Re MTE (No 5)
[2023] VSC 190
•17 February 2023
| THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0273
| IN THE MATTER of the Serious Offenders Act 2018 (‘the Act’) | |
| and | |
| IN THE MATTER of an application under s 110 of the Act for a review of conditions of a Supervision Order | |
| BETWEEN | |
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| And | |
| MTE | Respondent |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 February 2023 |
DATE OF RULING: | 17 February 2023 |
CASE MAY BE CITED AS: | Re MTE (No 5) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 190 |
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CRIMINAL LAW – Application for leave to review condition of supervision order – Applicant seeking to impose electronic monitoring condition – Breaches of supervision order – Use prohibited drug – Electronic monitoring condition opposed – Electronic monitoring imposed as temporary condition for 6 months – Serious Offenders Act 2018 (Vic) ss 27, 42, 110, 111, 169.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Flynn KC | Russell Kennedy Lawyers |
| For the Respondent | Mr R de Vietri | Victoria Legal Aid |
| For the Office of Public Prosecutions | Mr L Andrews | Ms A Hogan, Solicitor for Public Prosecutions |
HER HONOUR:
Introduction
On 3 February 2023, the Secretary to the Department of Justice and Community Safety (‘the Secretary’) filed an application under s 110 of the Serious Offenders Act 2018 (Vic) (‘the Act’) for leave of the Court to apply for a review of the conditions of the supervision order made on 21 May 2020[1] in respect of the reviewee, MTE.[2]
[1]Re MTE (No 2) [2020] VSC 356 (Champion J); The supervision order was reviewed and confirmed on 17 September 2021 and again on 15 September 2022.
[2]I have previously extended a non-publication order in respect of the accused’s supervision order proceedings in this matter: refer to Re MTE (No 4) [2021] VSC 622 [6]. The present ruling coheres with the comments of Champion J in Re MTE (No 3) [2020] VSC 646 [8] regarding the appropriate way in which to publish written reasons in this matter.
The Secretary seeks to vary the condition that relates to electronic monitoring (condition 5.8 of the Supervision Order).
The grounds on which this application is made are that:
(a) new facts and circumstances justifying the review have arisen since the conditions were made; and
(b) it would generally be in the interests of justice, having regard to the purposes of the condition and the manner or effect of their implementation, to review the conditions.
The application for leave to review MTE’s supervision order conditions is opposed by MTE, notwithstanding that it is not disputed that new facts and circumstances have arisen justifying the review.
The following documents were filed by the Secretary on this application:
(a) Notice of Application for Leave to Apply for Review of Conditions of Supervision Order, filed 3 February 2023 (‘Secretary’s Application’);
(b) Detention and Supervision Order Letter of Advice of Dr [G], dated 27 January 2023;[3]
[3]Tendered as Exhibit S-1.
(c) Special Report of Corrections Victoria, dated 23 January 2023;[4]
[4]Tendered as Exhibit S-2.
(d) Special Report of Corrections Victoria, dated 13 January 2023;[5]
[5]Tendered as Exhibit S-3.
(e) Chronology prepared by Secretary, dated 14 February 2023;[6]
[6]Tendered as Exhibit S-4.
(f) Victoria Police Court Outcomes Report, dated 14 February 2023;[7]
(g) Bundle of Incidents Report, filed 14 February 2023;[8] and
(h) Post-Sentence Notification Report, dated 15 February 2023.[9]
[7]Tendered as Exhibit S-5.
[8]Tendered as Exhibit S-6.
[9]Tendered as Exhibit S-7.
On MTE’s behalf, the Court was provided a letter confirming a medicinal cannabis prescription dated 8 February 2023, under the signature of Dr [J].[10]
[10]Tendered as Exhibit MTE-1.
Procedural history
This Court last dealt with MTE by way of substantive proceedings on 15 September 2022, following an application by the Secretary under s 99(1) of the Act for a review of supervision order.[11] At that hearing, I ordered that MTE’s supervision not be revoked as I was satisfied that MTE still posed an unacceptable risk of committing a serious violence offence if a supervision order were not in effect.[12]
[11]The Secretary to the Department of Justice and Community Safety v MTE (Supreme Court of Victoria, Jane Dixon J, 15 September 2022).
[12]Pursuant to s 106(1) of the Act.
Prior to the 2022 review hearing, on 17 September 2021 this Court determined an application made on behalf of MTE for leave to review an electronic monitoring condition attached to his supervision order.[13] In that ruling, I set out the background to MTE’s index offending and the inception of his supervision order following the completion of his sentence of imprisonment. Relevantly, the explanation of that history reads as follows:
MTE was a young man at the time of the index offence. He pleaded guilty to murder and was ultimately sentenced to 23 years imprisonment with a non-parole period of 17 years.
MTE was granted parole in June 2015, which was cancelled after two months due to his cannabis use and poor compliance with urinalysis. MTE returned to custody to serve out his sentence.[14]
[13]Re MTE (No 4) VSC [2021] 622 (‘Re MTE (No 4)’).
[14]Re MTE (No 4) [7]-[8].
Ultimately, the application was not opposed by the Secretary and leave to review was granted. At the time of the application, I was satisfied that MTE’s compliance with his supervision order was good, and accordingly the Court varied the electronic monitoring condition such that an ankle bracelet was no longer required and could appropriately be substituted by various forms of telephone monitoring. This position was adopted and agreed to by consent between the parties.
I was satisfied that MTE’s compliance with his supervision order was good. I noted that the reasons for including the electronic monitoring referred to by Champion J included the risk of MTE being exposed to homelessness and becoming itinerant, but that in fact MTE had settled accommodation and appeared to be stable and compliant with the conditions of the order, including attending necessary appointments with clinicians and with Forensic Intervention Services (‘FIS’).
I noted that there had been some isolated incidents regarding MTE’s compliance, but I accepted that none of those incidents had been discovered or resolved as a result of the GPS tracking device and that MTE’s own reporting uncovered those issues. I also noted that there had been some negative impacts with the GPS tracking device on MTE’ mental health and his desire to engage in the community and that it had been experienced as a significant imposition on MTE. I determined at that stage that the electronic monitoring condition was no longer appropriate nor proportionate to MTE’s risk of reoffending and that it was clear to the Court at that time that an alternative option of telephone monitoring represented the limited interference with MTE’s liberty and freedom of movement necessary to fulfil the conditions of his orders, and was proportionate to the gravity of his risk of reoffending. Therefore, the conditions of the order were varied to remove the requirement for electronic monitoring and to replace it with the requirement for telephone monitoring.
Recent events
Unfortunately, it has come to the Court’s notice that since the variation of the conditions of MTE’s supervision order described above, MTE’s compliance with the order, both at the present time, and in the past, has in fact not been as good as had been accepted by the Court previously.
MTE has been charged with a number of incidents of breaching his supervision order. A chart of the alleged breaches of the current supervision order and related criminal charges was prepared by the respondent for the Court’s benefit.[15] I enclose that table below:
[15]The chart was tendered as Exhibit MTE-2.
| # | Offence | Provision | Date of offence | Bail details |
| First breach – S ECR 2023 0004 | ||||
| 1 | Breach of SO – use prohibited drug – Cannabis | Serious Offenders Act 2018 s 169(1) | 23 Dec 2022 | Bail granted by Magistrate Zebrowski on 5 January 2023. Bail fixed in own undertaking with the following special conditions: · Reside at an address known to the informant |
| 2 | Use drug of dependence – Cannabis | Drugs Poisons and Controlled Substances Act 1981 s 75 | 23 Dec 2022 | |
| Second breach – S ECR 2023 0009 | ||||
| 1 | Breach of SO – use prohibited drug – Methylamphetamine | Serious Offenders Act 2018 s 169(1) | 6 Jan 2023 | Bail granted by Magistrate Smith on 12 January 2023. Bail fixed in own undertaking with the following special conditions: · Reside at [redacted] · Notify the informant within 24 hours of any proposed change of address · To comply with all conditions of supervision order made 15 September 2022 |
| 2 | Breach of SO – use prohibited drug – Cannabis | Serious Offenders Act 2018 s 169(1) | 6 Jan 2023 | |
| 3 | Use drug of dependence – Methylamphetamine | Drugs Poisons and Controlled Substances Act 1981 s 75 | 6 Jan 2023 | |
| 4 | Use drug of dependence – Cannabis | Drugs Poisons and Controlled Substances Act 1981 s 75 | 6 Jan 2023 | |
| 5 | Commit indictable offence whilst on bail | Bail Act 1977 s 30B | 6 Jan 2023 | |
| Third breach – S ECR 2023 0014 | ||||
| 1 | Breach of SO – use prohibited drug – Cannabis | Serious Offenders Act 2018 s 169(1) | 18 Jan 2023 | Bailed granted by Magistrate Kumar on 21 January 2023. Bail fixed in own undertaking with the following special conditions: · Reside at [redacted] · Not to leave place of residence between the hours of 10:00pm and 6:00am · To present at the front door of residence during curfew hours upon request of any member of Victoria Police · Report to [redacted] POLICE STATION every Monday between 6:00am and 9:00pm |
| 2 | Use drug of dependence – Cannabis | Drugs Poisons and Controlled Substances Act 1981 s 75 | 18 Jan 2023 | |
| 3 | Commit indictable offence whilst on bail | Bail Act 1977 s 30B | 18 Jan 2023 | |
| Fourth breach – S ECR 2023 0021 | ||||
| 1 | Breach of SO – use prohibited drug – Cannabis | Serious Offenders Act 2018 s 169(1) | 29 Jan – 1 Feb 2023 | Bailed granted by Magistrate Poulter on 4 February 2023. Bail fixed in own undertaking without special conditions. |
| 2 | Use drug of dependence – Cannabis | Drugs Poisons and Controlled Substances Act 1981 s 75 | 29 Jan – 1 Feb 2023 | |
| 3 | Commit indictable offence whilst on bail | Bail Act 1977 s 30B | 29 Jan – 1 Feb 2023 | |
| Fifth breach – S ECR 2023 0026 | ||||
| 1 | Breach of SO – use prohibited drug – Cannabis | Serious Offenders Act 2018 s 169(1) | 7 Feb 2023 | Bailed granted by Magistrate Masood on 13 February 2023. Bail fixed in own undertaking with the following special conditions: · Reside at [redacted] · Not leave place of residence between the hours of 10:00pm and 6:00am |
| 2 | Use drug of dependence – Cannabis | Drugs Poisons and Controlled Substances Act 1981 s 75 | 7 Feb 2023 | |
| 3 | Commit indictable offence whilst on bail | Bail Act 1977 s 30B | 7 Feb 2023 | |
Regarding the alleged breaches of the SO and related criminal charges, those matters have been set down to be dealt with by this Court on 17 March 2023.
It is apparent from the above chart that MTE’s compliance with his supervision order has dramatically reduced.
Regarding the several occasions of MTE’s use of illicit substances since 23 December 2022, during a scheduled FIS appointment with Senior Clinician Ms [S], MTE disclosed that since around March 2021, he has been using marijuana ‘pretty much daily’. He also disclosed a relationship with a new partner who has been visiting his home and that, contrary to the rules of his order, his new partner has stayed overnight at his home on a couple of occasions.
In light of the new facts and circumstances set out above, the Secretary is seeking that condition 5.8 of MTE’s supervision order be varied to re-introduce electronic monitoring as to his whereabouts (meaning MTE would be required to wear a GPS device).
The Secretary submitted that the protection of the community requires that supervision orders (and the conditions of such orders) operate effectively in order to achieve their primary purpose of reducing the risk of reoffending.
The Secretary maintains that varying the monitoring condition to include GPS monitoring is necessary to allow the Secretary to properly manage MTE in the community in a way that constitutes the minimum interference with his liberty, privacy and freedom of movement, while achieving the primary purpose of the conditions of the order in reducing the risk of MTE reoffending.
The Secretary submits that GPS monitoring is now the only risk mitigation strategy available to ensure MTE’s compliance with his residence, curfew and drug prohibition conditions. The Secretary considers that the GPS bracelet is necessary to prevent MTE from placing himself in situations that increase his risk, such as attending known drug user locations, and to monitor his lifestyle stability. Therefore, they submit, it is in the interests of justice for the condition to be reviewed and varied to reduce MTE’s risk of reoffending.
Applicable law
Section 1 of the Act provides, in part, as follows:
Purposes
The purposes of this Act 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; […]
Section 110 of the Act provides for the Secretary or the offender, with leave of the Court, to apply to the Court for a review of any condition of a supervision order, other than a core condition.
Section s 110(3) sets out the test for granting leave, and provides that the Court may grant leave if:
(a)new facts or circumstances have arisen since the conditions were made that would justify the review; or
(b) it would generally be in the interests of justice, having regard to the purposes of the conditions and the manner or effect of their implementation, to review the conditions.
Pursuant to s 111, if the Court does grant leave, its powers on the application for review are as follows:
(3) The court may—
(a) vary, add or remove any conditions of the supervision order; or
(b) confirm the conditions of the supervision order; or
(c) review the supervision order in accordance with this Part.
(4)If the court exercises a power under subsection (3) in respect of a supervision order, the court must ensure that the conditions of the order are in accordance with the requirements of section 15 and Division 3 of Part 3 and make any variations or additions to the conditions that are necessary for this purpose.
(5)Divisions 3 and 4 of Part 3 (with any necessary modifications) apply to the addition or variation of a condition under this section.
Section 27 provides as follows:
Purposes of conditions of supervision order
(1)The primary purpose of the conditions of a supervision order is to reduce the risk of the offender re-offending by committing a serious sex offence or a serious violence offence or both or an offence referred to in Schedule 3.
(2)The secondary purpose of the conditions of a supervision order is to provide for the reasonable concerns of the victim or victims of the offender in relation to their own safety and welfare.
(3)In order to reduce the risk of the offender re‑offending, the conditions may—
(a) promote the rehabilitation and treatment of the offender; and
(b)address types of behaviour that may increase the risk of the offender—
(i)committing a serious sex offence or a serious violence offence or both or an offence referred to in Schedule 3; or
(ii)engaging in any behaviour or conduct that threatens the safety of any person (including the offender).
(4)The court must ensure that any conditions of a supervision order (other than the core conditions)—
(a)constitute the minimum interference with the offender's liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and
(b)are reasonably related to the gravity of the risk of the offender re-offending.
Evidence in support of the Secretary’s Application
The Secretary’s Application provided the following summary of recent events:[16]
[16]Secretary’s Notice of Application for Leave to Apply for Review of Conditions of Supervision Order, filed 3 February 2023, 3-5 (‘Secretary’s Application’).
On 15 December 2022, [MTE] attended supervision and advised his Specialist Case Manager (SCM) of his new relationship. On 22 December 2022, [MTE] again attended supervision with his SCM during which he disclosed having his partner reside overnight at his residence and that she smoked cannabis regularly. On the same date, [MTE] was directed for urinalysis testing but failed to attend to produce a sample.
On 23 December 2022, [MTE] was re-directed for testing and produced a sample. On 3 January 2023, the results of the urinalysis were received which were positive to cannabis. On 4 January 2023, [MTE] was arrested and charged with Contravene Condition of Supervision Order referrable to him having tested positive to an illicit drug, namely cannabis. [MTE] was bailed on the same date to appear before the Supreme Court on 2 February 2023.
On 6 January 2023, [MTE] attended supervision with his SCM. During that session, [MTE] self-reported having consumed cannabis on multiple occasions. On the same date and as a result of this disclosure, [MTE] was directed for urinalysis and produced a sample.
On 10 January 2023, [MTE] attended his treatment session with his Forensic Intervention Services clinician who provided a case consult as follows:
“He disclosed that he has been using marijuana since around March 2021, pretty much daily. He described that it “calms” his thinking without the negative side effects of the prescribed medications that he has tried in the past. We spoke about how this information suggests that it has not been [redacted], his partner, who has led to him using marijuana as he was doing so prior to them being in an intimate relationship. We also spoke about how using marijuana does not appear to have led to a risk escalation, given that he has not engaged in offending behaviour (that I am aware of) despite having been using the drug regularly for nearly two years. It was however, reiterated that using marijuana is both against the law and against his Order conditions. [MTE] indicated that he and [redacted]remain committed to each other, and she is wanting to support him as best she can, however, is concerned about the impact that his Order conditions will have on her. Given her own drug use, it is unclear how protective she will be for [MTE], despite positive intentions.”
On 11 January 2023, the results from the urine sample collected on 6 January 2023 returned a positive result to cannabis and methamphetamines (Ice). On 12 January 2023, [MTE] was again arrested and charged with Contravene Condition of Supervision Order, Use a Drug of Dependence, and Commit an Indictable Offence Whilst on Bail (referrable to him having tested positive to illicit drugs whilst on bail for the earlier contravention charge). [MTE] was also bailed on the same date to appear before the Supreme Court on 2 February 2023.
On 18 January 2023, [MTE] attended an alcohol and other drugs (AOD) assessment with the Australian Community Support Organisation (ACSO). During that assessment, [MTE] self reported having, “smoked seven cones 2 days ago”. On the same date and as a result of this disclosure, [MTE] was directed for urinalysis and produced a sample. On 20 January 2023, the results from the urine sample collected on 18 January 2023 returned a positive result to cannabis. On 21 January 2023, [MTE] was again arrested and charged with Contravene Condition of Supervision Order, Use a Drug of Dependence, and Commit an Indictable Offence Whilst on Bail (referrable to him having tested positive to illicit drugs whilst on two counts of bail).
[MTE] was granted his third count of bail on the same date to appear before the Supreme Court on 2 February 2023.
On 27 January 2023, Dr [G] completed a Letter of Advice in relation to the recent events described above. Dr [G] confirmed his assessment of [MTE] as a moderate risk of committing a serious violence offence, however he noted that, “if [MTE] were to exhibit a further deterioration in lifestyle stability (e.g., by continuing to exhibit non-compliance, including by way of abusing illicit substances), his risk of violence would probably increase” (see paragraph 45). In respect of the effects of cannabis and Ice, Dr [G] provided the following opinions:
“The psychoactive properties of cannabis, in the absence of mental illness, are generally not associated with acts of violence. However, the ongoing use of cannabis is indirectly related to risk insofar as procuring and consuming the drug is likely to bring [MTE] into contact with individuals who exert a negative influence. These encounters carry some risk of disputes (e.g., regarding drug debts), which in turn pose a risk of violence. It should be noted that the index offence was precipitated by [MTE]'s seemingly harmless resolve to procure cannabis for his associates. The ongoing use of cannabis is also related to risk insofar as it might inhibit [MTE]'s development of adaptive coping strategies and otherwise compromise his progress with the various ‘tasks of adulthood’. Unlike cannabis, the effects of methylamphetamine have a well established relationship with violence. Moreover, an alarming number of individuals who experiment with methylamphetamine become regular users. Dependency on this drug can have devastating effects, including but not limited to an individual’s mental health, relationships, finances, and occupational functioning” (see paragraphs 53 ad [sic] 54).
In respect of [MTE]'s engagement with supervision and treatment, Dr [G] provided the following opinions:
“[MTE]'s apparent dishonesty with staff employed by Corrections Victoria is entirely consistent with his hypthesised fear of punishment. Indeed, he changed his version of events regarding substance use enough times to infer that he was invested in minimising the consequences of his actions. On the one hand, [MTE] probably held a reasonable belief that any disclosure of illicit substance misuse would have resulted in serious consequences. On the other hand, he evidently failed to appreciate that a voluntary disclosure would be viewed more favourably than attempting to deceive relevant professional supports, possibly for a considerable period of time. In any event, [MTE]'s lack of transparency makes it difficult for the authorities to monitor his lifestyle stability” (see paragraph 58).
While MTE’s breach proceedings have yet to be dealt with by this Court, in the intervening period it is anticipated that MTE will be referred for a further episode of drug and alcohol assessment and counselling. The following action plan was recorded in a Post-Sentence Notification Report dated 15 February 2023:[17]
Following recent admissions of illegal drug use, [MTE] was referred to Australian Community Support Organisation (ACSO) for Alcohol and other Drug (AoD) treatment. Caraniche recommended that [MTE] be referred for an episode of HiROADS counselling (complex), and was subsequently waitlisted for treatment to commence at the earliest opportunity. Prior to the HIROADS recommendation by Caraniche, [MTE] was provided with bridging support, by ACSO clinician [HW]. [HW] successfully made contact with [MTE] on 6th February 2023 to provide bridging support. [MTE] was scheduled to receive a second session of bridging support on 9th February 2023, however, [HW] was unable to reach [MTE] by telephone. [HW] attempted to contact [MTE] again on 10th February 2023, but found [MTE]'s phone to be unavailable. HiROADS have advised that they will attempt to contact [MTE] on 16th February 2023, and the SCM has offered to assist with the facilitation of the contact either before or after planned supervision on the same day, 16th February 2023.
Caraniche have confirmed that HiROADS treatment will commence on 27th February at 4pm, and will occur in person at the [redacted] Justice Service Centre.
[17]Exhibit S-7.
Evidence of Dr [G]
Dr [G] was called to give evidence on behalf of the Secretary. He confirmed that he has been involved in assessing MTE since 2019 and provided a letter of advice for the Court dated 27 January 2023, which he adopted as being true and correct. He has been kept apprised of the issues with MTE’s illicit drug use.
He was asked about updated material regarding MTE’s employment and involvement with ACSO and said that his understanding was that MTE had disengaged from ACSO, although it was open to MTE to reengage should he wish to. He noted that at the time of preparing his letter to the Court, there had been a referral to a substance use counselling service in the community, though he was unsure whether MTE had engaged with the service.
Dr [G] then summarised his understanding of MTE’s recent difficulties with cannabis use. Dr [G] noted that he had recently reviewed an earlier assessment report he prepared in 2019, and it was his understanding that MTE starting using cannabis in adolescence, and that whilst MTE was not affected by cannabis at the time of the index offence, he was on his way to procuring it. Dr [G] also noted that after serving a term of imprisonment for the index offence and being released on parole, MTE was returned to prison after nine weeks because he breached his parole order by using cannabis. In his 2019 report, Dr [G] referred to a note made by MTE’s parole officer indicating that MTE claimed to know ‘how to play the game’ in terms of demonstrating compliance. In addition, MTE admitted to Dr [G] that he used cannabis as a substitute for pain medication and that he endeavoured to use the drug without being detected.[18]
[18]Detention and Supervision Order (‘DSO’) Assessment Report of Dr [G], dated 27 October 2019 at [154].
In his 2019 assessment report, Dr [G] identified a tendency for MTE to make bad decisions and that this was an important risk factor for MTE. In his 2022 Progress Report,[19] Dr [G] had observed that MTE had not made any particularly bad decisions throughout the relevant period of review. However, towards the end of 2022 (i.e. subsequent to that review), Dr [G] noted that there have been a number of poor decisions by MTE, not least in relation to his substance use.
[19]Dated 11 April 2022.
Dr [G] referred to the risk of MTE coming into contact with individuals that could exert a negative influence due to the need to obtain illicit substances through illegal means and the risk of there being a dispute over an unpaid drug debt, for example.
When asked to explain the meaning of ‘dynamic risk factors’, Dr [G] indicated that it would be more helpful to talk about lifestyle instability which includes dynamic risk factors such as poor use of time, negative influence from peers, substance use, difficulty in coping with stress, and reliance on maladaptive coping strategies. He noted that all of these matters were beginning to re-emerge in relation to MTE.
In oral evidence, Dr [G] adopted the position from his letter[20] that a further deterioration in lifestyle stability would probably increase MTE’s risk of violence. When asked about the link between a deterioration in lifestyle stability and the use of cannabis and methamphetamine, Dr [G] said:
Well, I note that at the end of last year there appears to have been a rather abrupt onset in terms of the deterioration in lifestyle factors. In addition to the substance use, MTE decreased his attendance at culturally relevant groups, which was considered to be a very protective factor and an avenue for him to develop pro-social supports. He disengaged from ACSO as previously indicated and the purpose of ACSO is really to promote MTE’s capacity to establish and maintain a pro-social lifestyle. He left a job that he had in the community and subsequently he disengaged from the employment agency that had supported him to obtain that job.[21]
[20]Exhibit S-1.
[21]Transcript of hearing on 17 February 2023, page 11.
Under cross-examination, Dr [G] accepted that the psychoactive properties of cannabis are not necessarily linked to acts of violence, provided they do not cause any deterioration in an individual’s mental health. He clarified that in addition to his concerns regarding the manner in which MTE might procure the drugs, he had concerns that MTE’s cannabis use could come at the expense of developing adaptive coping strategies (e.g. undertaking occupational training or work).
Dr [G] was also cross-examined on the fact that, as of 8 February 2023, MTE now has a prescription for medicinal cannabis, and can therefore lawfully procure the drug. Dr [G] agreed with Mr de Vietri’s suggestion that this fact allayed his concerns about the risk of MTE mixing with antisocial peers in an illicit context.
Dr [G] confirmed that MTE has been referred for drug and alcohol treatment with HiROADS at Caraniche and has been offered bridging support by ACSO until the Caraniche treatment commences. Dr [G] also said it was his understanding that bridging support had been provided in the form of two telephone calls to MTE, but that the treatment episode had yet to formally commence.
When asked whether there had been any concerns about violence over the period of drug use since December 2022, Dr [G] clarified that MTE had in fact been using cannabis since March 2021, and that to his knowledge there had been no known instances of violence throughout that whole period.
Under re-examination, Dr [G] said that he considered it very important for MTE to engage in the episode of drug treatment that is scheduled and noted that there are other important treatment targets that need to be addressed, including the fact of MTE’s self-report that he had concealed his use of cannabis for nearly two years. He noted that one such treatment target would be enhancing the level of transparency with Corrections regarding any difficulties that he might be experiencing.
It was also noted by Dr [G] that there was very limited information on file regarding MTE’s intimate relationship, and that there does seem to be a deterioration in MTE’s engagement with various support services since the commencement of that relationship.
In further cross-examination by Mr de Vietri on behalf of MTE, Dr [G] was asked whether he was aware of the difficulties caused to MTE when he last had an electronic bracelet fitted and he agreed that he was aware of that background.[22]
[22]Transcript pages 23 & 24.
Dr [G] indicated that in his opinion what most likely bothered MTE about the electronic monitoring device was his concern about having to account for his movements in the community. Dr [G] considered that if MTE could reconcile any reminder of his index offending caused by the device with scope for discussions about his movements in a manner that was less accusatory that would be useful. He went on to say ‘none of the offenders that I’ve interviewed want to wear an electronic monitoring device’ and he accepted that there were various reasons why MTE might feel anxious about having the device, particularly because it would force him to be accountable for his movements and also his concern about it being visible to members of the public.
Asked by Mr de Vietri whether the imposition of stricter bail conditions could be a way of increasing the supervision on MTE rather than the re-introduction of the electronic bracelet, Dr [G] indicated that his concerns went beyond the use of cannabis to be whether MTE was making bad decisions and being honest and transparent with Corrections Victoria and whether he has a high regard for compliance with the supervision order conditions.
He indicated that conditions such as increasing his curfew would not necessarily address his concerns about MTE’s decision making capacity, honesty and non-compliance with conditions.
Submissions of the parties
In oral submissions, and upon tendering the medicinal cannabis prescription, Mr de Vietri submitted that the reimposition of the GPS bracelet was not justified by the period of instability that has been seen since December 2022, and that MTE’s recent behaviour should be seen as a ‘wobble’. Mr de Vietri noted that all but one of the new charges relate to cannabis use, and that cannabis is not likely to be a catalyst for violent offending. Further, it was submitted that the prescription of medicinal cannabis would reduce any risks associated with the illegal procuration of cannabis.
Mr de Vietri also highlighted the fact that a number of the present charges were brought on account of information that MTE had voluntarily disclosed, and accordingly it was argued that an ankle bracelet would not make a great deal of difference for detection purposes. Mr de Vietri further submitted that imposing stricter bail conditions could be an alternative to reintroducing the ankle bracelet, but that if the Court were minded to vary the condition in the manner sought by the Secretary, the Court ought to impose the condition as a temporary variation.
Regarding the aforementioned suggestion, Mr Andrews indicated that in situations such as the present, the prosecution’s position is that risk is better managed under the supervision order regime, including directions made by the Post-Sentence Authority, rather than through the imposition of bail conditions.
Ms Flynn KC commented on the limited life of bail conditions, noting the fact that they would cease at the time of the plea hearing for the breach proceedings. Accordingly, it was submitted on behalf of the Secretary that bail conditions would be insufficient to manage MTE’s risk of reoffending, particularly in light of the Act’s purpose of protecting the community. It was submitted that the picture painted before the Court regarding MTE’s compliance was a very different one from September 2021, when this Court removed the electronic monitoring condition. It has since come to light that MTE had been using cannabis daily for at least the last six months, and there have been issues with a lack of transparency. For this reason, the Secretary submits that electronic monitoring would assist in supervising MTE and helping determine, for example, whether he is associating with known drug users or frequenting known drug houses. The Secretary submits that this is necessary because MTE has not been completely transparent with Corrections about his movements and activities, and that he has disengaged from pro-social activities, such as employment and ACSO.
Ms Flynn KC submitted that if MTE’s lifestyle stabilises, and the cycle of drug use and arrests subsides, then MTE would be entitled to come back before the Court to seek a further review in order to have the electronic monitoring condition removed.
Ms Flynn KC conceded that a temporary reintroduction of the monitoring condition for six months would be a fallback position that the Court could adopt.
Consideration
It is disappointing that MTE’s compliance with his supervision order has declined so significantly. As noted by Dr [G] in his letter dated 27 January 2023, at the September 2022 review hearing, MTE was commended for his progress, including his willingness to engage with the interventions associated with the supervision order.[23] Dr [G] indicated that MTE’s progress on the supervision order is inextricably linked to his ability to maintain lifestyle stability, and that in his opinion, the emergence of dynamic risk factors (including any deterioration in lifestyle stability) might warrant the imposition of more restrictive conditions.[24]
[23]Exhibit S-1 at [51].
[24]Exhibit S-1 at [52].
Taking into account the abovementioned information, including from Dr [G] and from the FIS clinician, it appears to the Court that MTE’s continued abuse of illicit substances is increasing the risk that he poses to the community. It is particularly concerning that, despite being brought before this Court and the Magistrates’ Court in relation to these matters, MTE has continued to abuse illicit substances. Whether or not MTE’s abuse of illicit substances is influenced by his new relationship with [redacted], the Court is unable to say as it is clear MTE was using illicit substances before he commenced that relationship.
It is concerning to the Court that MTE appears unwilling to take a greater level of responsibility for his own rehabilitation at the present time. Whilst it is hoped that his engagement with AOD (alcohol and other drugs) counselling and with a general practitioner for clinical care of his chronic pain conditions might help alleviate his attraction to illicit drugs, it is difficult to be optimistic at the present time based on the frequency of new charges attracted by MTE over recent months.
Whilst the Court is cognisant of the inconvenience and possible discomfort occasioned to MTE from the implementation of an electronic monitoring bracelet, including the fact that it represents a reminder of his previous offending, MTE is in a good position to realise that the condition of an electronic bracelet was removed as a step down measure when it appeared that his compliance with the supervision order was good. Now that his compliance is known to have deteriorated, the Court can no longer have the same degree of confidence about his current trajectory on his supervision order.
Based on the material available to the Court at the time the electronic monitoring condition was removed, it appeared likely that MTE was on track to successfully complete his supervision order by 2024. However, the Court now holds concerns that his ongoing non-compliance with the conditions of his supervision order paints a less promising picture as to the future scenario for removal of the order.
However, there is still an opportunity for MTE to respond favourably to a greater level of scrutiny by the Secretary whilst he remains on the current supervision order, bearing in mind that the current supervision order is due to be completed in 2024.
In all the circumstances, it appears to me desirable that an electronic monitoring condition be reintroduced into the supervision order to address the ongoing risk MTE poses to the community on account of the risk of exposure to other drug users and criminal activity, and a proven tendency to be either dishonest or evasive with those that are case managing and treating him. He has not been transparent regarding matters such as drug use and the nature of his intimate relationship and information about whether his partner is staying overnight at his premises.
This lack of transparency makes it difficult for the authorities to monitor his lifestyle stability and is ultimately what has persuaded this Court of the need to reintroduce the electronic monitoring condition.
I consider that the reintroduction of this condition meets the primary purposes of the conditions of a supervision order, being to reduce the risk of MTE reoffending by committing a serious sex offence or a serious violence offence.[25]
[25]Section 27(1) of the Act.
Furthermore, I am persuaded that this condition constitutes the minimum interference with MTE’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions, and that the condition is reasonably related to the gravity of MTE’s risk of reoffending.[26]
[26]Section 27(4) of the Act.
In all the circumstances, it is preferable that the electronic monitoring condition be introduced as a temporary order pursuant to s 42(1) of the Act. In any event, I note that the supervision order will be due for a review hearing in September of this year.[27]
[27]The latest date by which the Secretary must apply for review of this Supervision Order under Part 8 of the Act is 14 September 2023.
I will sign the orders when the parties agree on their form.
I will also vary MTE’s bail in respect of the breach charges that have been transferred to this Court from the Magistrates’ Court, which are set down to be heard before me on 17 March 2023. I note that the proposed bail variation is consented to by all parties, given the desirability of avoiding conflicts between the bail conditions and supervision order conditions.
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