DPP v LD (No 7)

[2023] VSC 518

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0351

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

1. 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.

1. 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 not satisfied that the risk would be unacceptable unless a DO is made.  Accordingly, I propose to refuse the application to renew the DO [‘the DO renewal application’].

1. Having concluded the DO renewal application is to be refused, I am empowered to either make an SO under section 62(3) of the Act, or make no order under section 62(5). In the circumstances, the court will order the making of an SO.

1. Pursuant to section 133 of the Act, I must state my reasons for determination and cause them to be entered into the records of the court. These are those reasons.

Procedural history

1. LD is a 40‑year‑old man who has a full‑scale IQ of 53 or 56.[1]  He has been assessed by various experts as meeting the criteria for an intellectual disability, personality disorder, complex post‑traumatic stress disorder, paedophilic disorder and compulsive sexual behaviour disorder.

   [1]Throughout this ruling, LD will be referred to by he/him pronouns, being his preference.  However, I note he has at times been referred to by a female name and identified with she/her pronouns.

1. By way of background, LD experienced an extremely deprived and disadvantaged childhood.  He was born to parents who were both intellectually disabled.  Regrettably, they subjected him to serious neglect and horrific instances of sexual, emotional and physical abuse.  From a young age he began to display concerning sexual behaviours, which included exposing himself to other children, disclosing fantasies of being raped and using telephone sex lines.[2]

   [2]Re LD [2021] VSC (Supreme Court of Victoria, Fox J, 21 December 2021), [15]–[17] (restricted).

1. At the age of 11, he was removed from his parents’ care and made the subject of a guardianship order.  During his adolescence, he resided in a group home, an adolescent transitional unit and foster care.  Once he turned 18, LD’s accommodation was managed by disability services.  He was moved in and out of various group homes due to issues or incidents with other residents, including making unwanted sexual advances.  

The index offences

1. In 2016, LD pleaded guilty to one charge of rape and one charge of sexual assault [‘the index offending’].[3]  The index offending occurred while LD was living in shared disability accommodation with four other men.  He had been housed there on account of his then diagnosis (which, at that stage, did not fully reflect the extent of his disability).[4]

   [3][Redacted].

   [4]At the time, LD was diagnosed with a “moderate intellectual disability”: [redacted].  By 2018, he had been further diagnosed with Sexual Sadism Disorder, emotionally unstable personality disorder and epilepsy: [redacted].  He is currently assessed as presenting with a mild‑to‑moderate intellectual disability, personality disorder, complex post‑traumatic stress disorder, paedophilic disorder and compulsive sexual behaviour disorder.

1. Despite not being allowed to go into the rooms of other residents, on the evening of 27 March 2016, LD entered the room of a fellow resident [‘the complainant’].  LD placed the complainant’s penis into his mouth, put some lubricant on his hand and rubbed the complainant’s bottom.  The offending was immediately discovered, and LD admitted to the offending soon after.  He was charged and placed on remand.

1. At the time, LD had a relevant criminal history that spanned from 2004 to 2014.  He had previously been convicted of stalking, knowingly possessing a single image of child pornography, making child pornography and committing an indecent act with a child.  A complete summary of LD’s offending is set out in Appendix A.

1. At the sentencing hearing for the index offending, the prosecution sought an immediate custodial sentence with a non‑parole period.  However, having considered LD’s criminal history, intellectual disability, background of “significant disadvantage and severe neglect” and the physical and sexual abuse he had experienced as a child, Judge Lawson declined to impose a term of imprisonment.[5]  Her Honour noted that, during the 222 days LD had spent on remand, it had become clear that the custodial environment was unable to manage his complex needs.  Rather than assisting with his rehabilitation, it had made LD’s condition worse.  Judge Lawson observed:[6]

Prison has had a negative impact upon you. You have been acting out sexually, such that you have been placed in protection, which meant that you have been isolated, and that has resulted in a decrease of your level of functioning. Further, you have made one genuine attempt at suicide by hanging, and there have been multiple incidents of self‑harm.

[5][Redacted].

[6][Redacted].

1. Accordingly, her Honour placed LD on a five‑year Intensive Residential Treatment Order [‘IRT Order’], to be served at the Intensive Residential Treatment Program [‘IRTP’].  Judge Lawson reasoned that the IRTP, being designed to manage intellectually disabled offenders who pose a serious risk of sexual offending, would be able to provide appropriate treatment, community integration and rehabilitation services to LD.[7]  LD commenced treatment at the IRTP on 7 November 2016.

   [7][Redacted].

Re‑sentencing of LD

1. On 8 June 2018, the Secretary to the Department of Health and Human Services[8] applied to revoke LD’s IRT Order.  LD’s progress at the IRTP over the previous 19 months had been deemed unsuccessful, as he had resisted all forms of treatment offered to him.[9]  Expert evidence demonstrated that LD’s complex clinical presentation was responsible for his poor response to treatment.  It was determined that there was very little benefit to him continuing to reside at the IRTP.  It was also suggested that moving LD to prison could be beneficial, as there was a possibility he would “positively respond to a highly structured and supervised environment”.[10] 

   [8]As of 1 February 2021, the Department of Health and Human Services split into two new departments: the Department of Health and the Department of Families, Fairness and Housing.

   [9][Redacted].

   [10][Redacted].

1. Accordingly, Judge Lawson revoked the IRT Order on the grounds that the treatment offered at the IRTP had failed “as a result of [LD’s] profound intellectual and psychological problems”.[11]  On 19 November 2018, LD was re‑sentenced to four years in prison with a non‑parole period of two years, less 318 days already served on remand.[12] 

   [11][Redacted].

   [12]LD’s head sentence was due to expire on 30 December 2021.  Further, he would have been eligible for remand from 30 December 2019.  

1. LD appealed the sentence imposed by her Honour.  It was argued on his behalf that her Honour had failed to consider the time already spent by LD at the IRTP when calculating the term of imprisonment, resulting in a manifestly excessive sentence.  The Court of Appeal dismissed the application, ruling that the head sentence was appropriate.[13]  In particular, it was noted that Judge Lawson had taken into account LD’s reduced moral culpability by imposing a non‑parole period of two years (being 50 per cent of the head sentence), which would allow LD to be “placed under supervision in a non‑prison environment for a considerable portion of his sentence”.[14] 

   [13][Redacted].

   [14][Redacted].

1. However, for the reasons outlined below, LD’s expected transition to a non‑custodial environment has not occurred.

The first interim detention order (IDO)

1. On 3 December 2021, prior to the expiry of LD’s prison term, the Director of Public Prosecutions [‘DPP’] applied for a DO and interim detention order [‘IDO’] under the Act to prevent LD’s release.  Given there was insufficient time to determine the DO application before the end of the court’s sitting year, only the IDO application proceeded.

1. The DPP submitted that LD posed a high risk of reoffending, and that it was therefore in the public interest for him to remain in detention.  It was further submitted that the deleterious effects of prison would be offset by the additional services and supports that he would receive as a non‑sentenced prisoner. 

1. The application for an IDO was opposed by LD’s counsel, who submitted that the court should instead make an interim supervision order (which would allow LD to be placed in a non‑custodial facility).[15] 

   [15]Re LD [2021] VSC (Supreme Court of Victoria, Fox J, 21 December 2021), [3] (restricted).

1. Dr Joel Godfredson, a clinical and forensic psychologist, gave evidence that LD posed a high risk of committing a serious sex offence if he was released into the community without some form of supervision or detention order.  Further, Dr Godfredson opined that LD’s risk of reoffending would increase if “he was not assisted by staff trained to manage his behaviours, and not in a facility that specifically caters for his intellectual disability”.[16]

   [16]Ibid [30].

1. In the circumstances, Justice Fox was satisfied that the evidence established (to the lower threshold that applies in IDO applications)[17] that LD posed an unacceptable risk of committing a serious sex offence, that there were no less‑restrictive means other than custody available, and that it was in the public interest to make an IDO until the DO application could be determined.  Her Honour granted an IDO for a period of four months, commencing on 30 December 2021 and due to expire at 11:59pm on 29 April 2022.

   [17]Ibid [55]–[56]. See, for example, Secretary to Department of Justice and Community Safety v SM (No 3) [2021] VSC 438, [24] (Elliott J), citing Re MTE [2020] VSC 243, [10] (Champion J). Although these cases concerned interim supervision orders (as opposed to interim detention orders), the principle applies equally.

First extension of the IDO

1. The DO application was listed for hearing on 22 March 2022.  However, counsel for LD sought an adjournment of the DO hearing due to an unforeseen issue with the availability of an expert witness.  The issue was entirely out of the parties’ control.  I heard and granted the adjournment application, relisting the DO hearing for 16 May 2022.[18] 

   [18]Re LD [2022] VSC 369R, [3]–[5] (Champion J) (restricted).

1. Accordingly, the applicant sought an extension of the IDO for a period of one month, in order to ensure LD remained in custody until the DO application was determined.  I was satisfied that exceptional circumstances existed such as to justify the extension of the IDO.  The issue with the expert witness was unexpected and “out of the normal”.[19]  I was further satisfied that the extension was justified and that it was in the public interest.  Accordingly, the IDO was extended by one month, such that it would expire at 11:59pm on 29 May 2022.

   [19]Ibid [5] (Champion J).

Second extension of the IDO

1. On 13 May 2022, some three calendar days before the DO application was to begin, the court was informed by email that LD had very recently been served with over a thousand pages of documents by the applicant, many of which were likely to be relevant to the DO application.  The failure to disclose these documents was due to a computer malfunction and significant human error.[20]

   [20]Ibid [34].

1. An urgent mention hearing was held the same day.  After hearing from both the parties, I was satisfied that the DO application could not proceed as planned.  The application was adjourned, which necessitated a further extension of the IDO.  Again, I was satisfied that exceptional circumstances existed and that a two‑month extension of the IDO was justified.  Orders were made extending the IDO until 30 July 2022 (thereby expiring at 11:59pm on 29 July 2022).[21]

   [21]Ibid [39]–[45].

The detention order (DO)

1. The DO application was heard and determined on 14 July 2022.  The applicant sought a DO of six months’ duration, on the grounds that LD posed an unacceptable risk of committing a serious sex offence if a DO was not made.[22]

   [22]DPP v LD [2022] VSC 696R, [3] (Champion J) (restricted).

1. Crucially, LD did not oppose the application.  He had recently secured a grant under the National Disability Insurance Scheme [‘NDIS’] in excess of $1.4 million.  The NDIS grant included funding for 24‑hour, two‑to‑one supported independent living [‘SIL’] and funding for ‘robust’ Specialist Disability Accommodation [‘SDA’].[23]  Expert evidence had indicated this form of accommodation was the most appropriate option for LD.  It was submitted by the applicant (and agreed to by LD’s counsel) that, given the complexities of managing LD and the time required to engage and train appropriate service providers, the process of transitioning LD from custody to an SDA facility would likely take at least six months.  The DO was sought to ensure LD’s risk could be managed during this period.  Encouragingly, a letter of offer from Cocoon SDA Care [‘Cocoon’] dated 12 July 2022 had already been received by LD, which provided details of a possible residence and disability support.[24]

   [23]Ibid [31] (Champion J).

   [24]Ibid [33].

1. The application for a six‑month DO was supported by oral evidence from Dr Godfredson.  Dr Rajan Darjee, a consultant forensic psychiatrist, also gave evidence about LD’s risk level and experience in prison to date.  Dr Darjee opined that LD had not, despite being a non‑sentenced prisoner, received additional services during his time in detention.  He stated that LD had limited out‑of‑cell time and experienced lengthy periods of isolation from others, which had caused LD to feel “more scared, hopeless and helpless now”.[25]  Dr Darjee further opined that the Glenhope Custodial Supervision Unit [‘Glenhope CSU’] at which LD was being held was “totally inappropriate” in light of LD’s needs and vulnerabilities.[26]

   [25]Ibid [55].

   [26]Ibid [62].

1. After examining the material before the court, I concluded there was clear, uncontested evidence that LD posed a high risk of committing a serious sex offence if released into the community and not subject to an SO or DO.  Further, the evidence established that, if LD was placed on an SO, the only option at the time would be to accommodate him at Corella Place.[27]  The evidence of Dr Godfredson was that Corella Place was not capable of providing appropriate support and supervision to LD.  Further, evidence from Franca Guglielmino, the then Acting‑Director of the Post Sentence Branch of Corrections Victoria, established that LD’s risk of committing a serious sex offence could not be reduced to an acceptable level if he were to reside there.[28] 

   [27]Ibid [71]–[72]. Corella Place is a residential facility under the Serious Offenders Act 2018 (Vic) that provides transitional accommodation for high‑risk sex offenders who have completed their prison sentences. See paragraphs 136–151 below.

   [28]DPP v LD [2022] VSC 696R, [74] (Champion J) (restricted).

1. Accordingly, I was satisfied to the requisite standard that LD’s risk of committing a serious sex offence could not be adequately managed if he were placed on an SO, and consequently, that a DO was the only suitable option. 

1. In making an order for a six‑month DO, I made the following observation:[29] 

… I am mindful of the view expressed on behalf of the respondent that the duration of the DO should be for as short a period as possible. The respondent’s view is founded, justifiably, in the desirability of LD retaining hope in his situation, and avoiding causing further harm to LD as a result of continuing detention.

I am confident that going forward, the relevant authorities will make all reasonable efforts to enable LD’s individualised accommodation package to be implemented, and the Court will continue to monitor any progress in this regard.

[29]Ibid [84]–[85].

1. The order commenced on 30 July 2022 and was due to expire at 11:59pm on 29 January 2023.

The second interim detention order (IDO)

1. On 14 November 2022, the applicant filed the DO renewal application under section 71 of the Act. The matter was listed for a substantive hearing on 5 and 6 December 2022. However, shortly before that hearing commenced, the parties notified the court that they had agreed it would be appropriate for the court to make an IDO of two months’ duration. This was to allow further time for transitioning LD into an appropriate SDA facility. The DO renewal application was subsequently adjourned to a date to be fixed, and an IDO application was filed.

1. Expert evidence was placed before the court to show that the nature and degree of the risk posed by LD remained substantively unchanged since the original DO was made, such that LD continued to pose a high risk of committing a serious sex offence if not detained in custody.  Further, his condition in custody had continued to decline.  The evidence showed that while detained, LD had made various threats to kill, rape and harm others, exposed his genitals to staff and inmates, and damaged property.[30]  It was agreed between Dr Godfredson and Dr Darjee that these challenging behaviours were being exacerbated by the prison environment.  In particular, Dr Darjee opined that:[31]

I remain of the opinion that prison, and particularly being managed as he is, is not improving his behaviour, and is probably perpetuating his behaviour and de‑skilling him … So although he clearly requires to be subject to supervision to manage the risk he poses of serious sexual offending, in my view a Detention Order is not the least restrictive and safest way to manage this risk, and ongoing detention in prison in a similar way to how he has been managed over the last few years will not lead to an improvement in his behaviour or functioning. He requires a highly supported and supervised residential placement in the community, as outlined in my previous report, and as I understand is envisaged with respect to the NDIS funding which has been secured for him.

[30]DPP v LD (No. 2) [2022] VSC 824R, [19]–[22] (Champion J) (restricted).

[31]Ibid [23].

1. However, the evidence before the court as to the suitability of Corella Place and the IRTP remained unchanged, such that it appeared prison was presently the only viable place to manage LD’s risk of reoffending.  However, evidence from Ms Guglielmino suggested that progress was being made towards transitioning LD to an SDA facility.  Cocoon had set aside a property for LD in the community and commenced recruiting staff who would care for him. 

1. The applicant therefore submitted that a two‑month IDO would allow further time to complete LD’s transition to an SDA.  LD’s legal team did not oppose the application, although they submitted that LD’s continual detention was becoming increasingly harmful to him.

1. On the basis of the material before me, I was satisfied that the requirements for an IDO were met.  The evidence established (again, to the lesser threshold applicable in IDO proceedings) that LD continued to pose an unacceptable risk of committing a serious sex offence, and that this risk could not be rendered acceptable unless an IDO was put in place.  Further, I was satisfied that the imposition of the IDO was in the public interest, as it would facilitate the protection of the community.[32]  However, I noted that there is also a public interest in ensuring intellectually disabled offenders are treated in a way that takes into account their disability.  In particular, I stated that:[33]

Protection of the community is paramount however, in my opinion it is not appropriate for the Serious Offenders Act be used in a manner which results in prisons becoming proxy disability settings simply because other, more appropriate facilities have not been constructed and therefore not available. The history of the current application, and others like it, is an unsatisfactory reflection on the way in which high‑risk offenders with disabilities are managed within the criminal justice system, apparently due to a lack of appropriate facilities being available.

[32]Ibid [49]–[58].

[33]Ibid [59] (Champion J).

1. An IDO was imposed for a period of two months, commencing on 29 January 2023 and expiring at 11:59pm on 28 March 2023.  It was hoped that Cocoon could facilitate LD’s transition into an SDA facility within this period.

First extension of the IDO

1. On 8 March 2023, the applicant applied for a two‑month extension of the IDO.  It was submitted that the extension was necessary, as the process of transitioning LD from custody to an SDA facility was ongoing. 

1. During the application, Ms Guglielmino gave evidence that the transition had been slow, largely due to the actions of Cocoon.  She stated that only one Cocoon staff member had met with LD, despite Cocoon having been informed that face‑to‑face contact was necessary to build rapport with LD.  Further, Ms Guglielmino informed the court that numerous members of Cocoon’s staff were yet to complete mandatory training about LD’s needs and security.  Upon further questioning, it was not clear whether these delays could be attributed to Cocoon being prudent and cautious, or whether it was because Cocoon was unwilling to take on LD.  Nevertheless, Ms Guglielmino stated that she was concerned about the “pace and capacity of Cocoon”.[34]  

   [34]DPP v LD (No. 3) [2023] VSC 144R, [29] (Champion J) (restricted).

1. Dr Godfredson and Dr Darjee also gave evidence.  They stated that the risk posed by LD remained unchanged, but reiterated that custody was having a negative impact on LD and that there was an “incredibly urgent” need to transition him into an SDA facility.[35] 

   [35]Ibid [31] (Champion J).

1. In response, counsel for LD “reluctantly” consented to the extension of the IDO.[36]  It was conceded that Cocoon needed further time to facilitate LD’s transition out of custody and that the need for an IDO remained unchanged.

   [36]Ibid [41].

1. Having considered all the circumstances, I granted the IDO extension, such that the IDO’s expiry was delayed until 11:59pm on 27 May 2023.  However, I noted that the ongoing delays in transitioning LD to an appropriate facility were “extremely unsatisfactory” and urged the parties and Cocoon to work swiftly.[37]  I also warned that, in light of LD’s deteriorating condition, the applicant would need to produce significant and convincing evidence to justify any further extension.

   [37]Ibid [57].

Second extension of the IDO

1. In a regrettable development, the court was shortly thereafter provided with a memorandum authored by Ms Guglielmino on 21 April 2023.  The memorandum explained that Cocoon had continued to display “poor communication, limited engagement with [LD] and lack of progress”.  Only two Cocoon staff members had met with LD in person, and a large number had repeatedly failed to attend mandatory training sessions.  In one particularly concerning incident, 10 staff members had been scheduled to attend a session with LD’s Behaviour Support Practitioner, but not a single one turned up.  LD’s care team had relayed their concerns about these failures to Cocoon’s senior management in numerous emails and phone calls.  Disappointingly, Cocoon never responded to LD’s care team. 

1. As a result, Cocoon’s services had been terminated by LD’s care team.  A short mention hearing was held to ventilate the issue,[38] at which it was agreed that no SDA facility would be able to accommodate LD upon the IDO’s expiry on 27 May 2023.  During the hearing, I observed that Cocoon had displayed a lack of interest in LD’s welfare and that its conduct had been largely unsatisfactory from the beginning. 

   [38]The mention was held on 27 April 2023.

1. Consequently, there was no clear alternative on the horizon to housing LD in custody.  The applicant therefore applied for a further one‑month extension of the IDO in order to give the parties time to bring back on the DO renewal application.[39]  The applicant submitted that LD’s risk status and the surrounding circumstances remained unchanged, such that the legislative preconditions for an IDO continued to be met.  However, as the extension would stretch the IDO’s total length beyond four months, the applicant was also required to show that “exceptional circumstances” existed.[40]  It submitted that Cocoon’s behaviour was unusual and unexpected, such that the situation could be described as exceptional.[41]

   [39]The DO renewal application filed on 14 November 2022 had been adjourned to a date to be fixed.  See paragraph 33 above.

   [40]The Act, s 81(2).

   [41]DPP v LD (No. 4) [2023] VSC 309R, [16]–[19] (Champion J) (restricted).

1. In response, LD’s counsel conceded that the exceptional circumstances test was met and that a one‑month extension was appropriate.  However, it was foreshadowed that, at the upcoming application to renew the DO, it would be submitted that alternatives to custodial detention were available to LD.

1. Having carefully considered the submissions before me, I concluded that it was appropriate to extend the IDO and that exceptional circumstances existed.  I found the extension would ensure the safety of the community, was of minimal duration and would enable the parties to prepare for the DO renewal application, at which the complex issues concerning LD’s future management could be ventilated in detail.[42]  Orders were made extending the IDO for a further month, until 11:59pm on 26 June 2023.

   [42]Ibid [34]–[37].

View of Ravenhall Correctional Centre

1. On 6 June 2023, immediately prior to the hearing of the DO renewal application, the court, in the company of the parties and representatives of the Secretary to the Department of Justice and Community Safety [‘the Secretary’], conducted a view of the Glenhope CSU and Forbes Management Unit [‘FMU’] at Ravenhall Correctional Centre, where LD has been detained since 20 March 2020.  LD’s counsel explained that the purpose of the view was to enable the court to develop an understanding of the conditions experienced by LD over the past three years.  The conduct of the view is set out in further detail below.[43]

   [43]See paragraphs 196–204 below.

Third extension of the IDO

1. The hearing of the DO renewal application commenced on 7 June 2023.  Although it was initially listed for two days,[44] it subsequently became apparent that additional time was needed to ventilate the issues.  The hearing continued on 9 and 15 June 2023.  During the final day on 15 June 2023, the parties informed the court that one of the expert witnesses, Dr David Thomas, had become aware of a non‑custodial facility that could potentially house LD, namely the Austin Health Transition Support Unit [‘Austin TSU’].  Dr Thomas gave evidence that the Austin TSU accommodates individuals with intellectual disabilities who require support to re‑enter the community, typically after a long period in institutional settings.  The hearing was briefly adjourned so the parties could determine if LD was eligible for the facility. 

   [44]On 7 and 8 June 2023, respectively.

1. Upon resumption, the parties informed the court that it was possible LD was eligible for the Austin TSU or a related facility, the Monash Health Transition Support Unit [‘Monash TSU’].  LD’s counsel submitted that, while this possibility remained, the DO renewal application should be adjourned to enable detailed enquiries to be made.  In light of the importance of the matters raised, I granted a one‑week adjournment and listed the matter for mention on 22 June 2023.

1. At the mention on 22 June 2023, LD’s counsel stated that an informal referral had been made by Dr Thomas to the Monash TSU.  Further, the Secretary confirmed it was also willing to make a formal referral to both the Monash TSU and Austin TSU.  LD’s counsel submitted it was necessary to further adjourn the DO renewal application until the referrals had been considered.  It was conceded that this necessitated an extension of the IDO, so as to ensure LD was not released before this process had occurred.  Consequently, the applicant applied to extend the IDO until the determination of the DO renewal application, but in any event, for no longer than one month.  LD’s counsel did not oppose the extension.[45]

   [45]DPP v LD (No. 5) [2023] VSC 365R, [18]–[21] (Champion J) (restricted).

1. Upon considering the material, I was satisfied that the legislative preconditions for extending the IDO were met, including the exceptional circumstances test.  Although it was not clear why Dr Thomas, who was in court during each day of the DO renewal application, did not inform the parties about the Austin TSU and Monash TSU at an earlier point in time, I accepted that the parties had little control over the timing of his disclosure.  I also considered that the Act required the parties to properly investigate any alternatives to detention in custody.[46]  Although on the evidence it was clear that the ongoing detention of LD was “plainly undesirable”, I considered it was justified in the circumstances.[47]  The IDO was extended until 11:59pm on 25 July 2023.

   [46]Ibid [39]–[40]. See also, the Act, s 64.

   [47]Ibid [41].

1. A mention hearing was listed for 3 July 2023 in order to enable the parties to update the court on the progress of the referrals.  

Fourth extension of the IDO

1. At the mention hearing on 3 July 2023, the court was informed that the Monash TSU had concluded LD was ineligible for admission.  However, the referral to the Austin TSU was yet to be determined, and it was expected a position would be reached within the next fortnight.  Subsequently, on 10 July 2023, the court was informed that LD had been assessed as ineligible for the Austin TSU. 

1. The DO renewal application was listed for 14 July 2023, and closing submissions were made.  As stated,[48] the IDO was set to expire at 11:59pm on 25 July 2023.

   [48]See paragraph 53 above.

1. In light of the lengthy proceedings, the voluminous amounts of evidence filed and the length of the DO sought by the applicant, it became apparent that it would take some time for the court to determine the DO renewal application.  This view was communicated to the parties.  Consequently, on 18 July 2023, the applicant applied for an extension of the IDO until the determination of the DO renewal application (but in any event, for no longer than two months).  The applicant submitted that the circumstances remained unchanged since the last extension, and that the IDO should therefore be extended based on the same reasoning.[49]  LD’s counsel did not oppose the IDO application.

   [49]DPP v LD (No. 6) [2023] VSC 517R (Champion J) (restricted).

1. Given the importance of carefully scrutinising the DO renewal application and noting that the need to extend the IDO had arisen because of the delays detailed above, I was satisfied that it was appropriate to grant the extension.[50]  Orders were made extending the IDO until the determination of the DO renewal application but, in any event, not beyond 11:59pm on 24 September 2023.  The extension currently remains in force.

   [50]Ibid.

Legal principles

Purpose of the Act

1. It is well accepted that the primary purpose of the Act is to provide for the enhanced protection of the community.[51]  The Act seeks to achieve this purpose by subjecting offenders who have served custodial sentences for certain serious sex offences (or serious violence offences), and who present an unacceptable risk of harm to the community, to ongoing detention or supervision.  The secondary purpose of the Act is to facilitate the treatment and rehabilitation of such offenders.[52]  In applying the Act, the courts must give “paramount consideration to the safety and protection of the community”.[53]

   [51]The Act, s 1(a); DPP v DW [2023] VSC 24, [17] (Fox J) (‘DW’).

   [52]The Act, s 1(b).

   [53]The Act, s 5.

1. “Serious sex offence” is defined in the Act to mean an offence referred to in Schedule 1, which includes offences such as rape, sexual assault and sexual offences committed against children.[54]  “Serious violence offence” is defined as an offence referred to in Schedule 2, which includes offences such as murder, manslaughter and other offences such as causing serious injury in various circumstances, arson and kidnapping.[55]

   [54]The Act, s 3 (definition of ‘serious sex offence’); sch 1.

   [55]The Act, s 3 (definition of ‘serious violence offence’); sch 2.

Detention orders

1. An SO or DO can only be made in respect of an eligible offender, which is defined in section 8 of the Act. It is not in dispute that LD is an eligible offender in respect of the DO renewal application, given he is currently subject to an IDO.[56]

   [56]The Act, s 8(3).

The statutory tests

1. The Act sets out a three‑step process for making a detention order.[57] First, the court must consider if the test in section 63 is met, which relevantly provides:

   [57]DPP v CS [2021] VSC 686, [23] (Incerti J) (‘CS’).  In Re LD [2021] VSC (Supreme Court of Victoria, Fox J, 21 December 2021) (restricted) and DW (n 51), Justice Fox characterised the enquiry as a two‑step process.  In practice, nothing turns on the number of steps the inquiry is divided into, although the three‑step formulation better emphasises the existence of the court’s discretionary power.

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) …

(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).

1. If satisfied under section 63(1), the court must then move to the test in section 64, which relevantly provides:

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) …

(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.

1. Unlike section 63, the Act does not explicitly state that the applicant bears the burden of proving the requirements of section 64(1). However, it is implicit that the applicant continues to bear the onus.[58]

   [58]DW (n 51) [23] (Fox J), citing CS (n 57) [136] (Incerti J), citing DPP (Vic) v MAJ [2011] VSC 646R, [23] (restricted) (Hollingworth J) (‘MAJ’).

1. Third, the court must consider whether it should exercise its discretionary power to refuse to make an order.  In short:

(a)   if the court is satisfied that the test in section 64(1) is met, it may make a DO for the period in which the court is satisfied the respondent will remain an unacceptable risk, up to a maximum period of three years.[59] Alternatively, it may exercise the residual discretion in section 62(5) to make no order; or

(b)  if the court is not satisfied that the test in section 64(1) is met, it may make an SO under section 62(1) or, alternatively, exercise the residual discretion in section 62(5) to make no order.

[59]The Act, s 69(1); ARM v Secretary to the Department of Justice (2008) 29 VR 472, 475 [13] (Maxwell P, Nettle and Weinberg JJA), applied in DPP v CS [2020] VSC 71, [33], [86] (Tinney J) and DPP v LD [2022] VSC 696R, [21] (Champion J) (restricted).

1. The discretionary power to make no order in section 62(5) of the Act has not been used in previous cases.[60]  Nevertheless, it is a “substantial discretion”[61] that is expressed in “broad terms”.[62]  In DPP v CS,[63] Justice Incerti reasoned that:[64]

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’.

[60]A similar discretion to make no order was also contained in section 36(5) of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). I am unaware of any instance in which the court used this discretion.

[61]Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 370 [39] (Redlich, Osborn and Priest JJA) (‘Nigro’), citing NOM v Director of Public Prosecutions (2012) 38 VR 618, 633 [47] (Redlich and Harper JJA and Curtain AJA).

[62]CS (n 57) [201] (Incerti J).

[63]CS (n 57).

[64]Ibid, [202].

1. In that case, her Honour found that the test in section 64(1) was not met and consequently made an SO. However, her Honour also stated that, were she precluded from considering the non‑custodial Rivergum Residential Treatment Centre as a means of managing the intellectually disabled respondent’s risk, and had otherwise found that the test in section 64(1) was met, the court would have exercised the residual discretion in section 62(5) on the basis that:[65]

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.

[65]Ibid, [203].

Standards and interpretative principles

1. For the purposes of the tests in sections 63(1) and 64(1), the court must be satisfied by “acceptable, cogent evidence to a high degree of probability” that the offender poses or will pose an “unacceptable risk”.[66]  These terms require careful consideration.

The evidentiary standard

[66]The Act, s 62(2).

1. It is well accepted that the applicant bears the onus of satisfying the court that the requirements of sections 63(1) and 64(1) are met.[67]  As stated, the court must be satisfied by “acceptable, cogent evidence to a high degree of probability”.  Previous authority confirms that this threshold is very high — well above the civil standard and approaching the criminal standard.[68]  It is directed towards the adequacy of the evidence presented to the court.  As Justice Incerti reasoned in DPP v CS:[69]

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.

[67]The Act, s 63(5); DW (n 51) [23] (Fox J), citing CS (n 57) [136] (Incerti J), citing MAJ (n 58) [23] (Hollingworth J).

[68]Nigro (n 61) 402 [156] (Redlich, Osborn and Priest JJA).

[69]CS (n 57) [31].

1. In evaluating the quality and sufficiency of the evidence, the principle in Briginshaw v Briginshaw[70] must also be considered.[71]  That is, the court should take into account the gravity of consequences that flow from a particular finding when assessing whether that finding has been proved.  Furthermore, as noted by the Court of Appeal:[72]

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].

Meaning of ‘unacceptable risk’

[70]Briginshaw v Briginshaw (1938) 60 CLR 336 (Latham CJ, Rich, Starke, Dixon and McTiernan JJ).

[71]Nigro (n 61) 363 [6].

[72]Ibid 403 [161].

1. Whilst the phrase ‘unacceptable risk’ is not defined in the Act, the meaning of the term was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice[73] in the context of the predecessor to the Act.[74]  The Court described the concept as a “flexible one which is ‘calibrated to the nature and degree of the risk so that it can be adapted to the particular case’”.[75]  It went on to state:[76]

The common law presumption in favour of the liberty of the subject underpins the predictive inquiry required under s 9. 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 …

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 …

[73]Nigro (n 61) (Redlich, Osborn and Priest JJA).

[74]See the now‑repealed Serious Sex Offenders (Detention and Supervision) Act 2004 (Vic).

[75]Nigro (n 61) 404 [165], citing DPP (WA) v GTR (2008) 38 WAR 307, 315 [27] (Steytler P, Buss JA and Murray AJA).

[76]Nigro (n 61) 363 [5]–[6].

1. As is evident from the extracts above, the Act incorporates the concept of likelihood— specifically, the likelihood of serious offending (in sections 63(4) and 64(2)). It is important that this concept is not conflated with the “high degree of probability” test discussed above.[77] 

   [77]Ibid 391 [118]; CS (n 57) [26] (Incerti J).  See paragraphs 69–70 above.

1. The likelihood of a serious sex offence being committed is, in this context, concerned with the prediction of future events, which courts have acknowledged to be notoriously difficult.[78]  Importantly, the likelihood of offending has no prescribed threshold in the legislation, and need not be more likely than not.[79]  Therefore, if the consequences of potential future offending are sufficiently grave, a finding of unacceptable risk may be made even if the likelihood of that offending occurring is relatively low. 

   [78]CS (n 57) [27] (Incerti J); Nigro (n 61) 392 [124], citing Fardon v Attorney‑General (Qld) (2004) 223 CLR 575, 622–624 [123]–[126] (Kirby J) and Attorney‑General v David [1992] 2 VR 46, 61–62 (Hedigan J).

   [79]The Act, ss 63(4), 64(2).

1. In summary, ‘unacceptable risk’ is a broad and flexible enquiry that encompasses a variety of considerations, such as the type of sexual offence the person may commit, the likelihood of the offence occurring, the nature and gravity of harm that may be caused, and the fundamental value which society accords individual liberty.[80]

   [80]Nigro (n 61) 378 [68], 404 [165] (Redlich, Osborn and Priest JJA).

Evidence

1. During the hearing of this matter, both parties called evidence from a series of expert witnesses.  Relevant aspects of their evidence are summarised below.

Evidence of Dr Joel Godfredson

1. Dr Joel Godfredson is a clinical and forensic psychologist.  He has experience working at the Victorian Institute for Forensic Mental Health [‘Forensicare’], Thomas Embling Hospital, Marngoneet Correctional Centre and the Melbourne Clinic.  Dr Godfredson has been involved in proceedings relating to LD since 2020, during which he has given oral evidence on various occasions and prepared the following documents:

(a)   a report dated 8 July 2020;

(b)  a report dated 2 July 2021;

(c)   a letter dated 26 August 2021; and

(d)  a report dated 15 September 2022.

1. Dr Godfredson gave oral evidence concurrently with Dr Rajan Darjee during the DO renewal application on 7 and 8 July 2023. 

Assessment of LD’s risk level

1. Dr Godfredson stated that he had considered recent documents relating to LD’s detention at Ravenhall Correctional Centre (namely incident reports, meeting minutes and LD’s behaviour management plan). Based on these materials, Dr Godfredson gave evidence that LD’s risk remained unchanged from his earlier assessments. In sum, and in relation to the test in section 63(1) of the Act, he opined that LD continues to pose an unacceptable risk of committing a serious sex offence in the community if he is not subject to an SO or DO.

1. Dr Godfredson stated that this view was based on LD’s conduct at Ravenhall Correctional Centre, Port Phillip Prison, the IRTP and other residential facilities.  Reports of LD’s behaviour had led him to conclude that LD posed a “high” risk of reoffending (the most serious category of risk).  Dr Godfredson stated that offenders in this category typically pose twice the risk of reoffending as an average sex offender.  LD’s “high” risk classification was said to arise from his preoccupation with establishing intimate contact, his tendency to become infatuated with certain individuals, his persistent exposing of himself, emotional dysregulation (such as uttering threats) and possession of child abuse material.

1. Nevertheless, Dr Godfredson gave evidence that LD’s threats to sexually reoffend are often made with no intent to carry them out:[81]

[W]e know that when he says to staff, ‘I’m going to rape you, I’m going to kill your children’, we know that he’s basically communicating, he’s just telling people, ‘Go away, leave me alone … I can understand why that gets reported to the police when it happens … but I really don’t see the point in reporting that to the police because you know, as far as I’m aware, that hasn’t led to any further convictions … and I don’t see how that’s going to be helpful in actually doing anything about that behaviour … [I]t’s … kind of misunderstanding what that behaviour’s about …

[81]T78, 7 June 2023.

1. Dr Godfredson has previously assessed LD as posing a “low” risk of committing a serious violence offence (the lowest category available).  During the hearing, he confirmed that he still holds this opinion.

Means of managing LD’s risk

1. Dr Godfredson agreed with Dr Darjee that the most appropriate means of managing LD’s needs and risk level is to house him in an SDA facility with a two‑to‑one ratio of SIL staffing support.[82] However, it was common ground between the parties that such accommodation is not yet available. For the purposes of the test in section 64(1), Dr Godfredson was asked to assess whether other non‑custodial facilities could, in theory, manage the risk posed by LD to an acceptable level.

Corella Place

[82]See paragraph 109 below.

1. Dr Godfredson gave evidence that Corella Place is “the worst possible place to accommodate [LD]”.  He stated that:[83]

… the cohort of individuals who reside at Corella Place is comprised of high‑risk sex offenders, including a high proportion of child sex offenders. Although [LD] is nearly 40 years old he could be described as having quite boyish qualities by reference to both his appearance and his behaviour. I think there is a significant likelihood that he would establish an intimate relationship of sorts with a resident in Corella Place and invariably as those relationships tend to do, there may be some conflict and the relationship would come to an end.

I think in that context there is a significant likelihood that [LD] would have difficulty reconciling the end of the relationship and may seek to pursue intimate contact with the other resident. There is also the risk of other scenarios, including [LD] exposing himself to residents and/or staff, possibly while masturbating; trading child abuse material with other residents and possibly even being exploited in that regard to come into the possession of or trade child abuse material on behalf of others and then of course there is the risk that [LD] might utter threats to harm others including to commit sexual offences, albeit with no intent.

[83]T28, 7 June 2023.

1. In sum, and in relation to the test in section 64(1) of the Act, it was Dr Godfredson’s view that, if housed at Corella Place, it was a “likely scenario” that LD might make unwanted sexual advances towards other residents.[84]  He conceded this was an “unhelpful description because it describes almost all sex offences”, and clarified that he was most concerned about LD engaging in sexual touching or penetrative offences.[85]  As to the probability of LD committing these offences, Dr Godfredson conceded it was “very difficult to assign a risk category to that [specific] scenario” as risk assessment tools can only determine a person’s overall risk of reoffending.[86]  Nevertheless, he ultimately assessed the risk of LD engaging in sexual touching or penetrative offences as “significant”.[87]  In Dr Godfredson’s view, any conditions placed on LD in order to reduce this risk were unlikely to serve as a deterrent.

   [84]T29, 7 June 2023.

   [85]Ibid.

   [86]T29–T30, 7 June 2023.

   [87]Ibid.

1. In cross‑examination, counsel for LD put to Dr Godfredson that LD’s risk level could be reduced by ensuring he did not enter the units of other residents.  It was suggested that this could be achieved by fitting LD with an electronic monitoring bracelet that would alert staff if he attended pre‑programmed “exclusion zones”.  Dr Godfredson stated that he was aware of this option.  Further, he acknowledged that, to his understanding, a similar system had been used to prevent other residents from attending certain areas within Corella Place.

1. Dr Godfredson was also referred to a letter authored by him on 26 August 2021, in which he provided Corrections Victoria with advice on the merits of relocating LD to a non‑custodial facility.  Dr Godfredson confirmed he continues to hold the views expressed within the letter.  In the letter, Dr Godfredson opined that LD exhibits “a unique constellation of problem behaviours which are resistant to treatment” and that, at the outset, “there are several reasons why [LD] should not be placed in a residential facility” such as Corella Place.  Those reasons were listed as:

First and foremost, given [LD’s] vulnerability and preoccupation with establishing a sexual relationship, it would be extremely inappropriate to house him with a group of high risk sexually deviant individuals. Second, staff at these facilities do not have the skills or resources to manage [LD’s] problem behaviours. Third, [LD’s] experience of frequent mental health crises would place an unreasonable burden on emergency services, including paramedics and police officers. Finally, these facilities are not secure and would not adequately mitigate the risk of [LD] absconding.

1. At the time of writing the letter, it was Dr Godfredson’s view that “there are no additional services or modifications which would enable [Corella Place] to manage the risks” currently posed by LD.  This remains his view. 

1. Nevertheless, during cross‑examination, Dr Godfredson acknowledged that staff at Corella Place receive general training on how to manage complex residents, as well as specific training on the management of particular individuals and their needs.  Further, he conceded that “a small number of people with an intellectual disability” currently reside at Corella Place.[88]  Dr Godfredson also gave evidence that some of these individuals have other diagnoses that interact with their intellectual disability, such that they have “complex presentations” similar to LD.  When asked if there was a difference between these individuals and LD, Dr Godfredson stated:[89]

The difference is the severity of the behaviours that have been exhibited by [LD] and the intensity of the services and the interventions that are needed to keep [LD] and others safe.

In short, Dr Godfredson described the environment at Corella Place as “a bridge too far” for LD.[90]

[88]T70, 7 June 2023.

[89]T71, 7 June 2023.

[90]T87–T88, 7 June 2023.

1. However, during cross‑examination, Dr Godfredson acknowledged that conflict and heightened interactions between residents commonly occur at Corella Place, largely due to the complexity of the people who reside there.  He gave evidence that multiple intervention orders have been taken out by offenders against their fellow residents.  He stated that staff at Corella Place are therefore adept at managing the complexities of residents and their personal interactions with others.  It was further put to Dr Godfredson that most interactions with residents are recorded in case notes, which are then used to inform management strategies for each individual.  He agreed with this characterisation.

1. Some time was also dedicated to seeking Dr Godfredson’s opinion about the likelihood of LD engaging in other disruptive behaviours at Corella Place.  As to the risk of him absconding from the facility, Dr Godfredson stated there was a “significant risk” LD would attempt to leave Corella Place but noted that the prospects of such an attempt succeeding were highly dependent on staffing levels.[91]  Regarding LD’s tendency to make threats of violence or engage in self‑harm, Dr Godfredson opined that there was “a very significant likelihood” these behaviours would be repeated at Corella Place, given they are coping mechanisms used by LD.[92]

   [91]T30, 7 June 2023.

   [92]Ibid.

1. The applicant put to Dr Godfredson that LD’s disabilities would cause him to struggle to care for himself at Corella Place, as residents are ordinarily required to attend to their own hygiene, food preparation and daily needs.  Dr Godfredson noted that prison had “de‑skilled” LD, such that LD now requires help with daily tasks.[93]  He expressed concern that Corella Place would not have the same “intensity of resources available” as Ravenhall Correctional Centre.[94] 

IRTP

[93]T40, 7 June 2023.

[94]Ibid.

1. Dr Godfredson’s evidence about the IRTP was somewhat difficult to reconcile.  He stated that the IRTP deploys “the gold standard of treatment for individuals with an intellectual disability, who present with complex behaviour”.[95]  In his opinion, the IRTP is “infinitely more suitable than Corella Place” for LD, as staff at the IRTP are trained to deal with the challenging behaviour of residents.[96]  Dr Godfredson stated that the IRTP held the most promise for achieving substantial treatment gains for LD.  When asked during cross‑examination if he would support LD being transferred to the IRTP, he indicated that he would “strongly support” any such move.  However, he cautioned that LD’s eligibility was ultimately a matter for those running the IRTP.

   [95]T96, 7 June 2023.

   [96]T97, 7 June 2023.

1. Nevertheless, in relation to section 64(1), when asked about the risk level LD would pose if he was placed at the IRTP, Dr Godfredson opined that LD would present “a very significant risk … particularly by reference to the vulnerability of other residents”.[97]  Dr Godfredson referred the court to his report dated 8 July 2020, which discussed LD’s previous stint at the IRTP and relevantly stated:

Dr. David Thomas of the Community Forensic Dual Disability Service prepared a psychiatric report dated 24 July 2018 in which he described [LD’s] challenging behaviours in the IRTP (SOATS file, pp. 121‑125). [LD] repeatedly threatened to kill or rape staff and their children. He reportedly stabbed a member of staff with a pen and stabbed a co‑resident in the neck with a paper clip. He engaged in sexual touching of a resident without their consent. [LD] was extremely demanding of staff and became verbally and physically aggressive if his demands for attention were not immediately met. His acts of violence were no longer preceded by known warning signs. Most staff were scared of working with him, given some of them were assaulted causing significant injuries. Certain staff even called in sick if rostered to support him. [LD’s] presence made it “almost impossible” for other residents to benefit from the program.” He was therefore accommodated on his own in a unit designed to house five or more residents.

[97]T41, 7 June 2023.

1. When it was put to Dr Godfredson that LD’s risk level could be reduced if changes were made to the IRTP’s treatment program, he initially declined to answer the question.  Dr Godfredson indicated that he did not know enough about the current cohort at the facility, nor whether staff members were willing to work with LD.  However, he subsequently stated that, if the IRTP proactively considered LD’s triggers and risk profile, it was possible LD could better adapt to the facility and pose less of a risk.

Suitability of the custodial environment

1. When asked about the prospect of continuing to detain LD in custody, Dr Godfredson conceded that LD’s detention in the custodial environment “doesn’t appear to be meeting its objectives”.[98]  Further, he stated that he had “serious concerns” about LD’s circumstances and the tendency of prison officials to hold LD in a cell for 22 to 23 hours every day.  In Dr Godfredson’s view, “maintaining the status quo will have a negative impact on [LD]”.[99]

   [98]T47, 7 June 2023.

   [99]T107, 7 June 2023.

1. However, Dr Godfredson did not attribute these negative impacts to the DO per se, but rather to the conditions associated with the DO.  He referred to another individual who, while placed on a DO, was able to accrue various privileges in custody.  Dr Godfredson stated that this individual had become content with the custodial environment over time.  He opined that relocating this individual to Corella Place on an SO would have been “less desirable”.  It was implied that if LD’s conditions in custody were improved, the extension of the DO might be the most appropriate option.  However, Dr Godfredson did not indicate what, if any, modifications to the custodial environment should be made.  Further, when it was put to him in cross‑examination that the applicant was seeking to extend the DO on the same terms and conditions, Dr Godfredson conceded this was the case.

1. Despite acknowledging the negative effects of custodial detention on LD to date, Dr Godfredson cautioned that placing LD in an alternative environment might lead to worse outcomes.  He referred to another individual who was housed at Corella Place and, due to insufficient support, died by suicide.  Dr Godfredson was asked about this incident in cross‑examination and conceded that the example also demonstrated that Corella Place could be modified with sufficient effort and commitment.  He also conceded that placing LD in an environment better suited to his needs would likely lead to a reduction in LD’s challenging behaviours.

1. It was also put to Dr Godfredson during cross‑examination that the prison environment replicates traumatic experiences suffered by LD as a child, including instances where he was put in a rubbish bin with the lid locked down.  Dr Godfredson indicated he was aware of this and conceded that LD finds a “lack of connection to others” to be traumatising.[100]  He also agreed that, during his time in custodial detention, LD had been given very few opportunities for socialisation and that this had adversely affected his progress.

   [100]T63, 7 June 2023.

1. However, Dr Godfredson later clarified that LD sometimes seeks to isolate himself when trying to regulate his mood.  LD’s counsel put to Dr Godfredson that Corella Place could fulfil both these functions — allowing LD to build connections with other residents and self‑isolate in his unit when required.  Dr Godfredson acknowledged LD would be able to do this, but cautioned that LD should only be left alone if staff are satisfied he does not pose a risk to himself.

Evidence of Dr Rajan Darjee

1. Dr Rajan Darjee is a consultant forensic psychiatrist, currently employed as the deputy clinical director of Tasmania’s Forensic Mental Health Service.  He has 18 years of experience working in community, secure and prison settings in the UK and Australia.  Dr Darjee has prepared reports and given evidence in analogous cases in Victoria, Tasmania, the Northern Territory and Scotland.

1. In relation to LD, Dr Darjee has given oral evidence at prior hearings and prepared the following written documentation:

(a)   a report dated 24 April 2022;

(b)  a report dated 20 November 2022; and

(c)   a report dated 29 November 2022.

1. As stated above,[101] Dr Darjee gave oral evidence concurrently with Dr Godfredson during the DO renewal application on 7 and 8 July 2023.

   [101]See paragraph 77 above.

Assessment of LD’s risk level

1. Dr Darjee confirmed that he had also considered the recent material concerning LD’s behaviour at Ravenhall Correctional Centre. In relation to section 63(1), he concurred with Dr Godfredson that LD poses a high (and therefore unacceptable) risk of committing a serious sex offence if he is not subject to an SO or DO.

1. Dr Darjee stated that his assessment of LD’s risk was based on various diagnostic instruments, particularly the Static‑99R.  These tests were conducted in 2022 and formed part of his initial report dated 24 April 2022.  In that report, he concluded:

Using the Static 99‑R he falls into the “well above average risk” group based on considering his age, relationship history, offending history, and pattern of sexual offending. Men who fall in this category have a much higher rate of sexual recidivism than average men with a conviction for a sexual offence. But this rating says nothing about the likely nature, severity, context, or imminence of potential future sexual offending.

1. During the hearing, Dr Darjee confirmed that his assessment remained unchanged due to the “continuation of the same behaviours [that] have occurred ever since [LD] was placed at Ravenhall”.[102]  

   [102]T15, 7 June 2023.

1. Dr Darjee agreed with Dr Godfredson that LD’s overall risk level meant there was a “plausible” risk LD would commit a contact sexual offence and a “possible” risk that LD would make sexual threats (albeit with no intent to act on them), expose himself to members of the community or possess child abuse material, if released unsupervised into the community.[103]  However, Dr Darjee opined that these risks were likely to be greater in prison or residential settings where LD is prone to becoming emotionally dysregulated or can be encouraged by others to reoffend.

   [103]T20, T23–T24, 7 June 2023.

1. Significantly, Dr Darjee cautioned that LD’s sexualised behaviours are often non‑sexual in intent and purpose:[104]

[T]here’s a lot of behaviours that look sexual with him, but they have completely different functions and some of them have no relationship at all to a risk he poses of serious sexual violence. And it’s really important that everyone working with him realises that and I think that the starkest example, again going back to what I was talking about earlier, is his threats to commit rape. They have nothing to do with a risk he poses of serious sexual violence, they have a completely different function and they’re not really part of the same domain, apart from if you attach the word sex to them.

[104]T80, 7 June 2023.

1. Dr Darjee agreed with Dr Godfredson that LD poses a “low” risk of committing a serious violence offence in the community.

Means of managing LD’s risk

1. Consistent with his evidence in previous applications concerning LD,[105] Dr Darjee stated that an SDA facility (with a two‑to‑one ratio of SIL staffing support) remains the most appropriate environment for managing LD’s risk. Again, given no SDA facility will be available in the near future, Dr Darjee was asked to consider the appropriateness of other non‑custodial accommodation options for the purposes of the test in section 64(1).

Corella Place

[105]See paragraph 27 above.

1. Dr Darjee was asked whether he agreed with Dr Godfredson’s opinion that Corella Place was the “worst possible place” to house LD.[106]  In response, he stated:[107]

I don’t know if I would say it’s the worst place. I would say all the options have got potential problems because none of them, including where he is in prison at the moment, are actually able to fully cater to his needs and manage the risk he poses …

I wouldn’t necessarily say it was the worst place because I think what has to be accepted in [LD’s] case is that none of the three potential options is actually a good option at all. So, it’s about, well, whichever one he goes to, there have to be some adaptations.

[106]See paragraph 83 above.

[107]        T31, 7 June 2023.

1. As to LD’s specific risk profile at Corella Place, Dr Darjee agreed with the potential offending scenarios listed by Dr Godfredson.[108]  However, he opined that the probability of LD committing these offences could be decreased if appropriate supervision measures and adaptions were put in place.  With these measures in place, Corella Place could become an appropriate facility to manage LD’s risk of serious sexual offending.  In Dr Darjee’s view, possible measures could include:

   [108]See paragraphs 83–84 above.

(a)   monitoring LD to ascertain if he was entering the units of other residents, or if other residents were entering his unit;

(b)  a high level of staff supervision, so that LD’s location and movements are known at all times (whether by electronic or manual means); and

(c)   staff training on LD’s intellectual disability, personal issues and trauma responses.

1. Dr Darjee conceded that such modifications would not be easy to make, and were ultimately a matter for staff at Corella Place.  He further conceded that, if no modifications were made, he would share many of the concerns outlined by Dr Godfredson. 

1. When the applicant put to Dr Darjee that LD would likely disregard any rules about entering the units of other residents, Dr Darjee stated that proper disability management (with a focus on reminding LD of his conditions and giving him ways of understanding them) could somewhat ameliorate this concern.  Further, Dr Darjee also emphasised that any such measures would need to be “dynamic” in nature, and able to be tailored to particular aspects of LD’s behaviour and his relationships with other residents.[109] 

   [109]T66, 7 June 2023.

1. Dr Darjee was also referred to his report dated 24 April 2022.  In that report, Dr Darjee stated:

[LD] needs containment in a setting with a level of physical, procedural, and relational security which is able to prevent him from posing a risk in the community, but which can also manage the risk he poses within a residential setting. There will need to be clear boundaries and rules, but also an ability to tolerate a certain level of disruptive behaviour as long as it does not cause harm to others, and rules should be kept to the minimum required to manage the risk he poses. In my view this could be provided in the community in appropriately staffed, supervised and supported accommodation with an enhanced package of care providing both disability support and a high level of supervision …

The most important intervention he requires is an environment providing psychologically informed management. By this I mean that all staff working with him from all disciplines and agencies should be working to a joint understanding of him, taking into account his intellectual disability, his history of complex trauma and his personality difficulties. Opportunities should be taken to reinforce positive behaviour rather than focusing on punishing negative behaviour, and such reinforcement should be immediate and tangible. To the extent that it is possible it is important that he feels he has some control and some say in making decisions. It may be helpful for those working with him to understand that he presents with almost exactly the same difficulties now as he did as a child in terms of his behaviour, how he views himself, his interactions with others, and the responses he generates in staff and services. Understanding him this way and seeing things from his perspective may improve staffs’ ability to empathise with him and better understand his complex behavioural problems.

1. In oral evidence, Dr Darjee confirmed that he maintains these recommendations.  When it was put to him that “psychologically informed management” is not implemented at Corella Place, Dr Darjee conceded that Corella Place is not a therapeutic community by design.  Nevertheless, he maintained that, “with commitment and effort and creativity and resources”, staff at Corella Place could implement an appropriate therapeutic model for LD.[110]  Dr Darjee gave evidence that Corella Place currently houses “a range of individuals with diverse needs, some of which overlap with [LD]”.[111]  Further, he stated that a ”significant minority” of residents at Corella Place are intellectually disabled and, consequently, receive assistance from disability services. 

   [110]T111, 7 June 2023.

   [111]T70, 7 June 2023.

1. Importantly, Dr Darjee noted that Corella Place has successfully implemented tailored psychological management plans for various residents in the past.  He also suggested that Australian Community Support Organisation [‘ACSO’] staff, who currently provide LD with support at Ravenhall Correctional Centre, would be able to continue to provide LD with support at Corella Place.

1. Regarding the risk of LD engaging in other disruptive behaviours at Corella Place, Dr Darjee stated that while it was possible LD may impulsively attempt to abscond, he did not think LD would succeed in such an attempt.  Nevertheless, if LD did successfully abscond, Dr Darjee opined that it was unlikely LD would commit a serious sex offence while at large.  As to the possibility of LD engaging in violent behaviours, he noted that LD has displayed such behaviours since his teenage years and that they are therefore “likely to follow him no matter where he goes”.[112]  That said, it was Dr Darjee’s view that LD’s challenging behaviours are likely to become less frequent once he is released from custody and placed in a less restrictive environment.  Dr Darjee further opined that, with the right plan in place, Corella Place “might” facilitate such a reduction.

   [112]T34, 7 June 2023.

1. Further, under cross‑examination, Dr Darjee stated that LD’s challenging behaviours are sporadic, even when in custody.  He gave evidence that “there are many days where there aren’t such problems”, and that LD’s “episodes” are often triggered by situations that are similar to negative experiences he had as a child.[113]  With appropriate management, LD’s exposure to these risk triggers could be reduced.  Moreover, Dr Darjee suggested that LD’s NDIS package could be used to employ additional staff who could keep LD occupied and fund additional training for existing employees.  He stated that, when he had previously delivered training to staff at Corella Place on the management of complex clients, management had taken on board his recommendations.  When asked how much training existing employees at Corella Place would need, he stated that the training would be “relatively straightforward” and that one session could be sufficient.[114]

   [113]T53, 7 June 2023.

   [114]T114, 7 June 2023.

1. As to LD’s ability to care for himself at Corella Place, Dr Darjee conceded that prison had de‑skilled LD.  He stated that this underscored the need to move LD out of the custodial environment, as LD had previously been capable of independently caring for himself.

1. Under cross‑examination, Dr Darjee was asked whether it would be suitable to house LD at Corella Place for up to a year (while plans for an SDA facility were put in place).  Dr Darjee responded that “ideally it would be for a short period of time”, but indicated his assessment had taken into account the possibility that LD would be accommodated at Corella Place for a substantial period of time.[115]  He stated that, during this period, it would be important to continue to focus on preparing LD’s transition to an SDA facility.  Further, Dr Darjee cautioned that, if LD was to be relocated to Corella Place, a transition period would be needed to enable LD to become familiar with staff and the physical environment.  He stated that the length of this transition period would be dictated by LD’s receptiveness to the move, but could occur over a matter of weeks.

IRTP

[115]T51, 7 June 2023.

1. Dr Darjee was also asked to consider the level of risk LD would pose if he were to be accommodated at the IRTP.  He agreed that, if LD were to be placed at the IRTP and subjected to the same conditions and treatment program as he was previously, then there would be “a potential risk of him committing a sexual offence along the lines of what Dr Godfredson said”.[116]  Further, Dr Darjee warned that if LD was subjected to the general treatment program run by the IRTP, the results could be “problematic”.[117]  However, if adaptions were able to be made to the IRTP (such as providing LD with higher levels of supervision and bespoke treatment), Dr Darjee opined that “it would potentially be feasible to manage [LD’s] risk of serious sexual offending”.[118]  However, Dr Darjee conceded that the viability of creating a bespoke treatment program for LD was ultimately a matter for the IRTP.

   [116]T42, 7 June 2023.

   [117]T94, 7 June 2023.

   [118]T50, 7 June 2023.

1. During cross‑examination, it was put to Dr Darjee that the IRTP had three features that made it suitable for LD: specialist staff, supervision and a therapeutic focus.  Dr Darjee agreed with this assertion, and further stated that these three features would need to form part of LD’s management plan going forward.  He also indicated that the IRTP’s existing incentive program would be of benefit to LD. 

1. Further, LD’s counsel put to Dr Darjee that, during LD’s previous stint at the IRTP, he had experienced a period of relative stability.  Dr Darjee agreed, although he noted this period did not last long, particularly after LD formed an attachment to another resident.  Nevertheless, Dr Darjee agreed that LD spent just under two years at the IRTP, during which he was not charged with a serious offence.  

1. Dr Darjee also indicated that his assessment of the IRTP’s suitability had factored in the possibility that LD could be accommodated there for some time.  He underscored the need to continue to prepare LD for his eventual transition to an SDA facility.  Further, Dr Darjee again cautioned that, if LD was to be relocated to the IRTP, a transition period would be needed to enable him to familiarise himself with staff and the location. 

Supervision orders generally

1. During re‑examination, the applicant asked Dr Darjee if he believed LD could comply with the core statutory conditions of an SO.[119] The applicant drew Dr Darjee’s attention to section 31(5), which would require LD to “not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility or visitors to the facility”. Dr Darjee stated that he believed LD could comply with this and the other core conditions, if he had “the right support in place from staff and from other agencies”.[120] 

   [119]These conditions are contained in section 31 of the Act and apply to all persons who are subject to an SO, regardless of the facility they reside at.

   [120]T112, 7 June 2023.

The available means of managing the risk posed by LD

1. I now turn to the available means of managing LD’s risk.  As indicated above, the evidence before the court indicates that, in order to appropriately manage LD’s risk, the following measures must be put in place, regardless of where he is accommodated:

(a)   a high degree of monitoring and supervision by staff, including the ability to know LD’s movements at any given time;

(b)  sufficient and skilful staffing levels, to enable a quick response if and when incidents occur; and

(c)   GPS tracking, in conjunction with a condition that LD not enter the units of other residents at whatever facility he might be placed.

1. With respect to managing LD’s difficult behaviours, the expert witnesses have suggested the following measures could be put in place to minimise his risk and assist in his treatment:

(a)   appropriate training of staff, particularly in trauma informed and psychologically informed management that emphasises positive reinforcement and allows LD to have a degree of control and autonomy in decision‑making;

(b)  an approach to the management of LD that takes into account his intellectual disability, personality difficulties and complex, traumatic history; and

(c)   a degree of flexibility and understanding surrounding the nature of threats made by LD when frustrated and dysregulated.

1. In my opinion, whilst I accept that measures related to containment or restraint of LD are most easily instituted under a DO, simply because it may be more difficult to institute under an SO does not mean a DO should be granted.  That is not the test. 

1. Further, having considered the expert evidence, I consider it is likely that if LD’s needs are met in a less restrictive and isolating environment, there are reasonable prospects his risk may be reduced to an acceptable level.  

1. The Act makes clear that it is not the role of the court, when assessing whether to make a DO, to pick the most suitable facility from the range of available options.  I am not required to discuss in detail the advantages and disadvantages of LD’s potential placement at any of the available facilities.  I do however acknowledge the opinions of Dr Frize and Ms Guglielmino that the IRTP and Corella Place are not suitable for LD.  Dr Frize stated that the IRTP presently has very limited resources available, and that they need to be used wisely to obtain maximum benefit.  Ms Guglielmino acknowledged that the capacity of Corella Place to manage LD’s risk is also resource related.  She further stated that making modifications to the physical environment and implementing additional security measures is not in line with the purpose of Corella Place.  On the other hand, Dr Darjee has expressed the opinion that suitable adaptations can be made to the IRTP and Corella Place to feasibly manage LD’s risk, and Dr Thomas considers that the IRTP and its staff are appropriately trained and able to use effective strategies to deal with LD’s risk. 

1. Further, I am of the opinion that the arguments put forward in this case surrounding resourcing, whilst practically relevant to the providers of the facilities, are unhelpful.  This suggested approach to the management of LD’s risk appears to me to be less than creative and represents an inflexible approach to the management of complex individuals such as LD.  It is clear that LD has significant funding under his NDIS package.  Whilst it is not a matter for this court, it seems that resources can, and should, be reallocated and managed appropriately.

1. Although the ability of currently available treatment facilities to put in place extra measures to manage LD is relevant to assessing “the means of managing the respondent’s risk”, I am satisfied that some of the measures that have been recommended can be instituted. Simply asserting that LD is not eligible or suitable for the facilities that have been the subject of evidence does not constitute an entire answer to the inquiry the court is required to make under section 64(3)(a) of the Act, namely whether there are available means of managing the risk LD poses. I do not consider that a DO should be made simply because there is no ‘perfect’ non‑custodial setting that could manage all aspects of LD’s risk. As Dr Darjee succinctly stated, “none of these solutions are perfect, but … if he stays where he is at the moment things are going to keep going as they are or get worse”.

1. I also note that, as a consequence of the way in which the parties have conducted these proceedings, submissions have not been made on the potential conditions of an SO, which has made the task of determining whether a DO is the only option somewhat more challenging. 

1. Nevertheless, in summary, I consider that if LD were placed in either a residential treatment facility, or residential facility, appropriate modifications can be made and training can occur that could reduce the risk LD poses of committing a serious sex offence to an acceptable level.  These changes, coupled with opportunities for LD to engage in treatment, are likely to also reduce the negative impact of his continued detention at Ravenhall Correctional Centre.  This may in turn lessen his problematic behaviours, including threats to others, threats of self‑harm and property damage, and therefore his overall risk level.

The likely impact of a detention order on LD

1. I now turn to considering the likely impact of a DO on LD.

1. Whilst I accept that persons subject to DOs are treated in ways that are appropriate in light of their status as unconvicted, post‑sentence detainees, persons such as LD are managed in accordance with the Corrections Act 1986 (Vic) and the Corrections Regulations 2019 (Vic), and decisions about the placement and movement of persons on these orders are made under these Acts, and not by the court. This is evident from the way in which LD has been moved from the Glenhope CSU to the much more restrictive FMU whilst at Ravenhall Correctional Centre on some occasions, through no fault of his own. The conditions that LD has been subject to are determined not just by his presentation, but by resourcing considerations and other factors beyond his control. The evidence before me shows that this has had a profoundly negative impact on him and has impeded his treatment progress.

1. I have no hesitation in accepting that the staff at both the Glenhope CSU and FMU, including Dr Crowe, are well‑trained clinicians.  I have no doubt that they use their best efforts to work with and assist LD.  The evidence of Dr Crowe demonstrated that LD has formed strong bonds with certain clinicians.  Despite this, Dr Darjee and Dr Godfredson unequivocally stated that LD’s medical, psychological and social needs are not being appropriately met in the custodial environment. 

1. In this regard, I note that the staff tasked with caring for LD at Ravenhall Correctional Centre on a day‑to‑day basis are not clinically trained, nor are they specialists in the management of people with intellectual disabilities.  The evidence of Dr Darjee establishes that LD, given his unique constellation of disabilities, needs to be cared for by highly qualified specialists who are trained in psychologically informed management.  The lack of training in the custodial environment creates a risk that staff will misunderstand LD’s behaviours and disproportionately respond to them.  It appears this has already occurred on a number of occasions, when staff have reported LD’s behaviours, many of which are a function of his disability, to Victoria Police.  In some instances, these complaints have concerned behaviour that is, on the whole, and taking into account LD’s complex presentation, at relatively low levels of seriousness.  The evidence before me indicates this has only served to heighten LD’s confusion and damage his progress.  

1. I am satisfied on the available evidence that the granting of the DO renewal application would have a significantly deleterious effect on LD.  It appears that LD has already been significantly ‘de‑skilled’ as a result of his lengthy time spent in custody.  Dr Darjee provided evidence that “the longer [LD] stays where he is at the moment, he’s going to become more and more de‑skilled”.  I accept, with concern, that it appears his current environment is so unsuitable, it is causing iatrogenic harm.  Furthermore, I am troubled by Dr Darjee’s concern, which is reflected in the incident reports presently before the court, that LD’s frustration, confusion and risk of self‑harm is escalating.

1. LD has expressed a strong desire to leave the custodial environment through his legal representatives and Dr Darjee has convincingly opined that “continuing to keep him managed how he is at the moment is disproportionate to the risk he poses and is perpetuating his challenging behaviour and his poor mental health and functioning”.  I accept the evidence of Dr Darjee on this aspect.  In doing so, I have also taken into account and considered the evidence of Dr Godfredson. 

1. I note that the secondary purpose of the Act is to facilitate the treatment and rehabilitation of offenders.  The IDO that LD is presently on, the previous IDOs, and the previous DO, are clearly failing to facilitate LD’s treatment and rehabilitation.  I consider that this indirectly impacts upon the primary purpose of the Act, that is, to enhance community protection.  The community is best protected when high‑risk individuals are appropriately cared for and accommodated in a manner that reduces the frequency of their problematic behaviours.  The evidence before me indicates that keeping LD in custody has heightened his presentation, reduced his capacity to live a meaningful life, and caused him to pick up new and unhelpful coping mechanisms.  In this regard, the evidence satisfies me that, if he is moved to a less‑restrictive environment, there is a better chance his problematic behaviours will decrease.  Adopting a long‑term view, it is consistent with protecting the community and the primary purpose of the Act for LD to receive appropriate management and care.

1. It is also necessary to mention the impact of a DO on LD’s human rights, particularly his right to liberty.[182]  LD’s counsel submitted that his detention at the Glenhope CSU has had a “very substantial impact on his human rights, his disability needs are not being met, detention is making his functioning worse and making his ultimate transition to the community more difficult”.  

   [182]Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’), ss 21 and 22.

1. Whilst it might be said that LD’s right to liberty will be deprived under any of the accommodation models proposed if an SO or DO is made, it is clear he would have a greater level of independence, social connection, and access to the community if an SO is imposed instead of a DO.  The extremely high level of isolation and restriction of movement that was evident from the view is incomparable to any of the facilities that LD may be placed at if an SO is imposed.  The cells in both the Glenhope CSU and FMU are extremely bare and devoid of the colour and vibrancy that one would expect to find in an environment in which people live.  They can be described as sterile to the point of oppressiveness.  Further, LD does not have open access to various areas and rooms as he pleases; his ‘runout’ time is clearly restricted; he has been the only person in the Glenhope CSU (despite there being four cells in Phase 1) and has gone without sufficient human contact from non‑prison officials for too long.  Any person, no matter their level of functioning, would find it hard to cope in the environment that LD has inhabited for the last three years.  The fact that LD has, despite his significant background of trauma and disability, continued to maintain hope while living in this environment is a testament to his capacity for growth and rehabilitation.

1. Moreover, his ‘Inside Out’ newsletter demonstrates a level of insight into his situation.  He has clearly been, and continues to be, negatively affected by his time in the custodial environment.  

1. I have also had regard to the conceptual value of other rights under the Charter that would be engaged by the making of a DO, particularly: the equality rights in section 8 (in light of LD’s disabilities); the right to protection from torture and cruel, inhuman or degrading treatment in section 10; the right to freedom of movement in section 12; and the right to privacy in section 13.

1. Further, I have given significant regard to LD’s intellectual disability and traumatic and deprived upbringing.  Dr Godfredson gave evidence that the poor behaviours, including threats, exhibited by LD in custody are often LD’s means of getting staff to leave him alone.  I accept, as Dr Darjee stated during his evidence, that LD’s behaviours in custody serve different functions.  Whilst they may appear sexual, the evidence indicates they often have no relationship to the risk he poses of committing a serious sex offence.  

1. Finally, it is necessary to make the observation that LD was not transferred to prison because he had committed, or posed a risk of committing, a serious sex offence while at the IRTP.  Nor was he transferred because his risk level could only be managed to an acceptable level in custody.  Instead, he was transferred because, based on the incomplete picture that the court had of LD’s disability at that time, it was thought that he might respond better to the highly structured and supervised nature of prison.  That prediction has been proven wrong.  The prison door shut behind him, and it has remained locked since then on the basis that he will pose an unacceptable risk if accommodated elsewhere.  Instead of trying alternatives, the State of Victoria has warehoused LD, largely in the same prison cell, for reasons that one suspects are ultimately related to resourcing and convenience. 

1. In all the circumstances, and having given paramount consideration to the safety and protection of the community, the evidence does not satisfy me to the requisite standard that LD will continue to pose an unacceptable risk of committing a serious sex offence unless a DO is imposed.

The court’s discretion to refuse to make an order

1. As I am not satisfied that the test in section 64(1) has been met, I may make an SO under section 62(1) or, alternatively, exercise the residual discretion in section 62(5) to make no order.

1. I have considered this course but, in light of the evidence and submissions made about LD posing an unacceptable risk if subject to no order, I will decline to make no order in this application.  In all the circumstances of this case I propose to make an SO.

1. However, I make the following comments about the residual discretion to make no order contained in section 62(5) of the Act.

1. As Justice Incerti stated in DPP v CS:[183]

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’.

[183]CS (n 57) [202] (Incerti J).

1. In my opinion it is extremely concerning that, in the State of Victoria today, the only option able to be put forward at this time to care for LD, and others in his situation, is the custodial environment presented under a DO.  As Dr Darjee stated, it is difficult to conceive that LD could be characterised as one of the most dangerous people in Victoria, requiring the imposition of a DO to manage the risk he poses.  Rather, it appears that he has been detained because, to adopt Dr Darjee’s words “unfortunately Victoria does not have the appropriate facility for someone with [his] needs”.  In my view, this is an inappropriate use of the DO provisions contained in the Act.  The Act should not be used in a manner which results in prisons becoming proxy disability settings simply because other, more appropriate facilities have not been constructed and are therefore not presently available.  I respectfully suggest that a solution must come from government, as a matter of urgency, with respect to the provision of support and resources for vulnerable individuals similar to LD.  It appears I am not alone in this position, with similar views being expressed elsewhere.[184]

   [184]See Attorney‑General (Qld) v Tiers [2020] QSC 135, [76]–[77] (Applegarth J); Attorney‑General (Qld) v Tiers (No 2) [2018] QSC 229, [9] (Bowskill J); DPP (WA)v AA (No 6) [2013] WASC 154, [39]–[55] (McKechnie J); WA v Johnson [2012] WASC 439, [58] (McKechnie J); Corrections Victoria, Review of Complex Adult Victim Sex Offender Management (Harper Review, November 2015), 5.180.

1. Whilst I do not express a strong or conclusive view on whether I would have exercised the residual discretion in section 62(5) if I had reached the conclusion that a DO was the only option, I consider that the inclusion of this discretion in the legislative scheme is directed towards situations such as these; where certain individuals may, for one reason or another, ‘fall through the gaps’ and be deemed ineligible for the residential facilities or residential treatment facilities that might otherwise be available.

Conclusion

1. Whilst I am satisfied that LD poses an unacceptable risk of committing a serious sex offence if an SO or DO is not made and he was released into the community, I am presently not satisfied to a high degree of probability that the risk would be unacceptable unless a DO is made.  I therefore propose to refuse the DO renewal application.

1. I am therefore empowered to make an SO under section 62(3) of the Act in respect of LD, or make no order under section 62(5). In the circumstances I propose to make an SO. As I have yet to hear submissions in relation to this, and given that dismissing the DO renewal application will cause LD’s current IDO to expire,[185] I will hear from the parties and the Secretary in relation to the terms of the proposed SO before making any further orders, as I accept that leaving LD without any form of supervisory order should not occur.

   
   

   [185]The Act, s 82(b).

Appendix A

DATE OF SENTENCE	OFFENCE(S)	SENTENCE/PENALTY
17 August 2004 Melbourne Magistrates’ Court	Two counts of theft Stalking Two counts of criminal damage Two counts of intentionally damage property	Without conviction, Community Based Order for 24 months, with conditions.
30 July 2007 Heidelberg Magistrates’ Court	Wilfully damage property Wilfully injure property	Without conviction, fined an aggregate of $50.
4 February 2010 Melbourne Magistrates’ Court	Indecent act with a child under 16	Convicted, sentenced to four months’ imprisonment, wholly suspended.
	Indecent act with a child under 16	Convicted, Community Based Order for 18 months, with conditions.
17 October 2013 Heidelberg Magistrates’ Court	Knowingly possess child pornography Theft	Convicted, adjourned to 17 October 2014, to participate in services specified in a Justice Plan for a period of 12 months.
17 January 2014 Heidelberg Magistrates’ Court	Make/produce child pornography	Without conviction, adjourned to 17 July 2015 to participate in a Justice Plan for a period of 18 months.  To abide by the conditions of the Supervised Treatment Order.
4 March 2014 Melbourne Magistrates’ Court	Hinder police Use threatening words in public place	Dismissed.
4 September 2014 Heidelberg Magistrates’ Court	Failure to comply with reporting obligations	Convicted, fined $300.
7 November 2016 Melbourne County Court	Rape Sexual assault	Sentenced to a five‑year Residential Treatment Order.
1 December 2016 Melbourne Assessment and Referral Court (ARC)	Indecent assault	Sentenced to 45 days imprisonment (concurrent), reckoned as a period of imprisonment already served.
	Failure to comply with reporting obligations	Sentenced to 30 days imprisonment (concurrent), reckoned as a period of imprisonment already served.
	Contravene a conduct condition of bail	Sentenced to 14 days imprisonment (concurrent), reckoned as a period of imprisonment already served.
19 November 2018 Melbourne County Court	Variation re: 7 November 2016 – rape; sexual assault	Cancellation of Residential Treatment Order.  Resentenced as follows: -   Rape - convicted and resentenced to three years and six months imprisonment.  -   Sexual assault - convicted and resentenced to one year imprisonment, with six months to be served cumulatively with the sentence for the charge of rape.