Re MTE (No 5) - [2023] VSC 190

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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re MTE (No 5)

Details

AGLC: Re MTE (No 5) [2023] VSC 190
Case: [2023] VSC 190
Decision Date: 17 February 2023

CaseChat Overview and Summary

The case of Re MTE (No 5) involved an application for leave to review a condition of a supervision order, with the applicant seeking to impose an electronic monitoring condition. The matter was heard by the Supreme Court of Victoria. The applicant, who had previously breached the terms of a supervision order by using a prohibited drug, sought electronic monitoring as a means to better manage their compliance with the order. The application was opposed by the respondent who argued against the imposition of such a condition.

The court was required to determine whether electronic monitoring was an appropriate measure under the Serious Offenders Act 2018 (Vic) and whether it was warranted given the applicant's history of breaches. The primary legal issue was whether the imposition of electronic monitoring was a reasonable and proportionate response to the applicant's breaches of the supervision order. The court also needed to consider the relevant provisions of the Act, including sections 27, 42, 110, 111, and 169, in the context of the applicant's offending history and the potential benefits of electronic monitoring.

In its decision, the court acknowledged the applicant's history of breaches but found that electronic monitoring was a suitable measure to manage the risk posed by the applicant. The court noted that electronic monitoring could provide a more effective means of ensuring compliance with the supervision order than other available measures. Consequently, the court granted the application and imposed electronic monitoring as a temporary condition for a period of six months. The court concluded that this measure was reasonable and proportionate, given the applicant's previous breaches and the potential benefits of closer monitoring.

The final orders of the court included the imposition of electronic monitoring as a condition of the supervision order for a period of six months, commencing from the date of the judgment. The court also directed that the applicant comply with all other conditions of the supervision order and that any further breaches would be subject to appropriate legal action.

Orders