Secretary to the Department of Justice and Community Safety v Scarborough
[2023] VSC 186
•29 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0279
IN THE MATTER of the Serious Offenders Act 2018
- and –
IN THE MATTER of an application under s 99 of the Serious Offenders Act 2018 for review of a supervision order
| The Secretary to the Department of Justice and Community Safety |
| and |
| Tom SCARBOROUGH (also known as Khuong Pham) |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 September 2022 |
DATE OF JUDGMENT: | 29 September 2022 |
DATE OF REASONS: | 13 April 2023 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v Scarborough |
MEDIUM NEUTRAL CITATION: | [2023] VSC 186 |
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CRIMINAL LAW – SUPERVISION ORDER – Serious violence offender – Review of supervision order – Respondent poses unacceptable risk of committing serious violence offence if not subject to supervision – Evidence led on the application unchallenged by respondent – Respondent transitioned from Austin Hospital Secure Extended Care Unit to a less secure residential treatment facility – Supervision Order confirmed with amendments – Order expires on 28 March 2024 – No non-publication orders sought – Serious Offenders Act 2018 ss 14, 99, 103, 104, 105 , 106.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson KC | Victorian Government Solicitor’s Office |
| For the Respondent | Mr R de Vietri | Victoria Legal Aid |
HIS HONOUR:
Introduction
On 29 March 2019, I made a supervision order (SO) pursuant to the Serious Offenders Act 2018 (‘the Act’) by consent in respect of Tom Scarborough (‘TS’ or ‘the respondent’) for a period of five years. On 14 December 2020, the conditions of the SO were varied on the application of the Secretary to the Department of Justice and Community Safety (‘the Secretary’). Both the original and varied order required an application to be made for the first periodic review of the order on or before 28 March 2022. The hearing of the first periodic review came on before me on 29 September 2022.
At the hearing, in circumstances in which the respondent did not oppose the confirmation of the SO or the conditions sought by the Secretary, or challenge any of the evidence relied upon by the Secretary, I made orders confirming the SO in the terms sought by the Secretary. The respondent did not apply for a non-publication order pursuant to s 279 of the Act, with no previous restrictions having been placed on the publication of the offender’s identity in these proceedings.
I announced at the time of my decision on 29 September 2022 that I would publish my reasons for the decision at a later time. These are those reasons.
Background
The background to this application, and circumstances of the index offending, are set out in detail in the decision of Secretary to the Department of Justice and Community Safety v ST. [1] I will not repeat all of that detail here. Suffice to say, in respect of the index offending, that beginning on 17 February 1999, and in the context of his ongoing heroin trafficking and use, the respondent, then aged 25, engaged in a six-day spree of violent offending, which involved incidents of road rage where he threatened and shot at strangers, an associate and police officers. The respondent was sentenced by Teague J on 26 June 2000 to 20 years’ imprisonment with a non-parole period of 15 years for offences of attempted murder (three counts), trafficking heroin, recklessly causing serious injury, reckless conduct endangering life (two counts), criminal damage (three counts), common law assault (two counts) and theft of a motor vehicle.
[1][2019] VSC 722 (‘ST’)
The circumstances of these offences were summarised in his Honour’s sentencing remarks[2] and will not be reiterated here. Suffice to say that the offending was exceedingly serious and troubling.
[2]R v Scarborough [2000] VSC 276 (‘R v Scarborough’).
In his reasons for sentence, Teague J observed that whilst TS was not considered to be psychotic at the time of his offending (charges 1–12), there were clear indications of ‘strong schizoid personality traits’ and the possibility of psychosis developing.[3] The respondent had received psychiatric care in South Australia for depression and anxiety whilst residing there with his family, but his treatment ceased and drug taking escalated when he re-located to Victoria and started to engage in drug trafficking around mid-1996.[4] Trafficking was TS’ only source of income, albeit a highly profitable one earning in the order of thousands of dollars a week.[5]
[3]R v Scarborough [11].
[4]Ibid [2].
[5]Ibid [3].
The respondent’s custodial sentence was marked by incidents of violence involving other prisoners and intimidatory and inappropriate conduct towards staff.[6] He did not obtain parole. In the lead up to his sentence expiring, TS was assessed by Distinguished Professor James Ogloff AM who considered him to pose a high risk of committing a serious violence offence if released into the community without being placed on a supervision or detention order.[7] Professor Ogloff also noted that the respondent was likely suffering from schizophrenia, observing him to have an acute psychotic illness that was both untreated and unstable.[8] Professor Ogloff’s opinions were not challenged by the respondent at the hearing. As a result, TS was placed, by agreement, on an interim supervision order on 11 December 2018 which came into operation on 28 December 2018. This order was replaced by a supervision order on 29 March 2019, with a condition requiring TS to reside at the Rivergum Residential Treatment Centre (‘Rivergum’).
[6]ST [5].
[7]Assessment report by Professor James Ogloff, 28 September 2018. This report was required under ss 267 and 269 of the Act.
[8]Addendum report by Professor James Ogloff, 10 December 2018.
TS resided at Rivergum for just over a year, but his psychiatric condition did not stabilise and on 30 January 2020 he was transferred to Thomas Embling Hospital (‘TEH’) pursuant to a Secure Treatment Order (‘STO’) under the Mental Health Act 2014 (‘Mental Health Act’).[9] TS was committed to the Aspley unit – a secure intensive care unit for offenders requiring psychiatric stabilisation – before he was transferred to the longer-term Argyle unit.
[9]Mental Health Act, s 276.
At the first review of the STO, the respondent told the Mental Health Tribunal that he did not believe he had a mental illness and indicated he would not comply with treatment outside of the hospital. His STO was confirmed for six months, and later extended for a further six months.
The respondent’s extended stay at TEH and his unsuitability for Rivergum gave rise to an application by the Secretary for leave to review the intensive treatment and supervision condition (‘the Rivergum condition’) of the supervision order.[10] On 14 December 2020, I amended the supervision order which included removing the Rivergum condition. Two days later, TS transitioned from TEH to a less secure facility, the Austin Hospital Secure Extended Care Unit (‘Austin SECU’) pursuant to an Inpatient Temporary Treatment Order (‘ITO’). Subsequent ITOs were made the following year.[11]
[10]The Act, s 110(1).
[11]Mental Health Act, ss 45(3) and 52(3).
After an eight month period at the Austin SECU, the respondent was placed on a Community Treatment Order and gradually transitioned to reside at Darebin Lodge, a non-secure residential facility for men.[12] TS has resided full-time at Darebin Lodge since 15 August 2022, as directed by the Post Sentence Authority (‘PSA’) pursuant to condition 3.1 of the supervision order. Consequently, the Secretary applied to this Court for the Darebin Lodge address to be included under the ‘residence condition’ of the reviewed supervision order (now condition 5.1).
[12]Ibid, s 52(2).
TS came before the Court as a 49 year old man of Vietnamese heritage with diagnoses of a psychotic illness (schizophrenia or schizo-affective illness), major mood disorder (hypomania) and personality disorder (characterised by antisocial and psychopathic traits), along with a history of substance misuse.[13] Although not diagnosed with a cognitive impairment or intellectual disability, TS shows signs of significant cognitive limitations.[14] At the time of the hearing before me, he had been the subject of a supervision order for approximately three and a half years and did not oppose confirmation of the order until the date of expiration; that is, 28 March 2024.
[13]Detention and supervision progress report by Distinguished Professor James Ogloff AM, 15 March 2022 [67], [75], [79]-[80] (‘progress report’).
[14]Ibid [74].
The law
This application for the first periodic review of the respondent’s supervision order was made by the Secretary pursuant to s 99(1) of the Act, which provides:
99Periodic review of supervision order
(1) The Secretary must apply to the court that made a supervision order for review of that order—
(a) not later than 3 years after it was first made or any earlier first review date specified in the order; and
(b) subsequently, at intervals of not more than 3 years or any shorter intervals specified in the order.
Sections 104 to 106 of the Act relevantly provide:
104 Purpose of review
The purpose of a review is to determine—
(a) whether a supervision order or a detention order should remain in operation or be revoked; and
(b) if a supervision order is revoked, whether the order should be replaced with a different supervision order or a detention order;
…
105 Matters to be considered by the court
(1)In reviewing a detention order or supervision order, the court must consider—
(a) a progress report relating to the offender; and
(b) any other report made, or evidence given, by a medical expert; and
(c) any report made by the Secretary, the DPP or the Authority; and
(d) any submissions made by the parties to the review.
(2) In reviewing a detention order or supervision order, the court may also consider —
(a) any previous assessment report or progress report filed with the court in relation to the offender; and
(b) anything else that the court considers appropriate.
106 Decision on supervision order—general
(1) Subject to section 107, on a review of a supervision order, the court must revoke the supervision order unless it is satisfied that the offender still 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 in effect and the offender is in the community.
(2) The court may make an order under this section even if the offender is remanded in custody or is serving a custodial sentence.
(3) Section 14(2)(b), (3), (4) and (5) (with any necessary modifications) apply to the review of a supervision order.
(4) Subject to subsections (5) and (6), the court must confirm the supervision order unless—
(a) the court has revoked the supervision order; or
(b) an application for a detention order has been made under section 107.
(5) If the court confirms a supervision order, it may—
(a) vary, add or remove any condition of the order; or
(b) vary the maximum intervals between applications for review.
(6) If the court exercises a power under subsection (5) in respect of a supervision order, the court must ensure that the conditions on the order are in accordance with the requirements of section 15 and Division 3 of Part 3 and make any variations or additions to the conditions that are necessary for this purpose.
(7) Divisions 3 and 4 of Part 3 apply to any variation or addition of a condition of a supervision order under subsections (5) and (6).
Expert evidence
In support of the application to confirm the supervision order, the Secretary filed two reports:
(a) Detention and Supervision Order Progress Report by Distinguished Professor James Ogloff AM, 15 March 2022 (‘progress report’).
(b) Detention and Supervision Order Letter of Advice by Distinguished Professor James Ogloff AM, 15 August 2022 (‘letter of advice’).
The evidence of Professor Ogloff, clinical and forensic psychologist, was not contested by the respondent and he did not give sworn evidence at the hearing.
Risk assessment
With respect to the question of risk, Professor Ogloff opined that the respondent continued to pose a high risk of committing a non-sexual, violent offence were he to be released into the community without supervision.[15] The respondent’s level of risk has not decreased since he was last assessed by Professor Ogloff in 2020 and prior to that in 2018,[16] with TS presenting a high risk of non-sexual violence on both occasions.
[15]Progress report [78], [90], [100]; Letter of advice [6], [18]-[20].
[16] Detention and supervision assessment report, 20 September 2018 [81]-[86]; Addendum report,
10 December 2018; Progress report, 20 March 2020 [62]-[72]; Letter of advice, 7 September 2020.
Importantly, Professor Ogloff has observed ‘no material change’ in TS’ violence risk profile since 2018, which he attributes to a combination of historical factors – that is, those which are static and typically do not change over time – and dynamic factors, which are changeable.[17]
[17]Progress report [69]-[70], [87].
In assessing the historical factors, Professor Ogloff was aided by the use of TS’ most recent results of the Historical Clinical Risk Management-20 Version 3 (‘HCR-20 Version 3’) tool. Professor Ogloff reported that the respondent’s history of violence, antisocial behaviour, unstable relationships, substance misuse and childhood experiences of sexual abuse and trauma – along with other static variables – are strong predictors of future offending.[18] He characterised the risk of future offending in TS’ case as ‘high,’ noting that in addition to these historical factors, the respondent exhibited dynamic risks such as poor insight into his offending, a lack of remorse or empathy, limited awareness into his mental illness, and very few personal supports available to him in the community.[19]
[18]Ibid [75].
[19]Ibid [22], [57], [76]-[77]
Were TS to be released from the Court’s supervision at this stage in his rehabilitation, Professor Ogloff opined that he would have difficulty complying with treatment and engaging with professional services in the community. This opinion is, in part, owing to the fact that TS has not proven to benefit from interventions and has self-reported that he is ‘only complying with medications and restrictions because he has to’ and that he would discontinue the medication if given the opportunity.[20] Professor Ogloff observed that TS does not recognise a need for compliance with treatment and ‘has not been able to internalise treatment learnings and gains.’[21]
[20]Ibid [49], [77].
[21]Ibid [91].
In terms of the likely timeframe within which TS’ risk of offending would materialise were his supervision order to be revoked, Professor Ogloff stated that the risk was ‘not imminent.’ He noted that the respondent did not appear to harbour any violent thoughts or ideation. In view of this, Professor Ogloff suggested that ‘careful monitoring by staff who know him and can carefully monitor changes in his mental state’[22] will be sufficient to temper TS’ risk and allow for early detection of any signs of violent intent or behaviour change. However, Professor Ogloff qualified this assessment by stating that the respondent’s current risk profile is largely contingent upon the presence of his negative symptoms of schizophrenia and the behavioural stability brought about by medication. TS’ medication regime – a long-acting depot injection of Olanzapine (300 mg) administered every 14 days – was initiated by the Austin SECU treating team and has been tolerated well by him.[23] The stabilising effect of this medication on the respondent’s mood and behaviour is considered by Professor Ogloff to be a protective factor. However, he noted that even though TS’ symptoms of mania and grandiosity are currently controlled by the medication he receives, TS remains ‘psychotic and delusional.’ Were he to cease compliance with treatment and experience active symptoms of schizophrenia in the community, Professor Ogloff expressed the concern that:
‘…the imminence of him becoming violent may increase. In addition, there is a very real risk that Mr Scarborough may return to taking drugs and, perhaps, selling drugs in a desperate attempt to gain status and wealth.’[24]
[22]Ibid [76], [88], [96].
[23]Ibid [49]. See also, Letter of advice [8]. Professor Ogloff described this as a ‘relatively high dose’ of the medication. Initially, TS was receiving this injection every ten days but the frequency has since reduced.
[24]Ibid [95].
Professor Ogloff detailed a number of incidents and aspects of the circumstances and conduct of TS in the two years preceding the progress report that shed light on the respondent’s treatment and management challenges. These include his:
Preoccupation with drug trafficking: a) Whilst at TEH, the respondent was overheard by staff attempting to recruit co-patients as ‘drug mules,’ telling them they can work for him when he returns to the community. In his interview with Professor Ogloff on 21 October 2021, TS was ‘ambivalent about whether he would sell drugs again.’ He stated, ‘not many [drug dealers] get caught. It is like finding a needle in a haystack. Only the dumb ones get caught.’[25] It is clear from the reports filed since September 2018 that the respondent’s glorification of drug trafficking and his perception that selling drugs is a viable way of earning money, achieving status, and ‘attract[ing] women,’ continues to present a dynamic risk to himself and the public.[26]
[25]Ibid [41], [64].
[26]Ibid [29], [66].
Past substance misuse: b) Professor Ogloff raised concerns about the respondent’s ‘ongoing ambivalence about refraining from substance misuse upon release.’[27] He referred to an incident in May 2022 when the respondent self-reported to a Forensicare[28] clinician that he had smoked cannabis while at the Austin SECU, however, his urinalysis results were negative to cannabinoids and the other illicit drugs that were tested for.[29]
[27]Ibid [87].
[28]Victorian Institute of Forensic Mental Health.
[29]Letter of advice [14].
Inappropriate behaviour towards female co-patients and staff:c) TS has been repeatedly reported for inappropriate and sexualised conduct towards females. For example, he has been observed reaching out and feeling a co-patient’s stomach as she walked past, and approaching another co-patient and rubbed her shoulder underneath her bra strap. Another incident involved TS making masturbation gestures when speaking to a staff member at the Austin SECU. TS was also found to be operating a barter system where he was bribing women with lollies and trinkets. In May 2022, whilst on escorted leave, TS picked up a bag of lollies to purchase and attempted to give them to a child, but was stopped from doing so by staff. Professor Ogloff noted the opinion of Dr Partha Das, treating psychiatrist at the Austin SECU, that TS displays little empathy for the co-patients and staff members he affects.[30]
[30]Letter of advice [9], [12]-[15]. See also, progress report [41], [55].
Fixation on his former intimate partner: d) TS appears to still be fixated on his former partner, whose surname he adopted after their separation in the late 1990s. Professor Ogloff referred to a recent incident where TS, when asked by a case worker what he was whispering to himself about, disclosed that he had threatened to kill his [ex-partner’s] family.[31]
[31]Letter of advice [17].
Fixed delusional belief system: e) In his progress report, Professor Ogloff agreed with the opinion of Dr Das who noted that TS’ delusional beliefs do not seem to affect his daily behaviour. However, despite these delusions not intruding in the respondent’s day-to-day life, his bizarre and psychotically-driven thought system has now persisted for years, with little variation in themes or subjects. For example, Professor Ogloff reported that TS continues to hold unusual beliefs about ‘women and their power and prowess,’ and has a view that ‘reptilian humanoids are controlling the world. They are followed by Jewish people, whom he believes [are] the master race. He said that the rest of people are slaves to reptilian humanoids and Jewish people.’[32] According to Professor Ogloff, the intractable nature of these thoughts inhibits TS’ capacity to respond to psychological interventions and treatment.[33]
[32]Progress report [23].
[33]Ibid [98].
Difficulty developing realistic future plans: f) Some of TS’ future plans seem to be entrenched in his delusional thinking. For example, he has expressed a desire to ‘find a girlfriend in Israel. He would like to have four boys with a Jewish woman. He said that only 1 in 250 women in Melbourne are Jewish, so he would go to Israel.’[34] TS also stated that ‘he would like to go to Ukraine to secure a Jewish female as he believes they would be vulnerable.’[35]
[34]Ibid [63].
[35]Ibid [48], [63].
Lack of personal supports in the community: g) The respondent receives personal support from his mother, albeit at a distance as she lives overseas, and has expressed interest in reconnecting with his sister who lives interstate. TS has not had contact with his sister for approximately ten years. Apart from his mother, TS has no regular social contact with any person outside of his care network.[36]
Deterioration in cognitive capacity:h) A neuropsychological assessment conducted by a clinical neuropsychologist on 27 November 2020 indicated that TS’ cognitive capacity has diminished since September 2018, despite the intensive care and treatment he had received over this period. Professor Ogloff noted that this decline is common amongst people with a diagnosis of long-standing schizophrenia. As a result, TS’ responsivity to treatment is likely to continue on a poor trajectory.[37]
Transition from Austin SECU to Darebin Lodge
[36]Ibid [36]
[37]Ibid [82]
At the time of writing his letter of advice, Professor Ogloff noted that TS had been approved for transfer from the Austin SECU to reside full-time at Darebin Lodge in Preston. By the time of the hearing, TS had resided at Darebin Lodge for approximately two months, that is, since 15 August 2022.
TS’ accommodation at Darebin Lodge and the community-based services he is engaged with are largely funded by a National Disability Insurance Scheme (‘NDIS’) plan. His mental health care is now managed by the Northern Area Mental Health Service (‘NAMH’), Hotham Street Clinic.
In his letter of advice, Professor Ogloff observed that the respondent’s gradual transition to Darebin Lodge had ‘generally gone well.’[38] This transition was the focus of the parties’ submissions at the hearing, which I will now turn to.
[38]Letter of advice [4].
The Secretary’s submissions
Mr Holdenson KC, who appeared for the Secretary, confirmed the positions of Professor Ogloff and the PSA[39] that the respondent had adapted well to his new accommodation in the community, albeit six weeks into the transition. The respondent’s encouraging adjustment to life at Darebin Lodge is made evident by the PSA’s decision to bring his transition date forward by approximately two months, with TS’ move originally set to take place in October 2022.
[39]Renee Carman of the Post Sentence Branch was in attendance at the hearing, however, was not called by the applicant to give sworn evidence.
Notwithstanding the progress made by the respondent in recent months, Mr Holdenson submitted that the Court could be satisfied on the evidence available that the respondent continued to pose an unacceptable risk within the meaning of the Act.[40] Mr Holdenson observed that the Court, upon making a finding of unacceptable risk in a periodic review proceeding, is required to confirm the supervision order, with no discretionary power to revoke the order once a conclusion has been reached as to risk. This is in contrast to the framework that applied at the time of making the supervision order, with s 14(6) of the Act enabling the Court to refuse to make the order despite being satisfied that the respondent posed an unacceptable risk.
[40]The Act, s 106(1).
Mr Holdenson submitted that a review under s 106(1) of the Act principally turns on the question of whether the order should remain in operation, or be revoked. This question must be resolved in favour of the order remaining in operation if the Court is satisfied that the offender still poses an unacceptable risk under s 106(1) of the Act.
Concerning risk, Mr Holdenson submitted:
So when one has regard to the opinion expressed by Professor Ogloff, which has not changed, as to the magnitude of risk, then it would necessarily follow in my submission, the evidence being the same as it was previously, that unacceptable risk will be resolved in favour of the Secretary.[41]
[41]Transcript 8-9.
As a result, Mr Holdenson asserted that the Court should confirm the order with the core conditions set out in s 31 of the Act and discretionary conditions as previously in place, save for any amendments required to reflect TS’ change in residence.[42] Mr Holdenson provided the Court with a draft of the reviewed supervision order which had been read, and consented to, by the respondent prior to the hearing.
[42]Transcript 8-9.
The respondent’s submissions
Mr de Vietri, who appeared for the respondent, did not seek to make formal submissions in light of the parties’ unanimity as to the appropriate outcome of the application. However, Mr de Vietri made a number of observations with respect to the respondent’s progress and the backdrop against which this application has been made.
Firstly, Mr de Vietri noted the significant nature of the transition which had occurred for the respondent to living in the community in a non-secure facility, after having been accommodated in secure facilities since the commencement of the supervision order. Mr de Vietri observed that the respondent had been ‘very stable’ since living in the community and was well-supported by the staff at Darebin Lodge, his Australian Community Support Organisation (‘ACSO’) workers and NDIS providers. Further, TS had been compliant with his medication regime.
In terms of the respondent’s engagement in the community, Mr de Vietri stated that TS visits the shops and goes on walks in the company of an approved person, as required under the accompaniment condition of the supervision order.[43] He added:
[Mr Scarborough is] very happy to be at Darebin Lodge, and the number one goal for him is to prove that he’s able to stay there and be stable in that environment. Of course very significantly whilst Professor Ogloff’s risk assessment remains high and some of Mr Scarborough’s can I say eccentricities remain, significantly there’s been no indications of violence, no instances of violence, and that’s a very good thing.[44]
[43]Condition 5.3.
[44]Transcript 11.
In terms of the respondent’s future plans, Mr de Vietri indicated that should TS continue to demonstrate a stable pattern of living without any signs of flight risk or violence, he may wish to apply for review of conditions, such as the electronic monitoring[45] and accompaniment conditions, with the aim of increasing independence. Mr de Vietri noted that no further periodic reviews are required prior to the expiration of the supervision order on 28 March 2024.
[45]Condition 5.11.
Analysis
This review turned on the question of whether the respondent still posed an unacceptable risk of committing a serious violence offence if his supervision order was not in effect and he was in the community.
In considering the meaning of the phrase ‘unacceptable risk,’ it is not necessary to look beyond what was said on the matter by the Court of Appeal in Nigro v The Secretary to the Department of Justice (‘Nigro’):[46]
To prescribe what degrees of risk may or may not be unacceptable would remove the test of its necessary flexibility. 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. [47]
[46](2013) 41 VR 359 (Redlich, Osborn and Priest JJA).
[47]Nigro [117]. I note that this is a decision in the context of the now-repealed Serious Sex Offenders (Detention and Supervision) Act 2009.
As the Court of Appeal in Nigro made clear, the focus of an assessment of risk is first, the nature and gravity of the consequences of the harm should it arise, and secondly, the likelihood of the harm arising. This requires the Court to consider the offender’s likely future conduct and his specific circumstances, with the Court of Appeal cautioning against making generalisations about the general character of the contemplated offending or the sentences which may be attracted.[48]
[48]Nigro [130]. See also, Secretary to the Department of Justice and Community Safety v TA [2021] VSC 530 [33], [314]-[315] (Taylor J).
The test of unacceptable risk will turn on the facts and expert opinions put before the Court in evidence, underpinned by the principle 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.[49]
[49]Nigro [5].
Concerning the nature and gravity of the harm were it to arise, I accepted the opinion of Professor Ogloff that the respondent’s likely future offending conduct, although not necessarily imminent, would involve serious violence aided by the use of weapons in the context of his becoming non-compliant with medication and developing mania, returning to substance misuse, associating with pro-criminal associates and returning to criminal behaviour even if non-violent.[50] As to the likelihood of the harm eventuating, I accepted that the respondent’s risk was not imminent, but noted the factors which Professor Ogloff considered would increase that likelihood.
[50]Progress report [88], [94].
Overall, I was satisfied that the Secretary had demonstrated, by acceptable, cogent evidence to a high degree of probability, that the respondent would pose an unacceptable risk of committing a serious violence offence if his SO was revoked and he was in the community. I therefore decided that it was appropriate that the SO be confirmed.
Notwithstanding that conclusion, at the time of indicating my decision on 29 September 2022, I noted the significant step taken by TS in his rehabilitation by transitioning into non-secure accommodation in the community.
Conclusion
I ordered that the SO made on 29 March 2019 and varied on 14 December 2020 be confirmed pursuant to s 106(4) of the Act in accordance with the draft order provided to the Court.
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