Secretary to the Department of Justice and Community Safety v Scarborough (No 2)
[2024] VSC 84
•4 March 2024
| 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 22 of the Serious Offenders Act 2018 for renewal of a supervision order
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| v | |
| Tom SCARBOROUGH (also known as Khuong Pham) | Respondent |
---
JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 February 2024 |
DATE OF JUDGMENT: | 4 March 2024 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v Scarborough (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 84 |
---
CRIMINAL LAW – Application for renewal of supervision order – Serious violence offender – Renewal not opposed by respondent – Unchallenged expert evidence – Duration of renewed order in issue – Five years sought by applicant, three years by respondent – ARM v The Secretary to the Department of Justice (2008) 29 VR 472 considered – Evidence that respondent would remain an unacceptable risk throughout the period of five years – Supervision order renewed for a period of five years – Serious Offenders Act 2018 ss 1, 14, 19 22, 24.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms K Argiropoulos | Victorian Government Solicitor’s Office |
| For the Respondent | Ms Z Broughton | Victoria Legal Aid |
HIS HONOUR:
Introduction
The Secretary to the Department of Justice and Community Safety (‘the Secretary’) applies for the renewal of the supervision order (‘SO’) which is in place in respect of the respondent, Tom Scarborough (‘TS’). The Secretary seeks a renewal for a period of five years.
The respondent does not oppose the renewal of the SO, but takes issue with the duration of the renewed order sought by the Secretary. In an email sent by the respondent’s solicitors to the Court prior to the hearing, it was indicated that it would be contended that a renewal for two years would be the appropriate order. Before me, a three year period was sought.
Background
The circumstances of the index offending and the background to the making, and subsequent variation and confirmation, of the SO are set out in detail in my reasons published in November 2019,[1] and April 2023.[2]
[1]The Secretary to the Department of Justice and Community Safety v ST [2019] VSC 722 (Tinney J) [7]-[17].
[2]The Secretary to the Department of Justice and Community Safety v Scarborough (No 1) [2023] VSC 186 (Tinney J) [4]-[12] (‘Scarborough No 1’).
In summary, in 1999 TS engaged in a violent spree of offending over multiple days, including shooting at, assaulting, and damaging or stealing property of persons both known and unknown to him. The spree culminated in TS being run off the road by police to force an arrest, and TS shooting at police. Prior to these events, TS had been involved in heroin trafficking for over a year.
In 2000 TS was sentenced by Teague J for 13 offences, including trafficking in a drug of dependence and three attempted murders, to a total effective sentence of 20 years’ imprisonment with a non-parole period of 15 years.[3] In his sentence, Teague J noted TS had a history of engagement with psychiatrists, and, while he was not considered to be psychotic, there was a possibility of psychosis developing in the future. [4] He further noted that TS was otherwise considered to display strong traits of schizoid personality disorder.[5]
[3]R v Scarborough [2000] VSC 276 (Teague J) [1], [23] (‘Scarborough Index Offence Sentence’).
[4]Ibid [11].
[5]Scarborough Index Offence Sentence (n 3) [11].
During his term of imprisonment, TS was involved in a number of incidents in custody and ultimately failed to obtain parole. In the lead up to the expiry of his sentence, he was assessed by Distinguished Professor James Ogloff AM as likely suffering from schizophrenia,[6] and as posing a high risk of committing a serious violence offence if he was released into the community without being placed on a supervision or detention order.
[6]Distinguished Professor James Ogloff AM has previously expressed a preference to be referred to as Dr Ogloff. This approach will be adopted throughout the rest of this judgment.
In December 2018, the month TS’ sentence was due to expire, I granted an application by the Secretary for an interim supervision order (‘ISO’) in respect of TS, and later granted a final five-year SO on 29 March 2019. The ISO and SO both included an intensive treatment and supervision (‘ITS’) condition, pursuant to which TS moved directly to Rivergum Residential Treatment Centre (‘Rivergum’) upon the completion of his custodial sentence in December 2018, with a view that he would receive intensive treatment to address his risk of future violence.
In January 2020, due to concerns about TS’ presentation (including florid psychotic symptoms) and the inability for compulsory treatment to occur at Rivergum, TS was transferred to Thomas Embling Hospital (‘TEH') on a secure treatment order (‘STO’) under the Mental Health Act 2014. TS’ presentation failed to meaningfully stabilise in the short-term and he ultimately remained at TEH on STOs until December 2020, when I granted an application by the Secretary to vary the SO to remove the ITS condition. TS was subsequently transferred from TEH to the Austin Hospital Secure Extended Care Unit (‘Austin SECU’) for ongoing psychiatric treatment and care, subject to rolling inpatient treatment orders under the Mental Health Act 2014.
In August 2022, following a period of behavioural stability in secure settings over time, TS was transitioned to supported accommodation in the community, known as Darebin Lodge, subject to rolling community treatment orders (‘CTOs’) under the Mental Health Act 2014 (now the Mental Health and Wellbeing Act 2022). In September 2022, on a review of the SO, I confirmed the order on the basis that TS posed an unacceptable risk of committing a serious violence offence if the SO was revoked and TS was in the community. [7]
[7]Scarborough No 1 (n 2).
The SO to which the respondent is subject will expire on 28 March 2024.
The law
Section 1 of Serious Offenders Act (‘the Act’) relevantly provides:
The purposes of this Act 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; and
…
The determination of an application under s 22 of the Act to renew a supervision order is governed by s 24 of the Act, which relevantly provides:
(1) On an application under section 22, the court may—
(a) renew the supervision order; or
(b) revoke the supervision order; or
(c) make no order under paragraph (a) or (b).
…
(3) Subject to this section, section 14 applies to the determination of an application under section 22 as if a reference to an application under section 13 were a reference to an application under section 22.
(4) If the court renews 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 of the order.
(5) If the court renews a supervision order, the existing supervision order, if any, is revoked on the commencement of the supervision order that is renewed.
(6) The period of a supervision order that is renewed is the period specified under section 19(1).
The period of a supervision order is a period not exceeding 15 years specified by the court in the order.[8]
[8]The Act s 19(1).
Section 14 relevantly provides:
(1) On an application under section 13, the court may make a supervision order in respect of an eligible offender if, and only if, the court is satisfied that—
(a) in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious sex offence, 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; or
(b) in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, 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.
(2) In determining whether an offender poses or will pose an unacceptable risk under subsection (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.
(3) For the purposes of subsection (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.
(4) The court may determine that an offender poses or will pose an unacceptable risk under subsection (1) 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.
(5) The Secretary has the burden of proving that an offender poses or will pose an unacceptable risk under subsection (1).
(6) If the court is satisfied as required by subsection (1), the court may –
a)make a supervision order; or
b)make no order.
…
Unacceptable risk
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’).[9]
[9](2013) 41 VR 359 (‘Nigro’).
In that case, the Court stated that ‘the concept of unacceptable risk is a flexible one which is “calibrated to the nature and degree of the risk so that it can be adapted to the particular case”’.[10]
[10]Ibid [165] (citations omitted).
As the Court stated:
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. [11]
[11]Ibid [117].
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.[12]
[12]Nigro (n 9) [6]; in terms of the degree of likelihood of offending, see also section 14(4) of the Act, which dictates that the risk may be unacceptable even if the likelihood is less than more likely than not.
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.[13]
[13]Nigro (n 9) [130].
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’.[14]
[14]Ibid [5].
The evidence
In support of the application, the Secretary filed:
a)
Detention and supervision order assessment report of Dr Karen Owen dated
22 September 2023;
b) Addendum report of Dr Karen Owen dated 8 November 2023;
c) Chronology filed 10 January 2024;
d) Outline of submissions filed 10 January 2024; and
e) Affidavit of Alicia Booth affirmed on 15 February 2024.
Dr Karen Owen
Dr Karen Owen is a consultant clinical and forensic psychologist. Her report is based on her personal examination of TS and her consideration of a large body of other material. The report sets out TS’ progress on the SO since the matter was last before the Court, as well as Dr Owen’s assessment of TS’ risk of committing a serious violence offence. The report is intended to be read in conjunction with earlier reports of Dr Ogloff, the contents of which are summarised in my previous reasons.
Dr Owen notes TS is a 50 year old man who has been assessed as having a psychiatric condition (schizoaffective disorder, or schizophrenia and hypomania),[15] together with a dysfunctional personality characterised by antisocial and psychopathic features. TS also has a history of substance abuse and reduced cognitive capacity in keeping with his enduring diagnosis of a psychotic disorder.
[15]TS has received varying diagnoses in the past, but it is noted that there is limited practical difference between the diagnosis of a schizophrenic illness combined with a major mood disorder, and that of schizoaffective disorder. Both produce delusional thinking and significant mood disturbance.
Dr Owen reports that overall TS’ treatment has been challenging to manage because of his psychiatric condition and cognitive limitations. The primary focus of treatment has been on achieving psychiatric stability and behaviour containment. TS’ mental illness has compromised his capacity to internalise treatment and intervention information. His behaviour has been controlled by his residing in controlled environments.
Dr Owen reports that TS continues to reside in supported accommodation at Darebin Lodge. He has settled in well and more recently increased his participation in on site activities, including the establishment of a Vietnamese inspired garden. TS has been compliant with the rules of Darebin Lodge.
Darebin Lodge has been assessed as an appropriate accommodation option for TS for the foreseeable future, being able to assist him in both fostering independence and personal development while counteracting the impact of institutionalisation. The accommodation also ensures that TS has ready access to appropriate supports. Notwithstanding these benefits, TS has expressed a desire to live with his mother in Adelaide in the future, and also has an application with the Victorian Housing Register as an alternative long term option.
If the SO renewal application is granted, the Secretary seeks conditions requiring TS to reside at Darebin Lodge and be accompanied by an approved person whenever he leaves.
Dr Owen reports that TS is compliant with prescribed antipsychotic medication in his current setting but shows limited insight into his condition and has expressed his intention to cease taking medication if he is no longer subject to the SO or a CTO. Indeed, the applicant has stated that he does not need his medication, and that he believes MDMA or cocaine would be better.
In May 2022, due to concerns about TS’ ability to engage in, retain and apply learnings from treatment sessions, a decision was made by Forensic Intervention Service (FIS) to place TS on a treatment break. It was thought that continuation of the treatment sessions in these circumstances may be detrimental to future attempts to engage TS in treatment, and that a break may enable more space for him to focus on and show gains in behavioural interventions. TS has not resumed treatment with FIS, but has expressed a willingness to engage in treatment sessions if mandated.
Dr Owen reports TS attends weekly supervision sessions accompanied by a support worker. His presentation during these sessions has reportedly improved, but his engagement overall is minimal and there have been issues with TS not being forthcoming with information and becoming fixated on certain topics. Because TS has a history of crossing sexual boundaries with women, his supervision sessions have focussed on reinforcing appropriate behaviours, as well as encouraging continued compliance with his medication.
TS receives disability specific support through the National Disability Insurance Scheme, aimed at helping him reintegrate into the community and improving his social skills. To that end, Dr Owen notes that TS has commenced attending a gym and participating in a walking group, and is also encouraged to ride his bike around Darebin Lodge and do shopping at local markets through the week. He is reported to engage well with these activities, albeit at times requiring prompting and encouragement to motivate his participation.
TS is also engaged with Australian Community Support Organisation (ACSO) staff, who accompany him on community outings with a view to assist with and model prosocial behaviours. Dr Owen reports there has been some improvement in TS’ interactions with the community over time, including a lessening of inappropriate comments and greater exercise of personal space boundaries.
Despite some improvements, Dr Owen also notes that TS has been involved in several incidents since the matter was previously before the Court. She opined that these incidents reflect TS’ tendency to engage in inappropriate social and sexualised behaviour towards female staff, his inclination to write material with delusional or racist subject matter, and expressions of interest in drug taking.
Some of the incidents summarised in the report are relied on by the author to demonstrate that TS is easily influenced and taken advantage of, and can be encouraged to engage in inappropriate activities.
Dr Owen administered various tools to assess TS’ risk of committing a future violence offence.
The Psychopathy Checklist – Revised (‘PCL-R’) was previously used by Dr Ogloff in assessing TS. Dr Ogloff concluded that TS fell into the moderate range on the checklist, roughly equal to the average person in prison but significantly higher than the average psychiatric patient or person in the community. A review of TS undertaken by Dr Owen using the PCL-R did not reveal any change in the obtained profile.
Dr Owen notes that TS was previously assessed by Dr Ogloff using the Historical Clinical Risk 20 V3 (‘HCR-20’) tool, and found to be a high risk of committing a serious violence offence. Dr Owen re-assessed TS using the HCR-20 and found there was little, if any, change to Dr Ogloff’s original assessment.
In terms of how TS’ risk is likely to manifest, Dr Owen writes:
The most likely and serious risk scenario is that [TS] would become unstable in mental health following non-compliance with medication. At such time, he is likely to have secured a weapon and have returned to substance misuse. [TS] would have returned to engagement with antisocial individuals and engagement in criminal behaviour. In the course of antisocial and criminal activities, he may engage in assaults, threats with a weapon or discharge a firearm at an individual. The offence has the propensity to cause serious psychological harm and serious physical injury, including death of the victim. The risk is not imminent but chronic, occurring after deterioration in mental health and behavioural control as described above. With careful monitoring, it should be possible to detect the presence of factors that will increase the likelihood that [TS] may become violent. These include, for example, non-compliance with medication, forming relationships with pro-criminal peers, engaging in inappropriate or antisocial behaviour, returning to substance misuse, the reduction of negative symptoms, and the return of hypomania.
…
Any act of violence is likely to be an instrumental and deliberate serious violence offence including the possibility of behaviours pursuant to Schedule 2 Serious Offenders Act 2018. An alternative, less serious risk scenario would involve threats of serious physical violence (threat to kill) if rejected by a woman that he is attracted to and who rejects his sexual advances. The victim would be the woman to whom he is attracted and/or persons associated with her such as friends or family members.[16]
[16]Dr Karen Owen, Detention and Supervision Order Assessment Report (Final Report, 22 September 2023) [104], [106] (‘Dr Owen DSO Report’) (emphasis in original).
Notwithstanding the aforementioned incidents where TS engaged in sexually inappropriate conduct, Dr Owen did not carry out an assessment of risk for relevant sex offences due to the fact that TS has no history of sex offending.
Dr Owen used the Structured Assessment of Protective Factors for Violence Risk (‘SAPROF’) to measure TS’ protective factors, which are categorised into three domains: internal, motivational and external. The presence of protective factors is considered key to tempering risk of future offending. Across the three domains, TS was assessed as having a low level of protective factors.
Dr Owen made several intervention recommendations for TS including that his mental health, medication regime and general stability continue to be closely monitored by his mental health care team, and that his case be managed to include ongoing encouragement to engage in treatment, as well as encouragement to explore and engage in prosocial activities.
Dr Owen concluded by opining that TS is considered a high risk of general offending and of committing a serious violence offence pursuant to Schedule 2 of the Act.
She outlined the factors which might increase or decrease the identified risk. In the course of doing so, she noted:
The intractable nature of his psychotic illness represents a challenge for psychological treatment, as does his limited cognitive capacity which leaves him with information processing deficits, inflexible thinking, and decision-making limitations. This deterioration is commonly seen in persons with long-term schizophrenia illness. [TS] has chronic mental health issues that will require long-term monitoring and intervention. Removal or reduction of existing social support may also…increase [TS]’ risk.[17]
[17]Dr Owen DSO Report (n 16) [133].
Dr Owen gave evidence before me during the hearing. She expanded upon the complexity of TS’ case and its attendant treatment challenges. His cognitive and personality issues mean that any form of treatment beyond medication has limited impact. As for medication, whilst TS has not been resistant to its use, its effectiveness has been somewhat limited.
Dr Owen expressed the view that TS is going well in Darebin Lodge, the supervision provided there being a successful element of the move. She confirmed that Darebin Lodge would be appropriate accommodation into at least the medium term.
Dr Owen indicated that since the writing of her report, a further CTO has been made in respect of TS which will run until 1 July 2024.
In terms of TS’ engagement in offence-specific treatment, his limited cognitive capacity and mental health instability have an impact. The focus has been on stabilising his mental health. The evidence indicates that he is not yet ready to engage in offence-specific treatment.
In respect of the risk posed by TS, Dr Owen emphasised the importance of appropriate supervision. The risk is not necessarily imminent, but it is chronic.
On the matter of the duration of the SO upon renewal, Dr Owen stated that she did not expect that the level of risk would reduce to an acceptable level within the next five years. Five years, she stated, is a conservative period.
In cross-examination by Ms Broughton, for TS, Dr Owen agreed that TS was acutely unwell at the time of the assessment by Dr Ogloff, and that his transition, over stages, to Darebin House, constitutes a significant reduction in security. During the course of and following that transition, TS has demonstrated an ability to cope, and to continue to comply with the conditions of his SO.
Dr Owen confirmed that there were some directions recently issued by the Post Sentence Authority (‘PSA’) to TS, allowing the commencement of a step-down plan which would assist in his development of independence as well as assisting him in developing pro-social networks. How long it would take for the step-down plan to be put into effect would depend upon TS’ progress in the initial stages. If the transition was negotiated successfully, there would be the potential for dynamic risk factors to decrease, meaning that the risk assessment might change.
Dr Owen reiterated her view that a five year period of supervision would be relatively conservative.
In re-examination, Dr Owen indicated that the assessment of risk is not limited to dynamic risk factors. The best predictor of future behaviour is past behaviour.
In answer to questions from the Court, Dr Owen stated that in terms of readiness for treatment, TS’ insight is still not good, and so far as internal motivation to want to change is concerned, ‘he’s just not there’.[18] She stated that with the chronic illness suffered by TS, the prospect that he is going to be significantly better and his risk reduced in five years is ‘frankly unlikely'.[19]
[18]Transcript 24.
[19]Ibid 25.
The Secretary’s submissions
Ms Argiropoulos, for the Secretary, who had filed a detailed outline of submissions setting out the applicable legislation and the expert material relied upon in support of the contention that the SO should be renewed for five years, confined her submissions before me to the duration of the renewed order. She referred to s 19 of the Act, and the one relevant authority in that regard, ARM v Secretary to the Department of Justice.[20]
[20](2008) 29 VR 472.
In that case, the equivalent provision in respect of extended supervision orders under the Serious Sex Offenders Monitoring Act 2005 was considered by the Court of Appeal. As the Court explained:
It is implicit in section 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.[21]
[21]Ibid [13].
Ms Argiropoulos submitted that on the evidence, I can be satisfied to the relevant standard that TS would be likely to commit a serious violence offence unless subjected to the SO for a five year period, and therefore, a five year renewal period is appropriate.
The respondent’s submissions
Ms Broughton submitted that I cannot be satisfied to the necessary standard that TS would remain an unacceptable risk for a period of five years. There were too many limitations to Dr Owen’s risk assessment, and TS’ ability to negotiate quite significant transitions successfully and continue to flourish in Darebin House is highly relevant. That fact undermines the Secretary’s request for a five year period.
Ms Broughton proposed a renewal for a period of three years. A practical advantage to a shorter period would be that it would incentivise rehabilitation and compliance with treatment.
Analysis
There being no opposition by the respondent to the renewal of the SO, and in light of the unchallenged expert evidence before the Court, I am satisfied that the Secretary has 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. It is therefore appropriate and necessary that the SO be renewed.
As for duration, I think that too, is clear. The expert evidence of Dr Owen was unshaken on the point that it is unlikely that there will be any meaningful change in the risk posed by TS over a period of five years, and that, if anything, that is a conservative estimate of the position. In the circumstances, I am satisfied to the necessary standard that TS will continue to pose an unacceptable risk of committing a serious violence offence unless subjected to the SO for a five year period. Therefore, a five year renewal period is appropriate, as submitted on behalf of the Secretary.
Notwithstanding that conclusion, I accept that TS has continued to make progress since last before the Court. He is apparently flourishing in Darebin House, and taking some significant steps towards his rehabilitation. The step-down plan enabled by the directions recently given by the PSA is a further encouraging step. More progress is required, however, and it will be important for TS to be willing and able to engage in the offence-specific treatment that will be a necessary part of his passage towards a meaningful reduction in the risk he currently poses. I encourage him to approach each aspect of the treatment offered to him with enthusiasm and an open mind.
Conclusion
I order that the SO made on 29 March 2019 be renewed for a period of five years on the conditions sought by the Secretary. The order is attached to these reasons.
1