DPP v DJD
[2017] VSC 776
•15 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0145
IN THE MATTER of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic)
and
IN THE MATTER of an application for a detention order
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| DJD | Respondent |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15, 16, 21 November 2017 |
DATE OF JUDGMENT: | 15 December 2017 |
CASE MAY BE CITED AS: | DPP v DJD |
MEDIUM NEUTRAL CITATION: | [2017] VSC 776 |
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PUBLIC LAW – Application for a detention order – Respondent accepts he is an unacceptable risk of committing a ‘relevant offence’ if a detention order or supervision order is not made – Whether appropriate order is a supervision order or a detention order – Whether the risk of the respondent committing a relevant offence would be unacceptable unless a detention order was made – Consideration of the risk presented by the respondent – Port Phillip Prison – Marlborough Unit – Hopkins Correctional Centre – Greenhill Unit – Corella Place – Detention order made for a period of one year.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms L A Taylor QC with Ms J Davidson | Mr John Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr J McLoughlin | Victoria Legal Aid |
HIS HONOUR:
By Application for a Detention Order made on 27 July 2017, the Director of Public Prosecutions applies under s 33 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the Act’) for a detention order in respect of DJD, the respondent.
Background
The respondent was born on 14 May 1978 in Hobart, Tasmania, the younger of two siblings.
The respondent has reported that he was sexually assaulted by his sister’s boyfriend at the age of 14, in about 1992.
With respect to his schooling, after repeating grade 3 at the age of 10, the respondent had difficulties with literacy and numeracy skills. He attended New Norfolk Secondary School in Hobart where he completed years 7 to 10 and also attended a special school one day per week. The respondent then went to Claremont College where he completed year 11. The respondent reported that he did not enjoy school because he had learning difficulties and was bullied.
After leaving school in 1997, he received a disability support pension and worked in a sheltered workshop in Tasmania for three years. Between 1997 and 2006, the respondent moved between Tasmania and Melbourne before relocating permanently to Melbourne in 2006.
On 21 May 1998, at the age of 20, he was convicted of charges of unlicensed driving and driving an unregistered and uninsured motor vehicle (such offences being committed on 13 March 1998) and was fined.
In 2002, the respondent was living in Melbourne where he was employed at Brite Industries, a supported workplace, where he worked for two years. While in Melbourne he was diagnosed with epilepsy and prescribed Epilim.
After returning to Tasmania in about 2004, he worked for his cousin filling vending machines; but he ceased employment in 2007 and has not worked since that time.
On 5 August 2004, he was convicted in Hobart, Tasmania, of using threatening words (such offence being committed on 18 May 2004) and sentenced to a good behaviour bond.
On 8 November 2004, he was convicted in Hobart, Tasmania, of failing to comply with the direction of a police officer (such offence being committed on 15 October 2004) and was fined $100.
In 2005, he was diagnosed with depression.
On 16 January 2006, he was convicted in Hobart, Tasmania, of destroying property and behaving in a violent manner and fined $250.
In 2007, his full-scale IQ was assessed at 66 and he was described as falling within the mildly intellectually disabled range.
During 2007, the respondent was convicted in Hobart, Tasmania, on four separate occasions of charges of disorderly conduct and/or failing to comply with the directions of a police officer, for offences committed in 2007.
The respondent says that, in or about 2007, he attempted suicide variously by:
(a) trying to set himself on fire;
(b) taking an overdose of his uncle’s medication;
(c) putting a gun to his head but being stopped by his mother;
(d) trying to hang himself.
On 31 January 2008, the respondent was convicted in Hobart, Tasmania, of four charges of obtaining goods by false pretences, one charge of destruction of property and one charge of committing a nuisance (such offences being committed in May 2007). The last of those charges was constituted by the respondent defecating on five bus seats.
On 19 March 2009, the respondent was convicted in Melbourne, Victoria, of the following charges:
(a) one charge of indecent act in the presence of a child under 16;
(b) two charges of indecent assault;
(c) two charges of wilful and obscene exposure in public;
(d) four charges of behaving in an offensive manner in a public place;
(e) one charge of theft and obtaining financial advantage by deception.
He was sentenced to a total effective sentence of 12 months’ imprisonment, with a non-parole period of 6 months. He was made subject to reporting obligations under the Sex Offenders Registration Act2004 for life.
The conduct constituting those offences was as follows:
(a)On 27 October 2008, he committed the offence of obtaining a financial advantage by deception by ordering food and alcohol valued at $190 at a hotel in Prahran and leaving without paying the bill.
(b)On the same day, he committed four counts of offensive behaviour and one count of an indecent act in the presence of a child under 16 constituted by the following:
(i) masturbating himself under his shorts on a tram near female passengers;
(ii)masturbating himself in front of 40 female students on a tram and asking a 14 year old if she wanted to help him masturbate;
(iii)while on a tram, placing his hand on the knee and the shoulders of a 16 year old female and then kissing her.
(c)On 19 November 2008, the respondent boarded a tram, pulled a condom from his wallet, unsealed it and asked a 16 year old female seated opposite him if she wanted to have sex with him. He discussed sexual matters and placed his hand on the female’s thigh and started rubbing her leg. He then moved next to her and rubbed his shoulder against hers. He also attempted to kiss the female.
(d)On 20 November 2008, the respondent was observed by four teenage males pulling his pants down around his knees and masturbating while on a tram. After he alighted from the tram, he entered a restaurant and sat beside a victim and began masturbating until he was directed to leave the restaurant.
The respondent was released from prison for this conduct on 23 November 2009.
On 6 January 2010, the respondent was convicted in Sydney, New South Wales, of a charge of assault with act of indecency (such offence being committed on 21 December 2009). The circumstances constituting the offence are clear; but the conduct constituting the offence appears to have been either:
(a)grabbing a female’s breast after offering to help her with groceries as she disembarked from a bus; or
(b)grabbing a female victim by the groin while aboard a bus.
On 12 April 2010, the respondent was convicted in Sydney, New South Wales, of one charge of larceny and one charge of obtaining money by deception for conduct between 18 December and 20 December 2009, each involving less than $2,000. He was sentenced to 6 months’ imprisonment on each charge.
On 20 July 2010 in Hobart, Tasmania, the respondent was arrested and charged with two offences of assault with indecent intent on the basis of the following allegations:
(a)At approximately 1:45 pm on 7 July 2010, the respondent approached a 17 year old female in her school uniform in a busy area and grabbed her vagina. He ran away when she screamed.
(b)At approximately 4:15 pm on 20 July 2010, having spent three to four hours watching a waitress at the cinema, the respondent followed her into a toilet where he touched her breasts and thigh.
These charges have not been determined.
On 27 April 2011, the respondent was convicted in Melbourne, Victoria, of two charges of indecent assault, one charge of intentionally causing injury and one charge of recklessly causing injury arising out of incidents on 18 and 19 August 2010. On the charges of intentionally and recklessly causing injury respectively he was sentenced to a total effective sentence of 20 months’ imprisonment (16 months and 8 months respectively), with 12 months suspended for a period of two years. On the indecent assault charges, he was ordered to be subject to a Residential Treatment Order for 5 years. As a result of the orders he was released from prison to the Disability Forensic Assessment and Treatment Service (DFATS), a residential treatment facility at Fairfield. The conduct constituting these offences was as follows:
(a)On 18 August 2010, the respondent followed his female victim from a tram where he lunged at her grabbing at her groin and clothing. When she screamed he said, ‘shut up bitch’ and punched her in the face; and tried to pull down his own trousers.
(b)On 19 August 2010, he approached a female on a tram and attempted to speak to her. He followed her off the tram, pushed her and put his belt around her neck dragging her to the ground. She hit her head on the road and was lying on her back with the respondent on top of her, one leg either side. He ripped open her shirt and T-shirt exposing her breasts. The victim attempted to free herself by stabbing him with a pen. The respondent withdrew after passing cars sounded their horns.
On 31 August 2010, the respondent was being assessed at the Melbourne Assessment Prison by Dr Dion Gee, psychologist, and Dr Kate Roberts, psychiatrist. At the conclusion of the interview, the doctors stood to leave and the respondent lunged across the table to grab Ms Roberts by the arm. Dr Gee moved his arm across to intervene, but may not have made contact, when the respondent withdrew his hand stating, ‘I just can’t help myself’. Although Dr Gee considered the threat over, he suggested that Dr Roberts press her duress button for the purpose of demonstrating to the respondent that such inappropriate conduct would have consequences.
On or about 8 September 2010 at the Melbourne Assessment Prison, the respondent stated that he was experiencing urges to ‘grab’ a female clinician and informed a female that he felt like raping her.
On 7 February 2012, the respondent was convicted in Melbourne, Victoria, of one charge of intentionally causing injury and one charge of indecent assault and was sentenced to a total effective sentence of 5 years and 4 months’ imprisonment, with a non-parole period of 3 years and 4 months. It was declared that he had served 253 days by way of pre-sentence detention. The offences arose out of an attack on a Disability Support Worker at DFATS on 9 June 2011. The circumstances of the offending were described by Judge Punshon as follows:
You are a large man and you grabbed your much smaller victim from behind after she had locked a kitchen and was walking towards an office. You grabbed her forcefully on the shoulders saying, “Come here you bitch” and dragged her towards a bathroom. She screamed for help and told you to stop and let her go. She broke free but you grabbed her again. You pulled her jumper off and a struggle ensued with the victim falling to the ground. In the course of overpowering her you swung her on her back, leant over her and tried to pull up her T-shirt. Whilst she struggled you opened a bathroom door saying, “Get in here bitch”. You pulled down her tracksuit pants and tried to force your hand into her vagina. She continued to struggle as best she could and whilst still trying to get her pants down you grabbed her feet and dragged her in to the bathroom saying, “Get in there bitch”. Others then came to the aid of the victim and you were restrained.
The respondent admitted that:
(a) the attack was premeditated;
(b)he ‘pretended to be sick’ so that he could remain in the unit with the victim; and
(c) he had planned to harm the victim.
On 16 September 2011, after he was charged with intentionally causing injury and indecent assault, the Residential Treatment Order was cancelled and he was returned to prison.
On 7 August 2012, the respondent was convicted in Melbourne, Victoria, of one charge of criminal damage to property and one charge of unlawful assault; and fined $300 on each charge.
On 24 June 2013, the respondent was convicted in Melbourne, Victoria, of one charge of criminal damage by fire (arson) and sentenced to 6 months’ imprisonment to be served concurrently with his existing sentence. The circumstances of the offending were that on 28 July 2012, the respondent set fire to his cell, which had to be extinguished by staff.
On 25 October 2013, the respondent was convicted in Sunshine, Victoria, of one charge of unlawful assault and sentenced to 14 days’ imprisonment to be served concurrently with the sentence that he was already serving. The circumstances of the offending were that on 7 January 2013, the respondent grabbed a female nurse around the head and neck area and was shaking her. Staff came to the victim’s assistance and restrained the respondent. The nurse had been conducting a health assessment with the respondent at the time and he grabbed hold of her and pulled her to the ground ripping her shirt in the process.
On 19 July 2013, the respondent was observed to be acting in a disinhibited and sexualized manner. He attempted to hug staff, asked whether they wanted to see his penis; and exposed himself. At about this time he was moved from Marlborough Unit into the Charlotte Management Unit at Port Phillip Prison.
On 22 July 2013, the respondent claimed he had been sexually assaulted by another prisoner. The other prisoner said he had been invited into the respondent’s cell for coffee and, when the door was shut, the respondent took off his clothes and was laughing and giggling. The other prisoner stated that he then left the cell.
On 19 May 2014, the respondent was convicted in Sunshine, Victoria, of one charge of criminal damage by fire and one charge of criminal damage with intent and sentenced to 6 months’ imprisonment. The circumstances of the offending were that on 18 September 2013, the respondent set fire to his cell. When staff opened the trap, the respondent threw his TV towards the cell door.
On 27 April 2015, the respondent was convicted in Sunshine, Victoria, of one charge of unlawful assault and sentenced to one day’s imprisonment.
On 13 July 2015, the respondent was convicted in Geelong, Victoria, of one charge of criminal damage by fire and sentenced to 3 months’ imprisonment. The circumstances of the offending were that on 1 February 2014, the respondent lit fire to his personal clothing and other items within his cell. The fire was extinguished through the trap.
On 12 September 2015, the respondent said that he had been raped by a prisoner on 18 June 2015.
In April 2016, the respondent attempted suicide at Port Phillip Prison. He was transferred by ambulance to St Vincent’s Hospital to obtain treatment for deep lacerations.
On 5 August 2016, the Secretary to the Department of Justice and Regulation filed an application for an interim supervision order and an application for a supervision order in the County Court of Victoria in respect of the respondent.
On 21 September 2016, Judge Quin made an interim supervision order commencing upon his release from prison on 26 September 2016.
On 24 January 2017, Judge Quin extended the interim supervision order made on 21 September 2016 to 23 May 2017.
On 14 February 2017, the respondent was convicted in Melbourne, Victoria, of one charge of threat to commit a sexual offence under s 43(1) of the Crimes Act 1958,[1] one charge of criminal damage, two charges of assault with a weapon and two charges of failing to comply with a supervision order (breach by ‘violent offence’ and breach by ‘relevant offence’) and was sentenced to a total effective aggregate sentence of 10 months’ imprisonment (116 days were declared to have been served by way of pre-sentence detention). Judge Quin found that there was a causal nexus between his intellectual disability and his offending and consequently that a ‘special reason’ existed for the purposes of s 10AB of the Sentencing Act 1991. The conduct constituting these offences occurred on 21 October 2016, at Corella Place, and was as follows:
[1]‘Relevant offence’ is defined in s 1 of the Act as an offence listed in Schedule 1. Clause 42 of Schedule 1 refers to ‘an offence that, at the time it was committed, was an offence listed in this Schedule’. A threat to commit a sexual offence under s 43(1) of the Crimes Act 1958 was listed in clause 6 of Schedule 1 to the Act.
(a)The fire alert in the respondent’s unit was activated and staff discovered a number of smoldering items which they extinguished. Staff also found the following:
(i) Faeces and food on the wall and floor.
(ii) Smashed plates and cutlery on the floor.
(iii)An open magazine with a double page spread of three photographs of a nude female with handwritten notes stating:
I love [Paula], this is my girlfriend [Paula] from Corella Place. I want to rape. Ooh pussy this is my lover. Corella Place, [Christine]. My dick, [Paula] pussy.[2]
[2]Paula and Christine are pseudonyms. The names actually used were of two female employees at Corella Place.
(iv)A handwritten note signed and dated that day referring to [Paula] and noting that the respondent was to ‘rape her soon [Christine] true’.
(b)The respondent tried to use a knife to remove an ankle bracelet. He approached a staff member at the reception window wearing a blood-covered singlet and holding a large knife with which he stabbed the window.
(c)The respondent left Corella Place wearing an electronic monitoring device and attempted to flag down a passing motorist.
(d) The respondent self-harmed with the knife.
On 24 January 2017, Judge Quin extended the interim supervision order until 23 May 2017.
On 17 August 2017 (before the completion of the sentence imposed by Judge Quin on 14 February 2017), Justice Coghlan made an interim detention order for a period of four months, commencing upon the respondent’s release from prison on 19 August 2017.
During the period that the respondent has been the subject of the interim detention order, concerns were raised that he was exhibiting inappropriate behaviour, namely unwanted attention, towards a female education provider at the Marlborough Unit at Port Phillip Prison. On 12 September 2017, this provider reported that the behaviour had ceased.
On 15 September 2017, the respondent self-harmed by cutting his legs, his left arm and chest with a razor blade. He was treated for his injuries at St Vincent’s Accident & Emergency and then placed in an observation cell in the St Paul’s Psychosocial Unit at Port Phillip Prison, where he remained until he was deemed suitable to return to the Marlborough Unit at Port Phillip Prison on 20 September 2017.
On 25 October 2017, the respondent self-harmed by cutting his right leg and left hand. Staff treated his injuries, which were superficial, and he was placed in the observation cell in Sirius East on ‘S1’ watch.
When visited by the disability coordinator and specialist forensic disability worker on 26 October 2017, the respondent was observed to be acting inappropriately including commenting to the disability coordinator that he loved him and that he was not safe around him and blowing him a kiss.
On 29 October 2017, a female psychiatric nurse found the respondent naked in his observation cell except for a bedsheet. He refused to put on his clothes until instructed to do so by a correctional officer.
Statutory regime
Section 1 of the Act provides for the purposes of the Act as follows:
(1)The main purpose of this Act is to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision.
(2)The secondary purpose of this Act is to facilitate the treatment and rehabilitation of such offenders.
Section 33(2) of the Act provides that ‘[t]he Director of Public Prosecutions may apply to the Supreme Court to make a detention order in respect of a person who is an eligible offender.’
An eligible offender is defined in s 4, which relevantly provides as follows:
4 Who is an eligible offender?
(1) A person is an eligible offender if—
(a) the person is of or over the age of 18 years; and
(b)a court has at any time (whether before, on or after the commencement of this Act) imposed a custodial sentence on the person in respect of a relevant offence; and
(c)at the time at which an application is made under Division 1 of Part 2 for a supervision order, or under Division 1 of Part 3 for a detention order, in respect of the person, he or she is serving in Victoria—
(i)a custodial sentence for a relevant offence (a relevant sentence); or
(ii)another custodial sentence served concurrently with the relevant sentence or cumulatively on the relevant sentence or on another sentence that was uncompleted at the time of completion of the relevant sentence, whether that other sentence was, or those sentences were, imposed before, at the same time or after the relevant sentence.
(2)A person is an eligible offender if at the time at which an application is made under Division 1 of Part 2 for a supervision order, or under Division 1 of Part 3 for a detention order—
(a)the person is remanded in custody, or is serving a custodial sentence, in a prison in respect of an offence; and
(b) the person—
(i)is subject to a supervision order or a detention order or an interim order; or
(ii)was subject to a supervision order or a detention order or an interim order at the time that the person was remanded or commenced serving a sentence of imprisonment for the offence; or
(iii)was an eligible offender who was the subject of an application for a supervision order or a detention order at the time the person was remanded or commenced serving a sentence of imprisonment for the offence.
(3)A person is an eligible offender in relation to an application for a detention order if the person is subject to a supervision order or an interim order.
(4)A person is an eligible offender in relation to an application for a supervision order if the person is subject to a detention order or an interim order.
It is not disputed that the respondent is an eligible offender:
(a) under s 4(1) of the Act because:
(i) The respondent is a person over the age of 18; and
(ii) on 14 February 2017, a court has imposed a custodial sentence on the respondent in respect of a relevant offence being threat to commit a sexual offence;[3] and
[3]See [42] above.
(iii)on 27 July 2017, the time at which this application was made for a detention order, the respondent was serving a custodial sentence for that relevant offence.
(b) under s 4(2) of the Act because the respondent was:
(i)on 27 July 2017, the time at which this application was made for a detention order, serving a custodial sentence for an offence; and
(ii) on 14 February 2017, being the time he commenced serving a sentence of imprisonment for the offence, subject to an interim supervision order (s 4(2)(b)(ii)).[4]
(c)under s 4(2) of the Act because on 27 July 2017, the time at which this application was made for a detention order, the respondent was:
(i) serving a custodial sentence for an offence; and
(ii)was an eligible offender who was the subject of an application for a supervision order at the time he was remanded or commenced serving a sentence of imprisonment for the offence (s 4(2)(b)(iii)).[5]
[4]On 24 January 2017 Judge Quin extended the interim supervision order made on 21 September 2016 until the final determination of the application for a supervision order or until 23 May 2017.
[5]See [39]–[41] above.
Before making a detention order the Court must be satisfied of the following:
(a)The offender is an unacceptable risk of committing a relevant offence if the detention order is not made, under s 35 of the Act which provides:
35 Court must first be satisfied that there is an unacceptable risk
(1)On an application under section 33, the Supreme Court may make an order in respect of an eligible offender only if the Court is satisfied that—
(a)the offender poses an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community; or
(b)in the case of an offender who is serving a custodial sentence or is in custody on remand, the offender will pose an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community on the offender’s release from custody on remand or at the end of the custodial sentence, whichever is earlier.
(2)In determining whether the offender is likely to commit a relevant offence in the circumstances described in subsection (1), the Supreme Court must, subject to this Division, have regard to—
(a)any assessment report or progress report filed in the Court, whether by or on behalf of the Director of Public Prosecutions or the offender; and
(b)any other report made, or evidence given, in relation to the application; and
(c) anything else the Court considers appropriate.
(3)In determining whether or not the offender poses an unacceptable risk as set out in subsection (1), the Supreme Court must not consider the means of managing the risk or the likely impact of a detention order or supervision order on the offender.
(4)For the avoidance of doubt the Supreme Court may determine under subsection (1) that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not.
(5)The Director of Public Prosecutions has the burden of proving that the offender poses an unacceptable risk as set out in subsection (1).
(b)The offender is an unacceptable risk of committing a relevant offence unless a detention order were made, under s 36 of the Act which provides:
36 Decision to make order
(1)If the Supreme Court is satisfied that the unacceptable risk set out in section 35(1) exists, the Court before making a detention order must be satisfied that the risk of the offender committing a relevant offence would be unacceptable unless a detention order were made.
(2)For the avoidance of doubt the Supreme Court may determine under subsection (1) that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not.
(3)If the Supreme Court is satisfied that the risk would be unacceptable unless a detention order were made, it may make a detention order in respect of the offender.
(4)If it is not satisfied that the risk would be unacceptable unless a detention order were made, the Supreme Court may make a supervision order in respect of the offender.
(5)The Supreme Court may make no order in circumstances where it is empowered to make a detention order or supervision order under this section.
(6)Divisions 2 to 4 of Part 2 (with any necessary modifications) apply to the making of a supervision order under this section as if it were a supervision order made under that Part.
Section 37 of the Act requires that the Court may decide it is satisfied of the requirements under ss 35(1) and 36(1) ‘only if it is satisfied—
(a) by acceptable, cogent evidence; and
(b) to a high degree of probability—
that the evidence is of sufficient weight to justify the decision’.
Section 38 of the Act sets out the requirements of a detention order as follows:
38 Detention order
(1)A detention order must state that the Supreme Court is satisfied that the offender poses an unacceptable risk of committing a relevant offence if the detention order is not made and the offender is in the community.
(2) A detention order must also specify—
(a)the name of the offender in respect of whom the order is made; and
(b) the date on which the order is made; and
(c)the date on which the order commences as provided by section 39; and
(d) the period of the order as provided by section 40; and
(e)the latest date by which an application for the first review of the order must be made under Part 5 and the maximum intervals between subsequent reviews.
(3)A detention order must be signed by the judge who made it and include his or her name.
Section 42 of the Act provides that ‘[t]he effect of a detention order is to commit the offender to detention in a prison for the period of the order’.
Principles
Before the Court has the jurisdiction to make a detention order under s 36(3) of the Act, in summary, it must be satisfied of the following:
(a)The offender poses an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community.[6] In determining whether it is so satisfied, the Court must not consider:
(i)the means of managing the risk; or
(ii)the likely impact of a detention order or supervision order on the offender.
(b)The unacceptable risk, under s 35(1)(a) referred to in sub-paragraph (a) above, would be unacceptable unless a detention order was made.
Accordingly, if for example, the risk of committing a relevant offence would not be unacceptable if a supervision order were made, then the Court does not have jurisdiction to make a detention order. In determining this question, the Court is entitled to consider the means of managing the risk and the likely impact of a detention order on the offender.[7]
[6]The Act s 35(1)(a).
[7]Director of Public Prosecutions v JPH [No 2] (2014) 239 A Crim R 543, 551 [31] (T Forrest J).
The determination of whether there is an unacceptable risk is an evaluative task requiring assessment of the degree of the risk of the offender committing a relevant offence and the gravity of the harm that may result from the commission of the offence.[8] In undertaking the evaluation, the following principles are applicable:
(a)Because of the common law presumption in favour of liberty, 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’.[9]
(b)For a risk to be unacceptable it is not necessary for it to be more likely than not.[10] However, ‘there must be 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’.[11]
(c)The facts which support the finding of an unacceptable risk must be established by acceptable and cogent evidence to a high degree of probability, which is ‘a standard well above the civil standard and approaching the criminal standard’.[12]
[8]Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 380 [75] (Redlich, Osborn and Priest JJA).
[9]Ibid 363 [5].
[10]The Act ss 36(2), 45(4).
[11]Nigro v Secretary of the Department of Justice (2013) 41 VR 359, 363 [6].
[12]Ibid 363 [6].
Residential options
A number of residential options were identified but the evidence concentrated on the following three, which were inspected by the Court at a view conducted on Thursday, 16 November 2017:
(a) Corella Place facility, located just outside the Hopkins Correctional Centre.
(b) The Greenhill Unit which is part of the Hopkins Correctional Centre.
(c) The Marlborough Unit at Port Phillip Prison.
Corella Place
Corella Place has the capacity to accommodate 40 residents in a communal residential facility consisting of self-contained units positioned around a small lake. Its features include the following:
(a)It is not a secure facility and there is no physical impediment to residents entering and leaving.
(b)Residents are expected to access services in the community and order is maintained by Victoria Police.
(c)Residents are permitted to have outings, usually accompanied by staff but then may gradually transition to unaccompanied excursions.
(d)Residents have community based rehabilitation programs available.
(e)Corrections Victoria has the capacity to electronically monitor persons by:
(i)global position system monitoring, which can monitor the resident’s movements and location within the community; and/or
(ii)radio frequency monitoring which can identify whether a person is within or outside a defined area.
Both systems require the resident to wear an electronic bracelet on their ankle.
(f)Residents are able to move freely within the Corella Place facility. Corella Place has approximately 27 female staff and female professionals, including clinicians and community support workers, regularly visit the facility.
Greenhill Unit
The Greenhill Unit was purpose built for detention order prisoners and has a capacity for 8 persons. It is part of the Hopkins Correctional Centre which is a medium security facility with capacity for about 800 prisoners.
The detainees live independently in their units and have facilities for cooking their own meals and generally living independently.
The Greenhill Unit is separated from the main prison only by a fence, which is the height of a normal suburban fence.
Detainees may participate in programs conducted at the adjoining units in the main prison.
The detainees are locked in their units at night without supervision and contact with prison authorities is by way of an intercom, if the needs arises.
Marlborough Unit
The Marlborough Unit is a maximum security unit at Port Phillip Prison. It has 35 beds and accommodates prisoners on remand and sentenced prisoners with cognitive impairment (mainly intellectual disability and acquired brain injury).
A custodial officer’s desk is located on the ground floor with a line of sight to each of the cell doors.
The unit includes a range of facilities including supervised cooking and a horticultural program. Prisoners receive offence specific treatment for sentenced intellectually disabled persons from the Specialised Offender Assessment and Treatment Service.
The prisoners’ cells are not Building Design Review Project compliant; and the observational cell is not ‘Muirhead’ compliant.[13]
[13]A reference to the recommendations of the the Royal Commission into Aboriginal Deaths in Custody by Commissioner JH Muirhead QC.
Relevant considerations
In determining whether or not an eligible offender poses an unacceptable risk, the Court is required to have regard to:
(a)any assessment or progress reports filed in the Court by the DPP or the offender;
(b)any other report made, or evidence given, in relation to the application; and
(c)anything else the Court considers appropriate.[14]
[14]The Act s 35(2).
The evidence
Ms Kathleen Ballard, the Manager of Disability Justice at the Department of Health and Human Services swore an affidavit and gave oral evidence at the hearing. Her affidavit was to the effect that the respondent did not meet the criteria for a Supervised Treatment Order under the Disability Act 2006 and that his risk could not be managed under a Supervised Treatment Order or in other facilities or accommodation in the community available to persons with intellectual disabilities. Her oral evidence related to the difficulties with providing the respondent with the services of a Disability Forensic Support Worker in Ararat, where the Greenhill Unit and Corella Place are located.
Ms Vicki Quinton, Principal Practice Leader, Compulsory Treatment, Senior Practitioner - Disability Team, Department of Health and Human Services, swore an affidavit and gave oral evidence at the hearing in support of the evidence of Ms Ballard.
Mr Brendan Money, the Assistant Commissioner, Sentence Management Division, Corrections Victoria swore an affidavit and gave oral evidence at the hearing. His evidence included the following:
(a)Since the interim detention order was made with respect to the respondent on 19 August 2017 the following disability support, case management and treatment measures have been implemented:
(i)a disability co-ordinator and a prison officer, funded by Corrections Victoria, have commenced working in the Marlborough Unit to assist in the respondent’s management;
(ii)a specialist forensic disability support worker from the Department of Health and Human Services, Mr Gonsalves, has been employed to work with the respondent for five hours per day from Monday to Thursday for the purpose of reinforcing treatment goals providing additional stability, structure and opportunity to the respondent while in detention;[15]
[15]Mr Gonsalves attended Court with the respondent during the course of the hearing.
(iii)the disability co-ordinator at the Marlborough Unit works with the respondent on a weekly basis to develop a schedule of activities;
(iv)The respondent has weekly supervision sessions with a specialist case manager, who is trained to manage sexual offenders; and
(v)The respondent commenced weekly individual treatment with a High Risk and Complex Needs clinician utilising the Dialectical Behaviour Therapy Framework, targeting emotional regulation and distress tolerance skills prior to undertaking offence-specific treatment. This treatment is based on a recommendation by Specialist Offender Assessment and Treatment Service.
(b)A detention management plan has been prepared in the event that the respondent is made the subject of a detention order. The plan includes the disability support measures set out in Schedule 1; and the risk management measures set out in Schedule 2.
(c) The plan also sets out details of:
(i) monthly progress reporting and reviews;
(ii) avenues for complaints by the respondent; and
(iii)accountability and responsibility for implementation on the proposed measures.
Professor James Ogloff prepared a report dated 25 July 2017 and gave oral evidence. He diagnosed the respondent as suffering from a personality disorder which is characterised by both borderline and anti-social features. However, he did not consider that the respondent met the criteria necessary for a full diagnosis of either disorder.
Professor Ogloff’s opinion was that the features required to support the respondent’s disability and other limitations were:
(a)an environment in which he can be provided with some assistance and guidance in his activities of daily living;
(b)therapeutic support to assist him in interpreting and navigating his environment;
(c)intervention appropriately targeted to his level of intellectual functioning; and
(d)staff who work with him to have a good level of understanding of, and ideally some should have expertise with intellectual disability and his other deficits.
He addressed each of the matters as required by s 109(1) of the Act, and his assessment of the risk that the respondent would commit another relevant offence if released into the community and not made subject to a detention order or a supervision order, as required by s 109(2) of the Act, was as follows:
It is my opinion, based on my examination of [the respondent] and the administration and interpretation of the risk assessment measures I have undertaken, that he would pose a high risk of sexual offending should he be released into the community.
Professor Ogloff further opined as follows:
(a)The two primary concerns were to protect the respondent from self-harm; and to protect others from acts of physical harm, including acts of inappropriate sexualised behaviour towards primarily female staff.
(b)For reasons he explained, particularly concerns about self-harm, he considered that detention in the Marlborough Unit with the proposed support measures was the most appropriate detention facility for the respondent. In particular, he expressed concern about the respondent self-harming in the less restrictive environments of Greenhill and Corella Place.
Dr Dion Gee prepared two reports dated 1 October 2017 and 12 November 2017 and gave oral evidence. He considered that the respondent did suffer from a borderline personality disorder, which was co-morbid with an intellectual disability, together with anti-social features.[16] Dr Gee emphasised the importance of a long term, stable and consistent period of intervention if the respondent’s future treatment is to be successful.
[16]Cf [75] above.
Dr Gee addressed the matters as required by s 109(1), and as required by s 109(2) of the Act, opined as follows:
Based on the information available to me and in light of my assessment, I am of the opinion that [the respondent] presents with a high risk of committing a relevant sexual offence in the community if not made subject to an order under the Serious Sex Offenders (Detention and Supervision) Act; an order that would - at least initially - now best take the form of a Detention Order. Accepting that [the respondent], as a human being, will attempt (either prosocially or through other means) to meet the range of requisite primary human needs, it is important that efforts are also made to avoid thwarting prosocial attempts by restricting [the respondent’s] access to those opportunities and social resources that could help instil a more functional, fulfilling, and prosocial lifestyle.
Dr Gee noted Professor Ogloff’s opinion was that the features required to support the respondent’s disability and other limitations and did not consider that the Marlborough Unit would be optimal for the treatment of the respondent; but he opined that it was the ‘least worse’/’least harmful’ of the accommodation options. In particular, he considered that the risk of self-harm precluded placement in the Greenhill Unit and expressed the view that the respondent was ‘not ready’ for Corella Place.
As I am required to do, I have also had regard to the material filed on behalf of the DPP and the respondent as set out in Schedule 3 and I have also had regard to a victim submission filed pursuant to s 94 of the Act. In particular, I have considered the following reports:
(a)Assessment of Dr Sophie Reeves dated 20 May 2016 in which, as required by s 109(2) of the Act, she opined as follows:
[The respondent’s] risk of sexual re-offending is high. That is, his risk of sexual reoffending is significantly higher than that of the average sex offender and he will require a high level of intervention in order to reduce his risk. Such intervention will need to include strict monitoring and supervision as well as treatment.
She confirmed her opinion in her further report dated 1 May 2017.
(b)Assessment of Dr Kevin Ong dated 15 May 2017 in which, as required by s 109(2) of the Act, he opined as follows:
From the information available to me, it is my opinion that [the respondent] continues to present a high risk of sexual re-offending if he is not made subject to an Order under the Act. As shown by the incident in 2011 at DFATS involving a female staff member, even when under supervision [the respondent] was able to commit what appears to be a premeditated sexual offence.
Currently, it is my opinion that [the respondent] requires close monitoring and supervision, combined with both psychological and medical interventions, in order to reduce his risk of reoffending.
Dr Ong confirmed this opinion in his further report dated 14 July 2017.
I have had regard to reasons they each gave for their opinions and assessment.
Submissions of the DPP
It was submitted on behalf of the DPP as follows:
(a)Counsel for the respondent concedes and evidence supports a finding that the respondent poses an unacceptable risk of committing a relevant offence if released in the community without a supervision order or a detention order.
(b)Further, the respondent poses an unacceptable risk of reoffending if a detention order is not made because a supervision order is not sufficient to reduce the respondent’s risk to an acceptable level for the following reasons:
(i)Corella Place is not a secure facility;
(ii)The respondent would pose a threat to female staff at Corella Place; and
(iii)The respondent is a risk of absconding from Corella Place.
(c)The risks posed by the respondent could not be managed in other facilities and accommodation under the Disability Act 2006.
(c)The expert evidence overwhelmingly supports the conclusion that a detention order is necessary to manage the risks posed by the respondent.
Although the evidence supports the proposition that, if placed on a detention order, it is likely that the respondent will continue to engage in self-harming and fire-setting behaviour when he is distressed, it is necessary that he be placed in a secure facility and his risks cannot be managed under a supervision order or in another community facility such as DFATS.
Submissions on behalf of the respondent
The respondent submitted that the power under the Act to make a detention order is contrary to principles of common law and should be confined to very exceptional cases. It is demonstrably necessary to protect society from physical harm. Section 115 of the Act shows that a detention order places the offender in complete control of correction authorities and is in effect imprisonment. In Nigro v Secretary to the Department of Justice,[17] the Court of Appeal explained that the concept of ‘unacceptable risk’ should be interpreted so as to limit it to no more than what is reasonably necessary to give effect to its legislative purpose.
[17](2013) 41 VR 359.
However, it was conceded that ‘[i]t is clear from the evidence that detention at Marlborough Unit of [Port Phillip Prison] is the only presently viable option for the respondent given current facilities and arrangements’. Nonetheless, counsel submitted that ‘the Court should be cognisant of the way in which the administration has made this decision inevitable, and that involves the grave consequence of the complete deprivation of liberty contrary to fundamental common law principles’.
In the circumstances, although counsel for the respondent conceded that, in the circumstances, there was ‘nothing [the Court] could do but make the order that’s sought’, he submitted as follows:
The Court should recognise that this is a grave and unusual step and should consider it only to be acceptable on the basis that sufficient treatment resources are brought to bear on a continuing basis, and a sufficiently flexible approach to the respondent’s management is taken so as to enable the respondent to reduce his risk of offending in the shortest possible time.
Decision
I am satisfied that the respondent poses an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and he is in the community. I am satisfied to a high degree of probability that there is an unacceptable risk, within the meaning of s 35(1)(a) of the Act, on the basis of:
(a) the history referred to above;
(b)the acceptable and cogent evidence of each of the psychologists and the psychiatrist referred to above who have all expressed, in substance, the same opinion on this issue; and
(c)it was properly so conceded by counsel for the respondent.
I am further satisfied that the risk of the respondent committing a relevant offence would be unacceptable unless a detention order was made.
In evaluating the risk, I have had regard to the fact the common law presumption in favour of the liberty means that, as a matter of statutory interpretation, ‘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’.[18]
[18] Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 363 [5] (Redlich, Osborn and Priest JJA).
In finding that the respondent is an unacceptable risk, unless a detention order is made, I rely upon the same matters as referred to in paragraph 88. In particular, I have had regard to the evidence that the respondent needs to be accommodated in a secure facility and a facility where risks of attacks on female workers are minimised. As Professor Ogloff stated:
He has demonstrated an incapacity to manage himself appropriately, irrespective of setting, and he has offended across the facilities in which he has been detained. To this end, he requires a level of security that can contain his risk. This includes restricting his access to females; even in the presence of men he has inappropriately touched women and of course, he has attacked a female worker at the DFATS facility. Given his level of risk of self-[harm] and suicidal behaviour, he also requires the support of a facility that can monitor and manage that risk. He has absconded – although he did not get far. Nonetheless, he requires a facility that reduces the likelihood that he can abscond. [The respondent] has also been vulnerable to other prisoners/co-residents and, as a result, requires some degree of protection for his own security. [The respondent] also has a range of mental health issues and he has been housed on St Paul’s unit at Port Phillip Prison and such needs would need to be met. Finally, should he engage in externalising behaviour, such as he did in Corella Place in 2016, the facility in which he is housed requires an adequate level of security to manage such behaviours in a manner that helps ensure that co-residents/prisoners, staff, and [the respondent] himself, are not harmed.
Despite the concerns expressed by Dr Gee about the Marlborough Unit, he agreed with the other expert opinions that it was not appropriate at this time for the respondent to be placed at Corella Place on a supervision order.
In making the determination under s 36(1) of the Act, I have had regard to the means of managing the risk presented by the respondent and the likely impact of a detention order on the respondent. In this respect, I note the following:
(a)The comprehensive Detention Management Plan which has been prepared for the purpose of effectively managing the respondent’s risk of sexual and violent offending and supporting his disability during the period of the detention order.
(b)One of the primary concerns of both Professor Ogloff and Dr Gee was the risk of the respondent self-harming; and it was a significant reason why each of them considered that accommodating the respondent in a low security facility, such as Corella Place or facility that allows substantial independence such as the Greenhill Unit, was inappropriate at this time.
(c)Although Dr Gee certainly considered that the Marlborough Unit was less than optimal for the accommodation of the respondent, in particular because of potential difficulties in associating with the other prisoners; and the fact that his cell was not Building Design Review Project, it is still considered the ‘least worst’ option.
Period of order
The period of a detention order must be specified by the Court[19] and must not exceed 3 years.[20]
[19]The Act s 38(2)(d).
[20]Ibid s 40(1).
Accordingly, if the Court is not satisfied that an offender will remain an unacceptable risk for the whole of the 3 year period, the period of the detention order should be set at the lesser period for which the Court is so satisfied that the offender will be an unacceptable risk.[21]
[21]ARM v Secretary to the Department of Justice (2008) 29 VR 472, 475 [13] (Maxwell P, Nettle and Weinberg JJA).
Section 66 of the Act provides that the DPP must apply to the Supreme Court for the review of a detention order no later than 1 year after it is first made. The DPP only seeks an order that the detention order be made for a period of 1 year and this was not opposed by the respondent. I am satisfied that the detention order for a period of 1 year is appropriate in the circumstances of this case.
I propose to make an order that the Court is satisfied that the respondent poses an unacceptable risk of committing a relevant offence if the detention order is not made and the offender is in the community. The respondent is to be subject to a detention order pursuant to div 2 of pt 3 of the Serious Sex Offenders (Detention and Supervision) Act 2009 for the period from 2017 until 2018, a period of 12 months. As the period of the detention order does not exceed 12 months, there is no latest date by which an application for the first review of the order must be made under pt 5 of the Act.
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Schedule 1
Schedule 2
Schedule 3
Filed on behalf of the DPP:
(a)The following “assessment reports” (as provided for in s 109 of the Act)
(i)Assessment report of Dr Sophie Reeves dated 20 May 2016;
(ii)Addendum report of Dr Sophie Reeves dated 1 May 2017;
(iii)Letter of Dr Sophie Reeves dated 15 July 2017;
(iv)Assessment report of Dr Kevin Ong dated 15 May 2017;
(v)Addendum report of Dr Kevin Ong dated 14 July 2017; and
(vi)Assessment report of Professor James Ogloff dated 25 July 2017.
(b)Neuropsychological report of Professor Simon Crowe, Neuropsychologist dated 22 October 2016.
(c)Affidavit of Colleen Lynette Bell affirmed 9 August 2017, exhibiting the material relied upon in the assessment reports, which the Court is able to receive in evidence pursuant to s 88 of the Act.
(d)Affidavit of Sarah Miles, General Manager, Sex Offender Management Branch, Corrections Victoria, sworn 11 August 2017.
(e)Confidential Affidavit of Sarah Miles, General Manager, Sex Offender Management Branch, Corrections Victoria, sworn 11 August 2017. This affidavit contains information relating to security arrangements at Corella Place. The affidavit has been provided to the Respondent’s legal representatives. On 17 August 2017, an order was made by Weinberg JA pursuant to s 81 of the Act that the affidavit be excluded from disclosure to the Respondent.
(f) Affidavit of Brendan Money, Assistant Commissioner Sentence Management, sworn 8 November 2017, which also adopts the Affidavit of Jenny Hosking, Assistant Commissioner Sentence Management, sworn 11 August 2017.
(g)Affidavit of Vicki Quinton, Principal Practice Leader, Compulsory Treatment, Senior Practitioner – Disability Team, Department of Health and Human Services, sworn 11 August 2017.
(h)Affidavit of Kathleen Ballard, Manager of Disability Services, Department of Health and Human Services, sworn 11 August 2017.
Filed on behalf of the respondent:
(a)Psychological Report of Dr Dion Gee dated 1 October 2017.
(b)Addendum Psychological Report of Dr Dion Gee dated 12 November 2017.
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