Secretary to the Department of Justice and Community Safety v P a M
[2019] VSC 657
•26 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2019 0203
IN THE MATTER OF an application under s 87 Serious Offenders Act 2018
Between:
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| and | |
| P A M | Respondent |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 September 2019 |
DATE OF JUDGMENT: | 26 September 2019 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v P A M |
MEDIUM NEUTRAL CITATION: | [2019] VSC 657 |
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PUBLIC LAW – Application by Secretary for emergency detention order – Respondent subject to a supervision order – Whether the Court can be satisfied that the matters alleged would, if proved, establish that because of altered circumstances the respondent posed an imminent risk of committing a serious violence offence if the emergency detention order is not made – Consideration of risk presented by the respondent – Suitability of other facilities for the management of risk – Emergency detention order made – Serious Offenders Act 2018 – Serious Sex Offenders (Detention and Supervision) Act 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Holdenson QC | Victorian Government Solicitor’s Office |
| For the Respondent | Mr A Malik | Stary Norton Halphen |
HER HONOUR:
On 20 September 2019, the Court made an Emergency Detention Order under s 89 of the Serious Offenders Act 2018 (‘the Act’).
The order was made on the application of the Secretary to the Department of Justice and Community Safety (‘the Secretary’) under s 87 of the Act. It was made in the absence of the respondent as is permitted by s 88 of the Act.
In determining the application, the Court had regard to the matters specified in s 89(2) of the Act. In particular, the Court has received and considered a supervision order progress report and a letter of advice of Dr [redacted] dated 26 October 2017 and 20 September 2019, respectively. These reports satisfy the requirements of ss 89(2)(a) and 89(2)(b) of the Act, being reports filed in relation to the application.
In addition, the Court has obtained and considered an affidavit of Ms Sarah Miles, Assistant Director of the Post Sentence Branch of Corrections Victoria, sworn 20 September 2019, setting out the relevant background to the application and attaching key documents.[1] The affidavit satisfies the requirements of s 89(2)(c) of the Act.
[1]The affidavit became ‘Exhibit 1’.
The Court also had regard to the required matters referred to under s 89(3) of the Act, including (a) the means of managing the imminent risk referred to in s 89(1), and (b) the likely impact of an emergency detention order on the offender.
Counsel for the Secretary, Mr Holdenson QC outlined the basis of the application and supporting materials to the Court.
The respondent had been the subject of two supervision orders made under the Serious Sexual Offenders (Detention and Supervision) Act 2009 (‘the 2009 Act’). An interim supervision order was made by Judge Quin of the County Court on 30 October 2015 after being satisfied that it was in the public interest to make the order, and that there was an unacceptable risk of the respondent committing a serious sexual offence under the schedule to that Act.
A final supervision order was made by Judge Quin on 19 February 2016. That order was for two years.
The supervision order was varied on 31 May 2017 to include a restrictive condition prohibiting the respondent from using prohibited drugs, obtaining drugs unlawfully or abusing drugs of any kind.
On 29 January 2018, a further interim supervision order was made. On 28 May 2018 a further supervision order was made for a period of four years and that order continues to operate.[2]
[2]Exhibit 1, affidavit exhibit ‘SM-5’.
Since the making of the supervision order the respondent had resided at [redacted]. Whilst residing at [redacted] the applicant served some short sentences of imprisonment for breaches of his supervision order.
Since early September 2019, the applicant’s conduct at [redacted] has significantly deteriorated, prompting the current application. The altered circumstances relied on by the applicant in support of the application for the emergency detention order include the following:
On 2 September 2019, the respondent was released from custody to [redacted]. Since then, the respondent has ceased taking his Methadone without a reduction plan which resulted in him exhibiting heightened behaviour whilst on an outing on 11 September 2019.
On 12 September 2019, the respondent complained to Mr [redacted], the respondent’s Area Mental Health Service (‘AMHS’) Clinician, that he was under-medicated and suffering from auditory hallucinations.
On 12 September 2019, the respondent attended the administration building of [redacted] to collect his medication. He later told Mr [redacted] that when staff refused to give him his medication he went back to his unit and collected a 10-inch knife, which he put up his sleeve before returning to the office to collect his medication. He said that if he had not been given his medication, he would have either stabbed a person or gone to the security camera and cut his throat. The respondent claimed that he was frustrated and seriously considered killing someone or himself.
On 13 September 2019, Mr [redacted] considered the respondent to be suffering from auditory hallucinations and to be a high risk of harm to staff, however, allowed the respondent to remain at [redacted] over the weekend.
On 16 September 2019, Mr [redacted] considered the respondent was experiencing ongoing suicidal and homicidal ideation and to be a risk of serious harm to himself or others. He then advised that the respondent should be admitted to [redacted] on an inpatient assessment order.
On 16 September 2019, the respondent was admitted to [redacted]. Whilst in [redacted], the respondent told staff that he would bite the [redacted] staff’s noses off their face and that he would ‘get knives if they didn’t give him his medication’.[3]
[3]Exhibit 1, [26].
On 17 September 2019, the psychiatrist who assessed the respondent opined that the respondent’s mental health presentation was not part of a major mental illness but was in the context of drug dependence and personality difficulties. The assessment order was then revoked, leading to the respondent being discharged from the hospital.
On that same day, the respondent was apprehended by police and detained pursuant to a holding power under s 155 of the Act. Pursuant to s 159 of the Act, the maximum period for which an offender may be detained is a continuous period of 72 hours commencing on detention.
On 18 September 2019 whilst in the internal exercise yard, the respondent threatened to bash and kill anyone that went into the yard and to kill himself. This information was included in the statement of supervising police custody officer McCarthy dated 20 September 2019.
On 19 September 2019, the respondent was observed by custody officer McCarthy throwing wet toilet paper at the camera and putting a blanket in the toilet of the cell and urinating on it.
The respondent remained in custody but was due for release in the evening of 20 September 2019.
On 20 September 2019, the Chairperson of the Post Sentence Authority, Ms Michele Williams QC, became appraised of the circumstances of the respondent and requested that the Secretary consider making an application for an emergency detention order in this Court.
A copy of the letter from the Chairperson to the Secretary was tendered by the applicant and became ‘Exhibit 2’.
Dr [redacted] is the consultant clinical and forensic psychologist, who has prepared the previous assessment reports considered by the County Court when making the supervision orders. Her progress report and letter of advice were tendered together and became ‘Exhibit 3’.
In her letter of advice to the Court dated 20 September 2019 for the present application, Dr [redacted] briefly traces the respondent’s history of supervision order, including previous breaches by the respondent of his supervision orders. On 2 September 2019, the respondent was convicted of the fourth breach of a supervision order, having tested positive for cannabinoids. The respondent was sentenced to a term imprisonment of four months which was declared as time served. He was released from custody to reside at [redacted] on 2 September 2019.
Dr [redacted] had regard to the clinical notes and incident reports for the period leading up to the respondent’s detention on 17 September 2019 and noted that:
There is considerable evidence in the volumes of file material that provides the basis for concern regarding [the respondent’s] current state and elevated risk of imminent violence.[4]
[4]Exhibit 3, letter of advice prepared by Dr [redacted] dated 20 September 2019, [12].
In particular, it was noted that on 11 September 2019, the respondent made some very concerning comments towards a general practitioner about having committed a murder. He then made some further concerning comments to supervising staff about [redacted], referring to his convictions for [redacted]. It was noted that the respondent had previously made threats towards a doctor and made statements implying that he would become violent.
On 13 September 2019, the respondent presented to Mr [redacted] with withdrawal symptoms from Methadone, including agitation, anger and increasing psychotic symptoms such as auditory hallucination. He was assessed as ‘a high risk of harm to others given his self-report of how he has assaulted numerous prison officers in the past’.[5]
[5]Ibid, [12 – c].
On 16 September 2019, the respondent was admitted to the [redacted] and was discharged the following day on the basis that he was not deemed to have suffered from a major mental illness.
Dr [redacted] noted that on 17 September 2019, after being discharged from the hospital and whilst under the 72-hour police detention, the respondent’s behaviour was observed to be erratic, uncooperative, refusing to shower, demanding medication and not complying with instructions.
On 18 September 2019, while in custody the respondent made homicidal and suicidal threats and continued to demand medication.
It was also noted that on 19 September 2019 the respondent’s behaviour appeared to have been exacerbated by his inability to access medication. His behaviour in custody appeared to have improved once his medication was received.
Dr [redacted] summarised that the respondent has an extensive history of poor impulse control in lifestyle matters and presents a high level of propensity for interpersonal violence separate to as well as in conjunction with his sexual offending. She concluded:
The current material does however strongly suggest increased risk of immanent [sic] violence. His history of violence is such that the potential for commit [sic] a Schedule 2 violent offence cannot be excluded. He has met threshold in the past and at this time appears extremely disinhibited evidenced by his threats and actual behaviour (attending the office with a knife and stated intent). Of concern is current focus on [redacted] staff members. Given the recent events he is considered at elevated risk of potential for serious injury to others particularly those (e.g. staff members) who he perceives are preventing him doing what he wants to do. Equally, there are evident, albeit lessor concerns for self-injury.[6]
[6]Exhibit 3, letter of advice prepared by Dr [redacted] dated 20 September 2019, [17].
The application for an emergency detention order brought on behalf of the Secretary was premised on there being no practicable and available means other than the making of the order to ensure that the respondent did not pose an imminent risk of committing a serious violence offence. In particular, [redacted] was no longer considered a suitable place for the respondent to reside because of the imminent risk posed by him at the time of the application being brought before the Court.
A preliminary assessment was made as to the respondent’s suitability for placement in a new intensive residential treatment facility under s 32 of the Act but the preliminary view was that the respondent was unsuitable for placement in that facility.
Mr Malik appeared on behalf of the respondent. He advised that he was not in a position to either consent or oppose the application for an emergency detention order as he had not had an opportunity to obtain instructions. However, Mr Malik raised for consideration whether some other facility might be a practicable alternative to prison for the respondent. Nevertheless, the Court was satisfied that no such facility was able to be identified that had the level of security required to contain the respondent’s risk at the time of the application being brought before the Court.
Mr Holdenson QC informed the Court that it was planned that within the next seven days the respondent would undergo any further necessary neuropsychological assessment and further consideration would be given to the question of whether or not the respondent would be an appropriate person for a placement at another intensive residential treatment facility. He further indicated that the case will also be brought to the attention of the Director of Public Prosecutions to consider making an application for an interim detention order.
On the basis of the evidence presented in this application, it was apparent that [redacted] remained an unsuitable place for the respondent. The imminent risk of the respondent committing a serious violence offence was unable to be adequately managed within [redacted].
The Court was satisfied that the matters alleged in support of the application would, if proved, establish that because of altered circumstances the respondent posed an imminent risk of committing a serious violence offence as defined in the Act, if the emergency detention order was not made.
It is sufficient for present purposes to say that the Secretary’s application, under s 87 of the Act, for an emergency detention order, was granted. Accordingly, the respondent was committed to detention in a prison for a period of 168 hours, commencing on 20 September 2019 at 6:35pm. The Court directed a warrant be issued for the apprehension of the respondent.
The Court also considered it appropriate to make a non-publication order under s 279 of the Act to suppress the respondent’s identity until the expiry of the emergency detention order or further order of the Court.
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