Nigro v Secretary to the Department of Justice
[2013] VSCA 213
•16 August 2013; 13 December 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0079 | |
| CASIMIRO NIGRO | Appellant |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE | Respondent |
| S APCR 2012 0009 | |
| ADHIL GHEBRAT | Appellant |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE | Respondent |
| S APCR 2012 0088 | |
| KENNETH RAYMOND LOWE | Appellant |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE | Respondent |
| and | |
| VICTORIAN EQUAL OPPORTUNITY & HUMAN RIGHTS COMMISSION | Intervener |
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| JUDGES | REDLICH, OSBORN and PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATES OF HEARING | 24, 25 October and 6 December 2012 |
| DATE OF JUDGMENT | Orders pronounced in Lowe and Nigro on 13 December Orders pronounced in Ghebrat on 16 August 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 213 |
| JUDGMENTS APPEALED FROM | Secretary to the Department of Justice v AG (Unreported, County Court of Victoria, Judge Pullen, 1 December 2011) Director of Public Prosecutions v CN (Unreported, County Court of Victoria, Judge McInerney, 15 March 2012) |
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PUBLIC LAW – Appeal – Supervision orders under the Serious Sex Offenders (Detention and Supervision) Act2009 – Nature of appeal from finding that offender an unacceptable risk – Appeal by way of rehearing – Whether conclusion of unacceptable risk was plainly wrong – Appeal from discretionary decision to make supervision order and terms of order attracts principles in House v The King (1939) 55 CLR 499 – Sections 96, 84, 88, 100, 101 and 102 of the Serious Sex Offenders (Detention and Supervision) Act2009 – Dwyer v Calco (2008) 234 CLR 124; Mobilio v Balliotis [1998] 3 VR 833 followed.
CHARTER – Construction of s 9 of the Serious Sex Offenders (Detention and Supervision) Act2009 – Principle of legality – Whether interpretive obligations under the Charter of Human Rights and Responsibilities Act 2006 applies to finding that offender an ‘unacceptable risk’ – Construction which least infringes human rights – R v Momcilovic (2010) 25 VR 436; Momcilovic v The Queen (2011) 245 CLR 1 considered – Whether s 9 Charter compliant – Whether Charter requires a judicial discretion under s 9(7) to be construed as subject to an implied limitation – Implied limitation inconsistent with text and purpose of the Act – Conditions of supervision order – Additional conditions – Whether conditions must constitute minimum interference with human rights – Section 15(6) exempts core conditions.
PUBLIC LAW – Supervision orders – ‘Unacceptable risk’ – Section 9(1) – Test to be applied – Degree of likelihood of risk – Whether real likelihood, though not necessarily more likely than not that offender will commit offence – Section 9(5) – Consequences if risk eventuates – Placement of offence within a continuum of seriousness inappropriate – The Secretary to the Department of Justice v AB [2009] VCC 1132 in part disapproved .
PUBLIC LAW – Standard of proof of unacceptable risk – High degree of probability – Section 9(2) – Evidence Act 2008, s 140 – Application of Briginshaw principle – Acceptable and cogent evidence – Fardon v Attorney-General (Qld) (2004) 223 CLR 575 considered – Queensland, Western Australian and New South Wales regimes considered – Means of managing risk – Section 9(4) – Whether ways in which offender might manage risk may be taken into account. Sections 9(1), 9(2), 9(3), 9(4), 9(5), 9(7), s 15(6) Serious Sex Offenders (Detention and Supervision) Act2009.
SUPERVISION ORDER AND CONDITIONS – Appeal of Lowe – Error in finding of unacceptable risk – Supervision order set aside.
SUPERVISION ORDER AND CONDITIONS – Appeal of Nigro – No error in finding unacceptable risk or in making supervision order – Conditions imposed unreasonable, unacceptably wide or uncertain – Conditions set aside.
SUPERVISION ORDER AND CONDITIONS – Appeal of Ghebrat – No error in finding unacceptable risk or making supervision order – Condition restricting employment unreasonable measure to ameliorate risk of re-offending – Condition set aside.
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Appearances: | Counsel | Solicitors |
For the Appellant Nigro | Ms Helen Spowart with Ms Laura McDonough | Victoria Legal Aid |
For the Respondent | Mr O P Holdenson QC with Ms C R Gwynn | Minter Ellison |
For the Appellant Ghebrat | Mr M D Stanton | Robert Stary Lawyers |
For the Respondent | Mr David Grace QC with Ms Joanna Davidson | Russell Kennedy Lawyers |
For the Appellant Lowe | Mr Chris Carr | Victoria Legal Aid |
For the Respondent | Mr David Grace QC with Ms Joanna Davidson | Minter Ellison |
| For the Victorian Equal Opportunity & Human Rights Commission | Dr S Donaghue SC | Victorian Equal Opportunity & Human Rights Commission |
REDLICH JA
OSBORN JA
PRIEST JA:
Overview
Each of these appeals is brought pursuant to s 96 of the Serious Sex Offenders (Detention and Supervision) Act2009 (‘the Act’), and challenges the making of a supervision order under s 9 and conditions attached to the order.
Each of the appellants contended that, on the facts relevant to their case, the trial judge had erred in concluding that they posed, within the meaning of s 9(1) of the Act, an unacceptable risk.[1] Each challenged the making of the supervision order under s 9(7).
[1]Ground 2(a) in the appeal of Lowe; ground 1 in the appeal of Ghebrat; ground 2(a) in the appeal of Nigro.
Resolution of these appeals requires examination of the nature of an appeal under s 96 of the Act, the meaning of ‘unacceptable risk’ in s 9(1), the proper interpretation of ss 9(2), (4), (5), (7) and 15(6), and whether the interpretation of these provisions is influenced by the Charter of Human Rights and Responsibilities Act2006 (‘the Charter’). As there were questions of construction raised concerning the provisions of ss 9 and 15 of the Act and the appropriateness of various conditions that have been imposed, the court ordered that a notice under s 35 of the Charter be served on the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’). The notices raised questions as to the interpretation of ‘unacceptable risk’ and the proper construction of other parts of s 9 of the Act and how ss 12, 13 and 21 of the Charter impact upon those questions. The notices also identified the further question of how (if at all) those human rights affect the exercise of the court’s discretion to make or not make a supervision order under s 9(7) of the Act. It will be convenient to deal with these issues in the course of addressing the proper construction of s 9 of the Act.
Summary of conclusions concerning the construction of the Act
Our conclusions concerning the construction of the Act may be summarised as follows.
The common law presumption in favour of the liberty of the subject underpins the predictive inquiry required under s 9. The test of unacceptable risk should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection. A finding of unacceptable risk is compatible with human rights under the Charter because the threshold requirement depends upon both the severity of the apprehended conduct and the likelihood that the conduct will occur. Some level of risk remains acceptable. The test of unacceptable risk enables an appropriate balancing of competing considerations.
Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence. The principle in Briginshaw[2] is relevant to an evaluation of the quality and sufficiency of the evidence. The court must be satisfied to a high degree of probability that there is an unacceptable risk. That is a standard well above the civil standard and approaching the criminal standard.
[2](1938) 60 CLR 336.
The test of unacceptable risk does not require a particular degree of risk. It need not necessarily be more likely than not. The lower likelihood of risk stated in s 9(5) is not to be confined to a particular category of offence. The likelihood may be moderate and equate to the average sex offender risk to be unacceptable in a particular case.
The potential offending should not be categorised or placed in a continuum of seriousness so as to assume that a particular level of risk must apply to that type of offending. That would remove the flexibility of the test.
When considering whether the risk is unacceptable, the prohibition in s 9(4) against considering the means of managing the risk relates to the nature of the conditions that would be imposed if a supervision order were made and their impact upon the offender. In deciding whether the risk is unacceptable the court may take into account treatment, therapy or other rehabilitative measures that the offender might engage in.
The discretion under s 9(7) as to whether to make a supervision order is not to be construed as subject to an implied limitation as a result of the Charter. It is contrary to the text and purpose of the Act to imply such a limitation. The legislature intended that once an unacceptable risk is established, and the court in the exercise of its discretion considers that a supervision order should be made, the core conditions must automatically be imposed. Section 15(6) mandates that the court ensure no additional conditions are imposed unless they constitute the minimum interference with the offender’s human rights.
Introduction
In the appeal of Lowe, it was apparent to the Court that neither party had considered the nature of an appeal under s 96 of the Act, nor the manner in which the Charter might influence the interpretation of the Act. Hence at the completion of oral argument on 25 October 2012, the Court ordered that the appellant serve the above mentioned notices under the Charter and made ancillary orders for the service and filing of submissions. Given that the pending appeals of Nigro and Ghebrat raised issues similar to those in Lowe, on 8 November 2012 the Court ordered that the appellants in those cases also serve notices under the Charter. Associated orders were made in each case for the service and filing of submissions. On 6 December 2012, the Court heard argument in the appeals of Nigro and Ghebrat, and further submissions in the appeal of Lowe. The Commission intervened[3] and made submissions concerning the influence of the Charter on the interpretation of the Act.
[3]See s 40 of the Charter.
Following argument on 13 December 2012 the Court allowed the appeal of the appellant Mr Nigro in part. We confirmed the supervision order made on 15 March 2012 together with the Conditions and Additional Conditions, save for Additional Conditions 7.2, 7.4 and 7.6, which were revoked. On the appeal of the appellant Mr Lowe, the appeal was allowed and the supervision order of 23 March 2012 was revoked. The following are our reasons for those orders in the appeals of Messrs Nigro and Lowe, and in the appeal of the appellant Mr Ghebrat for allowing his appeal in part.
For the reasons discussed below, we are of the opinion that the nature of an appeal under s 96 is by way of rehearing on the evidence before the County Court, supplemented by such further evidence as is admitted on the appeal.[4] Subject to the admission of new evidence, the principles stated in House v The King[5] apply both to the decision whether to make a supervision order and to the terms on which the order should be made. However, the test to be applied on an appeal ground directed to a determination with respect to ‘unacceptable risk’ is whether the decision is plainly wrong or wholly erroneous.[6]
[4]See [14]-[30] below.
[5](1936) 55 CLR 499.
[6]See [31]-[64] below.
The right to appeal
Section 79 of the Act provides that a proceeding under the Act, including any appeal, is civil in nature. The current appeals are not, however, brought pursuant to the general right of appeal granted to a party in a civil proceeding by s 74(1) of the County Court Act1958 but rather pursuant to the specific provisions of pt 7 of the Act.
Section 96 of the Act provides that an offender who is subject to a supervision order may appeal to the Court of Appeal against a decision made by a court:
(a)to make the order; or
(b)to renew or extend the order; or
(c)to impose conditions (other than core conditions) on the order; or
(d)to impose a particular period of operation of the order; or
(e)not to revoke the order on a review under Part 5; or
(f)to revoke the order and make a new supervision order or detention order.
Sections 97 and 98 provide the Secretary to the Department of Justice and the Director of Public Prosecutions corresponding rights of appeal.
Section 99 provides for the institution of an appeal by way of a notice of appeal and makes consequential provisions relating to such notices. It also provides by sub-s (6):
(6)Section 84 and Division 2 of Part 6 (with any modifications) apply to the hearing of an appeal under this Part.
Section 84 provides as follows:
(1)The court to which an application is made under Part 2, 3, 4 or 5 may at any time order the offender to whom the application relates to attend for a personal examination by a medical expert or any other person for the purpose of enabling that expert or other person to make a report, or give evidence, to the court.
(2)Nothing in this section empowers the making of an order that would require an offender to submit to a physical examination or in any way actively to cooperate in the carrying out of a personal examination.[7]
[7]Section 89 provides that the Court may take into account the co-operation of an offender in obtaining assessment and progress reports including a report obtained under s 84(1).
In turn, s 88 within div 2 of pt 6 provides:
(1)Subject to subsection (2) and Division 4, the ordinary rules of evidence apply to evidence given or called at the hearing under Part 2, 3, 4 or 5.
(2)In making its decision the court may receive in evidence—
(a)the offender's antecedents and criminal history;
(b)any material relied on in an assessment report or progress report relating to the offender;
(c)anything relevant to the issue contained in any medical, psychiatric, psychological or other report tendered in any proceeding against the offender for a relevant offence.
Section 112(1) provides:
(1)A progress report must address the following matters in relation to an offender—
(a)whether or not the offender has a propensity to commit relevant offences in the future;
(b)efforts made by the offender in the previous 12 months or since the last review to address the causes of the offender's sexual offending behaviour, including whether or not the offender participated in any rehabilitation or treatment programs; and
(c)if the offender has participated in any rehabilitation or treatment programs, whether or not this participation has had a positive effect on him or her;
(d)factors that might increase or decrease any identified risks;
(e)if an additional assessment of the offender has been obtained under section 108, the results of that assessment;
(f)any other relevant matters.
Section 100 further amplifies the power of the Court of Appeal to receive new evidence upon the appeal:
In considering an appeal under this Part, the Court of Appeal may—
(a) consider new evidence that is relevant to the application; and
(b)direct the Secretary to provide a new assessment report or progress report in respect of the offender.
Sections 96, 84, 88 and 100 thus enable the Court to order and/or receive into evidence an updated assessment report previously obtained under s 109, or progress report previously obtained under s 110.[8]
[8]Section 109 provides:
(1)An assessment report must address the following matters in relation to the offender—
(a)whether or not the offender has a propensity to commit relevant offences in the future;
(b)the pattern or progression to date of sexual offending behaviour on the part of the offender and an indication of the nature of any likely future sexual offending behaviour on his or her part;
(c)efforts made to date by the offender to address the causes of his or her sexual offending behaviour, including whether he or she has actively participated in any rehabilitation or treatment programs;
(d)if the offender has participated in any rehabilitation or treatment programs, whether or not this participation has had a positive effect on him or her;
(e)relevant background of the offender, including developmental and social factors and other offending behaviour;
(f)factors that might increase or decrease any identified risks;
(g)if an additional assessment of the offender has been obtained under section 108, the results of that assessment;
(h)any other relevant matters.
(2)An assessment report must state—
(a)the medical expert's assessment of the risk that the offender will commit another relevant offence if released in the community and not made subject to a detention order or supervision order; and
(b)reasons for that assessment.
(3)In stating an assessment and the reasons for it under subsection (2), the medical expert may have regard to any additional assessment obtained under section 108 in respect of the offender.
The powers to obtain new evidence have a similar underlying purpose to that identified by the High Court in CDJ v VAJ (No 2)[9] where McHugh, Gummow and Callinan JJ said of s 93A(2) of the Family Law Act 1975 (Cth):
Its principal purpose is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedure…[10]
[9](1998) 197 CLR 172.
[10]Ibid 201 [109].
It may be noted that once again the power to receive new evidence is not that provided for in r 64.22(3) of the Supreme Court (General Civil Procedure) Rules 2005 but rather a specific statutory power.
In turn, s 101 gives the Court broad power on an appeal under div 7 to make any order it considers appropriate,[11] including orders to confirm a decision; vary or revoke orders made below; or to set aside a decision and remit the matter to the court below with or without directions.
[11]Section 101:
(1)On an appeal under this Division, the Court of Appeal may make any order the Court considers appropriate including an order to—
(a)confirm the decision; or
(b)revoke the supervision order or the renewed supervision order; or
(c)revoke the detention order or renewed detention order; or
(d)revoke the interim order or extended interim order; or
(e)if the relevant decision was to vary or add a condition to a supervision order, revoke the variation or revoke or vary the condition; or
(f)if the decision was to revoke a supervision order or detention order or an interim order, make an order reviving the order; or
(g)if the decision was to revoke a supervision order and make a detention order, revoke the detention order and restore the supervision order; or
(h)set aside the decision and remit the matter to the court which made that decision, with or without any directions.
(2)If the Court of Appeal remits a matter to a court under subsection (1)(h), that court may make or renew a supervision order or detention order or make or extend an interim order in respect of the offender even if—
(a)the offender is not then an eligible offender because he or she is no longer serving a custodial sentence, except where—
(i)the relevant conviction has been set aside on appeal; or
(ii)his or her sentence in respect of that offence is altered so that he or she would not have been an eligible offender had the amended sentence been the original sentence; or
(b)the order to be renewed or extended has expired—
as the case requires.
(3)A direction under subsection (1)(h) may include directions as to whether or not the court to which the matter is remitted should be constituted by the judge who made the decision appealed from.
Section 102 enables the Court to make an interim order when it remits a matter to a court under s 101(1)(h) and the making of the interim order is justified and is in the public interest.
The main purpose of the Act set out in s 1(1) and the form of the appeal provisions as a whole reflect an intention that the Court will exercise its powers generally in the public interest and more particularly to enhance the protection of the community.
An appeal is a creature of statute.[12] In Dwyer v Calco,[13] the High Court referred to the classification of appeals adopted by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd:
(i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. [14]
[12]Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 (‘Dwyer v Calco’), 128 [2]; Fox v Percy (2003) 214 CLR 118, 124 [20].
[13](2008) 234 CLR 124.
[14]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 (‘Sperway’), 619–622, cited in Dwyer v Calco, (2008) 234 CLR 124, 128 [2]; see also Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297-298 (Glass JA).
The Court went on to note that:[15]
But these categories cannot represent a closed class and particular legislative measures, such as those with which this appeal is concerned, may use the term ‘appeal’ to identify a wholly novel procedure or one which is a variant of one or more of those just described. It was in that vein that McHugh pointed out in Eastman v The Queen:
Which of these meanings the term ‘appeal’ has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be.[16]
[15]Dwyer v Calco (2008) 234 CLR 124, 128 [2].
[16](2000) 203 CLR 1, 40-41 (citations omitted).
As such, the nature of an appeal right is to be determined by the proper construction of the statute conferring that right.[17]
[17]See also Elliott v The Queen (2007) 234 CLR 38, 42 [7].
In our view, s 96 should be understood to provide for an appeal by way of rehearing of the same general character as provided for in s 74 of the County Court Act 1958 ‘in which the appellate court proceeds on the basis of the record before the court from which the appeal is taken, together with any fresh evidence which may be admitted pursuant to such powers to admit such evidence as may be conferred upon the appellate court.’[18]
[18]Dwyer v Calco, 133 [22]; Fox v Percy (2003) 214 CLR 118, 124-5 [20]-[22].
In Allesch v Maunz,[19] the High Court considered the nature of an appeal pursuant to s 93A of the Family Law Act 1975 (Cth) and distinguished an appeal by way of rehearing from other forms of appeal. Gaudron, McHugh, Gummow and Hayne JJ stated:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.[20]
[19](2000) 203 CLR 172.
[20]Ibid 180-1 [23] (emphasis added; citations omitted).
In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission,[21] Gleeson CJ, Gaudron and Hayne JJ put the relevant distinctions this way:
It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.
If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.[22]
[21](2000) 203 CLR 194 (‘Coal v Allied’)
[22]Ibid 203-4 [12]-[14] (citations omitted; emphasis added).
In the present case, the Court’s powers to obtain and receive new evidence on appeal make it clear that the appeal is not one in the strict sense.
On the other hand, the forms of order specifically contemplated by s 101(1) are each expressed by reference to the pre-existing decision or order and include the power to remit the matter for re-decision. These powers and in particular the last- mentioned power (which is complemented by the power to make interim orders) point to an intention that the appeal be by way of rehearing and not by way of an appeal de novo. Although the power to make any order the Court considers appropriate may be regarded as equivalent to a power to make such order as the Court thinks fit, the power here in issue is fundamentally different from that considered in cases such as Re Coldham; Ex parte Brideson (No 2).[23] This is because, unlike the statutory powers under consideration in Brideson (No 2), the Court’s powers here culminate in a power to remit for re-decision by the court below.
[23](1990) 170 CLR 267 (‘Brideson (No 2)’), 272 discussed in Coal and Allied (2000) 203 CLR 194, 204 [15]-[16].
Thus, in the event of an appeal by the Secretary pursuant to s 97 against the refusal of the County Court to make a supervision order, the powers of the Court on appeal are not expressed to include a power to make the supervision order that the Court holds ought to have been made pursuant to pt 2 of the Act. Rather, if the Court exercised the specific powers enumerated, the Court would set aside the decision to refuse to make the order and remit the matter for rehearing before the County Court. Whilst the powers specifically enumerated under s 101 of the Act are expressed to be included within the general power to make any appropriate order, the omission of an express power to make supervision orders suggests that the intention of Parliament was that the jurisdiction to make supervision and detention orders remain with the County Court. This is particularly so given the decision of Parliament to expressly grant the Court a power to make an interim order upon remitter.
In our view, the statute is properly understood as conferring a right to appeal by way of rehearing upon the evidence before the County Court and any additional evidence admitted pursuant to the specific powers under s 100 and div 2 of pt 6 of the Act.
The question then arises as to what approach the Court should take upon an appeal by way of rehearing to a decision of the character here involved. It is plain that the ultimate decision by the County Court to exercise its powers under s 9(7) of the Act is a discretionary one in the sense referred to by Gleeson CJ in Fardon v Attorney-General(Qld)[24] when considering analogous legislation:
The Act is a general law authorising the preventive detention of a prisoner in the interests of community protection. It authorises and empowers the Supreme Court to act in a manner which is consistent with its judicial character. It does not confer functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power. It confers a substantial discretion as to whether an order should be made, and if so, the type of order. If an order is made, it might involve either detention or release under supervision. The onus of proof is on the Attorney-General. The rules of evidence apply. The discretion is to be exercised by reference to the criterion of serious danger to the community. The Court is obliged, by s 13(4) of the Act, to have regard to a list of matters that are all relevant to that criterion. There is a right of appeal. Hearings are conducted in public, and in accordance with the ordinary judicial process. There is nothing to suggest that the Supreme Court is to act as a mere instrument of government policy. The outcome of each case is to be determined on its merits.[25]
[24](2004) 223 CLR 575 (‘Fardon’).
[25]Ibid 592 [19] (emphasis added).
A substantial discretion of the type to which Gleeson CJ refers involves in part the assessment of what relative weight should be given to a series of potentially relevant considerations. No particular opinion as to such weighting can be uniquely right and the judgment is thus discretionary.[26]
[26]NOM v DPP [2012] VSCA 198, [47] (‘NOM’).
An appeal in respect of such a decision is subject to the principles stated in House v The King:
Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
‘If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.’[27]
[27]Coal and Allied (2000) 203 CLR 194, 205 [21] (citations omitted), citing House v The King (1936) 55 CLR 499, 505. See also NOM [2012] VSCA 198, [41]-[48] and Italiano v The State of Western Australia [2009] WASCA 116, [4]-[6].
Furthermore, in our view the determination of the intermediate question of whether the offender poses an ‘unacceptable risk’ of committing a relevant offence in the absence of a supervision order is also so much a question of value judgment based on a matrix of fact and degree that this Court should not interfere with the determination of the County Court unless it is plainly wrong. The decision is one as to where the risk falls within a range of like risks. It depends upon the opinion of a judge familiar with a range of risks within which the relevant risk occurs.[28] A qualitative assessment of this kind should not be easily disturbed. This approach reflects the general principles stated in Coal and Allied that, ordinarily, if there has been no further evidence admitted and there has been no relevant change in the law, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker.[29]
[28]Cf Fleming v Hutchinson; Conroy v Veit (1991) 66 ALJR 211 applied by Phillips JA in Mobilio v Balliotis [1998] 3 VR 833, 858.
[29]Coal and Allied (2000) 203 CLR 194, 203-4 [12]-[14]; see [33] above.
The Secretary submits that the determination as to whether there is an ‘unacceptable risk’ should be regarded as subject to the principles stated in House v The King. The determination of ‘unacceptable risk’ might be regarded as discretionary in the general sense identified by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied:
‘Discretion’ is a notion that ‘signifies a number of different legal concepts’. In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.[30]
[30](2000) 203 CLR 194, 204-5 [19] (citations omitted; emphasis added).
In Dwyer v Calco, the High Court made clear, however, that the nature of the appellate enquiry in cases such as the present must flow from the terms of the particular statute and not from the broad application of a general notion of discretionary judgment:
The judicial review of administrative decisions made in the exercise of a statutory power or ‘discretion’ attracts a body of principles which in this Court may conveniently be traced back to what was said by Latham CJ in Shrimpton v The Commonwealth. The exercise of what was called in House v The King ‘a judicial discretion’ to impose a particular sentence or to make a particular order under a power conferred by family provision legislation, attracts, upon subsequent exercise of a ‘general appellate power’, principles somewhat akin to those developed in public law. The well-known passage in House v The King illustrates this.
Rather different is the situation where statute creates a legal norm, in this litigation that of a ‘serious injury’, and does so in terms which require for their operation in a given dispute the identification and evaluation of facts and assigns that fact-finding in the first instance to a judge sitting alone. The occasion for appropriate appellate intervention will depend upon the nature and scope of the particular statutory appeal for which the legislature provides. That inquiry is not advanced by describing the overall decision-making process of the primary judge as ‘discretionary’.[31]
[31]Dwyer v Calco, (2008) 234 CLR 124, 138-9 [39]-[40] (citations omitted; emphasis added).
The sense in which Brooking JA used the term ‘discretionary judgment’ in Mobilio v Balliotis[32] reflected an awareness that the application of it does not necessarily resolve the nature of enquiry upon an appeal:
The phrase ‘discretionary judgment’ tends to evoke the notion of a discretionary determination to grant or withhold relief, as by granting or refusing custody of a child, or an interlocutory injunction, or an extension of time, or an order dismissing a proceeding for want of prosecution. But it is clear that the principles in House have a wider scope, as indeed that very decision shows (for it held a sentence to be a discretionary judgment).
Some will prefer to speak not only of ‘discretionary judgments’ but also of ‘quasi-discretionary judgments’ (a phrase used in New South Wales), or instead to say that House applies not only to discretionary judgments but also to judgments which sufficiently resemble them to attract the same principles. It seems to me not to matter whether this is done or instead the single term ‘discretionary judgment’ is used for brevity to cover all determinations which are within the scope of House, provided that the label is not allowed to obscure the question falling for determination in the particular kind of case under consideration.
In the family provision case of Singer v Berghouse,[33] Mason CJ, Deane and McHugh JJ in holding that House applied to the review of a decision on ‘the jurisdictional question’, laid it down that the primary judge ‘was in essence making a value judgment in much the same way as a primary judge makes a sound discretionary judgment in personal injury cases when he or she assesses the quantum of damages say for pain and suffering, and for loss of amenities of life.’ Accordingly, it had to be shown that the judge had made an ‘entirely erroneous estimate’ of what, in the circumstances, was an adequate provision for the applicant's proper maintenance.[34]
[32][1998] 3 VR 833 (‘Mobilio’).
[33](1994) 181 CLR 201, 211-2.
[34]Ibid 839 (Ormiston JA 853-4 and Phillips JA 858-9, with whom Charles JA 860 agreed, preferred to use the term discretionary judgment in a narrower sense).
Ultimately, Brooking JA held:
… we should treat the ultimate finding — that ‘serious injury’ had not been shown — as, or as akin to, a discretionary determination. By this I mean no more and no less than that the nature of the determination is such that it should be held to be subject to the principles in Housev The King: I simply apply to it the convenient label ‘discretionary’ — or, if you will, ‘quasi-discretionary’ — to show that it is of such a nature as to be governed by House.[35]
[35]Mobilio [1998] 3 VR 833, 842 (citations omitted).
Nevertheless, the reasons of Winneke P[36] make clear that he found it unnecessary to characterise the judge’s finding on the question of serious injury as ‘discretionary’ in order to dispose of the appeal. It was enough to say that, in the circumstances of that case, where the judge at first instance had the advantage of seeing and hearing the appellant and other medical witnesses, this Court should not interfere with the judge’s decision in the absence of demonstration of specific error, unless the Court is satisfied that it was plainly wrong.[37]
[36]Ibid 834-5.
[37]Ibid 835.
Ormiston JA said:
It is enough to say that the expressions here in question, ‘serious long-term impairment’ and ‘severe long-term mental … disturbance or disorder’, each require, so far at least as the words ‘serious’ and ‘severe’ are concerned, the judge to make a qualitative assessment which cannot easily be disturbed on appeal unless error can otherwise be demonstrated. In other words I would agree that, in the absence of specific error, a finding as to ‘serious injury’ is not open to attack on appeal unless it is shown to have been ‘plainly wrong’. On the other hand it should be remembered that the task of the judge at first instance under this section is not to exercise a discretion, in the sense of having some choice as to what course to take, but the provision requires a decision whether the proven facts satisfy one or other of the statutory descriptions. Subject to these observations, I would, with respect, agree with what Phillips JA says on this issue.[38]
[38]Ibid 854 (citations omitted).
Phillips JA (with whom Charles JA agreed) said:
I agree with Brooking JA that the ultimate task of deciding under s 93(6) on which side of the line a case falls for ‘serious injury’ purposes is such as to warrant our concluding that, in the absence of specific error, the decision will be set aside only if it is plainly wrong or wholly erroneous.
That expression derives (as Brooking JA has demonstrated) from cases involving appeals from the assessment of general damages for personal injury. The similarity between such cases and this is brought home, I think, by what was said by Crockett and Southwell JJ in Humphries v Poljak immediately before their Honours used the expressions which have since been so often quoted: that is, that the injury is to be ‘judged by comparison with other cases in the range of possible impairments or losses.’ It is a decision where the injury falls within a range of like injuries. As the High Court said in Fleming v Hutchinson:
In each case the Court must apply the test of ‘seriousness’ by evaluating the plaintiff's condition and such an evaluation does not depend upon legal principle. It depends upon the opinion of a judge familiar with a range of conditions within which the instant condition occurs.
That is why such a decision should be set aside only for specific error or if plainly wrong or wholly erroneous.
In consequence of this, however, Brooking JA concludes that a decision of serious injury or no should be characterised as either a ‘discretionary judgment’ or ‘akin to a discretionary judgment’ in the sense that, when appealed, it is such as to attract the principles of House v R and Australian Coal & Shale Employees’ Federation v Commonwealth. With respect, I see nothing to be gained by taking that further step of characterisation in this instance, where ultimately the application of a statutory test is in issue. It seems to me, perhaps simplistically, that either that further characterisation adds nothing to what has already been said about the difficulty an appellant confronts when the decision under appeal involves a value judgment and questions of degree; or, if it does add something, then what it adds is not altogether clear and the characterisation may not be apt in every case.
In that regard two considerations in particular weigh with me. First, this is not a case of a true discretion; that is not in doubt and, while the assessment of damages, especially for pain and suffering, provides some analogy with the present case (in that both involve an individual evaluation of the facts and questions of degree), the analogy is far from perfect. Once it was decided that on appeal from an assessment of damages by judge alone error still had to be shown, the obvious question was how much error when general damages were at issue; was it enough that the appellate court would have itself awarded something different, even if not very different? (In another context MacBean v Trustees Executors and Agency Co Ltd provides an early example in Victoria of the problem, if not now the solution.) It was in rejecting mere difference of opinion on appeal as bespeaking error below that appellate courts came to emphasise the element of discretion involved in the decision-making for the purpose of identifying the restraints upon their interfering. (It is enough here to refer to the judgment of Priestley JA in Moran v McMahon where the development of this is traced.) Like considerations may well obtain here because of the similarities (the existence of a value judgment and questions of degree), but there remain differences, if only because the assessment of damages allows for a variety of answers which is not so when the question is the simpler one: Is it established that the applicant sustained ‘serious injury’? That admits only of a yes or no, despite the value judgment that underlies it.[39]
[39]Ibid 858-9 (citations omitted).
We respectfully agree with the approach of Phillips JA. It accords with the distinction subsequently drawn by the High Court in Dwyer v Calco which we have quoted above.
The practical advantage that the County Court enjoys in assessing the evidence at first instance, and to which Winneke P referred, also favours this conclusion. In one of the present cases, the appeal of Ghebrat, the trial judge had the advantage of hearing two witnesses give expert evidence together in a ‘hot-tub’. This epitomises the sort of situation where it must be acknowledged that her Honour enjoyed an advantage in observing this interaction, which this Court does not have.[40]
[40]See also the discussion by Campbell JA in R v Ford (2009) 201 A Crim R 451, 474-5 [74].
The question of ‘unacceptable risk’ involves a significantly more complex value judgment than a judgment directed simply to the question of whether an offender is likely to commit an offence if released to the community without supervision. The current statute differs materially from the Serious Sex Offenders Monitoring Act2005 (‘the Monitoring Act’), of which Callaway AP (with whom Buchanan and Coldrey JJA agreed) observed:[41]
The appeal is, in part, an appeal against an exercise of discretion. The court ‘may’, not ‘must’, make an extended supervision order. The restrictions on appellate intervention in cases such as House v R apply to that exercise of discretion. Those restrictions do not apply to the finding, by the court below, that the appellant is likely to commit a relevant offence if released in the community on completion of his sentence and not made subject to an extended supervision order. That is what might be called ‘an ordinary appeal’ although, having regard to the terms of s 39 and the lack of any power to receive further evidence, it is probably an appeal in the strict sense. It is our duty to determine whether the finding was flawed, but the onus is on the appellant to demonstrate error.[42]
[41]TSL v Secretary to the Department of Justice (2006) 14 VR 109, 118 [17].
[42]Section 11 of the Monitoring Act provided:
(1)A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.
(2)The Secretary has the onus of proving the existence of the likelihood referred to in sub-section (1).
(3)In determining whether the offender is likely to commit a relevant offence in the circumstances described in sub-section (1), the court must, subject to sub-section (5), have regard to —
(a)any assessment report filed in court, whether by or on behalf of the Secretary or the offender; and
(b)any other report made, or evidence given, by a medical expert —
and may have regard to anything else that it considers appropriate.
Section 11 was further considered in RJE v Secretary to the Department of Justice (2008) 21 VR 526.
In our view, the same approach should be adopted in the present case as that taken by this Court in Mobilio with respect to the assessment of whether something constitutes a ‘serious injury’.[43] Unlike the legislation under consideration in Dwyer v Calco, there is no requirement in legislation in question in the present case that this Court ‘shall decide for itself’ whether the evidence demonstrates that a specified standard has been met.
[43]Mobilio, 842.
In IK v Secretary to the Department of Justice,[44] Harper JA (with whom Buchanan and Hansen JJA agreed) said with respect to an appeal of the current kind:[45]
The Secretary has the burden of proving that the offender poses an unacceptable risk of committing a relevant offence; but even if that burden is discharged, the court may in its discretion make no order. On the other hand, of course, if the court does reach the required level of satisfaction, then a supervision order may be made.
The legislation confers a discretion upon the judge by whom the application is determined. That discretion, being conferred on the primary judge and not on a court of appeal, will not be interfered with on appeal unless some error of principle has occurred in its exercise. Such an error may not be identifiable in the reasons given by the judge for her or his conclusion, but that conclusion may be so clearly wrong that an error in the application of principle must have occurred.
That appears, in effect, to be the foundation upon which the first of the grounds of appeal is based. In his written submissions, the appellant contends that ‘[t]he Court could not be satisfied in the circumstances that the [appellant] posed an unacceptable risk of committing a relevant offence.’
Even so, it would not generally be necessary for a court hearing an appeal from the judge who granted an application of the kind made by the Secretary to examine at length the evidence upon which, at first instance, the success of the application was based. In most circumstances, it would be proper for the appeal court to limit its consideration of the evidence to the extent necessary to determine whether or not there was a basis upon which the decision of the primary judge could be justified (no matter what, were the decision its own, the appeal court would itself have decided).[46]
[44][2012] VSCA 12.
[45][2012] VSCA 12, [30]-[33].
[46]Ibid [30]-[33] (citations omitted).
When he came to his conclusions, Harper JA stated:
The question which must now be directly confronted is whether, on the basis of this evidence, there is any error in principle in her Honour’s conclusion that the appellant posed an unacceptable risk of committing a relevant offence if a supervision order is not made; and, given that he did pose such a risk, that a supervision order should be made notwithstanding the residual discretion to decline to make it.
…
... In these circumstances, her Honour was in my opinion amply justified in concluding that she had before her acceptable, cogent evidence pointing with a high degree of probability to the conclusion that ‘that there is an unacceptable risk of the [appellant] committing relevant further offences unless a supervision order is made.’
Having reached that conclusion, the residual discretion remained: her Honour might, in the exercise of that discretion, and despite her conclusion about the appellant posing an unacceptable risk, have declined to make a supervision order. But the judge’s decision to eschew that course was in my opinion open to her. There is, accordingly, no basis upon which this Court can interfere. [47]
[47]Ibid [65], [67]-[68].
We respectfully agree that the principles in House v The King apply to an appeal with respect to the County Court’s ultimate exercise of discretion upon an application for a supervision order. If, however, the ground of appeal is directed to a conclusion by the County Court that the appellant constituted an ‘unacceptable risk’, then the test to be applied is simply whether that conclusion was plainly wrong or wholly erroneous. This test flows from the nature of the statutory task and not the application of the principles relating to discretionary judgments. In substance, this was the test that Harper JA applied.
It is submitted on behalf of the appellant Mr Lowe that:
(a) the purpose of the Act would be facilitated by the Court of Appeal making its own assessment of the relevant facts as at the date of the appeal;
(b) the nature of the Court’s powers encourage the view that it is intended to make its own assessment of the relevant risk upon the evidence before it;
(c) a supervision order is not final in the sense that a jury verdict is and therefore lends itself more readily to re-evaluation;
(d) the satisfaction of the relevant court as to the question of unacceptable risk involves a choice between one of two answers and is not to be compared with the exercise of a sentencing discretion; and
(e) the decision is akin to an evaluation of probative value as against prejudicial effect and must be carried out by the appellate court for itself.[48]
[48]McCartney v The Queen [2012] VSCA 268, [32]-[45] (‘McCartney’).
We are not persuaded that the main purpose of the Act supports the view that this Court should carry out its own assessment of unacceptable risk in the absence of specific error or an otherwise plainly wrong conclusion.
Rather, the broad nature of the factual enquiry in issue encourages the view that this Court should be reluctant to interfere with the decision of a judge who has had the benefit of hearing the oral evidence concerning a potentially complex matrix of fact.
This Court is granted ample powers to ensure that its decision does not proceed on a basis that has been superseded by the progress of time after the initial making of the order in issue, but this does not detract from the view that the primary hearing is intended to occur before the judge below.
The fact that a supervision order is not ‘final’ in the same sense as a jury verdict or a sentence directs attention back to the relevant statutory scheme. The Act provides for the fixing of the term of a supervision order (s 12); the expiry and renewal of supervision orders (ss 25-31); the periodic review of supervision orders (s 65); and the review of conditions of supervision orders (s 77). The scheme does not demonstrate an intention other than that the court at first instance is intended to have the primary role in the ongoing assessment of the appropriateness of a supervision order.
Further, whilst it is true that satisfaction of the relevant test of unacceptable risk poses a single ultimate issue, that issue falls to be determined by way of a multi-factorial assessment of when a risk falls within a particular range. As such, it is a consideration of like kind to that raised by the assessment on appeal of ‘serious injury’.
We do not accept the first appellant’s submission that the issue is akin to the assessment of the admissibility of a particular piece of evidence. Appeals against decisions not to exclude evidence pursuant to s 137 of the Evidence Act 2008 contemplate that the Court will, as was stated in McCartney:
review the record of the relevant evidence as actually presented to the jury and can assess, in the context of the trial as a whole, whether there was a danger of unfair prejudice to the accused and, if so, whether it outweighed the probative value of the evidence.[49]
[49]Ibid [50].
On such an appeal, the factual matrix is not in dispute and the appellate court is in as good a position as the judge at first instance to determine the relevant question.[50] In contrast, the present cases require a potentially broad and multi-faceted enquiry directed to a decision in the public interest, where, as we have said, the Court should pay due regard to the advantages enjoyed by the judge at first instance.
[50]Ibid [38].
Accordingly, in our view, the appeal is one by way of rehearing on the evidence before the County Court supplemented by such further evidence as is admitted on the appeal. Subject to the admission of new evidence, the principles stated in House v The King apply both to the ultimate decision as to whether to make a supervision order and as to the terms on which such an order should be made. On the other hand, the test to be applied on an appeal ground directed to the County Court’s determination with respect to ‘unacceptable risk’ is simply whether it was plainly wrong or wholly erroneous.
Construction of the Serious Sex Offenders (Detention and Supervision) Act2009
There is a long history of legislative schemes for preventative detention of offenders who are regarded as a danger to the community. In addressing the lawfulness of such a system, Gleeson CJ observed in Fardon:
Subject to the Constitution, as a general rule it is for the federal Parliament, and the legislatures of the States and Territories, to consider the protection of the safety of citizens in the light of the rights and freedoms accepted as fundamental in our society. Principles of the common law, protective of such rights and freedoms, may come into play in the application and interpretation of valid legislation.[51]
[51](2004) 223 CLR 575, 590 [14].
The legislature has chosen the way in which the criminal justice system should respond to the case of the prisoner who continues to represent a serious danger to the community upon release. Because predictions of future danger may be unreliable, it has, as a matter of policy, postponed the time for prediction until closer to the point of the prisoner’s release.
In turn the common law presumption in favour of the liberty of the subject underpins the nature of the predictive inquiry required under s 9. The right to personal liberty is the most elementary and important of all common law rights, identified by Blackstone ‘to be an absolute right vested in the individual by the immutable laws of nature’ which had never been abridged by the laws of England ‘without sufficient cause’.[52] The common law has continued to attach ‘momentous significance’ and ‘supreme importance’ to personal freedom.[53]
[52]See Williams v The Queen (1986) 161 CLR 278, 292 (Mason and Brennan JJ).
[53]Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54, 76-7 [86]-[88] (Black CJ, Sundberg and Weinberg JJ).
The right to liberty and autonomy explains why the concept of ‘unacceptable risk’ should be interpreted so as to limit the enjoyment of that right only to the extent that is reasonably necessary to give effect to its legislative purpose. Such an approach accords with the canon of construction that a statute which purports to impair a right to personal liberty is to be interpreted, if possible, so as to respect that right.[54] The role of the principle of legality in the task of construction was referred to by French CJ in Momcilovic v The Queen[55] in these terms:
It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statute be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law.
[54]In re Bolton; ex parte Beane (1987) 162 CLR 514, 523 (Brennan J).
[55](2011) 245 CLR 1, 46 [43] (‘Momcilovic’).
The primary purpose of the Act is to enhance the protection of the community by requiring eligible offenders who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision.[56] The secondary purpose is to facilitate the treatment and rehabilitation of such offenders.[57] The statutory regime thus contemplates that some level of risk may remain acceptable even for offenders who have been imprisoned for the most serious of sexual offending. In Attorney-General (Qld) v Ellis, the Queensland Court of Appeal considered that the paramount consideration in making a decision under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – which mirrors s 9 of the Act – is the adequate protection of the community.[58] The Court in Ellis emphasised that adequate protection does not mean that the prisoner can only be released on supervision if there is no risk to the community. It quoted with approval a passage from Attorney-General (Qld) v Francis[59] in which it was said that ‘the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.’[60]
[56]Section 1(1).
[57]Section 1(2).
[58]Attorney-General for the State of Queensland v Ellis [2012] QCA 182 (‘Ellis’).
[59][2007] 1 Qd R 396 (‘Francis’).
[60]Ellis [2012] QCA 182, [21]; see Francis [2007] 1 Qd R 396, 405 [39].
Section 9 of the Act is in these terms:
When may a court make a supervision order?
(1)The court may make a supervision order in respect of an eligible offender only if the court is satisfied that the offender poses an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community.
(2)On hearing the application, the court may decide that it is satisfied as required by subsection (1) only if it is satisfied—
(a) by acceptable, cogent evidence; and
(b) to a high degree of probability—
that the evidence is of sufficient weight to justify the decision.
(3)Subject to this Division, in determining whether or not the eligible offender poses an unacceptable risk as set out in subsection (1), the court must take into account—
(a)subject to section 113, any assessment report or progress report filed in court, whether by or on behalf of the Secretary or the offender; and
(b)any other report made, or evidence given, in relation to the application; and
(c) anything else the court considers appropriate.
(4)In determining whether or not the offender poses an unacceptable risk as set out in subsection (1), the court must not consider the means of managing the risk or the likely impact of a supervision order on the offender.
(5)For the avoidance of doubt the court may determine under subsection (1) that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not.
(6)The Secretary has the burden of proving that the offender poses an unacceptable risk of committing a relevant offence.
(7) If the court is satisfied as required by subsection (1), the court may—
(a) make a supervision order; or
(b) make no order.
The Act, which came into operation on 1 January 2010, is the successor to the Monitoring Act, which came into operation on 26 May 2005.
Section 11 of the Monitoring Act provided that a court may only make an extended supervision order:
if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence …
The power under s 11 permitted interference with the liberty of a person who would otherwise be at large following completion of sentence. Cases concerned with that legislation approached the task of construction on the basis that the legislature had made provision for the fact that there would be an infringement of personal liberty by requiring satisfaction ‘to a high degree of probability.’ In addition the cases recognised that, where a choice of interpretations is available, ordinary principles of construction favour the interpretation which produces the least infringement of common law rights – the right to be at liberty. Hence, Maxwell P and Weinberg JA in RJE v Secretary to the Department of Justice adopted the strongest of the available meanings of the term ‘likely’.[61]
[61](2008) 21 VR 526, 537 [37] (‘RJE’).
The court will not impute to the legislature an intention to curtail such a fundamental right save to the extent that the intention is clearly manifested by unmistakable and unambiguous language that indicates that the legislature has directed its attention to the right and has consciously decided upon such curtailment.[62] An example of the displacement of that right may be found in the court’s power to grant or revoke custodial and non-custodial supervision orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. That Act presupposes a level of interference with a person’s freedom or autonomy in making or varying a supervision order. Hence it was observed in NOM v Director of Public Prosecutions:[63]
The principle of legality and its particularly strong application in the context of a subject’s liberty is impliedly displaced by the unmistakable language in s 39 – to the extent the displacement, if any, is necessary for the safety of the community.[64]
[62]Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, 492 [30] (Gleeson CJ).
[63][2012] VSCA 198.
[64]Ibid [69].
Under the Act, the court must first determine whether there is an unacceptable risk. That is an evaluative task requiring an assessment of the degree of risk and the gravity of the harm that may eventuate and whether the imposition of restrictions upon the offender’s freedom is necessary to advance the purpose of the Act.
The threshold test of ‘unacceptable risk’ was considered by the High Court in Fardon[65] in the context of an attack upon the constitutional validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Section 13 of that Act is in very similar terms to s 9 of the Victorian Act and is directed to the same purpose. The question was whether certain provisions, including s 13, infringed ch 3 of the Commonwealth Constitution by vesting in the Supreme Court of Queensland functions that were incompatible with the exercise by that court of the judicial power of the Commonwealth contrary to the principles expressed in Kable v Director of Public Prosecutions (NSW).[66] The majority judgments of Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ (Kirby J dissenting) concluded that the Act was not beyond the legislative power of the State of Queensland. Section 8 provided in substance that if the court was satisfied that there were reasonable grounds for believing that a prisoner was a serious danger to the community, the court could order that the prisoner’s release from custody be supervised or that the prisoner be detained in custody for a further period. Section 13(2) provided that a prisoner was a serious danger to the community ‘if there is an unacceptable risk that the prisoner will commit a serious sexual offence if the prisoner were released from custody or if the prisoner is released from custody without a supervision order’. Section 13(3) was in identical terms to s 9(2) of the Victorian Act.
[65](2004) 223 CLR 575.
[66](1996) 189 CLR 51.
Gleeson CJ and Callinan and Heydon JJ rejected the contention that the notion of an unacceptable risk was devoid of practical content. They referred to M v M,[67] which considered ‘the magnitude of a risk that will justify a court in denying a parent access to a child’.[68] That criterion and standard was considered appropriate to the balancing of competing considerations. The primary objective of protecting the community from predatory sexual offenders by authorising involuntary detention or supervision in the interests of public safety was described by Callinan and Heydon JJ as a ‘protective rather than a punitive enactment’.[69] They considered the yardstick of an unacceptable risk, established according to a high degree of probability by acceptable and cogent evidence, as one which courts historically have had regard to in many areas of the law.[70]
[67](1988) 166 CLR 69.
[68]Fardon (2004) 223 CLR 575, 593 [22] (Gleeson CJ; 657 [225] Callinan and Heydon JJ).
[69]Ibid 654 [217].
[70]Ibid 657 [225].
Gummow J, with whom Hayne J relevantly agreed, provided guidance as to the content of the phrase ‘unacceptable risk’. He referred to a passage from the joint judgment of the court in M v M[71] where the degree of risk had been described as ‘a risk of serious harm’, ‘an element of risk’, ‘an appreciable risk’, ‘a real possibility’, ‘a real risk’ and ‘an unacceptable risk’. The phrase ‘unacceptable risk’ was considered best to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.[72]
[71](1998) 166 CLR 69.
[72]Ibid 78 [60].
The caution with which such legislation should be construed is reflected in the emphatic dissenting language in Fardon of Kirby J, who said:
The categories of exception to deprivations of liberty treated as non-punitive may not be closed; but they remain exceptions. They are, and should continue to be, few, fully justifiable for reasons of history or reasons of principle developed by analogy with the historical derogations from the norm. Deprivation of liberty should continue to be seen for what it is. For the person so deprived, it will usually be the worst punishment that our legal system now inflicts. In Australia, punishment, as such, is reserved to the judiciary in a case following an established breach of the law. For that the offender ‘can be punished [but] for nothing else’.[73]
Kirby J regarded such legislation as punitive:
Here there has been no offence; no charge; no trial. Effectively, the presumption of innocence has been removed. Instead, because of a prisoner's antecedents and criminal history, provision is made for a new form of additional punishment utilising the courts and the corrective services system in a way that stands outside the judicial process hitherto observed in Australia. …
Imprisonment is not used as punishment in advance for crimes feared, anticipated or predicted in the future.[74]
[73]Fardon, 634 [155].
[74]Ibid 636-7 [162]-[163].
He concluded that the Queensland provisions were not proportionate; that is, appropriate and adapted to a legitimate non-punitive objective.[75] He considered this result to involve an element of double punishment, as it constituted an increase to the punishment already judicially imposed by reference to the prisoner’s earlier convictions and sentence.[76]
[75]Ibid 641 [175].
[76]Ibid 643-4 [182].
Does the Charter affect the construction of s 9(1), (2),(4) or (5)?
It is necessary then to consider the interpretive obligation under s 32 of the Charter. It provides that:
32 Interpretation
(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
(3) This section does not affect the validity of—
(a) an Act or provision of an Act that is incompatible with a human right; or
(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.
The Commission submitted that the interpretive obligation required one to also have regard to s 7(2) of the Charter. It states that:
(2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
The High Court and the Court of Appeal in the Momcilovic appeals made clear that s 32(1) of the Charter does not permit an interpretation of the statutory provision which overrides the intention of Parliament in the Act.[77] Both rejected the argument that the insertion into s 32(1) of the words ‘consistently with their purpose’ was intended to reflect the approach to s 3(1) of the Human Rights Act (UK) adopted by the House of Lords in Ghaidan v Mendoza that the court where necessary ‘depart from the intention of the Parliament which enacted the legislation’.[78]
[77]R v Momcilovic (2010) 25 VR 436, 437 [74]; Momcilovic v The Queen (2011) 245 CLR 1.
[78][2004] 3 All ER 411 (Lord Nicholls).
Interpretations of statute are to be determined by the application of existing rules of construction which include the powerful presumption that ‘in the absence of express language or necessary implication, even the most general words are taken to be “subject to the basic rights of the individual”.’[79] The Court of Appeal in Momcilovic viewed s 32(1) as embracing and affirming this presumption in emphatic terms.[80] In the High Court French CJ observed that the Charter mandates an attempt to interpret statutory provisions compatibly with human rights.[81] He did not consider there to be anything in its text or context to suggest that the interpretation which it requires departs from established understandings of that process. French CJ said:
The sub-section limits the interpretation which it directs to that which is consistent with the purpose of the statutory provision under consideration. It operates upon constructional choices which the language of the statutory provision permits.[82]
[79]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, 492 (Gleeson CJ).
[80](2010) 25 VR 436, 465 [104].
[81]Momcilovic v The Queen (2011) 245 CLR 1, 50.
[82]Ibid 50.
Gummow J, with whom Hayne J agreed, also expressed the view that the reference to ‘purpose’ in such a provision as s 32(1) is to the legislative ‘intention’ revealed by consideration of the subject and scope of the legislation in accordance with principles of statutory construction and interpretation. The reasoning in Project Blue Sky Inc v Australian Broadcasting Authority[83] was said to apply a fortiori where there is a cannon of construction mandated not by the common law but by a specific provision such as s 32(1).[84] Crennan and Kiefel JJ also considered that the process referred to in s 32(1) was one of interpretation in the ordinary way. Bell J considered that the requirement of consistency with purpose in s 32(1) directs attention to the intention, objectively ascertained, of the enacting Parliament.[85]
[83](1998) 194 CLR 355.
[84]Ibid 92-3 [170]-[171].
[85]Ibid 250 [684].
Section 32(1) is not to be viewed as establishing a new paradigm of interpretation which requires courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and hence from the intention of the parliament which enacted thestatute.[86] Accordingly, as was observed in Slaveski v Smith,[87] the court must discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction essayed in ProjectBlue Sky.[88] The statute is to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality is applied. The human rights and freedoms set out in the Charter incorporate or enhance rights and freedoms at common law. Section 32(1) thus applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.[89]
[86]R v Momcilovic (2010) 25 VR 436, 459 [82].
[87](2012) 34 VR 206, 214 [20] (Warren CJ, Nettle and Redlich JJA).
[88](1998) 194 CLR 355.
[89]Slaveski 215 [23].
We approach the construction of s 9 of the Act in that way.
That said, the Commission’s primary argument relies upon what is said to be a majority view that can be identified from the division of opinion in the High Court in Momcilovic concerning the relationship between ss 32(1) and 7(2). The division of opinion was summarised in Slaveski v Smith[90] and also in Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc.[91] In Slaveski v Smith the court said:
The Court of Appeal in Momcilovic held that the interpretative task under s 32 does not involve the application of s 7(2), which needs to be considered only for the purposes of making a declaration of inconsistent interpretation under s 36. In the High Court, French CJ, Crennan and Kiefel JJ concluded that s 7(2) ‘cannot inform the interpretative process which s 32(1) mandates’ but is engaged only when and if ‘the statutory provision under consideration imposes a limit on its enjoyment’. ‘[I]t cannot be interpreted into the content of the rights and freedoms set out in the Charter’. In contrast, Gummow, Hayne and Bell JJ held that s 7(2) does inform the interpretative task to the extent that it will usually be appropriate for a court first to consider whether under s 7(2) there is scope for a justified limitation of the right in issue. It followed, as Gummow J put it, that ‘[s]ection 32(1) is directed to the interpretation of statutory provisions in a way which is compatible with the human right in question, as identified and described in Part 2, including, where it has been engaged, s 7(2). Heydon J observed that, if s 7(2) were valid, it would inform the interpretative task, but his Honour held that both s 7(2) and s 32(1) were invalid.
Hayne and Heydon JJ both dissented with respect to the final orders and Heydon J also dissented on the question of whether the appeal should be allowed.[92]
[90]Ibid 214-5 [21].
[91][2012] VSCA 91, [29]-[30] (Warren CJ and Cavanough AJA).
[92]Slaveski 214-5 [21]-[22].
Slaveski and Operation Smile have left open the question whether this Court should follow its own decision in Momcilovic or whether, as the Commission urges, it should follow the view expressed by four members of the High Court in Momcilovic that the interpretative task required by s 32 brings in the proportionality analysis under s 7(2). For reasons that follow, it is unnecessary to resolve this uncertainty. Only the Commission placed any emphasis on s 7(2) of the Charter and then only to argue that proportionality became relevant to the ambit of the discretion under s 9(7) of the Act.
The decision in Secretary, Department of Justice v AB and the finding that provisions of the Monitoring Act were not Charter-compliant
In order to address the question of how the interpretative obligation under the Charter might affect the construction of the provisions of the present Act, it is convenient to begin with the conclusion reached by Judge Ross (as he then was) in Secretary, Department of Justice v AB[93] that s 11 of the Monitoring Act was not Charter compliant. Section 11[94] specified as a threshold criteria that the court be satisfied ‘that the offender is likely to commit a relevant offence’. That test was qualified by amendment in 2009 to the effect that an offender is ‘likely to commit an offence’ if ‘there is a risk… that is both real and ongoing and cannot sensibly be ignored having regard to the nature and gravity of the possible offending’[95] and which specified that the determination that an offender is ’likely to commit an offence’ may be made where the likelihood was ‘less than more likely than not’.[96]
[93][2009] VCC 1132 (‘AB’).
[94]For its terms see n 42 above.
[95]Section 11(2A).
[96]Section 11(2B).
In his reasons for judgment, Judge Ross concluded inter alia that:
·the making of a supervision order under s 11 had profound effects on the rights to freedom of movement, privacy, freedom of association, liberty and the right not to be subject to medical treatment without his or her full free and informed consent.
·s 11 was not compatible with human rights within the meaning of s 32(1) of the Charter.
·it was appropriate to have regard to the extent to which rights might be limited by instructions and directions that may be given by the Secretary or the Parole Board under s 16, the power for which flowed automatically from the decision to make a supervision order.
·as s 11(2B) of the Monitoring Act 2005 permitted a determination that an offender was likely to commit a relevant offence on the basis of a lower threshold than more likely than not, this fortified the conclusion that the limitations on human rights were not Charter compliant.
For these reasons, we would allow the appeal and set aside conditions 7.2, 7.4 and 7.6. In all other respects we would confirm the orders appealed from.
The appeal of Ghebrat
The orders appealed from and grounds of appeal
On 11 December 2011, a judge made a supervision order against the appellant under s 9 of the Act. The order was to remain in force for three years. It had attached to it the core conditions required by s 16, and twelve additional conditions under s 17 of the Act.
Three of the additional conditions under s 17 are the subject of distinct challenge:
6.2[The appellant] must be present at the residence[221] between 11.00pm and 6.00am unless otherwise directed by the Adult Parole Board;
6.3[The appellant] must abstain from the consumption of alcohol except with the prior written consent of the Adult Parole Board;
6.6Unless otherwise directed by the Adult Parole Board, [the appellant] must not obtain paid or unpaid employment, or undertake voluntary work which involves him attending, contacting or entering into people’s homes and/or attending or entering licensed venues.
[221]The ‘Residence’ is a specified address where the appellant’s family resides ‘or where otherwise directed by the Adult Parole Board’.
By Notice of Appeal dated 2 April 2012, the appellant relies on the following grounds:
1. The learned trial judge erred in:
i.Finding that the appellant posed an unacceptable risk of committing a relevant offence if a supervision order was not made and the appellant was in the community; and
ii. Making a supervision order; and
iii. Making a supervision order of three years’ duration.
2.The learned trial judge erred, in determining that the appellant had a significant and ongoing issue with alcohol use.
3.The learned trial judge erred by giving inappropriate weight to the fact that the appellant was on methadone.
4.The learned trial judge erred by making the following conditions part of the supervision order:
i.[The appellant] must be present at the ‘Residence’ between 11pm and 6am unless otherwise directed by the Adult Parole Board;
ii.[The appellant] must abstain from the consumption of alcohol except with the prior written consent of the Adult Parole Board;
iii.Unless otherwise directed by the Adult Parole Board, [the appellant] must not obtain paid or unpaid employment, or undertake voluntary work which involves him attending, contacting or entering into people’s homes and/or attending or entering licensed venues.
Shortly prior to the hearing of the appeal, the appellant gave notice of his intention to seek to add a fifth ground:
5.The learned trial judge erred in holding that the standard to be applied pursuant to s 9(2)(b) of [the Act] when determining applications was that held in Briginshaw v Briginshaw (1938) 60 CLR 336.
We would grant leave to add ground 5 but, for reasons we will shortly discuss, reject it.
Background facts
The appellant, who is now aged 29 years, is an ‘eligible offender’ under s 4 of the Act since he was convicted in 2003 of three counts of rape relating to two separate incidents.
Of the three counts, two related to the digital penetration of a female victim. The incident when this occurred took place in the early hours of the morning of 22 December 2001.
Following being charged over this incident, the appellant was released on bail. Whilst on bail, on 24 February 2002 he committed the third count of rape. The third count involved penile penetration of a second victim in the early hours of the morning.
At the time of offending the appellant was 18 years of age, having been born on 21 April 1983. Following a plea in the County Court, on 1 March 2003 the appellant was sentenced to a total effective sentence of seven years three months’ imprisonment with a non-parole period of three and a half years on three counts of rape and one count of robbery.
On 15 May 2006, the appellant was released on parole. That parole was due to expire on 21 November 2009. On 11 March 2009, however, he was remanded in custody for offences of armed robbery and unlawful assault alleged to have been committed in August 2008.
Following a trial at which he was convicted by a jury, on 17 March 2011 a judge of the County Court sentenced the appellant to be imprisoned for those offences for three years, with a non-parole period of two years. Pre-sentence detention of 678 days was declared.
On 24 May 2011, another judge of the County Court sentenced the appellant for offences of trafficking heroin and common law assault to a total effective sentence of two months imprisonment, with 65 days being declared by way of pre-sentence detention.
The appellant appealed the March 2011 convictions, and on 12 October 2011 the Court of Appeal quashed the convictions and sentence an ordered a retrial.[222]
[222]Ghebrat v The Queen (2011) 214 A Crim R 140.
By order of the Chief Judge, on 26 October 2011 the appellant was released on bail pending the re-trial.
A notice of discontinuance was filed on 1 February 2012 by the Director of Public Prosecutions.
It is to be noted that despite further alleged offending committed whilst on parole, the appellant’s parole was not cancelled (although none of the offences allegedly committed while on parole consisted of sexual offences).
While the appellant was in custody following his arrest in March 2009, the Secretary to the Department of Justice made an application that the appellant be subjected to an Interim Extended Supervision Order or Extended Supervision Order under the Monitoring Act.
On 20 November 2009, Judge Sexton refused to make an Interim Extended Supervision Order on the basis that the making of the order was not justified or in the public interest. In doing so, she relied upon a report prepared by forensic psychologist Dr Karen Owen, dated 24 August 2009. Dr Owen opined that:
· there is no established progression of offending or extensive history of sexual offences;
· the relevant offences were committed when the appellant was aged 18 years, and he has undergone developmental changes and has had significant psychological intervention;
· the offences occurred immediately following a period of war experienced in another county for which the appellant was diagnosed with post-traumatic stress disorder; and
· the general and violent offending of the appellant causes overestimation of his sexual re-offence risk on the Static-99.
In Dr Owen’s opinion, the appellant was at moderate to high risk of committing a sexual offence. Having considered Dr Owen’s report, Judge Sexton said that she did not believe the appellant ‘likely to be a real and ongoing risk of relevant offending.’
Before the appellant was released on bail in October 2011, however, the Secretary obtained additional reports from Dr Michael Davis, dated 3 August 2011, and Dr Owen, dated 14 January 2010.[223] The Secretary contended that imposing a supervision order on the appellant was appropriate pursuant to the Act.
[223]The report was incorrectly dated 14 January 2009.
Following a three day hearing in the County Court before the primary judge, on 1 December 2011 the judge ordered that the appellant be made the subject of a supervision order commencing on 1 December 2011 and remaining in force for three years. A date of two and half years from the date of the supervision order was fixed as being the latest date for the first review of that order. The judge also imposed the core conditions required by s 16 of the Act, and two sets of additional conditions.
The primary judge found that the appellant posed an unacceptable risk of committing a relevant offence if in the community and not made subject to a supervision order. In so doing, she relied upon the reports prepared by Dr Owen, Dr Davis, and Mr Cummins. The judge had regard to the appellant’s drug use, alcohol use, background, and his own sexual abuse as part of a ‘significant number of ongoing issues’ related to the appellant’s risk of committing a relevant offence.
Dr Davis had concluded that the appellant was a ‘moderate to high’ risk of committing a relevant offence. Similarly, Dr Owen’s finding was that the appellant was as a ‘moderate to high’ risk of committing a relevant offence. Mr Cummins’ opinion was that the appellant was a ‘moderate’ risk of committing a relevant offence.
Both Mr Cummins and Dr Davis agreed the appellant required ongoing treatment in order to mitigate his risk of committing a relevant offence in the future; and both agreed that two years was an appropriate period with a review after eighteen months.
In opposing the making of the order, the appellant’s counsel submitted that while there was a risk of the appellant committing a relevant offence in the future, it was not an unacceptable risk as defined and required by the Act. He submitted that the appellant was remorseful for his sexual offending and had not committed any other sexual offences; and that since 14 December 2009 the appellant had not provided any positive drug analysis screens. Counsel acknowledged, however, that for a significant period since March 2009 – until 26 October 2011 – the appellant had been in custody.
Counsel for the Secretary relied on a significant volume of material which, he submitted, supported his submission that an order should be made, the appellant being an unacceptable risk of committing a relevant offence. In particular, he referred to the remarks of the judge sentencing the appellant on 24 May 2011 for trafficking heroin and unlawful assault, who noted that the appellant had relapsed into heroin use.
Ms Jenny Hosking, of the Sex Offender Management Branch within Corrections Victoria, gave evidence in support of the curfew sought by the Secretary. She noted that the appellant’s offences occurred in the context of attending nightclubs late at night. Since this was a ‘high-risk time’, a curfew would reduce risk of harm to the community. Ms Hosking was content with a curfew proposal of 11.00pm to 6.00am.
In deciding to make the supervision order sought, the judge took into account that Mr Cummins and Dr Davis considered that their conclusions were ‘very, very close’. They had agreed that it was probably alcohol that triggered the appellant’s previous sexual offending in 2003; and they also agreed the appellant’s alcohol and drug use remained an ongoing issue (although Mr Cummins considered alcohol was of less relevance based on the history of recent abstinence provided to him by the appellant). The judge noted that Dr Davis concluded the appellant was addicted to opiates, and Mr Cummins agreed the appellant was going to be an opiate addict for a considerable period.[224] Finally, Mr Cummins stated it was appropriate that the appellant receive treatment and be monitored; while Dr Davis agreed that whilst the appellant needed an opportunity to prove himself in the community, he also required structured supports.
[224]Both agreed that the appellant’s dosage of 120 to 130 milligrams of methadone daily was high.
Submissions of the parties
The original four grounds of appeal attacked the finding that the appellant was an unacceptable risk of committing a relevant offence if a supervision order was not made, and hence the making of the order. Further, the length of the order was criticised,[225] as were the conditions relating to curfew, alcohol consumption and conditions of employment. It was claimed that the judge erred in finding that the appellant had ‘significant and ongoing issue with alcohol abuse’, and that she gave inappropriate weight to the fact that the appellant was on methadone.
[225]On the hearing of the appeal, however, counsel conceded that if the finding that the appellant was an unacceptable risk properly was open, then the length that the order was to be in force was unobjectionable.
In support of those grounds the appellant’s counsel pointed out that the appellant was 18 years of age when he committed the relevant offences, but was now 28. He had not been convicted of any sexual offences since being released from custody, and those of which he had been convicted were of a much lower order of seriousness than the rapes. Moreover, so it was submitted, the appellant had completed sex offenders’ and anger management programs in prison, and had undergone drug and alcohol treatment. It was argued that the appellant had demonstrated insight into his offending, together with victim empathy and remorse. He was no longer abusing alcohol, was participating in a methadone program and had some history of employment while on parole. The expert opinions, it was submitted, found no sexual deviant risk factors, or that the appellant was suffering from any specific sexual problem. Dr Owen found that there is ‘no lengthy established pattern of sexual offending; and Dr Davis found that he is not a high risk offender.
The Secretary’s counsel submitted that the finding that the appellant was an unacceptable risk was open on the evidence. It was pointed out that the two incidents involving rape were a mere 18 days apart (the second occurring whilst the appellant was on bail), and occurred in the early hours of the morning in the vicinity of nightclubs in South Yarra. The judge had referred to a ‘significant number of ongoing issues’, alcohol being one. She had not, it was submitted, singled out any particular issue, but rather it was the sum of them that was important. Rather than methadone treatment, it was the appellant’s opioid dependence that was important. Given the time at which the offences had been committed, the curfew, it was submitted, was proper. Further, it was submitted that the alcohol condition was not objected to by the appellant’s counsel, and was in any event appropriate given the connection between the appellant’s alcohol use and the offences. The employment conditions were appropriate since they addressed the appellant’s ability to be in ‘opportunistic situations with strangers’.
Reasons for rejecting grounds 1, 2 and 3
We can detect no error in any of the primary judge’s findings with respect to grounds 1, 2 and 3. These grounds impugn the finding that the appellant posed an unacceptable risk; the making of the supervision order; the duration of the order; and the judge’s approach to the appellant’s alcohol and methadone use.
Approaching the issue of unacceptable risk in the manner discussed earlier in these reasons, in our opinion the judge was entitled to find having regard to the continued existence of a number of risk factors that there was a high degree of probability that the appellant posed an unacceptable risk of committing a relevant offence if a supervision order was not made and the appellant was in the community. We think it to be highly significant that the two incidents of rape were only 18 days apart (the second whilst the appellant was on bail), in the early hours, close to nightclubs, and in the context of considerable consumption of alcohol.
Moreover, we think that the making of the supervision order was justified by the opinion evidence that was before the court. Both Dr Owen and Dr Davis considered that the appellant posed a moderate to high risk of committing a relevant offence, while Mr Cummins considered the risk to be moderate (that is, no more than the average offender). The preponderance of opinion was that the appellant required ongoing treatment in order to mitigate his risk of committing a relevant offence in the future, and generally it was agreed that two years was an appropriate period with a review after eighteen months.
Although it is contended by the appellant that the judge had determined that the appellant was an unacceptable risk because he had an ongoing issue with alcohol abuse, we think it is more correct to say that the judge determined that the appellant had a ‘significant number of ongoing issues’, alcohol abuse being one. And although it might be true to say that the appellant had not been shown to have abused alcohol since being granted parole, and that he had demonstrated a capacity to remain abstinent for considerable periods, it is also accurate to observe – as Dr Owen did in her first report – that the appellant has shown a capacity for a ‘rapid return to his previous addiction without apparent significant precursors other than ongoing psychological issues’. The part played by the abuse of alcohol in the commission of the rapes, and the appellant’s history of alcohol abuse, is a relevant factor to be taken into account in the constellation of factors relevant to the determination of unacceptable risk. In our view the primary judge did not err in regarding it as such.
Further, we think that the primary judge was entitled to take into account the appellant’s opioid abuse as a relevant factor in determining whether the appellant posed an unacceptable risk. Although it might legitimately be argued that the appellant’s adherence to a methadone program reduced his risk of committing a relevant offence whilst he participated in it, the judge was entitled to regard the underlying opiate dependence as one of a number of relevant factors in determining whether the appellant relevantly posed an unacceptable risk. It seems to us that, on a fair reading of the judge’s reasons, it was the appellant’s opiate dependence, rather than his participation in a methadone programme, that the judge regarded as relevant. She was entitled to do so.
Reasons for rejecting proposed ground 5
Before discussing ground 4 – on which we think the appellant should enjoy partial success – it is convenient to discuss proposed ground 5. We would grant the appellant leave to add this ground of appeal.
Ground 5 asserts that the judge erred in holding that the standard to be applied pursuant to s 9(2)(b) of the Act is that held in Briginshaw.[226] As we have stated, in our analysis of s 9(2)(a), those matters which are relied upon to establish the risk to be unacceptable must be proved by acceptable cogent evidence. That requirement is intended to reflect similar notions to those found in Briginshaw and s 140(2) of the Evidence Act 2008. That the risk is unacceptable must be proved to a high degree of probability.
[226](1938) 60 CLR 336.
The appellant contends that the judge erred in stating that the standard was that in Briginshaw. As we have said, the principle in Briginshaw does not prescribe a standard. That said and whatever her Honour intended by that observation, we reject the contention that her Honour applied an incorrect standard. The judge made very clear in comprehensive reasons that the standard she was required to and did apply was a high degree of probability. The judge referred a number of times to the standard of satisfaction set out in s 9(2).[227] She also referred to some of the judgments of the High Court in Fardon to which we have made reference. She quoted passages from the decisions of the Western Australian Court of Appeal in Williams[228] and GTR[229] in which reference is made to the observations of in Fardon that the Queensland legislature had adopted an appropriate ‘criterion and standard.’[230] Finally her Honour correctly summarised the test that she intended to apply as follows:
Therefore the test may be stated as being whether the Secretary has satisfied the court to a high degree of probability on acceptable and cogent evidence that the offender (AG) poses an unacceptable risk of committing a relevant offence if released and not on a supervision order, without regard to the condition that may be imposed, or other means of managing the risk, nor the impact of a supervision order on the offender. Satisfaction as to the unacceptability of that risk may even be reached if the likelihood of committing a relevant offence is less than more likely than not.[231]
[227]Secretary to Department of Justice v AG (Unreported, County Court of Victoria, Judge Pullen, 1 December 2011), [27], [28], [37], [52].
[228](2007) 35 WAR 297, 312 [63].
[229](2008) 38 WAR 307.
[230]Ibid 315 [26].
[231]Secretary to Department of Justice v AG (Unreported, County Court of Victoria, Judge Pullen, 1 December 2011) [57].
Ground 4 should succeed in part
For reasons which we will shortly explain, the criticisms of conditions 6.2 (curfew) and 6.3 (alcohol consumption) of the supervision order should not be upheld. Condition 6.6 (employment and entry to premises) should, however, be set aside.
Given that the rape offences occurred in the early hours of the morning, in our opinion a condition which imposes a limited curfew between 11.00pm and 6.00am – as condition 6.2 does – is a not unreasonable way of mitigating the risk of the appellant committing like offences. The attack on condition 6.2 is without substance.
Further, given the connection between the appellant’s alcohol consumption and the rapes, a condition such as 6.3 – which seeks to limit the appellant’s alcohol consumption – is a reasonable manner of endeavouring to mitigate the risk of the commission of relevant offences related to alcohol use. Condition 6.3 is not unreasonably wide, in that it does not prohibit alcohol consumption absolutely, but rather imposes limits on its consumption. The appellant may still consume alcohol with the prior written consent of the Adult Parole Board. Additionally, that this condition should not be regarded as unreasonable might be gauged from the fact that the appellant’s counsel made no objection to it before the primary judge. Criticism of this condition should be rejected.
We take a different view, however, with respect to condition 6.6, which provides that the appellant ‘must not obtain paid or unpaid employment, or undertake voluntary work, which involves him attending, contacting or entering into people’s homes and/or attending or entering licensed venues’ unless directed by the Adult Parole Board. This condition is, we think, unreasonably wide. The rape offences were not committed in the context of any employment (paid or unpaid) or in people’s homes. And although the rape offences were committed in the vicinity of licensed premises, there was no apparent connection between his entry to licensed premises and the rapes. Thus, in our opinion, condition 6.6 is not a reasonable measure to ameliorate the risk of relevant offending. It is far too wide and is an unjustifiable encroachment on the appellant’s freedom of movement.[232] This condition should be set aside.
[232]See s 15(6).
For these reasons, we would allow the appeal in part and set aside condition 6.6 of the supervision order. In all other respects the orders of the County Court should be confirmed.
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