R v CGM
[2015] VSC 558
•12 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 00059
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| CGM | Respondent |
NOTE: This proceeding is subject to a suppression order regarding identification
---
JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 September 2015 |
DATE OF JUDGMENT: | 12 October 2015 |
CASE MAY BE CITED AS: | R v CGM |
MEDIUM NEUTRAL CITATION: | [2015] VSC 558 |
---
PUBLIC LAW – Application for review of detention order – Consideration of the risk of the respondent committing a relevant offence – Progress with rehabilitation and treatment – Suitability of Corella Place for the management of the risk – Detention order to remain in force – Serious Sex Offenders (Detention and Supervision) Act 2009, ss 68, 71, 72 and 74.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Rose QC with Ms J Davidson | Ms V Anscombe, Acting Solicitors for Public Prosecutions |
| For the Respondent | Mr J McLoughlin | Victoria Legal Aid |
HIS HONOUR:
Introduction
This application is brought by the Director of Public Prosecutions (‘DPP’) pursuant to s 66(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 (the ‘Act’). Section 66(1) of the Act provides that the DPP must make application for periodic review of the detention order made in respect of CGM (the ‘respondent’) no later than one year after the making of the detention order.
On 30 September 2014, I made a detention order for two years in respect of the respondent.[1]
[1]DPP v CGM [2014] VSC 485.
Statutory framework
Section 71 of the Act explains the purpose of a review of a detention order in respect of a serious sex offender:
Purpose of review
The purpose of a review is to determine –
(a)whether a supervision order or a detention order should remain in operation or be revoked; and
…
(c)if a detention order is revoked, whether it should be replaced with a supervision order.
The Court, when determining a review of a detention order, must consider any progress reports relating to the offender, any other reports made or evidence given by a medical expert, any reports made by the Secretary, the DPP or the Adult Parole Board and any submissions made by the parties at the review.[2] The Court may also consider any previous assessment reports, progress reports or reports filed with the Court in relation to the offender and anything else that the Court considers appropriate.[3]
[2]The Act, s 72(1).
[3]Ibid, s 72(2).
The Court, on a review of a detention order, must revoke the detention order unless satisfied that the offender still poses an unacceptable risk of committing a relevant offence if a detention order is not in effect and the offender is in the community.[4] Further, if the Court is not satisfied that the risk would be unacceptable unless a detention order were made, the Court may revoke the detention order and make a supervision order.[5]
[4]The Act, s 74(1).
[5]Ibid, s 74(3).
Section 3 of the Act defines ‘relevant offence’ to be those listed in Schedule 1 of the Act. For the purposes of this application, relevant offences include rape, sexual penetration of a child under 16, indecent assault, assault with intent to rape, abduction or detention, using a carriage service to procure persons under 16 years of age and using a carriage service to ‘groom’ persons under 16 years of age. Importantly, attempts to commit any relevant offence are also covered under Schedule 1 of the Act.
Mr John McLoughlin, counsel for the respondent, did not contest that the respondent still poses an unacceptable risk of committing a relevant offence. Mr McLoughlin did, however, submit that the detention order in respect of the respondent should be revoked and that the respondent should instead be made the subject of a supervision order. Essentially, the submission is premised on the ground that the risk of the respondent committing a relevant offence can be adequately managed and controlled by Corrections Victoria through the imposition of a supervisor order.
Unacceptable risk and prior sexual offending
I previously outlined in DPP v CGM how the element of ‘unacceptable risk’ should be considered:[6]
Integral to the Court’s assessment as to whether a supervision or detention order should be imposed is the concept of ‘unacceptable risk’. The Court of Appeal, in Nigro & Ors v Secretary to the Department of Justice (‘Nigro’),[7] held that the test for unacceptable risk is contingent upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates.[8] The Court went on to explain that the gravity of the consequences, if the risk were to eventuate, is the ‘critical factor’:
It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[9]
In Nigro, the Court described the legislature as seeking ‘…to achieve a balance between the offender’s rights and the rights of members of the public to be protected against the risk of the offender committing further sexual offences. When the degree of risk and its nature makes it unacceptable has been left to the courts to determine’.[10]
[6]DPP v CGM [2014] VSC 485, [18] – [19].
[7][2013] VSCA 213.
[8]Nigro [2013] VSCA 213, [125] (Redlich, Osborn and Priest JJA).
[9]Ibid, [130].
[10]Ibid, [103].
In this application, the DPP relied upon the evidence of expert witnesses Dr Kevin Ong, consultant forensic psychiatrist,[11] and Dr Karen Owen, consultant forensic and clinical psychologist,[12] together with the evidence of two employees at Corrections Victoria; Mr Andrew Reaper, Deputy Commissioner of the Offender Management Branch[13] and Mr Brendan Money, the Assistant Commissioner for Sentence Management Branch.[14]
[11]Report of Dr Kevin Ong dated 14 July 2015.
[12]Report of Dr Karen Owen dated 10 July 2015.
[13]Affidavits of Mr Andrew Reaper sworn 27 June 2014 and 27 August 2015.
[14]Report of Mr Brendan Money dated 28 August 2015.
The DPP also relied upon the affidavits of Ms Colleen Bell affirmed 6 August 2015 and 27 August 2015 comprising multiple volumes of exhibited material,[15] including material previously filed at the hearing of the initial application.[16]
[15]The Affidavit of Ms Colleen Bell affirmed 27 August 2015 exhibited Copies of recent Department of Justice Community Correctional Services file material in respect of the respondent (CLB-1), a Copy of the Department of Justice Quarterly Review Status Report dated 30 June 2015 in respect of the respondent (CLB-2) and Copies of recent Department of Justice IMP file material in respect of the respondent (CLB-3).
[16]See DPP v CGM [2014] VSC 485. See also Affidavits of Ms Colleen Bell affirmed 15 May 2014 and 26 June 2014.
The respondent is 57 years old with an extensive history of both sexual and non-sexual offending. The respondent’s sexual offence history is imperative to an assessment of the respondent’s current risk assessment. I have previously set out a summary of the respondent’s extensive relevant sexual offending.[17] It is unnecessary for the purposes of this review application to again traverse this material.
[17]See DPP v CGM [2014] VSC 485.
Assessment reports and evidence
Dr Ong prepared a further report for the purposes of this review application on 14 July 2015. The purpose of the report was to assess the risk of the respondent committing a relevant offence if released into the community. Dr Ong’s assessment was that the respondent ‘still remained a high risk of committing a relevant offence if released into the community without supervision’.[18]
[18]Transcript at 41.21 – 41.23.
Since the detention order was imposed, the respondent has engaged in various rehabilitation and treatment programs. He has been participating in individual sessions with clinicians to gain insight into and address his cognitive behavioural responses linked to his sexual offending. Dr Ong’s report identified some areas where progress had been made, stating that the respondent ‘was able to demonstrate victim empathy, and made some links between his emotions, thoughts including subsequent deviant fantasies and offending. These connections appeared to be absent during previous reviews’.[19]
[19]Report of Dr Kevin Ong dated 14 July 2015, 3 – 4.
The respondent has also undergone treatment with antidepressant medication and has indicated that he would be willing to re-commence anti-libidinal medication. Dr Ong cited the respondent’s inability to previously continue on anti-libidinal medication as being due to his health deteriorating, in that that he developed significant diabetes.[20] A referral to an endocrinologist has recently been made for the purpose of assessing the respondent’s future ability to undergo anti-libidinal treatment.[21]
[20]Transcript at 42.28 – 42.31.
[21]See Letter of Dr Adam Deacon, Consultant Psychiatrist at Victorian Institute of Forensic Mental Health to Dr Lou of Ararat Medical Centre dated 9 September 2015.
Dr Ong also detailed the respondent’s outlook when being treated with antidepressant medication:
He felt that it reduced his impulsivity, anger levels and also sexual fantasies…taken at face value there appears to be some reduction in the level of risk. Unfortunately I think only two weeks after I saw [the respondent] he did make a threat to a co-prisoner which obviously whilst not a relevant offence, does show that his ability to walk away from situations which anger him still is problematic.[22]
On the basis of these facts, Dr Ong’s assessment of the respondent’s risk was that there had been some positive change to the level of risk, but that that change was insufficient to ‘change the overall risk’.[23] Dr Ong recommends that given the respondent’s ‘difficulty with anger management, he would benefit from ongoing treatment directly aimed at managing his affective regulation more appropriately’.[24]
[22]Transcript at 48.5 – 48.12.
[23]Transcript at 48.19 – 48.20.
[24]Report of Dr Kevin Ong dated 14 July 2015, 16.
Dr Owen interviewed the respondent on 3 July 2015 and prepared a report for the purposes of this review application dated 10 July 2015. Dr Owen continues to share a similar view to that of Dr Ong that the respondent remains a high risk, despite some treatment progress having been made in the interim.[25] Dr Owen recommends that any further alteration to the level of supervision or detention of the respondent should be contingent upon his progress with anti-libidinal medication.[26] She also re-asserts that the respondent’s frustrated and angry reaction to the restrictions imposed within Corella Place, being a direct precursor to his most recent offending, remains inadequately addressed and therefore continues to ‘potentially exacerbate re-offence risk’.[27]
[25]Transcript at 25.23 – 25.26. See also Report of Dr Karen Owen dated 10 July 2015, 63 – 64.
[26]Report of Dr Karen Owen dated 10 July 2015, 64.
[27]Report of Dr Karen Owen dated 10 July 2015, 67.
Dr Owen maintains that there is a risk that the respondent whilst subject to supervision is more likely to commit non-contact offences and whilst in the absence of supervision there is the potential that he will sexually offend against adult women or female children where the use of violence and weapons cannot be eliminated.[28]
[28]Report of Dr Karen Owen dated 10 July 2015, 59 – 60.
A report by Professor Simon Crowe, neuropsychologist, dated 16 August 2015 has also been provided to the respondent’s treating clinicians to elucidate any cognitive factors that need to be taken into consideration in respect of his treatment program.[29] He came to the opinion that there were no significant cognitive difficulties experienced by the respondent.[30]
Does the respondent continue to pose an unacceptable risk of committing a relevant offence if a detention order is not in effect?
[29]The Affidavit of Ms Colleen Bell affirmed 27 August 2015 exhibited a Copy of the Report of Professor Simon Crowe dated 16 August 2015 (CLB-4). See also Report of Mr Brendan Money dated 28 August 2015, 3 and Report of Dr Kevin Ong dated 14 July 2015, 16.
[30]Transcript at 42.15 – 42.19.
Since inspecting Corella Place accommodation facility on 29 July 2014, a second accommodation facility has been opened, Corella Place 228. Corella Place 228 can accommodate up to 15 residents and is situated approximately 800 metres away from the existing Corella Place.
Mr Reaper provided evidence that Corella Place and Corella Place 228 operates as ‘one facility over two campuses’.[31] The only point of differentiation is that the residents who are housed at Corella Place 228 are deemed as closer to being able to transition into the wider community – generally, they are ‘further down that transition pathway’.[32]
[31]Transcript at 4.22 – 4.23.
[32]Transcript at 4.29 – 4.30.
Mr Reaper maintained that the respondent ‘remains a high risk’ citing concern that if the respondent was to be accommodated at Corella Place he would need to be subject to a higher level of restrictions, a level that differs significantly from the other residents.[33] Such a situation may have negative and significant implications for the other residents if any of their freedoms were unduly curtailed to reduce the risk of the respondent offending. The type of restrictions alluded to included prohibiting the use of mobile telephones. Each resident at Corella Place is entitled to possess a mobile telephone. Mr Reaper stated that he did not have the authority to direct residents to not lend their mobile telephones to the respondent. He also stated that it would be unreasonable to remove all mobile telephones from the facility in order to manage the risk posed by the respondent.
[33]Transcript at 14.29 – 15.1.
Mr McLoughlin submitted that the Court should hold some optimism as to the respondent’s ability to self-regulate given his progress and that if this should fail, it would not take long to ascertain if he was accessing a mobile telephone. I do not accept this submission in light of the evidence. The respondent’s use of a mobile telephone could quite readily go undetected by Corrections staff (as it has in the past).
On the basis of the evidence presented in this application it is apparent that the respondent remains unsuitable for accommodation in Corella Place. The risk of the respondent committing a relevant offence cannot be adequately managed within Corella Place.
Conclusion
I am satisfied that the evidence justifies the continuation a detention order in respect of the respondent. The reduction of the respondent’s risk of re-offending is insufficient to revoke the detention order. Corella Place remains, at this time, an unsuitable place for the management of the unacceptable risk of the respondent committing a relevant offence.
Further applications for review of the detention order can be made with the leave of the Court pursuant to s 68(2) of the Act by the DPP or the respondent. The Court may grant leave if satisfied that ‘there are new facts or circumstances which would justify a review of the order or it would be in the interests of justice, having regard to the purposes of the order and the manner and effect of its implementation, to review the order’.[34]
[34]The Act, s 68(3).
For instance, the possibility of and any success associated with the trialling of the respondent on anti-libidinal medication again together with the gains made by the use of antidepressant medication could be considered as new facts or circumstances which may justify a further review of the detention order.
I will hear from the parties as to the appropriate form of orders.