Secretary to the Department of Justice and Community Safety v SI
[2023] VCC 1487
•30 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00622
IN THE MATTER of an application under section 99 of the Act for review of a Supervision Order
BETWEEN
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| v | |
| SI | Respondent |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2023, 3 August 2023, 10 August 2023 (Applicant submission), 18 August 2023 (Respondent submission) | |
DATE OF JUDGMENT: | 30 August 2023 | |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v SI | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1487 | |
REASONS FOR JUDGMENT
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Subject:Application for Review of Supervision Order
Catchwords: Supervision order – Whether applicant poses unacceptable risk to the community – Definition of “victim” – Section 27(2)
Legislation Cited: Serious Offenders Act 2018
Cases Cited:AB v Paulet [2022] VSC 414
Ruling:Application granted in part
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | L McAuliffe | Minter Ellison |
| For the Respondent | J Riordan | Victoria Legal Aid |
HIS HONOUR:
1The background history in this matter is non-contentious and does not need to be repeated in great detail. Broadly, SI has committed various acts of sexual and violent offending, as set out in the chronology, exhibit A13. As a result of some of that offending, he has been placed on a Supervision Order since about 2017. Since that time, he has been in controlled accommodation, currently Corella Place. More recently, he has been deemed suitable for transition from Corella to living independently in the community with other certain conditions imposed by a Supervision Order. The parties agree that a Supervision Order is necessary and to almost all the terms of the order, save for one issue. That issue is about where in the community SI is to live. SI submits he should be allowed to live with his mother in Malmsbury.[1] At the first hearing the Secretary submitted that these premises are unsuitable and that a property she has identified in Castlemaine may be more suitable. While this narrowed the focus of the matter before the Court to the terms of the proposed residence order at paragraphs 5.1 to 5.3, it proved illusory because ultimately, after the matter was adjourned part heard, the Castlemaine property was deemed unsuitable. At the resumed hearing the Secretary persisted with her argument that the Malmsbury property was unsuitable.
[1]The street name has been removed from the public version of this judgment.
2Before arriving at the dispute as to the suitability of the Malmsbury property however, it is necessary for the Court to be satisfied that a Supervision Order ought be imposed by reason of s106 of the Serious Offenders Act 2018 (“the Act”). That section requires the Court to be satisfied that SI will pose an unacceptable risk of committing a serious sex offence or a serious violence offence upon release into the community. That finding can only be reached if the Court is satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk. Having considered the material, I am satisfied that the terms of s106 are made out. In reaching this conclusion, I have had regard to the criminal history, the report of Mr Candlish, 10 December 2019, exhibit A15, and the later report, 14 February 2023, exhibit A1, particularly paragraphs 230-232. I have also read and considered the other material tendered at the hearing.
The legislation
3I now turn to consider the debate between the parties which concerns the residence conditions sought to be imposed. The conditions which may be imposed under a Supervision Order are subject to the legislative principles in Part 3, Division 3, s27 of the Act. Section 27 is in the following form:
“Purposes of conditions of supervision order
(1)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 or a serious violence offence or both or an offence referred to in Schedule 3.
(2)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.
(3)In order to reduce the risk of the offender re‑offending, the conditions may—
(a) promote the rehabilitation and treatment of the offender; and
(b)address types of behaviour that may increase the risk of the offender—
(i)committing a serious sex offence or a serious violence offence or both or an offence referred to in Schedule 3; or
(ii)engaging in any behaviour or conduct that threatens the safety of any person (including the offender).
(4)The court must ensure that any conditions of a supervision order (other than the core conditions)—
(a)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
(b)are reasonably related to the gravity of the risk of the offender re-offending.”
4The debate initially proceeded before the Court as if there was a contest between the Malmsbury property and the Castlemaine property as to which was most suitable. This tended to conceal the requirement of the Act, which is to assess the Malmsbury property against the principles of s27 to determine if it met those criteria.
5It is useful to begin with some facts about the Malmsbury property. It is in a residential neighbourhood. SI’s mother lives in the property alone. It appears to be a double-fronted home on a suburban block.[2] It is located on a street which appears to be a main route for teenagers getting the bus at a nearby intersection. There are five to six teenagers, including two to three females, living at unknown addresses close to SI’s mother’s residence.
[2]Exhibit A6
6Of more specific relevance is that on a street to the rear is a house occupied by the mother of one of SI’s ex-partners and former victims (“the ex-partner”).[3] This house is diagonally across the back fence of SI’s mother. The ex-partner had a relationship with SI between 2008 and 2009. After the relationship ended, he made various threats towards her and she had taken out an intervention order (“IVO”) against him. He breached this order. The ex-partner has two children and goes regularly to her mother’s home. About two times per month, she leaves her young children at her mother’s house. Both the ex-partner and her mother have expressed serious concerns about SI residing at the Malmsbury property.[4] Those concerns of the ex-partner are very specific and descend to feelings that SI would display violence towards her, particularly with a bow or a knife.
[3]Exhibit A6
[4]Exhibit A6, p3-5
7Such concern is the primary ground on which the Secretary argues that the Malmsbury property is unsuitable. The Secretary also relies on two other grounds. The first is the fact of young children regularly in the vicinity, either living in houses on the same street as SI’s mother or connecting streets.[5] The second is that SI’s mother did not openly disclose that young children lived in premises close to her home. This is particularly the case in respect of the property opposite her front yard. The Secretary argues this shows she is not a pro-social factor because she is willing to overlook SI’s history and his risk to others, which is necessary to appreciate, so she can help him in order to have her son home.
[5]Exhibit A6
8Having set out those matters I now come to the oral evidence in the case.
The oral evidence: Mr Candlish
9Mr Candlish was called and cross-examined. In examination-in-chief, he was asked about paragraph 148 of his 2019 report as to SI’s emotional hypersensitivity which results in him being provoked if he was to see his ex-partner. While he confirmed SI may be prone to such a reaction, he conceded that SI had made considerable progress in his emotional regulation. Overall, Mr Candlish’s evidence gave the strong impression that SI’s desire to avoid prison was a guard rail against —
(i)contact with the ex-partner, and
(ii)assisted in his emotional regulation.[6]
[6]Transcript 12 July 2023 (“July T”) 40-41
Overall, his evidence was of substantial gains made in his emotional regulation. His evidence in cross examination was that there was a low likelihood of offending if SI was to see his former partner.[7]
[7]July T48 Line (“L”) 14-27
10As to the protective force exercised by SI’s mother, he considered it but one factor among many others — case management, supervision, case worker input and electronic monitoring (“EM”) being others. He considered that SI’s mother’s role would be more of a social and emotional support, which was useful because isolation operated as a destabilising force. He accepted in cross-examination that this was a significant benefit in contrast to living alone.
11As to the presence of children in the neighbourhood, Mr Candlish considered they posed a low risk given the previous offending involved children with whom SI had a relationship.
12Mr Candlish confirmed that, given the offending against the ex-partner occurred some 12 years ago, there had been no contact and there was no expressed intentional plan to harm the ex-partner that the risk toward her was less than moderate.[8]
[8]July T 52 L7
The oral evidence: Mr Weigner
13Mr Weigner was called by the Secretary. He is an Assistant Manager at the Post Sentence Branch. He was taken in evidence in chief to the first e-scan of the Malmsbury property in January of 2023. He confirmed that while the Malmsbury property was deemed suitable it came with the caveats as to SI’s mother being a protective factor. Specifically he was taken to Exhibit A3 which was the e-scan of 21 June 2023. It arose as a result of Victoria Police identifying that children lived in the area. A further interview was then conducted with [SI’s mother]. This assumed some importance, so it is useful to set out some of the evidence ascribed to SI’s mother in the Post-Sentencing Board (“PSB”) note:
“Phone contact was made with [SI’s mother] on 30 May 2023 and when asked of her knowledge of the residents who lived at [Y] [9] she said “a lady lives there I don't know her name and don't see her much. I do know that she's the post lady, she delivers the post”. When asked if she had observed other any other residents, [SI’s mother] stated “I just saw her there, I don't think she has kids and I've never seen any there”. [SI’s mother] continued to discuss her knowledge of the other neighbours articulating names and other details of each neighbour surrounding her property making statements indicating the neighbourhood is “close” and “very friendly”, however offered little information regarding the residents at [Y].
A phone call was received by [SI’s mother] on 6 June 2023 who asked the writer “why did you call me the other day and ask about the neighbours is that why [SI] can't come out? You didn't ask me about kids, I didn't lie why were you asking me questions”. Discussions continued with [SI’s mother] stating she saw a “large moving van” at number [Y] on Saturday 3 June 2023 and observed people moving furniture and boxes into the van. [SI’s mother] further stated that there have been no lights on at the property since the night of Friday 2 June 2023. When asked to elaborate on her knowledge of the residence at the property [SI’s mother] offered further information than the previous discussion and revealed that she had seen children at the property in the past, indicating there were several occasions she sighted children there saying “I saw children there three or four times but that was it. It wasn't all the time. There were always lots of cars coming and going so I don't know if they live there or not. I was honest with everyone. I didn't know there were kids there”. [SI’s mother] advised that there was a trampoline in the front yard of the property, however expressed never seeing it used by children and said, “the house is covered by tall fences so you can't really see anything from my place unless you go over and stand in the driveway”.
[9]The address of the property has been anonymised.
14SI’s mother was not called to give evidence, however Mr Weigner was cross examined as to the way the PSB understood the information it had received from SI’s mother. In the course of that evidence Mr Weigner was also taken to a Case Note of 2 June 2023 in which SI’s mother was informed that SI would not be residing with her because of the presence of children to which she had responded “so what”. This note was not tendered but it seems accepted that she had said those words.
15Mr Weigner also gave evidence that EM had been tried but was not useful as it was not precise enough in locating SI within the boundaries of SI’s mother’s property, i.e. it could not discern if he was in fact at his ex-partner’s mother’s house.
16In cross examination Mr Weigner confirmed that SI had begun residing overnight with his mother in May 2023, progressively increasing the length of his stays to up to four nights in recent months. Mr Weigner also confirmed SI had controlled himself well when given the upsetting news of not being able to reside with his mother. Further, he was taken to the earlier e-scan of January 2023 at pages four and five and it was confirmed that his mother had an ability to challenge and guide SI as to appropriate behaviours. He accepted this was the case.
17Mr Weigner confirmed that since the January 2023 e-scan it had become apparent that there had been no contact with the ex-partner, there had been no threats toward her and that SI had indicated he wanted to make no contact with her. These were positive factors he accepted.
18Having set out those matters it became clear that the Secretary’s application crystallised into three areas of which only two remained relevant:
(a) The “reasonable concerns” of the ex-partner (the concerns of the ex-partner’s mother not being captured by s27(2));
(b) The allegation that SI’s mother had (i) concealed relevant information and (ii) was therefore not a good external support for a person with a personality disorder and intellectual disability who needs management, such as SI;
(c) The presence of children in the neighbourhood but particularly across the road from SI’s mother. This can now be put aside given there is now no evidence of the house being occupied from early July 2023. Further the evidence from the January 2023 e-scan and that of Mr Candlish is that the presence of children in “the neighbourhood” poses low risk.
The reasonable concerns of the ex-partner
19Submissions were sought from the parties as to the meaning of the text of s27(2), particularly as to the standard to be imposed when the Court is considering the “reasonable concerns of the victim”. As to whether the term, “reasonable concerns” imports an objective or subjective standard, the parties both submitted that the terms of the Act impose an objective standard, which operates within a certain context where subjective factors individual to the victim also play a role.[10] I accept the parties’ submissions on this point given the terms of the Act.
[10]Applicant’s submissions at [25], Respondent’s submissions at [22] both citing AB v Paulet [2022] VSC 414 at [256-259]
20Given that I must assess the concerns of the victim as to whether they are objectively reasonable. The reasonableness of the concerns of the victim came under attack by SI’s counsel. It was submitted that the events occurred 12 years ago, there had been no contact since that time, no expressed intention to do any harm to them, and Mr Candlish had expressed the view that SI’s ability to self-regulate had improved.
21Having considered those matters I would reject the Respondent’s submission and find that the ex-partner’s concerns are objectively reasonable. This is because the victim has personal knowledge of SI. She has had an IVO against him which attests to the fear that she was in. That order was breached so she has a real basis to suspect a Supervision Order may not protect her. Subsequent to her relationship ending is also the fact that SI has been found to have committed sex and violence offences. This is a real basis on which her concerns and ongoing fear are based.
22Next, it is apparent that the houses are within line of sight of each other, placing the ex-partner in close proximity to SI. It was from this property that he, in fact, launched his last breach of the IVO. For these reasons, I find the concerns of the ex-partner are reasonable. While the ex-partner attends on and off at her mother’s house, her mother resides at the residence, and she does regularly visit, at least twice per month, for her children to stay there.
23Given this finding, and to give effect to the purposes of s27 of the Act, the ex-partner’s concerns have to be taken into account in the synthesising exercise required in s27, which also requires the Court to take account of those conditions which constitute the minimum interference with the offender’s liberty, privacy and freedom.
24A dispute between the parties arose as to whether the term “victim” in s27(2) captured the concerns of the ex-partner’s mother. The Applicant submitted that the term ”victim” be given a broad meaning sufficient to capture the concerns of the ex-partner’s mother. The Respondent opposed such an interpretation.[11] Given my finding below this matter ultimately does not need to be resolved.
The allegation that SI’s mother had (i) concealed relevant information and (ii) was therefore not a good external support for a person with a personality disorder and intellectual disability who needs management
[11]Applicant’s submissions at [8] – [19], Respondent’s submission at [5] – [21]
25The first finding I make in this regard is that SI’s mother has not concealed relevant information. When regard is had to Exhibit A3 and the first question she was asked namely as to her “knowledge of the residents…” (my emphasis). I consider she answered as to the adult resident, being the post lady, and her children. In the subsequent conversation she mentioned children in the context of cars coming and going and only on three to four occasions. Quite clearly, she was commenting on the fact that visitors brought children to the premises in contrast to children being resident at the premises. This is made clear by her concluding comment “I didn’t know there were kids there” as a reference to the resident of the home having children of their own. I reject the interpretation put on [SI’s mother]’s words, and supported by the Applicant in this Court, by the PSB in determining she was concealing information.
26By reason of my finding that SI’s mother has been truthful the second argument of the Applicant falls away. This is because from at least the January 2023 e-scan,[12] SI’s mother has always been found to be a support for SI and important to his rehabilitation. This was confirmed by Mr Candlish. The only matter to gainsay that was her alleged selective provision of information to the PSB. With that removed I find she remains a positive factor to support SI’s integration.
[12]Exhibit A2
Synthesising the matters required by s27 of the Act
27It now falls to balance the matters set out in s27 of the Act. I bear steadily in mind the primary purpose of s27 which is the reduction of the risk of the offender reoffending by committing serious sex offences or serious violence offences. Balanced against that are the other matters set out in ss27(2), (3) and (4).
28In this case I consider the evidence of Mr Candlish to be particularly important. First as to risk, he considers in relation to the ex-partner that risk to be below moderate[13] and toward her children low.[14] As to the broader community and with no supervision order in place, he assessed moderate-high risk for sexual offending and moderate risk category for serious violence.[15] Second, he considers that there is a low risk of reoffending if transition was to occur.[16] He considers the transition should occur now and was clearly supportive of the Malmsbury property. This was because not only was SI’s mother a supportive factor but it also meant that SI was not isolated, which may increase his risk. Second, it is important that in recent history, SI has remained at her property for four nights at a time with no incident. I consider this to be strong evidence that transition to this property is suitable.
[13]July T52 L7
[14]July T47 L10
[15]Exhibit A1 230-232
[16]July T51 L18
29Next, the Act requires consideration of whether the suggested condition will promote the rehabilitation and treatment of SI. Given the evidence of Mr Candlish, it is undoubtedly positive to his rehabilitation and treatment that he makes transition at this stage. I accept that evidence.
30It was also submitted that the concerns of the ex-partner’s mother be taken into account pursuant to s27(3)(ii). Even if I was to add the concerns of the ex-partner’s mother to those of the ex-partner, I do note that there has been no attempt to contact the ex-partner or her mother or for that matter to transgress onto her property since May. During this time the Respondent has been regularly attending at the Malmsbury property and has had ample opportunity to offend against the ex-partner, but has not. Similarly, there has been no intent expressed to the specialist case manager or Mr Candlish of a desire to do so. In fact, Mr Candlish gave evidence that the thought of returning to gaol was a sufficient guardrail to prevent SI making such contact with either his ex-partner or her mother.[17]
[17]July T40
31It is also relevant to know that having a line of sight to children represents a situation of increased risk for SI. There is no line of sight from SI’s mother’s property into the ex-partner’s mother’s yard due to the presence of a large shed which blocks the view.
32Overall, then, while I have considered the ex-partner and her mother’s concerns, I do not give them great weight in the assessment.
33It is also relevant that in the balancing exercise the Court must ensure the minimum interference with the offender’s liberty, privacy or freedom. If the residence condition is imposed, as the Applicant seeks, then the Respondent will continue to be confined in a controlled facility. As to when a suitable property may be made available is completely unclear. I consider that the continual detention of the Respondent is well beyond the minimum interference with his liberty, privacy and freedom given the existence of available, suitable accommodation with his mother.
34In fact, given the evidence is that transition for him now is in the best interests of his rehabilitation, ongoing detention does not act to promote his rehabilitation. I consider this to be a significant factor weighing in the Respondent’s favour.
35Balancing those matters, I consider the Malmsbury property to be suitable and I will not make the residence condition as currently sought by the Secretary.
36I will hear from the parties as to the correct form of order. I find that a suppression order is necessary in this case as sought by the Respondent.[18]
[18]T56 L26
Postscript
37It is also necessary to make comment about a matter which arose on the first day of trial. At the commencement of the matter a “report” was received by the Court from the Post Sentence Authority (“PSA”). The letter was sent directly to the Court. A copy was provided to the Applicant but not the Respondent. I did not read the report but directed a copy be provided to the Respondent. Ultimately that was done. Counsel for the Respondent objected strongly, and I consider properly, to the direct provision of material by the PSA to the Court. I conveyed to Applicant’s Counsel my concerns that acting in such a manner gave the perception of the PSA seeking to improperly influence the Court.
38Subsequent to the hearing the PSA provided to all parties a letter which set out the circumstances of the provision of the report. It highlighted a number of administrative barriers that led to the provision of the report. It can be accepted that there was no intention to prejudice the Court, however the provision of such substantive material, as contained in the report, clearly creates the risk of the perception of that. This undermines faith in the judicial process and the administration of justice more broadly, especially given the status of the PSA as a statutory body well versed in the judicial process. It represents a situation which ought not recur.
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