Malcolm Greene (a pseudonym) v Secretary to the Department of Justice and Community Safety
[2021] VSCA 79
•30 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0224
| MALCOLM GREENE (a pseudonym) | Appellant |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 November 2020 |
| DATE OF JUDGMENT: | 30 March 2021 |
| MEDIUM NEUTRAL CITATION | [2021] VSCA 79 |
| JUDGMENT APPEALED FROM: | [2019] VCC 11 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Supervision order under Serious Offenders Act 2018 – Appellant convicted of sexual assault of child under 16 – Whether combination of conditions of supervision order unreasonable or plainly unjust – Whether conditions of supervision order necessary to protect the community from risk of reoffending – Moderate-to-high risk of reoffending – Appeal dismissed – House v The King (1936) 55 CLR 499 applied, Nigro v Secretary to the Department of Justice (2013) 41 VR 359; Daniel (a pseudonym) v Secretary to the Department of Justice [2015] VSCA 10 considered, Serious Offenders Act 2018 ss 1, 14(1) 27(4), Crimes Act 1958 s 49D(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R de Vietri | Ann Valos Criminal Law |
| For the Respondent | Ms S Flynn QC | Minter Ellison |
PRIEST JA
T FORREST JA:
The Serious Offenders Act 2018 (‘the Act’) provides in s 1 that its purposes are:
(a)primarily, to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision; and
(b)secondly, to facilitate the treatment and rehabilitation of those offenders; and
(c)to repeal the Serious Sex Offenders (Detention and Supervision) Act 2009 and consequentially amend other Acts.
On 21 January 2019 the appellant was sentenced by Judge Gucciardo in the County Court to 13 months’ imprisonment for one charge of sexual assault of a child under 16[1] (the index offence) and one charge of committing an indictable offence whilst on bail.[2] The transcript of the sentencing proceedings reveals that the appellant committed these offences whilst affected by alcohol and on bail.
[1]Contrary to the Crimes Act 1958 s 49D(1).
[2]Contrary to the Bail Act 1977 s 30B.
In short compass, the complainant, a 15-year-old girl, had encountered the appellant at a fast food outlet in the Melbourne CBD at 4:41 am on Sunday 18 February 2018. The complainant had gone to the CBD with her mother to see the White Night culture and arts event, being held between 7:00 pm and 7:00 am. The appellant joined the complainant in the queue for food. He told her she was ‘very pretty, very beautiful and that she had a very nice face’. He said, ‘I respect you and I adore you’, and hugged her tightly. He locked his hands around her waist and moved his groin towards her as his hands went to her buttocks. The appellant smelled of alcohol and was then 45 years old.
The judge considered that this offending was in the ‘low range’ for this type of offending. His Honour noted that the appellant was born in South Sudan, had a complex psychiatric and neurological history and a troubling prior criminal history. The appellant escaped from Sudan at 18 years old, and was placed in a refugee camp in Egypt. His parents and four siblings were killed in the civil war during the 1990s. He suffers from post-traumatic stress disorder (‘PTSD’) dating from this time and came to Australia as a refugee in 2003. He self-medicated with alcohol. In 2004 he suffered severe injuries, including head injuries, when, as a pedestrian, he was struck by a vehicle. The judge remarked, ‘It is clear you suffered major head injuries, you were struck by a car travelling 70 kph … You experienced post-traumatic amnesia for at least three weeks; a clear indication of extremely severe brain injuries.’[3]
[3]DPP v Greene (a pseudonym) [2019] VCC 11, [42]–[43].
The judge then set out the appellant’s prior criminal history:
[I]n 2006 you received a substantial gaol sentence. In 2005 you committed an assault whilst drunk, as well as offensive behaviour in a public place and an indecent assault. You were placed on a community based order, which you ultimately breached. In December 2005, you were sentenced to 19 months, with 12 months non-parole period, for being drunk in a public place, driving [offences], stalking, and two aggravated assaults; one on a female and one on a male under 15. An intellectual disability and a psychiatric history [were] noted as custody management issues at that time.
That sentence was appealed on 21 March 2006 to this court, and although the appeal was allowed it was heard with another matter, of aggravated burglary with a person present and an assault with attempt to rape. The two matters together resulted in a new total effective sentence of five years and three months and a non-parole period of two years and nine months.
In July 2006 another month was added on the breach of the earlier community based order. Then in October 2006, you received two months for the earlier assault and indecent [assault] upon being resentenced, concurrent with the sentence being undertaken.
I note also that in 2011 a supervision order for five years, pursuant to the Serious Sex Offender (Detention and Supervision) Act 2009 was made, which in 2016 was extended for a year to 2017.[4]
[4]Ibid [36]–[39].
The judge noted hospital admissions in 2013 for serious alcohol poisoning, however, the appellant’s problems with alcohol continued, and in 2017 his neighbours obtained an intervention order against him involving events occurring when the appellant was intoxicated. As we have indicated, the index offence was committed in February 2018.
On 26 August 2019 the Secretary to the Department of Justice and Community Safety (‘the Secretary’) applied under s 13(1) of the Act for a supervision order in respect of the appellant. Judge Gucciardo also heard this application and made a supervision order valid for a period of three years. His Honour found, pursuant to s 14(1) of the Act, that the appellant posed an unacceptable risk of committing a serious sexual offence if he were to be in the community and a supervision order was made. In addition to the core conditions set out in s 31 of the Act, the judge imposed a number of conditions under ss 34, 35 and 38. Those conditions include the following:
6.2[The appellant] must be present at the Residence between 11:00 pm and 05:00 am unless otherwise directed by the Post Sentence Authority [(‘the curfew condition’)].
…
6.7 [The appellant] must:
(a)comply with monitoring as to whereabouts (including electronic monitoring) [(‘the GPS condition’)]; and
(b)whilst not residing at a residential facility, comply with electronic alcohol monitoring [(‘the SCRAM[5] condition’)];
[5]Secure Continuous Remote Alcohol Monitor.
unless otherwise directed by the Post Sentence Authority and, pursuant to section 35(2) of the Act, [the appellant] must:
(c)comply with any direction given by the Post Sentence Authority relating to the electronic monitoring;
(d)for 24 hours of each day, be electronically monitored and wear an electronic monitoring device or electronic monitoring devices fitted to [the appellant] at the direction of the Post Sentence Authority;
(e)ensure that any electronic monitoring device fitted to [the appellant] remains operational (including being charged) at all times;
(f)not tamper with, damage, disable or remove any electronic monitoring device or equipment used for the electronic monitoring; and
(g)accept any visit by the Secretary to the place where [the appellant] resides, at any reasonable time and for any purpose including to install, repair, fit or remove any electronic monitoring device or equipment used for the electronic monitoring.
The appellant appeals to this Court under s 115(1)(c) of the Act. The sole ground of appeal is expressed as follows.
The learned Judge erred in imposing electronic monitoring of whereabouts, electronic monitoring of alcohol consumption and curfew conditions upon the appellant in circumstances where the evidence including the expert evidence did not support a finding that such conditions were necessary to protect the community from the appellant’s risk of reoffending.
It is common ground between the parties that an appeal under the current Serious Offenders Act should be approached in the same way as appeals brought under the predecessor legislation.[6] This consensus accords with our view that this appeal is to be determined in light of the principles in House v The King.[7] It follows that, in order to succeed, the appellant must satisfy this Court that, in imposing one or more of the impugned conditions (relating to electronic monitoring of whereabouts, electronic monitoring of alcohol consumption and curfew), the judge acted upon a wrong principle, took an irrelevant matter into account, failed to take into account a material matter or mistook the facts, or that the judge’s decision to impose the condition being considered was unreasonable or plainly unjust. In oral submissions, Mr de Vietri, counsel for the appellant, explained that this appeal was brought on this latter emphasised basis.
[6]Serious Sex Offenders (Detention and Supervision) Act 2009.
[7](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). See also Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 377 [64] (Redlich, Osborn and Priest JJA) (‘Nigro’); Daniel (a pseudonym) v Secretary to the Department of Justice [2015] VSCA 10, [16] (Priest JA).
Thus, a high bar is set for success.
The judge’s ruling
Given the narrow scope of this appeal, we shall only briefly summarise his Honour’s ruling:
· His Honour noted the appellant’s personal background, the circumstances of his arrival in Australia, as a refugee and oldest surviving male in his family, his PTSD, as well as the brain injuries and consequent ongoing cognitive impairment he sustained as a result of being hit by a car in 2004.
· The appellant’s acquired brain injury and cognitive impairment had been exacerbated by his abuse of alcohol. When under the influence of alcohol, the appellant had demonstrated compromised judgment, impulsivity, poor internal controls and marked disinhibition.
· The judge summarised the appellant’s previous offending, in similar terms to those used in his Honour’s sentencing remarks set out at [5] of these reasons.
· In making the supervision order of 1 November 2019, his Honour was satisfied that there was a high degree of probability that the appellant posed an unacceptable risk of reoffending.
· This assessment was based on written reports and oral evidence by a forensic psychologist, Mr Ross Wall, and a forensic psychiatrist, Dr Rajan Darjee. His Honour also took into account evidence from Mr Alexander Lowen, assistant manager in the operations team at the Post Sentence Authority and various documentary evidence including case notes and incident reports.
· The appellant was assessed by multiple assessors under the Static-99 measure as a ‘well above average’ risk of reoffending, and under the RSVP assessment tool as in the moderate-high risk category.
· Both Mr Wall and Dr Darjee viewed alcohol use as a key factor in or condition for the appellant’s sexual offending.
· Mr Wall gave evidence that, though alcohol use was ‘not the problem per se’, it is ‘quite the fire alarm’, and considered that a supervision order would be a positive way to help prevent the appellant from falling into alcohol abuse.
· In his report, Dr Darjee said that the appellant’s periods of stability and non-offending have coincided with abstinence from alcohol, which led him to conclude that this was the only condition needed to control the risk: ‘If he can abstain from alcohol it is highly unlikely that he will commit further sexual offences. A condition that he cannot drink and the monitoring of this condition is both reasonable and necessary.’ If the appellant is not drinking, both a curfew and electronic monitoring ‘[seem] unlikely to reduce the risk of reoffending’.
· However, in giving oral evidence, Dr Darjee conceded that, if the appellant had been drinking, ‘one would want to know where he was’.
· In oral evidence, Dr Darjee discussed the negative impacts of the restrictions placed upon the appellant, and pointed out that the appellant’s objections to them and generally hostile attitude to supervision should not impact the assessment of his likelihood of reoffending. In particular, the GPS bracelet had a particularly ‘stigmatising’ effect from the appellant’s point of view, and he would be ‘less troubled’ by urine testing.
· The judge took into account that, though any impact on the offender is not part of the test laid down by the Act, it did require a consideration of whether the imposition of restrictions on the offender’s freedom was necessary to advance the Act’s purpose, and that ‘[t]he Act clearly seeks to achieve a balance between an offender’s rights and the right of the community to be protected from the risk of the offender committing further sexual offences’. The concept of individual liberty therefore had a role in the assessment.
· The judge’s assessment took into account a letter from Dr Bolton, the appellant’s GP, which outlined the discomfort of the monitoring devices and the consequences and impacts for the appellant of their application.
· This consideration led his Honour to impose the restrictions for a shorter period than that applied for by the Secretary, but notably not to change the nature of the restrictions.
· The judge was satisfied that the supervision order struck an acceptable balance as required by the Act, its conditions ‘[constituting] the minimum interference with the offender’s liberty, privacy and freedom of movement necessary in the circumstances to ensure the purposes of the conditions[8] and [being] properly related to the gravity of the risk’.[9] This was based on his Honour’s finding that the appellant’s risk of reoffending was in the moderate-to-high category, and the severity of any such reoffending, should it arise, would be ‘significant and harmful’.
[8]See Serious Offenders Act 2018 s 27(4)(a).
[9]See ibid s 27(4)(b).
The appellant’s submissions
In comprehensive written submissions, the appellant submitted that there was no evidentiary justification for any of the impugned conditions. In oral argument, this submission was varied somewhat. Counsel for the appellant abandoned reliance on that part of the ground that dealt with the SCRAM condition but, showing commendable agility in the face of questions from the Bench, instead argued that that particular form of monitoring was all that was necessary in the circumstances to control the admitted risk that the appellant presents to the community. Put another way, counsel argued that, with the SCRAM condition in place, the other conditions imposed (GPS monitoring and an 11:00 pm-to-5:00 am curfew) became otiose, particularly when regard was had to s 27(4)(a) of the Act, which provides that, in fixing the conditions for a supervision order, the Court must ensure that those conditions ‘constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary to ensure the purposes of the conditions’.
The respondent’s submissions
The respondent, in oral argument, contended that both the disputed conditions were open to the judge and had a solid evidentiary foundation. Senior counsel emphasised that the judge had recently dealt with the appellant for the index offence and was well acquainted with his unfortunate upbringing, his psychiatric and neuropsychological background, his capacity to abuse alcohol and its relation to both the current sexual offending and the appellant’s past sexual offending. Each of the conditions had a capacity to reduce the obvious risk to the community presented by the appellant and a SCRAM condition, by itself, was not sufficiently protective, particularly as it takes approximately a day for the intake of alcohol to be logged on the SCRAM system. A GPS condition was essential in order to know where the appellant was in the event that he had resumed drinking alcohol. Further, a curfew was appropriate given that the index offence was committed in the early hours of the morning, albeit at an all-night event.[10] The curfew condition also was for restricted hours and could be waived to facilitate night-time employment.
[10]That is, the White Night event.
Consideration
In our view the appellant has failed to establish that the judge’s decision to impose the GPS condition and/or the curfew condition was unreasonable or plainly unjust. The appellant has a troubled relationship with alcohol consumption and sexual offending. Dr Rajan Darjee, Consultant Forensic Psychiatrist commissioned by the appellant’s solicitor, prepared a comprehensive report which eloquently articulated this factual connection:
There is nothing to indicate that [the appellant] committed any offences before coming to Australia in 2003. He was charged with the rape of an adult female which was alleged to have occurred in February 2004. He admitted the female was present, but denied the offence, and was acquitted of this in 2007.
There were a number of offences between February and July 2005, which occurred after he had suffered a serious head injury in 2004. In February 2005 he approached a female worker unknown to him in a restaurant, shook her hand[,] pulled her towards him, placed his hand on her breast, she pulled away, he followed her, tried to touch her and told her he loved her. In March 2005 he behaved in an offensive manner by urinating outside towards a police vehicle.
In April 2005 he sat next to an 18 year old female outside her place of employment, complimented her on her looks, touched her hair, tried to hold her hand, she attempted to walk away, he grabbed her wrist, she freed herself and ran, he tried to grab her hands, she ran inside her place of work, he tried to force his way in, work colleagues helped the victim close the door, he then joined some males drinking, then went back, but was told to leave. Also in April 2005, he approached an adult female community worker who was looking after an 8 year old boy at a skate park, he grabbed her arm, she pulled away, he asked some personal questions, she told the boy to get in their car, he grabbed the boy to stop him leaving, the woman elbowed him, they then got in the car, he tried to enter the car too, there was a struggle, and then he walked away.
In May 2005 he crashed a car whilst drunk and was charged with being drunk in a public place, careless driving, failing to give his name, driving without a license, having an unregistered motor vehicle and refusing to give a blood test. In June 2005 he approached two females who were strangers to him at a train station on the same day: he offered the first one a ticket, grabbed and caressed her hand, kissed her cheek, hugged her, held her shoulder as she protested, kissed her nearer her mouth, then attempted to kiss her on the lips; with the second one he held her hand, asked her to go to his house for dinner, kissed her lips, and as she broke free of his grip to her neck, grabbed her hand.
In July 2005 he visited a female friend and then went to an adjacent unit where a 50-year-old female resided. He threatened to take her dog if she did not let him in, then when inside, pulled her pants down, got his penis out and pulled the victim to a couch. The victim ran, he tried to grab her, she screamed, and the police were called. He was arrested when he returned to get his belongings. This resulted in him being charged with assault with intent to rape and aggravated burglary.
He committed a further offence of breaching a community-based order, which he had received for the first offence in February, by committing further offences. All the offences occurred when he was heavily intoxicated with alcohol. He received a 5-year sentence for the July offence (assault with intent to rape and aggravated burglary) and concurrent shorter sentences for convictions related to the previous offences.
He was placed on a 5-year Supervision Order at the end of his sentence in 2011, then this was renewed in 2016, before expiring in March 2017. From his conviction in 2006 for the July 2005 offence until the end of the Supervision Order in 2017, there were three relatively minor charges: possessing anything without authority in police gaol, smoking where not permitted and failing to comply with reporting obligations.
In 2018 there was a charge for being drunk in a public place (which was struck out), an intervention order was taken out against him by a female neighbor (sic), and he committed a further sexual offence.
The further sexual offence occurred in February 2018. He was intoxicated with alcohol in the early hours of the morning when he joined a queue in a fast food restaurant behind a 15-year-old girl and her mother, both unknown to him. He tapped the 15-year-old on the shoulder, said ‘hi’ and she said ‘hi’ back. He commented on her appearance saying she was pretty and beautiful, and that he respected her and adored her. He asked her for a hug and she agreed. He then held her tight, refusing to let go, while she was trying to get free. He moved his hands down to her waist and then to her buttocks and was seen by witnesses to be moving his groin towards the victim. She believed he was trying to kiss her and was panicking. The mother intervened to get her daughter free. She asked how old he thought the girl was. He said 18 and she told him she was 15. He then told the mother he respected her, stroked both her arms, was told to stop, and then apologised. He asked if he could meet [them] outside and was outside when they left to go to another food outlet. At the time of this offence he was on bail.
Prior to being sentenced for this offence (sexual assault by touching a child under 16 and committing an indictable offence whilst on bail) in January 2019, he was sentenced in August 2018 for being drunk in a public place and contravening an interim personal safety intervention order, receiving fines for both. For the sexual assault he received a 13-month prison sentence and was made subject to sex offender registration legislation for life.
In the months before the sexual assault in 2018 he had been drinking heavily again. His brother-in-law (the husband of his already deceased sister) in Africa had died leaving his youngest sister to look after their three children in addition to her own two children. This left him feeling distressed at his inability to assist his family (as was his duty as the oldest male), made his post-traumatic stress disorder … symptoms worse and led to him drinking alcohol to excess to cope.
This connection of the appellant’s alcohol consumption and his offending was undisputed at the hearing of this appeal, which was approached by the appellant on the basis that, if the risk of a relapse into alcohol consumption were eliminated, then there was no further risk to be mitigated. Alcohol was the ‘gateway’ to offending — close the gate and the risk was dealt with.
It must be immediately observed that any assessment of the risk presented by the appellant involves an assessment of both the nature of the conduct that represents the danger, and the chances of that danger becoming a reality. Thus the measure of overall risk is the product of the risk of repetition of the impugned conduct and the danger to the community of that conduct being repeated.[11] It is undisputed that, left to his own devices, the appellant represents an unacceptable risk of harm to the community. His prior criminal history demands this conclusion, and the harm that must be contemplated is serious indeed.
[11]Nigro (2013) 41 VR 359, 380 [75], 387 [101]–[102].
The question then devolves to this — was it unreasonable or unjust for his Honour to impose the GPS condition and the curfew condition in addition to the SCRAM condition? We consider that his Honour was entitled to be comfortably satisfied, on the evidence, that a GPS condition was appropriate as part of the suite of conditions imposed. The evidence disclosed that the SCRAM device did not provide real-time notification of alcohol consumption; rather, there was a lag of up to 24 hours between consumption and a SCRAM record of same. Further, the SCRAM device did not provide any information as to the appellant’s whereabouts either at the time of consumption or at the time of the SCRAM record of consumption. In answer to a question from the judge during his oral evidence in the hearing below, Dr Darjee said, ‘Yes, I think if he’s … been drinking and getting intoxicated, your Honour, one would want to know where he was.’ In our view it was eminently reasonable for the judge to impose the GPS condition, not only for monitoring the appellant’s whereabouts in the event that he consumes alcohol, but also to monitor his whereabouts so that any supervision of him could deal with the appellant placing himself into high-risk environments.
The appellant has failed to demonstrate that the imposition of the GPS condition was unreasonable or plainly unjust.
As to the curfew condition, there was also evidence that justified its imposition. We repeat that the index offence was committed at 4:41 am. It should be noted that the curfew is not a blanket prohibition on the appellant leaving his home between 11:00 pm and 5:00 am (which as far as curfews go is a narrow window at any event) but provides for the Post Sentence Authority to exempt the appellant from this condition at their discretion. We were advised by senior counsel for the Secretary that the appellant had already sought and been granted exemptions from the curfew to do with night-time employment. The curfew condition received evidentiary support from Mr Wall, who offered the opinion that a curfew condition was protective in that it offered a safe haven for the appellant away from the stresses of the outside world, which may tend to overwhelm him and bring on alcoholic self-medication. Dr Darjee expressed a contrary view, that a curfew seemed unnecessary if the appellant was not drinking, although he agreed in cross-examination that the more stable the appellant’s circumstances, the less likely it was that he would drink, and a curfew could make his circumstances more stable than if there was no curfew.
The appellant has failed to demonstrate that the imposition of the curfew condition was unreasonable or plainly unjust.
Further, the appellant has failed to demonstrate that the imposition of any of the conditions is unreasonable or unjust when imposed in conjunction with any of the other conditions, given the apparent redundancy of the protective measure provided by the SCRAM condition — alerting the Post Sentence Authority to any alcohol consumption by the appellant — without the concurrent protective measures of the information provided by the GPS and curfew conditions.
Conclusion
Ground 1 must be rejected. The evidence, including the expert evidence, supported the imposition of the impugned conditions, individually and in combination.
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