Secretary to the Department of Justice and Community Safety v Norman (a pseudonym)

[2019] VCC 2130

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Applicant
v
RON NORMAN (A PSEUDONYM)	Respondent

---

JUDGE:	Judge Pillay
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2019
DATE OF RULING:	17 December 2019
CASE MAY BE CITED AS:	Secretary to the Department of Justice and Community Safety v Norman (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 2130

REASONS FOR RULING
---

Subject:  Supervision Order Review

Catchwords:             Review of supervision order – restriction of gambling – whether there is
unacceptable risk to the community

Legislation Cited:     Serious Offenders Act 2018

Cases Cited:Secretary to the Department of Justice and Community Safety v ST [2019] VSC 722; Nigro v Secretary to the Department of Justice 41 VR 359; ARM v Secretary to the Department of Justice 29 VR 472

Ruling:  Application granted.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Holmes	Minter Ellison Lawyers
For the Respondent	Mr Terry	Valos Black & Associates

HIS HONOUR:

1 This matter came before the Court on 13 December 2019. It is an application pursuant to section 110 of the Serious Offenders Act 2018 (Vic) to review conditions of a Supervision Order made on 22 May 2019 by this Court. Particularly to add 2 conditions to restrict the Respondent from gambling.

2       The basis of the application was the alleged changes in behaviours of the Respondent since 22 May 2019.  Ms Holmes appeared for the Applicant and Mr Terry for the Respondent.  Prior to the matter coming on the Applicant had provided the Court and the Respondent with a copy of the proposed new conditions to be added to the extant order.  At the hearing Mr Terry confirmed that his client did not oppose the making of orders adding the additional conditions.

3       I informed the parties that I had read the material filed with the Applicant’s application and was satisfied that there was a proper basis for the making of the orders sought.  I informed the parties that in accordance with the Act I would publish my reasons. These are those reasons.

Facts

4       The Applicant filed a chronology in this matter at the time of the orders made on 22 May 2019.  I do not need to repeat that chronology.  It set out the Respondent’s antecedent criminal history, his background psychological history and the details as to the previous supervision orders made.

5       In addition to that material a further report of Dr Karen Owen, a clinical and forensic psychologist, dated 23 July 2019, was filed.  That provided medical opinion as to the events which have occurred subsequent to the making of the Supervision Order on 22 May 2019.

6       Those events are, in short compass, instances between 29 May 2019 and 1 June 2019 of the Respondent attending at Crown Casino. Dr Owen’s report sought to put in context the recent attendances at Crown Casino and the Respondent’s offence risk.  To understand the importance of this assessment I consider the history of the facts surrounding the index offending relevant.  In that instance the Respondent had been gambling at Crown Casino when, after losing, he consumed drugs and alcohol, then he abducted a prostitute at knife point in his car, repeatedly beat her and then kicked her out of the car while it was in motion.

7       Gambling for the Respondent has been problematic, it has been said to be a maladaptive coping mechanism which often leads to further maladaptive coping strategies: drugs and alcohol.

8       Dr Owen makes the point at [44] that gambling leads to a change in dynamic risk factors, such that other risk factors come into play, such as alcohol and drugs, so that gambling can be seen as a precursor to offending.

9       In summary, Dr Owen views the gambling behaviour as a worrying change in the dynamic risk factors surrounding the Respondent. She views his recent behaviour as a risk escalation.

The law

10      Section 1 of the Act reads in part as follows:

“The purposes of this Act are—

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

secondly, to facilitate the treatment and rehabilitation of those offenders…”

11      The Respondent was an eligible offender for a supervision order application under s8 of the Act by virtue of the fact that he was subject to an interim supervision order.

12      In Secretary to the Department of Justice and Community Safety v ST,  a decision of His Honour Tinney J of the Supreme Court, His Honour set out the relevant legislation and current authority at paragraphs [20-34]. I will not repeat those paragraphs in total as they are well understood principles in these matters. I have however set out the leading principles from His Honour’s judgment:

Unacceptable Risk

22  “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 (‘Nigro’)…”

25  The Court held:

“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 circumstances, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence.”

26  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.”

27  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…”

34   In ARM v Secretary to the Department of Justice, the Court of Appeal considered the making of an extended supervision order under the previous Serious Sex Offenders Monitoring Act 2005. In respect of the provision of that Act dictating a 15 year maximum period for an order, the Court stated:

“It is implicit in s 14, and both sides accepted, that if the court is not satisfied to a high degree of probability that the offender will remain likely to commit a relevant offence for the whole 15 year period referred to in s 14, the period of the order should be set at such lesser period as for which the court is satisfied to a high degree of probability that the offender will be likely to commit a relevant offence unless subjected to the program.”

Analysis

13      Applying the (uncontradicted) expert evidence, in the context of the known history of the Respondent, I find that he poses an unacceptable risk to the community without the imposition of the further conditions.  I find that he needs ongoing monitoring and restriction of his gambling behaviour.

14      In making this finding I take into account the gravity and seriousness of the harm which would be caused if he did re-offend.  I consider that to be undoubtedly serious psychological and physical harm given his past offending. In considering whether the proposed order is the minimum required to protect the community balanced against the Respondent’s right to liberty I am satisfied that the proposed order with its additional conditions meets this balance.  I note Dr Owen’s view that the Respondent has had a large amount (unprecedented in her view) of treatment yet it was not able to stop the Respondent attending at Crown Casino within a week of the gambling restriction being lifted.  Implicitly she seemed to suggest this was a sign of heightened risk.

15      For the above reasons I will make the orders sought.

---