Secretary to the Department of Justice and Community Safety v OKH (No 3)
[2024] VSC 774
•11 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0151
| IN THE MATTER of the Serious Offenders Act 2018 (Vic) | |
| AND | |
| IN THE MATTER of an application under section 99(1) of the Serious Offenders Act 2018 (Vic) for a review of a supervision order | |
| BETWEEN | |
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| v | |
| OKH | Respondent |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 December 2024 |
DATE OF JUDGMENT: | 11 December 2024 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v OKH (No 3) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 774 |
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CRIMINAL LAW – Supervision order – Review – Index offence of murder – Order confirmed – Curfew condition removed – Non-publication order made – Serious Offenders Act 2018 (Vic), ss 14, 27, 99, 106, 110, 139, 279, 280.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | P Holdenson KC | Russell Kennedy |
| For the respondent | C Tom | Victoria Legal Aid |
HIS HONOUR:
A. Introduction
The respondent (“OKH”)[1] is currently subject to a supervision order made on 20 December 2023 under the Serious Offenders Act 2018 (Vic), which was varied on 24 June 2024. The order remains in force until 19 December 2025.
[1]A pseudonym has been used to protect the identity of the respondent: see pars 20, 48 below.
On 25 October 2024, the Secretary to the Department of Justice and Community Safety (“the Secretary”) filed a notice of application for review of OKH’s supervision order.[2]
[2]Pursuant to s 99 of the Serious Offenders Act.
The Secretary sought confirmation of the supervision order on substantially the same conditions, excluding the condition requiring OKH to be present at his residence between the hours of 11.00pm and 6.00am each day (“the Curfew Condition”).[3]
[3]The continued inclusion of this condition was initially sought, but the Secretary’s position changed the day before the hearing.
OKH did not oppose the confirmation of the supervision order. However, he did oppose the continued inclusion of a condition requiring him to be subject to electronic monitoring for 24 hours each day (“the Electronic Monitoring Condition”).
For the reasons to follow, the supervision order will be confirmed on substantially the same conditions, excluding the Curfew Condition.
B. Background
The background to, and history of, the supervision order is set out in Jane Dixon J’s reasons published on 4 October 2023[4] and 30 January 2024.[5]
[4]Secretary to the Department of Justice and Community Safety v OKH [2023] VSC 580, [19]-[25].
[5]Secretary to the Department of Justice and Community Safety v OKH (No 2) [2024] VSC 10, [1]-[7].
In summary, OKH is 40 years old and has a mild intellectual disability and a long history of substance misuse. On 11 March 2004, when OKH was 19 years old, he stabbed a taxi driver multiple times while adversely affected by drugs, which resulted in the taxi driver’s death.
On 11 November 2005, OKH was sentenced in this court to 19 years’ imprisonment for murder, and 2 years for making threats to kill, with 1 year of the latter charge to be served concurrently, resulting in a total effective sentence of 20 years’ imprisonment and a non-parole period of 15 years’ imprisonment.
On 11 July 2023, in anticipation of OKH’s release from custody, the Secretary filed applications for an interim supervision order, a supervision order and a declaration that a condition of the proposed interim supervision order and supervision order was to be a restrictive condition pursuant to section 40 of the Serious Offenders Act.
On 26 September 2023, the Secretary’s application for an interim supervision order was granted. The order commenced on 10 October 2023 upon OKH’s release from custody.
On 20 December 2023, Jane Dixon J made a supervision order commencing on the same day for a period of 2 years. A temporary accompaniment condition was included pursuant to section 42 of the Serious Offenders Act which was due to expire on 19 June 2024 or further order.
On 24 June 2024, the Secretary made an urgent application to review the conditions of OKH’s supervision order due to concerns regarding OKH’s mental health.[6] Very broadly, the evidence before the court on that occasion was that OKH had experienced a deterioration in his mental health and appeared to have been suffering from auditory hallucinations. In response, the Post Sentence Authority had issued an emergency direction requiring OKH to be accompanied from 6.00am to 11.00pm when outside STEP House. That direction was due to expire at 7.00pm on 24 June 2024. As a result of the deterioration in OKH’s mental health, his planned transition from STEP House to another forensic residential program (“the Residential Program”) was delayed.
[6]Pursuant to s 110(1) of the Serious Offenders Act.
At the hearing on 24 June 2024, a further temporary accompaniment condition was ordered which was due to expire at 11.59pm on 22 July 2024 or further order.[7]
[7]The evidence before the court on that occasion was that an accompaniment condition was required in order for OKH to continue residing at STEP House.
On 10 July 2024, OKH transitioned from STEP House and commenced residing at the Residential Program on a permanent basis.
The Secretary did not seek any further order from the court on the expiry of the temporary accompaniment condition.
C. Legal principles
On a review of a supervision order, the court must revoke the order unless satisfied that the offender still poses an unacceptable risk of committing a serious sex offence or serious violence offence if the supervision order is not in effect and the offender is in the community.[8] Unless the court revokes the order or an application for a detention order is made, the supervision order must be confirmed.[9]
[8]Serious Offenders Act, s 106(1). See also Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 363 [5], 391 [117], 394 [130] (Redlich, Osborn and Priest JJA) regarding the interpretation of “unacceptable risk”. That case was decided in the context of the now-repealed Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). The interpretation provided has been adopted in decisions under the existing legislative regime.
[9]Ibid, s 106(4).
If the court confirms the order, it may vary, add or remove any condition, or vary the maximum intervals between applications for review.[10]
[10]Ibid, s 106(5).
The court must ensure that any conditions 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 are reasonably related to the gravity of the risk of the offender re-offending.[11] The primary purpose of the conditions of a supervision order is to reduce the risk of the offender re-offending by committing a serious sex offence, serious violence offence or an offence referred to in Schedule 3.[12] The secondary purpose of the conditions of a supervision order is to provide for the reasonable concerns of the victim or victims of the offender in relation to their own safety and welfare.[13]
[11]Ibid, ss 27(4), 106(6).
[12]Ibid, s 27(1).
[13]Ibid, s 27(2).
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.[14] 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.[15] In determining whether an offender poses an unacceptable risk, the court must not have regard to the means of managing the risk or the impact of a supervision order on the offender.[16]
[14]Ibid, ss 14(4), 106(3).
[15]Ibid, ss 14(3), 106(3).
[16]Ibid, ss 14(2)(b), 106(3).
In addition, the court must, at the time of the review, review any non-publication order made pursuant to section 279 to determine whether such an order should continue, having regard to the matters specified in section 280.[17]
[17]Ibid, s 99(4).
D. Evidence
In support of the application, the Secretary tendered:
(1)A progress report of Dr Bea Raymond (“Raymond”), consultant forensic psychologist, dated 11 September 2024.
(2)A chronology of relevant events as at 22 November 2024.
Raymond gave evidence at the hearing largely confirmatory of her progress report. She acknowledged OKH’s progress and that providing him further autonomy on an incremental basis was in his rehabilitative interests. In Raymond’s assessment, the most likely scenario in which OKH would commit a serious violence offence remains unchanged with such a risk being likely to arise in the context of substance abuse, violence against males and the use of a weapon. With reference to the events in June 2024,[18] Raymond noted that it is not uncommon for a person in OKH’s position to have lapses in substance abuse but that she was generally positive about OKH’s prospects of continued rehabilitation.
[18]See par 12 above.
Raymond gave evidence that it was important for the non-publication order presently in place to continue as publication of OKH’s identity or his location could negatively impact his rehabilitation.
Evidence was also given on behalf of the Secretary by a manager of the applications team within the post-sentence branch of Corrections Victoria (“the Manager”). In addition to describing what is usually involved in electronic monitoring, including the ability for persons subject to electronic monitoring to charge their monitoring device on a body worn charger, she gave specific evidence in relation to OKH’s circumstances.
Significantly, the evidence was that it was expected that if OKH continued on the same trajectory and complied with the conditions of his supervision order, then a recommendation would be made to the Post Sentence Authority in approximately 6 months’ time that OKH’s electronic monitoring be discontinued as part of the gradual “stepping down” of the restrictions imposed on him. In this regard, the Manager gave evidence that it was important that OKH’s electronic monitoring cease before 19 December 2025, that is, before he is entirely relieved of the conditions imposed on him, to assist with the transition upon the expiry of his supervision order.
The Secretary’s position was that, presently, there was no other means by which OKH could be satisfactorily electronically monitored in a manner that would provide Corrections Victoria with historical data regarding OKH’s movements. This evidence was not challenged by OKH.
Ongoing electronic monitoring was stated to be necessary notwithstanding OKH’s compliance with the conditions of his supervision order over the last 6 months or so. The Manager explained that the ability of OKH’s case manager to review data concerning OKH’s whereabouts in the preceding week before each weekly supervision session with OKH was critical. The Manager stated that the benefits of such monitoring included the ability of OKH’s case manager to identify any risks to which OKH was being exposed, and also to provide OKH with a proper understanding of those risks and how to deal with them by employing appropriate risk mitigation strategies.
OKH did not call any evidence.
E. Submissions
E.1 Secretary’s submissions
The Secretary submitted that the protection of the community would be best served by OKH remaining subject to a supervision order. In this regard, the Secretary referred to Raymond’s assessment that OKH would pose a moderate risk of committing a serious violence offence if he were in the community and not subject to a supervision order.
The Secretary further submitted that the conditions as sought complied with section 27 of the Serious Offenders Act and did not offend the requirement of minimum interference with OKH’s liberty, privacy or freedom of movement as necessary in the circumstances. In addition it was submitted that the conditions sought were reasonably related to the gravity of the risk of OKH re-offending.
The conditions sought reflected the conditions of the supervision order made on 20 December 2023, as varied on 24 June 2024, save for the following alterations:
(1)OKH’s place of residence was varied from STEP House to the Residential Program.
(2)The temporary accompaniment condition which expired at 11.59pm on 22 July 2024 was removed.
(3)The Curfew Condition was removed.
The Secretary submitted that the balance of the conditions was necessary to contain the risk posed by OKH as detailed by Raymond in the progress report. However, the Secretary did not seek that any of the conditions be declared restrictive conditions.[19]
[19]Certain core conditions are restrictive conditions by operation of the Serious Offenders Act: see paragraph (a) of the definition of “restrictive condition” in s 3 of the Act.
In respect to the Electronic Monitoring Condition, the Secretary submitted that pursuant to section 139 of the Serious Offenders Act, the Post Sentence Authority should aim to ensure that any directions it gives to an offender 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 are reasonably related to the gravity of the risk of the offender re-offending. In this regard, it was submitted that the Post Sentence Authority would be required to consider the requirements of section 139 of the Act when considering any recommendation to discontinue OKH’s electronic monitoring as part of the gradual stepping down of the restrictions imposed on him.
The Secretary neither consented to nor opposed the making of a non-publication order in respect of OKH’s identity or location.
E.2 OKH’s submissions
In response, OKH did not oppose the confirmation of the supervision order. However, as outlined above, he did oppose the inclusion of the Electronic Monitoring Condition.
OKH instead proposed that he be subject to monitoring in the form of telephone calls by a Community Corrections officer or a Corrections Victoria electronic monitoring centre operator, or both. In addition, OKH proposed that he be subject to any other form of monitoring as to his whereabouts (excluding electronic monitoring), as directed by the Post Sentence Authority.
In support of the exclusion of the Electronic Monitoring Condition, OKH submitted:
(1)The Electronic Monitoring Condition did impose, and would impose, a significant limitation on OKH’s liberty, privacy and freedom.[20]
(2)The other conditions imposed on OKH and therapeutic interventions adequately guarded against the risk of OKH perpetrating a serious violence offence.
(3)OKH has demonstrated positive compliance and engagement with his supervision order.
(4)The Electronic Monitoring Condition was no longer necessary to ensure that OKH had suitable accommodation. In this regard it was noted that the Electronic Monitoring Condition was a prerequisite to OKH residing at STEP House, whereas his residence at the Residential Program was not contingent on any particular conditions forming part of his supervision order.
[20]In this regard, reference was made to YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 419 ALR 457, 477-478 [60] (Gageler CJ, Gordon, Gleeson and Jagot JJ).
In addition, OKH sought the continuation of the existing non-publication order in respect to any information that might enable him or his whereabouts to be identified.
F. Consideration
I am satisfied on the evidence presently before the court that OKH would pose an unacceptable risk of committing a serious violence offence if he was not subject to a supervision order. I am therefore obliged to confirm OKH’s supervision order.
In this regard, particular reliance has been placed on Raymond’s evidence that OKH poses a moderate risk of committing a serious violence offence if in the community and not subject to a supervision order. Notably, Raymond identified that serious violence offence as being more likely to be the offence of causing serious injury intentionally or recklessly.[21]
[21]Serious Offenders Act, sch 2(3)(e) and (f). See also Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 394 [130] (Redlich, Osborn and Priest JJA).
Raymond’s evidence was that OKH’s violence appears to have been perpetrated against a backdrop of instability and disinhibition associated with substance abuse. She further observed that OKH has demonstrated anti-social attitudes in the past, and his cognitive limitations continue to undermine his use of consequential thinking.
While I accept Raymond’s evidence that OKH’s risk of violence will likely decrease over the next 12 months, I cannot be satisfied that the risk currently posed by OKH if he was not subject to a supervision order would be acceptable.
In respect to the Curfew Condition, in circumstances where it is not pressed by the Secretary, it will be removed from OKH’s supervision order.[22]
[22]For completeness, the conditions of the Residential Program include a curfew from 11.00pm to 7.00am each day. This is enforced with the assistance of an alarm system on the doors at the Residential Program to enable monitoring and detection of any breach of the curfew.
As for the Electronic Monitoring Condition, I am satisfied that the continuation of such a condition is required and would constitute the minimum interference with OKH’s liberty, privacy or freedom of movement that is necessary in the circumstances. I am also satisfied that the Electronic Monitoring Condition is reasonably related to the gravity of the risk of OKH re-offending.
Although the Electronic Monitoring Condition is no longer a prerequisite for OKH’s accommodation, and OKH has demonstrated compliance with the conditions of his existing supervision order for the last 6 months or so, the evidence demonstrates that weekly therapeutic interventions currently in place are required on an ongoing basis.[23] Further, I accept the Manager’s evidence that such interventions are materially assisted and enhanced by the ability of OKH’s case manager to discuss OKH’s whereabouts in the preceding week with him.[24]
[23]This evidence was not in dispute.
[24]See par 27 above.
As has recently been observed by a majority of the High Court,[25] the detriment of being required to wear an electronic monitoring device is significant, both from physical and psychological perspectives. Despite this, in the particular circumstances of this case, the Electronic Monitoring Condition should continue.
[25]YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 419 ALR 457, 477-478 [57]-[62] (Gageler CJ, Gordon, Gleeson and Jagot JJ).
In reaching this conclusion, I have accepted the considerable force of OKH’s submission that removing the Electronic Monitoring Condition would assist with his rehabilitation by enabling him to build trust with others and develop skills to manage risk situations.[26] This submission was entirely consistent with Raymond’s evidence. So much was effectively acknowledged by the Manager’s evidence that a recommendation would be made to the Post Sentence Authority to desist with electronic monitoring in approximately 6 months’ time.[27] Indeed, it is fair to say that this evidence, together with the Secretary’s submission regarding the operation of section 139 of the Serious Offenders Act,[28] was pivotal in the determination that the Electronic Monitoring Condition should continue.
[26]See also Secretary to the Department of Justice and Community Safety v OKH (No 2) [2024] VSC 10, [122] (Jane Dixon J).
[27]See par 25 above.
[28]See par 33 above.
Finally, having had regard to the evidence adduced today, and the matters listed in section 280 of the Serious Offenders Act, I am satisfied that, pursuant to section 279 of the Act, it is in the public interest to make the non-publication order sought to promote OKH’s rehabilitation in the community. Such a finding is consistent with earlier reasons.[29] The non-publication order will expire on the expiry or revocation of OKH’s supervision order or further order of this court.
[29]Secretary to the Department of Justice and Community Safety v OKH (No 2) [2024] VSC 10, [116]-[117], [135]; Secretary to the Department of Justice and Community Safety v OKH [2023] VSC 580, [81] (Jane Dixon J).
G. Conclusion
Accordingly, orders will be made substantially in the form sought by the Secretary.
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