Secretary to the Department of Justice and Community Safety v CWE (No 2)
[2022] VSC 105
•4 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0098
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| v | |
| CWE | Respondent |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 14 & 15 December 2021 |
DATE OF JUDGMENT: | 4 March 2022 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v CWE (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 105 |
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CRIMINAL LAW – Application for renewal of supervision order (‘SO’) – Existing interim supervision order – Application opposed by respondent – Some treatment gains made by respondent in Rivergum but need for further treatment in community – Still poses a moderate risk of committing both a serious sex offence and serious violence offence – Concerning nature of likely reoffending scenario – Unacceptable risk – SO renewed – Non-publication order – Serious Offenders Act 2018 ss 13, 14, 22, 24, 27.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Holdenson QC with Mr R Kornhauser | Victorian Government Solicitor’s Office |
| For the Respondent | The respondent appeared in person |
HIS HONOUR:
Introduction
The Secretary to the Department of Justice and Community Safety (‘the Secretary’ or ‘the applicant’) applied for the renewal of a supervision order (‘SO’) against the respondent, CWE, on 18 August 2021. This application was brought under s 22 of the Serious Offenders Act 2018 (‘the Act’) and preceded an application for an interim supervision order (‘ISO’) brought under s 46 of the Act.
I determined the application for the ISO on 20 October 2021, having been satisfied that the existing SO would have expired before the application for renewal could be dealt with. The making of the ISO was opposed by the respondent, who appeared in person. Having been satisfied that the requirements for the making of the ISO had been met, and that it would be in the public interest to make the order, I made the ISO in the terms sought by the applicant and published my reasons.[1] The ISO, as things currently stand, is due to expire on 7 March 2022.
[1]Secretary to the Department of Justice and Community Safety v CWE [2021] VSC 811 (‘the ISO decision’).
On 14 & 15 December 2021, I heard the application for the renewal of the SO. Having heard some evidence to which I will later turn, and submissions on behalf of both sides, I reserved my decision on the application.
Background
The background to this application is set out in detail in the ISO decision.[2] The only correction required to the chronology at [10] is that the respondent transitioned from the Rivergum Residential Treatment Facility (‘Rivergum’) to the community on 3 November 2021, not 7 November 2021 as previously stated.[3] Since this time, the respondent has resided in Northern Victoria and the Secretary does not apply for an intensive treatment and supervision order to form part of the renewed SO.
[2]ISO decision [5]-[11].
[3]ISO decision [10].
Background
The respondent was sentenced to a long term of imprisonment in 2003 for rape and intentionally causing serious injury (‘ICSI’). On 15 January 2015, he was released on parole. On 19 July 2018, Champion J made an ISO.[4] This order commenced on the expiry of the respondent’s sentence on 25 July 2018. On 31 October 2018, an application for a supervision order (‘SO’) was heard by Champion J. On 22 November 2018, the respondent absconded, having first removed and discarded his electronic monitoring device. On 23 November 2018, in the absence of the respondent, Champion J made a SO for three years which commenced on 24 November 2018. The respondent was apprehended in New South Wales (‘NSW’) on 9 January 2019 and extradited to Victoria on 11 January 2019. Charges were laid against the respondent alleging contraventions of the ISO and SO. While the charges were pending, on 4 April 2019, the applicant brought an application for review of the conditions of the SO. On 5 April 2019, a plea hearing for two contravention charges proceeded before Champion J. The application for review was heard by Champion J on 22 May 2019. On 16 September 2019, his Honour pronounced a sentence of 10 months’ imprisonment for the charges, and made an intensive treatment and supervision condition (‘ITS’) following the review, by virtue of which the respondent would be required to reside at Rivergum Residential Treatment Centre (‘Rivergum’) at the expiration of the sentence.
[4]The ISO was made under the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘SSODSA’). On 3 September 2018, that is, after the making of the ISO and before the hearing of the SO application, the SSODSA was repealed and the Act commenced.
On 8 November 2019, the respondent finished his custodial sentence and commenced to reside at Rivergum.
On 27 October 2020, applications for review of the SO and of the ITS condition were filed in the Court. Those applications were heard by Champion J over a number of days in the first half of 2021. On 9 July 2021, his Honour granted the applications and confirmed the SO and the ITS condition.
On 18 August 2021, an application for the renewal of the SO under s 22 of the Act was filed and served on the respondent.
On 21 September 2021, an application under s 46 of the Act for an ISO was filed and served on the respondent, on the basis that the SO would have expired before the application for the renewal was determined.
At the time of the hearing of the application for the ISO, the ITS condition was still in place, and the applicant continued to reside at Rivergum. The ITS has since expired, and since 3 November 2021, the respondent has resided in the community at an address specified in the ISO.
The legislative framework
Section 22 of the Act relevantly provides:
Application for renewal of supervision order
(1)At any time before the expiry of a supervision order in respect of an eligible offender, the Secretary may apply to the court that made the supervision order for the renewal of the order.
(2) An application under subsection (1) is commenced by filing—
(a)a notice of application in accordance with the rules of court, if any; and
(b)at least one assessment report or the latest progress report in respect of the offender.
…
Section 24 of the Act relevantly provides:
Determination of application for renewal of supervision order
(1) On an application under section 22, the court may—
(a) renew the supervision order; or
(b) revoke the supervision order; or
(c) make no order under paragraph (a) or (b).
(2)An application for the renewal of a supervision order may be heard and determined despite the expiry of the supervision order sought to be renewed.
(3)Subject to this section, section 14 applies to the determination of an application under section 22 as if a reference to an application under section 13 were a reference to an application under section 22.
(4) If the court renews a supervision order, it may—
(a) vary, add or remove any condition of the order; or
(b)vary the maximum intervals between applications for review of the order.
(5)If the court renews a supervision order, the existing supervision order, if any, is revoked on the commencement of the supervision order that is renewed.
(6)The period of a supervision order that is renewed is the period specified under section 19(1).
Section 13 of the Act sets out the manner in which an application for a SO is to be commenced. Section 14, which sets out what is required for a SO to be made, provides:
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—
(a)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 sex 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; or
(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.
(5)The Secretary has the burden of proving that an offender poses or will pose an unacceptable risk under subsection (1).
(6) If the court is satisfied as required by subsection (1), the court may—
(a) make a supervision order; or
(b) make no order.
(7)The court may hear and determine an application under section 13 even if the offender has ceased to be an eligible offender because—
(a) the custodial sentence has been served or has expired; or
(b) the offender is no longer subject to a detention order.
(8)The court may hear and determine an application under section 13 even if the offender is remanded in custody or is serving a custodial sentence.
It is not in dispute that the respondent is an eligible offender for the purposes of the above provisions. He was subject to a SO at the time of the commencement of the renewal application, and is currently subject to an ISO.
Unacceptable risk
The term ‘unacceptable risk’ is not defined in the Act, but in the context of the now repealed Serious Sex Offenders (Detention and Supervision) Act 2004, the meaning of the term was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice.[5]
[5](2013) 41 VR 359 (‘Nigro’).
In that case, the Court stated that ‘the concept of unacceptable risk is a flexible one which is “calibrated to the nature and degree of the risk so that it can be adapted to the particular case”’.[6]
[6]Ibid [165] (citations omitted).
As the Court stated:
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. [7]
[7]Ibid [117].
The Court held:
Whether a risk is unacceptable depends upon the degree of likelihood of offending[8] and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstances, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence.[9]
[8]Section 14(4) of the Act dictates that the risk may be unacceptable even if the likelihood is less than more likely than not.
[9]Nigro [6].
The Court further stated:
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.[10]
[10]Ibid [130].
The Court in Nigro made it clear that the test of unacceptable risk:
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]Ibid [5].
Conditions
Division 3 of the Act sets out the law relating to the conditions of a SO. Section 27 explains the purposes of conditions of a SO and relevantly provides:
(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 violence offence…or an offence referred to in Schedule 3.
…
(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 violence offence…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.
Evidentiary material upon which the application was based
At an early stage in the hearing, Mr Holdenson QC, who appeared with Mr Kornhauser for the applicant, outlined the evidentiary material upon which the applicant relied. This comprised the report of clinical and forensic psychologist Dr Joel Godfredson dated 10 August 2021 (‘the progress report’), the affidavit of Aisling Denham sworn 13 October 2021, a special report to the Post Sentence Authority (‘PSA’) concerning the progress of the respondent since transitioning from Rivergum on 3 November 2021, the reasons for sentence of Teague J in respect of the index offending, and the Court of Appeal decision in the case.
Dr Godfredson progress report
Dr Godfredson has assessed the respondent a number of times since 2018 for the purposes of proceedings under the Act or its predecessor. In preparing the progress report, as well as his previous knowledge of the respondent, Dr Godfredson relied upon a video-conference with the respondent on 23 July 2021, video-conferences with other practitioners who have dealt with the respondent, the results revealed by a number of risk assessment tools he used, and a large body of file and other material. The focus of the report was the progress of the respondent on the SO, in particular, during the 10 months leading up to the time of the report.
In the report, Dr Godfredson set out details of the index offending, which offending, it might be observed, comprised a rape which the Court of Appeal was moved to describe as ‘as serious an example of a single instance of that crime as one could imagine’, and a charge of intentionally causing serious injury (‘ICSI’) which was also considered to be a most serious example of that crime. It is not necessary for the purposes of this judgment to dwell further on the facts of the index offending.
Dr Godfredson also set out the criminal history of the respondent in Victoria and NSW. That history included, significantly, convictions on charges of aggravated burglary and intentionally causing injury arising from an incident which occurred when the respondent was aged 17 years. He apparently entered the home of a family friend, armed with a large piece of firewood, and struck the female victim with the wood, causing her to fall backwards. The respondent reportedly attempted to remove the underpants of the victim before being restrained by the victim’s son. The respondent was originally charged with assault with intent to rape and other offences but pleaded guilty in the end to the above charges. He received a suspended sentence and a fine. The offending apparently occurred in the context of alcohol intoxication and a slight made by the victim’s son towards the respondent.
Dr Godfredson went on to set out the circumstances of the respondent’s offending on the SO including the respondent’s flight to NSW.
Dr Godfredson summarised the results of quarterly reviews of the respondent prepared by his Specialist Case Managers (‘SCM’) during the 10 months leading up to the progress report. He also summarised the offence specific and other treatment received by the respondent during the period.
It would be correct to say that Dr Godfredson’s summaries of the quarterly reviews and treatment indicated on the one hand the progress made by the respondent and his excellent level of attendance and engagement with supervision and treatment and compliance with the requirements of Rivergum, but on the other, ongoing concerns flowing, in particular, from his continuing feelings of suspicion and paranoia regarding Rivergum and the broader justice system and his belief that he is being persecuted by Corrections Victoria (‘CV’).
Dr Godfredson carried out risk assessments in respect of sexual offending and non-sexual violence offending which involved, amongst other things, the use of a number of tools used by experts in the area of risk assessment. The results derived from the tools were set out in detail in the progress report and it is not necessary for present purposes to set them out. Suffice to say that Dr Godfredson assessed the respondent as posing a moderate risk of both future sexual violence and future non-sexual violence. In each case, this represented what Dr Godfredson described as a ‘modest reduction in his risk status’.[12]
[12]Progress Report, Executive Summary, 1.
Dr Godfredson set out a comprehensive case formulation which was presented in the Detention and Supervision Order (‘DSO’) Assessment Report dated 12 March 2018 and updated in subsequent reports. The formulation included the following observations:
i.[The respondent] has a lifelong sensitivity to real and imagined slights, suspicion regarding others’ motives, and a tendency to believe that people are testing or antagonising him.
ii.To hide his emotional sensitivity, [the respondent] adopted a passive response to real and imagined slights, and often chastised himself regarding a perceived inability to stand up for himself.
iii.[The respondent’s] subjective experiences of injustice result in cumulative feelings of anger and resentment.
iv.To compensate for these sensitivities, [the respondent] conveys a self-assured personality style. This trait, along with difficulty trusting others, prevents him from voluntarily seeking personal and professional support.
v.Beginning in early adulthood, [the respondent] abused alcohol as a means to cope. When intoxicated, his capacity to (over) control his emotions and behaviour was severely compromised.[13]
[13]Progress Report [201].
Dr Godfredson noted the prior offending of the respondent, which he stated appeared to be underpinned by similar psychological processes including a gradual build-up of anger and resentment in the context of poor coping skills, the presence of a minor slight, an impulsive and disproportionate reaction to such slights, and the presence of alcohol intoxication.
Dr Godfredson observed that the respondent had struggled to cope with the requirements of parole. The psychological processes associated with his prior offending had not been remedied by treatment he received in custody. Concerns about his risk potential had led to him being subject to increasingly strict conditions on parole, which served to fuel his perception that he was being harassed and tormented by CV. The respondent’s concerns were further supported by the initial application for an ISO, leading to his absconding to NSW. When the ITS was made, the respondent incorporated this into his ‘problematic belief system’.[14]
[14]Ibid [205].
Dr Godfredson opined:
From the outset of [the respondent’s] placement at Rivergum, there was little to no prospect of modifying the narrative that he adopted to explain his predicament. Indeed, [he] perceived staff at Rivergum were agents of Corrections Victoria whose mandate was to elicit pre-determined responses and otherwise antagonise him. Despite his assumptions, [the respondent] remained committed to complying with his obligations. It is inconsequential whether that compliance reflected an intention to position himself as beyond reproach to diminish the justification of further ‘abuse’.[15]
[15]Ibid [206].
Dr Godfredson dealt in some detail with the treatment gains made by the respondent, including his improved insight into his psychological functioning including the processes related to his prior offending, his application to practising adaptive strategies for regulating difficult emotions, and his improved ability to inhibit impulsive reactions and remove himself from interpersonal conflict. He also noted, on the other hand, that the current presentation of the respondent includes odd behaviours, fluctuations in mood and expressions of hostility which are a function of the respondent’s fixed belief system.
Dr Godfredson stated:
Although [the respondent] has not yet generalised any treatment gains to a community setting, there is evidence of him applying treatment concepts in different aspects of the Rivergum model. Furthermore, it is my opinion that [his] treatment gains reflect the limit of his capacity to benefit from the intensive phase of treatment. Therefore, the best course of action may be to usher [the respondent] through the reintegration phase with a view to exiting him from the program upon expiry of the ITS condition.[16]
[16]Ibid [210].
He went on to opine:
On the one hand, [the respondent] is in a worse position than he was prior to his release on parole. He is currently estranged from his brother, who provided accommodation and employment. He is also estranged from his ex-wife and son, who offered limited support. Furthermore, the abscond attracted significant media attention. On the other hand, [the respondent] has achieved treatment gains that would never have been possible in a community setting. Given that [the respondent’s] risk was primarily underpinned by ‘long-term psychological vulnerabilities’, his progress warrants a reduction in his risk status.
The relevant stakeholders are faced with a considerable dilemma: Conditions which are supposed to decrease [the respondent’s] risk of reoffending may well have the opposite effect. In my opinion, a critical component of managing [his] risk status is to minimise his exposure to stress. In that regard, there is an extremely delicate balance between devising conditions which promote [the respondent’s] rehabilitation and not overwhelming his capacity to cope.[17]
[17]Ibid [212]-[213].
Dr Godfredson went on to emphasise the importance of tailoring future risk management strategies with a view to limiting the respondent’s exposure to stress.
In addressing the matters required to be considered by s 270(1) of the Act, Dr Godfredson repeated his view that the respondent’s past sexual and non-sexual violent offending was underpinned by a similar set of risk factors including stress and poor coping, emotional dysregulation, and poor behavioural controls in the context of alcohol intoxication. These factors are related to pervasive personality difficulties. The net effect of all of the relevant factors is ‘a risk for controlled aggression and extreme violence which is altogether disproportionate to any real threat’.[18]
[18]Ibid [231].
Dr Godfredson continued:
Future sexual offences are most likely to occur in the context of poor coping, emotional dysregulation, and alcohol intoxication. Although I have hypothesised subjective provocation to be a precipitating factor, it is important (sic) emphasise that such triggers might not occur in the realms of observable experience. The victim is likely to be an adult female, including an associate or someone he has recently met. The offence would likely commence with a sudden expression of anger and violence, which may render the victim unconscious. [The respondent] might then vaginally rape the victim including the commission of expressive violence far greater than required to further any sexual act. The ensuing injuries may be life threatening. Following the offence, [the respondent] is likely to pose a high risk of harm to himself and others.[19]
[19]Ibid [232].
Turning to the risk of future violent offending, Dr Godfredson opined:
[The respondent’s] risk of a committing another schedule 2 violence offence has been assessed as moderate and is underpinned by a similar constellation of risk factors for his risk of committing sexual violence. The first broad scenario pertains to the risk of causing serious injury intentionally or recklessly to further the commission of sexual violence.
The second broad scenario pertains to the risk of non-sexual violence in the context of perceived provocation. The risk would be elevated in the context of stress and difficulty coping, emotional instability, cumulative feelings of resentment, and alcohol intoxication. [The respondent] spends much of his time ruminating over perceived persecution. Therefore, rumination should not be construed as an indicator of imminent risk. Any future violence may be impulsive and may not be associated with particular warning signs. In light of [the respondent’s] prior convictions for weapons-related offences in addition to having inflicted life-threatening injuries, there is the potential for violence causing serious harm and/or death. Fortunately, there have been no instances of serious violence in the absence of alcohol intoxication.[20]
[20]Ibid [234]-[235].
Near the end of the progress report, Dr Godfredson set out a number of factors which in his view might increase or decrease the respondent’s risk of reoffending.
In conclusion, in response to the requirements of s 270(2) of the Act, Dr Godfredson indicated that he had assessed the respondent as posing a moderate risk of committing a serious sex offence or a serious violence offence were he to be in the community and not subject to a supervision order.
Dr Godfredson’s evidence
Dr Godfredson gave sworn evidence before the Court in which, at the outset, he confirmed the truthfulness of the contents of the progress report, confirmed that he still adhered to the opinions set out therein, and indicated that none of the updating material, all of which he had read, caused him to alter any of his opinions.
Dr Godfredson gave evidence that what had been achieved by the respondent during his treatment in Rivergum, as described in a number of passages in the progress report to which the Court’s attention was drawn, was the reason why the respondent’s risk of reoffending had been reassessed as moderate.
Dr Godfredson referred to the treatment which the respondent had received since his move to Northern Victoria with the Forensic Intervention Services (‘FIS’) clinician, Natasha Scott. He had read her comprehensive treatment notes. He described the treatment thus far as ‘the beginning of the next chapter in his treatment’.[21] In ideal circumstances, the treatment with Ms Shott would effectively be a continuation of the treatment in which the respondent had engaged in Rivergum. The respondent had not engaged in treatment to the same extent as he had with his previous clinician, which Dr Godfredson put down to the fact that the respondent and Ms Shott were still forming a therapeutic alliance, something which was not unusual in light of their limited time together to date.
[21]Transcript 23.
Dr Godfredson was taken to the notes of Ms Shott of the first session on 3 November 2021. At the session, the respondent apparently indicated his view that the only factor which precipitated the index offending was his depression, which led Dr Godfredson to be concerned that the respondent ‘has failed to identify the entirety of the factors which preceded or precipitated his offending’.[22] This, he said, was consistent with his view that, ‘further treatment is necessary for [the respondent] to consolidated his treatment gains and to generalise those treatment gains to a community setting’.[23]
[22]Ibid 26.
[23]Ibid 26.
This would occur:
through further treatment with Ms Shott whereby [the respondent] has the opportunity to rehearse the treatment concepts and apply schema therapy principles in the manner to which he responds to situations and to also apply that information or that knowledge to new situations as they arise.[24]
[24]Ibid 28.
Dr Godfredson attested to what he saw as a number of limitations in the respondent attempting to continue his treatment with a private psychologist in the community. First, a private psychologist would not have access to the same information regarding the respondent’s history as a clinician with FIS, although he acknowledged this could be alleviated to an extent by the provision of Dr Godfredson’s progress report to the private psychologist. Secondly, a private psychologist, even if skilled in the use of schema therapy, would not be in a position to effectively continue with the treatment episode commenced in Rivergum to the same extent as Ms Shott. Thirdly, the use of a private psychologist could be detrimental to the respondent’s progress in that he or she might validate unhelpful assumptions held by the respondent about Corrections Victoria (‘CV’), thereby increasing his feelings of anger and resentment and undermining the treatment gains he has achieved. Fourthly, there would be less scope for a specialist case manager to seek and be provided with a clinical consult from a private psychologist than from a FIS clinician should any issue of concern arise.
At the end of examination-in-chief, Dr Godfredson expressed his opinion that the progress which he had indicated needed to be made by the respondent in order for him to consolidate treatment gains and generalise them to a community setting would be achievable with further treatment.
Before commencing his cross-examination of Dr Godfredson, the respondent, who was unrepresented, sought and was granted leave to make what he described as a submission to the Court. In the course of his submission, which was made in the presence of Dr Godfredson, the respondent, by reference to file notes and other documentation, took the Court through a number of aspects of his time in the community on parole and in Rivergum from the time he had been placed there. He expressed his dissatisfaction as to the way in which he had been dealt with by case workers, clinicians, and CV generally, by reference in particular to numerous individual incidents and events over the years. It is not necessary for present purposes to summarise these matters, other than to say that the things he saw fit to reveal to the Court would tend to confirm what was said by Dr Godfredson in the progress report as to the very negative views held by the respondent about CV and the broader justice system.
In his cross-examination of Dr Godfredson, the respondent’s method generally involved him reading out portions of file notes about various incidents and aspects of his treatment and supervision over the years, expressing his own conclusions about how those matters should be viewed, and then asking Dr Godfredson to comment.
It would be correct to say that in no respect was the evidence of Dr Godfredson as set out in the progress report and evidence-in-chief weakened or significantly altered during cross-examination.
Dr Godfredson acknowledged that the personality traits of the respondent would make it difficult for him to be under the supervision and control of CV, but indicated that to his mind, there was nothing to indicate that any of the stakeholders in connection with the respondent’s supervision and treatment had deliberately acted in a way to cause him harm or distress. He accepted that the respondent, as with any person, would require a positive therapeutic alliance in order to benefit from treatment. He also accepted that the respondent had, during the course of his time in Rivergum, identified a number of stressors and taken steps to deal with them. He acknowledged that the respondent’s action in seeking out his own private psychologist was a positive one. His achievement in not having consumed alcohol in 20 years was a significant one.
Dr Godfredson accepted that the respondent had improved significantly so far as risk was concerned, reflected in the reduction in risk indicated in the progress report. When he was asked whether the respondent should be subjected only to such conditions as he could manage, he noted that having read the proposed conditions of the SO, these were the least restrictive he had observed in an order.
When asked by the respondent about an occasion on which there had apparently been contact made by someone in authority with the respondent’s new employer, Dr Godfredson noted that newspaper reports in the past had placed the respondent in a difficult position. In response to some questions from me, he indicated that any further publication concerning the respondent’s offending or location:
could only serve to increase his sensitivity to feeling harassed or tormented by members of the public. And that would potentially compromise his capacity to form friendships or maintain employment and otherwise accrue protective factors. So, I would see further publication as being relevant to both his rehabilitation and the protection of the public.[25]
[25]Ibid 122.
He went on to confirm that to his mind, any further publication could reduce the respondent’s prospects of rehabilitation and thereby increase the risk to the public.
In response to the respondent’s assertion that he would be better treated by his own private psychologist, Dr Godfredson reiterated his view that a continuation of the current treatment episode delivered by a clinician from FIS would have the best chance of having a significant benefit. He did not accept that a private psychologist would have the same qualifications to treat the respondent. He reiterated the reasons why he considered a continuation of the current regime using an FIS clinician would be the most beneficial.
Dr Godfredson accepted that the conditions of an order should be designed so as not to limit the social supports available to the respondent. He gave this evidence in the context of questions from the respondent asserting that the residential condition of the current ISO would prevent him from going on camping trips to the snow with his friends. This led to Mr Holdenson pointing out that the relevant residential condition allows the PSA to ‘direct otherwise’ to permit the respondent to stay away from his home address.
Dr Godfredson noted that what he described as the respondent’s ‘preoccupation with the subjective experience of being treated badly by others’ was one of his most significant risk factors. Hence his recommendation that if the Court was minded to renew the SO, that the associated conditions should be limited to ones not calculated to ‘trigger’ the respondent.
Dr Godfredson indicated that at the moment, the above beliefs were mainly focused on CV. His personality is such, however, that throughout his life, those types of negative beliefs were likely to occur in other contexts, including employment and personal relationships. At Rivergum, the respondent has learnt important skills in managing conflict and regulating his emotions. It is essential that he continue to practice those skills in a community setting so that if he experiences triggers, they are less likely to result in serious violence.
During the course of framing some questions in cross-examination, the respondent expressed concerns at what he described as the lack of impartiality of those supervising and treating him, and went as far as to say:
If evidence is solely held, and if evidence is solely manufactured and solely developed by one organisation without a separate person, such as a separate psychologist for myself to be able to help me with things, it doesn’t provide me a very fair hearing.[26]
[26]Ibid 157.
In the face of an objection from Mr Holdenson,[27] Dr Godfredson was permitted to answer a question from the respondent asserting that were he to remain under a SO, there would be a slightly increased risk of reoffending. he said:
It’s my opinion that there needs to be careful consideration of conditions that minimise your exposure to stress, whilst ensuring that you participate in interventions which will further your rehabilitation and result ultimately in a reduction in the risk of reoffending.[28]
[27]The objection was based on s 14(2)(b)(ii) of the Act, and Mr Holdenson’s contention that the answer to the question could not be used in connection with the decision whether an unacceptable risk had been made out. He acknowledged that the answer may be relevant to the Court’s exercise of discretion under s 14(6) should it come to that. I indicated that I would not rely on the evidence in any impermissible way.
[28]Ibid 184.
When pressed further on the matter, and asked by the respondent whether having him on an order would increase the risk of his reoffending, Dr Godfredson said:
In a roundabout manner, embedded within the asking of that question is one of the most significant risk factors that you experience… and that is captured by the phrase, ‘Look at what you made me do’. By that, I mean that there is a certain type of violence that is underpinned by the belief that other people are responsible, not only for how one feels, but also how one behaves. As I previously stated, it was my recommendation that a proposed supervision order be comprised of conditions which would cause you a minimum amount of stress. After having re-read the interim supervision order, I would have serious concerns if you could not comply with those conditions or could not cope with those conditions as to whether you could cope with the ordinary stresses of living in the community. [29]
[29]Ibid 188.
Fairly late in cross-examination,[30] because the respondent was unrepresented, I pointed out to him the important nature of the opinions expressed by Dr Godfredson about the moderate risk posed by the respondent of committing another serious sex offence or a serious violence offence if he was in the community and not subject to a SO, and the likely circumstances of future offending should the risk materialise. I pointed out that should he seek to challenge those opinions, he could do so in cross-examination. It would be correct to say that no challenge was made to Dr Godfredson in respect of any of those opinions he had expressed.
[30]Ibid 168-170.
In re-examination, Dr Godfredson confirmed that notwithstanding the various extracts from the files which had been read out by the respondent, the comments he had made, and the questions he had asked, he remained of the view that the respondent posed a moderate risk of sexual and violent reoffending should he be in the community and not subject to a SO. He indicated, further, that he had not changed his view as to the likely relevant reoffending scenario should either of the risks materialise.
In response to a question from me at the conclusion of re-examination, Dr Godfredson indicated that if the respondent can continue to make treatment gains, that would have the potential to reduce the risk that he would pose of future offending.
He further indicated that the condition to which he had been referring in particular in paragraph [211] of the progress report was that requiring electronic monitoring.
The respondent’s evidence
The respondent did not give sworn evidence, and did not seek to call any witness or tender any exhibit, save for some copy emails between himself and Victoria Legal Aid (‘VLA’). The emails concerned a request he made to be funded for the provision of an expert report for use in the application. The request was refused by VLA because the applicant was self-represented and the provision of funding for an expert report in those circumstances was outside the VLA guidelines.
In that connection, I note that the decision to be unrepresented was one made freely by the respondent. He did not seek to be represented during the application, notwithstanding the earlier suggestion by the Court that it may be in his interests to have representation.[31] Later, in his submissions before me, the respondent confirmed that it was his decision to be unrepresented.[32]
[31]Transcript of ISO application, 19 October 2021, 114-116.
[32]Transcript 231.
Victim’s submission
Pursuant to s 134(2) of the Act, a person who is a ‘victim of the offender’ may make a submission to the Court for consideration by the Court in relation to an application for a renewal of a SO under Part 3 of the Act.
The victim in this matter had previously provided a submission for the purposes of the past applications. The Court was provided with that material. On the present application, Mr Joel Jeremiejczyk, the Victorian Services Support and Reform Coordinator,[33] appeared on behalf of the victim. He confirmed that the victim submission previously provided was relied upon again. He confirmed the wish of the victim that the submission not be shared with the respondent. I can indicate that I have taken the submission into account. I directed that the submission not be released to the respondent or any other person.
[33]Victim Services Support and Reform is a business unit within the Department of Justice and Community Safety.
The applicant’s submissions
The submissions on behalf of the Secretary were contained in the written outline of submissions dated 15 October 2021 relied upon in the application for the ISO and in the renewal application, and in the oral submissions of Mr Holdenson.
The written outline summarised the index offending, the prior convictions, and the offending by the respondent whilst subject to a SO and ISO.
The outline summarised the legislative framework and the concept of ‘unacceptable risk’ by reference to the decision of Nigro.
In his submissions before me, Mr Holdenson emphasised the two-step nature of the process being undertaken by the Court. The first step concerns the question whether or not the SO should be renewed, dependent on a finding of unacceptable risk pursuant to s 14 of the Act. The second step, to be embarked upon only if the applicant succeeds in discharging the burden resting upon the Secretary in the first step, concerns the question of what the conditions of the SO should be.
In respect of the first step, Mr Holdenson relied on what he correctly described as the unchallenged evidence to the effect that the respondent poses a moderate risk of committing both a serious sex offence and a serious violence offence should he be in the community and not subject to a SO, and as to the likely future reoffending scenario. Mr Holdenson referred to the relevant passages in the progress report in opening the matter to the Court. What had been said by Dr Godfredson in the progress report had not been altered or qualified in his sworn evidence.
Mr Holdenson submitted that I should accept the opinions of Dr Godfredson in respect of the above matters. He submitted that those opinions, when considered in combination by reference to the clear authority on the determination of unacceptable risk, notwithstanding the need to keep in mind the value which the common law attributes to liberty of the subject, would necessitate a finding of unacceptable risk.
As to the exercise of discretion under s 14(6) should the Court be satisfied of an unacceptable risk, Mr Holdenson relied upon:
· the evidence of Dr Godfredson that further treatment is needed in order to consolidate the treatment gains already made and to generalise those gains into the community setting;
· the evidence of Dr Godfredson as to the non-oppressive nature of the conditions proposed, and his opinion that the imposition of the conditions would not entail any material increase in risk; and
· the high degree of unacceptability of the risk posed in light of the particularly grave consequences should the risk materialise.
Turning to the second step of the process, in anticipation that the Court might be satisfied under s 14 of unacceptable risk, Mr Holdenson then took the Court to the draft order provided prior to the hearing. He then spoke in justification of all of the discretionary conditions set out in the draft. I might add that further submissions in support of the proposed conditions were contained in the written outline.
In respect of the non-publication order sought by the respondent, Mr Holdenson opposed such an order but noted that notwithstanding the Secretary’s earlier opposition to a non-publication order, both Champion J and myself have previously made non-publication orders. He acknowledged that nothing has occurred since 20 October 2021[34] which would constitute additional material to weigh in the balance when considering the application for a non-publication order.
[34]The date on which I made the ISO.
The respondent’s submissions
The respondent commenced his submissions before me by asserting that if the order was renewed, his risk of reoffending would be increased. The conditions proposed would have the effect of limiting his ability to acquire and rely on social supports and restrict his employment options. He pointed to the factors said by Dr Godfredson which might decrease his risk, and noted that he had already taken the step of obtaining his own psychologist. He had abstained from alcohol for 20 years. He has already developed a stable, intimate relationship. He had access to a good job which would not be open to him if the order was renewed.
The respondent submitted that most of the conditions proposed under a renewed SO would have the effect of increasing his stress levels, he submitted. He submitted that the conditions are simply not necessary, and far from helping to keep the community safe, would have the opposite effect by increasing the risk he posed.
In respect of the treatment he could receive from a private psychologist, the respondent submitted that this would be no different from what was proposed under a renewed SO. It should make no difference whether a forensic psychologist was in the community or under the umbrella of FIS. The respondent reiterated his concern that at FIS, ‘everyone’s working with everyone’.[35] He said ‘it’s not perfect, the evidence can be manipulated or there’s no independent person to verify what’s actually going on’.[36]
[35]Ibid 226.
[36]Ibid 226.
When asked by me whether he was going as far as to say that if he was placed on an order that mirrors the ISO he was currently on, that would increase the risk he would pose to the community, he said:
Well, no, not necessarily, your Honour. On the outset of the orders, seems fine. And the worry is, like, it’s the underhanded actions that I’ve suffered in the past and they’re starting again. And for an offender like me, I have no protection.[37]
[37]Ibid 227.
The respondent submitted that the process should be about public safety and not about vilifying him in public and punishing him.
The respondent took issue with what he said was an error in Dr Godfredson’s use of the Static-99 tool. However, notwithstanding that, he confirmed that he had not sought to challenge Dr Godfredson as to his risk assessment.
As to the unchallenged evidence of Dr Godfredson about the likely reoffending scenario, the respondent noted that it was difficult for him because he was not an expert and it would be hard to put his opinion against that of an expert. He pointed to the attempt he had made to obtain funding for an expert report. He said that he had tried his best to obtain an independent report, but failed. This, he submitted, left him in an unfair position during the hearing, although he was at pains to indicate that he was not saying that either the Court or Mr Holdenson had done anything wrong.
Turning to a legal matter, the respondent touched on s 27 of the Charter of Human Rights and Responsibilities Act 2006 concerning retrospective criminal laws. I pointed out to him that this was a civil and not a criminal case, and that were the SO to be renewed, it would not constitute a penalty or punishment.
Returning to the evidence, the respondent indicated that he was not accusing Dr Godfredson of jumping to incorrect conclusions or being unfair towards him, but he indicated that ‘there are issues around the nature of the some of the rhetoric and some of the things in place’.[38]
[38]Ibid 234.
When asked if he wanted to make any submissions about the conditions proposed in the draft order, the respondent pointed to the residential condition as being the main problem as it would limit his employment and sporting activities. He also noted the inconvenience of the reporting condition.
Analysis
As noted already, the respondent is an eligible offender.
There was unchallenged evidence before the Court that Dr Godfredson, having carefully considered a vast body of relevant material and conducted a risk assessment aided by the use of appropriate tools, concluded that the respondent poses a moderate risk of committing a serious sex offence or a serious violence offence were he to be in the community and not subject to a SO. There was also unchallenged evidence as to the likely reoffending scenario should the risk materialise. In my view, there is no question that the evidence of Dr Godfredson in the application was very telling, and, indeed, that the combination of the above opinions, in the context of the overall circumstances of this case, points inexorably to only one conclusion in this application.
It is clear that during his period spent residing at Rivergum, the applicant has made significant progress towards his eventual rehabilitation. Notwithstanding the concerning views he holds about CV and the justice system more broadly, he applied himself to what was required of him in supervision and treatment. He has made noticeable treatment gains, with the result that the risk he poses has been downgraded by Dr Godfredson. However, further treatment is required for the reasons outlined by Dr Godfredson, and the evidence is clear that such treatment can best be provided under the umbrella of a SO.
As things stand today, many years after the index offending, the respondent still poses a moderate risk of sexual and violent reoffending. As for the likely reoffending scenario should such moderate risk materialise, it is concerning to say the least. In light of the serious consequences which could flow if the risk materialises, entailing potentially life threatening harm to any victim, the risk posed by the respondent is, to my mind, unacceptable.
In the end, I am satisfied by acceptable, cogent evidence to a high degree of probability that the respondent poses or will pose an unacceptable risk of committing a serious sex offence or a serious violence offence or both if the supervision order is not renewed and he is in the community.
In respect of the discretion contained in s 14(6) of the Act, I am satisfied for the reasons advanced by the Secretary that it would be appropriate for the SO to be renewed.
As for the discretionary conditions sought by the Secretary set out in the draft order, I am satisfied that each is appropriate in light of the facts of this case and the law relating to the imposition of conditions of a SO.
I note that in respect of the question whether or not the treatment to be provided to the respondent should best be provided by a FIS clinician or a private psychologist, I accept the evidence of Dr Godfedson in this regard.
The Court appreciates that this decision of the Court to renew the SO will be disappointing to the respondent. I point out that the renewed SO will have a specified duration of 12 months. I also note the evidence of Dr Godfredson that as he sees it, the conditions of the renewed SO would be the least restrictive he has seen in an order.
The evidence of Dr Godfredson was clear that further treatment is necessary in order for the respondent to consolidate his treatment gains and to generalise those gains to a community setting. He is of the view that the respondent has the capacity to make such gains. Further progress, to his mind, is possible, which would have the potential to further reduce the risk the respondent poses.
It is clear, therefore, that there is the potential for the risk posed by the respondent to be reduced to such an extent that he would no longer pose an unacceptable risk and there would be no basis for the making or renewal of a SO. I urge him to do his best to be open minded about his future prospects, and to do his best to develop and maintain close working relationships with the clinicians and case workers with whom he is required to be in contact in the next twelve months.
In respect of the application for a non-publication order pursuant to s 279 of the Act, having heard the evidence of Dr Godfredson on the matter and considered the submissions made in this respect, I am satisfied that it is in the public interest to make an order under that provision in the terms set out in the draft order provided to the Court.
Conclusion
I order that the respondent be subject to a renewed SO under s 24 of the Act. The order commences on 4 March 2022 and will remain in force for 12 months. The renewed SO will be subject to the core and additional conditions spelt out in the draft order provided to the Court.
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