Secretary to Department of Justice and Community Safety v R F
[2024] VCC 660
•16 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| IN THE MATTER of the Serious Offenders Act 2018 (“the Act”) | |
| and | |
| IN THE MATTER of an application under s46 of the Act for an Interim Supervision Order | |
| and | |
| IN THE MATTER OF AN APPLICATION UNDER s13(1) of the Act for a Supervision Order | |
| and | |
| BETWEEN | |
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| v | |
| R F (A Pseudonym) | Respondent |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 14 May 2024 | |
DATE OF JUDGMENT: | 16 May 2024 | |
CASE MAY BE CITED AS: | Secretary to Department of Justice and Community Safety v R F | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 660 | |
REASONS FOR JUDGMENT
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Subject:Application for Supervision Order
Catchwords: Supervision order – Whether applicant poses unacceptable risk to the community
Legislation Cited: Serious Offenders Act 2018
Cases Cited:ARM v Secretary to the Department of Justice [2008] VSCA 266
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L McAuliffe | Russell Kennedy |
| For the Respondent | Mr J Fitzgerald | Victoria Legal Aid |
HIS HONOUR:
1The applicant seeks that a supervision order made pursuant to the Serious Offenders Act 2018 be imposed on the respondent R F.
2The respondent does not oppose the making of such an order, however, he does oppose the making of two conditions sought to be included in the Order. The debate before the Court therefore was narrow and can be identified in these terms:
(a) Residence
The respondent submitted he should be permitted to reside with his wife at her home in Koroit. The applicant submitted such housing was unsuitable at this stage and the most suitable residence was currently at Corella Place.
(b) Duration
The respondent submitted that the Supervision Order ought be imposed for four years. The applicant submitted that the appropriate period was six years.
Relevant background
3The respondent was born in January 1972. His criminal history seems to begin in about June 1995 for offences involving assault. On 8 February 2000, he was again sanctioned in the Magistrates’ Court for unlawful assault and possess property being the proceeds of crime. On 3 March 2000, he was convicted of intentionally cause injury, recklessly cause injury on three counts and recklessly cause serious injury, and was sentenced to a total effective sentence of six months imprisonment. This offending is relevant because it was accepted that R F had assaulted a young toddler of his intimate partner. This offending involved offending against the toddler, a male aged nine years, and a male aged eight years, and involved striking and hitting.
4On 14 June 2000, R F was convicted of rape and obtain property by deception. He was sentenced to a total period of twelve months’ imprisonment. The rape offence involved R F raping his partner at their house after a night of drinking. R F physically assaulted the victim, punching her in the jaw before forcing her legs apart during the rape.
5On 11 September 2003, R F was convicted of rape and intentionally cause injury. He was sentenced to a total of six years and four months’ imprisonment with a non-parole period of four years and ten months’ imprisonment. The circumstances of the offending were that, on 2 November 2002, R F raped his de facto partner in their home after a night of drinking. During the rape, R F physically assaulted the victim by hitting her several times about the right eye.
6R F was released on parole on 1 September 2008. A supervision order was considered at that stage, however R F was assessed by a psychologist and regarded as only a moderate to low risk of re-offending and was not made the subject of an extended supervision order. On 8 January 2010, R F’s parole order expired. On 13 March 2011, R F committed the index offending. That offending started with the respondent, and his wife, J F, being at a social function where there was alcohol. R F was drinking. Later that night, R F went to the victim’s home, who he had been introduced to approximately one year prior to by J F. The victim rejected advances by R F at her home. R F then raped the victim and then violently physically assaulted her by punching her in the head and face. The victim suffered a dislocated jaw and injury to the right eye. On 13 March 2013, R F was convicted of four counts of rape and intentionally cause serious injury. R F was sentenced to a total of thirteen years’ imprisonment, with a non-parole period of ten years.
7On 6 December 2023, an Interim Supervision Order was made in respect of R F, given his impending release. On 19 January 2024, R F was released from prison and, under the terms of the Interim Supervision Order, taken to Corella Place.
More recent relevant matters
8At Corella Place, R F has been recorded as having good behaviour and good interactions with staff. He has had some difficulties in being in a two-person unit, but has resolved those by following correct processes. He has been permitted to go on supervised outings into the community, where he is accompanied by two staff from Corella Place. On some of those occasions, he has visited with his wife, J F. She has remained in contact with him by visiting him in prison during his period of incarceration. These outings have gone well.
9In support of his application before the Court, J F wrote a letter to Corrections Victoria, in which she deposed to wanting R F to reside with her. She further wrote that she considered she had a good relationship with him and did not feel threatened by him in any way. That letter was tendered in court. While she was not called to give evidence the Applicant accepted that she was genuine in her belief that R F was no risk to her and that she wanted him to reside with her.
10E-scans were subsequently performed in respect of J F and her residence. Those e-scans included interviews with J F, and also consultation with clinical staff and Dr Karen Owen. Ultimately, the e-scans concluded that J F’s premises were unsuitable. This was for a number of reasons, which can be summarised in the following way:
(a) R F’s historical offending is against two intimate partners and J F falls into this category;
(b) J F’s downplaying of R F’s offending, such that she may not be in a position to support his treatment gains by recognising escalating behaviour, and containing and reporting such behaviour. This is particularly so, given that she was with him at the time of the index offending;
(c) the fact that, through her, R F may gain access to her female social contacts, as was the case in the index offending.
This Application
11Though the parties agree a supervision order ought be imposed, it is for the Court to decide for itself whether a supervision order ought be imposed. Having read the material tendered in the Application, being particularly the reports of Dr Karen Owen and Mr Simon Candlish, having regard to the antecedents of R F and the substance of that offending, I am satisfied that R F poses an unacceptable risk of committing a relevant offence if a supervision order is not in effect and he is released into the community. Save for matters which I will come to, I am satisfied that the core conditions, and the additional conditions to be imposed, are necessary to address the risk of further offending. I also indicate that I make an order pursuant to s279 of the Act, that it is in the public interest to prohibit publication of information that might enable R F, or his whereabouts, to be identified. The form of the Order is set out in the Orders which I will sign.
Issue one: residence
12The debate as to whether R F ought to reside at J F’s residence largely turned on the evidence of Dr Owen, clinical psychologist, and Mr Candlish, consultant psychologist. Both have provided extensive reports and were cross-examined. Two things must be borne in mind before delving into their evidence. The first is that s27 of the Act states that the primary purpose of conditions is to reduce the risk of the re-offending. The second is that the applicant does not oppose transition of R F into the community, but, at present, opposes transition to J F’s home.
13Bearing these matters in mind, I find the applicant’s position is to be preferred. This is for the following reasons. First, the historical offending cannot be downplayed. There are two instances of serious sexual violent offending against intimate partners. J F is clearly in that target group. Though J F states she is comfortable to have R F with her, appreciation of risk by her is only one factor, and I consider the actuality of the past offending informs the risk she faces and supports a finding that it is a very real risk. Second, the historical offending reveals that, despite treatment and punishment between offending after the first two incidents of offending, that punishment and treatment did not ameliorate the risk and the offending actually escalated into the index offending. Dr Owen gave evidence of this escalation. She gave evidence that it was an escalation in his pattern of behaviour because it widened the pool of victims from simply intimate partners, to associates. I accept that evidence and it now results in a finding that the risk posed by R F is wider than just the intimate-partner violence experienced in the first two crimes. That significantly narrows the importance of R F’s desires.
14Third, that expansion in the pool of potential victims is significant in R F’s situation, because it is not clear that treatment has actually been embedded in such a way as to allow him to cope with his very significant personality impairment. All experts agree that he has a significant personality impairment. They also agree that it is chronic. That is abundantly clear, given the chronicity of his offending. This personality impairment results in anger and resentment and manifests in misogyny. This is always present. There is, then, according to both experts, a reactive or instrumental response to that condition. Alcohol is a maladaptive coping mechanism and dissolves the constraints on how R F deals with his chronic condition. While all experts agreed that the risk was not imminent this is not to minimise the fact that he has a history of reactive responding and that has significant consequences. It is here relevant to note that, on the night of the index offending, R F was with J F, and was consuming alcohol. She neither constrained that activity, nor acted in a way which diverted him from acting in the way he did when his behaviour escalated into the very significant crime he committed in the index offending. This is despite the fact he was known to have sexually and violently offended before on at least two occasions. The index offending then occurred.
15This is relevant, because it informs the risk posed to, not just the intimate partner, J F, but those she is acquainted with. It was submitted that, since this time, R F had been punished, aged and had treatment, all of which made him appropriate to reside with J F, as she was a supportive presence. This, however, runs counter to the evidence of Dr Owen. She made the point that, just because J F was supportive, did not make J F a prosocial support. This was because J F did not aid the treatment of R F, because she shared in his belief of downplaying the index offending and engaging in victim blaming. That is abundantly clear from the interview she had with Mr Candlish and the e-scan interview. As Dr Owen pointed out powerfully in my view, the basis for effective treatment is, first, honesty as to the offending, with an acceptance of the need for fundamental change. To this extent, the failure of J F to participate in the Same Place program is telling. In combination, these factors show J F is not a prosocial support in the treatment and management of the risk opposed by R F to herself and others. She is neither willing to admit the scope and nature of R F’s offending, despite being at trials, nor willing to participate in the treatment that R F requires for the chronic significant problem he faces. She is not, then, a positive factor in the reduction of the risk posed by R F.
16To the extent Mr Candlish gave evidence that residence with J F was suitable and did not increase the risk of re-offending, several things may be said. Mr Candlish ranked R F’s re-offending as high, which represented the top band of his scale. The risk cannot be elevated from there by residence with J F. So, by itself, this statement is not supportive of residence with J F. More importantly though is the mandate in s.27 that the primary purpose of conditions is to reduce the risk of the offender re-offending. The evidence of Mr Candlish did not in my opinion go so far as to state this would be achieved by the removal of the condition sought by the Applicant. It is of course for the Applicant to make out its case that the condition is necessary to reduce the risk of re-offending. I accept Dr Owen’s opinion that it does and I make it clear that Mr Candlish’s opinion did not seem to run counter to this. Rather he seemed simply to opine that residence with J F was “suitable”, not that it positively reduced risk posed.
17Second, his statement that residence with J F is suitable was made in the context of him accepting that, while J F had some prosocial factors, it was difficult, in his opinion, to be categorical about this. He then conceded that, overall, it was simply too early to know, on balance, whether J F was a prosocial support. That was, I consider, a fair concession by the expert. It fits with the recent history of this matter. This is, that R F has been in prison for a significant period of time and has only just begun at Corella Place. That is a very different environment to prison. He is allowed out and to go on visits with J F. Mr Candlish accepted, overall, that Corella Place, in fact, offered an ability to practise skills learned in treatment. All expert practitioners accepted that, given the personality impairment, its chronicity and the history of R F, a slow and cautious approach ought be adopted with R F’s transition. That fits well with Dr Owen’s evidence. It is not inconsistent with Mr Candlish’s evidence. However, if it were necessary, I would prefer and accept Dr Owen’s evidence on this point, but as I said, I do not consider that Mr Candlish’s evidence is far from it, especially given his evidence in cross-examination.
18For these reasons, I find that residence at Corella Place as proposed in the applicant’s submission is necessary to meet the purposes of s27, that residence with J F is not appropriate, and I will make this condition in accordance with the applicant’s draft.
19Given this finding I do not need to consider the respondent’s submission that certain conditions ought be made to deal with transition to J F’s residence.
Issue two: duration
20As to this, I refer to my reasons immediately above. In considering this matter the Court must be satisfied that there is a high degree of probability that the offender will remain likely to commit a relevant offence for the whole of the period of the order and if not so satisfied then the period of the orders 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.[1]
[1]ARM v Secretary to the Department of Justice [2008] VSCA 266 at [13]
21All practitioners accept a “slow and cautious” approach ought be adopted to ensure therapeutic gains are embedded before moving with transition. Given the chronicity of offending, despite earlier treatment, often the avoidance of alcohol treatment in the past, and the significant personality impairment, I accept Dr Owen’s evidence that many years are required to determine if treatment gains are to be made and embedded. I have specific regard to R F’s history also and I consider it warrants a degree of real caution in prescribing too short a limit on the Supervision Order, especially given his prevarication in accepting honestly the nature of his offending. While it was submitted this might disincentivise R F’s recovery, I am bound by the Act to balance all factors in s1, but I note the primary purpose of the Act is to have regard to enhanced protection of the community.
22Dr Owen’s evidence was to the effect that a period of three to five years was appropriate. The applicant submitted that a period of six years was therefore appropriate to account for a period of transition. The respondent sought a period of four years as being appropriate given the long period of incarceration and the positive interaction with Corella Place staff since release in January 2024.
23Having regard to all those matters, and accepting Dr Owen’s evidence, I consider that an order for five years is appropriate. I do consider that the antecedents of the offender and his significant personality impairment warrant a “slow and cautious” approach to determine if long term change is embedded.
24Overall, then, I will make the Orders sought by the applicant, but impose a duration of five years. I will otherwise make the Non-Publication Order.
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