Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety

[2022] VSCA 101

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0066

DARYL HOBSON (A PSEUDONYM)	Appellant
v
SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SERVICES	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 May 2022
DATE OF JUDGMENT:	30 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 101
JUDGMENT APPEALED FROM:	[2021] VCC 446 (Judge Pillay)

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CRIMINAL LAW – Appeal – Supervision order under Serious Offenders Act 2018 – Whether conditions of supervision order necessary to protect the community from risk of reoffending – Whether conditions relating to curfew and use of the internet constitute minimum interference with the appellant’s liberty, privacy or freedom of movement – High risk of reoffending – Appeal dismissed – House v The King (1936) 55 CLR 499 applied.

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Counsel
Appellant:		In person
Respondent:		Ms G Coghlan QC
Solicitors
Appellant:
Respondent:	Victorian Government Solicitor’s Office

PRIEST JA
NIALL JA:

1. On 19 April 2021, a judge of the County Court made a supervision order (‘the supervision order’) in respect of the appellant under the Serious Offenders Act2018 (‘the Act’). As recorded in its terms, the supervision order was made on the satisfaction of the judge that the appellant poses, or after release from custody will pose, an unacceptable risk of committing a serious offence if the supervision order is not made. The supervision order lasts for four years.

2. The making of the supervision order was not opposed by the appellant. What was in issue was whether two conditions sought by the Secretary to the Department of Justice and Community Safety (‘the Secretary’) should be attached to the supervision order. The first condition concerned a curfew and the second whether the appellant should be banned from accessing the internet or, as he contended, he should be allowed to use one internet-enabled device. The hearing before the judge focused on these conditions. The judge imposed the conditions sought by the Secretary. 

3. In addition to the ‘core conditions’ that the Act requires be attached to the order, [1] the supervision order is also subject to a number of additional conditions imposed under ss 34, 35 and 38 of the Act. They include that the appellant reside each night at a ‘residential facility’, that he be subject to an overnight curfew, and that he must not knowingly remain within 100 metres of a school. The supervision order is also subject to a treatment condition and conditions that prevent the appellant from having contact with any convicted sex offender, female children under 16 years of age, or the victims of his sexual offending or their families. Another condition requires the appellant to comply with monitoring, including by means of electronic monitoring.

   [1]The Act, s 31.

4. Relevantly, the supervision order is subject to the following condition (‘condition 6.10’):

   6.10     [the appellant] must not:

   (a) use, own or possess a computer;

   (b) access the internet;

   (c) use, own or possess any internet-capable devices; or

   (d) photograph or video children under the age of 16 years -

   except in accordance with the written directions of the Post Sentence Authority.

5. The appellant appeals[2] against condition 6.10 on the following grounds:

   (1)The learned judge erred in imposing condition 6.10 of the supervision order (6.10).

   (2)The learned judge erred in principle in imposing the condition that was not under s 27 of the Serious Offenders Act constituting:

   (a)the minimum interference with the appellant’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the condition and are reasonably related to the gravity of the risk of the appellant reoffending.

   (b)the learned judge erred in finding that the condition did not interfere with the appellant’s liberty, privacy or freedom of movement.

   (c)the learned judge erred in imposing a condition that is ambiguous.

   (d)the learned judge erred in imposing a condition that is unreasonable or unjust.

   [2]Ibid s 115. The appellant required an extension of time to bring the appeal, which was not opposed, and he should have that extension.

The background

1. In order to place the appeal in its proper context, it is necessary to refer only to the following facts.

2. In 1997, the appellant was found guilty in the Magistrates’ Court of allowing a child to take part in prostitution and assisting an unlicensed prostitution service provider.

3. In 2001, the appellant was resentenced in the Court of Appeal to a term of six years’ imprisonment for various charges, including: three charges of sexual penetration of a child aged between 10 and 16 years; six charges of causing a child to take part in prostitution; and one charge of being an unlicensed prostitution service provider.

4. In September 2013, the appellant was sentenced to a term of seven years and six months’ imprisonment for using a carriage service to procure children under 16 years to engage in sexual activity outside Australia. A synopsis cannot capture the depravity of this offending. In very brief summary, it involved the appellant procuring video footage of young girls in the Philippines, aged around 8 years, for the purpose of being sexually abused and engaging in sexual acts at the instigation of the appellant. 

5. A report of Professor Ogloff dated 26 August 2013 and tendered on the plea for these offences, contained the following opinion:

   When the future relevance of these risk factors are taken into account it would appear that [the appellant] currently presents with a moderate high risk of future sexual violence in the community. The greatest risk factor for [the appellant] is his strong sexual deviance, reinforced over a lifetime. Given that he is generally prosocial and has not engaged in an array of antisocial behaviour however, he might be able to control his sexual deviance into the future. This will be a great challenge for him since [he] has over time engaged in a range of offending behaviours most recently delving into the online world. I am concerned, as well by his attachment to the Philippines, where sex holidays and inappropriate sexually exploitative behaviour with children is sadly all too common.

   … Regarding the nature of [the appellant’s] ongoing risks it is more likely that future offending would be similar in nature (that is, online offences involving children). However in light of the foregoing and coupled with [the appellant’s] claims that he had not been aware that his online offending was able to be tracked as well [as] the fact that [the appellant] has previously engaged in contact sex offences and (sic) escalation to contact offending cannot be ruled out especially if [the appellant] ultimately views this offending is safer than procuring children online. He seems to have benefited very little from previous sex offender treatment.

6. In a report tendered in support of the application for the supervision order, Dr Russell Pratt, a forensic psychologist, said that the appellant poses a high risk of committing a sexual offence of a similar kind to that for which he was convicted in 2013. Dr Pratt said that, despite some protective measures, the problem is that the appellant ‘remains fundamentally sexually attracted to children.’ In relation to the kind of future offending that might ensue, Dr Pratt said:

   [The appellant’s] previous progression into sexual offending has been well-documented in this report. Were he to offend sexually again, I believe his offence process would follow one of two likely patterns previously seen. One scenario would see [the appellant] return to a lifestyle where he targeted young, vulnerable, drug-dependent street prostitutes, offering them cash jobs, safe work, and easy access to drugs, in return for sexual favours. He would likely be quite isolated, watching specific-act pornography (particularly anal sex followed by oral sex, which seemed to be a particular fixation of his) performed by ‘barely legal’ actors, which would likely fuel his deviant sexual arousal and his fantasy driven world. [The appellant] may see this pathway to be quite safe, given the vulnerability of the women/girls involved, and him having a high level of control in these situations.

   Another potential scenario would be procurement of female children, approximate age between 4 and 9 years, for specific sexual scenarios, which, based upon previous offending, would be rape fantasies of a brutal nature – again, involving anal and oral rape. I believe [the appellant] would likely continue to undertake this activity electronically, procuring overseas children, as a key consideration would be his fear of being caught. It is likely that if he were going down this pathway, he might likely spend some time improving his computing and online skills so as to avoid detection on the web. In terms of [the appellant’s] potential to engage in this offence scenario, I believe that extreme isolation, emotional distress, inability to connect romantically and sexually to others, masturbating to extreme pornography, and disconnection from his community supports would all be pre-requisites to this offending pathway.

7. As already noted, the hearing of the application for the supervision order was focused on what conditions ought be imposed. In relation to internet access, the appellant contended that he should be permitted to use a single internet-enabled device and that any risk posed could be addressed by live monitoring or auditing of his internet access. In order to address this aspect of the application, the Secretary relied on an affidavit of Frank Dumic, Assistant Commissioner of the Security and Intelligence Division of Corrections Victoria. In his affidavit, Mr Dumic deposed that technology audits are the primary means available to Corrections Victoria to monitor compliance with conditions which prohibit or restrict access to computers and internet-capable devices, and that it does not use alternative forms of auditing and monitoring, including real-time or live monitoring.

8. In relation to live monitoring, Mr Dumic said that Corrections Victoria does not currently have access to the software, hardware and other resources that would be required to enable it to undertake live monitoring. Although the cost of obtaining the required software and hardware is unlikely to be prohibitive, he said the use of live monitoring is likely to be cost prohibitive from a human resourcing perspective and due to the storage costs associated with live monitoring, potentially involving the use of 15 qualified and trained staff. He identified a number of technical and resourcing limitations associated with live monitoring. Mr Dumic also noted a number of difficulties with an audit process, including that it would reveal a contravention after it had occurred.

The statutory regime

1. Section 14 of the Act provides that a court may make a supervision order in respect of an eligible offender if, and only if, the court is satisfied that the person poses an unacceptable risk of committing a serious sex offence if a supervision order is not made and the offender is in the community. The Act prescribes the matters that a court must take into account. It provides that the court must be satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk.[3] We interpolate to note that the appellant takes no issue with the making of the supervision order itself.

   [3]The Act, s 14(3).

2. Section 15 of the Act provides that a supervision order is subject to the core conditions set out in s 31 and any other conditions that the court imposes under division 3. Division 3 deals with conditions that may be imposed on a supervision order in addition to the mandatory core conditions. Section 27 of the Act provides that the primary purpose of the conditions of a supervision order is to reduce the risk of the offender reoffending by committing a serious sex offence. In order to reduce the risk of reoffending, the conditions may address rehabilitation and treatment, and may also address the types of behaviour that may increase the risk of reoffending. Section 27(4) provides:

   (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.

The judge’s reasons

1. The judge rejected the appellant’s submission that he should be permitted to have access to the internet. The judge accepted the opinion of Dr Pratt,[4] that the appellant would likely continue to procure overseas children electronically, as a key consideration would be his fear of being caught, and that in aid of that activity, he would spend some time improving his computing and online skills so as to avoid detection on the web.

   [4]Department of Justice and Community Safety v Hobson (a pseudonym) [2021] VCC 446.

2. The judge noted that the appellant is an extremely intelligent man, who has not completed treatment and remains a high risk of reoffending.[5] He concluded that the prohibition on internet access sought by the respondent constituted the minimum interference with the appellant’s liberty. He noted that live monitoring was untested, that it would come at a high cost in terms of resources, and that there was ‘great uncertainty around its implementation and efficacy at present.’[6] He stated that he could not be certain that live monitoring would meet the aim of the Act, to reduce the risk of reoffending, particularly given the appellant’s intelligence and educational background, his history of using the internet to offend, his deliberate choice of offending online overseas rather than in Australia, and the potential, described by Dr Pratt, for the appellant to spend time developing his online skills to avoid detection. In relation to auditing, the judge said this was ‘entirely inadequate to act as a deterrent and reduce the risk of offending.’[7]  

   [5]Ibid [16].

   [6]Ibid [17].

   [7]Ibid [19].

The appellant’s argument considered

1. Fastening on the language of s 27(4) of the Act, the appellant argued that condition 6.10 did not constitute ‘the minimum interference with [his] liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purpose of the conditions. Nor are the conditions reasonably related to the gravity of the risk of [the appellant] reoffending.’

2. The appellant submitted that the cost of monitoring software would not be prohibitive, noting that the Australian Federal Police currently employ such technology and processes for monitoring offenders on federal supervision orders. He said that the cost of employing staff is not a good reason to impose condition 6.10 and that the evidence does not support a wholesale prohibition on the use of devices connected to the internet. He submitted that although an audit might detect offending after it occurred, it would not detract from the severe penalties that could be imposed and that these penalties would deter him from further offending. He also contended that the language in condition 6.10 is inherently ambiguous.

3. The decision to impose a condition, and the form in which it is expressed, involve the exercise of a discretionary power by the judge. For that reason, the appellant must establish an error of the kind considered by the High Court in House v The King.[8] None of the arguments made by the appellant identify any specific error on the part of the judge. It is clear from his reasons that the judge was alive to the requirement that the court must ensure that any condition constitute the minimum interference with the relevant rights that is necessary to ensure the purposes of the condition. That is, it could not be contended that the judge asked himself the wrong question or addressed the wrong legal issue.

   [8](1936) 55 CLR 499; [1936] HCA 40.

4. Further, the appellant was unable to identify any factual error made by the judge, rather his submission amounted to a contention that the judge should have given different weight to the evidence of Mr Dumic concerning the practicability and cost of the proposed alternative means for monitoring internet use. It follows that in order to succeed, the appellant must establish that the condition was not open to the judge on the material before him.

5. In our view, that contention cannot be accepted. As the judge correctly noted, the evidence firmly established that the appellant is strongly sexually attracted to children and has untreated and continuing paedophilia. His history of offending shows an ability to use the internet to procure child sex abuse material of the most heinous kind. The conclusion that the appellant remains a high risk of reoffending using the internet was overwhelmingly established on the evidence.

6. The appellant is a highly intelligent man, who is capable of manipulation to achieve his desired outcomes. For example, Dr Pratt noted that the appellant, in his interview with him, had denied any drug use throughout his life. When asked why he had previously stated he had been a moderate to heavy user of cocaine, the appellant replied that ‘you need to do programs to get parole. I deliberately manipulated the system to get into those programs.’ The appellant shows few signs, at present, of insight for his past wrongdoing and appears to derive satisfaction from engaging in illicit behaviour.

7. The purpose of the condition prohibiting the appellant from accessing the internet or using, owning or possessing a computer or an internet-capable device, is to prevent the appellant from having the means to commit serious sexual offending of the kind that he has committed in the past. The judge weighed the alternative and less burdensome means suggested by the appellant, but was satisfied that they would not meet the purpose of the condition and would not provide sufficient protection against future offending. That conclusion was well open on the evidence having regard to the uncertainty of implementing live monitoring and auditing. In the absence of a viable or sound alternative, the judge concluded that it was necessary to impose the prohibition that he did. In our view that was a conclusion that well accorded with the evidence.

8. In this respect, the Secretary was right to submit that the extent of the relevant risk against which the supervision order and the conditions, including condition 6.10, were made, is a high one, and the nature of the risk is extremely grave. 

9. A condition does not contravene s 27(4) of the Act merely because a different formulation could be expressed that imposes a lesser interference with liberty, privacy or freedom of movement. The question is whether a less onerous condition would be fit for purpose, or more accurately, whether the proposed condition is necessary in the circumstances to ensure the purposes of the condition.

10. In assessing the impact that the condition has on the appellant, it is relevant to note that the condition is not a blanket prohibition for the life of the supervision order. Rather, the condition leaves open the possibility that the Post Sentence Authority may permit access to a computer or the internet pursuant to a written direction which the condition contemplates. Indeed, we were told[9] that this power has been exercised by the Post Sentence Authority to allow the appellant to use a computer with access to the internet for certain limited purposes.

    [9]The Act, s 119 permits the Court to receive new evidence on an appeal. No objection was taken to the Court being informed as to these matters and the ability of the Post Sentence Authority to give written permission is expressly provided for in condition 6.10. 

1. Finally, we see no ambiguity in the form of the condition.

2. The appeal must be dismissed.

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