Re MTE (No 2)
[2020] VSC 356
•21 May 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
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 |
| v | |
| MTE (a pseudonym) | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 & 14 May 2020 |
DATE OF JUDGMENT: | 21 May 2020 |
CASE MAY BE CITED AS: | Re MTE (No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 356 |
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CRIMINAL LAW – Judgment – Application for supervision order – Supervision order not contested– Duration contested – Electronic location monitoring contested – Alcohol abstinence 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 time of offending – Victim 75 year old woman – Supervision order granted – Duration of four years – Review period of two years – Electronic monitoring condition imposed – Alcohol abstinence condition imposed – Judicial monitoring mention in 12 months – Serious Offenders Act 2018 (Vic) s 13.
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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
The Secretary to the Department of Justice and Community Safety (‘the applicant’) applies for a supervision order for a period of six years in respect of MTE (‘the respondent’) under s 13 of the Serious Offenders Act 2018 (‘the Act’). The application, as well as an application for an interim supervision order under s 46 of the Act, was filed with the Court on 10 December 2019.
The application 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.[1]
[1]The application for a supervision order was originally made on the grounds that the respondent posed an unacceptable risk of committing both a serious sex offence and a serious violence offence. At the mention on 19 December 2019, the Secretary made an oral application to amend the grounds of the application, which was granted.
On 24 January 2020, I made the interim supervision order with a number of core and discretionary conditions sought by the applicant, save for a condition requiring electronic alcohol monitoring. That condition was contested by the respondent and became the primary focus of the hearing of the interim supervision order application. In declining to impose the condition, I expressed satisfaction that the other conditions of the interim order, namely requiring alcohol abstinence and physical supervision of the applicant by the Post Sentence Authority (PSA), would be sufficient to ameliorate the respondent’s risk to an acceptable level.
The interim supervision order commenced on 27 January 2020 and remains in force until the determination of the supervision order application, but for a period not exceeding four months unless exceptional circumstances exist.[2]
[2]See s 54(2) of the Act.
The respondent does not object to the making of a supervision order in largely the same terms as the interim supervision order. The respondent does, however, seek to exclude conditions requiring electronic monitoring of his whereabouts and prohibiting consumption of alcohol (‘the contested conditions’). In addition, the respondent contests the six-year period sought by the applicant, and initially submitted that a supervision order of one year duration was appropriate in all the circumstances. However, during the course of the hearing, the respondent reframed this initial submission, instead arguing for a two year period.
The respondent also seeks extension of the non-publication order made on 24 January 2020 pursuant to s 279 of the Act. The applicant neither consents to nor opposes that application.
Personal background and offence history
The respondent is 42 years old. As a child, he experienced parental neglect and was subjected to physical and sexual abuse. He engaged in self-harm and moved schools regularly, where he had difficulty making friends and experienced bullying. He began running away from home at the age of 13 and commenced using cannabis and drinking alcohol at 14 and 15 years respectively, before experimenting with other drugs, including amphetamines and cocaine.
Prior to the index offence, the respondent had accumulated a criminal history involving driving and dishonesty offences, for which he was sentenced on a number of occasions to periods of detention within a Youth Training Centre. He had no history of violent offending before the index offence.
The index offence occurred in 1997 when the respondent was in his late teens. He broke into the home of his 75-year-old former landlady with the intention to steal, but when the victim awoke, he murdered her. Having previously described these events in Re MTE,[3] it is not necessary to do so again for present purposes.
[3][2020] VSC 243R.
The respondent pleaded guilty to one charge of murder and was ultimately sentenced to 23 years’ imprisonment with a non-parole period of 17 years.
Throughout his time in prison, the respondent was the subject of over 50 incident reports, which ranged from verbal threats and physical violence to self-harm and illicit substance use. However, his engagement in a variety of offence-specific treatment programs corresponded with a gradual decrease in the frequency of such incidents.
The respondent was granted parole on 10 June 2015 and initially demonstrated positive community engagement through education and volunteer work. However, he resumed cannabis use and failed to comply with urinalysis requirements. The respondent was ultimately considered to have returned to the antisocial lifestyle he had engaged in prior to the index offence and his parole order was cancelled after nine weeks. The respondent has since served the balance of his sentence.
The applicable legislation
Section 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’. These reasons are intended to fulfil that requirement.
Section 1 sets out the purposes of the Act. Relevantly, they are:
(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…
The present application is brought pursuant to s 13(1) of the Act, which provides that the applicant may apply to the Court for a supervision order in respect of a person who is an eligible offender at the time the application is commenced.
The respondent was an eligible offender within the meaning of s 8 of the Act at the time the application was filed, being over the age of 18 and serving a custodial sentence originally imposed by the Supreme Court, and increased on appeal, for a serious violence offence within the meaning of s 3 of the Act, namely, murder.[4]
[4]The respondent continues to be an eligible offender as he is subject to an interim supervision order. See s 8(3) of the Act.
The application for a supervision order is to be determined in accordance with s 14 of the Act. It relevantly provides as follows:
14 Determination of application for supervision order
(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—
…
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence 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.
The applicant has the burden of proving that an offender poses or will pose an unacceptable risk pursuant to s 14(5) of the Act.
If made, the supervision order will commence on the date specified in the order.[5] Pursuant to s 19(1) of the Act, the period of a supervision order cannot exceed 15 years. The applicant is required to apply to the Court for review of a supervision order not later than three years after it is made or ‘any earlier first review date specified in the order’.[6]
[5]The Act s 18(1)(d).
[6]Ibid s 99(1)(a). Section 99(1)(b) of the Act provides that the Secretary must apply to the Court for subsequent reviews of the order at intervals of not more than three years or any shorter intervals specified in the order.
Meaning of unacceptable risk
The term ‘unacceptable risk’ is not defined in the Act. In Nigro v Secretary to the Department of Justice (‘Nigro’),[7] the Court of Appeal considered its meaning in the context of the now-repealed Serious Sex Offenders (Detention and Supervision) Act 2009. The Court held that:
The legislature has deliberately selected a threshold test that does not specify a particular degree of risk. Rather, the test requires an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which the offender had previously committed such an offence. It is the combination of these factors that will determine whether the risk of occurrence is of a sufficient order to make the risk unacceptable.[8]
[7](2013) 41 VR 359 (‘Nigro’).
[8]Ibid 391 [117] (Redlich, Osborn and Priest JJA).
Their Honours went on to explain that:
It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable.’ That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[9]
[9]Ibid 394 [130].
It is plain from the legislative text that the level of risk is not required to be ‘more likely than not’ to be considered unacceptable.[10]
[10]See s 14(4) of the Act. In Nigro, the Court of Appeal noted that it did not follow that where the level of risk is assessed as moderate, the circumstances could not in a particular case amount to an unacceptable risk. See (2013) 41 VR 359, 393 [125].
The Court of Appeal in Nigro held that the ‘unacceptable risk’ test:
…should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection.[11]
[11]Nigro (2013) 41 VR 359, 363 [5].
Conditions
Section 15 of the Act dictates that a supervision order is subject to the core conditions set out in s 31 and any other conditions that the Court imposes under Division 3.
The primary purpose of supervision order conditions is, relevantly, to reduce the risk that the respondent will commit a serious violence offence or an offence referred to in Schedule 3 of the Act. The secondary purpose is to provide for the reasonable concerns of victims of the respondent in relation to their own safety and welfare.[12]
[12]The Act ss 27(1) and (2).
In order to reduce the respondent’s risk of re-offending, conditions may promote his rehabilitation and treatment, and may also address types of behaviour that might increase his risk of committing a serious violence offence or an offence referred to in Schedule 3 of the Act, or engaging in any behaviour or conduct that threatens the safety of any person.[13]
[13]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, and must ensure that they are also reasonably related to the gravity of the risk of the respondent re-offending.
In the present matter, the applicant seeks the following in addition to the core conditions:
(a)suggested conditions pursuant to s 35 of the Act;
(b)conditions relating to residence 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 PSA to give directions pursuant to s 36 of the Act.
Relevant to the contested conditions, s 35(1)(c) empowers the Court to impose a condition requiring that the offender must not consume alcohol, while s 35(1)(j) permits the Court to include a condition in relation to ‘the forms of monitoring (including electronic monitoring) of compliance with the supervision order to which the offender must submit’.
Non-publication order
Pursuant to s 279 of the Act, 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 and having regard to the matters set out in s 280 of the Act.
As noted, the non-publication order granted on 24 January 2020 expires upon determination of this supervision order application.
The evidence
In determining whether an offender poses or will pose an unacceptable risk under s 14(1) of the Act, the Court must have regard to assessment reports whether filed by the applicant or the offender, and any other reports filed or evidence given.[14]
[14]Ibid s 14(2)(a).
In support of the present application, the applicant relies on the report of Dr Joel Godfredson dated 27 October 2019, addendum report of Dr Godfredson dated 10 May 2020 and neuropsychological report of Professor Simon Crowe dated 15 February 2020. The applicant also called Mr Anthony Calandro from the Post Sentence Branch (PSB) to provide evidence at the hearing.
The respondent, on the other hand, relies on the report of Dr Prashant Pandurangi dated 10 April 2020 and medical report authored by Dr Michael Aufgang dated 27 April 2020, attaching a Mental Health Treatment Plan. I discuss the evidence in detail below.
Dr Joel Godfredson
The report of Dr Godfredson, clinical and forensic psychologist, dated 27 October 2019, details the respondent’s background, offending history and conduct in custody and on parole. I note that this report was relied upon in the application for the interim supervision order,[15] and thus I will not summarise it again for present purposes.
[15]Re MTE [2020] VSC 243R.
In an addendum report dated 10 May 2020, Dr Godfredson reviewed the respondent’s progress on the interim supervision order and considered the psychiatric report prepared by Dr Pandurangi.
Dr Godfredson conducted a telephone interview with the respondent on 8 May 2020. He noted that the respondent described symptoms of stress and anxiety which seemed commensurate with his circumstances, as well as paranoia consistent with his previous assessment of his personality. He confirmed the absence of evidence of a disturbance of mood or serious mental illness, and found no obvious impairment in concentration or memory. Dr Godfredson noted the respondent denied suicidal ideation, and seemed to have little insight into the psychological vulnerabilities associated with his risk for violence.
Based on his review of the file material, Dr Godfredson stated that the respondent initially refused to participate in any goal setting activities due to the uncertainty of his legal status. However, it is noted that he eventually agreed to set goals relating to medical and psychological care, in addition to exploring his Torres Strait Islander heritage. Further, Dr Godfredson stated that the respondent’s engagement with professional support persons has improved in accordance with a degree of familiarity, though noting that such relationships may become strained once the novelty of these supports wears off.
Dr Godfredson raised a number of incidents of concern in his addendum report, some of which he explored further at the hearing. Firstly, he referred to an incident on 2 March 2020, where the respondent had a six-pack of beer in his refrigerator. At the hearing, it was clarified that the respondent purchased the alcohol to thank his neighbour for mowing the lawn and disclosed this fact to the Supervision Order Specialist Response Unit (SOSRU) of Victoria Police. Additionally, on 15 April 2020, the respondent attended a liquor store and purchased alcohol on behalf of his neighbour. He voluntarily offered this information to the SOSRU members who attended his residence that later day.
In his oral evidence, Dr Godfredson opined that the respondent’s repeated decisions to purchase alcohol for others reflected poor judgment, given the alcohol abstinence condition in the interim supervision order. Whilst not suggesting the respondent intended to consume the alcohol, Dr Godfredson expressed concerns with the respondent trying to impress others or establish relationships by buying alcohol, and referred to how a similar pattern of behaviour preceded the index offending.
Secondly, Dr Godfredson expressed concerns regarding an altercation between the respondent and two men who attempted to steal his bicycle on 6 April 2020. The respondent challenged the men, one of whom threatened him with a knife. Dr Godfredson opined that this incident provided little comfort regarding the respondent’s capacity to de-escalate conflict in a pro-social manner. While noting that such behaviour may be culturally sanctioned in prison, Dr Godfredson expressed that the respondent took a significant gamble by utilising intimidation tactics. He rejected the proposition that the respondent’s behaviour demonstrated his ability to hold back and not act violently, commenting that it was sheer luck that the knife-wielding assailant backed down.
Aside from the few incidents of concern, Dr Godfredson noted that the respondent had generally experienced relative stability in the community. He opined, however, that such stability was a product of the range of supports and interventions arising from the interim supervision order. Dr Godfredson expressed that the removal of such supports would create challenges for the respondent in maintaining lifestyle stability.
On the topic of duration of the supervision order, Dr Godfredson noted that his current assessment of the respondent as posing a moderate to high risk had a greater ‘shelf-life’ than the average offender of comparable risk. He explained that the respondent’s risk is underpinned by long-term psychological vulnerabilities coupled with limited skills for establishing and maintaining lifestyle stability. However, in cross-examination, Dr Godfredson expressed that he could not state with certainty whether the respondent would be of the same risk status after six years. While acknowledging that his risk status could decrease if the respondent continues in the same manner, Dr Godfredson opined that this would not be likely given the respondent’s responsivity factors and his significant period of incarceration.
Moreover, Dr Godfredson rejected the suggestion that the most dangerous period for an increase in risk status is the first few months after release into the community. Instead, he noted that the risk of reoffending remains steady over time.
Dr Godfredson recommended that, should a supervision order be granted, conditions be periodically reviewed to promote the respondent’s capacity to make responsible choices and maintain stability in the absence of mandated professional supports. He noted the respondent is likely to experience considerable anxiety in the lead up to a review and would be reluctant to set goals related to lifestyle stability, such as undertaking occupational training or finding employment, while his legal situation remains uncertain. As such, Dr Godfredson recommended sufficient time for the respondent to settle into a supervision order and optimise his capacity to plan for the future before requiring his attendance at court.
In cross-examination, Dr Godfredson noted that offenders subject to a supervision order may eventually resent the fact that they are subject to supervision, which could lead to a deterioration in their compliance with the order over time. On the other hand, he noted that a supervision order of a shorter duration which is then extended may give the respondent ‘false hope’ and lead to a greater sense of despondency, compared to if a longer order was imposed from the outset. Dr Godfredson noted that he would begin conducting an updated risk assessment six months before a review.
With respect to the use of alcohol, Dr Godfredson opined that alcohol abuse would directly or indirectly increase the risk of violence. In oral evidence, he emphasised the respondent’s decision making ability as a critical risk factor and noted the well-established effect of alcohol on individuals’ judgment. He opined that alcohol could undermine the respondent’s lifestyle stability and be abused to ‘self-medicate’ his symptoms of interpersonal anxiety. Dr Godfredson opined that it would be premature to permit unregulated alcohol use, and that a period of abstinence should be long enough for the respondent to demonstrate his capacity to establish lifestyle stability and deal with conflict situations in a prosocial manner.
In the event that an alcohol prohibition condition is imposed, Dr Godfredson recommended that the respondent be supported in making requests to the PSA to drink alcohol on special occasions. He opined that such an arrangement would allow the respondent to demonstrate his ability to drink alcohol in a responsible manner, though noting that he may be reluctant to put himself in a position where his requests could be rejected.
In relation to electronic monitoring, Dr Godfredson noted the respondent had expressed discomfort issues with the ankle bracelet. He stated, however, that the respondent had described the device as his ‘guardian angel’ insofar as it confirmed his whereabouts at any given time. Noting the respondent’s sensitivity to being unfairly accused of doing the wrong thing, Dr Godfredson opined that the device prevented him from being subject to unnecessary scrutiny. Thus, while confirming the respondent’s preference against electronic monitoring, Dr Godfredson opined that he did not seem overly troubled by the prospect.
I note Dr Godfredson conceded in cross-examination that he had not identified any particular geographical locations associated with an increased risk for the respondent.
Overall, Dr Godfredson confirmed his assessment of the respondent as posing a moderate to high risk of committing a serious violence offence if not subject to a supervision order in the community. He identified two broad scenarios relating to the materialisation of such risk, being if the respondent attempts to avoid the consequences of a poorly planned offence or feels antagonised by someone engaging in behaviour which offends his rules and expectations. While describing the respondent’s progress on the interim supervision order as ‘a step in the right direction’, Dr Godfredson opined there had not been a material reduction in risk since his last assessment in October.
In regards to the report of Dr Pandurangi dated 10 April 2020, Dr Godfredson noted that his opinions largely coincide with those of Dr Pandurangi, save for the final risk assessment, which reflects the following differences in scoring:
(a)On the Historical scale, Dr Pandurangi’s opinion differs in respect of the item pertaining to a history of problems with violent attitudes;
(b)On the Clinical scale, Dr Pandurangi coded the respondent for recent problems with treatment or supervision response, whereas Dr Godfredson opined that he exhibited sufficient compliance with these obligations to render the risk factor currently absent;
(c)On the Risk scale, differences in scoring seem to relate to how Dr Godfredson considered the items in the context of the respondent being in the community and not subject to a supervision order, while Dr Pandurangi considered the respondent’s current context, including the supports received while on the interim supervision order.
Dr Godfredson agreed with Dr Pandurangi’s opinion that the respondent is tempered by dynamic risk factors, but did not consider this to be a measure of progress per se. As noted above, he opined that the respondent’s risk is mitigated by the supports and interventions associated with the interim supervision order. Dr Godfredson agreed with the importance of closely monitoring the respondent’s engagement and progress, and shared the view that he warrants moderate to high case prioritisation.
Professor Simon Crowe
Dr Godfredson’s addendum report refers to a neuropsychological assessment of the respondent by Professor Crowe on 10 February 2020, at the request of the PSB.
Based on a number of intellectual functioning, memory and other tests, Professor Crowe opined that, despite a ‘significant compromise’ of his literacy skills, the respondent performed within the low average range in relation to all other aspects of cognitive function. In relation to the possible impact of the respondent’s cognitive functioning on his engagement with treatment, Professor Crowe stated:
[The respondent] is currently operating with his literacy at about an early primary level. Other than this, he certainly does not feature any compromise of neuropsychological functioning, which would preclude any engagement in treatment, in my view. Willingness and motivation, in my view, would continue to be important determinants of how successfully [the respondent] coped with any kind of intervention… Certainly, there is no neuropsychological impediment to him being able to learn, remember, plan, anticipate and benefit from feedback.
Professor Crowe opined that the respondent does not demonstrate any ‘overt problems associated with impulsivity or an ability to be able to learn from his experiences’ and further, that his ‘planning, error utilisation and his ability to be able to benefit from feedback’ appear to be intact.
Dr Prashant Pandurangi
Dr Pandurangi, forensic psychiatrist, based his report on his own interview with the respondent on 19 March 2020, together with a study of previous assessments and reports. In addition to discussing the respondent’s background and index offending, Dr Pandurangi also described his circumstances on the interim supervision order.
Dr Pandurangi opined that the respondent poses a moderate risk of committing a serious violence offence if in the community and not subject to a supervision order. At the hearing, he explained that ‘moderate’ risk means that the respondent is indistinguishable in terms of risk compared to the average violent offender.
Further, Dr Pandurangi clarified that his assessment was conducted on the basis of the respondent’s current circumstances, including the supports received under the interim supervision order. In cross-examination, he conceded that the respondent’s risk would be higher without such supports. Further, he confirmed that he had overlooked the respondent’s history with violent attitudes in coding the historical domain, but noted that this in itself did not change his opinion regarding the respondent’s risk status.
Dr Pandurangi advised that the respondent has a high loading of historical risk factors for future violence, including a history of significant violence, an experience of trauma in his early life, antisocial behaviour starting from his adolescence, difficulties in maintaining relationships and gaining meaningful employment, a history of substance misuse, a personality disorder, and a poor response to supervision while on parole. He opined that these factors are moderated by his current dynamic risk factors, assisted by the imposition of the interim supervision order, including stable accommodation, abstinence from drug and alcohol use, and engagement in therapeutic activities.
Dr Pandurangi expressed the view that any future violent offending committed by the respondent is likely to be:
…impulsive in nature, and the severity would depend on his emotional state, response by the victim and whether he has access to a weapon. There is no indication of involvement of drugs or alcohol in the index offending, however these are risk factors for any general offending. It is obvious that in the event he or his circumstances return him to [his] previous lifestyle, which he had around the time of the index offence, the likelihood of serious violence would increase.
According to Dr Pandurangi, factors which may increase his risk of future offending include substance misuse, itinerancy, antisocial peer influences or ‘emotional collapse’. Conversely, he noted that factors likely to decrease his risk include stable accommodation, employment, social supports, a pro-social lifestyle and engagement with psychological treatment.
In his report, Dr Pandurangi also opined that the respondent is at ‘a low risk of imminent violence’. When cross-examined about how this reconciles with his assessment of the respondent as a ‘moderate’ risk, he explained that the respondent is not at risk of acting violently in the imminent future so that he would need to be detained in a hospital or facility. He further clarified that his assessment of the respondent as a moderate risk of violence pertained to the near future, being weeks or months. Dr Pandurangi stated he would not be confident about the currency of his assessment beyond six to 12 months, noting the potential for the respondent’s dynamic risk factors to improve or worsen over time.
Moreover, Dr Pandurangi opined that the respondent requires a moderate to high case prioritisation, which would involve continuation of the kind of supports and resources he currently receives on the interim supervision order. Dr Pandurangi indicated that, if such supports are only available under a supervision order, the imposition of a supervision order would be the best option.
In regard to alcohol abstinence and electronic monitoring, Dr Pandurangi observed that such restrictions are legal requirements, rather than rehabilitative. He opined that such restrictions:
…would assist, if they are necessary to manage his risk of violent offending and not entirely perceived as a mechanism of control. As noted by the Courts, there is no indication that his index offending was linked to use of drugs or alcohol, so this needs to be taken into account when deciding whether in allowing a responsible alcohol intake, at some stage once he completes his drug and alcohol work, increases his risk of serious violence. In my view, this would be considered [as part of] a gradual reduction in restrictions. The electronic monitoring is entirely a legal restriction and, in my opinion, is not something for the psychiatric expert to comment on.
At the hearing, Dr Pandurangi agreed that there should be restrictions around alcohol use, and that a gradual reduction of such restrictions would be beneficial. Further, he noted that he would support a condition limiting alcohol use to a certain amount on a certain day, provided there was effective monitoring.
In cross-examination, Dr Pandurangi also agreed with the proposition that the respondent’s recent behaviour in buying alcohol for his neighbour paralleled his behaviour prior to the index offending, where he sought money to buy things for his friends. He noted that the respondent’s way of ‘buying friendship’ is all he knows, and that he could be assisted in attempting to forge relationships in other ways.
With regard to electronic monitoring, Dr Pandurangi noted that the utility in establishing the respondent’s whereabouts must be balanced with the respondent’s understanding of the restrictions, as such restrictions risk being counterproductive and may cause him to start resenting the supervision order.
On the topic of duration, Dr Pandurangi agreed with Dr Godfredson’s opinion that the imposition of a shorter order which is then extended may have a negative impact on the respondent. He, however, opined that this might not apply to the review period, as the respondent may be motivated to maintain a prosocial lifestyle and desist from offending knowing that his case will be reviewed. As such, he recommended that a supervision order, if imposed, should be reviewed annually and amended in accordance with the respondent’s progress.
Dr Michael Aufgang
Dr Aufgang, the respondent’s general practitioner since February 2020, authored a report on the respondent’s physical and mental health since his release from custody. He noted that the respondent has a number of chronic health issues including diabetes and pain in his back, neck and major joints.
Dr Aufgang noted the respondent’s frustration at the lack of communication regarding his medical issues relating to the electronic monitoring bracelet. He noted that the bracelet has had to be loosened on a number of occasions because it wears against the respondent’s skin, which has led to ulceration of the skin on his right ankle.
With respect to the respondent’s mental state, Dr Aufgang recorded a history of anxiety and depression. He confirmed that the respondent is presently awaiting assessment by a psychiatrist to determine whether he has any other psychiatric illness.
Mr Anthony Calandro
At the hearing, the Court also heard evidence from Mr Calandro, Acting General Manager, Post Sentence Branch, Corrections Victoria. Mr Calandro detailed the supports and services received by the respondent whilst subject to the interim supervision order, including supported accommodation, forensic intervention services and counselling, private psychological sessions and alcohol and drug counselling. He noted the respondent would be responsible for contributing towards his own rent following 28 June 2020, with such contributions increasing incrementally. Mr Calandro also explained that he would be supported in looking for alternative accommodation after 12 months, given the transitional nature of his current residence.
When questioned about how COVID-19 and the possibility of a future economic downturn might affect the supports available, Mr Calandro expressed that there were a number of different programs and avenues in place. He opined that it was very unlikely that a person subject to a supervision order would ever become homeless. Mr Calandro stated that it was his understanding that the current supports available to the respondent would continue to be made available even in the face of deteriorating economic circumstances.
Mr Calandro also referred to the extensive community support provided by ASCO, which amounted to 210 hours at the date of the hearing. Mr Calandro acknowledged that the respondent still requires a significant amount of support from ASCO, and in the absence of a supervision order, would not have access to the intensive transition program in which he is currently engaged.
On the topic of electronic monitoring, Mr Calandro emphasised its importance in managing the respondent’s risk in the community. Firstly, he noted that it allows Corrections Victoria to directly monitor compliance with residence and curfew conditions. He referred to Dr Godfredson’s evidence that a stable living environment decreases risk and a curfew contributes towards lifestyle stability. In cross-examination, however, Mr Calandro conceded there was no evidence that the respondent wished to reside anywhere other than his own residence or to be out after curfew.
He noted that, without an electronic monitoring bracelet, it would be very difficult to monitor the respondent’s whereabouts and Corrections Victoria would have to rely on other methods such as random phone calls, potentially throughout the night, and unannounced visits. Mr Calandro disagreed with the proposal that the respondent carry his mobile phone at all times and use a tracking application as an effective means to track his whereabouts, noting that he could just leave his phone at home. He also noted that electronic monitoring allows Corrections Victoria to be automatically notified when the respondent enters or leaves certain zones. Further, he disagreed with the suggestion that the respondent’s case manager could call and query about his whereabouts, noting that the case manager would only call if there was a reason to do so and that this method would rely heavily on the respondent’s self-report.
Secondly, Mr Calando expressed that electronic monitoring would allow monitoring of other important risk factors such as the respondent associating with antisocial peers or spending overly lengthy periods in his residence, the latter potentially indicating the need for additional supports to help his anxiety in the community. In cross-examination, Mr Calandro noted the respondent’s close association with two individuals he spent significant periods of custody with and who have very serious offending histories. He agreed that his contact with such individuals was well known to Corrections Victoria. Mr Calandro also conceded that the respondent’s contact with the individuals was known by Dr Godfredson and Dr Pandurangi, with neither suggesting that such contact should cease.
In regards to the electronic monitoring bracelet itself, Mr Calandro explained that it is fitted to the ankle but does not need to be touching the skin. He noted there is often an inch gap between the strap and offender’s skin, such that the offender is able to wear a sock underneath the device. Mr Calandro stated that there are different size straps available.
He noted that, during the period of the interim supervision order, the device had detected the respondent’s attendance at a bottle shop on four occasions. Mr Calandro explained that this data allowed police to make further inquiries with the respondent, leading him to explain that he had been purchasing alcohol for his neighbour. He stated that these incidents were subsequently discussed with the respondent during supervision or treatment.
Further, Mr Calandro noted another incident where the electronic monitoring device detected that the respondent was absent from his unit after curfew. It was later clarified that the respondent had been in a shed with his neighbour. In cross-examination, Mr Calandro agreed this was the only issue that had arisen in terms of electronic monitoring and the respondent being at his residence.
Based on his perusal of the file material, Mr Calandro confirmed that the respondent had made three complaints regarding discomfort caused by the electronic monitoring bracelet, leading to the bracelet being changed to a larger strap on one occasion and moved to the other ankle on another occasion. He noted that the respondent has reported no current problems with the device.
In cross-examination, he explained that the respondent could call his case manager during business hours or an after-hours number should he experience any pain and discomfort. Mr Calandro confirmed that Corrections Victoria have staff 24 hours a day to respond to incidents, and that it is common practice for them to attend after hours to deal with electronic monitoring bracelets.
In regards to alcohol, Mr Calando opined that it would be very difficult to monitor compliance with a condition permitting a limited amount of alcohol on specified occasions. He noted that it would be quite resource intensive to send police or Corrections officers around every week to conduct breath tests, which would only be relevant for that point in time. Further, he noted that a breath test or urinalysis could only be conducted if there were reasonable grounds for suspecting a breach of the order.
Mr Calandro discussed one supervision order under which the offender is permitted two drinks per day, noting that this was monitored by a SCRAM device, which detects alcohol consumption through bodily perspiration. I note that the applicant did not propose a condition requiring the wearing of such a device in the present application.
Lastly, Mr Calando agreed that it would be possible for the respondent to request the consumption of alcohol on special occasions during his weekly supervision appointments with his case manager. He noted that his case manager would generate a report, which would be sent to the PSA for consideration.
The applicant’s submissions
The applicant filed written submissions addressing both the interim supervision order and supervision order applications on 3 January 2020, and an updated outline of submissions with respect to the supervision order application on 11 May 2020.
The applicant contends it has satisfied the Court that the respondent will pose an unacceptable risk of committing a serious violence offence if the proposed supervision order is not made. This submission is made on the basis of the respondent’s potential future offending, the moderate to high risk of such violent offending, and the seriousness of the consequences should that risk eventuate. It is contended that the supervision order should operate for six years, with review periods of two years.
In oral submissions, the applicant contended that the Court should disregard Dr Pandurangi’s risk assessment of the respondent on the basis that he did not comply with the requirements of the Act by assessing the respondent in the context of being on an interim supervision order. The applicant referred to Dr Pandurangi’s oral evidence that, had he approached the assessment on the basis of the respondent being in the community and not subject to a supervision order, his risk assessment would have been higher. It was submitted that the Court is still open to take into account Dr Pandurangi’s report, save for the risk assessment.
In regards to duration, the applicant submits an order of six years with review periods of two years would be appropriate, noting Dr Godfredson and Dr Pandurangi conceded difficulties in precisely determining how long a particular risk may last. The applicant referred to the following test from the decision in ARM v the Secretary:
It is implicit in s 14, and both sides accepted, that if the court is not satisfied to a high degree of probability that the offender will remain likely to commit a relevant offence for the whole 15 years period referred to in s 14, the period of the order should be set at such a lesser period as for which the court is satisfied to a high degree of probability that the offender will be likely to commit a relevant offence unless subjected to the programme.[16]
[16]29 VR 472 [13].
It noted that their Honours then clarified the meaning of ‘likely’ as ‘more likely than not’.[17] As such, the applicant submits that the Court ought to be satisfied that the respondent will remain likely to commit a relevant offence for the whole of the proposed six year period, noting his lengthy period of incarceration, personality traits and the interventions required to address such challenges.
[17]Ibid [14].
Further, the applicant contends that the respondent would have the opportunity to appear before the PSA to consider the conditions of his supervision order. It is submitted that the PSA would check his progress on the supervision order and determine whether other directions can be given or further treatment is required.
It is noted that, in anticipation for a review, the applicant would receive a progress report and updated risk assessment of the respondent. The applicant referred to Dr Godfredson’s evidence that he would begin this progress around six months before the review date. As such, it is submitted that a two year review period would allow an assessment to begin in 18 months and thus be appropriate.
Further, the applicant notes that the Court could set a mention hearing before an official review, similar to judicial monitoring, to check on the respondent’s progress. It is submitted that such an approach is not provided for under the Act, but has been taken by some judges in the County Court of Victoria. At the hearing, the applicant explained that this would not entail a formal risk assessment, thus being less intrusive for the respondent while still permitting the Court to retain greater oversight.
With respect to the issue of alcohol, the applicant contends that the most appropriate way for the respondent to gradually move away from complete abstinence would be to request permission from the PSA to drink a moderate amount of alcohol on certain occasions. It is submitted that a condition providing for the consumption of a certain amount of alcohol on certain occasions simply cannot be monitored.
In regards to electronic monitoring, the applicant concedes that there have been comfort issues with the bracelet which may have led to marks and minor injuries on the respondent’s skin. However, it is noted that the PSA has taken action on every occasion that the respondent has raised a concern, including changing the strap size or switching the device to another ankle. Further, it was noted that the respondent could wear longer socks to assist with his comfort level.
It is emphasised that electronic monitoring would be important in monitoring the respondent’s compliance with a supervision order, particularly residence and curfew conditions. At the hearing, the applicant noted that the one incident where the respondent was outside his residence after curfew was concerning due to the fact that he had clarified the boundaries of the property the week prior. Moreover, it was noted that the alerts generated by the respondent’s visits to the bottle shop were beneficial in allowing such matters to be raised in treatment. The applicant also contends that electronic monitoring is a common condition for offenders coming out of prison for the first time on a supervision order.
The respondent’s submissions
As above, the respondent does not generally object to the making of the supervision order sought by the applicant, save for the contested conditions. It was noted in oral submissions, however, that the respondent does not concede there is an unacceptable risk. It was submitted that the Court must still satisfy itself that there is a high degree of probability that the respondent would pose an unacceptable risk if released into the community and not subject to a supervision order.
In response to the applicant’s submission that Dr Pandurangi’s risk assessment be disregarded, the respondent contends that his report does not constitute an ‘assessment report’ under the Act, but falls under ‘any other report’. Noting that while Dr Godfredson’s report was an ‘assessment report’ to enable the applicant to determine whether to bring an application for a supervision order, it was contended that Dr Pandurangi’s report was commissioned in the context of an understanding that the respondent would not object to the making of a supervision order and the assessment conducted while the respondent was already on an interim supervision order. As such, it is submitted that the strictures of the Act do not apply. On a side note, it was also expressed that the applicant did not provide notice of its intention to dispute Dr Pandurangi’s report.
In the event that Dr Pandurangi’s report does constitute an ‘assessment report’, the respondent submits that any uncertainty regarding his risk assessment was remedied in his oral evidence at the hearing. It is noted that the applicant had, and took, the opportunity to clarify the basis of Dr Pandurangi’s report.
Thirdly, the respondent emphasises that the suggested issues around Dr Pandurangi’s risk assessment are ultimately of little importance. This submission is made on the basis that the global risk assessment in this case is not an issue, given that the respondent does not object to the making of a supervision order.
It is submitted on the respondent’s behalf that he has made very good progress on the interim supervision order, with no contraventions over the last three and a half months. Further, it is contended that the respondent has retained a positive attitude and has been very engaged in his own reintegration in society. As such, it is submitted that the respondent should be given some reward, hope or acknowledgement of his performance on the interim supervision order, and that to come out of this hearing without any progress would be detrimental to his perception of his own prospects.
In regards to duration, it is noted that the respondent has offended once, though catastrophically, and can be distinguished from the majority of offenders on supervision orders who are recidivist child sex offenders. The respondent referred to the decision of Secretary to the Department of Justice and Community Safety v SM (No 2) (‘SM (No 2)’),[18] where SM also committed murder at a young age but had a more serious criminal history than in the present case. The respondent noted that Elliott J imposed a duration of one year and nine months, taking into consideration SM’s positive engagement and openness to rehabilitation.
[18][2009] VSC 707.
The respondent contends that these features are a hallmark of the present case, and thus, SM (No 2) should be considered a useful benchmark, noting that that the present case has more positive markers. In response, the applicant noted that the Act does not permit the Court to consider comparable supervision order cases. Rather, it is contended that the Court must consider the circumstances in each particular case.
While initially proposing a duration of 12 months, further to Dr Godfredson’s recommendation that the respondent be given sufficient time to settle into the order, the respondent varied his proposal to a duration of two years, with a review after 12 months. It is submitted that the Court could not be satisfied to a high degree of probability that the respondent will pose an unacceptable risk over the six year duration sought by the applicant. Referring to both Dr Godfredson and Dr Pandurangi’s evidence, it is submitted that the respondent’s risk assessment is best known for a couple of years, compared to recidivist child sex offenders who can be subject to much more certain risk predictions given their lengthy periods of offending.
Further, the respondent referred to Dr Godfredson’s evidence that a long supervision order could lead to resentment, potentially leading to a deterioration in compliance with the order over time. It is submitted that a shorter order will enhance his rehabilitation by providing a sense of hope and agency, as well as a sense that his good performance is being rewarded.
In regards to COVID-19, it is submitted that it is prudent for the Court to impose a shorter supervision order, as it is unknown how the situation will exactly develop over the next year or so.
Lastly on the topic of duration, the respondent contends that, should a two year period be imposed, the applicant would be able to apply for an extension. It is noted that the standard of proof would remain the same for an extension application. Whilst acknowledging that an extension may give the respondent a sense of false hope, it is contended that the benefit of motivating him to continue his engagement for the next two years outweighs that risk.
With respect to alcohol, it is reiterated that the index offending did not involve alcohol and there is no evidence that any of the respondent’s previous offending was directly related to alcohol. As such, it is submitted that the imposition of an alcohol prohibition would offend s 27 of the Act, as it would not constitute the minimum interference with the respondent’s liberty. It is contended that the expert evidence supporting the prohibition was based on generalised knowledge of research relating to alcohol and violence, rather than anything specific about the respondent.
Alternatively, the respondent proposes that an alcohol prohibition with exceptions would also be appropriate, and put forward the example of no more than three standard drinks on a specific night of the week. It was noted that alcohol is not a matter of great importance to the respondent, but allowing him to do something that other adults are at liberty to do would signal that he is on the path to independence.
Further, it is submitted that subcontracting the responsibility to the PSA to determine when the respondent can consume alcohol would not be appropriate, as the PSA will take its lead from the Court and be unlikely to allow the consumption of alcohol if a prohibition condition is in place. The respondent also referred to Dr Godfredson’s evidence that the process of going to the PSA, asking for permission and then being rejected would be a ‘bump in the road’.
Finally, the respondent emphasises the physical and psychological implications of electronically monitoring. Referring to the pictures presented to the Court, it is noted that the respondent’s leg is prone to swelling and that the bracelet can cause injury and discomfort. However, it is contended that of more significance is the fact that the bracelet would be a serious imposition on the respondent’s liberty, bodily integrity and privacy. It is submitted that the bracelet serves as a physical reminder of the respondent’s identity as a prisoner and past as a criminal, with both experts conceding that it may feed into his sensitivity about being mistrusted.
Moreover, it is submitted that little weight should be given to the respondent’s description of the electronic monitoring bracelet as his ‘guardian angel’. It is noted that this remark is simply the respondent trying to find a positive aspect in a situation where he is unhappy. It is contended that this condition would also offend s 27 of the Act, as there is no evidence suggesting that the respondent is at risk of breaching his residence and curfew conditions. The respondent also notes the absence of evidence linking particular locations to increased risk.
Conclusions
Based on the evidence before the Court, I am satisfied to a high degree of probability that the respondent poses an unacceptable risk of committing a serious violence offence if he is in the community and not subject to a supervision order. I will therefore grant the application for a supervision order.
I accept Dr Godfredson’s evidence that the respondent poses a moderate to high risk. Further, it is significant that Dr Godfredson characterises the respondent’s progress on the interim supervision order as a ‘step in the right direction’, but opines that there has not been a material reduction in risk since October 2019. I also note his opinion that the respondent has little insight into his own psychological vulnerabilities.
I further note Dr Pandurangi’s assessment of the respondent as posing a moderate risk.
Dr Godfredson regarded his opinions as largely coinciding with those of Dr Pandurangi, save for the final risk assessment which reflected in differences in scoring, as set out in paragraph 53 of these reasons. I do not regard any of the conclusions of Dr Godfredson and Dr Pandurangi as being materially different so as to change my opinion in granting this application. Both experts agree that the respondent should be closely monitored as to his engagement and progress, and that he warrants moderate to high case prioritisation. With respect to the submission that Dr Pandurangi’s assessment report does not comply with the requirements of the Act, I do not consider that this issue requires to be resolved in all the circumstances.
Duration of the order and reviews
On making a supervision order, the Court is required to specify the period of the order.[19] It must also specify the latest date by which an application for the first review of the order is to be made, and the maximum intervals between subsequent reviews.[20]
[19]The Act ss 16(2)(d), 19(1).
[20]Ibid ss 16(2)(g), 99(1).
In ARM v The Secretary to the Department of Justice,[21] the Court of Appeal considered a provision equivalent to s 19(1) in the Serious Sex Offenders Monitoring Act 2005 concerning the period of an ‘extended supervision order’. The Court stated:
It is implicit in s 14, and both sides accepted, that if the Court is not satisfied to a high degree of probability that the offender will remain likely to commit a relevant offence for the whole 15 year period referred to in s 14, the period of the order should be set at such lesser period as for which the court is satisfied to a high degree of probability that the offender will be likely to commit a relevant offence unless subjected to the program. [22]
[21](2008) 29 VR 472.
[22]Ibid 475 [13] (Maxwell P, Nettle and Weinberg JJA).
Applying the Court of Appeal’s reasoning to the language of the Act, the period of a supervision order should be determined by reference to the period for which the Court is satisfied the offender will continue to pose an unacceptable risk.[23]
[23]See Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600, [236] (Tinney J); DPP (Vic) v DJD [2017] VSC 776, [95] (Riordan J).
As above, the applicant submits that the respondent will remain an unacceptable risk for at least six years and seeks a review period of two years. On the contrary, the respondent ultimately submitted that an order of two years with a review after 12 months would be appropriate. In my opinion, both a 12 month and 24 month period would be too short to achieve the objectives of the Act and reduce the respondent’s risk to an acceptable level.
I note that Dr Godfredson’s report does not address an appropriate period for the order’s duration or review dates. While Dr Pandurangi’s report suggests annual reviews, he also provides no opinion as to the order’s duration. Dr Godfredson could not state with certainty whether the respondent would be of the same risk status after six years, but acknowledged a decrease could be possible, though not likely, for the reasons detailed above. In oral evidence, Dr Godfredson recommended that the respondent’s progress be periodically reviewed, but that he also be given sufficient time to settle into a supervision order before being required to re-attend court.
Dr Godfredson also noted that, in his experience, there is a risk that persons on supervision orders can come to resent the fact they are being supervised which may lead to a deterioration in compliance. On the other hand, a duration that is too short may result in false hope and lead to a sense of despondency if it is later extended.
Recognising the necessity of weighing all competing factors, including the assessment of risk to the community, I am of the opinion that the appropriate period of the supervision order is four years. I am satisfied to the required degree that the respondent will continue to pose an unacceptable risk for this period. In the circumstances, I will order that a review take place no later than two years from the date of the order being made.
I note Dr Pandurangi’s opinion that reviews should take place annually, but I also take into account Dr Godfredson’s opinion that this would necessitate the preparation of reports six months before each review. Taking into account those opinions, I consider it important to set review periods longer than 12 months to reduce the anxiety likely to be experienced by the respondent in having to prepare for reviews at six monthly intervals. In setting a duration of four years, I am mindful that the evidence demonstrates that the respondent has made overall positive progress, with a sound level of compliance as well as a diligent approach, together presenting optimistic signs that this progress will continue in a positive manner.
Contested conditions
Alcohol prohibition
In Nigro, the Court of Appeal found that a condition prohibiting alcohol consumption ‘except with the prior written consent of the Adult Parole Board’ was appropriate in circumstances where alcohol abuse was one of a number of ‘significant’ ongoing issues faced by the appellant, despite his demonstrated capacity to remain abstinent for considerable periods.[24] The Court held that:
… given the connection between the appellant’s alcohol consumption and the rapes, a condition such as 6.3 – which seeks to limit the appellant’s alcohol consumption – is a reasonable manner of endeavouring to mitigate the risk of the commission of relevant offences related to alcohol use. Condition 6.3 is not unreasonably wide, in that it does not prohibit alcohol consumption absolutely, but rather imposes limits on its consumption. The appellant may still consume alcohol with the prior written consent of the Adult Parole Board… Criticism of this condition should be rejected.[25]
[24](2013) 41 VR 359, 425 [284].
[25]Ibid 427 [291].
Similarly, in SM (No 2), Elliott J determined that it was appropriate to retain a condition prohibiting the respondent from consuming alcohol, save for in moderate, specified quantities, in circumstances where he had a lengthy history of alcohol abuse and was affected by alcohol at the time of his previous violent offending.[26] His Honour stated that:
The evidence is that consuming alcohol beyond a responsible amount is likely to give rise to disinhibition, with the concomitant of an escalated risk of violence. In these circumstances, it would be entirely inappropriate not to provide some restriction with respect to the consumption of alcohol.[27]
[26][2009] VSC 707 [37], [42].
[27]Ibid [104].
As noted above, the respondent in the present matter was not affected by alcohol at the time of the index offending and there is no evidence to indicate that he had an ongoing issue with alcohol abuse. Moreover, the reports of Professor Crowe and Dr Pandurangi postdating his release from prison suggest that he has abstained from alcohol use entirely since that time.
However, Dr Godfredson’s report identifies abstinence from, or the responsible use of, alcohol as a factor that may decrease the respondent’s risk of re-offending. Dr Godfredson opined that the period of abstinence would depend on the respondent’s ‘progress in respect of other risk factors, particularly with regard to stress and coping’. He expressed the opinion that this period should be long enough for the respondent to demonstrate his capacity to establish lifestyle stability and deal with conflict situations in a prosocial manner. Further, he recommended that the respondent be supported in making requests to the PSA to drink alcohol on special occasions, thus allowing him to demonstrate his ability to drink alcohol in a responsible manner.
Dr Pandurangi agreed there should be some restriction around alcohol use and that a gradual reduction in restrictions would be beneficial. I also particularly note his opinion that, should the respondent reoffend, it is likely to be impulsive in nature. Whilst noting his support for a condition limiting alcohol use to a set amount on a certain day, he acknowledged there would need to be effective monitoring.
Taking into account the evidence of both doctors, it is my opinion that there is a risk that the respondent will abuse alcohol, which may increase his risk of future offending. It is also my opinion that the most effective way of monitoring alcohol use is to allow the PSA to manage the respondent’s reintroduction to the responsible use of alcohol. I note that neither doctor expressed the view that he should be permanently banned from alcohol, rather that he would benefit from support in his reintroduction to alcohol use. I agree with those opinions and express the opinion that the respondent should receive ongoing support in managing his future use of alcohol in a responsible manner, thus reducing his risk of future offending.
I note the respondent’s circumstances are somewhat distinguishable from those in Nigro and SM (No 2), where significant histories of alcohol abuse, including use at the time of the index offending, and strong correlations between alcohol use and risk escalation were determinative factors. However, it is also apparent from the evidence in the present matter that the alcohol condition will likely have utility in decreasing the respondent’s risk of re-offending in the immediate future. I further note that, as in Nigro, the condition would not represent a complete prohibition, but rather permit alcohol consumption in accordance with the written directions of the PSA. This flexibility allows scope for a gradual lessening of the restriction and compliance with s 27(4) of the Act.
Taking into account all the circumstances, I will order that the respondent not consume alcohol except in accordance with the written directions of the PSA, as set out in Order 7.3 of the draft supervision order.
Electronic monitoring
In IK v Secretary to the Department of Justice (‘IK’),[28] the Court of Appeal determined that a condition requiring the appellant to comply with ‘electronic monitoring or any form of monitoring as directed by the Board’ should be retained.[29] Harper JA, with whom Buchanan and Hansen JJA agreed, found that where, as in that case, a curfew is to be imposed, ‘appropriate monitoring of compliance is important’.[30]
[28][2012] VSCA 12.
[29] Ibid [103] (Harper JA).
[30]Ibid.
In Secretary to the Department of Justice and Community Safety v Toller (‘Toller’),[31] Judge Pillay imposed electronic monitoring of the respondent’s whereabouts. His Honour explained:
As to location monitoring, I note that the respondent has at times been homeless or staying at various friends’ houses. This is one of the dynamic factors that Mr Pandurangi noted can escalate the risk of offending. More pointedly, it acts as a control on the respondent’s behaviour if he is monitored or required to be in one particular location. Given that evidence, which is not contradicted by Mr Candlish’s report, I am of the view that location monitoring is necessary and in fact aids in the rehabilitative prospects of the respondent.[32]
[31][2019] VCC 2105.
[32]Ibid [31].
In the present matter, the respondent does not object to the proposed residence and curfew conditions. Unfortunately, however, the respondent does have a past history of itineracy, including periods of homelessness, albeit this was some considerable time ago. Both Dr Godfredson and Dr Pandurangi opined that unstable accommodation and association with antisocial peers are factors that may increase his risk of re-offending. In regard to the latter, I note the respondent is likely to associate with persons with whom he has shared a custodial setting. I also take into account his description of the device as a means to confirm his whereabouts at any given time. Dr Godfredson also noted that it would assist him from being subject to unnecessary scrutiny.
Having regard to the expert evidence, and taking into account that the respondent currently has stable accommodation, I am nevertheless satisfied that, as in IK and Toller, the imposition of the electronic monitoring condition is appropriate to monitor compliance with the residence and curfew conditions, and to act as a control and rehabilitative aid so that the respondent does not return to an itinerant lifestyle.
I have taken into account the evidence regarding occasions where the device has caused physical inconvenience and irritation. However, I am satisfied that these issues can be satisfactorily managed by the PSA.
Accordingly, I will order that the respondent must comply with monitoring as to his whereabouts (including electronic monitoring) unless otherwise directed by the PSA, as set out in order 7.8 of the draft supervision order. I note that, pursuant to s 110 of the Act, the respondent at any time may make an application for a review of the conditions I have ordered.
Finally, given that I will order that a review of the supervision order take place no later than two years from the date of this order, I will list this matter for a judicial monitoring hearing in 12 months, so that the Court can be informed about the respondent’s progress.
Non-publication
I am satisfied it is in the public interest that, pursuant to s 279 of the Act, the order made on 24 January 2020 to prohibit publication of the identity of the respondent or his location should be extended until the next review of the supervision order is heard and determined.
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