Secretary to the Department of Justice and Community Safety v SJW
[2020] VSC 503
•13 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0014
| IN THE MATTER of the Serious Offenders Act 2018 | |
| and | |
| IN THE MATTER of an application under section 13(1) of the Act for a Supervision Order | |
| BETWEEN: | |
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| and | |
| SJW | Respondent |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 August 2020 |
DATE OF JUDGMENT: | 13 August 2020 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v SJW |
MEDIUM NEUTRAL CITATION: | [2020] VSC 503 |
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PUBLIC LAW – Application for supervision order – Respondent released from custody after serving sentence for murder - Interim supervision order in place – Deterioration in mental state of respondent from time of release from custody – Gambling addiction – Depressive condition – Unchallenged evidence of high risk of engaging in violent reoffending - No challenge by respondent to making of supervision order – Challenged conditions prohibiting gambling, requiring auditing of devices, and mandating electronic alcohol monitoring – Expert evidence justified imposition of all disputed conditions – Supervision order made for five years – Serious Offenders Act 2018 ss 1, 8, 13, 14, 27, 279.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Holdenson QC | Russell Kennedy |
| For the Respondent | Mr de Vietri | Victoria Legal Aid |
HIS HONOUR:
Introduction
By notice dated 24 January 2020, the Secretary to the Department of Justice and Community Safety (‘the applicant’ or ‘the Secretary’) applies for a supervision order (‘SO’) for a period of five years in respect of SJW (‘the respondent’) under s 13 of the Serious Offenders Act 2018 (‘the Act’).
The application for a supervision order is made on the grounds that the respondent poses an unacceptable risk of committing a serious violence offence if a supervision order is not made and he is in the community.
On 18 March 2020, I made an interim supervision order (‘ISO’) with a number of discretionary conditions as sought by the Secretary and consented to by the respondent. That order commenced on 20 April 2020 and remains in force until the determination of this application, but for a period not exceeding four months unless exceptional circumstances exist.
In the event that the Court is satisfied that a SO should be made, the Secretary sought the imposition of several discretionary conditions in addition to those contained in the ISO. These were conditions mandating electronic alcohol monitoring, prohibiting any form of gambling, requiring treatment for gambling, and allowing auditing of electronic devices in relation to gambling. It should be noted that the ISO contained a condition prohibiting the consumption of alcohol and a condition requiring compliance with electronic alcohol monitoring.
In two outlines of submissions filed before the hearing, the respondent indicated that he did not object to the making of a supervision order (presumably in the same terms as the interim order) but contended that such an order should not include the conditions relating to electronic alcohol monitoring, or any of the gambling conditions other than that relating to treatment.
Personal background and offence history
The respondent is 54 years old. He was adopted at a young age and has never known his biological parents. Growing up, the respondent describes having a normal childhood. He moved to Sydney aged 15 without telling his adopted parents, and never returned to reside in the family home. He has not maintained contact with his adopted parents.
The respondent has a long-standing history of opioid and benzodiazepine abuse. He commenced using heroin as a teenager when he moved to Sydney and it quickly became a daily habit. The respondent reports last using heroin five years ago, as well as using buprenorphine while in custody. He ceased use of buprenorphine around September 2019 when he recommenced participation in a methadone program, which he has continued in the community while subject to the interim supervision order.
Prior to the index offence, the respondent accumulated a criminal record dating back to 1985, including convictions for violent offending on five occasions.
The index offence occurred on 5 June 2001 when the respondent was 35 years old. He was alcohol and drug affected at the time. The respondent and a co-offender arranged to procure heroin from the victim, who later attended the respondent’s residence armed to deliver the heroin. The victim was armed with a tomahawk. An argument ensued, which progressed to a physical altercation that lasted around 10 to 15 minutes in the hallway of the respondent’s residence. The respondent struck the victim numerous times with a crowbar, killing him. The respondent has since stated that his involvement in the index offence was motivated by disparaging remarks made by the victim towards his partner at the time.
The two offenders later dismembered the victim’s body and deposited parts of it in different street bins, aided to an extent by a third offender in the disposal of the body. The applicant and the main co-offender then attended the victim’s residence to steal some of his personal belongings before setting fire to it.
Although this played no part in the sentencing facts upon which he was sentenced, after his incarceration the respondent admitted to a number of people that he had cooked and in company with the main co-offender, consumed a portion of the liver of the deceased and carved insulting words into his torso. The act of eating the part of the body of the deceased was said by the respondent to be something he brought about in order to engender loyalty from his co-offenders.
The respondent pleaded guilty to one count of murder and was sentenced by Redlich J[1] on 12 March 2003 to 18 years and 6 months’ imprisonment with a non-parole period of 16 years.[2] He served the full sentence and was released on 20 April 2020, at which time the ISO came into operation.
[1]As he then was.
[2]R v SJW, De Bono and Conci [2003] VSC 155.
Throughout his time in custody, the respondent was responsible for a large number of incidents involving violence, aggression and the use of makeshift weapons. This included offences relating to assaults on a doctor and prison officer in 2005 and 2007 respectively.
The applicable legislation
Section 1 sets out the purposes of the Act, in part, as follows:
(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…
The application is made under s 13(1) of the Act, which provides that the applicant may apply to the Court for a supervision order in respect of a person who is an eligible offender at the time the application is commenced.
The respondent was an eligible offender within the meaning of s 8(1) of the Act, when the application was filed, as he was over the age of 18 and serving a custodial sentence originally imposed by the Supreme Court for a serious violence offence within the meaning of s 3 of the Act, namely, murder.[3] The respondent is also an eligible offender under s 8(3) of the Act as he is subject to an interim supervision order.
[3]The Act, Schedule 2 , item 1.
Section 14 of the Act sets out the requirements applying to this application. It relevantly provides as follows:
(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—
…
(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.
Unacceptable risk
The Secretary has the burden of proving that an offender poses or will pose an unacceptable risk pursuant to s 14(5) of the Act.
The term ‘unacceptable risk’ is not defined in the Act but was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice (‘Nigro’)[4] in the context of the now-repealed Serious Sex Offenders (Detention and Supervision) Act 2009. The Court held:
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.[5]
…
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.[6]
[4](2013) 41 VR 359.
[5]Ibid [117].
[6]Ibid [130].
The Court of Appeal in Nigro held that the ‘unacceptable risk’ test:
…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.[7]
[7]Nigro (n 4), [5].
If granted, the supervision order will commence on the date specified in the order.[8] As stated, the Secretary seeks a period of five years for the order.
[8]The Act, s 18(1)(d). Pursuant to s 19(1) of the Act, the period of a supervision order cannot exceed 15 years.
Conditions
Section 15 of the Act dictates that a supervision order is subject to the core conditions set out in s 31 of the Act and any other conditions that the Court imposes under Division 3.
The purposes of supervision order conditions are set out in s 27 of the Act, which reads as follows:
(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.
With respect to s 27(4), conditions that may be considered onerous and a significant interference with the liberty of the respondent can nonetheless be justified in some circumstances.[9]
[9]Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600, [230]; Secretary to theDepartment of Justice and Community Safety v ME [2020] VSC 243R, [44].
Non-publication order
The respondent sought a non-publication order in place of the non-publication order made by me on 18 March 2020 as part of the ISO. The order could be made pursuant to s 279 of the Act. The Secretary neither consented to nor opposed the application for a non-publication order.
The evidence
In making a finding as to unacceptable risk, the Court is required to have regard to assessment reports and any other reports filed or evidence given.[10] In support of the application for a supervision order, the Secretary relied on the following:
[10]The Act, s 14(2)(a).
(a) the reasons for sentence of Redlich J dated 12 March 2003;
(b) the Detention and Supervision Order Assessment Report of Dr Michael Davis dated 12 December 2019 (‘the first report’) and the material relied upon for his assessment;
(c) the Addendum Report of Dr Davis dated 20 July 2020 (‘the addendum report’) and the material relied upon for his assessment;
(d) The report of Dr Leon Turnbull dated 3 August 2020; and
(e) the antecedents of the respondent (outlined in the Victoria Police Court Outcomes Report dated 5 January 2020).
The Court was advised in the filed outlines that the respondent did not seek to contest the expert reports relied upon by the Secretary and would not rely on an alternative expert report.
Reports of Dr Davis
Dr Davis, a consultant forensic psychologist, prepared two reports that have been filed with the Court in relation to the present application, based on a large volume of material and two lengthy interviews conducted by Dr Davis on 26 October 2019 and on 7 July 2020, that is, prior to and following the respondent’s release from custody.
In the first report, which became Exhibit A, Dr Davis very comprehensively set out the circumstances of the index offence, including what the respondent had subsequently said about these. He dwelt at length on the reasons for sentence, the criminal history of the respondent, his psychosocial and developmental history, his psychiatric history, his conduct in prison, and the treatment he had received there. He set out the results of psychological testing of the respondent with the use of a tool named the PAI [11], stating:
…[the respondent’s] PAI results suggested prominent difficulties with substance use, antisocial behaviour, aggression, impulsivity, and physical health complaints. There were strong indications of antisocial, paranoid, and borderline personality features and some milder symptoms of depressed mood and stress.
[11]Personality Assessment Inventory.
In the report, Dr Davis noted that the respondent has a damaged personality structure complicated by chronic and severe substance abuse and repeated periods of imprisonment.[12] He considered that the respondent met the diagnostic criteria for Opioid Use Disorder and Antisocial Personality Disorder, by virtue of his repeated offending, impulsivity, irritability, aggressiveness, and lack of remorse.[13] Dr Davis stated that the applicant also exhibits a high number of psychopathic personality features,[14] along with some prominent paranoid and borderline personality features that do not meet the full criteria for paranoid or borderline personality disorder.[15]
[12]Exhibit A, [156].
[13]Ibid [152], [156], [218].
[14]As measured by the Psychopathy Checklist–Revised (‘PCL-R’).
[15]Ibid [157], [218].
In assisting in his assessment of the risk of future violent and other offending, Dr Davis relied on the results of a number of validated tools commonly used in the area. In light of the fact that there is no challenge by the respondent to the opinions expressed by Dr Davis as to the level of risk in this case, and no challenge to the making of the SO for the duration sought by the Secretary, it is not necessary now to set out the results of the respondent on the various tools and measures upon which reliance was placed. They are disclosed fully in Exhibit A.
In dealing with the matter required to be addressed by section 269(2) of the Act, Dr Davis stated:
As noted above, a thorough assessment of relevant considerations for violence indicated that [the respondent] has a large number of static historical risk factors. These are the best predictors of violence in the long-term. He also has a large number of contextual risk factors. He currently has fewer dynamic risk factors, which would appear to cautiously reflect his seemingly more settled life at Ravenhall Correctional Centre. Nonetheless, this does not appear to temper the high risk suggested by the static and contextual factors. Indeed, [the respondent] was recently involved in a physical altercation with a fellow prisoner in August of this year. Accordingly, it is my opinion that [the respondent] currently poses a high risk for violent recidivism (i.e., considerably higher than that of the average violent offender) if released to the community and not made subject to a Detention Order or Supervision Order. Based on what is known of his previous violent offences, the most likely form of future violence will be aggression in response to perceived disrespect, injustice, or threats. This may or may not occur in the company of antisocial peers and is likely to involve verbal and/or physical violence. Such violence may be well out of proportion to any perceived threat, especially given the paranoid aspects of [the respondent’s] personality and if he is using alcohol and substances at the time. Given that he has previously committed Murder and has a history of creating makeshift weapons in prison, it is certainly possible that any future violence may reach the magnitude of an offence under Schedule Two of [the Act].[16]
[16]Exhibit A [241].
By the time of the preparation of the Addendum Report,[17] important changes had occurred in the presentation and conduct of the respondent. The respondent had engaged in problematic gambling from the time of his release, and his mental state had markedly deteriorated. In respect of the gambling, the respondent reported to Dr Davis that he had lost a considerable amount of money gambling in a number of ways, including on an on-line casino and on other on-line platforms. He described gambling having become an obsession and a problem for him, causing him to spend his available money to a problematic extent. This was in spite of the fact that he was receiving twice the amount of his usual payment from Centrelink due to the COVID-19 arrangements, and his accommodation was being paid for, both of which arrangements will shortly come to an end. He had tried to set limits for his on-line gambling, but without success. He continued to ‘chase his losses’. Explaining his excessive gambling, he said he needed the ‘rush’ it provided.
[17]Exhibit B.
During a treatment session with a counsellor the day after he saw Dr Davis on 7 July 2020, the applicant continued to open up about his gambling difficulties. He was seen to be ‘flat and deflated in his affect’. When questioned about that, he described himself as being ‘overwhelmed with his lack of life’. When his gambling use was explored, he indicated that he was gambling all of his money and did not have enough to buy food to feed himself or to pay for public transport. To support his gambling, he had borrowed money which he would not be able to pay back. The respondent noted that when he had needed money in the past, he had carried out armed robberies. During the session with the counsellor, the respondent ‘demonstrated little motivation to engage in any harm minimisation behaviours’,[18] such as using Monopoly money or wagering smaller amounts. He stated that were he to do so, the ‘risk wouldn’t be enough’. He acknowledged that one of his motivations in gambling was ‘the thrill of the risk involved’.[19] He identified other motivations as boredom, loneliness and a lack of social connection. Based on what the respondent said to the counsellor, the indications were that the fascination with gambling was long standing, dating back to when he was serving his sentence. There was also an element of secrecy to the gambling, and the counsellor considered the gambling was an outlet for the respondent’s rebelliousness.
[18]Exhibit B [19].
[19]Ibid [19].
In the Addendum Report, Dr Davis noted the respondent’s attendance at three drug and alcohol counselling sessions. He had apparently engaged well and been open about the challenges he had encountered in the community, but indicated his determination to remain substance-free.
Dealing with the matter of the respondent’s progress on the ISO, Dr Davis noted that the he had ‘amassed a number of incident reports during his relatively short period in the community’.[20]
[20]Exhibit B [81].
Dr Davis repeated the battery of tests and measures upon which reliance was put in the first assessment. The PAI results contained some changed or additional information relative to the results in October 2019, reflective of the respondent’s changed and deteriorating circumstances. The results were indicative of a person who was confused and socially isolated, and tense and pessimistic about what the future may hold. He harboured significant suspiciousness and hostility in his relations with others, and was quick to feel that he is being treated inequitably, often holding grudges against others even if the perceived affront was unintentional. The results suggested a number of difficulties consistent with a significant depressive experience. He was likely to be plagued with thoughts of worthlessness, hopelessness and personal failure. His pattern of responding suggested that he was likely to be experiencing notable stress and turmoil in a number of major life areas. Of the overall results of the PAI, Dr Davis stated:
While the previous administration was marked by a number of difficulties, the current PAI results indicated considerably increased clinical concerns and emotional turmoil. Indeed, there were notable increases in regard to depressed and variable mood, physical health concerns, the experience of anxiety and perceived stress, aggressive attitudes, and psychotic experiences.
…
[The respondent’s] current PAI results strongly indicate that his mental state has deteriorated considerably since our previous assessment in October 2019. His characteristic paranoid, borderline, and antisocial features are accompanied by a number of increased difficulties with acute clinical issues. It is particularly concerning that worrying levels of psychotic symptoms and disordered thinking were suggested by the current PAI results.[21]
[21]Ibid [110]-[111].
Dr Davis used a further measure not relied on in his first report as an adjunct to the PAI to provide a comprehensive assessment of the respondent’s personality. This was the Personality Inventory for DSM-5 (‘PID-5’). Dr Davis stated:
In summary, [the respondent’s] results on the PID-5 indicated that he has an unusually large number of problematic personality features. While these results were likely exaggerated to a similar degree to those of the PAI above, the sheer number of problematic features still suggested a severely disordered personality structure. It is my opinion that some of these identified trait facets reflected, to some degree, current mental state issues (such as anxiety, depressed mood, and unusual perceptual experiences), that have essentially occurred on top of his underlying disordered personality. Taken together, the results of the PAI and the PID-5 provide a rich description of [the respondent’s] current presentation. They indicate that he is a severely personality disordered individual who is currently also experiencing a marked and concerning degree of stress and turmoil that is greatly affecting his mental state.[22]
[22]Ibid [119].
In setting out his diagnostic opinion in the Addendum Report, Dr Davis noted that that opinion had changed to some degree since the previous assessment. He stated:
In addition to his substance use and personality disorder diagnoses, it is my opinion that [the respondent] has developed two additional diagnoses since his release to the community in April 2020. Indeed, his mental and emotional state has clearly deteriorated since our previous assessment. His mood is low, yet also rapidly shifting, and the form of his thinking is not as coherent as it was during our previous assessment. [His] current gambling behaviour clearly meets the formal criterial for Gambling Disorder (episodic, moderate severity). As the name suggests, this is a condition in which problematic gambling behaviour leads to clinically significant impairment or distress. In addition, it is my opinion that [the respondent] is currently experiencing a noticeable and problematic degree of depressed mood. While this is still not at the magnitude of a major depressive episode, it does meet the criterial for Depressive Episode with Insufficient Symptoms (with anxious distress). It should be noted that [the respondent’s] personality structure is characterised by shallow emotional expression. As such, the magnitude of his depressed mood is always going to be difficult to determine. It is my opinion that his current presentation is perhaps the lowest that he can experience given his characterological shallow emotions. Accordingly, it is causing [him] considerable difficulty.[23]
[23]Ibid [125].
Dr Davis was of the view that the various diagnostic issues are interrelated.
As he had done previously, Dr Davis carried out a detailed risk assessment of the respondent, relying on a number of measures. In the circumstances, I will not set out the results of the various measures. In respect of the HCR-20, Dr Davis noted an increase in some of the dynamic risk factors since the previous assessment, reflecting the respondent’s deteriorating mental state. He went on to state:
However, and to his credit, while [the applicant] has experienced some violent ideation since his release to the community in April 2020, he has not been physically violent. Nonetheless, it is my opinion that [he] continues to currently pose a high risk for violent recidivism.
The high risk for violence posed by the respondent as indicated by HCR-20 was reflected in the results for another measure relied upon by Dr Davis, namely, the Short-Term Assessment of Risk and Treatability (‘START’).
Dr Davis expressed the view that the respondent’s gambling behaviour requires treatment. He had refused to discuss his gambling in any detail during supervision and had consistently refused any attempts to refer him to specialised gambling treatment. Dr Davis described this as an ‘urgent’ and ‘crucial’ treatment need.[24]
[24]Ibid [144].
In addition, Dr Davis advised that a review of the respondent’s medication with a psychiatrist should occur, in light of the current increase in concerning symptoms of depression and his long-term use of an antidepressant. Additionally, it was recommended that the respondent continue to try to develop social connections and identify meaningful leisure activities. The respondent expressed an interest in adopting a dog, which Dr Davis considered could address those needs to some degree.
In conclusion, Dr Davis confirmed his opinion that particularly with the recent increase in dynamic risk factors, the status of the dynamic items does not temper the high risk suggested by the static factors. He opined that the respondent:
currently continues to pose a high risk for violent recidivism (i.e., considerably higher than that of the average violent offender) if released to the community and not made subject to a Detention Order or Supervision Order. Based on what is known of his previous violent offences, the most likely form of future violence will be aggression in response to perceived disrespect, injustice or threats. This may or may not occur in the company of antisocial peers and is likely to involve verbal and/or physical violence. Such violence may be well out of proportion to any perceived threat, especially given the paranoid aspects of [the respondent’s] personality, and if he is using alcohol and substances at the time. Given that he has previously committed Murder involving anthropophagy, and had a history of creating makeshift weapons in prison, it is certainly possible that any future violence may reach the magnitude of an offence under Schedule Two of the Serious Offenders Act 2018.
It must be stressed that [the respondent’s] recent deterioration in mental state, and concomitant increase in risk factors, is likely to continue in the coming months…Accordingly, all of these matters require urgent attention and considerable support…Further deterioration is seemingly inevitable and can only serve to increase the risk of violence.[25]
[25]Ibid [150]-[151].
In his sworn evidence before me, Dr Davis commenced by confirming that the facts stated in his two reports were true and that he still held the opinions expressed in the reports. In respect of the things stated by the respondent about his gambling situation, Dr Davis described them as ‘a nice description of what it’s like to be a pathological gambler’.[26] In addressing the deterioration which had occurred to the time of his most recent assessment of the respondent, and noting the looming financial problems as a result of the gambling, Dr Davis described it as being:
like seeing a car crash about to happen a few months in advance and that we’ve got an opportunity now to maybe step in and do something about it.[27]
[26]Transcript 22.
[27]Ibid 25.
Dr Davis explained why he believed the gambling of the respondent had got to its current pathological level. He described the respondent as being a ‘cortically under-aroused’ person who requires stimulation to a greater degree than the normal person, hence his history of substance abuse. He had tried hard not to use illicit substances, and had turned to gambling instead to ‘give a buzz to the pleasure centre of his brain’.[28] In that way, the gambling was really being used as a substitute for the thrill of illicit substance use. On that score, Dr Davis pointed out that in the Diagnostic and Statistical Manual, Gambling Disorder was actually contained in the substance use chapter as it was considered an equivalent form of addiction. In the case of the respondent, he could not be viewed as someone who ‘likes to have a flutter’. He is someone for whom gambling has become an obsession.
[28]Ibid 26.
Dr Davis was asked by Mr Holdenson QC, for the Secretary, whether the respondent’s problematic gambling feeds into the risk factors for violence or emotional or behavioural instability, an unstable living arrangement, lack of personal support and difficulties with stress or coping. He answered:
Yes, it does, your Honour. To be clear, the gambling use disorder or the gambling disorder itself isn’t a risk factor and in fact if that was happening amongst someone who was independently wealthy it wouldn’t really be having any effect on his risk of violence, it’s the fact that it is having an effect on a whole number of risk factors, particularly the ones that I had rather presciently by looking at it now pointed out would increase his risk that is the problem here. So it’s not a risk factor in and of itself but it is causing other risk factors to become more problematic.[29]
[29]Ibid 27.
He said that a nice way of putting it was that the gambling problem was an indirect risk factor for committing a serious violence offence.[30]
[30]Ibid 28.
Turning to the alcohol issue, Dr Davis stated that consumption of alcohol would play a role in the respondent’s risk of engaging in violence in light of his history of intoxication at the time of the index offence and the fact that alcohol would lower his inhibitions and ability to tolerate frustration. It was a more direct risk factor than gambling.
In cross-examination by Mr de Vietri, for the respondent, Dr Davis agreed that to his credit, the respondent was open and talkative about the gambling challenge which had arisen. It may be possible for his gambling to be reduced such that it would not be an indirect risk factor, but the problem as Dr Davis saw it was that he is a person who does not do things in moderation. He did not know whether the applicant would be able to gamble in a way that was not compulsive. When asked to compare the efficacy of two scenarios, one where there was treatment and a continuation of gambling, and the other where there was treatment and a prohibition on gambling, Dr Davis did not believe he could comment. When asked whether it would be easier to gauge the effectiveness of treatment in a context of continued gambling, he stated:
Possibly. I think when you’ve got someone who’s at the level of addiction where [he] is, that a lot of times just being totally abstinent is the way to go. So alcoholics generally do not try to have – you know, when they’ve been very severe alcoholics won’t – won’t go and have one drink here or two drinks there or anything like that.
Dr Davis agreed that there was the risk, in the face of prohibition, that the respondent may continue to gamble but in a clandestine manner.
On the question of alcohol, Dr Davis noted that the respondent has expressed dissatisfaction and discomfort in respect of the use of the SCRAM[31] bracelet which has been in place during the ISO. The real cause of his dissatisfaction, as Dr Davis understood it, was that the respondent was concerned that the presence of the bracelet may cause others to believe that he was a sex offender. Dr Davis agreed that there was nothing in the material which he had reviewed to indicate that the respondent was actively seeking to drink alcohol. That was in spite of the fact that one of the people he knew who lived in the same block of flats was an alcoholic. Were the respondent to successfully abstain from alcohol without a SCRAM bracelet, that may potentially give him a sense of achievement and be a positive thing in his rehabilitation.
[31]Secure Continuous Remote Alcohol Monitoring system.
Finally in cross-examination, Dr Davis indicated that he was supportive of a suppression order being made.
Report of Dr Turnbull
Dr Leon Turnbull, an occupational and forensic psychiatrist, carried out an assessment of the respondent as a result of the view of Dr Davis that a review of medications would be indicated. In the circumstances, it is not necessary to summarise the contents of the report.
Evidence of Kaitlyn Mallett
Ms Kaitlyn Mallet, an assistant manager within the Post Sentence Branch of Corrections, gave evidence in support of the Secretary’s desire to have a SCRAM bracelet used in the case of the respondent. She spoke of the limitations in the otherwise available measures to detect alcohol use by the respondent, especially in light of the COVID-19 limitations on face-to-face meetings. The level of risk posed by alcohol use by the respondent dictated that to her mind, there needed to be an ability to monitor alcohol used on a continuous basis. The respondent had had difficulties complying with orders in the past, as demonstrated by the fact that the index offence had been committed when he was on parole and he had failed to comply with other court orders. The recent changes in the respondent’s state, whereby he had shown an increased level of stress, led to a heightened risk of alcohol use with the resulting increase in the risk of violence. The witness expressed the concern that the respondent was not currently able to independently abstain from alcohol without a level of external monitoring. Furthermore, he had not shown himself to be a reliable self-reporter. In the absence of continuous knowledge as to any alcohol use by the respondent, the community was not being protected as well as possible.
In cross-examination, Ms Mallett agreed that the SCRAM bracelet was not able to be used when swimming, and the respondent had expressed his dissatisfaction about being required to wear a bracelet.
Submissions on behalf of the Secretary
Mr Holdenson relied on the written outline of submissions dated 3 August 2020 and oral submissions before me. Mr Holdenson took the Court through the legal framework of the Act, relating the evidence before the Court to the legal requirements. It was not disputed that a SO should be made, and for the period of 5 years sought by the Secretary. Mr Holdenson submitted that there had been no challenge to the magnitude of the risk as revealed by the opinions of Dr Davis. Nor was there any dispute as to the nature, gravity and consequences of any reoffending. In the circumstances, I could be readily satisfied that the respondent poses an unacceptable risk as required by s 14(1)(b).
In respect of the disputed SCRAM condition, Mr Holdenson submitted that these are still the early days after release of an offender for whom substance use is a significant risk factor. His risk has escalated somewhat in the short time since his release on the ISO. In his time in custody and since, very limited if any gains have been made in treating his drug and alcohol problems. In the current climate, there would be limited opportunities to detect any alcohol use. Mr Holdenson submitted, as detailed in the written outline, that all of the requirements of s 27 of the Act were made out in respect of the alcohol monitoring condition.
Turning to the challenged gambling conditions, Mr Holdenson submitted that the gambling of the respondent had quickly reached the status whereby it justified the diagnosis made by Dr Davis of Gambling Disorder. The behaviour was impacting upon the amount of money available to the respondent to buy food. The money pipeline would soon contract substantially. If the situation was not dealt with soon, there will be a problem. This was something which had gone well beyond betting which could be viewed as a pastime or hobby, or something done for enjoyment. Mere treatment would not be sufficient. There needed to be prohibition. The risk posed by the respondent had increased as a result of the gambling issues. He was stressed and struggling to cope with loneliness. Mr Holdenson pointed to the language of paragraph 151 of the Addendum Report. He submitted that the requirements of s 27 of the Act were well and truly met.
In respect of the disputed alcohol and gambling conditions, Mr Holdenson pointed out that if there was a change for the better in future, it would be open for the respondent to seek a review of the conditions.
Submissions on behalf of the respondent
Mr de Vietri, referring to his updated outline of submissions, indicated that there was no dispute that the Court could be satisfied that it was appropriate to make a SO. In issue were a number of the discretionary conditions sought, namely, the condition requiring compliance with electronic alcohol monitoring (condition 6.8.2 in the draft SO provided), the condition prohibiting him engaging in any form of gambling except in accordance with the written directions of the Post Sentence Authority (condition 6.10), and the condition requiring him to comply with auditing of his devices (condition 6.11).
In respect of the electronic alcohol monitoring condition, Mr de Vietri submitted that the imposition of that condition would be inconsistent with the minimum interference principle in s 27(4)(a). There were five other mechanisms in place which could be used to monitor alcohol use other than a SCRAM bracelet, including the still-possible face-to-face visits by the police. Furthermore, the evidence of Dr Davis made it clear the respondent had not exhibited any inclination towards the use or abuse of alcohol since his release in April 2020. The respondent did not challenge the contention that conditions prohibiting the use of alcohol and monitoring alcohol use were necessary, but in the current circumstances, and considering the very significant interference a SCRAM bracelet would cause to bodily integrity, the requirement for electronic alcohol monitoring could not be justified in light of s 27(4)(a).
Turning to the challenged gambling conditions, Mr de Vietri acknowledged the evidence of Dr Davis as to the particular urgency of addressing the gambling issue. Through Mr de Vietri, the respondent consented to engage in treatment for his gambling problem, accepting that:
there is a need to address this problem getting any further out of control and indeed, reducing his current gambling, so as not to be in the situation where he can’t afford rent or food in the future.[32]
[32]Transcript 71.
Mr de Vietri urged the Court to take an ‘incremental approach’ to the gambling issue, by first attaching the condition of compulsory treatment, and allowing the respondent in the meantime to engage in the treatment and counselling, whilst having the choice whether to gamble or not, ‘either responsibly or potentially not’.[33] He submitted that this would be a much more efficacious way to introduce the respondent to gambling treatment, and would provide more motivation for the respondent to engage in treatment on a genuine level. He would still be able to ‘see that prospect of being able to enjoy a seven or ten dollar bet on horses once a week or buying a Tattslotto ticket on a weekend’.[34] If the respondent saw no hope of being able to engage in a pastime which brings him some pleasure, that may crush the prospect of progress in treatment, submitted Mr de Vietri. Furthermore, the respondent may see the imposition of a prohibition as being somewhat of a breach of trust, in view of his openness in discussing the issue. Mr de Vietri also submitted that if it became apparent in future that prohibition was necessary, the Secretary could apply for the additional condition to be imposed.
[33]Ibid 71.
[34]Ibid 71-2.
As for the auditing condition, it was opposed for reasons of privacy, the minimum interference principle extending to privacy, it was submitted. The respondent had been open in respect of the gambling situation, and in those circumstances, the auditing condition could not be justified. In the alternative, Mr de Vietri urged the Court to consider imposing limitations over the way in which the auditing would occur, for instance by limiting the number of audits in a given period.
Analysis
In this proceeding I read and heard evidence of a very high standard, principally from Dr Davis, a consultant forensic psychologist of considerable experience and standing in the field of risk assessment. I have summarised the important aspects of his evidence in this judgment. I will not repeat them here. I note, as I said at the time of making the ISO, that Dr Davis has conducted a very thorough review of every relevant aspect of this case. He based his most recent opinions on a very substantial body of material, two very long and detailed consultations with the respondent, and the reliance upon the results of numerous tests and tools which, in light of his considerable expertise, he was well qualified to resort to. The opinions of Dr Davis were to be found in reports of extraordinary detail and thoroughness, and the evidence he gave before me was exemplary. The evidence was essentially unchallenged.
In the circumstances, and paying due regard, of course, to the lack of opposition by the respondent to this outcome, I am satisfied to a high degree of probability by the evidence, which I consider to be both acceptable and cogent, that the respondent would pose an unacceptable risk of committing a serious violence offence if a supervision order is not made and the respondent is in the community. In those circumstances, I have determined that it would be appropriate for me to exercise my discretion to make the SO for the duration sought by the Secretary.
Turning to the challenged conditions, and dealing first with the electronic alcohol monitoring condition, I note first of all the proven link between the respondent’s intoxication at the time and the commission of the index offence, along with the part alcohol apparently had to play in others of his convictions. The respondent was denied alcohol for the many years of his imprisonment, and there is no evidence that he has sought to consume alcohol since his release. Nonetheless, a complete prohibition on the use of alcohol has been sought, and not challenged by the respondent. This is understandable, and in keeping with the proven and strong addictive tendencies of the respondent, and the powerful part alcohol played in his offending in the past. In many cases, a condition of a supervision order prohibits the consumption of alcohol to excess. In this case, the unchallenged condition will prohibit, entirely, the consumption of alcohol. That is an indication of the importance of stopping the respondent from consuming any alcohol, to ensure his risk of violent reoffending does not increase.
In those circumstances, it is clearly of great importance that the respondent’s compliance with the prohibition be adequately monitored and enforced. There is no question that the best way of ensuring and monitoring compliance is the use of a SCRAM bracelet. There is a price to pay for this level of control, to be found in the somewhat cumbersome profile of the bracelet, the attendant potential emotional effects on the wearer who may consider that the bracelet will attract notice, and the requirement that it not be fully immersed in water. I have taken into account all of these issues, and the strong objections the respondent has to being made to wear such a bracelet, which has been a part of his life since the commencement of the ISO.
Electronic alcohol monitoring was recently considered in a similar matter before Elliott J,[35] in which his Honour determined to impose the condition in circumstances where the respondent had a lengthy history of alcohol abuse, including having been affected by alcohol at the time of his previous violent offending.[36] In addressing the need for such a condition, his Honour expressed satisfaction that it represented the minimum interference contemplated by s 27(4)(a) of the Act, observing:
In short, in light of the violent history of SM involving alcohol, SM’s history of alcohol abuse, the expert evidence as to disinhibition if excessive alcohol were to be consumed by SM and the grave consequences that might follow, it is essential that the Authority be able to monitor whether or not SM has consumed alcohol beyond an acceptable level.[37]
[35]Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707.
[36]Ibid [37], [42].
[37]Ibid [105] - [106].
By contrast, Champion J determined to refuse the imposition of an electronic alcohol monitoring condition in a recent application for an interim supervision order.[38] In so determining, his Honour took into account the physical aspects of wearing the electronic alcohol monitoring bracelet, together with an electronic location monitoring bracelet.[39] His Honour was ultimately not satisfied that the evidence before the Court was sufficient to justify the making of such a condition, particularly given that the respondent would still be subject to alcohol prohibition and supervision conditions.[40] I note that in that case, there was no evidence that the abuse of alcohol either contributed to the commission of the index offence or featured during the respondent’s time in custody.[41] Further, the expert evidence was that the abuse of alcohol might be a risk marker for future violent offending, rather than an indicator of imminent risk.[42]
[38]Re ME [2020] VSC 243R (Champion J).
[39]Ibid [31]-[33], [51].
[40]Ibid [61]-[62].
[41]Ibid [54], [57], [59].
[42]Ibid [58].
In the present case, it was accepted by the sentencing judge that the respondent was affected by alcohol and Serepax, a benzodiazepine medication, at the time of the alleged offending.[43] Justice Redlich went on to state that ‘[t]he effects of alcohol, Serepax and heroin may in part explain your callous and macabre treatment of [the victim’s] body and the arson of his bungalow’.[44] Dr Davis similarly stated:
[the respondent]’s use of alcohol and benzodiazepines at the time of the murder likely served to further lower his already impoverished ability to empathise and tolerate frustration.’[45]
[43]R v SJW & Ors (n 2) [46].
[44]Ibid.
[45]Exhibit B [221].
In assessing the effect of alcohol and substance abuse on the respondent’s level of risk, Dr Davis stressed that such use does not cause him to be violent. Rather, it ‘further reduces his already compromised inhibitions and his ability to tolerate frustration or perceived disrespect’.[46]
[46]Ibid [237].
As things currently stand, the ability of the authorities to effectively monitor any alcohol use by the respondent is substantially curtailed. Many interactions which would ordinarily occur face-to-face are presently occurring electronically. That is not to say that there have not been occasions when the police have visited the applicant face-to-face, but that has amounted to only ten occasions in the months since the ISO commenced. The fact is that the opportunities for the authorities to have suspicion on reasonable grounds that the respondent has breached the prohibition condition are currently much reduced, and will be for some months to come at least.
In the circumstances, and bearing in mind the purposes for which conditions may be imposed under s 27 of the Act, and the minimum interference principle set out in s 27(4), I consider that the imposition of the electronic alcohol monitoring condition is justified in this case.
Turning to the impugned gambling conditions, to my mind, the position is even more clear.
The evidence of Dr Davis revealed a very significant deterioration in the mental state of the respondent from the time of his release from custody. Seemingly at the very heart of that deterioration was the serious gambling addiction to which the respondent has become subject in the relatively short period of time since his release. The seriousness of the problem, or obsession as the respondent himself described it, is well illustrated by the fact that the burgeoning problem already qualifies for the diagnosis of Gambling Disorder. This disorder is apparently of the nature of a drug addiction. Addiction is something to which the respondent is clearly subject. That would explain why, in spite of his knowledge of the very undesirable effects that the squandering of money on gambling has had on his life, he has apparently been powerless to control himself, and resistant to even trying in any real way. The rapidly deteriorating position of the respondent as a result of his addiction was described by Dr Davis as ‘like seeing a car crash about to happen a few months in advance’.
It is very apparent that clear and strong action is required in order to try to halt the decline in the respondent’s mental state, and the corresponding increase in the risk of reoffending.
Mr Holdenson submitted that in light of the evidence of Dr Davis as to the gambling problem and the extent and speed of the deterioration in the mental state of the respondent, a prohibition on gambling is required to try to reduce the risk of reoffending, and to protect the community. Mr de Vietri urged upon the Court ‘an incremental approach to the gambling issue’.[47]
[47]Ibid 71.
This request for an incremental approach has, at its heart, the assumption that a requirement that the respondent attend treatment and support groups, whilst continuing to gamble as he chooses, may be a sufficient means of bringing the gambling addiction under control and halting and reversing the deterioration in his mental state largely brought about by the rampant gambling.
To my mind, in view of the obvious seriousness of the problem now being faced by the respondent, the speed with which it has come to the fore, the motivations behind his gambling habits, and his personality as revealed by the evidence, that is an unrealistic hope. It is reasonably clear, for now and for the foreseeable future at least, that the respondent is not a person who would realistically be able to content himself with the occasional seven or ten dollar flutter on the horses, or any other gambling platform. He is a person for whom, in a matter of months, gambling became a major obsession which qualified for the diagnostic label of Gambling Disorder, and interfered substantially with his life and his sense of wellbeing.
In my view, the evidence would justify strong action being taken now to try to rectify or control the situation. The imposition of a prohibition on gambling would be well-justified, and entirely in keeping with the principles contained within s 27 of the Act.
There may come a time in future when the progress of the respondent in the gambling treatment and counselling to which he will be subject, and his overall mental state, may warrant a relaxation of the prohibition. Indeed, I note that the proposed condition contains an exception ‘in accordance with the written directions of the Post Sentence Authority’.[48] If things change in future so that what is currently a harmful and dangerous obsession for the respondent can realistically be viewed as no more than a manageable interest or pastime which does not interfere substantially with his mental state or increase the risk he poses of future violent offending, then the prohibition condition would no longer be able to be justified, and would be amenable to review on the application of the respondent or the Secretary.
[48]Condition 6.10.
As for the audit condition, the opposition to that was relatively restrained, and in the end, perhaps the main focus of Mr de Vietri’s submissions was that the audit powers should be restricted or limited. In my view, once a decision is made, as it has been, that a condition prohibiting gambling is justified and appropriate, there must be proper means in place to monitor compliance with that condition. The audit condition proposed is designed to achieve that aim, and is capable of doing so. I think that such a condition is in keeping with the requirements and purposes of s 27 of the Act, and would comply with the minimum interference requirement in s 27(4) of the Act.
Conclusion
For the reasons stated above, I will make the SO sought by the Secretary, with the conditions and for the duration sought. The order will commence on 13 August 2020 and the order will remain in force for five years. The latest date by which the Secretary must apply for the first review of the order under Part 8 of the Act is 12 August 2023.
Pursuant to s 279 of the Act, being satisfied that it in the public interest to do so, I order that any information before the Court in this proceeding that might enable the respondent or his location to be identified must not be published until:
(a) the next review of the supervision order is heard and determined;
(b) the expiry or revocation of the supervision order;
(c) further order of the Court,
whichever occurs first.
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