Re CS (No 2)
[2024] VSC 87
•6 March 2024
| 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) (‘the Act’) | |
| and | |
| IN THE MATTER of an application under s 99 of the Act for review of a Supervision Order | |
| and | |
| IN THE MATTER of an application under s 40 of the Act for a declaration that a condition of a Supervision Order is a restrictive condition | |
| BETWEEN: | |
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| and | |
| CS | Respondent |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2024 |
DATE OF JUDGMENT: | 6 March 2024 |
CASE MAY BE CITED AS: | Re CS (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 87 |
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CRIMINAL LAW – Supervision order – Periodic review of supervision order – Unchallenged evidence of psychologist – Application for declaration that a condition is a restrictive condition – Non-publication order sought by respondent and opposed by the applicant – Nigro v Secretary to the Department of Justice (2013) 41 VR 359 – Serious Offenders Act 2018 (Vic) ss 14, 27, 40, 41, 99, 102, 103, 104, 105, 106, 279, 280.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Holdenson KC | Russell Kennedy |
| For the Respondent | Ms N Smith | Victoria Legal Aid |
HER HONOUR:
Introduction
On 26 October 2021, I made order that the respondent (‘CS’)[1] be subject to a supervision order (‘SO’) pursuant to s 14 of the Serious Offenders Act 2018 (Vic) (‘the Act’). That order commenced on 26 October 2021 and was made for a period of three years.
[1]A pseudonym.
The extensive history of this matter up to that date is set out in my reasons in DPP v CS,[2] and I will not repeat them here.
[2][2021] VSC 686.
The applicant (‘the Secretary’) now applies to this Court for a review of the SO in accordance with order 5 of orders made on 26 October 2021 and pursuant to s 99 of the Act. The Secretary seeks that the SO in respect of CS be confirmed and, pursuant to s 40 of the Act, the following existing condition of CS’s SO be declared a restrictive condition:
[CS] must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully or abuse drugs of any kind.
The Secretary’s application is supported by the following material:
(a) progress report of psychologist Simon Candlish dated 16 July 2023 and addendum progress report of Simon Candlish dated 16 February 2024;
(b) Victoria Police Court Outcomes report (containing CS’s criminal history) dated 21 July 2023;
(c) chronology as at 4 March 2024; and
(d) outline of written submissions dated 24 January 2024.
CS does not oppose the course proposed by the Secretary: that the existing SO be confirmed. CS does seek that a non-publication order be made pursuant to s 279 of the Act,[3] which is opposed by the Secretary. CS relies on an outline of submissions dated 26 February 2024.
[3]Pursuant to s 99(4) of the Act, upon review of a supervision order, any accompanying non-publication order made must also be reviewed.
Legislative Framework
Applications of the kind before the Court are governed by s 99 of the Act. Any application for a declaration that a condition of an SO is a restrictive condition is governed by ss 40 and 41 of the Act.
The overarching purposes of the Act are first community protection, and second, treatment and rehabilitation of serious offenders.[4] As already noted, the SO currently in place is set to expire on 26 October 2024. Therefore it is incumbent upon the Court to consider, at this juncture, whether it is appropriate to extend, remake or repeal the SO.[5] The Secretary has the burden of proving that CS poses or will pose an unacceptable risk of committing a serious sex offence or serious violence offence or both if a SO is not in effect and CS is in the community.[6]
[4]Serious Offenders Act 2018 (Vic) (‘the Act’), s 1(a)–(b).
[5]In accordance with s 104 of the Act.
[6]The Act, ss 14(5), 106.
Sections 102–106 of the Act are applicable to applications of this kind and establish the factors which must be taken into account by the Court.
Any conditions imposed on review must constitute the minimum interference with CS’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions and are reasonably related to the gravity of the risk of CS reoffending.[7]
[7]The Act, s 27(4).
The Court is empowered to make an order restricting the publication of an offender’s identity, if satisfied it is in the public interest to do so.[8]
[8]The Act, s 279.
Evidence
The Court has before it two reports of consultant psychologist Simon Candlish,[9] dated 16 July 2023 (‘the 2023 Report’) and 16 February 2024 (‘the 2024 Report’). The reports are extensive and thorough, and the findings are based on well-regarded professional tools, extensive material and examination over two sessions.[10]
[9]Mr Candlish is a registered psychologist, having obtained a Graduate Diploma in Psychology and a Masters degree in Psychology. He has been a practicing psychologist in Victoria since 2002.
[10]The 2023 assessment was conducted in-person, and the 2024 assessment was conducted via Zoom.
The chronology provided by the Secretary, together with the 2023 and 2024 Reports, helpfully provide the Court with a detailed summary of CS’s progress since October 2021. In the intervening years since this matter was before me, CS has resided at Corella Place and briefly in residential care at a property in Noble Park (‘the Noble Park property’).
Mr Candlish emphasised CS’s hostile presentation towards staff at Corella Place, borne of frustration at being held there. The amount of time CS has spent either on remand, serving a sentence or as the subject of a SO means that he presents as institutionalised, and ‘often reverts to pro-prison attitudes when distressed’.[11]
[11]Progress Report of Simon Candlish, dated 16 July 2023, [2].
Since October 2021, the most commonly-occurring incidents reported by CS’s support staff appear to be aggressive, violent and threatening behaviour, and inappropriate behaviour towards female staff and other residents at Corella Place.
Mr Candlish opined in the 2023 Report that CS is the recipient of a significant National Disability Insurance Agency package, which included provision for supported independent living resources.[12] It appears that in late November 2023, CS was transitioned from Corella Place to the Noble Park property.[13] After an incident arose involving police in December 2023 — discussed further below — the Post Sentence Authority within Corrections Victoria revoked directions allowing CS to reside at the Noble Park property and directed that he be returned to a residential facility.[14] In relation to the impact on CS of transition to the Noble Park property, Mr Candlish made the following comments in the 2024 Report:[15]
Although he would not necessarily admit to this, it is likely that being in the community with greater freedom represents a new stressor and a potential source of overwhelm for [CS]. He has previously made references to prison being an environment he is most used to and most comfortable with. His newfound experience of being the in the community will likely take some adjustment. Rather than acknowledge these more vulnerable feelings, he is more likely to identify with emotions that are more acceptable to him such as frustration and anger and dwell on these.
[12]Ibid, [206].
[13]Chronology prepared by the Secretary, filed 4 March 2024, 25.
[14]Ibid, 26.
[15]Addendum Progress Report of Simon Candlish, dated 16 February 2024, [65].
Since the 2024 Report was authored, CS has been transitioned back to the Noble Park property.[16] This occurred on 22 February 2024.[17]
[16]Outline of Submissions on behalf of CS, filed 26 February 2024, [7].
[17]Chronology prepared by the Secretary, filed 4 March 2024, 26.
CS is presently on bail in relation to offending alleged on 16 October 2023 and 18 December 2023. This alleged offending may be summarised as follows.
On 16 October 2023, CS is alleged to have been speaking in a loud and aggressive manner on his phone whilst on a community outing. Upon returning to Corella Place, his Specialist Caseworkers (‘SCWs’) tried to offer feedback about the behaviour, and CS allegedly yelled ‘You’re a fucking dog, I’ll fuckin kill you, you want to treat me like a fuckin sex offender you fuckin dog, I’m not a fucking sex offender’. CS then allegedly advanced towards his SCWs and said further words to the effect of ‘you can just go fucking away, go fuckin inside, I’ll murder you’. CS was charged with make threat to kill, and contravene condition of SO.[18]
[18]Ibid, 25; Addendum Progress Report of Simon Candlish, dated 16 February 2024, [16]-[18].
On 18 December 2023, having been transitioned to the Noble Park property, CS is alleged to have used an axe to puncture the tires of a vehicle belonging to support staff. When police were called to the scene, CS approached them with an axe, claw hammer and knife and slashed his own forehead and arm before surrendering.[19] CS was describing himself as ‘Acid’, a violent and aggressive personality which he has since reported to staff.[20] CS was charged with three offences, being: commit indictable office whilst on bail; contravene condition of SO; and intentionally damage property. CS was refused bail in relation to these charges on 19 December 2023 at the Melbourne Magistrates’ Court and was granted bail by a Justice of this Court on 22 December 2023. He was bailed to Corella Place.[21]
[19]Chronology prepared by the Secretary, filed 4 March 2024, 25; Addendum Progress Report of Simon Candlish, dated 16 February 2024, [36].
[20]Addendum Progress Report of Simon Candlish, dated 16 February 2024, [41]; Chronology prepared by the Secretary, filed 4 March 2024, 25.
[21]Outline of Submissions on behalf of the Secretary, filed 24 January 2024, [26].
The charge of make threat to kill remains in the Ararat Magistrates’ Court. All other charges are listed for further directions before a Judicial Registrar of this Court on 12 March 2024.
The 2024 Report was authored at the request of the Post Sentence Branch after the incidents in October and December 2023. The 2024 Report helpfully provides an updated risk assessment, and risk-related and transition-related recommendations. CS presented via Zoom for assessment on 15 February 2024. When asked about his arrest in December 2023, CS stated that an alternate personality known as ‘Acid’ was responsible for the offending.[22] When asked about the circumstances in which ‘Acid’ arises, CS stated that Acid ‘comes out’ when he is in a heightened state and engaging in self-harm is the ‘only way’ to help.[23] Mr Candlish noted that the acknowledgement of the potential presence of dissociation while dysregulated reveals a greater awareness by CS, however his unwillingness to explore and discuss his experience prevents insight.[24]
[22]Addendum Progress Report of Simon Candlish, dated 16 February 2024, [34]–[35], [41], [47], [57]–[58].
[23]Ibid, [57]–[58].
[24]Ibid, [69].
In the 2023 Report Mr Candlish surmised, based on the testing undertaken with CS,[25] that he was in the high risk category of sexual reoffending, including a serious sex offence, if released into the community and not made the subject of an order.[26] It was noted that CS is considered to have a risk rating of ‘moderate’ for further sexual offending whilst subject to a SO.[27]
[25]Through use of the Static-99R, Risk for Sexual Violence Protocol (‘RSVP’), and the Assessment of Risk and Manageability for Individuals with Intellectual Limitations who Offend Sexually (‘ARMIDILO-S’).
[26]Progress Report of Simon Candlish, dated 16 July 2023, [250]-[251].
[27]Addendum Progress Report of Simon Candlish, dated 16 February 2024, [102].
CS was also assessed[28] as being in the ‘moderate-high’ risk category for serious violent offending, if released into the community and not made the subject of an order.[29] This position was reiterated in the 2024 Report.[30]
[28]Through use of the Violence Risk Appraisal Guide-Revised (‘VRAG-R’), Historical Clinical Risk Management (‘HCR-20’), and the SAPROF second edition.
[29]Progress Report of Simon Candlish, dated 16 July 2023, [252]-[253].
[30]Addendum Progress Report of Simon Candlish, dated 16 February 2024, [140]–[141].
It was noted that CS ‘has historically displayed resistance towards professional supports and has tended to disengage quickly.’[31] In relation to his ability to reflect on his own behaviour, particularly in the context of his transitions in and out of the Noble Park property, it was noted that:[32]
[CS] clearly displayed issues with agitation and aggression in the lead-up to his transition reflecting the nature of his characterological issues including impaired emotional regulation; limited perspective-taking and empathy; cognitive rigidity; interpersonal sensitivity and intolerance and disinhibition.
[CS] has displayed various issues whilst working with his support workers at Noble Park property. This includes impatience, intolerance, attempts to exert dominance and misinterpretation of the support workers behaviours.
[31]Progress Report of Simon Candlish, dated 16 July 2023, [210].
[32]Addendum Progress Report of Simon Candlish, dated 16 February 2024, [61]–[62].
Submissions
At the hearing, both parties relied on their written submissions. Mr Holdenson KC for the Secretary briefly addressed the Court in relation to the applicable legislative scheme.
It was submitted on behalf of the Secretary that based on the 2023 Report, CS was as a high risk of committing a serious sex offence and moderate risk of committing a serious violence offence if in the community and not subject to the SO.[33] In light of this assessment, the Secretary submitted that the Court can be satisfied that CS poses an unacceptable risk within the meaning of s 106(1) of the Act.[34]
[33]Outline of Submissions on behalf of the Secretary, filed 24 January 2024, [38].
[34]Ibid, [42].
In relation to the restrictive condition, the Secretary drew the Court’s attention to CS’s compliance with the prohibition on the use of drugs as support for the restrictive condition remaining in place. Its ‘deterrent’ function was evident in the lack breaches.[35]
[35]T8.7–12
The Secretary pressed its opposition to the non-publication order, submitting that regard must be had to s 280 of the Act which requires the Court to consider if CS has historically been compliant with conditions of the SO. This is then balanced against the opinion of any expert, in this case Mr Candlish.[36]
[36]T2.3–12.
On behalf of CS, it was submitted that CS did not oppose the proposed conditions as sought by the Secretary. When I queried the necessity of making the drug condition a restrictive condition, counsel for CS made application for that condition to be made an ordinary condition, rather than a restrictive condition.[37]
[37]T11.16–19.
In relation to the non-publication order, it was submitted on behalf of CS that such an order would be in the public interest because any public knowledge of CS’s identity might ‘undermine therapeutic benefits attained by [CS] in relation to his rehabilitation, continued treatment and ... reintegration to the community’.[38]
[38]Outline of Submissions on behalf of CS, filed 26 February 2024, [7].
Consideration
Review of the SO
Any conditions confirmed or remade are required to comply with s 27 of the Act. The Secretary submits that the conditions sought on review are identical to those made by this Court in 2021.[39] This includes a declaration that the condition concerning drug use is a restrictive condition.
[39]Outline of Submissions on behalf of the Secretary, filed 24 January 2024, [46].
Section 106 of the Act relevantly reads:
(1) Subject to section 107, on a review of a supervision order, the court must revoke the supervision order unless it is satisfied that the offender still 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 in effect and the offender is in the community.
The term ‘unacceptable risk’ is not explicitly defined in the Act and the scope of its meaning was considered by the Court of Appeal in Nigro v The Secretary to the Department of Justice.[40] In that case, the Court emphasised that to ascribe levels of unacceptability would render the test inflexible. Instead, the focus of an assessment of risk should be on the nature and gravity of the consequences of the harm should it arise, and the likelihood of the harm arising.[41] The test requires a consideration of the specific offender, their past conduct and their present circumstances.[42]
[40](2013) 41 VR 359.
[41]Ibid, [5]–[6], [65]–[103]; Secretary to the Department of Justice and Community Safety v SJW (No 2) [2023] VSC 506, [30].
[42]Nigro v The Secretary to the Department of Justice (2013) 41 VR 359, [130].
I am satisfied, on the fulsome material provided by Mr Candlish, that the Secretary has proven that CS still poses an unacceptable risk if a SO is not in effect. It is not however clear on the material why a declaration is sought in relation to the drug condition. Declaration that a condition of a SO is a restrictive condition is a serious step for any Court to take. Any breach by CS of that condition—in this case use or possession of prohibited drugs—would attract a penalty of at least 12 months’ imprisonment.
I do not accept the submission advanced by counsel for the Secretary that the lack of breaches is evidence of the ‘deterrent’ effect of the restrictive condition. I consider it more likely that the restrictive condition simply has no more work to do. I have had regard to what would constitute the ‘minimum interference with the offender's liberty, privacy or freedom of movement that is necessary’,[43] and can see no reason why the restrictive condition should remain.
[43]The Act, s 27(4)(a).
Non-publication orders
A non-publication order is sought by CS. Section 280 of the Act mandates that the Court have regard to the following when considering making a non-publication order pursuant to s 279:
(a) whether the publication would endanger the safety of any person;
(b) the interests of any victims of the offender;
(c) the protection of children, families and the community;
(d)the offender's compliance with any order made under this Act, the Serious Sex Offenders (Detention and Supervision) Act 2009 (as in force before its repeal) or the Serious Sex Offenders Monitoring Act 2005 (as in force before its repeal);
(e) the location of the residential address of the offender.
As noted above, the Secretary opposes CS’s application for a non-publication order in relation to both his identity and his location. This opposition is on the basis of ‘[CS]’s repeated non-compliance with his [SO]’.[44]
[44]Outline of Submissions on behalf of the Secretary, filed 24 January 2024, [52].
It was noted in written submissions on behalf of CS that Mr Candlish is supportive of a non-publication order.[45] This support was expressed by way of email to CS’s legal practitioners on 23 February 2024:[46]
Public knowledge of a person's personal details and offending history is likely to result in increased anxiety, wariness, hypervigilance and could create fear and paranoia for some.
In [CS]’s specific case, this is particularly relevant given his personality impairment which creates a greater vulnerability towards emotional dysregulation, paranoia, and wariness towards others.
It would be counterproductive and undermine rehabilitation for [CS]’s personal information to be made publicly available.
[45]Outline of Submissions on behalf of CS, filed 26 February 2024, [8].
[46]Ibid.
On the basis of the material before the Court, I am satisfied that CS’s rehabilitation may be impacted if his details were publicly known. With that in mind, I propose to make the non-publication order as sought by CS.
Conclusion
The Court will confirm the SO on the terms sought by the Secretary contained in a draft form provided, save for the application that the condition in relation to drugs be declared a restrictive condition. A non-publication order will also be made pursuant to s 279 of the Act.
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