Secretary to the Department of Justice and Community Safety v SM
[2019] VSC 497
•22 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CI 2019 0010
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| v | |
| SM | Respondent |
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JUDGE: | ELLIOTT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 July 2019 |
DATE OF RULING: | 22 July 2019 |
CASE MAY BE CITED AS: | The Secretary to the Department of Justice and Community Safety v SM |
MEDIUM NEUTRAL CITATION: | [2019] VSC 497 |
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CRIMINAL LAW – Application for extension of interim supervision order – Directions hearing – Whether exceptional circumstances exist justifying extension – Public interest – Previous convictions for contraventions – Previous delay – Serious Offenders Act 2018 (Vic), ss 1(a), 3, 8, 13, 14, 31, 32, 33, 34, 35, 46, 47, 49, 54, 56, 57, 58, 59, 126, 173(6), 279.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Flynn QC | Victorian Government Solicitor |
| For the Accused | Ms N Kaddeche | Leanne Warren and Associates |
HIS HONOUR:
A. Introduction
The Secretary to the Department of Justice and Community Safety (“the Secretary”) applies, pursuant to s 57 of the Serious Offenders Act 2018 (Vic) (“the Act”),[1] to extend an interim supervision order made by this court in respect of SM[2] (“the Order”).
[1]Pursuant to s 57(5) of the Act, an application to extend an interim supervision order may be made, as here, by oral submission at a directions hearing. See also the Act, s 126.
[2]Pursuant to s 279 of the Act, an order has been made restricting publication of SM’s identity.
For the reasons that follow, the court is satisfied that “exceptional circumstances” exist within the meaning of s 54(2) of the Act, and, further, that an extension of the Order is justified, and in the public interest.[3]
[3]See ss 47(1), 58(2), 59(1).
Orders will be made today extending the Order for a further 4 months, on the basis that the Secretary’s application under s 13(1) of the Act for a supervision order in respect of SM be listed for hearing on 22 October 2019.
B. Background
On 14 January 2019, the Secretary filed applications for:
(1) An interim supervision order in respect of SM, pursuant to s 46(1) of the Act (“the Interim Order Application”).
(2) A supervision order in respect of SM, pursuant to s 13(1) of the Act (“the Supervision Order Application”).
The Interim Order Application was heard on 1 April 2019, and 8 April 2019. On 8 April 2019, the Court made the Order. The Order relevantly included:
The Order remain in force until determination of the application for a supervision order, and, in any event, for a period not exceeding 4 months, unless the Order is extended pursuant to s 58(1)(a) of the Act…
(Emphasis added.)
At the time the Order was made, the Supervision Order Application was listed for hearing on 17 June 2019, a date well within the period of the Order.
Shortly before that date, on 6 June 2019, SM was arrested and charged with, amongst other charges, 2 counts of contravening a condition of the Order (“the First Contravention Charges”).[4] SM was remanded in custody pending the hearing of those charges. The following day, the proceeding relating to the First Contravention Charges was transferred to this court pursuant to s 173(6) of the Act, by an order of the Magistrates’ Court of Victoria.
[4]See Director of Public Prosecutions v SM [2019] VSC 466, [4]-[9].
On 7 June 2019, the solicitors for the Secretary emailed the court, advising of SM’s arrest. They further advised that they were not then in a position to file a proposed supervision order or submissions in support of the Supervision Order Application as they were awaiting materials relating to SM’s arrest, and would, in light of those materials, require further instructions in relation to the conditions of the proposed supervision order.
On 12 June 2019, the Secretary filed a proposed supervision order and submissions in support of the Supervision Order Application.
On 13 June 2019, the solicitors for SM, in an email to the court, advised that SM was not then in a position to file submissions in response, and proposed the adjournment of the hearing of the Supervision Order Application. This was because, amongst other matters, it was said that SM’s arrest and remand had made it difficult for SM to provide his solicitors with specific instructions.
That same day, the court sent an email to the parties requesting that the Secretary provide a response to the proposed adjournment. On 14 June 2019, the solicitors for the Secretary, by email, advised that the Secretary was prepared to proceed with the hearing of the Supervision Order Application listed for 17 June 2019.
On 17 June 2019, counsel for SM made an application to adjourn the Supervision Order Application. That application was made on the basis that material relating to the First Contravention Charges, and the outcome of those charges, could impact the court’s assessment of risk for the purposes of the Supervision Order Application.[5] Appropriately, so much was accepted by counsel for the Secretary.
[5]See s 14(1)(b) and (2)(a).
Accordingly, the court granted the adjournment. The court ordered that: (1) the hearing of the Supervision Order Application be adjourned to 22 July 2019; and (2) SM, if so advised, file and serve any further material on which he sought to rely by 15 July 2019.
On 24 June 2019, a hearing relating to the First Contravention Charges was held. SM pleaded guilty to those charges. The court imposed an aggregate fine in the sum of $500.[6]
[6]See Director of Public Prosecutions v SM [2019] VSC 466, [18].
On 12 July 2019, 10 days before the date listed for the hearing of the Supervision Order Application, SM was arrested again and charged with a further 2 counts of contravening a condition of the Order (“the Second Contravention Charges”).[7] SM was remanded in custody pending hearing of those charges.[8] That same day, the proceeding relating to the Second Contravention Charges was transferred to this court by an order of the Magistrates’ Court of Victoria.
[7]See Director of Public Prosecutions v SM (No 2) [2019] VSC 491, [9].
[8]Time spent in custody on remand or serving a custodial sentence during the period of the Order counts in calculating the period of the Order: the Act, s 54(3).
On 16 July 2019, the solicitors for the Secretary, in an email, advised the court of SM’s arrest and the Second Contravention Charges, and requested that the hearing of the Supervision Order Application be further adjourned. That email relevantly stated:
As per last time, I understand that it is desirable for the [Second Contravention Charges] to be finalised before the [Supervision Order Application]. As such, I would ask respectfully that the hearing on [22 July 2019] be vacated.
Additionally, the Secretary is now considering her position regarding the conditions sought for the supervision order. I should have updated instructions as to the Secretary's position by Friday at the latest. If the Secretary's position does change, it will likely mean further and new evidence is required, and the hearing should be vacated.
The court requested a response from SM’s solicitors. Later that day, the solicitors for SM, by email, confirmed that SM wished to join the Secretary’s application to further adjourn the hearing of the Supervision Order Application.
On 17 July 2019 the court advised that, for the convenience of the parties, both the Supervision Order Application and the proceeding related to the Second Contravention Charges would:
be listed for 10:30 am on Monday, 22 July 2019, on the understanding that the [Supervision Order Application] will be adjourned for hearing on a later date.
Today, the court conducted a hearing relating to the Second Contravention Charges. SM pleaded guilty to those charges. In the course of that plea hearing, counsel for SM raised concerns relating to the relatively remote rural location at which SM, at the direction of the Secretary, currently resides.[9] Those concerns related to the availability of local drug and alcohol treatment services at that location, and SM’s level of isolation.[10] At that plea hearing, the Secretary indicated that further drug and alcohol treatment would be made available to SM, and SM indicated that he would undertake such treatment.[11] In respect of the Second Contravention Charges, SM was sentenced to an aggregate term of imprisonment of 10 days, reckoned as time already served.[12]
[9]The Order contains a condition relating to residence under s 34 of the Act.
[10]See Director of Public Prosecutions v SM (No 2) [2019] VSC 491, [15]-[18].
[11]Ibid, [17].
[12]Ibid, [27]. See above fn 8.
Also today, the court directed, with the parties’ consent, that a directions hearing be conducted in respect of the Supervision Order Application.[13] At that hearing, counsel for the Secretary made, by way of oral submission,[14] the present application to extend the operation of the Order for a further 4 months.
[13]Section 126(1).
[14]See s 57(5).
C. Legislative framework
In broad terms, the Act provides for the post-sentence detention or supervision of offenders who have served custodial sentences for “serious sex offences”[15] or “serious violence offences”,[16] or both, and present an ongoing “unacceptable risk of harm to the community”.[17]
[15]Section 3 (definition of “serious sex offence”), sch 1.
[16]Section 3 (definition of “serious violence offence”), sch 2.
[17]Section 1(a).
For the purposes of this application, it is necessary to set out the framework for the making of interim supervision orders in some detail.
The Secretary may make an application for an interim supervision order in respect of an “eligible offender” who is the subject of an application for a supervision order, or for a renewal of a supervision order.[18]
[18]Section 46(1). The definition of “eligible offender” is set out in s 8 of the Act.
An application for an interim supervision order may be commenced at the same time as an application for a supervision order, or for a renewal of a supervision order, or some later time, but, in any event, must be made before the application for a supervision order, or for a renewal of a supervision order, is determined.[19]
[19]Section 46(4).
However, the making of a supervision order need not be preceded by the making of an interim supervision order. A person is an “eligible offender”, and so may be the subject of an application for a supervision order, whilst they are still serving a custodial sentence imposed by this court (or the County Court) for the relevant “serious sex offence” or “serious violence offence”, or some other custodial sentence served cumulatively on that sentence.[20] Indeed, in determining whether the making of an interim supervision order is justified, a matter to which the court must have regard is why the application for a supervision order was not, or will not be, determined before the offender’s release from custody.[21]
[20]Section 8(1).
[21]Section 47(2)(a).
Where, as has occurred in this proceeding, the application is for an interim supervision order preceding determination of an application for a supervision order, the court may make an interim supervision order if it is satisfied that, relevantly, the following 3 conditions are met:
(1) An application for a supervision order in respect of the “eligible offender” has been commenced but not determined,[22] and the “eligible offender” is no longer, or will not be, remanded in custody or serving a custodial sentence when the application for a supervision order is determined.[23]
[22]Section 47(1)(a)(i).
[23]Section 47(1)(a)(ii)(A).
(2) It appears to the court that the documents in support of the application for a supervision order would, if proved, justify the making of a supervision order.[24]
(3) The court is satisfied that it is in the public interest to make an interim supervision order.[25]
[24]Section 47(1)(b).
[25]Section 47(1)(c).
This standard is much less demanding than the standard applicable to the making of a supervision order,[26] in 2 material respects. [27]
[26]Compare, especially, s 47(1) and s 14(1) of the Act.
[27] See further pars 36-37 below.
First, it requires satisfaction of a less demanding legal standard. Whilst a court may make an interim supervision order if it is satisfied, amongst other things, that it is in “public interest to do so”, the court may only make a supervision order if it is satisfied that the “eligible offender”:[28]
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.
(Emphasis added.)
[28]Section 14(1)(b) (with respect to an offender on whom a custodial sentence has been imposed for a serious violence offence).
Secondly, it is subject to a less demanding evidentiary standard. By contrast to the condition set out in paragraph 26(2) above, a court may only make a supervision order if the Secretary has in fact discharged the burden of proving that the eligible offender does or will pose an “unacceptable risk” of committing a further serious sex offence or a serious violence offence, or both, absent a supervision order.[29] To discharge that burden, the court must be:[30]
satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk.
(Emphasis added.)
[29]Section 14(5).
[30]Section 14(3).
Turning to matters relating to the length of an interim supervision order, save for in “exceptional circumstances”, the total period of an interim supervision order must not exceed 4 months. Section 54 of the Act relevantly provides:
(1)Subject to subsection (2), the period of an interim supervision order is a period not exceeding 4 months specified by the court in the order.
(2)The maximum period of an interim supervision order, including any extensions, must not exceed 4 months unless the court making or extending the interim supervision order is satisfied that exceptional circumstances exist.
(Emphasis added.)
The Secretary may apply, pursuant to s 57 of the Act, to extend an interim supervision order at any time before its expiry.[31] In determining any application to extend, the court must be satisfied that the conditions applicable to the making of an interim supervision order are met in respect of any extension.[32] If so satisfied, the court may extend an interim supervision order, and vary, add, or remove conditions of that order.[33]
[31]Section 57(1).
[32]Sections 47(1), 58(2). These conditions are set out at par 26 above.
[33]Section 58(1) and (3).
D. Meaning of “exceptional circumstances” in s 54(2)
The primary issue to be resolved in the present application is whether, in the circumstances, the court may be satisfied that exceptional circumstances exist.
The phrase “exceptional circumstances” is nowhere defined in the Act. Nonetheless, the phrase appears frequently in legislation,[34] and has been considered in other legislative contexts. Whilst it is always necessary to consider statutory language in the specific context in which it appears,[35] the following observations are presently relevant:
[34]See Coulston v State Coroner of Victoria [2018] VSC 103, [30] (Garde J).
[35]See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69]-[71] (McHugh, Gummow, Kirby, and Hayne JJ).
(1) The ordinary meaning of “exceptional” is “unusual, special, out of the ordinary course”, and, therefore, something more than a mere variation from the norm.[36]
[36]Owen v Stevens (Unreported, Supreme Court of Victoria, Hedigan J, 3 May 1991) 14, 16, referred to with approval in R v Steggall (2005) 157 A Crim R 402, 406 [12] (Nettle JA, with whom Buchanan and Eames JJA agreed).
(2) In light of the ordinary meaning of its constitutive words, “exceptional circumstances” can be understood to connote circumstances “clearly unusual, or quite special or distinctly out of the ordinary”.[37] This description captures circumstances outside the range of “normally anticipated consequences, behaviours or exigencies”, albeit not necessarily “beyond reasonable expectation or contemplation”.[38]
(3) In general, the question of what constitutes “exceptional circumstances” will be a question of fact and degree, about which reasonable minds may differ, at least to some extent.[39] That assessment must be informed by the purposes of the Act in which the phrase appears, and the relative interests of the participants in the proceeding.[40]
[37]R v Ioannou (2007) 17 VR 563, 568 [17] (Redlich JA, with whom Chernov and Vincent JJA agreed). There, the phrase appeared in the Sentencing Act 1991 (Vic), s 31(5A), which formed part of a scheme by which a court was required to restore an offender’s suspended sentence where an offender committed another offence punishable by imprisonment during the period of a suspended sentence, save for where it would be unjust in view of “exceptional circumstances”. As to the formulation in other legislative contexts, see, for example, MAC v R (2012) 34 VR 193, 203 [44] (Nettle JA, with whom Bongiorno JA agreed); Director of Public Prosecutions v Archer [2018] VSC 155, [5] (Bell J).
[38]R v Ioannou (2007) 17 VR 563, 568 [17].
[39]MAC v R (2012) 34 VR 193, 203 [42].
[40]Owen v Stevens (Unreported, Supreme Court of Victoria, Hedigan J, 3 May 1991) 16.
Turning to the specific context in which the phrase appears in the Act, when viewed as a whole, “exceptional circumstances” is plainly intended to be a standard requiring unusual circumstances consistent with the authorities referred to above. That is, circumstances outside the range of “normally anticipated consequences, behaviours or exigencies” arising under the statutory regime created,[41] considered in light of the circumstances of the case more generally.[42]
[41]Ibid, 14.
[42]Cf Coulston v State Coroner of Victoria [2018] VSC 103, [30] (Garde J).
In determining whether unusual circumstances exist, it must be kept in mind that the Act discloses an intention that interim supervision orders be used in limited circumstances[43] and for a strictly time-limited purpose: namely, addressing any risk posed by the person the subject of the order in the very near-term, pending the determination of a primary application for a supervision order, or the renewal of a supervision order. The Act presumes that the hearing and determination of that primary application should require less than 4 months.[44] As the explanatory memorandum states,”[a]n interim supervision order is not intended to address [the risk posed by the subject of the order] on a long-term basis”.[45]
[43]See par 25 above. In particular, s 47(2)(a) discloses a preference that, where possible, an application for a supervision order be determined without recourse to an interim supervision order.
[44]See, for example, s 54, and also s 56.
[45]Explanatory Memorandum, Serious Offenders Bill 2018 (Vic), 34, addressing cl 54 of the Bill.
Further, although an interim supervision order may be made on the satisfaction of a much less demanding standard than a supervision order,[46] it may, save for its strict time limitation, intrude on the liberty of its subject to the same extent as a supervision order. For example, interim supervision orders and supervision orders must each impose the core conditions contained in s 31,[47] and in making both types of orders, the court must consider imposing the conditions set out in ss 34 and 35 of the Act.[48] Though made on the satisfaction of very different standards, the conditions of an interim supervision order and any supervision order which may supersede it may well be identical in every respect save for their respective periods.
[46]See pars 27-29 above.
[47]See s 49.
[48]See ss 33, 49.
The much less stringent legal standard applicable to interim supervision orders is deliberately counterbalanced in the Act by a much more stringent time limitation. Unless that time-limitation is departed from only rarely, that is in “exceptional circumstances”, the Act’s intended balance between the protection of the community and the liberty of persons subject to interim supervision orders would be disrupted, or even potentially undermined.
E. Ruling
For the purpose of s 58(2) of the Act, I am satisfied that the conditions applicable to the making of an interim supervision order are, again, met. SM remains an eligible offender,[49] the Supervision Order Application has been commenced but not determined, and SM is no longer in custody.[50] Further, it appears that the materials in support of the Supervision Order Application would, if proved, justify the making of a supervision order in respect of SM.[51] Indeed, there have been relatively few additions to the materials that were before the court at the time of the hearing of the Interim Order Application. Furthermore, I am satisfied that it is in the public interest to extend the Order.[52] SM’s convictions on the First and Second Contravention Charges only serve to strengthen the public interest in his ongoing supervision at present.
[49]Section 8(3) of the Act provides that a person is an eligible offender if, amongst other things, the person is the subject of an interim supervision order.
[50]See s 47(1)(a)(i) and (ii)(A).
[51]See s 47(1)(b).
[52]See s 47(1)(c).
In addition, I am also satisfied that “exceptional circumstances” exist justifying an extension of the Order. Those circumstances include the following matters, as identified by counsel for the Secretary and counsel for SM:
(1) As a result of the First and Second Contravention Charges (the latter having occurred very recently), and given SM’s current circumstances, lawyers for the Secretary must now seek additional instructions from the Secretary in relation to whether, for the purposes of the Supervision Order Application, the Secretary now wishes to propose:
(a) An intensive treatment and supervision condition under s 32 of the Act.
(b) Making certain of the conditions that are presently non-restrictive in the Order restrictive conditions.
(2) In light of matters raised at the plea hearing for the Second Contravention Charges consideration will now be given as to whether SM may be moved from the location at which he currently resides, to a less isolated location closer to Melbourne.
(3) Whilst these first 2 matters could be resolved by 2 August 2019, by that stage, counsel for SM, who has been retained in this matter from the outset, would then be unavailable to appear for an extended period of time, and it is in the parties’ interest that her involvement continue if it is reasonably practicable.
Further, the exceptional circumstances exist by reason of 2 additional matters:
(1) There have been considerable delays in this proceeding by reason of the First and Second Contravention Charges, both of which shortly preceded listed hearing dates for the Supervision Order Application, which hearing dates were then adjourned. These delays have necessarily had a cascading effect,[53] because of the limited availability of key participants in the proceeding, including, in particular, the Secretary’s expert medical witness, who has prepared the assessment report mandated by s 13(2)(b) of the Act.
(2) The court will, for the purposes of the Supervision Order Application, be required to engage in a risk-assessment of SM.[54] In doing so, the court will, given recent developments, be assisted by consideration of the results, if any, of the treatment for SM with respect to drug dependency.
[53]See, for example, par 39(3) above.
[54]Section 14(1)(b).
I am satisfied that the matters identified constitute, at the very least in combination, exceptional circumstances, in that they are unusual circumstances outside the range normally anticipated.
Accordingly, orders will be made extending the Order for a further 4 months, on the basis that the Supervision Order Application be listed for hearing, by consent, on 22 October 2019.
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