Re CS (No 3)
[2024] VSC 594
•25 September 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)
-and-
IN THE MATTER of an application under s 46 of the Act for an Interim Supervision Order
-and-
IN THE MATTER of an application under s 22(1) of the Act for renewal of a Supervision Order
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: | 18 September 2024 |
DATE OF RULING: | 25 September 2024 |
CASE MAY BE CITED AS: | Re CS (No 3) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 594 |
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CRIMINAL LAW – Supervision Order – Unopposed application for Interim Supervision Order – Non-publication order sought by respondent and opposed by the applicant – Suitability of Corella Place on ongoing basis – Serious Offenders Act 2018 (Vic) ss 22, 47, 279.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Holdenson KC | Russell Kennedy |
| For the Respondent | Mr G Cooper | Victoria Legal Aid |
HER HONOUR:
On 22 July 2024, the Secretary to the Department of Justice and Community Safety (‘the applicant’) filed an application for an Interim Supervision Order (‘ISO’) under s 47 of the Serious Offenders Act 2018 (Vic) (‘the Act’) in respect of the respondent, CS.[1] On 18 September, I made orders imposing an Interim Supervision Order (‘SO’) for a period of four months.[2] I also made a non-publication order pursuant to s 279 of the Act. These are my reasons.
[1]A pseudonym.
[2]The Interim Supervision Order is due to commence on 25 October 2024 and expire on 24 February 2025.
CS is subject to a SO dated 26 October 2021 which was reviewed and confirmed on 4 March 2024. The SO will expire on 25 October 2024. CS is also the subject of an application under s 22 of the Act for renewal of the SO for a period of three years. That application has been commenced but not yet determined.
The Court was informed that there are outstanding materials in relation to the renewal application and, as such, the application cannot be heard and determined before the expiry date of the current SO. The current application for an ISO therefore arises out of necessity.
Pursuant to s 47(1) of the Act, the Court may only make an ISO in respect of an eligible offender if:
(a) the court is satisfied that --
(i)an application under section 13 or 22 in respect of the offender has been commenced but not determined; and
(ii)either –
(A)the offender is no longer, or will not be, remanded in custody or serving a custodial sentence when the application under section 13 is determined; or
(B)the previous supervision order has expired or will have expired before the application under section 22 is determined; and
(b)it appears to the court that the documents in support of the application under section 13 or 22 would, if proved, justify the making or renewal of a supervision order; and
(c)the court is satisfied that it is in the public interest to make an interim supervision order.
The applicant relied on the Detention and Supervision Order Progress Report of consultant psychologist Mr Simon Candlish, dated 6 June 2024, as well as his viva voce evidence.
Mr Candlish assesses CS as a high risk of committing a serious sex offence and a moderate-high risk of committing a serious violence offence if in the community and not subject to an SO.[3]
[3]Detention and Supervision Order Progress report of Mr Simon Candlish, dated 6 June 2024, [5] (‘Progress Report’).
The respondent did not oppose the making of an ISO, and did not dispute that it is open to the Court to be satisfied that the requirements under s 47(1) of the Act are established. Further, the respondent does not oppose the conditions of the proposed ISO.
For the purpose of this application, I agree that the evidence of Mr Candlish supports the making of the ISO, and consider the proposed conditions to be appropriate.
Further, the respondent made application for a non-publication order pursuant to s 279 of the Act. This application was opposed by the Secretary. Ultimately, I consider that in line with the evidence of Mr Candlish[4], it would be counterproductive to CS’s rehabilitation for his details to be made publicly available, and it is therefore in the public interest to make such an order.
[4]Email correspondence between Mr Simon Candlish and Victoria Legal Aid, dated 23 February 2024; T26.18-30.
Although I could end this ruling at this point, the hearing raised a number of matters which were tangential to the ISO application, but nevertheless warrant further discussion.
CS is a 38 year old Indigenous man. He has a diagnosis of mild intellectual disability, significant verbal learning deficit, and a severe personality disorder. He has a history of sexual, violent, and general offending.
CS’s index offence occurred on 1 June 2006. He was subsequently sentenced on 16 October 2009 by his Honour Judge Leckie to three years and four months imprisonment for attempted rape and intentionally cause injury.
An SO was first made in late January 2013, and CS has remained on such an order since.[5] Upon the commencement of the SO, CS was placed in Corella Place, and subsequently spent the next decade between Corella Place and custody.
[5]Except for a short period from August 2021 to October 2021, where CS was subject to an interim detention order pending an application for detention order, which was ultimately refused.
In November 2023, he was transitioned to a community residence in Noble Park. This was the first time since 2006 that CS had resided in the community, albeit under the onerous conditions of his SO. In December 2023, CS was returned to Corella Place following an incident which led to his arrest.
In February 2024, CS was transitioned again to the Noble Park residence, only to return to Corella Place in April 2024. I will not repeat the details of the intervening incidents which have been helpfully set out in a chronology prepared by the applicant.
On 7 May 2024, the Post Sentencing Branch (‘PSB’) endorsed a report outlining the actions that were needed in order for CS to transition back to the community, and recommending that he continue to reside at Corella Place for a further four weeks.[6] In fact, as at the hearing date, CS has remained at Corella Place for a further 20 weeks.
[6]Corrections Victoria Special Report, dated 7 May 2024.
It has been understood since 2013 that Corella Place is not a suitable facility for CS, and his placement there was only ever envisaged to be temporary. What is particularly troubling is that the Noble Park residence, which was always known to be short-term accommodation, is scheduled to be demolished at the end of September 2024.
I acknowledge that transitioning CS from Corella Place to the community has its complexities, and that finding CS new accommodation requires cooperation and effort from numerous agencies. However, as at the hearing date, no suitable accommodation had been found.
At the hearing, I heard evidence from Ms Nikkola Dimopoulos, the assistant manager within the Applications Team at the PSB. Part of Ms Dimopoulos’ role is to assist with court applications and SO matters.
Ms Dimopoulos gave evidence that in May of this year, CS was offered accommodation in the Frankston and Dandenong areas. Ms Dimopoulos said that four Frankston residences were discussed with CS, and that they were declined.[7] Ms Dimopoulos indicated that CS had nominated specific suburbs he wished to reside in, and that Frankston was not one of them.[8] Ms Dimopoulos’ evidence was that CS has since rejected two other properties, in part because they were not in his preferred suburbs.[9]
[7]T30.7-10.
[8]T30.12-19.
[9]T31.14-20.29.
Ms Dimopoulos informed the Court that in June of this year, CS’s NDIS support co-ordinator, Ms Nicola Morsley, made 30 to 40 enquiries with NDIS Supported Independent Living providers about suitable accommodation in his preferred areas. Ms Morsley now provides a weekly update on those enquiries. There are also fortnightly accommodation meetings, as well as monthly meetings of CS’s care team. Ms Dimopoulos said that CS’s geographic preferences cause some difficulty and present a barrier to sourcing suitable accommodation for him.[10]
[10]T34.8-19.
Ms Dimopoulous further indicated that there was a meeting scheduled the day after the hearing between the NDIA justice liaison officers and the PSB in relation to CS’s NDIS review.
I asked Ms Dimopoulos, and she was cross examined about, whether CS had attended any of the meetings relating to his accommodation needs. It appears that to date, he has not been invited.[11] It also seems that there has not been any explicit conversation with CS about extending his preferred residential areas.[12]
[11]T38.25-40.7; T47.19-27.
[12]T42.19-29.
It seems from Ms Dimopoulos’ evidence that since April this year, CS has not been directly involved in the planning or decision-making for finding him suitable accommodation. While I appreciate that there are some meetings which may be inappropriate for CS to attend, common sense suggests that keeping him informed and involved in this process would be beneficial for both CS and the various agencies and individuals working on this critical matter.
CS’s current circumstances are vastly different to when the SO was first made. He now has a partner and they have a meaningful and caring relationship.
Mr Candlish was of the opinion that CS has displayed a very gradual reduction in the severity of his aggressive behaviours over the years and has revealed an improved ability to engage with the various professional supports.[13]
[13]Progress Report, [199].
He noted that CS has commenced an intimate relationship and has expressed positive views about this. He commented that this change in circumstances creates some challenges for risk management, but that ‘[at] this stage the risk of imminent sexual offending appears low.’[14]
[14]Progress Report, [204].
Critically, Mr Candlish agreed that CS is best suited to a residence in the community, under an SO.
Mr Candlish expressed a view that before CS is transitioned to the community again, it was important for him to demonstrate greater self-reflection and receptiveness to discussions about issues that had arisen on the previous two occasions of community placement.[15] Against this, Mr Candlish agreed that, given CS has been at Corella Place for some months, it is no longer acting as a circuit breaker and is unlikely to help him achieve stability; the hurdle now is finding appropriate accommodation for CS in the community.[16]
[15]T19.27-20.22.
[16]T26 L10-15.
In a report prepared for the SO review earlier this year, Mr Candlish commented:
[CS] is clearly expressing impatience and frustrations with delays in returning to the community. Delays in a return to the Noble Park property are likely to lead to increasingly heightened behaviours within Corella Place in the short to medium term and Corella Place continues to represent a less than ideal facility for him for reasons previously discussed.[17]
[17]Addendum Progress Report of Mr Simon Candlish, dated 16 February 2024, [72].
The Court will soon hear and determine the application for renewal of CS’s SO. The evidence before me is that CS is unlikely to show any significant improvement in his behaviours while residing at Corella Place. I consider that ongoing placement at Corella Place is likely to have a detrimental impact on CS, and it is difficult to see how the current circumstances serve to protect CS or the community.
While I accept that finding suitable accommodation for CS is a complex and difficult process, the relevant agencies must overcome the various bureaucratic hurdles and involve CS in the process to ensure he is transitioned back into the community as a matter of urgency.
The evidence before me left no doubt that the relevant agencies fully understand that CS’s placement at Corella Place is not an viable ongoing option. While there has been some thought given to his future circumstances, that thought must continue to be applied with rigour to the resolution of this matter, so that CS can transition from Corella Place to the community as soon as possible. The authorities must continue to ensure that outcome.
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