Re MTE
[2020] VSC 243
•24 January 2020
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0273
IN THE MATTER of the Serious Offenders Act 2018 (‘Act’)
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 13(1 of the Act for a Supervision Order
BETWEEN
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| and | |
| MTE (a pseudonym) | Respondent |
---
JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 January 2020 |
DATE OF JUDGMENT: | 24 January 2020 |
CASE MAY BE CITED AS: | Re MTE |
MEDIUM NEUTRAL CITATION: | [2020] VSC 243 |
---
CRIMINAL LAW – Judgment – Application for interim supervision order – Not contested – Electronic alcohol monitoring condition contested – Order sought on basis that respondent poses an unacceptable risk of committing a serious violence offence – Index offence of murder – Respondent 19 years old at the time of offending – Victim was a 75 year old woman – Interim supervision order granted – Electronic alcohol monitoring condition not imposed – Serious Offenders Act 2018 (Vic).
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S. Flynn QC | Russell Kennedy |
| For the Respondent | Mr R. de Vietri | Victoria Legal Aid |
HIS HONOUR:
Introduction
On 10 December 2019, the Secretary to the Department of Justice and Community Safety (‘the applicant’) applied for an interim supervision order in respect of MTE(‘the respondent’) pursuant to s 46 of the Serious Offenders Act 2018 (‘the Act’). That application is the subject of the present hearing.
On the same day, the applicant also made an application for a supervision order for a period of six years under s 13 of the Act. Pursuant to s 14(1)(b) of the Act, the application for the supervision order is made on the grounds that the respondent poses an unacceptable risk of committing a serious violence offence if a supervision order is not made and he is in the community.
The respondent is an eligible offender for an interim supervision order under s 8 of the Act. At the time of this application, he is serving a custodial sentence imposed by this Court in 1998, which was increased on appeal in 1999.
The respondent’s custodial sentence is due to expire on 27 January 2020, after which he will be released into the community without supervision unless an order under the Act is made.
As indicated in his written outline of submissions dated 16 January 2020, the respondent does not object to the making of an interim supervision order on the conditions proposed by the applicant, with the exception of a condition requiring an electronic alcohol monitoring ankle SCRAM bracelet (‘the disputed condition’). The respondent opposes the electronic alcohol monitoring condition, rather than that requiring alcohol abstinence.
Further, the respondent seeks a non-publication order pursuant to s 279 of the Act to prohibit publication of information that might enable a person to identify him or his whereabouts. The applicant neither consents nor opposes the making of such an order.
I note that s 133 of the Act requires the Court to state the reasons for its determination and cause those reasons to be ‘entered in the records of the court’. If made, s 48 of the Act prescribes a number of matters that must be included in the order. The order must also be provided to the applicant and the respondent.
Grounds for the application
The application for the interim supervision order is made on the following grounds:[1]
[1]Serious Offenders 2018 (Vic) s 47.
(a) An application for a supervision order in respect of the respondent has been commenced but not determined;
(b) The respondent will no longer be serving a custodial sentence when the supervision order application is determined;
(c) The documentation supporting the supervision order application would, if proved, justify the making of a supervision order; and,
(d) It is in the public interest to make the interim order, having regard to the reasons why the application for a supervision order will not be determined before the respondent is released from custody, together with any other matter that the Court considers appropriate.
The application is supported by:
(a) A Detention and Supervision Order Assessment Report authored by Dr Joel Godfredson dated 27 October 2019;
(b) The materials relied on by Dr Godfredson for his assessment of the respondent; and,
(c) The antecedent history of the respondent.
The legislative framework
The legal test and standard of proof for making an interim supervision order is much less onerous than that of a supervision order.[2] At the interim stage, the applicant is not required to demonstrate that the respondent poses an ‘unacceptable risk’ to the standard required by s 14 of the Act. Rather, it must satisfy the Court that the supporting documents, if accepted, would justify the making of a supervision order.
[2]See Secretary to the Department of Justice and Community Safety v SM [2019] VSC 497, [27]-[29] (Elliott J). See also Explanatory Memorandum, Serious Offenders Bill 2018 (Vic) 31.
The interim supervision order proposed by the applicant would commence on the date the respondent completes his custodial sentence.[3] It would either expire at the end of its period of operation or upon the determination of the application for a supervision order.[4]
[3]Serious Offenders 2018 (Vic) s 53(1)(a).
[4]Ibid s 56.
Under s 49, s 15 and Divisions 3 and 4 (with some exceptions) of Part 3 of the Act, which relate to conditions imposed on supervision orders, apply to interim supervision orders. Section 15 mandates that a supervision order is subject to the core conditions set out in s 31 of the Act and any other conditions that the Court imposes under Division 3.
In addition to the core conditions, the applicant seeks the following:
(a) Suggested conditions pursuant to s 35 of the Act;
(b) Conditions relating to residence, firearms and weapons pursuant to ss 34 and 37 of the Act;
(c) Other discretionary conditions pursuant to s 38 of the Act; and
(d) Conditions authorising the Post-Sentence Authority to give directions pursuant to s 36 of the Act.
Relevant to the disputed condition, s 35(1)(j) empowers the Court to impose a condition in relation to ‘the forms of monitoring (including electronic monitoring) of compliance with the supervision order to which the offender must submit’.
The primary purpose of the conditions is to reduce the risk that the respondent will commit a serious sex offence or a serious violence offence or both, or an offence referred to in Schedule 3 of the Act,[5] while the secondary purpose is to provide for the reasonable concerns of victims of the respondent in relation to their own safety and welfare.[6]
[5]Ibid s 27(1).
[6]Ibid s 27(2).
Conditions may promote the respondent’s rehabilitation and treatment, and may also address types of behaviour that may increase his risk of committing a serious sex offence or a serious violence offence or both, or engaging in any behaviour or conduct that threatens the safety of any person, in order to reduce his risk of re-offending.[7]
[7]Ibid s 27(3).
Pursuant to s 27(4) of the Act, the Court is required to ensure that the conditions imposed constitute the minimum interference with the respondent’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions. It must also ensure that they are reasonably related to the gravity of the risk of the respondent re-offending.
Non-publication order
The Court may make an order prohibiting the publication of any information that might enable the respondent or his location to be identified, if satisfied that it is in the public interest to do so whilst having regard to the matters set out in s 280 of the Act.[8]
[8]Ibid s 270.
The respondent’s offending history
Prior to the index offence, the respondent had a history of driving and dishonesty offences beginning in 1995. He was sentenced on a number of occasions to periods of detention within a Youth Training Centre. He had no history of violent offending until the index offence.
The index offence occurred in 1997, when the respondent broke into the home of his elderly former landlady with an intention to steal from her. When the victim awoke, there was a struggle and the respondent murdered her in circumstances that were very violent.
At the time of this offence, the respondent was 19 years of age. He pleaded guilty to one charge of murder and was ultimately sentenced to 23 years imprisonment with a non-parole period of 17 years.
In June 2015, the respondent was granted parole and initially demonstrated positive community engagement through education and volunteer work. However, during the course of his parole, he began to engage in cannabis use and failed to comply with urinalysis requirements. The respondent was ultimately considered to have returned to his antisocial lifestyle prior to the index offence and his parole order was cancelled after nine weeks.[9]
[9]Report of Dr Godfredson dated 27 October 2019, [136] – [148].
Evidence in the application
Dr Joel Godfredson
The applicant tendered a Detention and Supervision Order Assessment Report authored by clinical and forensic psychologist Dr Godfredson dated 27 October 2019. Dr Godfredson had conducted two, three-hour assessment interviews with the respondent in September 2019.
In his detailed report, Dr Godfredson sets out the respondent’s background, offending history, including the circumstances of the index offence, his psychosocial and developmental history, and his conduct while in custody and on parole. He also conducted risk assessments for non-sexual violence and sexual offending. Dr Godfredson opines that the respondent poses a moderate to high risk of committing a serious violence offence and a moderate risk of committing a serious sex offence if released into the community and not made subject to a supervision order. He concluded that the respondent’s HCR-20 profile indicated a high number of risk factors associated with future interpersonal violence.
At the hearing, Dr Godfredson gave evidence that the respondent did not have previous issues with alcohol abuse and was not intoxicated at the time of offending. Nonetheless, he noted that substance abuse could potentially increase the respondent’s risk of reoffending. Dr Godfredson identified key risk factors to include the respondent’s profound fear of punishment, his perceived need to avoid punishment, and difficulties with problem-solving. He opined that such factors are compounded under stress and that adding alcohol into the equation may further increase the risk of violence.
Dr Godfredson emphasised his belief that the respondent has every intention of doing the right thing. However, he noted how the respondent’s lengthy period of incarceration may give rise to issues with self-regulation, such that initial abstinence from alcohol would be beneficial.
In cross-examination, Dr Godfredson opined that the respondent may perceive the SCRAM bracelet, which would continuously monitor his blood alcohol content, as a potential mechanism to set up him to fail and return him to prison. He expressed that it may elevate the respondent’s sense of ongoing punishment, as the device would increase his risk of being detected for non-compliance with the interim supervision order and justify further punishment.
Dr Godfredson disagreed with the proposition that the SCRAM bracelet would represent a physical reminder of the respondent’s past criminality. He reported that the respondent did not seem stressed by the index offending and had expressed that he would have no issues disclosing it to new friends or a partner.
Further, Dr Godfredson clarified that he had not been informed of the proposed condition in dispute at the time he assessed the respondent. However, he agreed with the proposition that the SCRAM bracelet may impact on the respondent’s ability to integrate into society, based on reports from other offenders.
With respect to the proposed non-publication order, Dr Godfredson noted that the respondent must accrue a range of protective factors to materially reduce his risk status, including occupational training, employment and a pro-social support network. He agreed that the respondent, if alienated or marginalised in the community as a result of his identity and location becoming public knowledge, may perceive this as unfair punishment, which would subsequently increase his stress and risk profile. Dr Godfredson also noted that, based on the respondent’s personality structure, self-harm concerns may flow from publication or ostracisation.
Mr Anthony Calandro
The applicant also called Mr Calandro, Operations Manager, Post-Sentence Branch, Corrections Victoria to give evidence on the proposed monitoring devices. Mr Calandro showed the Court a GPS tracking bracelet and a SCRAM bracelet. It was evident that the SCRAM bracelet was larger and more unwieldly than the GPS bracelet, and would thus be more difficult to conceal in social settings. Mr Calandro also noted that the SCRAM bracelet could not be submerged in water, such that the respondent would not be able to take baths or go swimming.
Mr Calandro explained that the SCRAM bracelet must be placed firmly around the wearer’s ankle to enable continuous monitoring of his alcohol intake. He noted that the device would take regular samples of the wearer’s perspiration, which it would send to an electronic monitoring centre to analyse. The analysis of the readings would then be provided to the wearer’s specialist case manager, who is responsible for monitoring compliance with the conditions of the order.
Mr Calandro also provided evidence about the GPS tracking bracelet, which I note is not contested by the respondent. He stated that this device would be looser than the SCRAM bracelet, as it does not require continuous contact with skin. Mr Calandro noted that, if both the SCRAM bracelet and GPS bracelet were ordered to be worn, they would need to be fitted on separate ankles.
In regard to the respondent’s brief period of parole in 2015, Mr Calandro confirmed that the respondent had been fitted with both a GPS bracelet and SCRAM bracelet. He expressed that he was not aware of the respondent experiencing any skin, health or discomfort issues due to the devices. Mr Calandro noted that, should the respondent be fitted with a SCRAM bracelet, he would be able to raise any irritation or discomfort issues with his case manager, who would liaise with the electronic monitoring centre to explore any practical changes.
Mr Calandro opined that monitoring compliance with the alcohol abstinence condition would be difficult without a SCRAM bracelet. He explained that breath-testing only assesses an individual at a particular point in time and that Victoria Police would need reasonable grounds for suspecting a breach of the condition in order to demand a breath test, urine analysis or other test procedure. In light of these limitations, Mr Calandro stated that the SCRAM device was warranted to enable continuous monitoring of the alcohol abstinence condition.
The applicant’s submissions
As above, the applicant submits that the requirements in s 47(1) of the Act have been satisfied, thus allowing the Court to exercise its discretion to make an interim supervision order.
The applicant submits that Dr Godfredson’s evidence that the respondent poses a moderate to high risk of committing a serious violence offence if he is in the community and not subject to a supervision order, should be accepted.
As noted above, the applicant relies on the legal test and standard of proof for making an interim supervision order being less onerous than for a supervision order.[10]
[10]See Secretary to the Department of Justice and Community Safety v SM [2019] VSC 497, [27]-[29] (Elliott J). See also Explanatory Memorandum, Serious Offenders Bill 2018 (Vic) 31.
The applicant submits that the electronic alcohol monitoring will provide appropriate safeguards to ensure that the respondent complies with the alcohol prohibition provided for in the proposed condition 5.4 in the draft interim supervision order.
The respondent’s submissions
In written submissions, the respondent indicated that it would not object to the granting of the proposed interim supervision order, save for the disputed condition relating to electronic alcohol monitoring, which I will discuss shortly. In broad terms, the applicant does not contest the report of Dr Godfredson.
The respondent submits that a non-publication order with respect to this matter is in the public interest, referring to the observations made in ARM v The Secretary to the Department of Justice.[11]
[11][2008] VSCA 266 at [36].
I note that there is no concession at this stage that the same approach of not opposing the granting of the interim supervision order will be taken by the respondent in relation to the application for the supervision order, to be listed for hearing in May 2020.
Conclusions
In the circumstances of the respondent not opposing the granting of the interim supervision order, the only live issue between the parties relates to the disputed condition. As above, the applicant seeks a condition requiring electronic alcohol monitoring to ensure compliance with the proposed condition requiring abstinence from alcohol.
In Director of Public Prosecutions (Vic) v SM (No 2) (‘SM’),[12] Elliott J observed that the conditions of an interim supervision order exist to mitigate the risk of re-offending ‘and thus harming or endangering members of the community’.[13] As such, conditions may be onerous and represent a significant interference with the liberties of a respondent, but nonetheless be considered justified in the circumstances.[14]
[12][2019] VSC 491.
[13]Ibid [22].
[14]See Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600, [230] (Tinney J).
Conversely, there is a requirement that conditions constitute the minimum interference with an offender’s liberty, privacy or freedom of movement. As such, any interference beyond that of the minimum, which is disproportionate to the likely reduction of the risk of re-offending, will offend the limitations in s 27(4) of the Act.[15]
[15]See IK v Secretary to the Department of Justice [2012] VSCA 12, [83] (Harper JA). This decision considered the requirement in s 15(6) of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), which mirrors the language in s 27(4) of the Act.
In a related decision, Elliott J imposed a condition requiring electronic alcohol monitoring in circumstances where the respondent had a lengthy history of alcohol abuse, including being affected by alcohol at the time of the violent index offence.[16] Elliott J determined that this condition, along with limitations on alcohol consumption, was appropriate and represented the minimum interference contemplated by s 27(4)(a) of the Act.[17] His Honour stated that:
In short, in light of the violent history of SM involving alcohol, SM’s history of alcohol abuse, the expert evidence as to disinhibition if excessive alcohol were to be consumed by SM and the grave consequences that might follow, it is essential that the Authority be able to monitor whether or not SM has consumed alcohol beyond an acceptable level.[18]
[16]Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707.
[17]Ibid [105].
[18]Ibid [106].
Similarly, in Secretary to the Department of Justice & Community Safety v Toller (‘Toller’),[19] his Honour Judge Pillay imposed electronic alcohol monitoring where alcohol abuse had featured prominently in the respondent’s history of offending and was linked to impulsivity in his behaviour.[20] His Honour considered the condition necessary to decrease the respondent’s risk of re-offending and to heighten community safety.[21]
[19][2019] VCC 2105.
[20]Ibid [15]–[16].
[21]Ibid [32]. See also DPP (Vic) v M [2018] VCC 566, [24] (Judge Sexton).
In the present matter, Dr Godfredson’s report confirms that the respondent began consuming alcohol at 15 years old and engaged in daily alcohol consumption while he was homeless. Dr Godfredson noted that the respondent otherwise denied experiencing problems relating to alcohol use. With respect to the relationship between alcohol and the respondent’s risk, Dr Godfredson opined that:
MTE was not intoxicated at the time of the offence. However, his use of substances prior to his incarceration appears to have been associated with lifestyle instability and/or an attempt to cope with emotional distress. Any future abuse of substances might therefore be considered a risk marker for future violent offending rather than an indicator of imminent risk. In the longer-term, it may be more beneficial for MTE to demonstrate the capacity to drink alcohol responsibly rather than maintain forced abstinence.[22]
[22]Ibid [194].
The report goes on to identify ‘abstinence from, or the responsible use of, alcohol’ as a factor that may decrease the respondent’s risk of re-offending.[23]
[23]Ibid [213].
In the present matter, Dr Godfredson identifies any future substance abuse as a risk marker for future violent offending, rather than an indicator of imminent risk. He does not distinguish the respondent’s potential abuse of alcohol from other illicit substances.[24]
[24]Taking into consideration Dr Godfredson’s comments on the benefits for the respondent demonstrating his capacity to drink alcohol responsibly.
If a condition requiring the attachment of the SCRAM bracelet is imposed, the respondent would be required to wear an electronic device on each ankle, as he does not oppose the attachment of a GPS bracelet.
With regard to the disputed condition, I agree with the observations of Elliott J in SM stated above, namely that conditions which may be onerous and significantly interfere with the liberties of the respondent may nonetheless be justified. Elliott J also observed that, conversely, s 27(4) of the Act requires the Court to ensure that any conditions constitute the minimum interference with the respondent’s liberty, privacy or freedom of movement that is necessary to ensure the purposes of the conditions, and are reasonably related to the gravity of the risk of re-offending.
In SM, it is evident that the respondent had a long history of alcohol abuse and was adversely affected by alcohol when he committed the index offending. In granting the electronic alcohol monitoring condition, Elliott J had clear evidence of a violent history involving alcohol and expert evidence as to the respondent’s disinhibition if excessive alcohol was to be consumed. Similarly, in Toller, alcohol abuse featured heavily in the respondent’s offending history. This was supported by an expert report which stated that the respondent in that case suffered from a borderline personality disorder, and that alcohol was a prime reason for his serial offending.
By comparison, I do not consider the respondent in the present matter to be in a similar category to those in SM and Toller. In the present case, there is no suggestion that the abuse of alcohol was implicated or associated with the index offending. Further, I do not conclude that alcohol abuse figured in the historical behaviour of the respondent to a significant degree that is relevant to his behaviour underpinning his index offending.
In my opinion, the respondent’s circumstances appear to be distinguishable from those of the respondent in SM.[25] In that case, the respondent’s history of alcohol abuse and his intoxication at the time of the index offending, coupled with its disinhibiting effects and impact on his risk profile, were determinative in Elliott J’s decision to impose electronic alcohol monitoring. The present case is also distinguishable from Toller,[26] where alcohol was found to be ‘a prime reason’ for the respondent’s serial offending.[27]
[25][2019] VSC 707.
[26][2019] VCC 2105.
[27]Ibid [16].
In support of its case, the applicant pointed to items of home-brewing paraphernalia that were located in the respondent’s cell during his period of incarceration. Furthermore, at the hearing, the applicant tendered a Confidential Drug and Alcohol Assessment Report by ASCO dated 20 January 2020, which noted the respondent as having stated:
I want to go prospecting, I want to buy a camera, I want to have a nice piece of land, maybe 10 acres or so, a house, just a quiet life, a fireplace, a nice starry night, a dog and a bottle of scotch, I am over this shit, I am so tired of it all.
The applicant pointed to the respondent’s reference to a bottle of scotch in support of the argument that a level of risk exists that justifies the Court imposing the disputed condition. In all the circumstances, I do not attach much weight to the statement of the respondent made to the ACSO interviewer in the determination of this application. The expression does not, of itself or in combination with other evidence, cause concern that the respondent has an elevated risk of abusing alcohol in a way relatable to the gravity of the risk of the his re-offending.[28]
[28]IK v The Secretary to the Department of Justice [2012] VSC 12 at [100].
As such, it has not been established, to my satisfaction, that the respondent has been abusing alcohol in prison, though noting that alcohol is not legitimately available to prisoners.
Further, it appears to me that Dr Godfredson accepts that there is no evidence that alcohol was implicated in the index offending or that the respondent was intoxicated at the time of the offence. Rather, he opined that the respondent’s use of substances prior to his incarceration was associated with lifestyle instability and/or an attempt to cope with emotional distress. Dr Godfredson held the opinion that any future abuse of alcohol might be considered a risk marker for future violent offending, rather than an indicator of imminent risk.[29]
[29]Report of Dr Godfredson dated 27 October 2019 at [194].
As such, there is no evidence before me that the abuse of alcohol is in fact an issue that challenges the behaviour of the respondent. I also note that he was not been interviewed about the issue now arising relating to alcohol.
I am conscious that the attachment of a second bracelet device would be a significant imposition on the respondent, for all the reasons discussed above. I am also clearly aware that the primary purpose of the Act is the protection of the community, and a secondary purpose is directed towards the rehabilitation of the respondent.
In the end, I am not satisfied that the evidence is of such weight or sufficiency to persuade me that an order for a SCRAM bracelet should be made.
In my opinion, the imposition of a condition that the respondent abstain from the use of alcohol, along with the proposed physical supervision to be carried out by the authorities, is sufficient to ameliorate risk to an acceptable level.
Having considered all the evidence and submissions advanced by both parties, I am otherwise satisfied that the relevant test has been satisfied and an interim supervision order should be granted. I am also satisfied that a non-publication order should be made.
Accordingly, the orders will be that the interim supervision order will be granted as per the application, excluding the condition requiring the wearing of a SCRAM bracelet. Additionally, I will make the non-publication order as sought.
7
8
0