Secretary to the Department of Justice and Community Safety v SJW (No 2)

Case •

[2023] VSC 506

•

24 August 2023

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2020 0014

SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY
v
SJW

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JUDGE:

TINNEY J

WHERE HELD:

Melbourne

DATE OF HEARING:

24 August 2023

DATE OF JUDGMENT:

24 August 2023

CASE MAY BE CITED AS:

Secretary to the Department of Justice and Community Safety v SJW (No 2)

MEDIUM NEUTRAL CITATION:

[2023] VSC 506

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CRIMINAL LAW – Supervision order – Serious violence offender – Periodic review of supervision order – Respondent previously subject to intensive treatment and supervision condition but now transitioned back into the community – Respondent still a high risk of future violent offending, in spite of progress – Unchallenged evidence of psychologist – Supervision order confirmed with same conditions - Non-publication order sought by respondent, challenged by applicant – Non-publication order made – Serious Offenders Act 2018 ss 14, 99, 104, 105, 106, 279.

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APPEARANCES:

 Counsel Solicitors
For the Applicant Mr P Holdenson KC Emma Fitzgibbon, Russell Kennedy Lawyers
For the Respondent Mr T McCulloch Nicholas Howard, Victoria Legal Aid

HIS HONOUR:

Introduction

  1. The Secretary to the Department of Justice and Community Safety (‘the Secretary’) brings an application under s 99 of the Serious Offenders Act 2018 (‘the Act’) for the first and final periodic review of the supervision order (‘SO’) to which the respondent SW has been subject since 13 August 2020.

  1. The background to the making of the SO is set out in the judgment of the Court in Secretary to the Department of Justice and Community Safety v SJW.[1] I will not set it out here.

    [1][2020] VSC 503.

  1. After a period of time spent residing in Rivergum Residential Treatment Centre (‘Rivergum’), SW has now transitioned back into the community and is living in rented premises in a western suburb of Melbourne. The indications are that he is settling in well.

  1. The Secretary, for whom Mr Holdenson KC appears, seeks the confirmation of the SO on the same conditions as those which currently apply, save for the deletion of aspects relevant to the intensive treatment and supervision (‘ITS’) condition which no longer apply.

  1. SW, for whom Mr McCulloch appears, does not oppose the confirmation of the SO on the conditions sought.

  1. At issue between the parties is whether or not the Court should make a non-publication order under s 279 of the Act. Mr McCulloch seeks the continuation of the order that has thus far been in place. Mr Holdenson opposes the making of a non-publication order.

Legislative framework

  1. The purpose of a review such as this is to determine whether the SO currently in place should remain in operation or be revoked, and if revoked, whether it should be replaced with a different order.[2]

    [2]The Act, s 104(a).

  1. Section 105 of the Act provides:

(1)In reviewing a detention order or supervision order, the court must consider—

(a)       a progress report relating to the offender; and

(b)any other report made, or evidence given, by a medical expert; and

(c)       any report made by the Secretary, the DPP or the Authority; and

(d)      any submissions made by the parties to the review.

(2)In reviewing a detention order or supervision order, the court may also consider—

(a)any previous assessment report or progress report filed with the court in relation to the offender; and

(b)       anything else that the court considers appropriate.

  1. For present purposes, I would be required to revoke the SO unless satisfied that SW still poses an unacceptable risk of committing a serious violence offence if a SO is not in effect and he is in the community.[3]

    [3]The Act, s 106(1).

  1. In determining whether SW poses or will pose an unacceptable risk, I must not have regard to the means of managing the risk or the likely impact of a SO on SW.[4]

    [4]The Act, s 106(2) and 14(2)(b).

  1. In order to be satisfied as required by s 106(1), I would need to be satisfied ‘by acceptable, cogent evidence to a high degree of probability that [he] poses or will pose an unacceptable risk’. [5]

    [5]The Act, s 106(2) and 14(3).

  1. I may determine that SW poses or will pose an unacceptable risk even if the likelihood that he will commit a serious violence offence is less than more likely than not.[6]

    [6]The Act, s 106(2) and14(4).

  1. The Secretary has the burden of proving that SW poses or will pose an unacceptable risk.[7]

    [7]The Act, s 106(2) and 14(5).

  1. In the present circumstances, I am required to confirm the SO unless I revoke it.[8] If I confirm the SO, I may vary, add or remove any condition of the order or vary the maximum intervals between applications for review.[9]

    [8]The Act, s 106(4).

    [9]The Act, s 106(5).

The evidence

  1. The material upon which the Secretary principally relies is the Progress Report of Dr Joel Godfredson dated 22 May 2023 which was tendered as exhibit A on the hearing.

  1. Aided by his previous knowledge of the respondent, placing reliance on a large body of material, and with the assistance of the results of two widely-accepted professional tools, the HCR-20 (Version 3) and the Psychopathy Checklist, Revised (PCL-R), Dr Godfredson was of the view that a consideration of SW’s violence risk profile indicates that he falls into the high risk category.

  1. That is not to say that SW has not made progress since the earlier determinations of him as posing a high risk of future violence. As was stated by Dr Godfredson:

Overall, Mr W’s engagement in the intensive and immersive treatment at Rivergum was exemplary. Despite significant responsivity factors related to his personality and experience of institutionalisation, Mr W readily grasped sophisticated treatment concepts. Moreover, he applied these concepts to his psychological functioning with humility and honesty.

Without diminishing his positive progress in treatment, Mr W continues to experience pervasive self-regulation difficulties (i.e., planning deficits) which predispose him to substance misuse, problem gambling, impulsive spending, and poor decision-making. Furthermore, Mr W is prone to being overwhelmed by everyday tasks, leading to expressions of helplessness and hopelessness. Similarly, Mr W can be surprisingly naïve, leaving him vulnerable to exploitation (e.g., susceptible to ‘scams’).[10]

[10]Exhibit A [197] – [198].

  1. In assessing the most likely scenario for future violent offending by the respondent, Dr Godfredson opined:

The nature and gravity of any violent offences committed by Mr W may depend on a number of contextual variables, including substance intoxication, pent up resentment and anger, the intensity of perceived conflict with the victim, and the availability of weapons. The severity of the offence might also depend on Mr W’s evaluation as to whether bystanders might revere or detest violent behaviour. In my opinion, Mr W’s risk status encompasses offences listed in Schedule 2 of the Serious Offenders Act 2018. Mr W’s risk for violence is likely to be elevated in the context of a lifestyle characterised by substance abuse, associating with antisocial peers, and stressful circumstances and events.[11]

[11]Ibid [220].

  1. Dr Godfredson identified factors which would increase the respondent’s risk of reoffending as follows:

    i.Unstable accommodation;

    ii.Stress and difficulty coping, including boredom and loneliness;

    iii.Misuse of illicit substances[12] and prescription medications;

    iv.Poor financial management;

    v.Association with antisocial peers;

    vi.Unemployment or otherwise poor use of time; and

    vii.Supervision and/or treatment non-compliance.

    [12]Which, as Dr Godfredson made clear in his evidence, included alcohol.

  2. In respect of his continuing assessment of the respondent as posing a high risk of committing a serious violence offence, Dr Godfredson stated:

It remains the case that any material reduction in Mr W’s risk status may not be apparent until he returns to the broader community. Notwithstanding the instances of non-compliance, Mr W should be congratulated for his participation in a very intensive and challenging episode of treatment.[13]

[13]Ibid [202].

  1. Amongst the other material relied upon by the Secretary was a document prepared by Sarah Hill from Rivergum dated 22 August 2023 setting out a summary of the respondent’s participation in the program and treatment progression. It would be correct to say that the document confirmed the generally good performance of the respondent in his time at Rivergum, the relatively positive current prognosis, and the need for further supervision and support to be provided.

  1. Dr Godfredson was called to give evidence before the Court, confined to the discrete question of whether or not a non-publication order should be made. He gave evidence in support of the making of such an order. He expressed the opinion that the publication of the name and whereabouts of SW may be counter-productive to his rehabilitation. A vital component of his rehabilitation is his capacity to accrue protective factors. Whilst the respondent himself may not be particularly concerned about members of the public finding out about his history, if the public became aware of his background, this would have the potential to compromise his activities in the community in a number of respects. Furthermore, it might increase the prospects of negative peers from his past seeking to renew contact with him. That would be detrimental to his ongoing rehabilitation, and he is still in the early stages of ‘learning to say no’, as Dr Godfredson put it.

Submissions of counsel

  1. Mr Holdenson relied on the continuing assessment by Dr Godfredson of the respondent posing a high risk of committing a serious violence offence if in the community and not subject to a SO in support of the contention that I should be satisfied that he poses an unacceptable risk within the meaning of s 106(1) of the Act. He submitted that the satisfaction of the primary purpose of the Act of enhancing the protection of the community would be best served by the respondent remaining subject to a SO.

  1. As for the conditions sought to be included in the order, they comply with s 27 of the Act, and do not offend the requirement that the Court must ensure that the conditions imposed constitute the minimum interference with the respondent’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions, and are reasonably related to the gravity of the risk of the respondent re-offending.

  1. As indicated earlier, the respondent did not seek to resist the confirmation of the SO with the conditions sought by the Secretary.

  1. On the matter of the application for a non-publication order, Mr McCulloch submitted that a consideration of the circumstances, including the affirmed evidence of Dr Godfredson on the matter, should lead the Court to the view that it would clearly be in the public interest to make the order sought.

  1. Mr Holdenson opposed the making of a non-publication order. He drew the Court’s attention to the matters to which the Court is required to have regard set out in s 280 of the Act, and focused attention on part (d) of the provision which concerns the offender’s compliance with the order made under the Act. He understandably placed reliance on the respondent’s repeated contraventions of conditions of the SO. It was submitted that the respondent’s contraventions are significant due to the nature of the non-compliances and the fact that they are closely related to factors which increase his risk of reoffending. It was further submitted that the respondent’s non-compliance with the SO demonstrates a disregard for the SO conditions, and should be considered by the Court when determining whether or not to make a non-publication order.

Analysis

  1. This review turns on the question whether the respondent would pose an unacceptable risk of committing a serious violence offence if his supervision order is revoked and he is in the community.

  1. In considering the meaning of the phrase ‘unacceptable risk,’ it is not necessary to look beyond what was said on the matter by the Court of Appeal in Nigro v The Secretary to the Department of Justice (‘Nigro’):[14]

To prescribe what degrees of risk may or may not be unacceptable would remove the test of its necessary flexibility. The legislature has deliberately selected a threshold test that does not specify a particular degree of risk. Rather, the test requires an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which the offender had previously committed such an offence. It is the combination of these factors that will determine whether the risk of occurrence is of a sufficient order to make the risk unacceptable. [15]

[14](2013) 41 VR 359 (Redlich, Osborn and Priest JJA).

[15]Nigro [117]. I note that this is a decision in the context of the now-repealed Serious Sex Offenders (Detention and Supervision) Act 2009.

  1. As the Court of Appeal in Nigro made clear, the focus of an assessment of risk is first, the nature and gravity of the consequences of the harm should it arise, and second, the likelihood of the harm arising. This requires the Court to consider the offender’s likely future conduct and their specific circumstances, with the Court of Appeal cautioning against making generalisations about the general character of the contemplated offending or the sentences which may be attracted.[16]

    [16]Nigro [130]. See also, Secretary to the Department of Justice and Community Safety v TA [2021] VSC 530 [33], [314]-[315] (Taylor J).

  1. The test of unacceptable risk will turn on the facts and expert opinions put before the Court in evidence, however, it is underpinned by the principle that:

The test of unacceptable risk should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection.[17]

[17]Nigro [5].

  1. In light of the unchallenged evidence of Dr Godfredson as to the high risk of future violence still posed by the respondent, and the nature and gravity of the violent offences which may be committed by the respondent should the risk materialise, I am satisfied that the Secretary has demonstrated – to a high degree of probability – that the respondent would pose an unacceptable risk of committing a serious violence offence were the SO to be revoked and he to be residing in the community.

  1. Notwithstanding that conclusion, I make the observation that the respondent’s successful graduation from the intensive program at Rivergum and the progress he has made mark significant steps in his rehabilitation.

  1. On the matter of the application for a non-publication order, there is evidence which would justify a view that were the circumstances of the respondent to become publicly known, there would be the potential for his rehabilitative progress to be hampered or imperilled. In respect of Mr Holdenson’s particular reliance on the many contraventions there have been thus far of conditions of the SO as demonstrating a disregard for the SO by the respondent, in many respects throughout the course of the SO, the respondent has shown due respect for the order. As I indicated earlier today when sentencing the respondent for a number of such contraventions, I think that the contraventions should be seen more as products of his particular damaged personality structure and vulnerabilities, especially during the recent challenging months, than as deliberate and uncaring breaches.

  1. In the circumstances, albeit with some hesitation, I have decided that it would be in the public interest to make the non-publication order sought.

Conclusion

  1. The SO is confirmed in the terms and with the conditions sought by the Secretary and contained within the draft orders provided to the Court.

  1. A non-publication order is made pursuant to s 279 of the Act in the terms set out in the draft orders.


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