conspiracy or incitement to commit, or attempting to commit such an offence.
Utilising the VRAG-R, Mr Candlish assessed the respondent as falling in the 9th bin at the 99th percentile with only 1% of the VRAG-R sample receiving a higher score.[47] He explained that recidivism rates for individuals within this risk bin are 76% in five years and 87% in 12 years, whereas the base rate for violent offending is 32% for five years and 51% for 12 years.[48]
[47]Report of Mr Simon Candlish dated 8 April 2020, [237].
[48]Ibid.
While utilising the HCR-20, under the heading ‘risk scenarios’, Mr Candlish stated in his 8 April 2020 report:
Nature of the risk
[The Respondent] has engaged in violent behaviour in the context of non-sexual offending as well as sexual offending. He has used various weapons to achieve his offending. He has threatened serious harm or death.
Should [the Respondent] decide to offend in a non-sexually violent manner, he might strike a known or stranger individual with a weapon. He might assault using his fists or legs. He might engage in an armed robbery with or without a weapon. He might threaten to kill or seriously harm whilst unarmed or whilst holding a weapon.
There have been allegations of recently making threats to a girlfriend. Based on [the Respondent’s] history of emotional dysregulation, offending against females, conflictual style of interacting and serious intimacy issues, intimate partners represent potential victims of aggression by way of threats and actual physical violence based on prolonged interaction.
[The Respondent] appears most likely to offend in the context of feeling slighted or due to feeling angry in relation to another. He could offend whilst sober although is more likely to engage in violence when substance affected.
Severity of risk
Should [the Respondent] re-offend, the impact of his behaviour might range from mild to severe physical injury. Based on his considerable impulsivity and bouts of unregulated anger and aggression, as well as frequent threats of death and his recent threats about seeking a very long prison term, his offending behaviour might be fatal.[49]
[49]Ibid [262]–[266].
In relation to the HCR-20, Mr Candlish concluded:
Based on the configuration of the items of the HCR-20, [the Respondent] was assessed as requiring the High case prioritisation in order to address the risk posed.
This is based on the presence of definite relevant risk markers in all three domains of the HCR-20. He displays a history of violence. He displays serious personality dysfunction and mental health issues. He has an intellectual impairment.
[The Respondent] displays serious issues with engagement and compliance with case management supervision and has avoided treatment intervention. He has made serious threats against others in recent times with evidence of escalating volatility.[50]
[50]Ibid [267]–[269].
In his 15 June 2021 report, Mr Candlish stated that the respondent’s risk assessment as outlined in April 2020 remains valid, and that after revisiting the risk domains of the HCR-20 there were no changes noted in the relevant items.[51]
[51]Report of Mr Simon Candlish dated 15 June 2021, [36].
In his 8 April 2020 Report, Mr Candlish expressed his empirically guided clinical judgement to be that the respondent falls:
… into the High-risk category for violent recidivism of the nature outlined in the risk scenarios section, in the absence of any interventions designed to increase his manageability.[52]
[52]Report of Mr Simon Candlish dated 8 April 2020, [271].
Similarly, Dr Ong stated the following in relation to the HCR-20:
Overall, [the Respondent] has many risk factors indicative of risk for violent offending, both sexual and non-sexual. Overall, the identified risk factors for violent offending in the HCR20 have significant overlap with the ones identified for risk of sexual offending in the RSVP. It is to be noted that the HCR20 captures risk of both physical harm as well as, for example threat to physically harm another. It is my opinion that the risk of any future violence as per the HCR20, is high. [The Respondent] has displayed versatility in regards to his use of violence, both against males and females. This may occur in the context of him feeling his demands or needs are not being met. Violence could range from threats of harm to others through to actual physical violence, and may include the use of weapons. [The Respondent] is more likely to offend when intoxicated, but has demonstrated a facility for violence even without the disinhibiting effect of substances.[53]
[53]Report of Dr Kevin Ong dated 24 August 2020, 40.
While, in relation to the HCR-20, Dr Darjee stated in his report:
In terms of the ten historical factors, all ten factors are clearly relevant (problems with violence, other antisocial behavior [sic], employment, relationships, substance misuse, major mental disorder, personality disorder, violent attitudes, traumatic experiences, treatment/supervision). In terms of the five recent/current clinical factors, all five are clearly relevant (problems with insight, symptoms of major mental disorder, problems with instability, violent ideation, and problems with treatment/supervision). In terms of the five future risk management items (considered if he was unsupervised in the community), all five are clearly relevant (problems with professional services, personal supports, living circumstances, stress/coping, treatment/supervision). If he was in a residential facility in the community then there would perhaps only be partial problems with professional services. This is a very high number of relevant risk factors across all three domains. It should be noted that his risk factors for both violent and sexual offending are identical (looking at the items identified with the RSVP and HCR-20 v3) indicating that reducing risk factors for violent offending will also reduce risk of sexual offending.
Future violence risk scenarios which are pertinent in the community are situations where he is frustrated, angry and intoxicated; where he is determined to commit an acquisitive offence, but someone is in his way; or where he is confronted or feels threatened by someone. He may act impulsively or recklessly; and he could be threatening or physically aggressive. If intoxicated and emotionally dysregulated, if there is a weapon to hand, or depending on the reaction of a victim, there may be the potential for him to cause serious injury. Even without or [sic] alcohol misuse in a residential setting there is a risk of similar violent behaviour, particular if he feels the need to assert dominance, if he feels got at or disrespected, or if he feels it will help him get what he wants. The most likely scenario in this context would be verbal abuse and threats of violence, but he may escalate to serious physical harm if he feels cornered and feels there is no alternative.
My summary risk judgement ratings using the HCR-20v3 are high case priority, moderate risk of serious physical harm, and if he was unsupervised in the community there would be immediate concern that a violent offence could occur imminently, particularly if he returned to alcohol/substance misuse. In residential setting there may also be an imminent risk due to how he reacts to feeling controlled and perceived slights.[54]
[54]Report of Dr Rajan Darjee dated 31 May 2021, [34]–[36].
Expert evidence – risk management
Both Dr Ong and Mr Candlish were of the view that the respondent’s risk could not be adequately managed in a residential facility, residential treatment facility or other alternative accommodation.
Mr Candlish referred to the considerable challenges the respondent would pose for staff, the level of resources required to protect staff and residents, and the need for cooperation and meaningful engagement from the respondent. Mr Candlish also stated that it is difficult to identify modifications or services which could adequately manage the risk in a residential facility. He noted that possible modifications could include attempts to reduce the respondent’s movement around the facility and a prohibition on knives or other sharp implements, although such modifications may create their own difficulties including an angry reaction from the respondent.
In his 1 August 2020 Report, Mr Candlish expressed the following opinion in relation to the respondent’s risk of violence if residing at a residential facility (aside from Corella Place), a residential treatment facility or other accommodation:
[The Respondent] is currently considered to fall into the High-risk category for violence regardless of his accommodation type. In particular, he reveals blatant disregard for the safety of staff and for the rules and regulations of residential facilities in general. He has revealed increasingly hostile views regarding staff and residents. His overall compliance has deteriorated further. He has made recent comments that he plans to kill two residents. The level of compliance and responsibility taking required of residents in order to successfully reside at a residential facility or residential treatment facility is not being displayed by [the Respondent] at this time.
[The Respondent] reveals a greater risk for violence at residential and residential treatment facilities, based on the particularly hostile views he has revealed regarding Corella Place residential facility and the staff who work there. His aggressive attitudes have serious implications for the safety of the staff who work there.
Furthermore, previous attempts to manage the risks posed by [the Respondent], including pat downs prior to supervision, appear to now contribute to increasing aggresivity and anger. This further impacts on the ability of staff to manage [the Respondent’s] risk and again increases the risk of harm towards staff who provide case management supervision for him.
[The Respondent] has revealed an escalation in his aggressivity over time. Despite having committed serious violence in the past and being made subject to a Supervision Order, his behaviour on his Supervision Order has deteriorated, revealing a persistence of anger, agitation, threats and aggressivity. As outlined in the previous addendum report, the length of time [the Respondent] has been able to remain in a residential facility after release from prison has become progressively shorter. He has unfortunately progressed to more violent threats and more persistently hostile statements. He reveals pervasive anger and agitation that shows no signs of reducing. He reveals a greater desensitisation towards aggression and violent threats.
[The Respondent] appears to oscillate between threats to end his own life and threats to harm others as well as kill others. Empirical research suggests that there is a link between dangerousness to self and dangerousness to others with these two factors being found to co-exist more often than expected on the basis of change. His apparent willingness to cause an end to his life, in the context of his aggressive behaviours towards others, suggest a similar disregard for the safety of others. It reflects nihilistic attitudes that are highly relevant in considering his risk to himself and others.
Additionally, whilst at Corella Place, [the Respondent] also has independent access to sharp implements due to the independent nature of his accommodation. Given his current assessed risk level, including his assessed imminent risk, as well as his history of using weapons, including bladed weapons, this increases the risk of harm to others. This is particularly so in light of his apparent homicidal and suicidal ideation, his generally hostile attitudes, his threats to kill residents, and his ongoing nihilistic views and sense of alienation.
[The Respondent] is a relatively young, tall and solidly built man. These are also important factors to take into consideration in assessing his capacity to engage in serious and harmful violent acts against others.[55]
[55]Report of Mr Simon Candlish dated 1 August 2020, [72]–[78].
While in that passage Mr Candlish refers to the respondent having ‘committed serious violence in the past’, it is once again important to note that the respondent has never been convicted of a serious violence offence.
The need for Victoria’s post-sentence detention and supervision order regime to cater to offenders with an intellectual disability was recognised in the 2015 review of the predecessor to the superseded Act, conducted by the Hon David Harper AM, Paul Mullen and Bernadette McSherry, with the recommendations made including:
Recommendation 32
A new forensic residential disability service should be established to cater to offenders subject to the reformed post-sentence detention and supervision order scheme. While this residential service should operate under the Disability Act 2006 (Vic), it must be appointed a residential facility for the purposes of any legislation giving effect to the reformed post-sentence detention and supervision order scheme, so that courts have more options when making residence conditions. The facility, and any interim arrangements until the facility is operational, should have the capacity to respond to the significant proportion of offenders with an intellectual disability or cognitive impairment, being more than a third of those subject to post-sentence orders.
…
Recommendation 34
Any of the current or proposed accommodation options available under the reformed post-sentence detention and supervision order scheme should recognise the complexity of the cohort of offenders, such that irrespective of where an offender is residing, a multiple and complex needs approach should be applied to address co-occurring mental health and disability needs, substance use issues and problem behaviour. This approach should be reflected in the Intervention and Management Plan developed by the lead agency on the Public Protection Panel/s to deliver coordinated services and information sharing.[138]
[138]Complex Adult Victim Sex Offender Management Review Panel, Advice on the legislative and governance models under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) (November 2015) xxvii–xxviii.
Like Dr Darjee, I am deeply troubled that someone like the respondent can ‘fall between the gaps’ of services such that a detention order is considered the only available option. It is for this reason that, even if I were precluded from considering Rivergum as a means of managing the respondent’s risk and had otherwise found that the respondent’s risk was unacceptable unless a detention order were made, I would nevertheless exercise the residual discretion in s 62(5) of the Act to make no order. That discretion is expressed in broad terms. As the Court of Appeal explained in Nigro:
A substantial discretion … involves in part the assessment of what relative weight should be given to a series of potentially relevant considerations. No particular opinion as to such weighting can be uniquely right and the judgment is thus discretionary.[139]
[139]Nigro, 370 [39], citing NOM v Director of Public Prosecutions (2012) 38 VR 618, 633 [47].
Protection of community is the primary purpose of the Act. However, that consideration is primarily addressed by ss 63(1) and 64(1), which serve to enliven the Court’s power to make a detention order under s 62(1). By providing a separate and overriding discretion not to make an order under s 62(5), the legislature must have recognised that particular considerations, apart from community protection, may exist to justify refusal of an application for a detention order despite a positive finding of ‘unacceptable risk’.
The exclusion of the respondent and other intellectually disabled persons from Rivergum, and therefore from the only residential treatment facility in the State, is inherently discriminatory. To exclude in toto intellectually disabled people from any consideration of access to residential treatment facilities under the Act also denies the possibility of reasonable modifications to be made to those facilities. In my opinion, it is considerations such as these that s 62(5) is directed at addressing.
DFATS IRTP
The DFATS IRTP is a residential treatment facility under the Disability Act 2006 (Vic) (‘Disability Act’) that offers short-term stays of up to five years. It is designed to deliver offender rehabilitation and treatment to offenders with an intellectual disability in a secure environment with 24-hour support. Residents are accommodated in one of three units, with a total of 14 beds. Each unit has a shared kitchen and living area, and individual bedrooms. Staff have an office within each unit. Services can be delivered by external providers on site. It is a secure facility surrounded by a high fence and has CCTV.
Relevantly, the IRTP adopts an intensive cognitive behavioural therapy (CBT) approach, with the staggered transition of residents into the community. Dr Frize, whose role includes the management of IRTP, expressed the view that the treatment model is not suitable for the respondent, and that the respondent’s non-compliant and aggressive behaviour is likely to significantly interfere with the treatment of other residents and pose a risk of violence to staff and residents. He also said that the current staff ratio (two staff to five clients) may be inadequate to manage the respondent, and that the lack of powers to conduct pat down searches might also be problematic given the respondent’s history of attempting to manufacture weapons.
Dr Frize’s evidence was that modifications to the IRTP to reduce the respondent’s risk would be possible, albeit difficult. He said that the necessary modifications would include:
(a) a fundamental shift away from the current therapeutic treatment model that is provided at the IRTP;
(b) making significant changes in the physical space and security arrangements;
(c) the rostering of additional staff; and
(d) alternative methods of preventing occupational violence including the use of additional restraints that are not currently in use.
Although many of the flagged modifications might be considered necessary in order to minimise the disruption to other residents and their therapy, that is not the question which the Act requires me to consider. It is not clear on the evidence before me that all such canvassed modifications would be required to enable the facility to accommodate the respondent in a way that would reduce his risk of committing a serious violence offence so that the risk it is not unacceptable. This is particularly the case given the existing secure environment at DFATS IRTP and the presence of staff who are trained to manage individuals with intellectual disabilities.
However, I note that the position in regards to DFATS IRTP is complicated by the fact that it is not a treatment and supervision facility for the purposes of the Act, but rather a residential treatment facility for the purposes of the Disability Act. If a supervision order were made it could not include a condition that the respondent reside at DFATS IRTP. Instead, the power to admit the respondent to DFATS IRTP is held by the Secretary of the DFFH. On the evidence of Dr Frize, the respondent does not meet the criteria for admission under s 152(1)(d) of the Disability Act, which requires the Secretary to be satisfied that ‘the residential treatment facility can provide services for the treatment of the person with a disability and that treatment is suitable for that person’. However, ultimately that is a question for the Secretary of the DFFH to be considered if and when a supervision order is made.
Corella Place
While it is strictly unnecessary to make such a finding, I also consider that the respondent’s risk could be managed so that it is not unacceptable in a low security environment such as Corella Place, if provided with appropriate supervision, staffing and environmental controls, and appropriate disability and trauma informed management.
The respondent was not receiving such management while previously at Corella Place, yet any risk of him committing a serious violence offence did not materialise. In times of destabilisation the respondent’s behaviour has been able to be managed, albeit in a relatively punitive manner and often resulting in his return to custody for offences or breaches of his supervision order.
While the respondent has absconded from Corella Place on two occasions, he did not commit any violent or sexual offences on those occasions and was apprehended with reasonable promptness. The risk of absconding could also be minimised by additional supervision. The respondent has demonstrated a capacity for more stable behaviour when managed appropriately at the Marlborough Unit, albeit in a secure setting.
There are of course particular concerns which suggest that the respondent’s risk may be elevated if he were to return to Corella Place. These stem from his negative perception of Corella Place and the threats he has made in relation to staff and residents at Corella Place.
Many of the respondent’s negative statements about Corella Place relate to his longstanding wish not to be placed with paedophiles and other sexual offenders. Such views have been expressed as early as 2014. In this regard, at a sentencing hearing on 5 May 2014, Judge Campton observed:
… My views are, and have been for some time, that people who have committed offences of a sexual nature against adult women should be housed in a separate facility to those who have committed offences against children. They are different crimes and they are different people, and housing them together or in the same facility, in my opinion, can only lead to problems for the authorities. So I am saying all this, not out of – you do the crime you pay the price- - -
…
- but in so far as out community is concerned, I do not believe it assists in the rehabilitation of the adult sexual offenders to be in a facility with child sex offenders because there can be conflict between those two groups, and I am worried that someone will get seriously hurt. So that is on the record.[140]
At another sentencing hearing on 23 June 2014, Judge Campton similarly observed:
… I can see the real possibility of it becoming a revolving door and that would seem to me to be a disturbing aspect of this case, and it may well be that there are other defendants in the same position as [the respondent], but, once-again, I ask the authorities to look at the possibility of some sort of separate housing along the same lines perhaps as Corella Place, but not including people who have committed crimes against children.[141]
[140]DPP v CS (County Court of Victoria, Judge Campton, Reasons for Sentence, 5 May 2014), exhibited as exhibit SM-14 to the non-confidential affidavit of Sarah Miles sworn 5 March 2021, [26], [28].
[141]DPP v CS (County Court of Victoria, Judge Campton, Reasons for Sentence, 23 June 2014), exhibited as exhibit SM-15 to the non-confidential affidavit of Sarah Miles sworn 5 March 2021, [50].
In her affidavit Ms Hirst also observed:
[The respondent] has stated he does not want to live with paedophiles and rapists… Given his childhood history in relation to abuse, this may only serve to continue to re-traumatise him.[142]
[142]Affidavit of Colleen Hirst affirmed 30 July 2021, [76].
I also acknowledge that during the hearing of this application the respondent expressed to the Court that while he did not want to return to Corella Place, if that would avoid him being placed on a detention order, he would be willing to do so.
While I share Judge Campton’s concerns about the appropriateness of Corella Place, and in particular its appropriateness for the respondent given his history there, I am not convinced that, if appropriate supports and management were put in place in a low security environment — be it Corella Place or another more appropriate facility — the respondent would be an unacceptable risk of committing a serious violence offence.
In summary, as matters currently stand, none of the existing residential options appears to perfectly cater for the respondent’s needs, particularly in relation to his disability, and I accept that there may be a serious risk that if placed on a supervision order the respondent will continue to cycle in and out of prison, thereby depriving him of any opportunity to truly transition to living in the community. I also acknowledge that it will be difficult for the authorities to put in place the measures necessary to reduce the respondent’s risk; however, that is not the test with which the Court is concerned.
The future management of the respondent will require intensive efforts of his care team and the relevant authorities. Ideally, it would involve reconvening the MACNI process and creative options being explored. I acknowledge there is no simple solution and in many ways the respondent’s situation is like Gordian’s knot, with a bold, considered and flexible approach required moving forward.
Likely impact of detention order
I turn now to consideration of the likely impact of a detention order on the respondent.
My findings in relation to the respondent’s risk and its management are sufficient to prevent the applicant’s case from satisfying me to the requisite ‘high degree of probability’ of unacceptable risk unless a detention order were made. The following analysis serves to reinforce that conclusion.
The legal effect of a detention order would be to commit the respondent to detention in prison for the period of the order.[143] While a person subject to a detention order must be treated in a way that is appropriate for his or her status as an unconvicted prisoner[144] (including, as a general rule, being separated from prisoners undergoing custodial sentences),[145] the detention order is otherwise managed in accordance with the Corrections Act 1986 (Vic) and the Corrections Regulations 2019 (Vic), including their disciplinary procedures.
[143]The Act s 66.
[144]The Act s 255(1). See also Charter of Human Rights and Responsibilities Act 2006 (Vic) s 22(3).
[145]The Act s 255(2), (3). See also Charter of Human Rights and Responsibilities Act 2006 (Vic) s 22(2).
Importantly, decisions about the placement and movements of a person on a detention order are made under the Corrections Act and the Corrections Regulations, and not by the Court. In her evidence, Ms Hosking explained that these decisions are made by the Commissioner, with recommendations from the High Risk Management Advisory Panel, which receives reports from her unit.[146] Ms Hosking said that, given the respondent’s positive progress at the Marlborough Unit, she could not see any reason why he would be moved, but conceded that ultimately ‘it’s not my call’.[147]
[146]T371.04–11.
[147]T372.04–13.
I consider that, notwithstanding recent improvements in the respondent’s management in a custodial environment, there is a risk of the respondent’s needs becoming neglected over time. As noted by Mr Candlish:
… I think that if [the respondent] remains in a custodial environment – type environment, then what it means is that there needs to be greater scrutiny and greater focus on [the respondent] within that environment, to make sure, ah, that it's not an environment where he's languishing and not an environment where he’s, um, not, um, supported and provided the necessary resources.[148]
[148]T115.24–31.
It is unequivocal that the imposition of a detention order on the respondent would have a deleterious effect on him. The respondent has made clear that he does not want to be placed on a detention order. He has also conveyed on several occasions that he will self-harm if he is placed on a detention order. Ms Hirst was clear on this point. Dr Darjee stated that this threat of suicide must be taken ‘extremely seriously’[149] and that all that the respondent will hear is ‘you’re being locked up for the rest of your life’.[150] The respondent has exhibited more extreme behaviours in custodial environments, both in terms of harm to others and self-harm. Dr Darjee also noted that higher security settings could ‘actually make things worse’ and increase risk.[151]
[149]T215.08.
[150]T216.05–06.
[151]T181.22–23.
Furthermore, the evidence made clear that a sense of hope and a clear pathway to rehabilitation are essential to progress by the respondent. This is something he has critically lacked in his interaction with the justice system since his imprisonment in 2008. As Dr Darjee noted:
… [I]t is important that [the Respondent] is given hope and some clear future steps contingent on his behaviour. There needs to be a clear pathway for him to follow with expectations on him but also responsibilities on services to allow him to progress if he meets these. Short-term achievable steps should be set out with meaningful rewards.[152]
[152]Report of Dr Rajan Darjee dated 31 May 2021, [47].
I have also taken into account the fact that a detention order would plainly impact on the respondent’s rights, particularly his right to liberty. The applicant submitted that it is important to recognise that the respondent would be deprived of his liberty under any of the accommodation models proposed. However, even if he were in a secure facility whilst subject to a supervision order with, for example, strict restrictions on his freedom of movement, there would remain a greater possibility of accessing the community when he is in a position to do so than if he was subject to a detention order. Under a detention order the respondent would not just be deprived of his liberty but would also be required to adhere to the rules and restrictions for prisoners on a day to day basis. Even at the Marlborough Unit, the respondent would be in a prison unit where 35 people are confined to a relatively small place, residing in a small cell with bed time, eating time, food, and recreation controlled by the prison staff.
Ms Hosking expressed the view that, if placed in the Marlborough Unit, the respondent’s misconduct could be managed relatively well within the Unit.[153] However, if the respondent were to become a risk to staff and other prisoners, he could be moved to the Charlotte Management Unit within Port Phillip Prison or a different management unit, and if he were a risk to himself then he would be moved into an observation cell.[154] This is a very different deprivation of liberty to what would or could occur on a supervision order at a facility such as Rivergum, DFATS IRTP or Corella Place.
[153]T372.15–19.
[154]T372.26–T373.03.
In addition to the impact of the respondent’s right to humane treatment and liberty under s 22 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’), I have also had regard to the conceptual value of the other Charter rights of the respondent which would be engaged by the making of a detention order, particularly: the equality rights in s 8, in light of his disabilities; the right to protection from torture and cruel, inhuman or degrading treatment in s 10; the right to freedom of movement in s 12; the right to privacy in s 13; and the cultural rights in s 19.
While they do not ultimately impact on my conclusions, I also consider that it is appropriate to pay regard to two further matters in considering the potential impact of a detention order on the respondent.
Firstly, I consider that regard should be had to the respondent’s intellectual disability, personality disorders and his deprived upbringing. In the context of sentencing, an offender diagnosed with a personality disorder is treated as being in no different position from any other offender who seeks to rely on an impairment of mental functioning as a mitigating factor.[155] In relation to childhood deprivation and disadvantaged background, it has been stated in the context of sentencing that:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[156]
[155]Brown v R [2020] VSCA 212 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA), [6].
[156]Marrah v R [2014] VSCA 119, [16] (Redlich and Tate JJA) (citations omitted).
The respondent’s historical offending, and his risk of future offending, is clearly intertwined with his intellectual disability, personality disorders and childhood disadvantage. Dr Darjee’s evidence was that these factors would make his time under a detention order more difficult.
Secondly, I consider that the effect of the ongoing COVID-19 pandemic and the restrictions on prisoners which make prison more onerous, are relevant to the potential impact of a detention order on the respondent.
Conclusion
Having concluded that I am not satisfied the risk referred to in s 64(1) would be unacceptable unless a detention order were made, I am empowered under s 62(3) to make a new supervision order in respect of the respondent. Alternatively, I may make no order under s 62(5).
I have concluded that the respondent is an unacceptable risk under s 63 and I consider that the protection of the community requires that he be placed on a supervision order. As an interim detention order has now been made with respect to the respondent his previous supervision order has expired. If I were to make no order then the respondent would effectively be at liberty in the community.
At the hearing of the application, prior to the interim detention order being made, the applicant stated that they would not be making submissions in relation to any alternative orders.[157] At that time, the applicant’s position appeared to be that submissions in relation to a supervision order were a matter for the Secretary.
[157]T32.26–32.
The Secretary did not seek to make submissions on the conditions of a new supervision order at the hearing of this application. Instead, at the hearing of the interim detention order, counsel for the Secretary indicated that if the Court refuses to make a detention order the Secretary intends to make an application for a supervision order and, if necessary, immediately make an application for an interim supervision order.
I am therefore not in a position to make a supervision order under s 62(3) at this time.
I propose to dismiss the detention order application. However, I note that the effect of dismissing the application without making a supervision order under s 62(3) would be that the respondent’s interim detention order would expire. As such, before making any orders, I will invite further submissions on the orders which should be made in the present application. If no order under s 62(3) is sought, I will provide the opportunity for any further applications to be made and hear from the parties on the appropriate form of orders.
Appendix A
| DATE | OFFENCE(S) | SENTENCE/PENALTY |
| REDACTED |
5