Re CS

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0003

IN THE MATTER of the Serious Offenders Act 2018 (Vic)
and
IN THE MATTER of an application under section 22(1) of the Act for a Renewal of Supervision Order
BETWEEN
THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Applicant
v
CS	Respondent

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JUDGE:	INCERTI J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January, 3 and 7 February 2025
DATE OF JUDGMENT:	24 February 2025
CASE MAY BE CITED AS:	Re CS
MEDIUM NEUTRAL CITATION:	[2025] VSC 53

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CRIMINAL LAW – Supervision order – Application for supervision order – Unacceptable risk – Risk assessment tools – Discretion to make no order – Suitability of Corella Place – Non-publication order – Serious Offenders Act 2018 (Vic) ss 14, 15, 22, 24, 279, 280.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Holdenson KC	Russell Kennedy
For the Respondent	Ms J Munster with Mr G Cooper	Victoria Legal Aid

HER HONOUR:

On 31 January, 3 February and 7 February 2025, I heard an application for renewal of a supervision order (‘SO’) pursuant to s 22 of the Serious Offenders Act 2018 (Vic) (‘the Act’) in respect of the respondent, CS. I exercised my discretion to make no order. These are my reasons.

Background

This matter has an extensive history and the details have been explored in previous judgments of this Court.[1] While I will not repeat the history here in detail, it is important to appreciate the circumstances that have led us to this point.
[1]See for example DPP v CS [2021] VSC 686.

CS is a 39 year old Aboriginal man. He experienced a very disadvantaged and tumultuous upbringing featuring limited contact with his biological father, intermittent placement in foster care and behavioural difficulties.[2] CS is diagnosed with a mild intellectual disability with long-standing and severe verbal and language difficulties. He also has a severe personality impairment and has been diagnosed with a personality disorder, displaying borderline and antisocial personality traits.
[2]Psychiatric Report of Dr Rajan Darjee dated 31 May 2021, 5-6 (‘Darjee 2021 Report’).

CS has a long history of engagement with the justice system and was sentenced to a term of imprisonment at the age of 18. It is impossible to ignore the very serious offending that CS has committed and he has previously been convicted for serious sexual violence. In 2005, he was convicted of assault with intent to rape and in 2009 he was sentenced to a term of imprisonment for three years and four months for attempting to rape and intentionally causing injury to an adult woman in 2006.

At the conclusion of this custodial sentence, in 2013, CS was placed on a SO under the since repealed Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). The original SO was made for a duration of five years on the basis that CS had not displayed any intention to address substance-use issues that had contributed to his index offending. Importantly, CS was required to reside at Corella Place as a transitional setting while endeavours were underway to find more suitable accommodation.[3] It was submitted at this time that Corella Place was likely to be ‘aversive, stressful and likely to result in the deterioration of the his [sic] good conduct in recent years’.[4] In making the SO with this residence condition, CS was encouraged to ‘realise that this is only a temporary placement and that the applicant is keen to find him alternative accommodation’.[5]
[3]Secretary to DoJ v [CS] [2013] VCC 36, [48].
[4]Ibid, [54].
[5]Ibid, [58].

CS has remained subject to some form of SO, or in custody for breaching the orders, since 2013 and has resided in Corella Place for all but a short amount of that time. Most recently, on 18 September 2024 I imposed an Interim Supervision Order (‘ISO’) on the respondent, to commence operation on 25 October 2024.[6] The application for an ISO was made and determined on the basis that the present application would not be able to be heard and determined before the expiry date of CS’ previous SO. The ISO is set to expire on 24 February 2025.
[6]Re CS (No 3) [2024] VSC 594.

On 22 July 2024, the applicant, the Secretary to the Department of Justice and Community Safety (‘the Secretary’), filed a notice of application for renewal of supervision order. The Secretary seeks that the order be renewed for a period of three years.

The renewal of the SO is opposed by the respondent. Alternatively, in the event the SO is renewed, the respondent opposes three of the proposed conditions: the residence condition, the accompaniment condition, and the electronic alcohol monitoring condition.

Legislative framework

Section 24(1) of the Act provides that on an application for renewal, the Court may renew the SO, revoke the SO, or make no such order. The effect of the latter appears to be that the SO would simply lapse upon its expiry.

Section 24(4) of the Act also provides that if the Court renews the SO, it may vary, add or remove any conditions, or vary the maximum interval between review applications.

Section 14 also applies to applications for renewal of SOs.[7] That section outlines the test that must be applied by the Court in exercising its discretion to impose a SO. Relevantly for present purposes, it provides as follows:
[7]With any reference to s 13 taken to be a reference to s 22 in a renewal application pursuant to s 24(3) of the Act.

(1)On an application under section 13, the court may make a supervision order in respect of an eligible offender if, and only if, the court is satisfied that ---
(a)in the case of an offender on whom a court … has imposed a custodial sentence for a serious sex offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a supervision order is not made and the offender is in the community;
…

(2)In determining whether an offender poses or will pose an unacceptable risk under subsection (1) ---
(a)the court must have regard to---
(i)subject to section 273, any assessment report or progress report filed in relation to the application, whether by the Secretary or the offender; and
(ii)any other report filed, tendered or made, or evidence given, in relation to the application; and
(iii)any other matter the court considers appropriate; and

(b)        the court must not have regard to---
(i)        the means of managing the risk; or
(ii)       the likely impact of a supervision order on the offender.

(3)For the purposes of subsection (1), the court must be satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk.
(4)The court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(5)The Secretary has the burden of proving that an offender poses or will pose an unacceptable risk under subsection (1).
(6)If the court is satisfied as required by subsection (1), the court may---
(a)make a supervision order; or
(b)make no order.

‘Unacceptable risk’ is not defined in the Act. However, that phrase was considered, in the context of predecessor legislation, in Nigro v Secretary to the Department of Justice (‘Nigro’).[8] In a passage which has been routinely cited in SO cases under the Act, the Court said:

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[9] 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.[10]

[8][2013] 41 VR 359.

[9]Briginshaw v Briginshaw (1938) 60 CLR 336.

[10]Nigro, 363 [6].

In Nigro, the Court also highlighted the notorious difficulty in predicting the prospect of a person committing a relevant offence in the future. In a statement which is relevant to the Act in this case, the Court said:

The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk.[11]

[11]Nigro, 392–3 [124] (citations omitted).

Nevertheless, an important clarification to the role of experts and the role of the Court is that it is the latter’s role to determine what level of risk is unacceptable. This application has revealed the tension which arises in an expert’s conclusion of a particular offender being a ‘high risk’ of serious sexual offending, and the Court’s evaluative judgment in determining whether that high risk is nevertheless ‘unacceptable’.

The conditions that can and must be imposed on a SO are governed by Division 3 of the Act. Importantly, s 27 indicates that the primary purpose of the conditions of a SO is to reduce the offender’s risk of re-offending by promoting their rehabilitation and treatment and addressing behaviour that may increase risk.[12]
[12]Section 27(1), (3).

Section 31 lists 15 core conditions that must be imposed.[13] In addition, the Court must consider imposing the conditions referred to in ss 34 and 35.[14]
[13]Section 31(2)-(16).
[14]Pursuant to s 33.

Crucially, s 27(4) requires that any conditions of a SO:

(a)constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and
(b)are reasonably related to the gravity of the risk of the offender re-offending.

Finally, in applications of this kind, the overarching purposes of the Act must also be at the forefront of the Court’s mind, those being:

(a)primarily, to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision; and
(b)secondly, to facilitate the treatment and rehabilitation of those offenders; …[15]
[15]Section 1 of the Act.

The application
Evidence

In support of the application, the Secretary relies on the following materials:

(a) Detention and Supervision Order Progress Report of Mr Simon Candlish, dated 6 June 2024 (‘Candlish Report’);

(b) Addendum to Progress Report of Mr Candlish, dated 21 January 2025 (‘Second Candlish Report’);

(c) Affidavit of Ms Renee Carman, affirmed 24 January 2025 (‘Carman affidavit’);

(d) Second addendum to progress report of Mr Candlish, dated 5 February 2025 (‘Third Candlish Report’); and

(e) Numerous exhibits, to which I have had regard.

The respondent filed reports of Associate Professor Rajan Darjee dated 12 December 2024 (‘First Darjee Report’) and 4 February 2025 (‘Second Darjee Report’).

Ms Carman, Mr Candlish and Dr Darjee gave oral evidence at the hearing of the application. For brevity, and without intending any disrespect, I will refer to each of the witnesses by their surnames

Candlish

Candlish is a consultant psychologist who has assessed CS on several previous occasions. In preparation for this application, Candlish assessed CS on 21 May 2024.

Candlish assesses CS’ risk of committing a serious sex or violence offence through the convergent use of actuarial tools and structured professional judgement. Static-99R testing of CS placed him in ‘Risk Level IVb (Well Above Average)’, although Candlish acknowledges the limitations of this tool, including that it is not individualised or dynamic, and has only ‘moderate accuracy’,[16] including for use in populations with intellectual disability.[17] In cross-examination, he conceded that the greater time that elapses, the greater confidence he might have in someone not committing a relevant offence, a statement which seems anathema to the very point of Static-99R (being a test reliant on historical factors).[18]
[16]Candlish report, 38 [261].
[17]T37.1–3 (Candlish).
[18]T39.5–29 (Candlish).

This assessment is paired with a structured assessment using the Risk for Sexual Violence Protocol (‘RSVP’).[19] This tool considers historic and dynamic factors to ground a clinical perception of risk. Through this process, Candlish considers CS to require high case prioritisation to address his risk of sexual offending, although he does not consider that this risk is imminent. In Candlish’s clinical opinion, CS presents a high risk of committing a Schedule 1 serious sex offence if he is not subject to a SO,[20] though he noted there are ‘no current signs of imminence for sexual offending.’[21] Indeed, Candlish was of the opinion that:

the more obvious sexual…re-offence precipitants would take some time to manifest in the community and are therefore more likely to be detected by staff prior to reaching a level that would cause concern for imminent risk.[22]

[19]It was not clear which version of the RSVP Candlish used. Compare Candlish report, 21 [158] with 40 [263]-[265].

[20]Candlish report, 25 [188].

[21]Candlish report, 22 [163].

[22]Candlish report, 27 [203].

Relatedly, he was cross-examined to the effect that there is no (or low) imminent risk of sexual offending.[23] Though it was not specifically asked, I understood this evidence to be given in the context, and on the assumption, that CS is on a SO.
[23]T35.5–7 (Candlish); T49.11–17 (Candlish).

The relevant reoffending scenario, should the risk materialise, was assessed by Candlish as:

Should [CS] decide to re-offend in a sexual manner, this might involve the attempted rape or rape of a stranger or known female. He appears highly likely to assault or physically injure the victim during this offence. He is likely to be substance affected, although he could also be sober. He is most likely to offend in the context of psychological and lifestyle instability as well as in the context of distorted attitudes and emotional dysregulation.[24]

[24]Candlish second report, 8 [51].

Factors which Candlish thought might increase CS’ risk include:[25]
[25]Candlish second report, 9 [62].

·increased stressors and heightened emotional reactivity;
·substance intoxication;
·anger rumination;
·lifestyle instability;
·conflictual interactions with sexual partners;
·relationship stressors; and
·any reinforcement of deviant thoughts and fantasies.

Factors Candlish thought might decrease CS’ risk include:[26]
[26]Candlish second report, 9 [63].

·improved coping;
·improved self-control;
·abstinence from substance use;
·lifestyle stability;
·improved relationships with pro-social others;
·meeting sexual needs appropriately; and
·maintenance of a healthy intimate relationship.

In terms of the risk of violence, Candlish conducted actuarial testing of CS using the Violence Risk Appraisal Guide-Revised (‘VRAG-R’). This returned an indication that CS is in the 99^th percentile and a higher risk of recidivism than the base rate, using historical factors.[27] This tool was supported by the use of the Historical Clinical Risk Management (‘HCR-20’), a structured professional judgment tool, which indicated a high case prioritisation. This led to a clinical opinion that CS poses a high risk of committing a Schedule 2 serious violence offence if released into the community without a SO.[28]
[27]Candlish report, 22 [169]-[170].
[28]Candlish report, 25 [188].

Importantly, Candlish noted that CS’s ‘specific frustration about residing at Corella Place contributes to some elevation in his risk for imminent violence’.[29]
[29]Candlish report, 24 [180].

Since the last SO review in February 2024, CS has displayed ‘characteristic issues with emotional dysregulation and hostility’.[30] It is notable that this largely seems to manifest through his difficulty with maintaining effective relationships with support workers. Candlish opines that this reflects the severe nature of his personality disorder, and that he is prone to distorted perceptions and externalisation of blame.[31]
[30]Candlish report, 15 [113].
[31]Candlish report, 15 [113].

Candlish also noted that, in terms of any recent efforts to address the causes of his offending behaviour, CS has been ‘resistant to any treatment intervention and has fluctuated in his level of case management engagement’.[32]
[32]Candlish report, 31 [246].

Candlish provided a detailed overview of CS’ offending on the SO.[33] It is worth noting that many of the incidents involve breaches of the conditions of the order, such as absconding from Corella Place and failing to attend supervision sessions. Although there were some more concerning charges relating to violent conduct within the offending overview (which appear to have been withdrawn or struck out), with the exception of two charges relating to possession of child abuse material (both of which were withdrawn or struck out),[34] none of the offending relates to sexual offending in any sense.
[33]Candlish report, 5–12 [30]–[93].
[34]Candlish report, 5 [40], 6 [50].

It is clear from review of Candlish’s summary of SO compliance since February 2024 that much of the behaviours of concern again relates to aggressive or hostile, rather than sexual or necessarily violent, conduct.[35] Such behaviours of concern include:
[35]Candlish report, 7–14 [60]–[105].

·non-attendance at supervision sessions due to being heightened and verbally abusive at the time;[36]
·when residing at Noble Park, returning ‘several minutes’ after his 10 pm curfew despite being reminded earlier in the evening;[37]
·referring to support staff in ‘a derogatory manner,’[38] yelling at them,[39] making threats,[40] including to bash staff and refusing them entry into his property;[41]
·various instances of not being within sight or the presence of staff, for various periods of time;[42]
·two instances when CS’ partner remained at his property for six and 20 minutes, respectively, after the curfew imposed regarding visitors (being no visitors after 8pm);[43]
·one instance where CS is alleged to have grabbed a support worker and ‘shoved him sideways’;[44]
·one instance of CS slapping an intoxicated male who was later identified to be his brother who is homeless;[45] and

·an instance in a supermarket where CS threw a sachet at a support worker, ‘menacingly leaned’ into their personal space and swore at them and yelled.[46]

[36]Candlish report, 7 [63].

[37]Candlish report, 8 [64].

[38]Candlish report, 8 [68].

[39]Candlish report, 9 [71], [73].

[40]Candlish report, 10 [80]–[81], 11 [86].

[41]Candlish report, 10 [77].

[42]Candlish report, 11 [82], [88].

[43]Candlish report, 9 [73], 11 [83]–[84].

[44]Candlish report, 11 [87].

[45]Candlish report, 12 [90].

[46]Candlish report, 14 [105].

Nevertheless, Candlish concludes of these matters that CS ‘has displayed characteristic issues with emotional dysregulation and hostility.’[47] Candlish is of the opinion that such dysregulation and hostility, coupled with disinhibition, ‘are considered to represent signs of increased risk’[48] for imminent serious sexual offending.
[47]Candlish report, 15 [113].
[48]Candlish report, 22 [163].

Speaking of ‘heightened and hostile behaviours’ in the period since his first report, Candlish noted in his second report that:

Between June and November 2024, [CS] revealed a pattern of hostile behaviours towards staff, members of the general public and residents of Corella Place. This hostility escalated to physical aggression on one occasion.[49]

[49]Candlish second report, 2 [9].

Examples of behaviour and conduct are given.[50] They include swearing at support staff and members of the public, a physical altercation with a resident of Corella Place involving ‘pushes and shoves’, stepping into the personal space of support workers, ‘speaking aggressively’ and being ‘intimidating and verbally hostile’ and ‘abusive’ towards support workers, raising his voice, barricading himself into his unit, and arriving late from two outings (60 minutes and 13 minutes, respectively). The examples also include instances where CS has apologised in the immediate aftermath, for his behaviour, and indicate that he has managed, at points, to calm down after heightened emotional states.
[50]Candlish second report, 2–7 [9]–[45].

Candlish clarified why these behaviours were of concern in oral evidence, explaining that they were indicative of factors which may increase CS’ risk of reoffending. He opined that ‘increased stressors’ may include conflictual interaction with staff or negative interaction with community members.[51] ‘Heightened emotional reactivity’ may include hostile reactivity towards other people – this is relevant, apparently, because CS has historically sexually offended when emotionally heightened and seemingly angry and acting in an aggressive manner.[52]
[51]T14.25–31 (Candlish).
[52]T15.8–16 (Candlish).

This was made significantly plainer in cross-examination when Candlish explained that the problematic behaviours in the community are related to the risks for sexual recidivism because:

they speak to disinhibition, they speak to dysregulation in his emotions, distorted views and perceptions of the world, and himself and others. It speaks to impulsivity, lack of consequential thinking – they are all relevant in understanding the risk for sexual offending.[53]

[53]T59.26–60.2 (Candlish).

Despite this, and critically, Candlish recognised, at least in part, that CS’ behaviour is in some ways a product of his personality impairment and cognitive deficits:

I also take into account the nature of [CS’] personality impairment that does include hostile misinterpretation and attribution than others and a tendency towards anger dysregulation and aggression. And it also takes into account his cognitive deficits which does impact on his ability to engage in self-control, monitor his own behaviour, think about the consequences and reflect on behaviours historically.[54]

[54]T17.3–11 (Candlish); see also T37.22–28.

While expressing some hesitancy given its relative infancy, Candlish indicated that CS’ new relationship has some ‘protective value’ and has increased his motivation to improve his behaviour.[55] Candlish highlighted that, in the event the relationship deteriorates or ends, it is likely that CS would lose that motivation, and may increase the likelihood of ‘disproportionate reactions’.[56] Based on all the information available to Candlish, there were no signs of risk of CS committing a relevant offence against his partner.[57]
[55]Candlish report, 16 [115]-[117].
[56]Candlish report, 16 [116]-[117].
[57]T55.1–3 (Candlish).

Candlish acknowledged that progress has been made. He accepted that there has been a reduction in the number and severity of the behaviours of concern, that CS has not spent any significant period in custody since 2021, and that he (Candlish) no longer held the opinion that he held at the time of the 2021 application for detention order; namely, that prison was the only place CS could safely be managed.[58] Candlish also acknowledged greater engagement with supports and supervision sessions.[59]
[58]T26.6–29 (Candlish).
[59]T27.15–28.9 (Candlish).

Ultimately, Candlish suggests that although CS’ risk level and certain problematic behaviours subsist, CS has displayed a ‘very gradual reduction in the severity of his aggressive behaviours over the years’.[60] Similarly, there has been improvements across a number of dynamic risk factors.[61] A consistent theme throughout Candlish’s evidence (and certainly a sentiment echoed in interactions with CS in the courtroom) is that CS is currently expressing a strong motivation to reside in the community, and to eventually be transitioned off a SO. In CS’s own words, he sees himself as ‘need[ing] to move on’ with his life.[62] CS also appears to have demonstrated at least some insight into what is required from him to make the transition back to the community:

He stated that ‘if I get angry, I have to walk away, if the workers piss me off and get on my bad side, I’ll be with [my partner] and I’ll walk away and bite my tongue.’ He added that ‘I know it’ll be hard.’[63]

[60]Candlish report, 26 [199].

[61]T28.26–29.24 (Candlish).

[62]Candlish report, 18 [136].

[63]Candlish report, 17-18 [130].

Although Candlish does not see CS as ready to live in the community without a SO, it is his professional opinion that CS is best suited to a residence in the community, rather than Corella Place.[64] This was the subject of some discussion at the review hearing in February of this year.[65] In Candlish’s view, if CS was not on a SO:

there is likely to be considerable destabilisation. ... I think that the level of instability that’s been demonstrated, the problems that he’s demonstrated in his relationship with other people, he – the various issues associated with his personality impairment. That is likely to result in lifestyle destabilisation and various increased stressors, which I believe at this time he would find difficult to cope with and manage, which in my mind would impact on the relationship. So I think you are likely to see quite destabilised behaviour and disinhibited behaviour and dysfunctional coping.[66]

[64]See Re CS (No 3) [2024] VSC 594, [28]-[29].

[65]See Re CS (No 3) [2024] VSC 594, [10]-[33]

[66]T84.13-26 (Candlish).

Candlish’s third report responded to Darjee’s second report and concerned the ‘Dr Darjee Plan B’. Beyond stating that the plan ‘could be beneficial’ to CS,[67] and that it ‘appears to show promise’,[68] it was not clear whether Candlish endorsed it. His third report was largely consumed with outlining a number of safety concerns held by Candlish, particularly as regards CS’ partner, and things that could be done to manage these.
[67]Candlish third report, 1 [3].
[68]Ibid 2 [6].

Candlish, implicitly, noted a limitation presented by virtue of CS’ residence in Corella Place for the better part of 12 years and, in doing so, a limitation of his risk assessment of CS:

I think that over the next few years, if he continues the way that he’s going, that’s going to be a greater capacity to have him remain in the community for longer. And that will assess – assist in a more accurate risk assessment.[69]

[69]T139.14–18 (Candlish).

Candlish gave evidence that alcohol is disinhibitory for CS, that it would result in CS being more likely to misinterpret behaviours, endorse distorted views without challenging them, and act impulsively.[70] Despite acknowledging CS’ sustained abstinence from drinking, indeed going so far as to acknowledge that CS is not even a person who talks about wanting to drink and for whom alcohol is a ‘non-issue’,[71] Candlish nevertheless views alcohol as a risk factor for CS.[72]
[70]T12.19–30 (Candlish).
[71]T48.24–29 (Candlish).
[72]T13.18–22 (Candlish).

Candlish was asked about there being nothing to suggest CS had a fascination or obsession with sex, apart from a healthy sexual relationship with someone he loves. Candlish could locate one reference, in his progress report dated 16 July 2023, to comments made by CS.[73]
[73]T117.8–118.1 (Candlish).

Darjee

Like Candlish, Darjee has previously assessed CS and prepared a report in 2021 in advance of an application at that time for a detention order.[74] I have reviewed that previous report in preparation for this application.
[74]Darjee 2021 Report.

To assess CS on the present occasion, Darjee conducted an interview via Zoom for approximately an hour on 16 October 2024 and briefly on 4 November 2024. However, due to connection issues in this second interview, the interview was concluded over the phone on 9 December 2024.[75] Darjee also appears to have spoken to CS together with his partner on a further occasion,[76] but details around this meeting were not given.
[75]Darjee report, 1-2 [4].
[76]T204.27–206.4 (Darjee).

Darjee found CS ‘calmer, less heightened, more reflective, more organised and less reactive than when [he] assessed him three years ago’.[77] CS described the three personalities that he considers exist in him: a protector, a big kid and sleepier character who helps when he is in trouble.
[77]Darjee report, 5 [20].

Darjee’s diagnostic opinion remains that CS has a mild intellectual disability with problems with verbal deficits, a severe personality disorder that meets criteria for antisocial and borderline personality disorder, displays a high level of psychopathy, and has a historical substance abuse disorder. These conditions are underpinned by CS’ XYY sex chromosome aneuploidy and severe childhood trauma and adversity.

Darjee applied the Static-99R as a ‘broad and blunt starting point’ and found that CS falls into the ‘well above average risk category’ for future violent sexual offending. He noted that the Static-99R does not give you anything ‘particularly specific or very helpful for an individual’[78] but rather utilises historic markers to show the ‘things that actually drive someone’s offending’.[79] The Static-99R was supported by an assessment using the RSVP (version 2). Darjee gave evidence that it was an appropriate tool to use in people with an intellectual disability,[80] though it was implicit in his evidence that use of the RSVP (version 2) involves a degree of subjective judgment which, in turn, has been criticised as giving rise to inconsistency compared to the Static-99R which is more objective.[81] Although Darjee considers that there have been improvements across a number of factors and a ‘slight reduction in risk of sexual violence’, he still considers CS as requiring ‘high case prioritization’. Nevertheless, Darjee considered there was nothing to indicate that sexual violence is imminent if a SO continues, either at Corella Place or in the community. However, without a SO, Darjee considers CS a high risk of committing a serious sexual offence.
[78]T185.3–5 (Darjee).
[79]T186.6–7 (Darjee).
[80]T189.20-21 (Darjee).
[81]T187.24–189.1 (Darjee).

The likely reoffending scenario was as set out in his 2021 report:

The future risk scenarios pertinent in this case are one like the previous sexual offences he has been convicted of. If he were to commit a further sexual offence this would most likely be against an adult female known or unknown to him who he happens across; with the offence being impulsive and opportunistic; in the context of alcohol intoxication, unstable lifestyle, wanting to have sex and feeling entitled to do this; involving attempted or completed rape; with him using sufficient force to subdue the victim including potentially hitting or beating the victim.[82]

[82]Darjee 2021 Report, 10–11 [32].

Darjee agreed that the risk factors he considered relevant were very similar to those that Candlish outlined.[83]
[83]T225.3–15 (Darjee).

The assessment of risk of violence was conducted through the HCR-20 (version 3). In Darjee’s clinical opinion, CS continues to require high case prioritization. Given his recent conduct, he considers CS highly likely to commit violence of any kind over the next few years, but less likely to commit injurious violence and even less likely again to commit serious violence. This leads to a view that CS poses a moderate risk of committing a serious violence offence.

Like Candlish, Darjee is supportive of a transition to a community living situation for CS while remaining on a SO,[84] along with better training of staff to ensure they can manage his complex needs.[85] Darjee considers CS’ developing intimate relationship as a significant protective and motivating factor.[86] This relationship can be supported by staff being less intrusive,[87] and Darjee notes that, as Candlish has pointed out, the warning signs and indicators of CS’ escalating risk would be evident long before a serious sexual or violent offence becomes likely.[88]
[84]Darjee report, 10 [48].
[85]Darjee report, 8 [38].
[86]Darjee report, 10 [50].
[87]Darjee report, 8 [38].
[88]Ibid.

In his oral evidence, Darjee maintained that CS was a high risk of committing a serious sexual offence if not on a SO.[89] His evidence, very clearly, demonstrated the difficulty and the limitations to the task of predicting risk, even for experts. Asked if it was possible that, having regard to the progress made by CS, the risk of CS committing a serious sexual offence is something less than high Darjee stated:

It’s possible that this latent thing that we can’t see which is his actual risk of committing a sexual offence could be less than high. But from the information we’ve got at the moment and trying to estimate what that latent thing is I couldn’t say. You know, I couldn’t assess him as being less than high risk based on his history and based on the factors. I think we would have to have more evidence that it’s not high to say he doesn’t pose a high risk. … But from the information we’ve got, objectively, we have to categorise him as high risk because all the factors and tools are pointing to that.[90]

[89]T220.20–22 (Darjee).

[90]T217.8–31 (Darjee).

Darjee made the distinction between the risk of serious sexual offending and the risk of other behaviours that are problematic for the management of an offender.[91] He noted that a number of CS’ behaviours are manifestations of his long term, underlying difficulties pointing to aggressive swearing as an example of ongoing difficulties with anger and emotional regulation.[92] Darjee stated that displays of such behaviour do not mean CS is moving towards committing a serious sexual offence and that it was vital for each piece of behaviour to be taken in context, and to be understood in terms of CS’ underlying problems, rather than prima facie assumed to be indicative of relevant risk.[93] I did not understand Darjee to say that these dynamic factors were nevertheless irrelevant to an assessment of risk; rather, that a more nuanced view should be taken when assessing supposed behavioural problems in assessing CS’ risk of committing a serious sexual offence.[94] Behaviour should be dealt with in a way to ensure it does not escalate out of control, and so increase risk.[95] Critically, he also gave evidence that much of the behaviours of concern are related to, caused by, or contributed to by, Corella Place or difficulties with staff, particularly when closely accompanied in the community.[96] In a particularly telling, and understandable, exchange Darjee observed:

So I would hope he’s not in a situation in the community, like he was last time, where he has two people within 5 metres of him. And, you know, I don’t have the problems that [CS] has, and I would go crazy if someone said that had to happen to me. So, you know, imagine what it’s like for him having two people on top of him in that way.[97]

And later, in cross-examination:
I think there should be a lot of learning from what happened when he was at Noble Park, because I think, as I said, the intrusiveness of the accompaniment did not work… I think, unwittingly, you know, that…that whole thing set him up to fail.[98]

[91]T183.7–16 (Darjee).

[92]T183.22–30 (Darjee).

[93]T183.31–184.9; T206.19–207.20 (Darjee).

[94]T242.29–243.5 (Darjee).

[95]T207.17–20 (Darjee).

[96]T196.3–198.22 (Darjee).

[97]T216.24–30 (Darjee).

[98]T240.9–24 (Darjee).

Darjee favoured a trauma-informed approach.[99] Such an approach has so far, over the past 12 years, not been adopted by the Post Sentence Authority (‘PSA’) who are ultimately responsible for management of CS’ conditions on the SO.[100] Darjee gave evidence that the SO, as currently implemented, has, at points, resulted in an escalation, rather than decrease, of risk (giving the example that two staff closely following is triggering for CS).[101] Simply put, the approach to date was ‘just mirroring things that would just make things go wrong in the past.’[102]
[99]T196.31-197.1.
[100]The Act s 291(1).
[101]T197.14-16; see generally T196.15 -198.22, T200.3-4, T216.6-217.4.
[102]T197.8-9.

Darjee also gave evidence of the difficulty in concluding CS’ lack of sexual offending since the index offence in 2006 is a relevant matter in circumstances where CS has been in highly controlled environments, prison or Corella Place, with minimal placement in the wider community since that time.[103] With that in mind though, Darjee did observe that two of the index offences occurred when CS was 18, noting that offending committed by teenagers is ‘very much linked’ to their developmental stage and context[104] and that ‘we know people who … commit serial sex offences as adolescents most of them just don’t commit offences as adults.’[105] In this regard, and similarly to Candlish, Darjee appeared to acknowledge there was a limitation in his risk assessment as high given that CS had not had the opportunity to be tested in the community, in a meaningful way, throughout his adulthood (having been in prison or at Corella Place for much of that period).[106]
[103]T191.2–192.4 (Darjee).
[104]T194.14–17 (Darjee).
[105]T217.22–24 (Darjee).
[106]T217.24–29 (Darjee).

Darjee did see it as significant that there was not a predisposition for or rumination on sexual offending, expressly rejecting, as irrelevant to risk of sexual offending, the comments made by CS that Candlish had noted in his report dated 16 July 2023.[107]
[107]T203.5–29 (Darjee).

Ultimately, Darjee was of the opinion that ‘at present, there is not an imminent risk of serious sexual offending.’[108] It was not clear whether this answer was given in relation to whether CS was on a SO or not. The use of ‘at present’ might suggest the former. Indeed, Darjee was later asked about the magnitude of risk of CS committing a serious sexual offence if not on a SO and residing in the community, and gave evidence in cross-examination that:

I think the only objective assessment that one could make at the moment is that if he was off a supervision [order] that there would be a high risk.[109]

[108]T192.5–7 (Darjee).

[109]T220.14–22 (Darjee).

Similarly, Darjee gave evidence in his first report that:

there is nothing to indicate that sexual violence is imminent or likely to occur either at Corella Place or if he was to be on a Supervision Order living in the community.[110]

[110]Darjee report, 7 [31].

Relatedly, and in support of this lack of imminence whether on a SO or not, Darjee gave evidence that a conglomeration of factors would have to come together in order to lead to CS’ committing a serious sexual offence.[111] Darjee gave the example of CS becoming emotionally heightened which, Darjee noted, did not mean CS would suddenly commit a sexual offence: ‘if that was the case, we would have had more sexual offences by now because he’s become emotionally heightened quite often over the last few years.’[112] For CS to commit further offences would require, Darjee noted by way of example, the conglomeration of social instability, drinking, not being in an intimate relationship, and being in a situation where he impulsively wants to have sex with a particular individual.[113] Darjee stressed that CS is not driven by fantasy or rumination over sexual violence; he is an impulsive and opportunistic offender rather than a predatory one.[114]
[111]T193.21–196.2 (Darjee).
[112]T192.8–13 (Darjee).
[113]T193.6–13 (Darjee).
[114]T193.14–17, T195.26–27 (Darjee).

Darjee noted that CS’ risk level could increase, decrease, or stay the same over the next two to three years.[115] Predicting risk fluctuations was dependent on things like the continued success of his relationship, continued absence from alcohol, stability in CS’ social circumstances, and changes in emotional and behavioural functioning and presentation.[116]
[115]T221.3-24.
[116]Second Darjee report, 2 [5].

In terms of CS’ risk minimisation, sobriety was a key protective factor[117] and that it was ‘absolutely essential’ that CS did not consume alcohol.[118] Darjee reported that CS emphasised he had not used drugs or alcohol for 14 or 15 years and had no desire to do so.[119]
[117]T192.16–20 (Darjee).
[118]T227.22–26 (Darjee).
[119]Darjee report, 6 [26].

Darjee’s second report was filed after it became clear that the NDIS funding available at the time of Darjee’s first report would likely be substantially reduced.[120] As a result, it became necessary to reconsider alternate transition arrangements. To this end, the second report contained what became termed ‘the Dr Darjee plan B’.[121] The ‘Dr Darjee Plan B’ was a pragmatic approach to the uncertainty regarding suitable accommodation and support. In short compass, it involves a gradual and staged transition for CS from Corella Place to living with his partner.[122] Darjee noted that such transitions are considered best practice in forensic disability and forensic mental health rehabilitation.[123] This approach to transition would permit monitoring of CS if he moves to less supervised living.[124] Although acknowledging that the details would need to be worked out by the relevant bodies and individuals involved in CS’ support and management, Darjee suggested that it could involve a set of monthly steps, starting with CS staying at his partners house one night a week and progressing each month to an additional night a week (provided there were no concerns about destabilisation or risk).[125] Steps could be paused or stepped back.[126] Darjee considered that such a plan should be safe, when combined with electronic location and alcohol monitoring.[127]
[120]Darjee second report, 1 [3].
[121]T244.20–21.
[122]Darjee second report, 2 [8]-[10].
[123]Ibid.
[124]Ibid.
[125]Ibid [9].
[126]Ibid.
[127]Ibid [10].

Carman

Carman is the manager of the Applications team at the Post Sentence Branch (‘PSB’).[128] She provided an affidavit outlining the supports available to CS whilst on a SO, and those that would be available if he were not subject to a SO. Notably, Carman provided further detail on the steps that had been, and would be, taken to source suitable accommodation for CS in the community.
[128]Carman affidavit, 1 [1].

Due to CS’ complex presentation, he requires both forensic and disability supports. As has become apparent in this matter and other matters before this Court, servicing both forensic and disability needs the collaboration of both Corrections Victoria and the National Disability Insurance Agency (‘NDIA’), who will provide funding for each of these needs respectively.[129]
[129]Carman affidavit, 2-3 [8].

Corrections Victoria currently provides various supports to CS, including the following:

(a) The Multi-Agency Panel (‘MAP’), CS’s care team, and facilitating the involvement of Code Black Psychology (‘Code Black’);[130]

(b) Provision of offence-specific or offence-related treatment;[131]

(c) Other miscellaneous supports, including assistance with daily living activities whilst residing at Corella Place, encouragement to partake in various social activities and programs, access to third-party supports such as the Australian Community Support Organisation, and access to in-house cultural supports such as the Aboriginal Cultural Advisor and Aboriginal Community Engagement Advisor.[132]

[130]Carman affidavit, 4 [13]-[14].

[131]Carman affidavit, 7-8 [34]-[35].

[132]Carman affidavit, 7 [29]-[33].

When CS resides in the wider community Corrections Victoria oversee the management of CS’ risk (including through enforcement of any conditions of the SO), provide supervision through Community Correctional Services, and manage incidents of concern as they arise (including providing contingency accommodation at Corella Place where required).[133]
[133]Carman affidavit, 8-10 [36]-[42].

If CS were no longer subject to a SO, these Corrections Victoria supports would fall away. He would also lose access to potential accommodation subsidised through Corrections Victoria.[134]
[134]Carman affidavit, 10 [43].

In addition to the supports funded by Corrections Victoria, CS is a participant of the National Disability Insurance Scheme (‘NDIS’) and can access supports and services through his NDIS Plan.[135]
[135]Carman affidavit, 10-12 [44].

His current NDIS Plan is substantial and the NDIS has assessed CS as requiring both Supported Independent Living (‘SIL’) and Specialist Disability Accommodation (‘SDA’). In short, SIL and SDA would provide CS with accommodation in the community which could be physically modified to suit his requirements, and access to support workers congruent to his assessed needs.[136]
[136]Ibid.

However, CS’ review of his NDIS package was on 7 February 2025 so far as the Court is aware, but at the time of writing that review is yet to be finalised. As outlined by Ms Carman, it is the understanding of the PBS, Code Black, and Arcadia Specialist Support Coordination (‘Arcadia’) that the review is likely to result in a reduction of CS’s funding, which may impact his eligibility for SDA. Nevertheless, there was no concrete evidence before the Court of how the reviewed plan would look, and therefore any potential changes to CS’ plan and available funding are, at this stage are speculative.

NDIS supports would still be available to CS if he were no longer subject to a SO; however, engagement with the NDIS is voluntary, and without a SO, he could not be compelled to engage with these supports. Similarly, the service providers can opt to disengage with any client at any time. Should the relationship between CS and any service provider terminate, delays of several months are not uncommon before a new provider is engaged.[137] Ms Carman noted that in the past, where there have been issues between CS and service providers, the PSB has intervened to mediate and manage the relationship.[138]
[137]Carman affidavit , 13 [46]-[47].
[138]Carman affidavit, 13 [48].

Ms Carman gave extensive oral evidence. Due to my findings regarding unacceptable risk, much of it is not relevant and I do not intend to extensively summarise it here. It is worth noting that Ms Carman gave evidence that should the SO cease, CS would lose funding from Corrections Victoria and the Department of Families Fairness and Housing.[139]
[139]T147.4–19 (Carman).

Submissions
Applicant

In submissions dated 2 September 2024, the applicant relies upon the assessment of Candlish to ground a submission that CS continues to pose an unacceptable risk within the meaning of s 106(1) of the Act. The applicant notes that the Court must consider two elements when determining ‘unacceptable risk’: the magnitude of risk and the seriousness of the consequences of that risk eventuating. This includes the nature and gravity of the offence and the harm that could result if the risk materialises.

The applicant relies upon the possible offending scenarios identified by Candlish (that CS could rape or attempt to rape a stranger or known female along with assaulting or physically injuring the victim). The grave nature of this offending if the risk eventuates and the high risk of such offending occurring is submitted to represent an unacceptable risk of serious sex or violence if CS is in the community without a SO. Taking these matters into account, the applicant submits that CS poses an unacceptable risk of committing a serious sex or violence offence, justifying the imposition of a SO on the existing conditions.

In closing submissions dated 14 February 2025, the applicant reiterates their submissions and further highlights that the reports of Candlish and Darjee demonstrate that CS is a high risk of committing the offence of Rape or Attempted Rape of an adult female. The applicant once again submits that these assessments, along with the nature, gravity and consequences of the relevant offending (while keeping in mind the conceptual value of CS’s liberty), should satisfy the Court that CS is an unacceptable risk of committing a serious sex offence without a SO.

The applicant refers to several matters to support the Court exercising the discretion to renew the SO after a finding of unacceptable risk. These include that:

(a) The primary purpose of the Act is the enhanced protection of the community in combination with the magnitude of risk posed by CS;

(b) The Court must give paramount consideration to the safety and protection of the community in making the decision to renew a SO;

(c) The opinion of Darjee is that CS requires supports in the community for both disability and forensic needs;

(d) The opinion of Darjee is that CS has ‘high case prioritisation’, which means that he requires more than standard practice, and the opinion of Candlish that this means that CS will require much intervention to manage his risk;

(e) The suggestion of Darjee that CS ought to be gradually transitioned from Corella Place to the community through a gradually stepped plan that is slow, gradual and monitored for at least six months. This must further involve the monitoring of CS’ relationship with his partner, as well as any incidents or inappropriate behaviour, and must not involve the consumption of alcohol;

(f) The decision to not renew the SO will mean that CS no longer has the assistance of the Care Team, Code Black Psychology, nor the Behaviour Support Practitioner. This will, in the opinion of Candlish, result in CS experiencing increased stressors, destabilisation, disinhibition and dysfunctional coping and will place additional stress on the relationship with his partner and potentially lead to an increased risk of re-offending;

(g) The opinion of Darjee that the transition should be managed on the assumption that it will fail in some way and will need to be paused or stepped back before further progression;

(h) The opinion of Darjee is that the relationship is the only protective factor and that, as there is the potential for the relationship to fail, it must be carefully supported during transition to allow it to prosper;

(i) The opinion of Candlish is that there is the potential for CS to experience heightened emotionality (including by experiencing anger and dysregulation in the form of hostility or aggression); and

(j) The opinion of Darjee is that the professionals involved with CS (including Code Black Psychology, the Behaviour Support Practitioner, the Specialist Case Manager and staff at Corella Place) must carefully work out the staged transition in consultation with CS and his partner to ensure the move is conducted in a safe way.

Once satisfied that the SO ought to be imposed, the applicant submits that the magnitude of risk will only reduce through a sustained period in the community and the development of further protective factors. As a result, the applicant submits that the SO should be renewed for three years with a review after 18 months.

In terms of conditions, the applicant submits that a residential condition should be made that requires CS to reside at a ‘residential facility’, rather than at his partner’s property, to support the development of the relationship and to allow for the development of safety plans.

The applicant continues to advocate for electronic alcohol monitoring to ensure that there is no consumption of alcohol throughout the transition period. The applicant further maintains that CS be accompanied by two staff on outings, noting that this requirement can be relaxed by the PSA.

Respondent

In opening submissions dated 24 January 2025, counsel for the respondent highlights the negative impacts of the SO on CS, including the ongoing unsuitability of Corella Place, the strain that his residential situation is placing on his budding relationship, and the stress caused by the fruitless attempts to find appropriate accommodation. CS’ primary position is therefore that the SO should not be renewed. In the alternative, CS seeks an SO with a review in 12 months and opposes the imposition of a condition requiring him to reside at a residential facility, be always accompanied in the community, and continue to wear an electronic alcohol monitoring device.

In submissions dated 17 February 2025, CS once again submits that his primary position is to oppose the SO.

CS submits that the applicant has confined their case to unacceptable risk. In determining whether the risk identified by the experts is unacceptable, CS points to a number of factors:

(a) CS has not committed or been convicted of a serious sex offence since June 2006.

(b) Darjee and Candlish agree that the risk of a serious sex offence is not imminent.

(c) The relationship between CS and his partner is considered protective for a number of reasons and has existed since March 2024.

(d) CS has made significant progress over the past three years, from a position where a detention order was seen as the only acceptable way to manage his risk to a consensus that he ought to reside independently in the community.

(e) CS has showed improvement in a number of areas, including a reduction in behaviour concerns, a demonstrated ability to engage with supports and his Special Case Manager, a more stable presentation, and no further significant time in custody.

(f) A number of dynamic risk factors have reduced.

CS submits that many of the incidents of aggressions and ‘behaviours of concern’ at Corella Place have little value to the assessment of his risk, as this facility is contrary to his disability needs. CS submits that the same consideration ought to be applied to aggressive behaviours in Noble Park, which were sparked by the close proximity of workers which is not appropriate to his needs. CS also submits that these behaviours are not indicative of a move towards committing a serious sex offence, as explained by Darjee.

Even if the Court is satisfied that the risk is unacceptable, CS submits that the Court has the discretion to make no order and that this discretion ought to be exercised in the circumstances. This is on the basis that there has been a lack of progress towards appropriate community accommodation over the past 12 years. CS submits that the Court can consider the impact of an order on the offender, and notes that Corella Place was recognised as a transitional option in 2013. The issues with sourcing appropriate accommodation for individuals with intellectual disabilities is out of CS’ control and has previously been identified as an area for improvement.

CS submits that the prospect of a staged transition is promising, but that the Court should not have confidence that this plan will commence in the near future. This is placing strain on a relationship that is considered protective by both experts.

CS further encourages the Court to consider the following factors in exercising the discretion:

(a) CS has accommodation available with his partner.

(b) CS has made progress since 2021 and his personal circumstances have markedly changed in that time.

(c) He has never committed a serious violence offence and he has not been convicted of a serious sex offence since 2006.

If the Court imposes a SO, CS continues to oppose the imposition of conditions for residence at a facility, accompaniment, and electronic alcohol monitoring. Such an order ought only be renewed for a period of two years with a review after one year.

CS also seeks a non-publication order on the evidence of both experts that successful reintegration into the community is likely to further reduce his risk of reoffending and any publication would have an adverse impact on his rehabilitation. CS submits that a non-publication order is in the public interest.

Consideration
Unacceptable risk

As I have outlined above, the starting point in this application is to explore, relevantly (given CS is not in custody), whether CS poses an unacceptable risk of committing a serious sex offence if a SO is not made and he is in the community. The very nature of the Act is that it is protective of the community.[140] It achieves this by providing the Court power to make certain orders which have enormous repercussions on the rights of individuals subject to them. Those individuals must be capable of meeting a high and inherently serious threshold; that threshold being an unacceptable risk, relevantly in this case, of committing a serious sexual offence if not on a SO and in the community. The risk must be sufficiently high and real, making it an unacceptable risk, to justify the imposition of an order which has, as noted above, an enormous impact on the individual subject to it, for the protection of the community. I consider that because the legislature has sought to protect the community by using such a high threshold, such orders should only be made in the most exceptional of cases.
[140]The Act, s 1(a).

This analysis is strengthened by Nigro. As the Court of Appeal explained in Nigro, whether the risk is ‘unacceptable’ depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. If there is a ‘sufficient likelihood’ of the risk, when considered with the magnitude of the harm and any other relevant circumstances, the risk is unacceptable. This must be established by acceptable cogent evidence and to a high degree of certainty. It is a high threshold.

The acceptable, cogent evidence available to the Court for the assessment of risk is in the form of expert evidence by psychiatrists and psychologists practised in the use of actuarial and structured professional judgment tools that help them to formulate a likelihood of the sort envisioned by the legislation. In receiving the evidence, the Court of Appeal on another occasion has cautioned that where ‘the expert opinion is both cogent and unchallenged, a judge should ordinarily be slow to depart from the risk assessment which the expert has made’.[141]
[141]RJE v Secretary to Department of Justice (2008) 21 VR 526, 532 [18].

Risk by definition is about uncertainty. Uncertainty about serious sex offending raises anxiety among the public, professionals and the courts. It is an issue that is open to over-response of a punitive or restrictive nature.

The courts strive after as accurate a prediction of risk to enable us to draw clear lines between unacceptable risk and not unacceptable risk. Regrettably the desire for greater certainty in risk assessment by the courts remains somewhat elusive.

While the Court must have regard to the careful and considered opinions of Darjee and Candlish – the Court must also be conscious of the limitations in forensic assessment and it is the Court that bears the ultimate responsibility of deciding what is an unacceptable risk. This is not an exercise in which the Court does not have full regard for the expert evidence and their conclusions. However, the assessment is more than a blanket and wholesale acceptance of the expert opinions. The final determination of whether a risk is unacceptable or the exercise of the residual discretion demands a more nuanced approach and a consideration of the expert evidence and the totality of the evidence before the Court. It must be remembered that the risk assessment tools relied upon by the experts in this case do not predict with any certainty what any one person might do at any one point in time. The risk assessment tools present a framework that allows for, and to some extent contains, uncertainties and possibilities. The emphasis of the tools it seems is on providing theoretically sophisticated and informed risk formulations, scenario planning and risk management interventions.

There are undoubtedly limitations to these risk assessment tools and both experts in this renewal application were alive to these shortcomings. Candlish, implicitly, acknowledged that his risk assessment was constrained by the fact that CS has spent the better part of 12 years in prison or Corella Place.[142] Darjee explained that the actuarial tools provide a broad starting point to the assessment of risk, but are not personal. Despite these concerns, both experts remain confident in the assessment that they were able to reach through their use and there was no earnest challenge to the reliance on risk assessment tools.
[142]T138.20–139.18.

The experts expressed a firm view that CS poses a high risk of committing a serious sexual offence of the type named in the Act if released into the community without a SO. Despite qualifications to this evidence, neither expert moved from this position at the hearing. On the other hand, the experts agreed that CS poses a moderate-high risk of committing a serious violence offence.

There is no reason for me to doubt the risk assessment as carried out by Candlish and Darjee. I accept their evidence that CS poses a moderate-high risk of committing a serious violence offence and for that reason I am satisfied that he does not pose an unacceptable risk of committing a serious violence offence without a SO. This conclusion was accepted by the Applicant.

Equally, I accept their evidence that CS poses a high risk of committing a serious sexual offence without a SO. It is important to recognise that the legislature has expressly chosen to set a different threshold for the assessment of risk, even though all the present risk assessment tools were in existence at the time of enactment. As a result, while the expert evidence is that CS poses a high risk, there is clearly an intentional lacuna in the legislation between the assessment of the experts and a finding of unacceptable risk by the Court that is required to justify the ongoing supervision of a respondent.

As a result, it is necessary to delve further into what is meant by the phrase ‘unacceptable risk’. To that end, I consider that there must exist cogent, acceptable evidence that CS poses a real and tangible risk of committing a serious sexual offence in the community without a SO. This conclusion is fortified by the finding in Nigro that a sufficient likelihood of the occurrence of the risk must exist. Although risk is definitionally hypothetical, I consider that it cannot have been the intention of the legislature to enable the Court, through use of the phrases ‘poses’ or ‘will pose’ in s 14(1)(a) of the Act, to entertain merely remote hypothetical risks as the basis for making an order under the Act. As is made clear by Nigro, the likelihood of risk occurring must be sufficient. Accordingly, this requires considering the likelihood of CS offending, the magnitude of potential harm and any other relevant circumstances.

In many respects it is easy to understand the potential harm that may arise if CS reoffends, as the index offending provides a clear indication of the serious conduct of which he is capable. It is impossible to divorce this offending from the likelihood of it reoccurring. To this question, the evidence of the experts is significant.

The following factors have led me to the conclusion that CS does not pose an unacceptable risk of committing a serious sexual offence if in the community and not subject to a SO.

First, and perhaps most importantly, both experts agree that CS does not pose an imminent risk of serious sexual violence. Instead, they agreed that any offending would be preceded by a period of escalating behaviour that culminates in a serious incident. This preceding period, described by Candlish and Darjee, was likely to arise in circumstances where CS is experiencing significant instability and where CS is drinking, much like he was at the time of the index offending. No cogent evidence was presented as to the likelihood of such a period of instability and intoxication eventuating. To the extent that evidence was presented around alcohol, it was that CS has maintained, for several years of Darjee assessing him, that he has no desire to drink again. There has been no evidence that CS has tried to source alcohol or have someone else source it for him, either at Corella Place or whilst in the community. Similarly, there was no evidence that CS has tried to source illicit drugs. To the contrary, at least so far as it shows CS has not abused drugs, the Court was informed that CS voluntarily took methadone and has done so for some time.[143]
[143]T48.14–23 (Candlish).

In Darjee’s opinion, it would take a conglomeration of factors to come together before the risk of offending would materialise. There was simply no cogent evidence as to the likelihood of this conglomeration of factors coming together. In that respect, the risk appears to be, in some respects, entirely hypothetical given the dearth of cogent evidence as to the likelihood of the particular risk factors coming together, in a perfect storm, for offending to take place. Candlish gave evidence about it being ‘likely’ that CS would experience destabilisation if not on a SO.[144] That conclusion was grounded, in part, by the problems CS has demonstrated ‘in his relationship with other people’ and issues associated with his personality impairment.[145] Candlish was primarily referring to the problems CS has had with staff or service providers since being placed on a SO. As will be discussed, I do not agree with Candlish’s ultimate conclusion that these problems with other people are sufficiently indicative of the risk that CS may reoffend.
[144]T84.14–15 (Candlish).
[145]T84.16-20 (Candlish).

Secondly, Darjee explained that CS does not present as a predatory sexual offender. He explained that his offending arises as opportunistic and because of other risk factors, such as the consumption of alcohol. This contrasts with behaviour that is planned and pre-meditated.

Relatedly, Darjee stressed the importance of CS’ youth at the time of his index offending.[146] CS is now 39 and has not committed a serious sexual offence since the time of his index offending in 2006.
[146]T217.16-21 (Darjee).

Darjee also said that CS’ risk of serious sex offending could be lowered by the mere passage of time, noting that ‘you’d expect these [risk] factors to get better with age’[147] and that:

I think it’s important to acknowledge that, actually - you know, going back to what I said earlier, here – here’s a man who, when he was a teenager, committed his first two offences and when he was a young adult committed his third offence, and he was young. And at that point – and we know people who even commit serial sex offences as adolescents most of them just don’t commit offences as adults. On the other hand, we haven’t had the opportunity to test that properly. So - and I think that - and I think the only way to really be upfront about that is to say, this latent thing which we - none of us can see, we’re just trying to estimate it, could be lower than it looks like. But from the information we’ve got, objectively, we have to categorise him as high risk because all the factors and tools are pointing to that.[148]

[147]T190.3–25 (Darjee).

[148]T217.16–31 (Darjee) (emphasis added).

When considered with the conglomeration of factors analysis above, this is persuasive evidence that CS does not pose an unacceptable risk. It indicates that there is not, in the words of Nigro, a sufficient likelihood of the occurrence of the risk.

Thirdly, CS has not sexually offended in over a decade. While it is easy to discount this as the product of the ongoing SOs, there have not been any occasions that indicate any sort of intention to commit such offending. In particular, Darjee expressly rejected the suggestion that the one incident Candlish could point to involving comments by CS should be seen as in any way related to the risk of sexual offending.[149] It is telling that CS has maintained his high-risk rating throughout the period of his various SOs and not committed further sexual offending. This can be contrasted with his heightened behaviours, such as swearing and aggressive outbursts, which have persisted over this period. The impulsive, reactionary nature of such behaviour, when CS’ disability and personality impairment are considered, suggest that he is not an individual who would likely be capable of masking a desire to commit a serious sexual offence. Indeed, Darjee noted that, consistently with the above, CS is not a ruminating, predatory sexual offender; but an impulsive one. The effluxion of time has shown that this high risk of serious sexual offending has not eventuated. Instead, CS has been able to form and maintain (almost against all odds, in the most trying of circumstances) a prosocial relationship with his partner.
[149]T203.14–29 (Darjee).

Fourth, CS has made significant progress over the last three years. Candlish previously gave evidence in the 2021 detention order hearing that CS was only able to be safely managed in prison.[150] The experts both agree that CS should now be living independently in the community.[151] Relatedly, Candlish acknowledged that there has been a reduction in the number and severity of the behaviours of concern, dynamic risk factors had reduced,[152] that CS had not spent any significant period in custody since 2021, and that CS had increased his engagement with supports and supervision sessions.[153] Darjee also noted CS had made progress, citing that he is generally calmer, has improved his emotional regulation, reduced impulsive behaviour, improved self-awareness, and has improved his response to supervision.[154]
[150]T26.6-29 (Candlish).
[151]T26.2-4 (Candlish); Darjee report, 8 [36], 10 [48].
[152]T29.23-24 (Candlish)
[153]T26.6-28.9 (Darjee).
[154]T190.3-25 (Darjee); see also Darjee report, 6–7 [30].

Candlish pointed to CS’ failure to engage with offence specific treatment as one of the factors that contributes to the risk of CS reoffending. Darjee was of the opinion that CS should not be doing offence-specific treatment ‘full stop’,[155] and that it was not really relevant.[156]
[155]T207.26-28 (Darjee)
[156]T208.24-25 (Darjee).

Fifth, the experts acknowledged, though to differing extents, that CS’ behaviour is in some ways a product of his personality impairment and cognitive deficits, and at least so far as Darjee was concerned, impacted by his residing in Corella Place or how he has been managed whilst living in the community.[157] In this regard, whilst I acknowledge the evidence of Candlish that these behaviours of concern may be relevant to an assessment of risk in that they demonstrate underlying risk factors (dysregulation for example), I prefer the evidence of Darjee that a more nuanced view is required; one whereby conduct is assessed in context and not presumed to be indicative of an increased risk of sexual offending.
[157]See T17.3-11 and T37.22-28 (Candlish); T183.7-184.9, T196.3-198.22, T206.19-207.20, T216.24-30 and T240.9-24 (Darjee).

More generally, I accept that such conduct is relevant to the role of experts in categorising a respondent as low, moderate, or high risk. But repurposing Darjee’s more nuanced view, I soundly reject the notion that such matters as breaking curfew by ’several minutes’ or having his partner stay six minutes after the curfew imposed for visitors, as identified by Candlish as behaviours of concern,[158] is, in any way, relevant to whether CS is an unacceptable risk of committing a serious sexual offence in the community if there is no SO.
[158]Candlish report, 8 [64], 11 [83].

In any event, and more generally, I accept the respondent’s submission that the various behaviours of concern identified by Candlish whilst CS has been at Corella Place, and whilst inappropriately managed in the community, and summarised at [34] above are of limited value in the assessment of whether CS poses an unacceptable risk of committing a serious sexual offence. This is because it is well established that Corella Place is inappropriate for someone with CS’ disability needs, and because the manner CS was managed whilst in the community (for example, having support workers in close proximity to him) is liable to retraumatise, and re-trigger, CS. Darjee was adamant that the behaviours of concern are products of CS’ living situation and not evidence that usefully assists in estimating CS’ risk.

The evidence before the Court indicates that CS does not pose a risk of imminent serious sexual offending if he were in the community without a SO and that the occurrence of such behaviour will arise as the result, primarily, of instability and a return to alcohol. As discussed, there is no evidence before the Court that CS intends to consume alcohol. He has not had any alcohol for at least 12 years. To the contrary, when previously in the community and in a number of licensed venues, there has been no suggestion that CS sought alcohol or attempted to deceive his carers. CS has repeatedly told Darjee that he does not want to use alcohol.

CS’ housing situation, without a SO, is uncertain. This is a relevant factor as it goes to CS’ stability if he is in the community without a SO. Carman gave evidence that a search for medium term accommodation in the community, which had been occurring up until a few days before she gave evidence,[159] had ceased as accommodation is in part dependent on the NDIS review being finalised.[160] To date, the Court has not been informed of the outcome of that review. However, the legislation expressly prohibits the Court from considering the means of managing risk in determining whether the risk is unacceptable. For the purposes of this part of the exercise I must operate only on the evidence before the Court. To that end, noting that it forms no part of my assessment of risk, I am told that CS has accommodation available to him with his partner and that they intend to marry at the end of this year.
[159]T163.20–24 (Carman).
[160]T146.1–18 (Carman).

The Court was presented with concerns about the safety of CS’ partner and concerns about whether she has in place a ‘safety plan’ if CS were to live with her to deal with CS. Beyond the striking paternalism of these concerns, it is important to recognise that these are not matters that I may consider in determining whether CS poses an unacceptable risk. I accept that CS’ partner is a consenting adult.

Moreover, there is no evidence of CS having any propensity to commit intimate partner violence. Candlish assessed CS as requiring ‘moderate’ case prioritisation however noted that in ‘the absence of any information suggestive of spousal assault history, it is difficult to determine possible risk scenarios’.[161]
[161]Candlish report, 24 [184]; see generally 24 [181]–[185].

There is a risk that CS will find himself in an unstable situation in the future if this relationship fails. However, it is not possible for me to adequately assess the likelihood of this occurring and it is beyond the scope of the expert evidence. It is however relevant to note that Darjee gave evidence that everything should be done to ensure CS’ relationship with his partner develops and continues to be positive. Darjee noted that if it did fail, that would be something that would be dealt with at that point in time:

It would be an awful thing if it failed, but I think we also have to remember that relationships do sometimes fail, and, you know, most of us probably had failed relationships, and that’s also an opportunity to learn. So I think, you know, it has to be given every opportunity to develop and hopefully be positive, and hopefully it won’t fail, but if it did fail, you deal with it at that point.[162]

[162]T236.16–24 (Darjee).

The critical evidence is that CS does not pose an imminent risk of committing a serious sexual offence. It would require a conglomeration of factors. There is no temporal element to the test for unacceptable risk from the Court of Appeal. On the one hand, this could mean that evidence of risk at any indeterminate time could justify a finding of unacceptable risk, permitting the indefinite detention of an individual. As we heard in this hearing, many of the tools are reliant on static factors that are never likely to change, and even the dynamic factors take a long period to reduce. Assessing the risk in the immediate and near future is a more straightforward exercise in this case. The assessment of risk further into the future is a harder task. Great care must therefore be taken about assessing the real nature of CS’ risk into the future. There must be a proper degree of certainty about the latent risk eventuating sometime in the distant future to conclude it is unacceptable.

On that basis, and currently upon the expert evidence, I am not satisfied that CS poses an unacceptable risk of committing a serious sexual offence if a SO is not made and he is in the community, considering the overarching purpose of community protection. Simply put, the evidence does not establish, to a high degree of probability, that there is a sufficient likelihood of the occurrence of the risk. I acknowledge that the magnitude of harm that may result would be large; but considering this alone is not what is required of the Court in conducting its assessment of whether a risk is unacceptable.

Residual discretion to make no order

As acknowledged in the Explanatory Memorandum for the Serious Offenders Bill 2018 (Vic), the making of a SO is a discretionary power, and the Court is not obliged to make an order even if the criteria for making it, that the respondent is an unacceptable risk, is satisfied.[163] The exercise of the discretionary power contained in s 14(6) of the Act is not subject to any express mandatory factors. In essence, if the Court is satisfied that CS poses an unacceptable risk of committing a serious sexual offence if a SO is not made and he is in the community, it may make a SO or it may make no order.[164] However, as noted in Nigro, the discretionary power must be understood as confined to the subject matter, scope and purpose of the statute.[165] Relatedly, ’the nature of any order that is made and its effects upon the offender, including its impingement upon his rights, are matters to be taken into account when exercising the discretion’.[166]
[163]Explanatory Memorandum, Serious Offenders Bill 2010 (Vic), 10.
[164]The Act, s 14(1)(a), s 14(6).
[165]Nigro, 409 [188].
[166]Nigro, 387 [103].

Had I been satisfied that CS posed an unacceptable risk of committing a serious sexual offence if not on a SO and in the community, I would nevertheless have exercised my discretion under s 14(6)(b) of the Act and made no order. As I have previously observed in this proceeding, though in respect of the analogous residual discretion not to make a detention order contained in s 62(5) of the Act:

By providing a separate and overriding discretion not to make an order under s 62(5), the legislature must have recognised that particular considerations, apart from community protection, may exist to justify refusal of an application for a detention order despite a positive finding of ‘unacceptable risk’.[167]

[167]DPP v CS [2021] VSC 686, [202].

The following considerations, cumulatively and in short overview, justify the refusal of an application for a SO, in the event I had found that CS poses an unacceptable risk and justify the exercise of the residual discretion:

·the overwhelming view of the experts is that Corella Place is unsuitable for CS. In fact, that it is detrimental to his progress and wellbeing;
·the evidence of Darjee establishes that Corella Place and the conditions of the SO while CS resided in the community contribute to his behaviours of concern and the persistence of dynamic factors that contribute to the characterisation of CS as being at a high risk of committing a serious sexual offence;
·relatedly, the evidence of Darjee establishes that the approach to managing CS in the community whilst he has been on a SO has not been tailored to trauma informed practice and is detrimental to CS and his prospects of rehabilitation and wellbeing. Darjee commented that what is being done to CS when he is in the community is re-triggering him and making things worse.[168] In short, CS’ management under the SO be it at Corella Place or in the community has unwittingly set CS up to fail;
·since 2021, CS has remained at Corella Place and there is presently great uncertainty about any transition to the community due to a number of factors including the uncertainty around NDIS funding (a matter there is still no evidence regarding);
·on the other hand, if the residual discretion is utilised to make no order, CS is able to move into his partner’s house;
·the evidence of Darjee and Candlish is that CS’ partner is a protective factor in his not offending;
·although the relationship, of course, may not work out between CS and his partner, and even without the supports provided by Corrections Victoria, there is no evidence that CS will be completely without NDIS funding (rather, the evidence, such as it is, is that it will be reduced);
·the evidence of Darjee and Candlish is that there is not an imminent risk of sexual offending, rather there would be a conglomeration of factors that would need to materialise for risk to eventuate; and
·CS will join the community where supports (for mental and physical health) and protections (including regular policing) exist to recognise what will be obvious escalations in his behaviour if the conglomeration occurs. As I have said above, the imposition of an SO must be reserved for the exceptional situation where the ordinary protections in the community are not adequate.

[168]T197.14–16 (Darjee).

Having been involved in numerous applications concerning CS and orders under the Act before this Court, it seems that the approach which has been persisted with while CS has been on the SO has been overly restrictive and has not allowed CS to progress. Darjee stressed the importance of public safety but noted that in risk management there is an emphasis on the errors of not being cautious enough.[169] He went on to say ‘whereas we don’t worry about the errors of being overly restrictive and the damage that that can do on people and, kind of counterintuitively, increasing risk that way’.[170] Darjee later stressed the dangers of hyper fixating on risk without consideration of a person’s wellbeing, stating that:

whether I’ve been working with high-risk offenders or forensic patients, or forensic learning disabilities or terrorists that people are worried about, I can’t think of situations where you improve someone’s wellbeing in life and you increase risk to the public.[171]
…
And also I think - you know, not - not - not on purpose, but doing things with this kind of emphasis on risk, without thinking about the other side, or without prioritising the other side, kind of inadvertently increases risks to the public.[172]

[169]T237.7–9 (Darjee).

[170]T237.9–12 (Darjee).

[171]T255.22–27 (Darjee).

[172]T256.8–12 (Darjee).

What I can derive from Darjee’s frustrations and perhaps disillusionment with the way in which individuals like CS are managed, is little optimism that CS’ circumstances will change significantly if he remains on a SO. Darjee agreed that the reality is that there is a real prospect that, while CS is on a SO, another two years could go by and not a lot of change will happen.[173] Darjee considered that if CS remains on a SO without any real change to the restrictions and his circumstances it will leave CS feeling hopeless and desperate:[174] ‘I don’t know what it’ll do to his relationship. It’s certainly not going to reduce risks to the public in the longer term’.[175] CS had expressed his frustrations to Darjee in an interview in preparation of Darjee’s first report, saying of Corella Place and being on a SO, ‘I’m over it’.[176] CS also expressed his sense of hopelessness at the end of the current hearing when he said ‘Well, I’m trying to start my new life, Your Honour, and I’m not getting nowhere’.[177]
[173]T256.24–28 (Darjee).
[174]T256.29–30 (Darjee).
[175]T256.30–257.1 (Darjee).
[176]Darjee report, 5 [20].
[177]T262.16–17 (CS).

Darjee was asked about the PSA’s role in determining the level of restrictions put in place and his level of confidence that if things went well in CS’ relationship that restrictions imposed would be lessened. Darjee said ‘With respect to the Post Sentence Authority and other people, I would expect – I don’t know if I would have confidence that that would happen’.[178] Darjee went further in expressing that, in his opinion, in Victoria there is no setup that really works for individuals, like CS, that have forensic and disability needs.[179] He went as far as describing the failure of a coherent system to meet the needs of complex individuals such as CS and the reliance on the NDIS system as being ‘just a terrible system’.[180]
[178]T222.7–17 (Darjee).
[179]T226.20–26 (Darjee).
[180]T227.1–6 (Darjee).

Critically, Darjee gave evidence that the way in which CS has been managed in the community was ‘clearly in terms of escalating his risk, rather than deescalating his risk’[181] and that ‘some risk management strategies are going to make things worse’.[182] I consider that the management of CS, fixated as it is on risk and risk management, has not relevantly considered CS’ wellbeing. Accepting Darjee’s evidence above, this has the potential to inadvertently increase the risk CS poses to the public. Again, this is antithetical to the primary purpose of the Act.[183]
[181]T216.13–14 (Darjee) (emphasis added).
[182]T200.3–4 (Darjee) (emphasis added).
[183]The Act, s 1(a).

Relatedly, it is important to recognise that the 12 years CS has been on one form of SO or another has been marked by a failure to meaningfully progress him out of Corella Place or give him any real chance of successfully living in the community. This is despite Judge Campton’s comments, at the time of the making of the original SO in 2013, that it was very important that CS ‘realise that [Corella Place] is only a temporary placement and that the [Secretary] is keen to find him alternative accommodation’.[184] In the latest instance, since the revocation of the direction permitting CS to live in the community, on 12 April 2024, CS has remained in Corella Place. This is despite the PSB recommending, on 7 May 2024, that CS continue to reside at Corella Place for a further four weeks.[185]
[184]Secretary to DoJ v [CS] [2013] VCC 36, [57].
[185]Re CS (No 3) [2024] VSC 594, [16].

The continued placement at Corella Place has impacted CS and contributed, significantly, to his cycle of problematic behaviour. Darjee, particularly, acknowledged as much. It is worth repeating my findings, from the detention order application, in 2021:[186]
[186]DPP v CS [2021] VSC 686, [168]–[171].

The respondent made various allegations with respect to the conduct of the Secretary, Victoria Police and others in the course of the hearing. These are conveniently set out in the applicant’s submissions dated 17 August 2021 at paragraph 2(d). While I do not consider it necessary to make any findings in relation to those allegations, I do consider that evidence of the ways in which the respondent has been managed whilst on a supervision order, including at Corella Place, demonstrates that certain approaches to his management are associated with an increased likelihood of aggressive behaviour by the respondent.

In particular, I accept that in his time at Corella Place, and whilst on remand or imprisoned, the respondent did not have the kind of disability and trauma informed management approach which the experts agree is necessary to manage his behaviour and increase his treatment readiness. Therefore, any deterioration in the respondent’s behaviour during this period, and consequent increase in his risk of violence, has at least in part been contributed to by his inappropriate management. For example, Dr Darjee gave evidence that at Corella Place:
... there’s so many examples of things that were done that... seem to be unnecessary... but which have probably triggered [the Respondent]. Again, and that’s no criticism to the members of staff who’ve done that in the moment because we’ve all done that with individuals like [the Respondent] and I, I’ve done it myself with patients that I’ve treated because in the moment all sorts of things happen. But they have potentially made things worse at the time and led to escalating behaviour.

At least some of the need for greater containment of the respondent is because of the impact of the instability, and prolonged periods of incarceration, on his behaviour. His cycling through Corella Place and prison over eight years has created the need for greater security, and this is now the root cause of the present problem, given no currently available facility is said to be able to meet both his treatment and security needs. The evidence also suggests that the respondent’s current inability to engage with treatment — which the applicant posits as a major justification for a detention order — is partly the product of the respondent being denied appropriate management over the past eight years.

I consider that, in circumstances where an offender’s escalating behaviours and therapeutic disengagement are at least partly the product of inappropriate management, a court should be very cautious about accepting those factors as the main justification for ongoing detention.

Should CS remain on a SO, there is great uncertainty about his ability to transition out of Corella Place. Carman perhaps put it most starkly in her recognition that active attempts at finding accommodation for CS had ceased upon finding out that the NDIS package CS was previously allocated would be reduced, and that attempts were dependant on the outcome of the NDIS review.[187] At the time of writing, the Court has still not been informed of the outcome of the NDIS review. In those circumstances, Corella Place is the only place that the Court could be satisfied CS would reside, for an indeterminate amount of time, there being no other options presently available or even being investigated (absent completion of the NDIS review). This uncertainty is to be contrasted to the state of play if the residual discretion were exercised; namely, that CS would be able to move into his partner’s property.
[187]T146.2–11 (Carman).

Attempts to source an SDA have been unsuccessful since CS was directed to reside at Corella Place (from the Noble Park property) on 12 April 2024. It bears repeating, on 7 May 2024 the PSB noted the actions that were needed for CS to transition back to the community and recommended that he be directed to continue to reside at Corella Place for a further four weeks.[188] It was always known the Noble Park property lease would end and could not be renewed. CS quite rightly expressed utter frustration when he said in Court on 7 February 2025 ‘when I got put back at Corella they said four weeks. My four weeks…turned into eight months’.[189] That eight months creeps ever closer to nine months at the time of writing.
[188]Corrections Victoria, Special Report (7 May 2024), 7.
[189]T139.24-5 (CS).

The barriers to sourcing appropriate accommodation has been a recurring issue for CS and are due to factors largely out of his control. A strong point of agreement between Candlish and Darjee in the current hearing is that Corella Place is not an appropriate facility for CS’ needs and that he should be transitioned into the community. It must not be forgotten that over the last 12 years CS alternated between prison and Corella Place, neither environment suited to his disability needs. He has only spent three short periods living in the community in supported accommodation.

There was much evidence about the prospect of a transition to his partner’s house under a SO. I do not have confidence that any such transition will commence in the near future having regard to CS’ history on the SO, the issues that were relied upon as factors contributing to the unsuitability of his partner’s house in the environmental scan,[190] and as noted in the respondent’s submissions, the content of the Code Black Care Team Meeting Minutes from 5 and 6 February 2025 which included:

Care team’s concerns remain significant about [CS’ partner’s] vulnerabilities and [CS’s] lack of engagement in treatment – believe there needs to be significant work in this space prior to any transition being considered.[191]

[190]Exhibit A7, Copy of e-Scan dated 13 September 2024.

[191]Exhibit A11, Code Black Care Team Meeting Minutes dated 5 February and 6 February 2025, 5.

Darjee gave evidence in his first report that it ‘is too early and probably too big a step’ for CS to step down from Corella Place to living with his partner at present.[192] This statement was on the assumption that CS remained on a SO.[193] This was clarified in his second report, once it became clear that NDIS funding would be reduced:

I[t] would be too big a step for a quick or short transition to living with his partner. But a slow, gradual, monitored transition over at least six months would mitigate that. And as suggested…the ultimate destination was for him to move to living with his partner. In some ways the kind of plan I have suggested would provide for a more gradual transition to living with his partner than what might happen if he transitioned from supported accommodation to living with her.[194]

[192]Darjee report, 10 [51].

[193]Ibid.

[194]Darjee second report, 4 [20].

This was further clarified during oral evidence. Darjee noted:

I think a long period of – longer period of planning, what’s that going to do? You can come up with scenarios, and if this, if that, and if – you know, you’re better off doing it gradually in practice and learning as things as you go along, as long as you keep it safe rather than trying to kind of do lots and lots of planning and then suddenly going, “Okay, we'll now drop you off a cliff and we’ll see how that goes.” It doesn’t make any sense to me to – to – to do it in that way.
I think there is a pragmatic issue which I’m aware of in that doing this from Corella Place to the area that his partner lives in might be quite difficult given the distance and the time, but I still don’t think, you know, that would justify an approach of lots of planning and then all of a sudden saying, “Okay, you’re living with your partner.” And I think that one of the other problems with that might be that because that’s quite a big step, it might mean that services put in place lots of intrusive accompaniment and things like that that will potentially trigger him in a situation that’s quite stressful anyway, because he suddenly moved a big step. You know, big steps are not a good idea in general, I don’t – I – you know, I – certainly, when I’ve been working in services, I’ve never recommended them for anyone.[195]

[195]T211.23–212.19 (Darjee) (emphasis added).

The characterisation of moving to his partner’s home as a ‘big step’ appears to be, on Darjee’s evidence, predicated on the assumption that CS is on a SO. The complicating factor appears to be the concern that there will be management of CS which, as described above, is intended to counteract the rapid change that CS would experience from living in Corella Place to living with his partner, absent a gradual transition, but may in fact escalate risk. The evidence says nothing about whether CS would find it too big a step to live with his partner, not subject to a SO. In one respect, CS living with his partner will be a big step no matter what. He has resided in Corella Place or prison for many years. But the evidence is clear that his management on the SO has not been conducive to CS’ wellbeing and has had the potential to escalate risk. Any move, especially a move to living with his partner without a SO in place, is a big step and change for CS. The alternative is that CS will continue living as he is under a SO with no real prospect of any change soon, which for the reasons set out above, is unacceptable.

It almost beggars belief that CS has only been permitted to have face-to-face contact with his partner approximately once per fortnight for around three hours and is accompanied by two support workers.[196] This relationship is unanimously considered to be the strongest protective factor for CS. Beyond that, it is the first real and meaningful relationship CS has had in 12 years. Despite this, his opportunity to nurture and strengthen this relationship is undermined by the SO. Further, the Court was informed that CS has not recently seen his mother as he ultimately must choose between time with his partner or time with his mother.[197]
[196]T155.12–157.20 (Carman).
[197]T162.4–12 (Carman).

Keeping in mind that the exercise of discretion is confined to the subject matter, scope and purpose of the Act, and that the nature of a SO and its effects upon CS including its impingement on his rights are matters to be taken into account, I consider that the exercise of the discretion ought be utilised to make no order. Exercise of the power in this way can achieve the primary purpose of the Act, as well as its secondary purpose (noting the irrelevance of the third purpose, to repeal prior legislation). How it does so is made clear by consideration of the impact on CS if the discretion to make a SO were utilised.

The impact on CS if the discretion were utilised to make a further SO is clear: absent any evidence regarding the NDIS review, I consider CS will remain at Corella Place for some indeterminate time. As Darjee accepted, it is a real prospect that if he is on a SO for another two years, not a lot of change will happen and by virtue of that fact ‘[i]t’s certainly not going to reduce risks to the public in the longer term’.[198] Further, when he is transitioned to the community, he will be subject to conditions which, as Darjee made abundantly clear, have the potential to escalate risk. Finally, absent any evidence regarding the likelihood of ‘the Dr Darjee Plan B’ eventuating, the opportunity to nurture and strengthen the one protective factor that CS has accumulated, his relationship with his partner, will continue to be undermined by virtue of the SO.
[198]T256.31–257.1 (Darjee).

In addition I consider the following factors are highly relevant to my decision to exercise the residual discretion, to make no order:

·There is accommodation available to CS if not on a SO, namely his partner’s property;
·CS has made progress since the detention order application was refused in 2021;
·CS’ personal circumstances are markedly different now compared to any previous point whilst on a SO – particularly, he has been in an intimate, protective relationship with his partner for 12 months, one which has continued to develop despite the restrictive circumstances CS is in and his limited ability to see his partner in person. Moreover, there have been no issues detected in terms of conflict or negative behaviour by CS towards his partner or vice versa;[199]
·As I said in 2021, CS’ historical offending, and his risk of future offending, is clearly intertwined with his intellectual disability, personality disorders and childhood disadvantage. These factors have continued to make his time under a SO more difficult;[200]
·CS has never committed a serious violence offence, and the applicant does not submit he is an unacceptable risk of a Schedule 2 offence; and
·CS is now a 39 year old man with significant physical health difficulties.[201]

[199]Candlish second report, 5 [32].

[200]DPP v CS [2021] VSC 686, [231].

[201]Candlish second report, 2 [7]-[8].

It is worth noting that no reference was made in this application to CS’ rights under the Charter of Human Rights and Responsibilities Act 2006 and the overlap with the Act. As a man with significant mental and physical difficulties, it is certainly arguable that CS’ rights under that legislation are unduly burdened by ongoing supervision.

Non-publication order

I consider the scope of s 279 of the Act allows me to make an order for non-publication in this matter. I am satisfied on the expert evidence that publication of details of this matter would have an adverse influence on CS, and that a non-publication order is in the public interest.

Candlish gave evidence that non-publication supports reintegration, which if achieved has the benefit of likely reduction of risk over time. He spoke of research which indicates that disclosure of offender’s personal details, whereabouts, and the nature of their offending is counterproductive to rehabilitation.[202] Darjee gave evidence that publication of CS’ identity and location has the potential to increase the risk he poses to the public and have no positive impact on CS.[203]
[202]See generally T71.8– 23 (Candlish).
[203]See generally T219.22–220.10 (Darjee).

I have had regard to all the matters in s 280 of the Act. Particularly relevantly, publication of details relating to CS may increase the risk he poses to the community and may endanger the safety of any person. I am therefore satisfied that a non-publication order is in the public interest.

Conclusion

As I have found that CS does not pose an unacceptable risk of committing a serious sexual offence if not on a SO and in the community, pursuant to s 24(1)(c) of the Act the Court will make no order.

[2025] VSC 53

24 February 2025