IN THE MATTER of the Serious Offenders Act 2018 (Vic)
IN THE MATTER of an application under s 71 of the Serious Offenders Act 2018 (Vic) for renewal of a detention order
BETWEEN:
THE DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
– and –
LD	Respondent

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 8, 9, 15, 22 June and 13 July 2023
DATE OF JUDGMENT:	31 August 2023
DATE OF REASONS:	31 August 2023
DATE OF PUBLICATION:	2 October 2023
CASE MAY BE CITED AS:	DPP v LD (No 7)
MEDIUM NEUTRAL CITATION:	[2023] VSC 518

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PUBLIC LAW — Application for renewal of detention order for 12 months — Risk of committing a further serious sex offence — Relevant criminal history including rape and sexual assault — Previous placement at IRTP — Intellectual disability — Current interim detention order — Custodial environment causing respondent ‘iatrogenic harm’ —Insufficient evidence that risk will remain unacceptable unless a detention order is made — Other means of managing risk available, with modifications — Renewal of detention order would likely have a severe impact on respondent — Detention order refused — Nigro v Secretary to the Department of Justice (2013) 41 VR 359; DPP v CS [2021] VSC 686; DPP v DW [2023] VSC 24 — Serious Offenders Act 2018 (Vic) ss 1, 3, 5, 8, 31, 32, 62, 63, 64, 65, 66, 69, 71, 72, 73, 75, 81, 82, 133, 255.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	E Ramsay R Kornhauser	Office of Public Prosecutions
For the Respondent	J Munster G Cooper	Victoria Legal Aid

Introduction

Procedural history

The index offences
Re-sentencing of LD
The first interim detention order (IDO)
The detention order (DO)
The second interim detention order (IDO)

Legal principles

Purpose of the Act
Detention orders

Evidence

Evidence of Dr Joel Godfredson
Evidence of Dr Rajan Darjee
Evidence of Franca Guglielmino
Evidence of Dr Matthew Frize
Evidence of Dr David Thomas
View of Ravenhall Correctional Centre
Evidence of Dr Laura Crowe
Evidence of Jennifer Hosking

Submissions

Submissions for the applicant
Submissions for LD

Analysis

Section 63(1): Does LD pose an unacceptable risk of committing a serious sex offence if a detention order or supervision order is not made?
Section 64(1): Will the risk posed by LD remain unacceptable unless a detention order is made?
The court’s discretion to refuse to make an order

Conclusion

Appendix A

HIS HONOUR:

Introduction

Pursuant to the provisions of the Serious Offenders Act 2018 (Vic) [‘the Act’], the Director of Public Prosecutions [‘the applicant’], has applied to this court to renew a detention order [‘DO’] in respect of the respondent, LD.

After considering the evidence and submissions in this application, I am satisfied that LD poses an unacceptable risk of committing a serious sex offence if a supervision order [‘SO’] or a DO is not made, and he is released into the community. I am…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading DPP v LD (No 7)

Details

AGLC: DPP v LD (No 7) [2023] VSC 518
Case: [2023] VSC 518
Decision Date: 31 August 2023

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (DPP) against LD (No 7), the Supreme Court of Victoria was tasked with determining the renewal of a detention order for a period of 12 months. The respondent, LD, has a significant criminal history involving serious sex offences and has been the subject of previous detention orders. The crux of the dispute centred on whether the risk of LD committing further serious sex offences was such that it warranted the extension of the current detention order.

The legal issues the court had to resolve included whether the risk posed by LD was unacceptable and whether there were alternative means of managing this risk. The court had to consider the respondent's intellectual disability, the impact of the custodial environment on LD, and whether the risk could be sufficiently managed without the imposition of a further detention order. The court also considered the potential impact on LD if the detention order were to be renewed.

The court found that while the risk posed by LD was significant, the evidence did not support the conclusion that this risk would remain unacceptable unless a detention order was made. The court held that alternative means of managing the risk were available, albeit with modifications. Furthermore, the court recognised that the custodial environment had caused LD iatrogenic harm, and a renewal of the detention order would likely have a severe impact on LD. Consequently, the court declined to renew the detention order. This decision was influenced by previous cases such as Nigro v Secretary to the Department of Justice, DPP v CS, and DPP v DW, as well as relevant sections of the Serious Offenders Act 2018 (Vic).

The final orders of the court were that the application for the renewal of the detention order was dismissed. The current interim detention order would remain in effect until its expiration, and other measures for managing the risk posed by LD would be explored.

Orders