DW v Secretary to the Department of Justice and Community Safety (No 3)
[2024] VSC 825
•23 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0045
| 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: | 20 December 2024 |
DATE OF JUDGMENT: | 23 December 2024 |
CASE MAY BE CITED AS: | DW v Secretary to the Department of Justice and Community Safety (No 3) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 825 |
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PUBLIC LAW — Application by offender to review conditions of a supervision order — Leave refused — DPP v DW [2023] VSC 24; DW v Secretary to the Department of Justice and Community Safety [2024] VSC 137; Serious Offenders Act 2018 ss 15, 27, 31, 36, 110.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr OP Holdenson KC | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
This is an application by DW pursuant to s 110 of the Serious Offenders Act 2018 (‘the Act’) for leave to review certain conditions of his supervision order. If leave is granted, DW will seek that the conditions be either varied or removed altogether. The respondent opposes any grant of leave and, if leave is granted, will oppose any variation or removal of the existing conditions.
This ruling is confined to the question of whether leave should be granted to DW to review any or all of the conditions he seeks leave to review.
DW was placed on a supervision order by this Court on 27 January 2023.[1] The history of DW’s matter, including his index offending, other offending, personal circumstances, breach proceedings and risk assessments are set out 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 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.
On 20 December 2024, I refused DW’s application for leave. I gave brief reasons at the time and indicated I would give more detailed reasons later. These are those reasons.
History of DW’s applications in this Court since supervision order made
On 16 November 2023, DW filed two applications with 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 (‘Conditions Application’), and an application pursuant s 102(1) of the Act for leave of the Court to apply for a review of the supervision order (‘Review Application’). The Conditions Application itself did not identify which condition or conditions DW sought leave to review.
On 27 and 29 February 2024, the Court heard the Conditions Application, in part. The hearing was confined by the Court to the question of leave and, if granted, review of condition 6.11 (‘internet condition’). On 26 March 2024, the Court granted leave to DW to review the internet condition and, upon review, varied the condition.[3] The supervision order was amended to reflect the variation. The balance of the Conditions Application was adjourned by the Court to a date to be fixed.
[3]DW v Secretary to the Department of Justice and Community Safety [2024] VSC 137.
On 1 July 2024, the Court heard the application for leave with respect to the Review Application. Leave was refused. The Court provided oral reasons.[4]
[4]Transcript of Ruling, DPP v Secretary to the Department of Justice and Community Safety (Supreme Court of Victoria, S ECR 2021 0045, Fox J, 1 July 2024).
The present application
The present application concerns the balance of the Conditions Application. A number of mentions were listed before Judicial Registrar Freeman in an effort to identify, with greater clarity and precision, the remaining conditions that DW sought leave to review.
On 15 November 2024, a mention was held and the following orders were made:
(a) By 5:00pm on 19 November 2024, the applicant, DW, is to file with the Court a list of each of the conditions of the supervision order he seeks to review in the application, pursuant to s 110 of the Serious Offenders Act 2018 (Vic).
(b) By 5:00pm on 28 November 2024, the applicant is to file and serve:
(i) an outline of submissions in support of his application to review the conditions of the supervision order; and
(ii) any documents he intends to rely upon (including any expert reports) in support of that application.
Further mentions were held before Judicial Registrar Freeman on 22 and 26 November 2024 in an attempt to explain to DW the importance of complying with the orders. DW declined to attend the mention listed on 26 November 2024. At that mention Judicial Registrar Freeman, with the assistance of Senior Counsel for the respondent, identified the conditions that DW sought leave to review.
At the commencement of the hearing on 9 December 2024, the Court sought to further clarify the conditions DW sought leave to review. It was established that DW seeks leave to review the following conditions:
(a) Condition 6.1 (residential condition);
(b) Condition 6.3 (outings condition);
(c) Condition 6.5 (alcohol condition); and
(d) Condition 6.11 (internet condition).
Upon the application of DW, the matter was then adjourned to 20 December 2024 so as to allow DW further time to subpoena the witnesses he wished to call.
DW’s material and contentions
The Court has received five[5] Corella Place complaint forms since 31 July 2024. DW’s complaints are wide-ranging. They are also irrelevant. In summary, DW complained:
·16 July 2024: While on an outing, the driver drove erratically and rammed another vehicle. DW sustained whiplash.
·13 August 2024: Team leader ‘Josh’ and other staff deliberately threw out DW’s medication.
·18 September 2024: A team leader placed DW’s life in medical danger by refusing to pick up his fentanyl patch.
·Form marked ‘8th’ (received by the Court on 24 October 2024): DW is subject to discrimination and harassment by staff. ‘Medical outings’ are different to ‘outings’, and the staff refuse to recognise or respect this.
·8 October 2024: Drivers on outings are unprofessional and do not allow DW to shop at his requested locations.
[5]The Court in fact received seven forms, but two were duplicates.
On 23 November 2024, the Court received a nine-page letter purporting to respond to Judicial Registrar Freeman’s Orders. In that document, DW said he opposes and contests every condition on the supervision order. His complaints are not easily summarised but appear to be:
·He does need treatment, but that can be facilitated in the community. The expert opinion of Dr Raymond supports this.
·He should be residing in the community and he is more than capable of living safely in the community by himself.
·He should not be required to reside at Corella Place, and the environment is causing him harm and not promoting his rehabilitation.
·There should be a total lifting of internet restrictions, including the social media ban.
·He should be allowed to consume small amounts of alcohol, such as one or two beers.
·He should not have to comply with the directions issued by the management of the residential facility, as management are corrupt. He gave examples of staff taking his medication from him, and forcing him to wear a balaclava when on outings to cover his tattoos.
·He should be ‘fully permitted’ to communicate with and see in person violent offenders, including ‘bikie bosses, organised crime or underworld figures, Calabrian mafia bosses, the works’. If this is not permitted, he will have no social life.
·He should be given a minimum of two outings per week (eight per month) and this should be specified in the order. Other residents are taken on more outings than he is, including shopping days in Melbourne and Geelong. He would also like to go to a go-kart centre in Melbourne.
·He should be permitted to work, and has been offered two different jobs: one as a cage fighter/kickboxer, and the other as a groundskeeper at the Ballarat Cemetery.
·He should be permitted to go to driving school and work towards getting his driver’s licence, but whenever he requests this, he is told no.
At the hearing, DW called five witnesses: Detective Florence, who is attached to the Supervision Order Specialist Response Unit (‘SOSRU’); Sarah Ryan, Corella Place staff member; Rick Williams, Corella Place case worker; Gavin Orr, Corella Place manager; and Dr Galahitiyawa, DW’s current treating general practitioner.
It is not necessary to summarise the evidence of each witness here. In essence, DW sought to establish that he is treated unfairly at Corella Place, and his overall wellbeing and mental health are deteriorating due to him having to reside at Corella Place. DW also sought to establish that he could be safely managed in the community, but none of the witnesses were able to comment on that question, and none have the relevant expertise to do so.
Detective Florence and the three Corella Place witnesses all agreed that DW was, at least at times, very distressed by his current situation. Detective Florence, who has a good relationship with DW, said DW had been providing information concerning the presence of material that should not be in Corella Place, such as drugs, mobile phones and child abuse material. Ms Ryan agreed that when a raid occurred at the facility last month, of the two residents she saw, DW was the only one cable-tied by the police team conducting the raid. Mr Williams agreed that, at times, DW has requested outings such as go-karting, which has been supported by Mr Williams, but then not approved by ‘higher up’ management. Mr Williams agreed that DW struggles at times with his situation, but also has good days too. In cross-examination, Mr Williams agreed that DW refused to cooperate with services such as the Australian Community Support Organisation (‘ACSO’) which would assist him to expand his social outings. He has also refused to engage with alcohol and drug counselling. Mr Orr agreed that he and DW had had some good discussions, at times. He was not aware why some outings that are supported by Mr Williams are then refused by management. Mr Orr said he had not seen much change in DW over the past 12 months.
Dr Galahitiyawa described DW as suffering from severe anxiety, severe insomnia, severe anger issues and anger bursts. Dr Galahitiyawa said he has ‘had to’ prescribe DW ‘extraordinary amounts of medication’ which is actually not ‘medically justifiable’. Recently, Dr Galahitiyawa has been questioned by what he called the ‘Medical Board’ due to the extent of medication he has been prescribing to DW. Dr Galahitiyawa said that ‘we always believe the patient in front of us’, and DW presents as very stressed and anxious due to his treatment at Corella Place. Dr Galahitiyawa said that the ‘wellbeing of DW is being deteriorated’, but he is unable to quantify the extent of any deterioration. The doctor agreed that sometimes, when DW is due to attend an appointment, it is changed to a telephone appointment at very short notice. The doctor agreed that DW has not authorised him to release medical information to Corella Place or any other body or organisation. Dr Galahitiyawa agreed that he had received at least one letter from the Corella Place general manager wanting to discuss DW’s medications, but the doctor did not reply.
DW submits that he should not be required to live at Corella Place. His mental health is deteriorating, he is isolated; he has no social life and he lacks hope. He is harassed by the staff and going backwards. When questioned by the Court about the two addresses he had proposed, DW refused to answer the questions and became quite rude.
DW submits he has done alcohol and drug treatment before and does not have a problem with alcohol or drugs.
DW agrees the internet condition issue has been ‘run and won’, but he is still restricted to the same set of websites and there has been no progress. In those circumstances, DW submits leave should be granted to further review the condition.
DW submits there is nothing to do at Corella Place and he is not taken on many outings. When the respondent was addressing the number of outings he had been taken on, DW repeatedly interrupted, disputed the figures, became abusive and left the court. He returned briefly but left again. The respondent completed their submissions in DW’s absence.
Respondent’s material and contentions
The respondent filed approximately 1,700 pages of material with the Court. The material consisted largely of source documents, such as case notes and file notes. The relevance of some of the material was not readily apparent and remains unclear. On 19 December 2024, the respondent filed a further approximately 250 pages of material, which was a more refined subset of the original material, together with a small amount of new material.
The respondent submits DW has been taken on an average of eight outings per month since residing at Corella Place. As to accommodation, the respondent submits the applicant has placed no evidence before the Court that the nominated properties are available, and there is no basis to grant leave to review the condition. The respondent submits the internet condition has been successfully litigated by DW, and the Authority is best placed to manage the current condition.
Overall, the respondent submitted there are no new facts or circumstances that have arisen since the conditions were made that would justify a grant of leave. DW was assessed by Ms Bea Raymond on 22 May 2024 for the purposes of the Review Application. His risk level is unchanged. The respondent submits it would not generally be in the interests of justice to grant leave, as the matters raised by DW can be appropriately dealt with by way of the Authority issuing directions and easing restrictions in accordance with DW’s progress on his supervision order.
The Authority’s material and submissions
Pursuant to the Act, the submissions of the Authority are only considered once leave is granted.[6] However, consistent with the approach I adopted previously, I will have regard to the Authority’s material when considering whether the Court should grant leave to review the conditions.[7] The Authority’s material is concise, clear, relevant and helpful. The material deals directly with the question of how the conditions have been managed thus far, the written directions that have been issued by the Authority and the reasons for those directions.
[6]The Act s 111(1).
[7]DW v Secretary to the Department of Justice and Community Safety [2024] VSC 137, [15].
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.[8] In making any decision under the Act, the Court must give paramount consideration to the safety and protection of the community.[9]
[8]The Act s 1.
[9]Ibid s 5.
A supervision order consists of core and discretionary conditions. Core conditions are mandated in s 31 of the Act. Section 27 gives the Court the power to impose conditions on a supervision order, other than the core conditions,[10] and states:
[10]Section 31 of the Act 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.
An offender may, with the leave of the court, apply to the court to review any condition of the supervision order other than a core condition. Relevantly, s 110 is 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).
I earlier considered the meaning of the ‘interests of justice’ when dealing with the internet condition and stated:[11]
… 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.’ The phrase has been described as a ‘protean one taking its meaning from its context’. The interests of justice necessarily include justice to all parties. In Chapman v Jansen, 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.
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.
[11]DW v Secretary to the Department of Justice and Community Safety [2024] VSC 137, [57]-[58] (citations omitted).
When considering s 110(3)(a), it is not sufficient for an offender to simply point to new facts and circumstances that have arisen since the order was made; there must be new facts or circumstances which would justify a review of the order.
The party seeking leave — here, DW — bears the onus of persuading the Court why leave should be granted.
Consideration
Before turning to the individual conditions, I will make two general and related observations.
First, it is a key role of the Authority to administer the conditions of a supervision order. The Authority may issue written directions within a very short timeframe, if necessary. They possess the independence, experience, expertise and flexibility to monitor and manage serious offenders on supervision orders. It is the Authority that is best placed to deal with the day-to-day management of orders such as these. The Court retains an overall supervisory responsibility. Absent applications such as these, the Court would review a supervision order every three years, or at shorter intervals if appropriate.[12] The purpose of such reviews is to determine whether the supervision order should remain in operation or be revoked.[13]
[12]The Act s 99.
[13]Ibid s 104.
As the Authority explained in their material:
The Act establishes the Authority as an integral part of the post sentence scheme. It actively monitors progress on a supervision order in response to changing circumstances. As the number of times the Authority has met to consider reports relating to [DW]’s progress, and to confirm, make, vary or revoke directions demonstrates, the Authority has the capacity to promptly and actively monitor a person’s progress on a supervision order in response to changing circumstances. In accordance with an authorisation given to it by courts to make directions in relation to court ordered conditions, it can quickly respond to changes, whether in respect of positive progress or behaviour of concern to make changes to the manner in which conditions set by courts can operate to best meet the needs of community safety and the rehabilitation of a person on an order.
…
The Authority has the capacity to act quickly, effectively and proportionately in response to information provided to it, both in relation to evidence of an escalated risk of reoffending, and of a reduced risk warranting less restrictive measures to manage the risk. Over the duration of [DW]’s Order, as his circumstances have changed, the Authority has in some instances made more, and in some instances, less restrictive directions.
Secondly, a review of all the material in this matter reveals that DW misunderstands the role of the Court, and attributes to the Court a role and function it does not have. By way of example, when dealing with alternative accommodation options, DW had until recently refused to provide potential addresses to his worker, advising that he would not provide the address to anyone but the Court. If an offender if subject to a supervision order, any proposed accommodation — if in fact it exists — is subject to an environmental scan process to ensure it is suitable. The scan is completed by those managing the supervision order and provided to the Authority. If DW wants the Court to consider alternative accommodation proposals, he needs to cooperate with those managing the supervision order, so the proposed alternative accommodation can be identified, assessed (if they are available), and the results of the assessment placed before the Authority.
DW has made a number of statements concerning the Court that are clearly wrong, including:
(a) His real estate agent is dealing directly with the Supreme Court;
(b) The judge has called and spoken to him personally about the management of his supervision order;
(c) He has the judge’s mobile number stored in his phone and has been talking with her about ‘this place’, being Corella Place;
(d) The judge has been in contact and expects him to be released as soon as possible; and
(e) The judge has specifically requested that DW immediately forward to the Court his internet capable device.
None of the above statements bear any resemblance to the truth. Concerningly, and leaving aside their falsity, they reveal that DW fundamentally does not understand, or perhaps refuses to understand, how supervision orders are managed and administered. As noted above, it is Corrections (which includes the Post Sentence Branch) and, separately, the Authority, who have the day-to-day responsibility of managing offenders who are subject to supervision orders. DW frequently refuses to engage meaningfully with his workers, case managers or the Authority, telling them that ‘the Court’ will be informed, or ‘the Court’ will deal with the issue. As a result, matters that could be dealt with efficiently by staff at Corella Place or the Authority are left to fester, or escalate, causing distress to DW and difficulties for those managing him.
DW’s misunderstanding as to how supervision orders are managed is evident in the Authority’s material. DW believes he has a ‘case against the Authority’ in this Court. He refuses to attend meetings or, if he attends, refuses to meaningfully participate in interviews with the Authority. DW does not have a ‘case against the Authority’. He has an application to review the supervision order conditions, and the respondent to that application is the Secretary to the Department of Justice and Community Safety.
I turn now to the conditions themselves.
Condition 6.1 (residential condition)
On 9 December 2024, DW was told by the Court that if he wanted leave to review the residential condition, he should provide evidence of available, suitable alternative accommodation. It was made clear that he would need to submit any proposed address to Corrections, as they conduct environmental scans to assess the suitability of the proposed address.
On 13 December, DW arranged for a letter to be provided to the Post Sentence Branch, nominating two addresses. There is no evidence that DW owns either property or that either property is vacant. There is no evidence either property is available for rent or that DW is otherwise able to reside at the property. For example, there is no evidence that DW knows the occupants of the property, or that the occupants would be willing to have DW reside there. The respondent provided affidavit evidence addressing alternative accommodation options. In summary, there are currently no suitable accommodation options for DW other than Corella Place.
Moreover, DW is not currently being considered for transition to the wider community as his risk is unable to be managed in the wider community. He has either not engaged with, or disengaged from, treatment providers, and without treatment, his risk level will almost certainly not reduce.
In those circumstances, there is no basis to grant leave. The application for leave to review condition 6.1 is refused.
Condition 6.3 (outings condition)
DW’s material consists largely of a series of complaints. DW’s assertions as to what other Corella Place residents are or are not allowed to do, and how many outings they are given, is not relevant for my purposes. I do not know the circumstances of the other residents. They may be making significant rehabilitative progress through engagement with treatment. Their risk level may be lower and the nature of the risk may be materially different. They may be better supported by friends or family members in the community.
On the material I have, the respondent’s calculation that DW has averaged eight outings per month is correct. DW has been taken on numerous outings during 2024. He has participated in 46 community outings since 4 June 2024: nine outings in August, eight outings in September, 10 outings in October and 10 outings in November. DW has attended shops in Ballarat and the Ballarat Cemetery to visit his brother’s grave. He attended the Anzac Day ceremony in Ballarat on Anzac Day. He has visited recreation reserves and a golf driving range. Those managing him appear to be making an effort to accommodate his requests, including arranging for him to attend the Anzac Day ceremony.
I note that this Court has no power to review, vary or revoke directions made by the Authority.[14] To the extent that DW complains about the direction that he cover certain tattoos while on outings, that is not a matter for this Court. I also note the direction was made pursuant to condition 5.8, which is a core condition and incapable of review.[15]
[14]The Act pt 11 governs the role of the Authority in issuing directions or instructions to offenders on supervision orders.
[15]Section 15 of the Act states a supervision order is subject to the core conditions found in s 31 of the Act. Section 110(1) of the Act specifically states that an offender may seek leave to review any condition of a supervision order other than a core condition.
In my view, condition 6.3 is appropriately worded and sufficiently flexible to accommodate both the need for DW to be taken on outings and the operational requirements of Corella Place. The condition is working as intended. I am not satisfied of either of the matters found in s 110(3)(a) or (b). Leave to review this condition is refused.
Condition 6.5 (alcohol condition)
Ms Bea Raymond administered a number of psychological tests and risk assessments when she assessed DW in January 2019. She observed that the index offences committed against his mother and his ex-partner reflected DW’s hostility towards both, which was intensified by DW’s abuse of alcohol.
The sixth review of DW’s Coordinated Services Plan was conducted in November 2024.[16] DW’s risk level is unchanged. Under the heading ‘factors that might increase risk’, alcohol use or abuse is not listed. However, the document does refer to an earlier expert opinion, which noted that should DW relapse into alcohol use, this would be further disinhibiting and increase his risk of relevant offending. On 3 June 2024, DW was referred for an Alcohol and Other Drug assessment to assess his suitability for treatment. DW attended the assessment on 21 June, but chose not to engage and denied he had issues with alcohol or other drugs. Case managers have endeavoured to engage DW in discussions about the risk associated with alcohol consumption, but DW refuses to engage. Case managers have also encouraged DW, without success, to reconsider undergoing an Alcohol and other Drug assessment.
[16]Section 332 of the Act requires such plans to be developed and s 335 of the Act requires the plan to be reviewed no later than every six months.
The Authority notes that if DW were to engage in risk-related discussions about alcohol, the Authority would reconsider his request to consume small quantities of alcohol when on outings. It seems to me that if DW did cooperate with an alcohol and drug assessment, and undergo treatment were that deemed necessary, the Authority may well grant his request. However, he needs to cooperate and thus far, he has refused to do so.
DW asserts, without evidence, that he has already undertaken drug and alcohol treatment on a previous occasion while at Corella Place. On the material I have, that does not appear to be correct. However, even if it is correct, DW needs to cooperate with what is being asked of him now. If he has in fact already successfully completed treatment, then no doubt that will be readily apparent to anyone assessing him, and he may not require further treatment.
Based on the material I have seen, if DW were to relapse into alcohol use, his risk of offending would increase.[17] DW has not undertaken any drug and alcohol treatment, and has not developed any insight into the relationship between alcohol use and the risk of reoffending. I also add that based on the evidence of the doctor who is prescribing extremely large quantities of prescription medication to DW, there would also be a need for DW to understand the relationship between prescription medication and alcohol consumption. In all the circumstances, it is not in the interests of justice to review the condition. There are no new facts and circumstances which would justify a review of the condition. Leave is therefore refused.
[17]See DPP v DW [2023] VSC 24 at [138] and the assessment of Dr Ong referred to therein.
Condition 6.11 (internet condition)
This condition has already been reviewed and varied. However, given the Conditions Application remains extant, and given the breadth of that application as filed, it is perhaps arguable that the condition could be further reviewed. Without deciding that question, and for the benefit of the parties, I will say that even if I took the view that the condition could be further reviewed as part of this application, I would refuse leave.
Since 26 March 2024, there have been four directions issued by the Authority and two lawful instructions issued pursuant to s 183 of the Act, as follows:
(a) On 27 March 2024, the Authority issued a direction which essentially mirrors condition 6.12 and requires DW to provide his internet capable device (‘device’) to the relevant authorities for auditing. DW’s devices were audited in April and August 2024 and his usage was found to be compliant.
(b) On 17 May 2024, a lawful instruction was issued permitting DW to have unsupervised access to his device once per week and for a maximum time of one hour.
(c) On 21 May 2024, the Authority issued a direction permitting DW to have unsupervised access to his device when on outings and only to access the websites listed in condition 6.11(f).
(d) On 12 June 2024, the Authority issued a direction relating to condition 6.11(b). It essentially mirrored an earlier lawful Instruction given pursuant to s 183 of the Act, allowing DW unsupervised access to his device three times per week for a maximum of two hours each time. DW acknowledged and signed that instruction on 25 May 2024.
(e) On 19 September 2024, the Authority issued a direction permitting DW to own a second internet capable device, to be used in accordance with condition 6.11.
DW has complied with the internet condition, and that is to his credit.[18] However, as I have already stated and critically, DW’s risk level remains unchanged. Allowing him unrestricted access to any website would increase the risk of him stalking an adult female. If his internet access is unrestricted, there is a real chance he will contact adult females, repeatedly and irrespective of their wishes; that is, he will stalk them.
[18]The Authority’s material refers to a recent incident on 4 December 2024 during which an internet capable device was found during a search of DW’s unit, which he shares with a co-resident. I do not have any further information about the incident and I put it aside for the purposes of determining this application.
In my view, the internet condition is working as intended. The Authority supports DW having supervised access to internet sites that assist him and may be necessary for him to engage in daily living tasks. If DW requests access to additional internet sites, the Authority will consider those requests. On 19 September 2024, the Authority allowed DW access to a second internet capable device, so DW would not be without internet access while his primary device was being audited. The current regime is not too restrictive when balanced against the gravity of the risk of DW committing a Schedule 3 offence.[19] I am not satisfied of either of the matters found in s 110(3)(a) or (b). Leave is therefore refused.
[19]The Act s 27(4).
Conclusion
The application for leave by DW to review the conditions of his supervision order is refused.
I am mindful that DW is unrepresented, so I make clear to DW that this concludes the application. He has no other applications before the Court.
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