DW v Secretary to the Department of Justice and Community Safety
[2024] VSC 137
•26 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0045
IN THE MATTER of the Serious Offenders Act 2018 (‘the Act’)
-and-
IN THE MATTER of an application under s 110 of the Act
BETWEEN:
| DW | Applicant |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Respondent |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 & 29 February 2024 |
DATE OF JUDGMENT: | 26 March 2024 |
CASE MAY BE CITED AS: | DW v Secretary to the Department of Justice and Community Safety |
MEDIUM NEUTRAL CITATION: | [2024] VSC 137 |
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PUBLIC LAW — Application by offender for leave and, if granted, to review a condition of a supervision order — Interests of justice — Leave granted — Serious sex offender — Risk of committing a Schedule 3 offence (stalking) — Purpose for which conditions may be imposed — Disputed condition concerns internet access — Condition varied — DPP v DW [2023] VSC 24; Serious Offenders Act 2018 ss 5, 27, 36, 102, 110, 111 & 139.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr P Holdenson KC | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
This is an application by DW to remove, or alternatively vary, a condition of his supervision order.
DW was placed on a supervision order by this Court on 27 January 2023, after the Court declined to make a detention order sought by the Director of Public Prosecutions.[1] The history of DW’s pathway through the criminal justice system, including his index offending, other offending, personal circumstances, his progress on an earlier interim supervision order imposed by the County Court in 2019, breach proceedings and risk assessments are set out in detail in DPP v DW [2023] VSC 24.
[1]DPP v DW [2023] VSC 24.
DW was placed on a supervision order because he poses an unacceptable risk of committing a serious sex offence if a supervision order is not made and DW is in the community.[2] The conditions of DW’s supervision order require him to reside at a residential facility within the meaning of the Serious Offenders Act 2018 (‘the Act’) or where otherwise directed by the Post Sentence Authority (‘the Authority’). Pursuant to the supervision order, DW has been residing at Corella Place since 27 January 2023. The term of the order is 10 years. It consists of the mandated core conditions and a number of discretionary conditions.
[2]Serious Offenders Act 2018 (Vic) s 14 (‘the Act’). All references to section numbers are a reference to sections of this Act unless otherwise stated.
Application by DW
On 13 November 2023, DW made two applications to this Court — an application pursuant to s 110 for leave of the Court to apply for a review of the conditions of the supervision order, and an application pursuant s 102(1) for leave of the Court to apply for a review of the supervision order.
DW is, by choice, unrepresented. At a mention before me on 1 December 2023, the application pursuant to s 102(1) was adjourned to a date to be fixed. At a further mention on 14 December 2023, the application under s 110 was listed for a two day hearing commencing 27 February 2024. The hearing was confined by the Court to the question of leave and (if granted) review of condition 6.11 (‘internet condition’).[3]
[3]The conditions the applicant seeks to review are somewhat unclear, but he does seek the review of other conditions, albeit some appear to be core conditions which cannot be reviewed.
Condition 6.11 states:
[DW] must not:
(a)access the internet, directly or indirectly; and
(b)use, own or possess any internet‑capable devices
except in accordance with the written directions of the Post Sentence Authority.
The Secretary to the Department of Justice and Community Safety (‘the Secretary’) opposes the grant of leave and, if leave is granted, submits condition 6.11 should be confirmed.
The legislation
The Act creates a post sentence regime whereby certain offenders, who have served their sentence, are subject to ongoing supervision or detention. The primary purpose of the Act is to provide for enhanced protection of the community. The secondary purpose is to facilitate the treatment and rehabilitation of those offenders.[4] In making any decision under the Act, the Court must give paramount consideration to the safety and protection of the community.[5]
[4]The Act s 1.
[5]The Act s 5.
Relevantly, ss 110 and 111 are as follows:
110 Application for review of condition of supervision order or interim supervision order
(1)The Secretary or the offender may at any time (including time during which the offender is remanded in custody or is serving a custodial sentence), with the leave of the court that made the order, apply to the court to review any condition of the supervision order or interim supervision order other than a core condition.
(2)An application may be accompanied by a certificate of available resources or a progress report or both.
(3)The court may grant leave under this section if the court is satisfied that—
(a)new facts or circumstances have arisen since the conditions were made that would justify the review; or
(b)it would generally be in the interests of justice, having regard to the purposes of the conditions and the manner or effect of their implementation, to review the conditions.
(4)Before determining whether to grant leave, the court may request a further certificate of available resources from the Secretary.
(5)The court must have regard to a certificate of available resources in considering the matters under subsection (3).
111Power of court on review of conditions
(1)If the court grants leave for an application under section 110, the court must grant the offender, the Authority and the Secretary the opportunity to be heard in respect of the application.
(2)The court must consider any submissions made under subsection (1) and any certificate of available resources.
(3)The court may—
(a)vary, add or remove any conditions of the supervision order; or
(b)confirm the conditions of the supervision order; or
(c)review the supervision order in accordance with this Part.
(4)If the court exercises a power under subsection (3) in respect of a supervision order, the court must ensure that the conditions of the order are in accordance with the requirements of section 15 and Division 3 of Part 3 and make any variations or additions to the conditions that are necessary for this purpose.
(5)Divisions 3 and 4 of Part 3 (with any necessary modifications) apply to the addition or variation of a condition under this section.
Section 27 gives the Court the power to impose conditions on a supervision order, other than the core conditions.[6] Section 27 is as follows:
[6]The Act s 31 sets out the core conditions of a supervision order.
27Purposes of conditions of supervision order
(1)The primary purpose of the conditions of a supervision order is to reduce the risk of the offender re‑offending by committing a serious sex offence or a serious violence offence or both or an offence referred to in Schedule 3.
(2)The secondary purpose of the conditions of a supervision order is to provide for the reasonable concerns of the victim or victims of the offender in relation to their own safety and welfare.
(3)In order to reduce the risk of the offender re‑offending, the conditions may—
(a)promote the rehabilitation and treatment of the offender; and
(b)address types of behaviour that may increase the risk of the offender—
(i)committing a serious sex offence or a serious violence offence or both or an offence referred to in Schedule 3; or
(ii)engaging in any behaviour or conduct that threatens the safety of any person (including the offender).
(4)The court must ensure that any conditions of a supervision order (other than the core conditions)—
(a)constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and
(b)are reasonably related to the gravity of the risk of the offender re‑offending.
Section 27(4)(a) reflects the principle of parsimony. Any conditions of a supervision order must not be any more onerous than is necessary to achieve the purposes for which the condition is made.
Material provided prior to the hearing
The applicant provided approximately 70 pages of material, only some of which concerned the internet condition. The balance of the material included complaints about corruption, human rights violations, insufficient outings and issues with medication.
The respondent provided approximately 220 pages of material (with some duplication). The respondent’s material focussed mostly on the internet condition and included file notes, Special Reports prepared for the Authority, and incident reports.
The Authority filed submissions dated 19 February 2024, attaching an earlier submission (undated but provided December 2023) and various other documents. Pursuant to s 111(1), if the Court grants leave for an application under s 110, the Court must grant the Authority the opportunity to be heard in respect of the application. I raised with the respondent whether it was appropriate for the Court to have regard to the Authority’s material when considering whether to grant leave. The respondent submitted that the submissions themselves should not be taken into account at the leave stage. They submitted, however, that the Court ‘might take the view’ that regard can be had to the attached material, being Annexure A insofar as it sets out the reasons for a decision, and Annexures B, C and D.
In my view, it is appropriate to have regard to some of the Authority’s material when considering whether the Court should grant leave to review the internet condition. The material deals directly with the question of how the internet condition has been managed thus far and the process by which the Authority has issued written directions. In particular, the material is relevant when considering whether the Court can be satisfied of the matters set out in s 110(3). I have therefore had regard to Annexure A (insofar as it sets out decisions made and reasons for those decisions) and Annexures B, C and D.
Applicant’s material, evidence and submissions
The applicant relied on the material filed and called one witness, Dr Galahitiyawa. The applicant also sought to rely on an additional 30 page document which he said had been mailed but which the Court had not received. The Court has never received that document.[7]
[7]The applicant was advised in writing that the Court had not received the document, and he indicated he was content for the Court to rule on the application without receiving the document.
Evidence of Dr Galahitiyawa
Dr Galahitiyawa gave evidence that DW transferred across from the Carn‑Brae Medical Centre due to a conflict of interest with that clinic. Dr Galahitiyawa took over the care of DW in August 2023. He said DW has a ‘fair bit of anxiety,’ a ‘reasonable amount of insomnia,’ and a ‘reasonable amount of anger because of everything’. He is seeing DW every fortnight. In his opinion, DW’s anxiety and depression will decrease if he is better engaged with the community.
The doctor gave evidence that, based on the way DW explains it, the control, pressure and ‘emotional harassment’ he is experiencing could be contributing to DW’s anxiety, depression and insomnia. The doctor said if restrictions were relaxed, this would help alleviate some of DW’s distress.
Dr Galahitiyawa was not cross-examined.
Applicant’s submissions
The applicant submitted that when he was at Corella Place in 2019, there was no condition on his order concerning internet usage. He had an internet capable phone and was allowed to take it on outings. He never did ‘anything wrong’ on that phone. He admits he used an ‘illegal phone’ (that is, an internet capable phone that is possessed contrary to the rules of Corella Place) belonging to another resident to use Facebook, but it was not done on his phone. He submitted there are plenty of illegal phones in Corella Place and he has been offered such phones, but for 12 months he has not touched one. He submitted that he has done the right thing, and that should be recognised and things should move forward.
He submitted that pursuant to the internet condition, his internet access should have been monitored but it has been banned altogether. He submitted that he does not care about Facebook or Instagram or similar. He wants to use the internet for general things like shopping and banking. He has an email address, and both his email address and telephone number are registered, as required by ‘SORA’.[8] He wants to be able to take his phone on outings so he can listen to music and look for places to go. He submitted if you shop online with Safeway or Coles, you need to take your phone and scan a QR code to pick up the groceries, so there is no point having access to the apps unless you can take the phone on outings. DW argued that he is told he should make prosocial contacts and the internet could help with that. When asked how, DW was unclear as to how it could help and stated, ‘I’m sure there’s things on there where you can meet friends, I don’t know’.[9] DW submitted ‘but mainly’ he just wants to use the internet for shopping, looking at things, looking at places to go and things to do, and using his music properly.
[8]The Court understood this to be reference to the Sex Offenders Registration Act 2004 (Vic), as DW is a registered sex offender.
[9]Transcript of proceedings, DW v Secretary to the Department of Justice and Community Safety (Supreme Court of Victoria, Fox J, 27 and 29 February 2024) 49 (‘Transcript’).
DW submitted the staff at Corella Place have been telling him he is banned from using the internet, but that is not what the condition said. He argued he got an iPhone on a plan at considerable expense ($2,800 for the phone and a $52 ‘data fee’) but barely gets to use it. The most he can access it for is half an hour, but on many occasions it has only been 15 or 16 minutes as staff are not available to supervise him. DW submitted the condition should be removed, or varied to enable him to take the phone on outings. He submitted the phone will be audited and the authorities will know if he accesses sites that are restricted. He submitted any condition should not restrict the internet use to such an extent that there is no point in having an internet capable phone.[10]
[10]Transcript 44.
Respondent’s material and submissions
The respondent relied on the material filed, and provided two additional case notes dated 22 and 24 February 2024. The respondent called no evidence.
The respondent opposes both the grant of leave and, if leave is granted, the removal or variation of the internet condition. Given the overlap between the question of leave and — if leave is granted — the substantive question, the respondent’s submissions sensibly addressed both matters. This was done at the request of the Court.
The respondent argued that the Authority issued directions on 23 January 2024, and then again on 15 February 2024, permitting DW internet access. The respondent argued a staged or incremental approach is being taken by the Authority, and the restrictions are being reviewed and relaxed, depending on the conduct of DW.
The respondent submitted the principal purpose in making any decision under the Act is to give paramount consideration to the safety and protection of the community.[11] The respondent drew the Court’s attention to s 27 of the Act and in particular s 27(3), which sets out the purposes of conditions. The respondent argued that given DW’s previous conduct, there is a need for restricting, monitoring and supervising who he can communicate with online. The respondent argued that the Authority’s reasons dated 23 January 2024 anticipated expanding the list of websites the applicant can access, and that has already occurred. The respondent submitted it is inappropriate to grant leave pursuant to s 110 because what is occurring now reflects how the condition should work — the Authority issues directions which, if the applicant acts responsibly, will be increasingly less restrictive.
[11]The Act s 5.
The respondent referred to the body of material setting out the various contacts with DW concerning internet access. The respondent submitted that it is only since December 2023 that there has been any degree of cooperation on behalf of DW. The respondent submitted that the recent directions issued by the Authority were not triggered by DW’s application to this Court in November 2023, but by a change in his attitude and a degree of cooperation. The respondent referred to the Special Report dated 17 January 2024, where it is stated:
of note [DW] attended for supervision on 28 December 2023 where he engaged with a SCM in lieu of [DW’s] regular SCM who was on annual leave. [DW] engaged appropriately during the session. [DW] also engaged with his regular SCM on 3 January 2024 when internet use was discussed. [DW] engaged appropriately despite expressing his frustrations with the General Manager’s Instructions (GMI) which required [DW] to comply with being searched and wanded down before entering an interview room at Corella Place.[12]
[12]Respondent’s material filed 12 February 2024, 98 (‘Respondent’s material’).
The respondent argued that there has been progress since 19 December 2023 and a four‑stage plan is now in place. The respondent submitted that it is unworkable for DW to take his phone on outings because he cannot be appropriately supervised, as he is seated in the back of the car and the workers accompanying him are seated in the front. The respondent submitted that the Court cannot disregard DW’s previous stalking and the more recent contravention of his supervision order. The respondent submitted that DW’s opportunity to stalk females is increased if he has unrestricted access to the internet. The respondent submitted that it is not suggested that restrictions should be in place forever, but DW needs to ‘put some form on the board’ before restrictions can be sensibly and safely reduced.[13]
[13]Transcript 81.
In answer to a question by the Court, the respondent advised that if there is no special condition on a supervision order concerning internet usage, and the person on the supervision order is residing at Corella Place, internet usage works as follows:
·Internet capable devices are not allowed within the main area of Corella Place.
·Internet devices that are lawfully there are stored in a locked cabinet in the office and a resident must sign in and sign out their device.
·If a lawful internet capable device is signed out, it can be used in an interview room unsupervised.
·A resident can take the internet capable device on outings and use the device without supervision.
·The resident can use other internet capable devices on an outing, for example, a computer in an internet café.
·There are no restrictions on the type of sites a resident can access, including social media.
The Authority’s material and submissions
It is convenient to refer briefly to the Authority’s material at this point, recognising that pursuant to legislation, the submissions of the Authority are only considered once leave is granted.[14]
[14]The Act s 111(1).
The Authority first issued a written direction allowing DW internet access on 23 January 2024. A further written direction, issued 15 February 2024, slightly expanded the list of websites DW could access, and set out in more detail the restrictions that accompanied any internet usage. The Authority noted that there had been no concerns about DW’s internet use so far. The Authority raised concerns that the approved websites contain links to related or other websites, and also have a communication function, such as providing feedback or inquiring about returns. The Authority considered that specific directions should be issued, limiting DW’s use of these types of functions.
Overview of DW’s mobile phone and internet use while at Corella Place
The following is drawn largely from the respondent’s material and material provided by the Authority.
Mobile phone use
The supervision order included as condition 6.10 (and in the terms sought by the respondent), ‘[DW] must comply with the written directions of the Post Sentence Authority when using a telephone, including a mobile telephone’. On 27 January 2023, the Authority issued two written directions: (1) DW when using a telephone, including a mobile telephone, must not use such device to stalk, sexually harass, or cause fear in the recipient; and (2) DW must not delete any sent or received text messages or any sent or received phone call records or delete or reset the call log history on any mobile telephone in his possession or to which he has access.[15]
[15]Respondent’s revised and updated material filed 23 February 2024, 47–48 (‘Respondent’s revised and updated material’).
On 10 March 2023, DW was arrested and charged that between 30 January 2023 and 8 March 2023 he deleted text/call histories from his mobile telephone. He pleaded guilty to that offence and received a two month custodial sentence.[16] There was no suggestion DW deleted the text/call histories to conceal other offending. He returned to Corella Place on or around 9 May 2023 and continued to use a mobile phone. No further problems concerning mobile phone use have been alleged in the respondent’s material, and there has been no change to the written directions made by the Authority on 27 January 2023.
[16]DPP v DW [2023] VSC 143 (sentence of Lasry J).
Internet access and use — 2023
On 27 January 2023, being the day he returned to Corella Place, DW asked about his internet access. He was told it was not allowed under the ‘interim supervision order’. DW said the judge had said internet access was allowed, but supervised.[17]
[17]Respondent’s material, 5.
On 31 January, DW told his worker that the judge had said internet access was allowed. Apparently, a Team Leader informed DW that the supervision order conditions and ‘[d]irections issued by the Post Sentence Authority stated that he cannot possess, own an internet capable device, or access the internet’.[18] I note that the Authority had not issued any direction pursuant to condition 6.11 at this stage.
[18]Ibid 7.
Between approximately 10 March and 9 May, DW was in custody serving the two month sentence he received for deleting material from his mobile phone. When he returned to Corella Place, internet access remained an issue.
On 25 May, DW continued to insist the condition was not a ban but a monitoring condition.[19] On 29 May, the issue of internet access and banking was raised by DW. DW was advised that a Special Report was being completed regarding his alcohol condition, and ‘the internet condition will be completed at a later date’. The writer told DW that ‘it’ (presumably, the internet condition Special Report) would be done within the next couple of weeks.[20] On 1 June and 13 June, DW continued to ask about the Authority meeting and the outcome regarding his internet condition.[21]
[19]Ibid 23.
[20]Ibid 26.
[21]Ibid 27, 31.
Based on the material, it appears Special Reports are prepared by Corrections Victoria (‘Corrections’) and then considered by the Authority. The Authority may also consider other material, and interview DW. A decision is then issued by the Authority, and written directions concerning certain conditions may (or may not) be made. Special Reports dated 5 June, 5 July, 7 September and 12 December 2023, and 17 January and 15 February 2024 were prepared by Corrections. The Authority gave reasons for decisions on 14 June, 6 July, 12 September and 19 December 2023, and 23 January and 15 February 2024.
According to the Authority’s material, they were first made aware that there was an issue concerning internet access on 14 June, but they were not asked to consider DW’s request. At this time, the Authority discussed with the Post Sentence Branch the potential for DW to have limited internet access.
On 21 June 2023, a worker advised DW that the Special Report regarding internet access was ‘almost finished’ and required DW to identify the websites he wanted to access. DW was uncooperative.[22]
[22]Ibid 34.
In the Corrections’ Special Report dated 5 July, they recommend that the Authority discuss with DW his internet access request. Corrections state that they do not currently support his request, but it would be beneficial for the Authority to explore with him supervised internet access.
On 6 July, DW met with the Authority and internet access was discussed. DW was told he should ask for what he wanted by way of internet sites and the Authority will consider his request. DW was told that shopping and internet banking might be considered favourably, but emails would probably not be considered favourably.[23]
[23]Post Sentence Authority material filed 19 February 2024, app 2 (‘the Authority’s material’).
Following this, there were multiple enquiries made by DW throughout July and August as to whether he may have internet access. DW at times seemed to think he was getting access to the internet, and that the Authority said he could.[24]
[24]For example, see respondent’s material at 59, 60–61.
Throughout August, September and October 2023, the question of internet access remained a source of conflict between DW and those managing him at the residential facility.
On 26 September 2023, DW was told by his case worker that his request to use the internet was ‘denied by the Authority’.[25] This was incorrect. According to the Authority’s material, on 12 September 2023, the Authority encouraged DW and Corrections to develop a suitable strategy for supervised access to agreed sites. They did not deny DW’s request for internet access.
[25]Ibid 76.
On 12 December, the issue of internet access was still not supported by Corrections because DW was unwilling to discuss how misuse would be managed.[26] In their reasons for decision dated 19 December, the Authority questioned why, to overcome the impasse, Corrections could not present a plan to DW about how this can safely occur.
[26]Ibid 90.
At the close of 2023, the Authority had not issued any written directions permitting DW any internet access, not even in a restricted, supervised or monitored way.
Internet access and use — 2024
DW attended supervision on 3 January 2024; he was cooperative and internet access was discussed.[27] On 11 January 2024, DW failed to attend his weekly supervision appointment. On 15 January, DW attended and again asked about his internet access. DW was advised that his request was still being processed, and that a Special Report would be submitted to the Authority ‘later this afternoon’.[28] DW then proceeded to argue about his medication regime and accuse Corrections of ‘witness tampering’ because they had written to his general practitioner.
[27]What occurred on 3 January is discussed in detail below.
[28]Respondent’s material, 94.
On 17 January, a worker discussed with DW what internet sites he wanted to access. DW was described as argumentative and said he had already explained this. DW did not provide a list of sites and refused to talk further with the worker.[29]
[29]Ibid 96.
Also on 17 January, a Special Report was submitted by Corrections to the Authority. In this report, the Post Sentence Branch stated they were supportive of a direction allowing DW to use the internet for specific sites under supervision.
On 27 January 2024, the Authority first issued a direction allowing DW to access certain internet sites under supervision. DW was given an iPhone 15 on 31 January 2024.
On 15 February 2024, Corrections prepared a further Special Report in relation to DW’s ‘continued lack of engagement’ and his requests to access various internet sites.[30] Corrections proposed that the Authority issue a more proscriptive direction to ensure clarity. They also requested that the Authority interview DW to discuss his requests further, and engage him in discussion pertaining to the use of appropriate risk management strategies when accessing approved websites.[31]
[30]Respondent’s further material filed on 20 February 2024, 28–31 (‘Respondent’s further material’).
[31]Ibid 30.
The Authority did not interview DW. On 15 February 2024, the Authority issued a new written direction pursuant to condition 6.11. That direction slightly expanded the list of websites DW could access, and otherwise set out in more detail the restrictions around his internet access. Case notes throughout February 2024 record DW having supervised access to his phone. On occasion, his request was denied due to operational availability.[32] DW has complained about how little he gets to use his phone while at Corella Place, but has not breached the Authority’s written directions.
[32]See for example respondent’s revised and updated material, 56.
Whether leave should be granted pursuant to s 110
At the time the Court made the internet condition, DW was unrepresented.[33] DW raised concerns about the proposed internet condition. He was concerned the staff at Corella Place would ‘play games’ and use the condition to ban him altogether from using the internet. At the time, the Court stated:
The condition is not a blanket ban. The condition is that you will have to comply with directions about your internet use because of at least in part the prior offending which involved emailing and using someone else’s Facebook account.[34]
[33]DW was unrepresented almost entirely throughout lengthy proceedings; see DPP v DW [2023] VSC 24, [3]–[15].
[34]Transcript of proceedings, DPP v DW (Supreme Court of Victoria, Fox J, 27 January 2023) 17.
As events transpired, for 12 months DW was effectively prevented from having any access to the internet at all.
The Court may grant DW leave if it is satisfied that it would be generally in the interests of justice, having regard to the purpose of the conditions and the manner or effect of their implementation, to review the conditions. The expression ‘interests of justice’ is well understood but not easily defined. Black’s Law Dictionary provides the following definition: ‘The proper view of what is fair and right in a matter in which a decision‑maker has been granted discretion.’[35] The phrase has been described as a ‘protean one taking its meaning from its context’.[36] The interests of justice necessarily include justice to all parties.[37] In Chapman v Jansen,[38] Nicholson CJ had this to say:
In my view, the expression ‘the interests of justice’ is not one which should be narrowly defined and indeed it may not be particularly helpful to attempt to define it at all. I do not think that it is a concept which courts should find difficult to apply. The interests of justice will vary from case to case, and I think that, in general, in considering applications under this legislation, a broad approach is the approach to be preferred.[39]
[35]Black’s Law Dictionary (11th ed, 2019) ‘Interests of Justice’.
[36]WX v R [2020] NSWCCA 142, [41] (Beech‑Jones J).
[37]BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 466 [169] (Kirby J).
[38](1990) 100 FLR 66.
[39]Ibid [74]; His Honour was considering the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).
His Honour was considering different legislation, but his comments are nonetheless apposite. In my view, when considering this Act and the restrictions placed on an individual’s freedom by a supervision order (which is necessarily made up of conditions), a broad approach to the phrase ‘interests of justice’ should be adopted.
In my view, it is in the interests of justice to grant leave for the reasons outlined below. Arguably, some of the matters would also constitute ‘new facts and circumstances’ that have arisen since the condition was made that would justify the review.[40] However, it is not necessary for the applicant to establish both, and it is more convenient to approach the question of leave pursuant to s 110(3)(b) only.
[40]The Act s 110(3)(a).
The analysis of the material that I have just been through shows the condition has not worked as intended, and prior to DW bringing an application in this Court, he was not given any access to the internet at all. Aligned with this is the requirement that a condition should be the minimum necessary to achieve the purposes for which a condition may be imposed. As administered, at least prior to January 2024, the internet condition would not meet that description.
Within a few days of the order commencing, DW was wrongly told that directions issued by the Authority stated he could not possess an internet capable device or access the internet. On 26 September, DW was told — again, wrongly — that the Authority had denied him internet access. This suggests those managing DW have not understood the position of the Authority as it concerns condition 6.11. It has also no doubt led to an increase in conflict between DW and Corrections’ staff, and DW and the Authority.
At times and unhelpfully, DW’s internet access has been used as a ‘bargaining chip’ by both parties. DW has refused to engage in supervision unless he is given internet access. Corrections have told DW that the Authority requires DW to ‘come to the party’ before internet use will be considered, and that entails DW ‘attending supervisions every week for meaningful engagement to discuss case management related matters’.[41] The purpose of a supervision order condition is to reduce the relevant risk of the offender re‑offending. While positive behaviour and compliance will result in reduced restrictions and greater freedom, that is because the corresponding risk reduces. Conditions should not, however, be used in a ‘carrot and stick’ manner to control behaviour in a residential facility.
[41]Respondent’s material, 60–61.
DW has an extreme personality disorder, a history of treatment resistance and high levels of distress and persecutory beliefs.[42] In 2022, Ms Bea Raymond gave evidence regarding the treatment of DW. She said there needs to be a level of ‘rolling with his resistance’ and pursuing treatment even if he tells people to go away.[43] I accept the material I have is incomplete, and DW’s attitude to treatment is likely inconsistent and uncooperative. Nonetheless, currently it appears that DW remains largely untreated and forensic intervention services are not engaged. In such circumstances, the internet access condition should be reviewed by the Court, as if DW is untreated, it is unlikely he will be capable of engaging in the discussions that Corrections consider necessary prior to supporting any increased internet access.
[42]DPP v DW [2023] VSC 24, [197].
[43]Ibid.
Corrections’ change in position in January 2024 is difficult to follow. In a Special Report dated 12 December 2023, Corrections continued to not support DW having any internet access. On 19 December, the Authority met and noted the Special Report dated 12 December 2023. The Authority stated (in relation to internet access):
[DW] continues to resist attempts to discuss managing his risk when accessing the internet on agreed websites. Mistakenly, the Special Report referred to a decision by the Authority to decline to make a direction to allow internet access. On 07‑Dec‑2023, the Authority noted information relating to his request, including that CV [Corrections Victoria] are not prepared to progress it until he meaningfully engages in risk mitigation strategies. The Authority was not asked to make any decision. It did, however, encourage CV and [DW] to engage in discussions to develop a suitable strategy for supervised access to agreed websites. As this has not occurred, CV remain unsupportive of his request. They have suggested how they can assist [DW] in relation to his court application, without accessing the internet.
The Authority is disappointed this has not progressed. The Authority was first made aware of this on 14‑Jun‑2023, although not asked to consider his request. At that time, the Authority discussed with the Post Sentence Branch (PSB) the potential for internet access to occur in a limited way. There are websites that [DW] should be able to access, such as for his banking. To overcome the impasse, the Authority questioned why CV cannot present a plan to [DW] about how this can occur safely. If this does not occur, the risk is that the court will allow access when it hears the application on 27‑Feb‑2024, and potentially in a way that CV do not agree with.[44]
[44]The Authority’s material, Annexure B. It is noted that the date of 07-Dec-2023 is difficult to reconcile, and may be an error. According to the Authority’s reasons dated 12 September 2023, the Special Report of Corrections dated 7 September 2023 stated they were not prepared to progress DW’s request until he meaningfully engages in risk mitigation discussions, and the Authority encouraged Corrections and DW to engage in these discussions with a view to developing a suitable strategy for supervised access to agreed site. It may be that 07-Dec-2023 should read 07-Sep-2023.
The Special Report dated 17 January 2024 stated that DW was able to engage in some risk related discussion, and goes on to support limited internet access. When asked by me when DW engaged in the necessary risk related discussion, the respondent stated it was a reference to the supervision session of 3 January 2024, and perhaps 28 December 2023. On the respondent’s material, it can only be a reference to 3 January 2024.
On 3 January 2024, DW was advised that further discussion regarding risk mitigation needed to take place, and the worker asked DW if he was familiar with the supervised internet sessions at Corella Place. DW replied, ‘Of course I know how it works, I’m not fucking stupid’. According to the case note, the following exchange took place:
The writer continued by reminding [DW] that he will only be approved to access certain websites and that he will be supervised at all times by operational staff. [DW] responded by stating, “I don’t give a fuck if you have a look on the screen, I’m not gonna access any bad shit, to be honest, I don’t even know how to work a smartphone, you will have to teach me how to use it properly, I have been in prison for 21 years”. The writer asked [DW] how he expects to react if he was directed to cease the use of his internet capable phone by SCWs in the event that he accessed material outside the approved websites. [DW] stated, “I won’t be that stupid, and if they pull me up they can just turn the fucking thing off”. The writer asked [DW] to confirm the tasks he wished to perform using the internet when he stated “I fucking told you man, I wanna access MyGov and Centrelink, do some internet banking and buy stuff online and I wanna be able to talk to my family on FaceTime and send them photos, that’s all I want to do, not access porn sites and shit, I’m not a kiddie fucker like the rest of them in here’.[45]
DW went on to say that he had had enough of talking about internet access, and requested a copy of the internet access plan. It is unclear whether he was given one or indeed whether one existed at this time.
[45]Respondent’s material, 93, 98–101; the Special Report further states that supervised access will take place in an interview room, and DW ‘confirmed that he understands the process and agreed to adhere to any direction issued by supervising staff in the event that he failed to comply with a direction to access specified and nominated websites only’. It is unclear when DW did this, unless it is again a reference to the 3 January supervision session and DW’s answer when asked what he would do if directed by staff to cease using his phone.
It is somewhat difficult to see how what occurred during this supervision session could have meaningfully altered the position of Corrections, or why it was characterised in the Special Report as DW appropriately engaging in some risk‑related discussions.
It is also difficult to see how it differs greatly from what DW said on 2 August 2023. According to a case note, DW was told that further discussion regarding risk management strategies and internet usage was required before a Special Report could be submitted to the Authority in relation to his request to have access to the internet. The case note records the following:
[DW] stated, “We have talked about this already, what more do you want”. [DW] continued by stating, “I will be supervised by staff in here (Interview Room) and they’ll be able to see what I’m doing on the phone, and you can audit my phone anytime you want, I’m not allowed to delete anything off my phone, it’ll be a breach of my Order, so I can’t see what else you want”. The writer enquired regarding DW’s access to social media when he stated, “I didn’t ask to go on Facebook or any of those sites, all I want to do is online banking and a bit of shopping and to check my emails”.[46]
[46]Respondent’s material, 57.
I also note that, as set out above, between 3 January and 17 January, DW either failed to attend supervision or was uncooperative when asked about internet access.[47]
[47]Ibid 93, 94, 96.
It is difficult to avoid the inference that what has triggered the change in attitude on behalf of those managing DW, at least in part, is not his participation in risk management strategy discussion, but rather the advice they received from the Authority dated 19 December 2023, suggesting that if some progress is not made regarding internet access, there is a risk the Court will allow access in a way that Corrections may not agree with.
It is noteworthy that on 15 February 2024, in a further Special Report, Corrections seem to resile somewhat from their January position. They take the view that the Authority should engage in risk related discussion with DW. The Authority themselves noted the inconsistency of this position, given that on 23 January 2024, the Post Sentence Branch accepted that DW had engaged in risk related discussions, but were now saying that before the list of accessible sites is expanded, the Authority should engage in risk related discussions with DW regarding his internet access. The Post Sentence Branch accepted the inconsistency and conceded it is not necessary for the Authority to engage in risk management discussions prior to expanding the list of websites.
The relevance of all this to the question of whether leave should be granted is it reveals a real uncertainty as to what attitude Corrections will take to DW’s internet access going forward, as it is difficult for the Court to understand the basis for their positions to date. This supports both a grant of leave, and variation of the condition to promote certainty as far as possible while still allowing for the necessary flexibility.
In the 12 months between being placed on the supervision order and being granted limited supervised internet access, it is clear from the material the internet condition was a source of great frustration to DW. Despite this, he has not sought to access the internet using any type of illegal device. I accept that illegal devices are available at Corella Place, and indeed the respondent referred to the availability of ‘contraband devices’. DW did delete his text and call history from his mobile phone, but it was not suggested that the deletions were done to conceal further offending.[48]
[48]See DPP v DW [2023] VSC 143, [18] (sentence of Lasry J).
In my view, given how the condition has been managed and implemented, it is in the interests of justice to review the condition. A total ban on using the internet cannot be justified in the circumstances which, until very recently, was what this condition had become. Despite the recent change in attitude by Corrections and the recent written directions of the Authority, given the history of the matter, it remains in the interests of justice to review the internet condition.
Section 111 review
Once leave is granted, the Court must grant the offender, the Secretary and the Authority the opportunity to be heard in respect of the application.[49] All necessary parties were granted this opportunity.[50] The Court has broad, discretionary power to vary, add or remove any condition, or do any of the other matters permitted by s 111(3) of the Act. Relevantly here, the question is whether the internet condition should be varied, removed or confirmed.
[49]The Act s 111(1).
[50]The Authority, prior to leave being granted, filed submissions pursuant to ss 111(1) and (2) of the Act.
In determining what should occur, I take into account the factors I have just been through relevant to the grant of leave. I will not repeat those matters, however I note that, in my view, it is necessary to consider afresh the weight that should be attached to those matters. A grant of leave does not, of itself, mean a condition should be varied, and a matter that supports a grant of leave may have little relevance when considering whether a condition should be amended in any way. It is also necessary to consider a number of further matters, including the relevant risk.
The Authority’s submissions
The Authority submitted that they declined DW’s access to certain websites, such as Amazon, due to a concern that DW may use the available chat function inappropriately, in light of his history of stalking and ‘in line with concerns raised in the ‘Detention and Supervision Order (DSO) Addendum Report dated 8 April 2022’.[51]
[51]The Authority’s material, [9]; the Court notes there is no DSO Addendum Report dated 8 April 2022, however there is an Addendum Psychiatric Report of Dr Kevin Ong bearing that date. Dr Ong has not assessed DW in-person for a number of years. The most recent DSO Addendum Report is authored by Ms Bea Raymond and dated 4 July 2022.
Based on the material provided, the Authority appear to have endorsed the ‘four‑step plan’ developed by Corrections: Step One involved planning and risk management, which Corrections accept DW has engaged in. Step Two involves seeking directions from the Authority for limited internet access. Steps Three and Four relate to ‘future progress, if there are no concerns’. The directions issued on 23 January 2024 were referred to by the Authority as Step Two.[52]
[52]The Authority’s material, Annexure C.
In their reasons dated 15 February 2024, the Authority noted that it was clearly anticipated that other supported websites would be added to the list of approved sites. The list of approved websites was slightly expanded on that day (which, as I follow it, forms part of Step Three). The Authority submitted it is willing to consider further requests for internet access for DW in the future, and in doing so, ‘must take into account risk to the safety and protection of the community as its paramount consideration’.[53] The Authority made no reference to the matters found in s 139 of the Act. Section 139 states:
The Authority should aim to ensure that any directions it gives to an offender—
(a) constitute the minimum interference with the offender's liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and
(b) are reasonably related to the gravity of the risk of the offender re-offending, whether by committing a serious sex offence or a serious violence offence or both or an offence referred to in Schedule 3 or by engaging in any behaviour or conduct that threatens the safety of any person (including the offender).
[53]The Authority’s material, [10].
I am not suggesting the section was not taken into account by the Authority; however, it was not explicitly referred to in the Authority’s submissions or material, and therefore the way in which it was considered remains opaque.
Risk
A person can only be placed on a supervision order if the Court is satisfied that they pose an unacceptable risk of committing a serious sex offence or a serious violence offence or both.[54] However, the primary purpose of the conditions of a supervision order is to reduce the risk of the offender re‑offending by committing a serious sex offence or a serious violence offence or both or an offence referred to in Schedule 3.[55] Relevantly here, stalking is a Schedule 3 offence.[56] In order to reduce the risk of that re‑offending, the conditions may also address the types of behaviour that may increase the risk of the offender committing a serious sex offence or a serious violence offence or both or a Schedule 3 offence.[57] Conditions may also be put in place to reduce the risk of the offender engaging in any behaviour or conduct that threatens the safety of any person, in order to reduce the risk of the offender re‑offending.[58]
[54]The Act s 14.
[55]Ibid s 27(1).
[56]Ibid sch 3 item 1(e).
[57] Ibid s 27(3)(b)(i).
[58]Ibid s 27(3)(b)(ii).
DW was found to be, and remains, a high risk of committing a serious sex offence. There is no material to suggest his risk has altered.[59]
[59]DPP v DW [2023] VSC 24, [172], [125].
DW is also a high risk of committing stalking offences against adult females. It is not necessary for these purposes to set out DW’s history of stalking prior to August 2019.[60] Relevantly, when at Corella Place between 17 August and 9 November 2019, DW stalked three adult females, two of whom he met in the community. The stalking behaviour consisted mostly of texting and calling from a mobile phone. On occasions, DW used another resident’s contraband phone to access Facebook and message the victim. When he did, DW explained to the victim that the Facebook account was not his, and provided his correct name and mobile number. Largely as a result of this conduct, DW was assessed by Ms Bea Raymond in November 2019 as a high risk of further stalking offences.[61] In her opinion, DW’s dogged pursuit or stalking of women is motivated by a pursuit of sexual contact with these women, regardless of their rejection of his approaches.[62] It was recommended that DW’s means of communication — such as letter writing, internet and text messaging — be monitored and restrictions considered.[63]
[60]For a summary of DW’s history of stalking and risk assessments, see DPP v DW [2023] VSC 24, [51], [53], [66], [80]–[87], [88], [93].
[61]Ibid [88].
[62]Ibid.
[63]Ibid [88], [93].
Section 27 considerations and the need for an internet condition
I accept the capacity to communicate with persons, including potential victims of stalking, is far greater if DW has unrestricted access to the internet than simply a mobile telephone. In particular, the internet gives a user the capacity to join dating sites; use social media; create real or fake profiles; and download applications where messages dissolve after they are sent or read, meaning they may not be detected in an audit. A written direction mirroring the one the Authority issued regarding mobile telephone use is unlikely to adequately reduce the risk of DW using the internet to stalk an adult female.
In my view, a condition restricting DW’s access to the internet is not necessary to reduce his risk of committing a serious sex offence, in circumstances where he is residing at Corella Place and his internet capable device can be audited. This is not a case where internet use played any part in the index offending (compared with, for example, cases involving online child abuse material). In my view that may explain why, when the Secretary first applied for an interim supervision order in August 2019, no internet condition was sought. The risk of stalking and its relationship to the risk of DW committing a serious sex offence was discussed in my earlier judgment.[64] I adopt and will not repeat that analysis.
[64]DPP v DW [2023] VSC 24, [125], [191].
The risk of DW committing a Schedule 3 offence is a different consideration. That risk is relevant and real for the purpose of imposing conditions. While DW has not used an electronic device to stalk anyone since commencing on the supervision order, the respondent’s material alleges that he has sent unwanted flowers to a young adult female retail worker.[65] A medical receptionist also received unwanted attention and gifts from DW, and the medical centre requested the contact cease. (I note DW vigorously disputes the way this is characterised by the respondent, and maintains he was friends with the woman and changed medical clinics so she could keep her job.)
[65]Respondent’s material, 38.
Given the risk of DW committing a Schedule 3 offence, in my view, it is not appropriate to remove the condition. It is necessary to impose a condition that reduces the risk of DW committing a Schedule 3 offence, and addresses the types of behaviour that may increase the risk of DW committing a Schedule 3 offence.
However, the Court must ensure that the risk that the condition seeks to mitigate is balanced against the matters set out in s 27(4) of the Act. Any condition must constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions. The phrase ‘the circumstances’ invites consideration of a very wide range of factors; in this case, relevant factors include that DW is residing at Corella Place; his device is subject to auditing; and he must sign out the device, only use it in an interview room, and sign it back in.
The Court must also ensure that any condition of a supervision order is reasonably related to the gravity of the risk of the offender re‑offending.[66] The gravity of the risk of re‑offending by stalking is not a particularly grave risk when regard is had to the offences contained in Schedule 1, Schedule 2 and much of Schedule 3. In saying that, I am not minimising the damage stalking can, and does, cause. However, the seriousness of the harm caused to a victim of stalking per se is realistically going to be less than would be occasioned to a victim of, for example, rape or sexual penetration of a child under 12. The expression ‘gravity of the risk’ focuses the Court’s attention on the gravity of harm which would result were the risk realised, and not merely the probability of its occurrence.[67]
[66]The Act s 27(4)(b).
[67]See Hammond (a Pseudonym) v Secretary to the Department of Health and Human Services, the Attorney‑General of Victoria and the Director of Public Prosecutions [2018] VSCA 356, [125], where the Court when considering the meaning of ‘serious endangerment’, drew a distinction between the gravity of risk and the probability of risk (Priest and T Forrest JJA and Macaulay AJA).
DW is at a residential facility. He is not residing in the community. The management of offenders at residential facilities is provided for by Part 13 Div 1 of the Act. The power of officers to give and enforce instructions is considerable.[68] A resident of Corella Place does not have free or unlimited access to an internet capable device, even if there is no condition on their order restricting their access. The regime governing internet capable devices, of itself, reduces the risk of a device being used to stalk a person. The device is kept in the Corella Place office, and may be audited at any time. Permanently deleting the user or browser history from an internet capable device is not easily done, and DW has limited skills given he has been largely incarcerated since he was a teenager. DW is also accompanied by two workers whenever he is in the community, albeit they would not be able to see what he does on his device during an outing.
[68]See, for example, the Act ss 183, 184.
It is also relevant to take into account that DW remains largely untreated and unrehabilitated. A degree of common sense needs to be applied. Requiring or expecting DW to meaningfully engage in risk management discussions is not realistic, given his diagnoses and history. Any internet access will need to be managed by way of clear, written rules, and the auditing of his device.
At risk of repetition, it is worth noting the following: DW did not use the internet to commit any of the index offences. He did not use the internet to commit the bulk of the stalking offences which were dealt with by the County Court. He has not accessed an illegal phone since arriving at Corella Place in January 2023. He has not breached the directions issued by the Authority as to how he may access the internet. He has not used his mobile phone to stalk anyone. He is in a residential facility, which of itself is a very restrictive environment.
I have concluded that the internet condition should be varied, in particular to give effect to the matters set out in s 27(4) and in circumstances where DW has not used any device to stalk any person since he was placed on the supervision order by this Court. The current condition has resulted in an internet access regime that is too restrictive, and does not constitute the minimum interference with the offender’s liberty and privacy that is necessary in the circumstances to ensure the purpose of the condition. Further, all parties would benefit from the condition being reworded so as to make the terms of the condition clear.
In my view, accessing a retail site such as Amazon does not meaningfully increase the risk of DW committing a Schedule 3 offence. It may increase the risk of stalking if DW used the chat or message function improperly, located a real female person, became infatuated with them, and contacted them persistently and unwantedly via the contact details obtained using the website (such as a general email address). However, it is unlikely the person would share their full name or personal details (such as a private email, telephone number or address) with DW. It is less likely they would live in Ballarat or the surrounding area. A scenario where DW, via a generic contact function found on Amazon, is able to stalk an adult female is not particularly likely. Further, DW’s internet capable phone may be audited at any time, and he is accompanied on all outings by two workers.
On the other hand, given DW’s refusal or inability to engage in meaningful risk management discussions concerning internet use, simply allowing him unrestricted access to any website would increase the risk of him stalking an adult female. DW stated he does not want to use social media, but also stated he wants to meet people, and queried how he could make prosocial contacts except by using a phone ‘or something’.[69] DW is distressed by his lack of a social life, and while that is understandable, it also increases the chance he will use the internet to try and meet people. If his internet access is not restricted, there is a real chance he will contact adult females, repeatedly and irrespective of their wishes; in other words, stalk them.
[69]Transcript 49.
The role of the Post Sentence Authority
The Authority’s continued existence is provided for by s 290 of the Act. The Authority performs a number of important functions, including administering the conditions of a supervision order, and giving directions to an offender in accordance with any authorisation given to them by a supervision order.[70] The Authority has the independence, experience, expertise and flexibility to monitor and manage serious offenders on supervision orders. Importantly, the Authority may issue written directions simply and within a very short timeframe.[71]
[70]I also note that any direction given by the Authority must aim to ensure the matters set out in s 139 of the Act are achieved, which mirror those found at s 27(3)(b) and (4).
[71]That occurred in this matter, where the supervision order was made on 27 January 2023 and the Authority issued written directions in accordance with condition 6.10 the same day.
DW’s supervision order includes a condition made pursuant to s 36, which states:
Subject to subsection (5), the court may impose a condition on a supervision order authorising the Authority to give directions to an offender in relation to the operation of any condition of a supervision order.[72]
[72]The Act s 36(5) states that the Court may not authorise the Authority to direct that an offender reside at a residential treatment facility, which is of no relevance here.
There are good reasons why such a condition was imposed. It is appropriate that the Authority retain control of the way the internet condition is managed, as they are best placed to expand access and remove the need for supervision, if and when that stage is reached. It is neither desirable nor workable for a condition to be made that excludes, expressly or effectively, the very important role played by the Authority. For example, if DW’s compliance with the internet condition continues to be largely positive, the Authority is best placed to assess his progress and grant him further access. Conversely, if his compliance declines, the Authority is best placed to issue the necessary written directions to ensure the community is protected.
Conclusion
Pursuant to s 110(3)(b), leave is granted to the applicant to review condition 6.11 of his supervision order. Pursuant to s 111(3)(a), the application to remove the condition is refused and the application to vary the condition is granted. Condition 6.11 will therefore be varied.
I will hand down a copy of the draft varied condition.
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