Secretary to the Department of Justice and Community Safety v JK
[2022] VSC 727
•28 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
Criminal Division
S ECR 2022 0123
| Between: | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| -and- | |
| JK | Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 October 2022 |
DATE OF ORDERS: | 6 October 2022 |
DATE OF PUBLICATION OF REASONS: | 28 November 2022 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v JK |
MEDIUM NEUTRAL CITATION: | [2022] VSC 727 |
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PUBLIC LAW — Application for supervision order under Serious Offenders Act 2008 (Vic) (“SOA”) — Order sought for four years with conditions — Interim supervision order made while respondent serving sentence for offence of intentionally causing serious injury — Upon release from prison, respondent moved to secure extended care unit and ultimately placed on inpatient treatment order under Mental Health Act 2014 (Vic) — Respondent likely to remain at extended care unit for some months — Application not opposed by respondent — Whether high probability that respondent poses unacceptable risk of committing a ”serious violence offence” while in the community, absent supervision order — Supervision order made in terms sought — Secretary to apply to review order within two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G Coghlan KC | Minter Ellison |
| For the Respondent | Mr C Farrington | Chris McLennan & Co |
HIS HONOUR:
Overview
On 6 October 2022, I heard an application by the Secretary to the Department of Justice and Community Safety under s 13 of the Serious Offenders Act 2018 (Vic) (“the SOA”) for a supervision order with respect to the respondent JK.[1] The order was sought for a period of four years, with various conditions (and a two-year review period). JK did not oppose the making of a supervision order or its proposed terms. The same day, I granted the application and made a supervision order in the terms sought.
[1]Under s 279 of the SOA, I ordered that it is in the public interest that any information before the Court that might enable the respondent or his whereabouts to be identified must not be published until further order of the Court. Thus, the letters JK (which were chosen randomly) have been assigned to the respondent, and other information in these reasons that might enable JK to be identified has been described elliptically or by use of other randomly chosen letters (for example, the victim of JK’s offence is described as LM — see below). Section 133 of the SOA requires the court to state the reasons for its determination and cause those reasons to be entered in the records of the court. Hence these reasons — in a modified form.
At that time, I indicated that I would publish written reasons for my decision at a later date. These are those reasons.
Background
In 2016, JK (then aged 41) attacked a woman at his housing commission flat in Melbourne. He used a knife to stab her multiple times, including to her neck. JK had suffered from schizophrenia for many years. At the time of the offending, he was experiencing a relapse of his psychotic disorder, which resulted from his failure to take prescribed anti-psychotic medication and his ingestion of illicit drugs and alcohol.
Initially, JK was charged with attempted murder. That charge was withdrawn, and he pleaded guilty instead to intentionally causing serious injury.[2] JK had an extensive criminal history for offences of various kinds, including for violence, although nothing as grave as this offence. In 2017, he was sentenced by a judge of this Court to seven years’ imprisonment with a non-parole period of four years.
[2]Contrary to s 16 of the Crimes Act 1958 (Vic).
JK is now aged 47. He has multifaceted needs. He has a diagnosis of paranoid schizophrenia, a personality impairment, borderline intellectual functioning and a history of polysubstance use.
JK was not granted parole during his seven-year sentence, which was set to expire on 22 June 2022. On 16 May this year, the Secretary filed the present application. The application was made on the basis that JK posed, or after release from custody would pose, an unacceptable risk of committing a serious violence offence if a supervision order was not made and he was in the community.
On 17 May, the Secretary filed an application for an interim supervision order because, among other things, the supervision order application would not be determined prior to the expiry of JK’s sentence. On 16 June, Hollingworth J granted the application, which was unopposed by JK. Her Honour ordered that the interim order commence upon the expiry of JK’s sentence on 22 June, and that it was to remain in force until the determination of the present application (but not for longer than four months in total).
The relevant law
Purposes of the SOA
The primary purpose of the SOA is to provide 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 pose an unacceptable risk of harm to the community, to be subject to ongoing detention or supervision.[3]
[3]SOA, s 1(a).
The secondary purpose is to facilitate the treatment and rehabilitation of those offenders.[4]
Determination of application for supervision order
[4]SOA, s 1(b).
A pre-condition to the making of a supervision order is that JK is an “eligible offender”. JK is an eligible offender because he is subject to the interim supervision order imposed by Hollingworth J in June.[5]
[5]SOA, s 8(3). He was an eligible offender before the making of the interim order because this Court had imposed upon him a custodial sentence for a serious violence offence and he was serving that custodial sentence in Victoria (see s 8(1)(a) & (b)(i), SOA).
Section 14(1)(b) of the SOA provides that a court may make a supervision order in respect of an eligible offender upon whom it has imposed a custodial sentence for a “serious violence offence”, if an application has been made under s 13 and if, and only if, the court is satisfied that:
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.
Intentionally causing serious injury is a serious violence offence.[6]
[6]See s 3 and item 3(e) of Schedule 2 of the SOA.
Section 14(2) provides that, in determining whether an offender poses an unacceptable risk within the meaning of s 14(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.
Unacceptable risk
For the purposes of s 14(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,[7] the burden of proof of which falls upon the Secretary.[8] The court may determine that an offender poses or will pose an unacceptable risk 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.[9]
[7]SOA, s 14(3).
[8]SOA, s 14(5).
[9]SOA, s 14(4).
The term “unacceptable risk” is not defined in the SOA but was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice[10] in the context of the now-repealed Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). In a summary at the outset of their reasons, the Court said that the unacceptable risk test:[11]
[5] … 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. … The test of unacceptable risk enables an appropriate balancing of competing considerations.
[6] Whether a risk is unacceptable depends upon the degree of likelihood of offending 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 circumstance, makes the risk unacceptable. …
[10]Nigro v Secretary to the Department of Justice (2013) 41 VR 359 (Redlich, Osborn and Priest JJA).
[11]Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at 363[5]-[6].
Later in its reasons, the Court added the following (among other things):[12]
[117] … 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.
[12]Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at 391[117].
The Court went on to say that it is:[13]
[130] … 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.
[13]Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at 394[130].
Conditions of supervision order
A supervision order is subject to the core conditions set out in s 31 of the SOA and any other conditions that the court imposes under Division 3 of Part 3.[14]
[14]SOA, s 15.
The primary purpose of conditions is to reduce the risk of an offender re-offending by committing a serious sex offence or a serious violence offence, or both, or an offence referred to in Schedule 3 of the SOA.[15] The secondary purpose is to provide for the reasonable concerns of victims in relation to their own safety and welfare.[16]
[15]SOA, s 27(1).
[16]SOA, s 27(2).
In order to reduce the risk of the offender re‑offending, the conditions may promote an offender’s rehabilitation and treatment, and address the types of behaviour that increase the risk of the offender committing a serious sex offence or a serious violence offence, or both, or an offence referred to in Schedule 3 of the Act, or of engaging in any behaviour that threatens the safety of any person.[17]
[17]SOA, s 27(3).
Pursuant to s 27(4) of the SOA, the court must ensure that any conditions imposed (other than the core conditions) constitute the minimum interference with an offender’s liberty, privacy and freedom of movement necessary in the circumstances to ensure the purposes of the conditions, and further, that the conditions are reasonably related to the gravity of the risk of the offender re-offending.
Non-publication order
The court may make an order prohibiting publication of any information that might enable the offender or his location to be identified, if satisfied that it is in the public interest to do so, having regard to the matters set out in s 280 of the SOA.[18] Such an order may be made on the application of the offender or on the court’s own initiative.[19]
[18]SOA, s 279(1).
[19]SOA, s 279(2).
An order of this kind was made by Hollingworth J at the hearing of the application for an interim supervision order. Mr Farrington, who appeared for JK on the present application, submitted that the same order should be made again. He referred to evidence given by consultant psychologist, Simon Candlish, at the previous application, who was concerned about the risks to JK’s progress on and compliance with the order were there no prohibition on publication on information that might identify him or his location. Ms Coghlan KC, who appeared for the Secretary, indicated that there was no opposition to the non-publication order sought.
In all the circumstances, I was satisfied that it was in the public interest and appropriate to make such an order, which I did.[20]
JK’s offending history
[20]See footnote 1, above, and the orders set out at the end of these reasons. So as to ensure that there was nothing in the reasons that defeated the purpose of the non-publication order, the parties have considered these reasons before publication.
Index offence and sentence
The circumstances of and surrounding the index offence (of intentionally causing serious injury in 2016) are set out in detail in the sentencing remarks of the judge who sentenced JK. Further details are contained in a report prepared by Mr Candlish. In addition to the brief summary given earlier in these reasons, I shall provide the following details about the offence.
On an evening in 2016, JK was observed acting erratically and yelling abuse at co-residents of the housing commission complex in which he lived.He had ceased taking his anti-psychotic medication a week prior, and had also been drinking heavily and using cannabis. He had also used methamphetamine during the previous twelve months, including two days prior to the offence.
JK knocked on the door of two co-residents in the building and made threatening and sexually aggressive remarks. In response, the police were called. LM — the woman who became the ultimate victim in this matter — heard some of this commotion and asked JK why he was angry with the other residents. JK offered LM some cigarettes and alcohol, and they went inside his flat.
In response to the earlier triple-zero call, police arrived at JK’s flat. Officers could hear LM crying from inside the flat that she was hurt. They contacted the critical incident response team (“the CIR team”), who arrived shortly thereafter. The CIR team attempted to convince JK to open his front door, which he refused to do — threatening to kill LM should police enter. LM then tried to leave the flat, and police could see her bloody fingers as she attempted to open the door. The CIR team forced entry into the flat via the door, which had been barricaded with a couch and a table by JK.
Inside the flat, police found LM covered in blood, with a severe laceration to the neck. She was transported to hospital where she was placed in a medically induced coma. Subsequently, she spent time in an intensive care unit. Her wounds included a laceration (10 to 12 centimetres in length) to the right of her neck, other lacerations to her face and neck, and a large laceration to her lip, along with deep lacerations to her hands and palms.
LK was arrested inside his flat and taken to a police station. He was assessed as fit to be interviewed, but ultimately was not interviewed due to an independent third person being unable to be located.
Following JK’s arrest, he was admitted to the Thomas Embling Hospital.
The victim impact statement provided to the judge at the sentencing hearing indicated that LK had permanent tendon damage to her left hand, making it difficult for her to grip things, as well as heavy scarring to her neck and chest.
In sentencing, the judge accepted that, but for JK’s decision to cease taking his anti-psychotic medication and his ingestion of cannabis, methylamphetamine and alcohol, in all likelihood the offence would not have occurred.
It was uncontentious that some of the principles laid down in R v Verdins[21] were engaged and that, given JK’s mental state, the sentence imposed would weigh more heavily on him and potentially exacerbate his conditions. However, other principles of Verdins were not found to be enlivened. In particular, the judge considered that JK made a conscious decision to cease his medication and to abuse substances, and accordingly his moral culpability was not reduced.
[21]R v Verdins (2007) 16 VR 269.
Other criminal history
JK has a significant prior criminal history in Victoria, as well as a limited criminal history in New South Wales. Unless otherwise indicated, the sentences in the following matters were imposed in the Magistrates’ Court in Victoria or in the Local Court in New South Wales.
In 1999, JK was sentenced on dishonesty and assault offences to a 12-month community based order (“CBO”), which included a condition that he undergo drug and alcohol treatment.
In 2000, JK was again placed on a 12-month CBO, this time for assaulting and resisting police, burglary, dishonesty offences and possessing a regulated weapon. The CBO had various conditions, including with respect to drug and alcohol treatment.
In 2000, JK was sentenced to 12 months’ imprisonment, with eight months suspended, for larceny, unlicensed driving and receiving stolen property.
In 2001, after breaching the CBOs imposed in 1999 and 2000, JK was re-sentenced to three months’ imprisonment.
In 2001, JK was sentenced in the County Court to 15 months’ imprisonment with a non-parole period of eight months on armed robbery and possessing an imitation revolver (as a prohibited person). A psychiatric report opined that JK was most likely intoxicated at the time of the offences, that there was no indication of psychosis during the offending, and that his state of depression and intoxication, together with his borderline intellectual functioning, contributed to impaired judgment which led to the offending behaviour.
In 2003, JK was placed on a 12-month CBO for assaulting police, possessing a controlled weapon without excuse, and public drunkenness.
In 2003, JK was sentenced to six months’ imprisonment for theft, attempted robbery, assaulting police and breaching an intervention order.
In 2003, after breaching the earlier CBO, JK was re-sentenced to two years’ imprisonment, to be served concurrently with extant custodial sentences.
In 2005, JK was sentenced in County Court to two-and-a-half years’ imprisonment with a non-parole period of 12 months on armed robbery and common law assault. The offences involved robbery at a 7-Eleven store with a 12-inch knife, including a threat to stab a customer in the process.
In 2008, JK was sentenced in the County Court to two years and ten months’ imprisonment with a non-parole period of 18 months on aggravated burglary, intentionally causing injury, threatening to kill, and threatening serious injury. The offences arose out of two incidents in 2007. The first incident involved JK attending a neighbour’s flat, yelling at him, accusing him of being a paedophile, and threatening to kill him. The second incident involved him attending another neighbour’s flat, screaming abuse at him while banging on his window, causing it to break, and then climbing through the broken window holding a large knife, and once inside, stabbing and punching the neighbour.
In 2010, the respondent was sentenced to two months’ imprisonment, wholly suspended, on charges of unlawful assault. The offences occurred earlier that year, when JK attended the house of his mother and stepfather and verbally abused his mother. His stepfather attempted to intervene, and JK punched him to the face and grabbed him around the neck, causing him to fall to the ground. He then returned to his mother and punched her to the face. He was placed on a community treatment order (“CTO”) at this time.
In 2011, upon a breach of the suspended sentence imposed in 2010, JK was not re-sentenced. This was because there was a finding of exceptional circumstances — being diagnoses of schizophrenia and opioid dependence, and against a background of chronic back pain and congenital hypothyroidism.
In 2017, JK was sentenced in this Court on the index offence.
Also in 2017, JK was sentenced to six months’ imprisonment (concurrent with the sentence on the index offence) on robbery, theft of motor vehicle, driving offences, resisting an emergency worker on duty, and committing an indictable offence while on bail.
Pending matter
It is understood that JK is currently facing charges of unlawful assault, recklessly cause injury and assault of emergency worker on duty, relating to an alleged incident in custody in 2020.
As I remarked during the hearing of the present application, given that JK was not granted parole on the seven-year sentence imposed for the index offence during which these charged offences allegedly occurred, and instead that he served every day of the seven-year term, and given his mental health difficulties and the particular circumstances in which he finds himself at the present time, in my view, it would be contrary to the interest of justice to sentence him in a way that returns him to prison, were these charges proved. Further, given the conditions of the proposed supervision order, it would be unduly onerous, and potentially counter-productive to the longer-term aims of that order (namely, facilitation of treatment and rehabilitation and, in turn, protection of the community from harm), to add further conditions upon JK pursuant to any non-custodial order that might be imposed upon proof of the charges.
Evidence
Materials filed in support of application
In support of the application, the documents filed by the Secretary included the following:
a) a detention and supervision order assessment report of consultant psychologist Mr Candlish (dated 21 April 2022);
b) a neuropsychological report of Dr Laura Tweedly (dated 30 November 2021);
c) an affidavit of Clara van den Bosch (affirmed on 9 September 2022), who is an assistant manager at the Post-Sentence Branch of Corrections Victoria;
d) JK’s criminal history (which I have summarised above);
e) the sentencing remarks of the judge who sentenced JK on the index offence in 2017;
f) a co-ordinated services plan (filed 10 June 2022);
g) an environmental scan (filed 15 June 2022);
h) an updated chronology (filed 26 August 2022); and
i) written submissions of counsel for the Secretary (filed 26 August 2022).
None of the authors of these documents was required for cross-examination by counsel for JK. Nor did JK file any materials of his own, other than the written submissions of counsel.
I shall summarise the contents of three of the documents filed by the Secretary, commencing with the report of Mr Candlish.
Mr Candlish’s report
Introduction
Mr Candlish is a consultant psychologist. He has met JK twice, both times for the purposes of preparing his report in this matter, for 40 minutes in March and an hour in April this year.
Index offence and other criminal history
In his report, Mr Candlish confirms JK’s various diagnoses, and notes that he has a long criminal history, including various dispositions for violent offences.
In relation to the index offence, Mr Candlish recorded that JK has provided varying accounts. In 2016, following his arrest, JK stated that he was using significant amounts of alcohol and cannabis at that time and had stopped taking his medication. He indicated that he was paranoid and scared people were going to kill him. He said he was unaware of any reason why he would have attacked the victim, but stated that he “cries [his] eyes out about it” and hoped the victim was okay. In a subsequent interview in 2017, JK stated that he had no memory of the events.
Sometime later, in March 2022, JK stated that he did not wish to speak about the index offence and said that his recall was affected by the electroconvulsive therapy he had subsequently received. Most recently, in his interviews with Mr Candlish, JK said that he had no recollection of the index offence but suggested that he was affected by alcohol and Xanax at the time. He further claimed that the victim was his girlfriend, which is inconsistent with the information in the judge’s sentencing remarks in respect of the index offence.
Personal history
In terms of his personal history, Mr Candlish notes that JK was exposed to substance abuse and parental conflict as a child. He also reported being sexually abused at a young age.
Mr Candlish opines that JK has limited experience in being able to maintain pro-social behaviour and lifestyle stability when residing in the community.
Drug use
JK started using cannabis and alcohol at the age of 13, and then progressed to intravenous use of heroin and amphetamines. He reported abusing prescription and illicit drugs but has previously indicated a desire to cease using them. JK has previously been diagnosed with a poly-substance abuse problem and drug-induced psychosis.
Previous assessors and JK himself have identified that drugs and alcohol have been a strong causative factor in much of his past offending, including violent offending. Though expressing fondness for drugs when asked, JK said to Mr Candlish that he intended to stay sober upon release. While JK appears cognitively to recognise a link between substance abuse and treatment non-compliance and violence, Mr Candlish notes these insights have been present in the past and have not resulted in meaningful or sustained behaviour change.
Mr Candlish reports that JK denied any abuse of prescription or other drugs while serving his sentence for the index offence, but notes that this is inconsistent with the file material which indicates that he tested positive for buprenorphine in January 2020.
Psychiatric history
JK first came to the attention of psychiatric services at the age of 22 in 1998. He has been admitted to psychiatric facilities on numerous occasions since, and has historically been vulnerable to hearing voices and paranoia.Mr Candlish reports that JK has shown some insight into the medication he is prescribed to deal with his illness. His schizophrenia was relevant to the context in which the index offence occurred; but, as noted earlier, this was found by the judge not to lower his moral culpability due to his substance abuse and voluntary cessation of medication at the time. His symptoms of schizophrenia have been resistant to psychotropic treatment and compromised by his chronic substance abuse and personality impairment.
Intellectual functioning
Mr Candlish reports that JK has a thyroid condition which is thought to have compromised his early intellectual development, and notes that he has difficulty performing expected social and occupational roles. He has sustained numerous head injuries, including being struck to the head on two separate occasions while in custody. In 2005, JK was assessed using the Weschler Adult Scale of Intelligence and was found to fall into the seventh percentile — a score where 93 percent of his peers would do better.
PCL-R assessment
Mr Candlish assessed JK for traits associated with psychopathy, such as shallow affect, impulsivity, aggressiveness and a lack of empathy and guilt, using the Hare Psychopathy Checklist — Revised (“PCL-R”). JK’s total score placed him in the moderate range. Mr Candlish said that the PCL-R is known for its predictive validity, with high scores strongly correlated with recidivism, including violent recidivism.
Behaviour in custody
Following JK’s arrest for the index offending, he was admitted to Thomas Embling Hospital in an acute state of psychosis. He remained there for approximately 12 months, where he showed high levels of agitation, had limited response to medication, was subject to extended placements in seclusion, and was involved in numerous incidents, including assaults against and threats to rape and kill staff. Mr Candlish notes that electroconvulsive therapy was administered on JK and ultimately found to be the most effective form of treatment for him.
By April 2017, JK’s presentation had improved somewhat, and he was transferred to the Melbourne Assessment Prison, before being transferred in July 2017 to St Paul’s Psychosocial Rehabilitation Unit at Port Phillip Prison. His response to treatment at St Paul’s was limited, but he responded well to the high level of support available to him there. At JK’s request, his psychotropic medication was gradually reduced due to reported negative side-effects.
In June 2019, JK was transferred to an intensive case management unit at Ravenhall Correctional Centre. He did not cope well with the reduced supports there and was readmitted to St Paul’s in December 2019. A number of referrals were made to other prison units, but ultimately JK was not found suitable for them. At the time of the application for an interim supervision order, he was still being housed at St Paul’s.
Mr Candlish reports that, following JK’s transfer from Thomas Embling Hospital to a prison environment, his involvement in behavioural incidents continued. This included ongoing self-harm, threats to medical staff, and failures to produce urine samples. In addition, between August and September 2019, JK experienced some possible psychotic symptoms, including auditory hallucinations to the effect that he would be stabbed or assaulted if he returned to his unit.
In terms of incidents in the 12 months preceding his sentence expiring, Mr Candlish reports that JK accrued 26 incident reports related to acts of self-harm at a frequency of once to twice per month. This included bashing his head against walls or rocks, using sharp instruments to cut his neck or arms, and re-opening old wounds. He attempted to take his own life in May 2021. Mr Candlish notes that conversations with JK’s parents can trigger self-harm, as can JK feeling like his needs are not being met, or having to wait to have his needs met.
In addition to self-harm incidents, Mr Candlish reports there were also instances of JK refusing to take his medication, not complying with directions, and being aggressive or manipulative towards staff, and one instance of physical aggression with another prisoner. Mr Candlish notes that JK has not participated in any offence-specific treatment in custody, due to responsivity issues. It is Mr Candlish’s opinion that JK’s psychiatric condition, personality disturbance and cognitive issues will likely present ongoing barriers to his ability meaningfully to engage in offence-specific treatment.
Risk assessment
Mr Candlish administered a number of unstructured, structured and actuarial risk assessments on JK to assess his risk of future violence. The overall finding was that he poses a high risk of committing a serious violence offence if released into the community and not made subject to a post-sentence order. Mr Candlish opines that JK’s substance abuse issues, schizophrenia and personality impairment are variables that are likely to impact on the severity of future types of violence.
While serving his sentence for the index offending, JK demonstrated significant volatility in his behaviour and attitudes. Mr Candlish notes that he also has a long history of difficulties maintaining lifestyle stability and desisting from offending while in the wider community. As noted a moment ago, JK was not able to participate in offence-specific treatment in custody, primarily due to his unstable psychiatric presentation. He has limited plans for his release and appears highly reliant on the support of professionals to address his complex issues.
It is noted by Mr Candlish that JK has repeatedly failed to maintain sobriety when released from custody into the community in the past, and has failed to engage in work-related orders and community-based supervision. Mr Candlish opines that JK’s poor self-awareness and impulsivity pose a number of challenges for effective risk management should he reside in the wider community.
Four risk scenarios of particular concern are articulated by Mr Candlish:
a) first, that JK might reoffend in a similar way to the index offending — attacking or threatening residents at his accommodation;
b) second, that he might commit or attempt to commit an armed robbery and inadvertently or deliberately harm someone in the process;
c) third, that he might assault a police officer after being apprehended either for other offending or due to his behaviour; and
d) fourth, that he might attack or harm an intimate partner given his index offending involved someone he described as a girlfriend.
Mr Candlish opines that JK requires a high degree of external monitoring and supervision to assist with managing his risks, and cannot currently be relied upon to harness independent strategies in order to manage his own risk.
In order to address the foregoing matters, Mr Candlish suggested that JK might benefit from further neuropsychological assessment, psychiatric care, monitoring of physical ailments, and support regarding suicidal ideation and self-harm. Due to JK’s psychiatric instability, it is not recommended that he participate in group-based therapy; and though he might benefit from individual treatment, he may not be responsive to it.
Dr Tweedly’s report
Dr Tweedly is a senior clinical neuropsychologist within the outpatient programme at Forensicare’s Ballert Yeram-boo-ee Forensic Mental Health Service. JK was referred to Dr Tweedly by Forensicare’s Serious Offender Consultation Service, in or around November 2021, for neuropsychological assessment. This was due to JK’s diagnoses, history of polysubstance use and lowered intellectual skills, and for the purposes of planning for his eventual release into the community.
Dr Tweedly noted in her report that JK was assessed previously in 2005 and 2008 by psychologist Bernard Healy. On both occasions, Mr Healey assessed JK as falling in the borderline range of intelligence, seventh percentile, with an IQ of 78.
When Dr Tweedly assessed JK in 2021, he again fell within the borderline range, although in the third percentile with an IQ of 71. This places his general intellectual and cognitive abilities moderately to significantly below same-age peers.
Ms van den Bosch’s affidavit
Ms van den Bosch is an assistant manager within the Post-Sentence Branch (“PSB”) of Corrections Victoria. The purpose of her affidavit is to provide the Court with an update on JK’s progress since he commenced on the interim supervision order on 22 June 2022.
In summary, Ms van den Bosch noted that JK was transferred to a secure extended care unit (“the SECU”) upon the expiry of his sentence, and that he has remained there since.
On arrival at the SECU, JK was made subject to an inpatient assessment order under the Mental Health Act 2014 (Vic) (“MHA”), and later that day an inpatient temporary treatment order (“ITTO”), for a period of 28 days. On 22 July 2022, the ITTO was extended for a further 28 days. On 18 August 2022, an inpatient treatment order was made for 26 weeks, which expires om 15 February 2023. These treatment orders were made on the basis that the treatment criteria under the MHA were met in relation to JK, and that his immediate treatment needs could not be catered for in the community.
Ms van den Bosch reported that, at the time of preparing her affidavit on 9 September 2022, there had been nine incident reports made in relation to JK. These incident reports referenced self-harm or attempts at self-harm, and what Ms van den Bosch described as other problematic behaviours (for example, smoking, refusing to participate in urinalysis, agitated and aggressive presentation, making threats, and making inappropriate comments).
Ms van den Bosch concluded her affidavit by noting that there have been two multi-agency care team meetings held in relation to JK, on 11 and 23 August 2022. At these meetings, representatives from Monash Health, Forensicare, the Department of Justice and Community Safety, Alfred Health and the PSB attended to discuss JK’s progress, identify supports for him in both inpatient and community settings, and identify discharge pathways.
Secretary’s submissions
Supervision order is warranted
Ms Coghlan pointed out that this particular type of application is less common than others made for supervision orders under the SOA. This is because the index offending comprised serious violence and the asserted unacceptable risk of further offending was that JK would commit another serious violence offence. In her experience, applications under the SOA have been brought mostly against persons with a history of serious sexual offending as index offences where the asserted unacceptable risk has been of further serious sexual offending. I note that, of the applications of the present type in this Court, the index offences have sometimes involved murder, but some have involved lesser offences.[22]
[22]See, e.g., Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600 (Tinney J) (index offence of murder); Secretary to the Department of Justice and Community Safety v MTE [2020] VSC 243 (Champion J) (index offence of murder) (this matter concerned an interim supervision order); Secretary to the Department of Justice and Community Safety v SJW [2020] VSC 503 (Tinney J) (index offence of murder); Secretary to the Department of Justice and Community Safety v ST [2019] VSC 772 (Tinney J) (index offending involved three counts of attempted murder); and Secretary to the Department of Justice and Community Safety v TA [2021] VSC 530 (Taylor J) (the index offending of intentionally causing serious injury) (the application was refused).
In any event, Ms Coghlan submitted that, given the evidence before the Court, I should be satisfied to a high degree of probability that JK poses an unacceptable risk of committing a serious violence offence if the supervision order is not made and he is in the community.
Ms Coghlan placed particular reliance on the report of Mr Candlish, who opined that JK poses a high risk of committing a further serious violence offence, which may involve the use of a knife. She submitted that the opinions expressed by Mr Candlish about the risk of further offending, and the nature, gravity and likely harm of such offending, were grounded in direct evidence taken from his observations and assessments together with a review of the relevant case notes, reports and historical documents, and also draw upon his expertise as a consultant psychologist. This, in Ms Coghlan’s submission, is cogent evidence capable of satisfying the Court to a high degree of probability that the test in s 14(1) is made out.
Duration of order
As to the duration of the order, the Court may make it last for a period not exceeding 15 years.[23] Here, it was submitted that a four-year period would be appropriate, given the high risk of re-offending, the enduring nature of the risk, JK’s present circumstances and the number of his outstanding treatment needs, which would take considerable time to address.
[23]SOA, s 19(1).
Review of order
Ms Coghlan also pointed out that the Secretary proposes that there be a review of the order within two years to ensure that it is still necessary and appropriate. On such a review, this Court must revoke the supervision order unless satisfied that the offender still poses an unacceptable risk of committing a serious violence offence if a supervision order is not in effect and the offender is in the community.[24]
[24]SOA, s 106(1).
Proposed conditions
Finally, Ms Coghlan submitted that, if a supervision order is made, there should be a number of conditions additional to the core conditions required by the SOA. These proposed conditions mirror the conditions of the interim supervision order, except for proposed condition 6.8, which provides an exception for JK knowingly to have contact with other convicted violent offenders in the context of treatment and rehabilitation programmes and activities.
Proposed condition 6.1 would provide that, when not residing at the SECU or another designated mental health service, JK would be required to reside each night at an address directed by the Post Sentence Authority (“the PSA”). It was pointed out that JK has a complex mental health history, which includes numerous psychiatric admissions in the context of his becoming acutely unwell. Ms Coghlan submitted that this condition is necessary to address the risk of his re-offending and to provide stability and predictability in his accommodation. It was noted that Mr Candlish identified stability as a factor that may decrease JK’s risk of re-offending.
Proposed condition 6.2 would require that, when not residing at the SECU or another designated mental health service, JK is to be present at the address directed by the PSA between 10:00 p.m. and 6:00 a.m., unless otherwise directed by the PSA. It was submitted that this proposed condition is necessary because JK has previously offended at night, and further because Mr Candlish indicated that JK presents as requiring a significant level of external monitoring and supervision.
Proposed condition 6.3 would require that JK be accompanied by an approved person when absent from his residence. This condition was sought to ensure that JK’s risk of re-offending is adequately managed. This, it was submitted, was particularly relevant given that JK has previously breached CBOs and an intervention order. The report of Mr Candlish noted that JK poses a high risk of imminent general violence if in the community, which the Secretary relied upon as justification for this condition. It was submitted that the condition would have a dual effect of providing safety to the community while assisting JK to develop and model pro-social behaviours.
Proposed condition 6.4 would require that JK attend and participate in assessment and rehabilitation programmes as directed. This, it was submitted, was supported by Mr Candlish’s views, who opined that JK would benefit from individual treatment addressing the factors underpinning his offending behaviour.
Proposed conditions 6.5, 6.6 and 6.7 would prohibit JK from consuming alcohol and illicit drugs, and would require him to undertake testing for the same. The index offending occurred in the context of alcohol and substance abuse, and Mr Candlish identified relapse into the same conduct as a factor that may increase JK’s risk of re-offending. This relationship was also reflected in the remarks of the judge who sentenced JK for the index offence, and was acknowledged by JK himself and supported by Dr Tweedly’s report.
Proposed condition 6.8 would require that JK refrain from contacting other violent offenders except when in contact with other residents at the locations listed in proposed condition 6.1, or for the purposes of rehabilitation programmes and activities, or in accordance with written directions of the PSA. This condition is sought on the basis that it would encourage JK to forge more pro-social relationships and supports, and reduce the influence of antisocial peers on him. Reliance was placed on the report of Mr Candlish, in which he notes that JK has developed problematic personality traits in the context of associations with negative peers.
Proposed condition 6.9 would prohibit JK from contacting any victims of his violent offending or their families, with an exception for his mother and stepfather. This condition, it was submitted, would be consistent with s 15(4) of the SOA, in that it would provide for the reasonable concerns of victims.
Proposed condition 6.10 would require JK to be subject to monitoring (including electronic monitoring) of his whereabouts at all times, in order to ensure compliance with the foregoing proposed conditions. Further, it would require that JK be subject to electronic alcohol monitoring if not residing at the SECU or another designated mental health service. This, it was submitted, would be particularly important in view of the limited treatment gains JK has made, and the fact that, in Mr Candlish’s opinion, he has displayed considerable instability in his behaviour and attitude during his prison term.
Proposed conditions 6.11 and 6.12 would require that JK not contravene the Firearms Act 1996 (Vic) or the Control of Weapons Act 1990 (Vic), or possess or use a knife, except in prescribed circumstances. These conditions were sought on the basis of JK’s history of offending involving the use of weapons, and the opinion of Mr Candlish that the commission of a further serious violent offence by him is likely to involve a weapon.
Proposed conditions 7.1 and 7.2 would allow the PSA to give directions to JK in relation to any conditions of the order, and require him to comply with those directions. These conditions were sought to ensure that the PSA is able to attend to the day-to-day management of JK and to tailor conditions as necessary to constitute the minimum interference with JK’s liberty, privacy and freedom of movement as is necessary.
In summary, Ms Coghlan submitted that the foregoing proposed conditions comply with the legislative requirements under the SOA and are appropriate to the particular circumstances of JK’s case.
JK’s submissions
Mr Farrington confirmed that JK does not oppose a supervision order being made in the terms sought by the Secretary.
Counsel explained that JK accepts that there is “an air of inevitability about an order being made”. He emphasised that JK’s only expectation or hope is that the Secretary will co-operate with him so as to assist in his transition, in due course, from the secure environment provided by the SECU to a residence with less restrictive conditions and ultimately to a residence within the community. He also conveyed that JK is aware that he will have to comply with the order to achieve that transition.
Consideration
This application is enabled by extraordinary legislation. As the SOA states in s 1(a) and (b), its purposes 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[.]
That said, the SOA is not as unusual in this country as might be thought, as similar legislation is in place in other States and in the Commonwealth jurisdiction. Moreover, those Acts have survived challenges to their validity in the High Court.[25]
[25]See, e.g., Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Minister for Home Affairs v Benbrika (2021) 388 ALR 1; and, only quite recently, Garlett v Western Australia (2022) 404 ALR 182.
As Gleeson CJ observed in Fardon v Attorney-General (Qld),[26] which concerned a constitutional challenge to the Queensland analogue of what in this State later became the SOA, “difficult questions involving the reconciliation of rights to liberty and concerns for the protection of the community … typically arise in the case of a small number of unfortunate individuals who suffer disorders which make them dangerous to others”. Concerns of that nature are at the heart of these Acts, and the SOA, and may be thought to apply to JK,[27] to some extent and at least for the moment.
[26]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 592[20] (per Gleeson CJ).
[27]Similar remarks were made in the joint judgment of Kiefel CJ, Keane and Steward JJ in respect of the appellant in Garlett v Western Australia (2022) 404 ALR 182 at 185[4].
Nevertheless, it must be understood that, like these other enactments, the SOA allows the drastic step of making of orders that heavily curtail personal liberty — whether by detaining a person in custody, or, as in the present case, by supervising a person in the community with strict conditions — not for a past crime but because of the unacceptable risk that the person will re-offend in a prescribed way in the future.[28] This, as s 1(a) of the SOA makes clear, is to provide for enhanced protection of the community. Despite that clear purpose, and despite the constitutional validity of Acts like the SOA, it is recognised that, at least in so far as they provide for “continuing detention orders”, there is “individual injustice [in the] imprisonment” of persons for “choices that they have not yet made, and offences they have not yet committed”.[29] The same may be said, perhaps with less force, of supervision orders authorised on the same “punitive-preventative”[30] basis.
[28]I do not consider that to recognise this reason in this way is contrary to the injunction in s 14(2)(b)(ii) of the SOA, which provides that, in determining whether an offender poses an unacceptable risk under s 14(1), the Court must not have regard to the likely impact of a supervision order on the offender (see above).
[29]Garlett v Western Australia (2022) 404 ALR 185 at 232-233 [203]-[204] (per Edelman J).
[30]Garlett v Western Australia (2022) 404 ALR 185 at 232[203] (per Edelman J, citing Ashworth and Zedner, Preventative Justice (2014) at 16).
But one of the pre-conditions to making the order sought in the present case is that the unacceptable risk of re-offending in the prescribed way must be by way of a “serious violence offence”, as defined. Despite the reach of the SOA, some of the “risk scenarios” (or parts of them) in which Mr Candlish considered JK might engage, in my opinion, involve offending that would not appear to meet the definition of a serious violence offence. In JK’s circumstances, the potentially relevant serious violence offences listed in Schedule 2 of the SOA are intentionally causing serious injury and recklessly causing serious injury.[31] But the commission of an armed robbery in which JK inadvertently stabbed another, an assault of a police officer, or causing physical harm to another by dangerous driving, at least when described in the ways Mr Candlish described these scenarios, could not amount to offences of intentionally causing serious injury, recklessly causing serious injury or any other offence listed in Schedule 2. If nothing more than these risk scenarios were offered by an expert and justified by the evidence, the supervision order could not be made.
[31]Contrary to s 16 and s 17 of the Crimes Act 1958 (Vic), respectively. Other, more serious, examples of serious violence offences listed in Schedule 2 are offences of intentionally and recklessly causing serious injury in circumstances of gross violence (contrary to ss 15A and 15B of the Crimes Act 1958 (Vic)), homicide offences (such as murder and manslaughter, both contrary to common law) and attempted murder (contrary to s 321M of the Crimes Act 1958 (Vic)).
That, however, is not the extent of the evidence or the opinions given. Some of the risk scenarios offered by Mr Candlish are suggestive of offences falling within Schedule 2. In particular, Mr Candlish considered that
a) JK “might react angrily towards co-residents of a housing estate” and, in those circumstances, he “might use a weapon such as a knife to attack a person he is in conflict with, or whom he perceives in a distorted or hostile manner” (which was “most likely to occur after a period of substance abuse and treatment non-compliance”); or
b) he “might deliberately stab [another in the course of a robbery] in an attempt to achieve his offending goals or due to agitation and anger”; or
c) he “might assault an intimate partner” and, in this context, “there is potential for him to use a knife to injure a partner during a period of conflict, psychiatric instability and substance abuse as well as medication non-compliance”.
While it is not possible to be precise about it, I think that these scenarios involve behaviour that (depending upon the level of harm actually caused and the requisite mens rea) might well result in or amount to offences of intentionally causing serious injury or recklessly causing serious injury. Accordingly, they represent behaviour capable of falling within the definition of serious violence offences and, therefore, also within the statutory test that must be met before a supervision order could be made. While these situations do not, to my mind, suggest conduct quite as grave as the index offence, they do represent quite serious instances of possible re-offending giving rise to the potential for significant harm to the community. Moreover, I am persuaded that these are realistic scenarios given the particular matters of relevance appertaining to JK’s past history referred to and relied on by Mr Candlish in forming his views.
The index offence was grave and disturbing. JK stabbed LM on multiple occasions in terrifying circumstances. While, at that time, he was afflicted with psychosis and was under the influence of alcohol and illicit drugs, it is troubling that, in the sentencing judge’s view, JK realised that his failure to take his anti-psychotic medication in the week before, and his ingestion of illicit drugs and alcohol, would result in his relapse into psychosis.
When the circumstances of and surrounding that offence are combined with JK’s history of serious mental illness, his psychological disorder, his past resistance to taking anti-psychotic medication, his illicit drug use, his other violent offending (including his use of weapons), his bouts of poor behaviour in custody, his treatment needs, and the opinions of Mr Candlish (which were not controverted by any other expert evidence), and having regard to JK’s lack of opposition to the proposed order, I am satisfied, to a high degree of probability, that there is an unacceptable risk that JK would commit a serious violence offence (similar in nature to, albeit not necessarily as grave as, the index offence) if the supervision order were not made while he remained in the community.
Accordingly, and bearing in mind the significance of taking such a step, I am persuaded that it is appropriate to make a supervision order in respect of JK.
I am also satisfied that it is appropriate that the order be in place for four years. While predictions of this kind are fraught, I think it is clear enough that it will take a good deal of time and treatment for the risks JK presents to abate to a level that is not unacceptable. That there will be a review of the order within two years allows for the possibility that JK will improve significantly in a shorter period than might be expected.
The proposed conditions (beyond the core conditions) that will form part of the order are also appropriate. Those conditions constitute the minimum interference with JK’s liberty, privacy and freedom of movement necessary to ensure the purposes of those conditions, and they are reasonably related to the gravity of the risk of his re-offending.
While it is expressed to be a secondary purpose, s 1(b) of the SOA makes it plain that a purpose of the SOA is to facilitate the treatment and rehabilitation of the offender. As we have seen, one of JK’s expectations or hopes is that the Secretary will assist in his treatment and rehabilitation so that, in time, he may transition from secure accommodation to living in the community. That is, in my view, a perfectly reasonable expectation. It is the experience of the courts involved in sentencing for criminal offending that an effective and humane way in which to achieve protection of the community from offenders, especially in the longer term, is to make considered attempts at treatment and rehabilitation. I trust that JK’s expectations and hopes of assistance from the Secretary in respect of his treatment and rehabilitation under the order will be realised. Equally, I hope that JK complies with the order so as to facilitate the Secretary’s reasonably expected assistance of him.
As I see it, critical to JK’s risk of re-offending in a serious way — and necessary to his rehabilitation as well — will be, among other things, whether he continues to take his prescribed anti-psychotic medication and refrains from illicit drug use, and whether he has reasonable supports in the community. If, in time, his mental illness is controlled with a suitable medication and treatment regime (with which he complies), if he becomes free of the ravages of illicit drug use, and if he is provided with the necessary community supports, it is difficult to see how a supervision order could be maintained, notwithstanding his other difficulties and his history of violent offending.
Order
Accordingly, I order that:[32]
[32]The order actually made takes a slightly different form. Further, instead of random letters or other devices, the order employs JK’s name, the names of others, and the title and address of JK’s accommodation.
1. JK be subject to a supervision order under the Serious Offenders Act 2018 (Vic) (“the Act”).
2. This order commences on 6 October 2022.
3. The period for which this for which this order remains in force is until 5 October 2026.
4. The latest date by which the Secretary to the Department of Justice and Community Safety (“the Secretary”) must apply for a review of the order, under Part 8 of the Act, is 5 October 2024.
Conditions of the supervision order
5. Core conditions:
Pursuant to s 31 of the Act, the core conditions of this supervision order are that, during the period of the order:
5.1JK must not commit a serious sex offence in Victoria or elsewhere.
5.2JK must not commit a serious violence offence in Victoria or elsewhere.
5.3JK must not commit an offence referred to in Schedule 3 of the Act in Victoria or elsewhere.
5.4If the Court requires JK to reside at a residential facility or the Post Sentence Authority (“the PSA”) directs JK to reside at a residential facility, JK must not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility or visitors to the facility.
5.5If the Court requires JK to reside at a residential facility or the PSA directs JK to reside at a residential facility, JK must obey all instructions given by a supervision officer or specified officer under s 183 of the Act.
5.6If the Court requires JK to reside at a residential treatment facility, JK must not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility or visitors to the facility.
5.7If the Court requires JK to reside at a residential treatment facility, JK must obey all instructions given by a supervision officer or specified officer under section 183 of the Act.
5.8JK must not engage in any behaviour or conduct that threatens the safety of any person (including JK).
5.9JK must attend at any place as directed by the PSA for the purpose of administering the conditions of the order.
5.10JK must attend any place directed by the PSA for the purpose of making assessments required by the Court, the Secretary or the Director of Public Prosecutions for the purposes of the Act (including a persona examination by a medical expert for the purpose of providing the Court with a report to assist it to determine the need for or the form of any of the conditions of the order).
5.11JK must report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of s 31(12) of the Act.
5.12JK must notify the PSA of any change of employment or new employment (whether paid or unpaid) at least two clear days before commencing the changed or new employment.
5.13JK must not leave Victoria except with the permissions of the PSA granted either generally or in relation to a particular case.
5.14JK must comply with a direction given by the PSA under the emergency power in s 142 of the Act.
5.15JK must obey all instructions given by a community corrections officer or a specified officer under s 209 of the Act.
6. Additional conditions under ss 34, 35 and 38 of Part 3 of the Act:
Pursuant to ss 34, 35 and 38 of the Act, the following additional conditions apply to the supervision order:
6.1JK, when not residing at the secure extended care unit (“the SECU”) or another designated mental health service pursuant to an order under the Mental Health Act 2014 (Vic) (“the MHA”), must reside each night at an address as directed by the Post Sentence Authority.
6.2JK, when not residing at the SECU or another designated mental health service pursuant to an order under the MHA, must be present at the address as directed by the PSA between 10:00pm and 6:00am, unless otherwise directed by the PSA.
6.3JK, when not residing at the SECU, another designated mental health service pursuant to an order under the MHA or another address as directed by the PSA, must not leave and/or be absent from that address except in the company of a person approved by a General Manager of Community Correctional Services, unless otherwise directed by the PSA.
6.4JK must attend for assessment for treatment or rehabilitation programmes or activities, and participate in such programmes or activities, as instructed by a supervision officer.
6.5JK must not consume alcohol except in accordance with the written directions of the PSA.
6.6JK must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully or abuse drugs of any kind.
6.7JK must submit to breath testing, urinalysis or other test procedures (other than blood tests) approved by the Secretary or the Chief Commissioner of Police as the case may be for the detection of alcohol or drug use, at the direction of (a) an officer who has reasonable grounds to suspect that JK has breached condition 6.5 and/or 6.6 of the supervision order by consuming alcohol and/or drugs; or (b) in the event that JK is not residing at a residential facility or residential treatment facility, a police officer who has reasonable grounds to suspect that JK has breached condition 6.5 and/or 6.6 of the supervision order by consuming alcohol and/or drugs.
6.8JK must not knowingly have contact with any convicted violent offender, including (a) any form of physical contact; (b) any form of oral communication (whether face to face, by telephone or by use of the internet); or (c) any form of written communication (whether electronic or otherwise); except for (d) contact with other residents at the SECU or another designated mental health service under the MHA, whilst he is residing at that location; (e) the purposes of treatment and rehabilitation programmes and activities; or (f) contact in accordance with the written directions of the PSA.
6.9JK must not knowingly have any contact with (a) the victims of any violent offences committed by him; or (b) the families of those victims, including (c) any form of physical contact; (d) any form of oral communication (whether face to face, by telephone or by use of the internet); or (e) any form of written communication (whether electronic or otherwise), except for (f) his mother; (g) his step-father; or (h) any contact in accordance with the written directions of the PSA.
6.10JK must (a) comply with monitoring as to whereabouts (including electronic monitoring); and (b) when not residing at the SECU or another designated mental health service pursuant to an order under the MHA, comply with electronic alcohol monitoring, unless otherwise directed by the PSA and, pursuant to s 35(2) of the Act, JK must (c) comply with any direction given by the PSA relating to the electronic monitoring; (d) for 24 hours of each day, be electronically monitored and wear an electronic monitoring device or electronic monitoring devices fitted to JK at the direction of the PSA; (e) ensure that any electronic monitoring device fitted to JK remains operational (including being charged) at all times; (f) not tamper with, damage, disable or remove any electronic monitoring device or equipment used for the electronic monitoring; and (g) accept any visit by the Secretary to the place where JK resides, at any reasonable time and for any purpose including to install, repair, fit or remove any electronic monitoring device or equipment used for the electronic monitoring.
6.11JK must not contravene the Firearms Act 1996 (Vic) and the Control of Weapons Act 1990 (Vic).
6.12JK must not obtain, possess, carry or use any knife except (a) kitchen knives for the purpose of preparing, cooking and eating food which must only be used and stored in the kitchen of the residence where he is living; or (b) in accordance with the written directions of the Post Sentence Authority.
7. Other additional conditions under s 36 of the Act:
Pursuant to s 36 of the Act, the following conditions apply to the supervision order:
7.1Pursuant to s 36(1) of the Act, the PSA is authorised to give directions to JK in relation to the operation of any condition of this order.
7.2Pursuant to s 36(7) of the Act, JK must comply with any direction given under an authorisation referred to in section 36 of the Act.
8. Other matters:
Pursuant to s 279 of the Act, the Court is satisfied that it is in the public interest to order that any information before the Court in any proceedings under the Act that might enable JK or his whereabouts to be identified must not be published until:
8.1the next review of the supervision order is heard and determined;
8.2the expiry or revocation of the supervision order; or
8.3further order of the Court,
whichever occurs earlier.
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