Secretary to the Department of Justice and Community Safety v SM (No 2)
[2019] VSC 707
•29 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 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 October 2019 |
DATE OF JUDGMENT: | 29 October 2019 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v SM (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 707 |
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CRIMINAL LAW – Application for supervision order – Respondent the subject of interim supervision order – Previous contraventions of interim supervision order – Consequential delay in hearing application –“Unacceptable risk” of committing serious violence offence – Purposes of supervision order – Disputed conditions – Duration of order – Residence requirement – Curfew requirement – Alcohol consumption and monitoring – Other conditions – Stable living situation and single address - High risk of reoffending despite existence of protective factors – Potential misuse of alcohol and disinhibition – Serious Offenders Act 2018 (Vic), ss 1, 5, 6, 8, 12, 13, 14, 15, 19, 27, 28, 33, 34, 35, 99, 110, 125, 132, 269, 279, 290, 291, Sch 2, Sch 3.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Gurvich QC | Victorian Government Solicitor |
| For the Respondent | Ms N Kaddeche | Leanne Warren and Associates |
HIS HONOUR:
A.Introduction
The applicant, the Secretary to the Department of Justice and Community Safety (“the Secretary”), applies for a supervision order pursuant to s 13 of the Serious Offenders Act2018 (Vic) (“the Act”).
The Secretary makes the application on the basis that SM[1] is an eligible offender.[2] There is no issue in this regard, as SM is over the age of 18, has had a custodial sentence imposed upon him for a serious violence offence and was serving a custodial sentence cumulatively on that custodial sentence in Victoria at the time of the application.[3] He is also an eligible offender as SM is subject to an interim supervision order.[4]
[1]Pursuant to s 279 of the Act, an order has been made restricting publication of SM’s identity.
[2]The proceeding was commenced in this court because SM was sentenced by this court: s 12(1). See also s 12(3).
[3]See s 8(1) and Schedule 2.
[4]See s 8(3). See par 10 below.
SM does not oppose a supervision order being made. However, issue is taken with the proposed duration of the order sought, together with certain proposed conditions.
For the reasons stated below, a supervision order will be made substantially in the terms sought by the Secretary, save that the duration of the supervision order will be for a period of 1 year and 9 months from the date of these reasons.
B.Background
B.1 SM’s history
SM has spent most of his adult life in custody. He was convicted of murder at the age of 19. At the time he committed this serious violence offence[5] he was affected by alcohol. In July 1990, he was sentenced to 19 years’ imprisonment, with a non-parole period of 15 years.[6]
[5]Schedule 2, item 1.
[6]The sentence of 19 years was in addition to a period of approximately 12 months SM had already spent in custody. An appeal of the sentence by SM was dismissed.
Whilst on parole in February 2006, SM crashed a stolen motor vehicle into a house. He threatened a person living at the house with a firearm, then left the scene. When confronted by the police soon after, he fired at least 5 shots towards them. One officer suffered minor injuries.
In October 2007, SM was sentenced to a term of 9 years and 3 months’ imprisonment for, amongst other things, reckless conduct endangering life (2 counts), and carrying an unregistered firearm whilst a prohibited person.[7] SM served that full sentence, which expired on 6 April 2019. He was released from custody on that day.
[7]All sentences imposed were ordered to be served cumulatively upon the breach of parole that SM was then serving: see s 8(1)(b).
SM’s criminal history began before he was convicted of murder at the age of 19. In 1982, he appeared before the Children’s Court and was committed to care with respect to a charge of burglary. In 1985, he was sentenced to probation for 26 weeks, after being charged with assault with a weapon, and ordered to attend drug and alcohol counselling. In 1988, SM was fined $100 on various charges, including assaulting police and being drunk in a public place. In the same year, he was fined $500 for the charge of burglary and $200 for theft.
B.2 Early stages of this proceeding
On 14 January 2019, the Secretary applied to this court for a supervision order. On the same day, the Secretary applied for an interim supervision order pursuant to s 46(1) of the Act.[8]
[8]As to the conditions that must be met before an interim supervision order may be made, see Secretary to the Department of Justice and Community Safety v SM [2019] VSC 497, [26].
SM is the subject of an interim supervision order made on 8 April 2019 (“the Interim Order”), which provides as follows:[9]
[9]An initial order was made on 1 April 2019 that was the subject of minor amendment on 8 April 2019.
1.The orders made … on 1 April 2019 be vacated.
2.[SM] be subject to a further interim supervision order (“the Order”) under the Act.
3.The Order is to commence on 8 April 2019.
4.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 (“the Period”).
Conditions of the Order
Core conditions
5.Pursuant to s 31 of the Act, the core conditions of the Order are that during the Period:
(1)[SM] must not commit a serious sex offence in the State of Victoria or elsewhere.
(2)[SM] must not commit a serious violence offence in the State of Victoria or elsewhere.
(3)[SM] must not commit an offence referred to in Schedule 3 of the Act in the State of Victoria or elsewhere.
(4)If the court requires [SM] to reside at a residential facility or the Post Sentence Authority (“the Authority”) directs [SM] to reside at a residential facility, [SM] must not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility.
(5)If the court requires [SM] to reside at a residential facility or the Authority directs [SM] to reside at a residential facility, [SM] must obey all instructions given by a supervision officer or a specified officer under s 183 of the Act.
(6)If the court requires [SM] to reside at a residential treatment facility, [SM] must not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility or visitors to the facility.
(7)If the court requires [SM] to reside at a residential treatment facility, [SM] must obey all instructions given by a supervision officer or a specified officer under s 183 of the Act.
(8)[SM] must not engage in any behaviour or conduct that threatens the safety of any person, including himself.
(9)[SM] must attend at any place he is directed by the Authority for the purpose of administering the conditions of the Order.
(10)[SM] must attend at any place he is directed by the Authority for the purpose of making assessments required by the court, the Secretary to the Department of Justice and Community Safety (“the Secretary”) or the Director of Public Prosecutions for the purposes of the Act (including attending a personal examination by a medical expert for the purpose of providing the court with a report to assist the court in determining the need for, or the form of, any condition of the Order).
(11)[SM] must report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of s 31(12) of the Act.
(12)[SM] must notify the Authority of any change of employment or new employment (whether paid or unpaid) at least 2 clear days before commencing the changed or new employment.
(13)[SM] must not leave the State of Victoria except with the permission of the Authority granted either generally or in relation to a particular case.
(14)[SM] must comply with a direction given by the Authority under the emergency power in s 142 of the Act.
(15)[SM] must obey all instructions given under s 209 of the Act by a community corrections officer or a specified officer.
Additional conditions under ss 34, 35, 38 and 50 of the Act
6.Pursuant to ss 34, 35, 38 and 50 of the Act, the following additional conditions also apply to the Order:
(1)[SM] must reside each night at [ADDRESS], Victoria, or where otherwise directed by the Authority (“the Residence”).
(2)[SM] must be present at the Residence between 11.00 pm and 6:00 am each night, unless otherwise directed by the Authority.
(3)If instructed by a supervision officer, [SM] must:
(a)Attend for assessment for treatment or rehabilitation programs or activities; and
(b)Participate in such programs or activities,
as instructed.
(4)[SM] must not consume alcohol, save for:
(a)No more than 150 millilitres of wine, or, in the alternative to wine, no more than 2 cans of 375 millilitres of beer, per day; or
(b)If, in the reasonable opinion of the Authority, there has been a breach of condition 6(4)(a) above, then only in accordance with any written directions of the Authority, provided that [SM] has received written notice from the Authority of the alleged breach and the written directions.
(5)[SM] must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully, or abuse drugs of any kind.
(6)[SM] must submit to breath testing, urinalysis or other test procedures (other than blood tests) approved by the Secretary or the Chief Commissioner of Police, as the case may be, for the detection of alcohol or drug use, at the direction of:
(a)An officer (as defined in s 211 of the Act) who has reasonable grounds to suspect that [SM] has breached either condition 6(4) or 6(5) of the Order, or both conditions, by consuming alcohol or using drugs, or both; or
(b)If [SM] is not residing at a residential facility or residential treatment facility, a police officer who has reasonable grounds to suspect that [SM] has breached either condition 6(4) or 6(5) of the Order, or both conditions, by consuming alcohol or drugs, or both.
(7)[SM] must not knowingly have contact with any persons with whom [SM] has previously committed prior criminal offences, including:
(a)Any form of physical contact;
(b)Any form of oral communication (whether face-to-face, by telephone, or by use of the internet); or
(c)Any form of written communication (whether electronic or otherwise),
except for contact:
(d)With such persons, if contacted by them, to inform that person or those persons that he cannot communicate with them; or
(e)In accordance with the written directions of the Authority.
(8)[SM] must not knowingly have any contact with the victims of any violent offences committed by him, or their families, including:
(a)Any form of physical contact;
(b)Any form of oral communication (whether face-to-face, by telephone, or by use of the internet); or
(c)Any form of written communication (whether electronic or otherwise),
except for contact:
(d)With such persons, if contacted by them, to inform that person or those persons that he cannot communicate with them; or
(e)In accordance with the written directions of the Authority.
(9)[SM] must:
(a)Comply with monitoring as to his whereabouts, including electronic monitoring;
(b)Comply with electronic alcohol monitoring,
unless otherwise directed by the Authority.
(10)Pursuant to s 35(2) of the Act, [SM] must:
(a)Comply with any direction given by the Authority relating to electronic monitoring;
(b)For 24 hours of each day, be electronically monitored and wear an electronic monitoring device or electronic monitoring devices fitted to him at the direction of the Authority;
(c)Ensure that any electronic monitoring device fitted to him remains operational (including being charged) at all times;
(d)Not tamper with, damage, disable or remove any electronic monitoring device or equipment used for electronic monitoring;
(e)Accept any visit by the Secretary to the place where [SM] resides, at any reasonable time and for any purpose including to install, repair, fit or remove any electronic monitoring device or equipment used for electric monitoring.
(11)[SM] must not contravene the Firearms Act 1996 or the Control of Weapons Act 1990.
Further additional conditions under s 36 of the Act
7.Pursuant to s 36(1) of the Act, the Authority is authorised to give directions to [SM] in relation to the operation of any condition of the Order.
8.Pursuant to s 36(7) of the Act, [SM] must comply with any direction under an authorisation pursuant to s 36 of the Act.
Other matters
9.Pursuant to s 279 of the Act, the court is satisfied that it is in the public interest to order that any information before the court in this proceeding that might enable [SM] or his location to be identified, must not be published until the application for the supervision order is heard and determined.
10.There is liberty to apply.
The final hearing with respect to the application for a supervision order was listed for 17 June 2019. However, the hearing did not proceed on that day as SM was arrested shortly before then.[10]
[10]On 17 June 2019, SM successfully applied to adjourn the hearing until 22 July 2019: Secretary to the Department of Justice and Community Safety v SM [2019] VSC 497, [12]-[13].
B.3 Contraventions of the Interim Order
On 24 June 2019, SM pleaded guilty to 2 charges of contravening a condition of the Interim Order. In particular, SM pleaded guilty to contravening condition 6(5) by: (1) using a prohibited drug, namely, buprenorphine; and (2) possessing the same prohibited drug. SM was fined $250 for each charge, giving an aggregate fine in the sum of $500.[11]
[11]Director of Public Prosecutions v SM [2019] VSC 466.
On 12 July 2019, 10 days before the rescheduled date for the final hearing, SM was arrested again. On 16 July 2019, the Secretary sought a further adjournment of the final hearing, which was subsequently supported by SM. The matter was listed on 22 July 2019 on the basis that the final hearing would be adjourned to a later date.
On 22 July 2019, SM again pleaded guilty with respect to contravening the Interim Order. On this occasion, SM was charged with the use of “Amphetamine/Methylamphetamine” and the use of buprenorphine. At the time of the hearing, SM had already spent 10 days in custody. As a result of pleading guilty to these charges, SM was sentenced to an aggregate term of imprisonment of 10 days, with that term being reckoned as a period of imprisonment already served.[12]
[12]Director of Public Prosecutions v SM (No 2) [2019] VSC 491.
B.4 Extension of the Interim Order
Also on 22 July 2019, an application was made by the Secretary to extend the duration of the Interim Order for a further 4 months. The application was made, pursuant to s 57 of the Act, on the basis that exceptional circumstances existed within the meaning of s 54(2), that the extension was justified and that it was in the public interest. That application was successful.[13] By agreement, the final hearing was fixed for 22 October 2019.
[13]Secretary to the Department of Justice and Community Safety v SM [2019] VSC 497.
B.5 Amendments to the Interim Order
At the final hearing on 22 October 2019, various matters arose that were relevant to the ongoing operation of the Interim Order. SM contended that the curfew imposed by condition 6(2) was creating difficulties with him being able to be at worksites by 7.00 am. Accordingly, it was requested that the curfew be changed from “11 pm to 6 am” to “11 pm to 5 am”. That change was not opposed.
Further, although not the subject of direct evidence, the court was informed that SM had been the subject of criticism from some quarters because he was consuming beer from a vessel that was not a can. Accordingly, the parties agreed it was appropriate to introduce the words “the equivalent of” before the reference to “two cans” in condition 6(4)(a).
Finally, although not strictly necessary, the court was invited to amend the place of residence identified in condition 6(1) of the Interim Order, so as to reflect SM’s present living arrangements.
As a result, the Interim Order (which remains on foot) was amended to reflect these 3 further matters.
C.The legislative foundation of the present application
The primary purpose of the Act is providing for enhanced protection of the community by requiring offenders who have committed serious sex offences or serious violence offences, or both, and who present an unacceptable risk of harm to the community, to be the subject of ongoing detention or supervision. Another purpose is facilitating the treatment and rehabilitation of those offenders.[14]
[14]The Act, s 1(a) and (b). The Act commenced on 3 September 2018, and repealed the Serious Sex Offenders (Detention and Supervision) Act2009 (Vic). That Act contained a similar scheme with respect to offenders who had served custodial sentences for serious sex offences.
A proceeding under the Act is civil in nature, unless otherwise provided.[15]
[15]Section 6(1). However, civil rules of practice and procedure do not apply: s 6(2).
Once it is established that a respondent is an eligible offender, the Act provides for a two-step process for determining whether or not a supervision order should be made by the court.
First, the court may only make a supervision order if satisfied that 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.[16] The court may only be so satisfied by acceptable, cogent evidence to a high degree of probability,[17] and the Secretary has the burden of proof.[18] However, the court may determine an offender poses or will pose an unacceptable risk even if the likelihood of that is “less than more likely than not”.[19]
[16]Section 14(1)(b), which relates specifically to offenders, such as SM, who have been the subject of a custodial sentence for a serious violence offence.
[17]Section 14(3).
[18]Section 14(5).
[19]Section 14(4).
Secondly, if the court is so satisfied, the court then has a discretion as to whether or not to make a supervision order.[20]
[20]Section 14(6).
The term “unacceptable risk” is not defined in the Act. As is apparent from what has been set out above, the term is directed towards the risk of committing a serious sex offence or a serious violence offence, or both, rather than a more general risk with respect to any offending.
The term has been considered in the context of the predecessor to the Act.[21] Observations concerning the meaning of the term made in that context are relevant to the construction of “unacceptable risk” in the present statutory context.[22] With some limitations,[23] the court may take into account any matter that it considers relevant,[24] including:
(1)The degree of risk of the respondent committing a serious sex offence or a serious violence offence, or both.[25]
(2)The nature, gravity and consequences of harm that may eventuate if the respondent does reoffend, this often being a critical factor in the assessment of whether a risk is unacceptable.[26]
(3)The conceptual value of individual liberty and other human rights.[27]
[21]See fn 14 above.
[22]See Explanatory Memorandum, Serious Offenders Bill 2018 (Vic), 8-9 [14]. See also Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600, [26]-[31] (Tinney J).
[23]See par 28 below.
[24]Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 393 [125] (Redlich, Osborn and Priest JJA).
[25]Ibid, 363 [6], 380 [75], 389 [111], 393 [125].
[26]Ibid. See also at 394 [130].
[27]Ibid, 387 [103].
Further, there are specific matters to which the court must have regard. The court must take into account any assessment report or progress report filed in relation to the application,[28] or any other report filed, tendered or made, or evidence given, in relation to the application, together with any other matter the court considers appropriate.[29]
[28]Subject to the requirements under s 273.
[29]Section 14(2)(a).
However, the Act expressly provides that, in determining whether or not an offender poses or will pose an unacceptable risk, the court must not have regard to the means of managing the risk or the likely impact of a supervision order on the offender.[30]
[30]Section 14(2)(b).
The period of a supervision order is the period specified by the court, but cannot exceed 15 years.[31] Further, the Secretary must apply to the court for review of a supervision order not later than 3 years after it was first made or “any earlier first review date specified”.[32]
[31]Section 19(1).
[32]Section 99(1)(a).
Any supervision order must be subject to the core conditions, which are set out in s 31, and may be subject to any other conditions the court imposes under Division 3 of Part 3 of the Act.[33] The court must consider imposing conditions referred to in ss 34 and 35.[34]
D.Expert reports and related evidence
[33]Section 15.
[34]Section 33.
Very little evidence before the court was in contest.
Dr Michael Davis, a consultant forensic psychologist,[35] provided a detention and supervision order assessment report on 17 December 2018 (“the Assessment Report”). The body of the Assessment Report consisted of 60 pages. Given much of its contents were not challenged, it is unnecessary to summarise all the Assessment Report for present purposes. Dr Davis was called by the Secretary to give evidence on 1 April 2019, in the application for an interim supervision order, and again at the final hearing.
[35]There was no issue as to the suitability of Dr Davis to give expert evidence. Dr Davis gave evidence of his frequent involvement in preparing assessment reports and giving related evidence: see further Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600, [205] (Tinney J).
Dr Davis conducted an interview with SM for nearly 4½ hours on 7 November 2018 at a correctional centre. The Assessment Report contains details of the interview. It also refers to SM’s history, and assessments that have been made of SM in the past.[36]
[36]The Assessment Report referred to reports of Dr Robert Myers dated 16 October 1989 and Dr Lester Walton dated 12 June 1990. These reports were also before the court.
A psychiatric report prepared in October 1989 recorded that, while drinking, SM sometimes became very violent if provoked. Dr Davis noted, however, that the information available to him did not suggest that SM had ever been diagnosed with a major mental illness. That said, reference was made to a number of personality problems resulting from his alcoholic father’s death when SM was 10, and as a consequence of SM being placed in institutional care from that time.[37] Also by reference to historical material, the Assessment Report referred to SM displaying “severe defects of personality development including poor judgment of situations, difficulty dealing with interpersonal relationships, low stress and frustration tolerance and poor impulse control”. Reference was also made to a tendency to pathological jealousy in romantic relationships.
[37]There is evidence to suggest SM may have been as old as 11½ when this occurred, but nothing turns on this.
During the course of the interview, SM volunteered that his memory was not what it used to be. He thought this might be because of his use of ecstasy. He referred to 2 times in his life where he seriously consumed illegal substances; when he was 15 to 16 years old, and from 1998 to 2000 when he was in jail. SM stated much of his substance use was to alleviate symptoms of anxiety, which he said was something he had suffered from all his life.
SM stated that he wanted to be able to consume alcohol when he was released into the community.
Dr Davis performed various psychological tests on SM. His conclusion and diagnostic opinion included the following:
[SM] has a lengthy history of abusing alcohol and a range of substances including cannabis, amphetamines, benzodiazepines, ecstasy, heroin and other opiates, and cocaine. He would have previously met formal criteria for a range of substance use disorders. [SM] had particular difficulties with opiates during his current term of imprisonment. However, and to his credit, there is nothing to suggest any use of these substances in recent years.
Dr Davis noted SM had faced a number of difficulties in his life. He suggested that he presented as a polite, albeit somewhat superficial, man with shallow emotional expression and a degree of suspiciousness. He recorded that psychological testing indicated a degree of positive distortion in regard to social and moral matters.
Dr Davis expressed the opinion that SM had a damaged personality that had been complicated by his traumatic childhood experiences, chronic substance misuse, and lengthy periods of incarceration. He also stated that an assessment revealed many, but not certainly all, of the features of psychopathy. Accordingly, he concluded, that SM’s diagnosis of antisocial personality disorder did not adequately conceptualise the breadth of SM’s damaged personality structure or reflect his history of chronic antisocial behaviour.
Dr Davis also expressed the opinion that SM has some prominent borderline personality features, being impulsivity, emotional instability, anger difficulties and stress-related paranoia, that did not quite meet the full criteria for a borderline personality disorder. He further noted that SM’s symptoms of anxiety were not suggestive of generalised anxiety disorder or social anxiety disorder. Thus, Dr Davis concluded that the anxiety symptoms were likely to be secondary to his personality disorder.[38]
[38]Dr Davis did diagnose SM with “Other Specified Anxiety Disorder (limited-symptom attacks)”.
The Assessment Report recognised that SM does not have any history of sexual offending, or any alleged history of sexually deviant behaviour (noting that a formal assessment of risk for sexual recidivism could not be conducted). Therefore, the risk assessment focused exclusively on SM’s risk of general offending and violence.
On the relationship between alcohol and SM’s offending, the following was stated:
While it is difficult to provide an extensive formulation that adequately explains [SM]’s previous violence, his offending can be seen as the actions of a man with a damaged personality characterised by suspiciousness and chronic impulsive and antisocial behaviour. While alcohol use was present in both offences,[39] it must be stressed that alcohol does not cause [SM] to be violent. However, it likely plays a pernicious role in his violent behaviour by increasing his paranoia and lowering his already compromised inhibitions and his ability to tolerate frustration.
(Emphasis added.)
[39]This statement as to alcohol use for “both offences” relied upon SM’s account of events. Although there is no doubt SM was affected by alcohol when he committed the offence of murder, the sentencing judge did not accept SM was so affected with respect to the crimes committed in February 2006.
When cross-examined about this passage during the interim supervision order hearing, Dr Davis confirmed that his concluding sentence was concerned with misuse of alcohol rather than consumption of alcohol at responsible levels.
After providing various intervention recommendations, Dr Davis addressed the matters required to be set out pursuant to s 269 of the Act.
Dr Davis referred to SM’s unusually large number of historical risk factors and concluded that SM poses a high risk of violent recidivism; that is, a level of risk considerably higher than that of the average violent offender. This conclusion was not challenged.
Dr Davis admitted it was difficult to provide a precise opinion as to the form of any future violence. However, he expressed the view that the most likely scenario for future violence was a violent offence against an adult male victim and that there was the potential to cause serious physical harm or death. Dr Davis said this could potentially occur with or without co-offenders.
Dr Davis further noted that SM has had little by way of offence-specific treatment. As to SM’s background, it was stated:
[SM]’s personality disorder, difficult childhood, early onset and diverse criminal behaviour, difficulties with alcohol and substance misuse, limited education and employment history, dearth of pro-social supports, weapon use, and generally chaotic lifestyle can all be seen as relevant background factors for both general and violent offending.
As noted above, general antisocial behaviour, alcohol and substance misuse, social isolation, negative peers, unemployment, violent attitudes and carrying of weapons, reduced insight, behavioural instability, unstable living situation, stressful situations and supervision non-compliance may all potentially increase [SM]’s risk of future violence.
Conversely, a more stable lifestyle, minimal alcohol use, abstinence from substance use, ongoing employment, a circle of pro-social supports, increased leisure and recreational activities, and the development of skills for tolerating frustration and stress may all help to contain and possibly reduce [SM]’s risk for future violence.
(Emphasis added.)
Under cross-examination, Dr Davis referred to his observation from the case notes that SM had been exposed to interactions with negative peers. He acknowledged that it is difficult for someone like SM to make “pro-social friends”. In this context, he noted, since SM had returned to the community, social isolation did not appear to be an issue.
With respect to any “unstable living situation” and how the risks of SM engaging in violence in the future would be affected, Dr Davis was of the opinion that was “very much dependent” on SM being able to demonstrate stability in his life, including having a stable living situation.
As to the reference to “minimal alcohol use”, Dr Davis gave evidence that he could see no difficulty with SM consuming responsible amounts of alcohol, such as a glass of wine or 2 cans of beer in an evening. However, although Dr Davis did not think such a level of consumption was “an issue at all” with respect to potential violent behaviour, he maintained his opinion that any disinhibiting substance is potentially a risk factor. In essence, Dr Davis saw a clear demarcation concerning risk between a small level of alcohol which did not give rise to intoxication, and consuming alcohol at a level that would result in intoxication and likely disinhibition.
Since meeting with SM in November 2018, Dr Davis has not interviewed SM again. In giving oral evidence, Dr Davis lamented that this was the position. He said it was difficult to say whether any of the risk factors had changed without further consultation. Given the lapse of time, he said he did not know why he had not been asked to conduct a further assessment of SM.
Towards the very end of the final hearing, SM’s counsel suggested that the court might benefit from a further assessment. The hearing was adjourned for 5 minutes in order to see whether an agreed position might be met in this regard. No agreement was forthcoming and no application for an adjournment was made. Given the already considerable delay in this proceeding because of intervening events, the absence of such an application was fully understandable.
In any event, Dr Davis gave evidence that he had read all the relevant materials following the Assessment Report, including the file material in relation to SM (which included the matters relating to SM’s breaches of the Interim Order). Having reviewed that material, in substance he gave evidence that the opinions previously formed had not altered in any significant way.
Also during the course of his oral evidence, Dr Davis said that, although he could not be precise, approximately 2 years of stability is needed before a person would drop from a high risk of reoffending. In this context, he noted that SM had an unusually large number of historical risk factors.
When the question of the duration of any supervision order was raised with Dr Davis, he did not give any evidence that would support an order operating for 3 years. Essentially, he assessed the high risk was likely to continue for approximately[40] 2 years. In taking into account the Interim Order being in place since early April 2019 and the level of stability in recent months, Dr Davis said it would be possibly 20 to 21 months before he would be in a position to suggest the risk had lowered if SM were “able to prove himself”. In giving this evidence, Dr Davis acknowledged both SM’s move to a new location and his pursuit of employment had been positive steps. Further, Dr Davis said he considered 18 months from now would be an appropriate time to conduct a review of SM’s position.
[40]Dr Davis gave evidence it was not possible to be precise about the length of time.
The Secretary also tendered a detention and supervision order neuropsychological report by Professor Simon Crowe dated 3 March 2019. Much of this report was also concerned with SM’s history. The report referred to tests that were administered. SM was ranked by percentile with respect to numerous matters. Having set out the various results and rankings, Professor Crowe considered SM’s intellectual functioning was quite stable. Further, he stated that he would not anticipate any particular improvement or deterioration, unless SM engaged in further drug or alcohol use “which would significantly impact upon his already somewhat weakened memory performances”.
SM informed Professor Crowe during the consultation that he suffered anxiety badly, with this condition dictating his whole life. SM said he had received no treatment for the condition other than with benzodiazepines.
In conclusion, it was stated:
[SM] performed adequately on tests of intellectual functioning, consistently operating in the average, low average range, performs appropriately on tests of performance validity, of language function, of visuoperceptual functioning and of executive functions on this occasion. As previously noted in [the Assessment Report], he does indicate some issues associated with psychopathology.
Professor Crowe agreed with Dr Davis with respect to SM’s weak memory functioning. He considered it more likely that SM’s ongoing memory deficits were the result of the residual effects of benzodiazepines intake rather than minor traumatic brain injuries, noting the level of his memory compromise was not profound but would be noticeable.
None of Professor Crowe’s conclusions were the subject of challenge.
E.Further evidence
The Secretary relied upon 2 affidavits sworn by a solicitor of the Office of the Victorian Government Solicitor. Both these affidavits exhibited a large volume of material, that volume presumably explained by the obligations that arise under s 14(2)(a) of the Act.[41] Regard has been had to each of the documents comprising that material for the purposes of this application.
[41]See par 27 above.
Also, the manager of operations within the Post Sentence Branch of Corrections Victoria was called to give evidence.[42] Without objection, he adopted the evidence given on 1 April 2019 by the assistant director for the Post Sentence Branch in support of the Interim Order.
[42]Amongst other functions, the Post Sentence Branch acts as an intermediary between case managers and the Authority.
Broadly speaking, both these witnesses gave evidence with respect to SM’s circumstances, largely by reference to case notes and other documents the subject of evidence.
The case notes tendered, and the evidence given on behalf of the Secretary, demonstrated that since SM has moved from his initial country location[43] to his current location he has been able to live in a far more acceptable manner. Not only have there been no contraventions of the Interim Order since the move (which is now approximately 3 months ago), but SM has generally complied with the regulatory regime that is presently imposed upon him. Further, he has had the assistance of his mother who, for a period of time, resided with SM. Although she no longer lives at the same location as SM, she continues to support him. Dr Davis described this as a protective factor in SM’s favour.
[43]See Secretary to the Department of Justice and Community Safety v SM [2019] VSC 497, [19], [39(2)].
Further, in addition to some observations by Dr Davis about the manner in which SM had been treated while at the previous location,[44] he stated that it was to SM’s credit that, despite the level of isolation and instability at his previous location, this had not led to any violent conduct.
[44]See par 89 below.
Further, a letter was tendered by the Secretary, which had been provided by SM the day before the final hearing. The letter was from the managing director of a national labour hire company within the building, construction, mining and resources sector across Australia. The letter disclosed that the managing director was aware of SM’s current curfew restrictions, and was supporting SM’s position to reduce the curfew by an hour so that he might leave for work at 5 o’clock in the morning. It was explained that most construction work commences at 7.00 am, and that a curfew continuing until 6.00 am was hampering SM’s ability to get paid employment. It was stated that SM would be employed initially as a casual employee in and around Melbourne, and at times in regional Victoria. It was further stated that, depending on the availability of work, SM may be able to secure a full-time position.
The letter concluded by stating that, as the owner and managing director of the company, the author was more than happy to assist SM with constructive and ongoing employment opportunities.
Upon the contents of this letter being drawn to Dr Davis’s attention, he stated that this was another protective factor in SM’s favour.
Finally, Dr Davis gave evidence that he continued to be supportive of an order for non-publication.[45]
F.SM poses an unacceptable risk of committing a serious violence offence
[45]See s 279(1). At the hearing in April 2019, Dr Davis gave evidence as to why an order under this provision was appropriate. An order under s 279(1) has been in place ever since.
The matters set out above, in the context of the evidence as a whole, demonstrate to a high degree of probability that SM poses an unacceptable risk of committing a serious violence offence if a supervision order is not made and SM remains in the community.[46]
[46]SM’s counsel made no submissions in opposition to such a finding.
SM’s background, together with the expert evidence before the court, discloses not only SM’s violent history, but also the existence of ongoing issues related to violence. In the circumstances, it follows that the court should exercise its discretion under s 14(6) as I am satisfied a supervision order should be made.
For completeness, the evidence further demonstrates SM has real prospects of rehabilitation and, presently,[47] is generally receptive to treatment to assist him in that rehabilitation.[48] There has been no suggestion that SM has been anything other than fully cooperative in allowing his position to be assessed.[49]
[47]Previously, while still in custody, SM had declined to participate in offending behaviour programs on a number of occasions.
[48]SM has not accepted all treatment offered, but is currently receiving treatment from the Forensic Intervention Service.
[49]See s 132(a).
G.Duration and conditions of supervision order
G.1 Preliminary observations
Both the Secretary and SM are entitled to, and did, make submissions with respect to the conditions of any supervision order.[50]
[50]Section 28(1).
The primary purpose of any conditions of a supervision order is to reduce the risk of the offender reoffending by committing a serious sex offence or a serious violence offence, or both, or an offence referred to in Schedule 3.[51]
[51]Section 27(1). Schedule 3 lists additional offences not to be committed as core conditions of any supervision order.
The secondary purpose of such conditions is to provide for the reasonable concerns of the victim or victims of the offender in relation to their own safety and welfare.[52] No submissions were made with respect to this purpose.
[52]Section 27(2).
The conditions of any supervision order may promote the rehabilitation and treatment of the offender, as well as address types of behaviour that may increase the risk of the offender committing the relevant offences or engaging in any behaviour or conduct that threatens the safety of any person, including the offender.[53]
[53]Section 27(3).
Importantly, the court must ensure that any conditions, other than the core conditions, 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 are reasonably related to the gravity of the risk of the offender reoffending.[54]
[54]Section 27(4).
There were a number of proposed conditions that were challenged by SM. I will deal with them in the order in which they appear in the draft supervision order provided by the Secretary. Before doing so, it is convenient to address the period of the supervision order.
G.2 Duration of the order
The Secretary seeks a supervision order for a period of 3 years commencing from the date of the order. It was submitted that “on all the materials, including Dr Davis’ evidence”, the court could be “well satisfied” that a period of 3 years was reasonable.
Although SM does not oppose the making of an order, he seeks that it only be in place for 1 year. There was no evidence led by the Secretary at the final hearing to suggest a period shorter than 3 years may have a detrimental effect because of any stress or other response to any review precipitated by the period of a supervision order coming to an end.[55]
[55]Cf Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600, [90] (Tinney J).
In my view, the appropriate period for the supervision order is 1 year and 9 months.
With respect to the proposed 3 year period, there is simply no evidence to support that being the appropriate period.[56] Although it is possible that SM may remain a high risk for that length of time, the evidence does not establish the existence of an unacceptable risk for beyond the period of 1 year and 9 months. Whilst acknowledging that Dr Davis’s evidence was not that the risk was likely to cease entirely at the end of this timeframe, but rather it would be lower, it is not open on the material presently available to form a view that the risk would be unacceptable beyond the period of 1 year and 9 months.
[56]See in particular par 55 above.
Naturally, the date by which the Secretary must apply for the first review of the supervision order will need to be fixed at a time that precedes its expiry. No submissions were made as to the appropriate “earlier first review date” in the event the period of a supervision order was less than 3 years. Accordingly, what follows on this point is subject to any submissions the parties may wish to make on the appropriate earlier first review date.
Dr Davis gave evidence that leading up to a review date he is usually asked “to submit them” 6 months before any court hearing; but there was no suggestion such a lengthy time was necessary. In light of his evidence about 18 months being the appropriate time for his involvement in a review,[57] I propose to fix the latest date for the Secretary to apply under s 99(1) at 19 months hence.[58] This will allow a report to be prepared around 18 months from now, and will also leave at least 2 months from the date the Secretary applies for the court to hear the application.[59]
[57]Ibid.
[58]It is a requirement under the Act that a supervision order specify the latest date by which an application for the first review of the order must be made: s 16(2)(g).
[59]See s 125(1), which specifies the minimum time for any hearing under Part 8 (amongst others) of the Act after an application is commenced.
By reason of this proposed timetable, there is no occasion to provide for subsequent reviews, or any intervals for subsequent reviews.[60]
G.3Residence and related matters[61]
[60]See s 99(1)(b).
[61]See s 34(1)(a).
Pursuant to condition 6(1) of the Interim Order, SM was initially required to reside each night at a location in country Victoria, being a place at which he had never lived before. Without being exhaustive, it is important to elaborate on a number of issues that arose as a consequence.
First, not surprisingly, SM felt isolated and somewhat frustrated by the location of his residence. It was a considerable distance from Melbourne.[62]
[62]Director of Public Prosecutions v SM (No 2) [2019] VSC 491, [15]-[16], [24].
Secondly, SM was visited on at least a weekly basis by the local police. In such a neighbourhood, SM perceived that his criminal history and present circumstances were being exposed. This resulted in a certain level of agitation.[63]
[63]Ibid, [24].
Thirdly, SM commenced a relationship with a neighbour. The police chose to approach another Victorian Government department to inform them of this relationship, as well as SM’s name and location.[64] This resulted not only in difficulties with respect to the relationship, but also gave rise to issues in relation to the neighbour’s custody of her child. SM found this upsetting. Having read the case notes concerning these events, Dr Davis expressed the view that it seemed to him that SM had been “most unfairly targeted”. He considered that the conduct was “awfully unfair” and placed an “unfair burden” on SM in circumstances where there was nothing to suggest he was ever a risk to children.
[64]This was despite an order made pursuant to s 279 of the Act, being par 9 as part of the Interim Order: see par 10 above. Whether the police were engaged in the course of law enforcement functions (see s 277(2)(b)) or the sharing of information (for the purposes of s 284) was not the subject of determination in this proceeding.
Fourthly, SM had to travel some distance to receive treatment and counselling.[65]
[65]Director of Public Prosecutions v SM (No 2) [2019] VSC 491, [16].
It is unnecessary to descend into further detail. Suffice to say that the above matters and other issues resulted in SM being dissatisfied with the requirement to reside at the designated country location. It was while he was at this location that each of the contraventions of the Interim Order occurred.[66]
[66]See pars 12-14 above.
On 29 July 2019, the Post Sentence Authority (“the Authority”)[67] gave a direction that SM reside at a new location. SM remains at this location. Since his relocation, there has been no suggestion that SM has breached any condition of the Interim Order. Further, SM has been the subject of repeated tests with respect to alcohol or drug intake, and has not failed any of them. Furthermore, subject to what is set out below, SM is content to reside at the present location. After some initial delay, he is up-to-date with the payment of his rent.[68]
[67]The Authority was established under s 192C of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) and continues in existence pursuant to s 290 of the Act. The functions of the Authority include monitoring compliance with and administering the conditions of interim supervision orders: s 291(1)(a). See also conditions 7 and 8 of the Interim Order.
[68]For completeness, a notification report was tendered indicating that, until recently, SM was at risk of eviction by reason of non-payment of rent. However, the rental payments now being up-to-date, there was no suggestion that this threat of eviction continued.
Accordingly, there is presently no issue for determination concerning the address identified in condition 6(1). However, given the issues that have arisen from the original location of SM’s mandatory residence, the matters set out above are relevant to determining the terms of other conditions.[69]
[69]See, for example, par 64 above.
The only remaining issue concerning SM’s residence is that SM wants to be able to stay overnight at other locations in Victoria. The principal reason for this was that SM’s prospective employment includes the possibility of working in regional Victoria.[70] However, SM requested that the decision as to where he would reside on any particular night should be entirely at his discretion.
[70]See par 66 above.
This was opposed by the Secretary. Although SM will be required to wear an electronic monitor during the period of any supervision order, so his movements may be tracked at all times, evidence was given of the practice of carrying out an environmental scan and providing a report to the Authority before a location would be considered by the Authority to be appropriate as a residence for a person the subject of a supervision order. Obviously, this practice would be by-passed if SM could decide from day to day as to where he would prefer to stay.
Mindful of the paramount consideration of the safety and protection of the community,[71] such a by-passing would be problematic. Further, if SM wanted to suggest an alternate location, typically the process of conducting such a scan could be completed in 7 to 10 business days, but may also be “fast-tracked” if warranted by the circumstances.[72]
[71]See s 5.
[72]The request for this may be made in ways including email directly to the Authority. The relevant email address was specified during the hearing. Further, both the Secretary and SM have the right to seek leave of the court to have it review any condition of the supervision order: see s 110.
In my view, the daily requirement concerning where SM is to reside ought to reflect the current arrangements of the Interim Order. There is no evidence that there is actually work presently available in regional Victoria that would require SM to travel beyond the metropolitan area to secure employment.
Further, in circumstances where SM’s risk of serious violence offending has been assessed as high, it would be entirely inappropriate for him to reside at a location that had not been the subject of analysis and reporting to the Authority to ensure the location was suitable.
Furthermore, Dr Davis emphasised the importance of a stable living situation.[73] To allow SM, entirely at his discretion, to reside at any location in Victoria would run counter to the uncontested expert evidence on this issue.
G.4 The curfew[74]
[73]See par 49 above.
[74]See s 34(1)(b).
As referred to above,[75] the curfew has been amended to allow SM to leave his residence on or after 5.00 am each morning so he can be at a worksite by 7.00 am. However, for the purposes of any supervision order, SM seeks that there be no curfew.
[75]See pars 16, 19 above.
For the reasons set out in paragraphs 97 to 99 above, it would not be appropriate to remove the curfew. The substantive effect of such a step would be to remove the requirement of SM to have a stable living situation as, although only a single address is designated as his residence, without a curfew he would not be required to attend at that address each night. Further, the absence of a curfew would give rise to serious issues concerning the protection of the community.
G.5 Alcohol consumption[76]
[76]See s 35(1)(c).
The Secretary provided a draft order leaving in place the regime with respect to alcohol consumption that has been in place since April this year.[77] Although with respect to the Interim Order, the Secretary submitted that SM should be prevented from drinking any alcohol, in light of the terms of the Interim Order and the events of the last 6 months or so, the Secretary does not resist the current alcohol consumption regime remaining in place.
[77]See condition 6(4)(a) of the Interim Order: par 10 above.
In April 2019, SM contended for the ability to consume alcohol in moderate quantities, largely as reflected in the Interim Order, condition 6(4)(a). In contrast, SM now submits that no restrictions at all ought to be imposed with respect to the consumption of alcohol.
The evidence is that consuming alcohol beyond a responsible amount is likely to give rise to disinhibition, with the concomitant of an escalated risk of violence. In these circumstances, it would be entirely inappropriate not to provide some restriction with respect to the consumption of alcohol. Although Dr Davis was not precise on the level of alcohol that might be consumed responsibly, no alternate was proffered to the current regime. In particular, it was not contended by SM that amounts of alcohol beyond those the subject of the Interim Order could be consumed without giving rise to the risk of disinhibition. In these circumstances, it is appropriate to maintain the current regime.
G.6 Electronic alcohol monitoring[78]
[78]Section 35(1)(j).
Consistent with his position on the consumption of alcohol referred to immediately above, SM contended that he should not be subject to electronic alcohol monitoring. Contrary to this contention, in my view, such monitoring is entirely appropriate and, coupled with the limitations on the amount of alcohol that may be consumed, represents the minimum interference as contemplated by s 27(4)(a) of the Act.
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.
G.7 Other conditions
For completeness, each of the proposed conditions not disputed by SM, including those under ss 36 and 37, have been considered. Given SM’s position, it suffices to say that, having considered them, I find that they are appropriate and comply with the strictness of s 27(4)(a) and (b).
H. Conclusion
For the reasons stated above, a supervision order will be made substantially in the following terms:
OTHER MATTERS:
The court is satisfied that [SM][79] poses an unacceptable risk of committing a serious violence offence if a supervision order is not made and [SM] is in the community.
[79]SM’s name will be included in the order, both as officially recorded and also as he is known. There is an outstanding issue as to SM’s name as recorded officially, but the parties agreed this was not a matter for adjudication on this application: see ss 257 to 265 of the Act.
THE COURT ORDERS THAT:
1.[SM] be subject to a supervision order (“the Order”) under the Act.
2.The Order commences on 29 October 2019.
3.The period for which the Order remains in force is 1 year and 9 months (“the Period”).
4.The latest date by which the Secretary to the Department of Justice and Community Safety (“the Secretary”) must apply for the first review of the Order under Part 8 of the Act is 29 May 2021.
CONDITIONS OF THE SUPERVISION ORDER
CORE CONDITIONS:
5.Pursuant to section 31 of the Act, the core conditions of the Order are that, during the Period:
(1)[SM] must not commit a serious sex offence in Victoria or elsewhere.
(2)[SM] must not commit a serious violence offence in Victoria or elsewhere.
(3)[SM] must not commit an offence referred to in Schedule 3 of the Act in Victoria or elsewhere.
(4)If the court requires [SM] to reside at a residential facility or the Post Sentence Authority (“the Authority”) directs [SM] to reside at a residential facility, [SM] must not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility or visitors to the facility.
(5)If the court requires [SM] to reside at a residential facility or the Authority directs [SM] to reside at a residential facility, [SM] must obey all instructions given by a supervision officer or a specified officer under section 183 of the Act.
(6)If the court requires [SM] to reside at a residential treatment facility, [SM] must not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility or visitors to the facility.
(7)If the court requires [SM] to reside at a residential treatment facility, [SM] must obey all instructions given by a supervision officer or a specified officer under section 183 of the Act.
(8)[SM] must not engage in any behaviour or conduct that threatens the safety of any person (including himself).
(9)[SM] must attend at any place directed by the Authority for the purpose of administering the conditions of the Order.
(10)[SM] must attend at any place directed by the Authority for the purpose of making assessments required by the court, the Secretary or the Director of Public Prosecutions for the purposes of the Act (including a personal examination by a medical expert for the purpose of providing the court with a report to assist the court in determining the need for or the form of any condition of the Order).
(11)[SM] must report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of section 31(12) of the Act.
(12)[SM] must notify the Authority of any change of employment or new employment (whether paid or unpaid) at least 2 clear days before commencing the changed or new employment.
(13)[SM] must not leave Victoria except with the permission of the Authority granted either generally or in relation to a particular case.
(14)[SM] must comply with a direction given by the Authority under the emergency power in section 142 of the Act.
(15)[SM] must obey all instructions given by a community corrections officer or a specified officer under section 209 of the Act.
ADDITIONAL CONDITIONS:
6.Pursuant to sections 34, 35, and 38 of the Act, the following additional conditions of the Order are that during the Period:
(1)[SM] must reside each night at [address] Victoria, or where otherwise directed by the Authority (“the Residence”).
(2)[SM] must be present at the Residence between 11:00 pm and 5:00 am each night, unless otherwise directed by the Authority.
(3)If instructed by a supervision officer, [SM] must:
(a)Attend for assessment for treatment or rehabilitation programs or activities; and
(b)Participate in such programs or activities,
as instructed.
(4)[SM] must not consume alcohol, save for:
(a)No more than 150 millilitres of wine, or, in the alternative to wine, no more than the equivalent of 2 cans of 375 millilitres of beer, per day; or
(b)If, in the reasonable opinion of the Authority, there has been a breach of condition 6(4)(a) above, then only in accordance with any written directions of the Authority, provided that [SM] has received written notice from the Authority of the alleged breach and the written directions.
(5)[SM] must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully, or abuse drugs of any kind.
(6)[SM] must submit to breath testing, urinalysis or other test procedures (other than blood tests) approved by the Secretary or the Chief Commissioner of Police, as the case may be, for the detection of alcohol or drug use, at the direction of:
(a)An officer (as defined in section 211 of the Act) who has reasonable grounds to suspect that [SM] has breached either condition 6(4) or 6(5) of the Order, or both conditions, by consuming alcohol or using drugs, or both; or
(b)If [SM] is not residing at a residential facility or residential treatment facility, a police officer who has reasonable grounds to suspect that [SM] has breached either condition 6(4) or 6(5) of the Order, or both conditions, by consuming alcohol or using drugs, or both.
(7)[SM] must not knowingly have contact with any persons with whom [SM] has previously committed prior criminal offences, including:
(a)Any form of physical contact;
(b)Any form of oral communication (whether face-to-face, by telephone or by use of the internet); or
(c)Any form of written communication (whether electronic or otherwise);
except for contact:
(d)With such persons, if contacted by them, to inform that person or those persons that he cannot communicate with them; or
(e)In accordance with the written directions of the Authority.
(8)[SM] must not knowingly have any contact with the victims of any violent offences committed by him, or their families, including:
(a)Any form of physical contact;
(b)Any form of oral communication (whether face-to-face, by telephone or by use of the internet); or
(c)Any form of written communication (whether electronic or otherwise);
except for contact:
(d)With such persons, if contacted by them, to inform that person or those persons that he cannot communicate with them; or
(e)In accordance with the written directions of the Authority.
(9)[SM] must:
(a)Comply with monitoring as to whereabouts (including electronic monitoring); and
(b)Comply with electronic alcohol monitoring;
unless otherwise directed by the Authority.
(10)Pursuant to section 35(2) of the Act, [SM] must:
(a)Comply with any direction given by the Authority relating to the electronic monitoring;
(b)For 24 hours of each day, be electronically monitored and wear an electronic monitoring device or electronic monitoring devices fitted to him at the direction of the Authority;
(c)Ensure that any electronic monitoring device fitted to [SM] remains operational (including being charged) at all times;
(d)Not tamper with, damage, disable or remove any electronic monitoring device or equipment used for the electronic monitoring;
(e)Accept any visit by the Secretary to the place where [SM] resides, at any reasonable time and for any purpose including to install, repair, fit or remove any electronic monitoring device or equipment used for the electronic monitoring.
(11)[SM] must not contravene the Firearms Act 1996 or the Control of Weapons Act 1990, or both.
OTHER ADDITIONAL CONDITIONS:
7.Pursuant to section 36 of the Act, the following conditions apply to the Order:
(1)Pursuant to section 36(1) of the Act, the Authority is authorised to give directions to [SM] in relation to the operation of any condition of the Order.
(2)Pursuant to section 36(7) of the Act, [SM] must comply with any direction given under an authorisation referred to in section 36 of the Act.
OTHER ORDERS
8.Pursuant to section 279 of the Act, the court is satisfied that it is in the public interest to order that any information before the court in any proceedings under the Act that might enable [SM] or his location to be identified must not be published until:
(1)The next review of the Order is heard and determined;
(2)The expiry or revocation of the Order; or
(3)Further order of the Court,
whichever occurs earliest.
In accordance with s 133, I will cause these reasons to be entered in the records of the court, and a copy to be provided to the Secretary and SM.
Further, I will also cause the transcript of the hearing on 1 April 2019 to be treated in the same manner. On that occasion, the making of an interim supervision order was not opposed, but there were issues raised concerning the appropriate conditions. Rulings were given by the court throughout the hearing that day and constitute the reasons for the making of the Interim Order.
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