Secretary to the Department of Justice and Community Safety v SM (No 3)
[2021] VSC 438
•22 July 2021
| 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 July 2021 |
DATE OF RULING: | 22 July 2021 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v SM (No 3) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 438 |
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CRIMINAL LAW – Application for interim supervision order – Existing supervision order - Delay of renewal application – Previous contraventions of previous interim supervision order – Public interest – Conditions of interim supervision order – Serious Offenders Act 2018 (Vic), ss 1, 8, 14, 15, 27, 28, 31, 33, 34, 35, 46, 47, 48, 54, 279.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Flynn QC | Victorian Government Solicitor |
| For the Accused | Ms N Kaddeche | Leanne Warren and Associates |
HIS HONOUR:
IntroductionA.
The Secretary to the Department of Justice and Community Safety (“the Secretary”) has made an application for an interim supervision order, pursuant to section 46 of the Serious Offenders Act 2018 (Vic) (“the Act”).
The respondent, SM,[1] is currently the subject of a supervision order made on 29 October 2019 (“the Existing Order”).[2] The Existing Order is set to expire on 28 July 2021.
[1]Pursuant to s 279 of the Act, an order has been made restricting publication of SM’s identity. This will be ordered to be continued as part of the interim position.
[2]See Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707.
Due to circumstances set out below,[3] the hearing of the Secretary’s application filed on 4 May 2021 for renewal of the Existing Order (“the Renewal Application”) is unable to take place prior to its expiry.
[3]See pars 9-15 below.
Accordingly, the Secretary submits that an interim supervision order is necessary to mitigate any risk that SM poses to the community, between the expiry of the Existing Order and when the Renewal Application can be determined by this court.
For the reasons set out below, an interim supervision order will be granted substantially on the terms sought by the Secretary, being terms similar to the Existing Order. The order will be for a period to expire upon the determination of the Renewal Application up to a maximum period of 4 months from 22 July 2021.
BackgroundB.
B.1 Events before this application
SM’s history has been set out elsewhere, and may be stated in brief for the purposes of this application.[4] SM has previously been convicted of a number of offences, including murder.[5] SM’s most recent significant period of incarceration, for offences committed whilst on parole, concluded on 6 April 2019.
[4]Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707, [5]-[8].
[5]This is a serious violence offence per Schedule 2 of the Act, item 1.
On 8 April 2019, this court made an interim supervision order in respect of SM under the Act. Subsequently, on 2 separate occasions in June and July 2019, SM pleaded guilty to contravening terms of that order:[6]
(1)On 6 June 2019, SM was arrested and charged with 2 counts of contravening a condition of the order (“the First Contravention”). The charges related to use and possession of prohibited drugs.[7] Separately, SM was charged with the underlying criminal offences arising out of the same conduct.[8] A hearing related to the First Contravention was held on 24 June 2019. The court imposed an aggregate fine in the sum of $500, comprising a fine of $250 for each of the 2 charges.[9]
(2)On 12 July 2019, SM was arrested and charged with 2 further counts of contravening a condition of the order (“the Second Contravention”). These charges also related to use of prohibited drugs.[10] No separate underlying charges were laid. Noting that a contravention of an interim supervision order is a particularly serious matter, this court imposed an aggregate term of imprisonment of 10 days.[11]
[6]See Director of Public Prosecutions v SM [2019] VSC 466; Director of Public Prosecutions v SM (No 2) [2019] VSC 491.
[7]Director of Public Prosecutions v SM [2019] VSC 466, [4]-[9].
[8]SM was charged with 1 count of use of a drug of dependence, pursuant to s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), and 1 count of possession of a drug of dependence, pursuant to s 73(1) of the Drugs, Poisons and Controlled Substances Act.
[9]Director of Public Prosecutions v SM [2019] VSC 466, [18].
[10]Director of Public Prosecutions v SM (No 2) [2019] VSC 491, [9].
[11]Ibid, [27].
Following these contraventions, this court extended the interim supervision order for a further 4 months, to October 2019.[12] This extension was made having regard to the need for further instructions to be sought in relation to conditions to be imposed under the application for a supervision order, the need to move SM to a different location, and the availability of counsel.[13]
[12]Secretary to the Department of Justice and Community Safety v SM [2019] VSC 497.
[13]Ibid, [39].
B.2 The events leading to the present application
The Renewal Application stated that the grounds on which it is contended that SM would pose an unacceptable risk of committing a serious violence offence in the absence of a renewed supervision order, were:
(1)The detention and supervision order progress report authored by Dr Joel Godfredson, clinical and forensic psychologist, dated 23 March 2021 (“the Godfredson Report”).[14]
(2)The material relied upon by Dr Godfredson for his assessment.
(3)The antecedents of SM.
[14]The Secretary filed the Godfredson Report with this notice.
The Renewal Application was set to be heard on 22 July 2021. On 1 July 2021, by consent, the parties agreed to timetabling orders for the filing of material in advance of the Renewal Application hearing.
On 2 July 2021, the Secretary filed an outline of submissions, a chronology, and an affidavit containing the Godfredson Report in addition to the material relied upon in that report. On the same date, the Secretary also filed a draft renewed supervision order.
On 8 July 2021, the court emailed SM requesting, among other things, that he provide details of any witness he intended to call.
On 12 July 2021, SM’s solicitor replied as follows:
We confirm that our office was served with voluminous material from the Applicant on 9 July 2021 including material relied upon by Dr Joel Godfredson in his assessment of [SM]’s risk of reoffending. We note that we are still awaiting receipt of further material from the Applicant.
In these circumstances, our expert witness is unable to undertake the lengthy assessment required and provide a report on behalf of [SM] for the hearing listed 22 July 2021. We will therefore be making an application to vacate the contested hearing date on 22 July 2021.
In response, the Secretary’s solicitor advised that the Secretary would oppose any application for an adjournment. The solicitor further confirmed that the documents relied upon in the Godfredson Report were filed and served on SM in accordance with the timetabling orders made on 1 July 2021. Furthermore, it was noted that SM had requested disclosure of a large volume of additional materials prepared by Corrections Victoria in relation to SM, which Dr Godfredson had had access to but did not rely upon in his report.
On 15 July 2021, a directions hearing was held to determine an appropriate course of action. The court directed that a contested interim supervision order hearing would be held in place of the intended Renewal Application fixed for hearing on 22 July 2021.
Legislative frameworkC.
The Act contains a primary purpose and a secondary purpose. The primary purpose is “to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision”.[15] The secondary purpose is “to facilitate the treatment and rehabilitation of those offenders”.[16]
[15]Section 1(a).
[16]Section 1(b).
The granting of an interim supervision order is regulated by Part 4 of the Act.
The Secretary may apply to the court for an interim supervision order in respect of an “eligible offender”, who is the subject of an application under section 13 or section 22.[17]
[17]Sections 46(1), 47.
“Eligible offender” is relevantly defined to include a person who is subject to a supervision order, whether or not the person is remanded in custody or is serving a custodial sentence.[18]
[18]Section 8(3).
The Act then sets out the matters of which the court must be satisfied prior to granting an application for an interim supervision order.
First, there must be an application for a supervision order or renewal of a supervision order in respect of the offender that has been commenced but not determined.[19] This must be because either the offender is no longer, or will not be, remanded in custody or serving a custodial sentence when the application under section 13 has been determined, or the previous supervision order has expired or will have expired before the application under section 22 is determined.[20]
[19]Section 47(1)(a)(i).
[20]Section 47(1)(a)(ii).
Secondly, it must appear to the court that the documents in support of the application would, if proved, justify the making or renewal of a supervision order.[21]
[21]Section 47(1)(b).
Thirdly, the court must be satisfied that it is in the public interest to make an interim supervision order.[22] In considering whether a public interest exists, the court must have regard to the reason why the application under section 22 was not or will not be determined prior to the expiry of the previous supervision order.[23]
[22]Section 47(1)(c).
[23]Section 47(2)(a).
The legal test and standard of proof in respect of an interim supervision order are less onerous than those in respect of a supervision order.[24] An interim supervision order does not require the applicant to demonstrate that the respondent poses an “unacceptable risk” of committing a serious sex offence or serious violence offence.[25] Instead, the court must be satisfied that the supporting documents, if accepted, would justify the making of a supervision order.[26]
[24]Secretary to the Department of Justice and Community Safety v MTE (a Pseudonym) [2020] VSC 243, [10] (Champion J); Secretary to the Department of Justice and Community Safety v SM [2019] VSC 497, [27]-[29].
[25]Section 14(1): see Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707, [24]-[26].
[26]Secretary to the Department of Justice and Community Safety v MTE (a Pseudonym) [2020] VSC 243, [10] (Champion J).
As to duration, the maximum period of an interim supervision order must not exceed 4 months.[27]
[27]Section 54.
Further, the Secretary and the offender are entitled to make submissions in relation to any conditions of a supervision order.[28] The primary purpose of conditions to a supervision order is to reduce the risk of the offender re-offending by committing a serious sex offence or a serious violence offence or both.[29] The secondary purpose of the conditions is to provide for the reasonable concerns of the victim or victims of the offender in relation to their own safety and welfare.[30]
[28]Section 28(1).
[29]Section 27(1): see Director of Public Prosecutions v SM (No 2) [2019] VSC 491, [22].
[30]Section 27(2).
An interim supervision order is subject to “core conditions” prescribed by the Act,[31] and discretionary conditions that may be imposed under Division 3 of Part 3 of the Act.[32] The court must consider imposing the conditions set out in sections 34 and 35 of the Act,[33] and must further ensure that any conditions of a supervision order 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 re-offending.[34]
RulingD.
[31]Section 31.
[32]Section 15.
[33]Section 33.
[34]Section 27(4): see Director of Public Prosecutions v SM (No 2) [2019] VSC 491, [22]. See also Secretary to the Department of Justice and Community Safety v MTE (a Pseudonym) [2020] VSC 243, [52] (Champion J); Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600, [230] (Tinney J).
The conditions relevant to the making of an interim supervision order, as set out in section 47 of the Act, have been met. There is no question that SM is an eligible offender, being currently subject to a supervision order.[35]
[35]Section 8(3).
The Existing Order is due to expire on 28 July 2021, and the Secretary has filed an application for renewal of that supervision order. This self-evidently discharges the first requirement set out in section 47.
Further, I am satisfied that the materials in support of the interim order would, if proved, justify the making of a supervision order against SM.[36] In particular, reference is made to the assessment in the Godfredson Report that SM retains a “moderate-high” risk of committing a serious violence offence if released into the community unsuperivsed.
[36]Evidence was led by the Secretary from 2 witnesses, including Dr Godfredson, but this evidence need not be expressly referred to for the purposes of the interim application. See also s 48(1)(a).
Finally, I am satisfied that it is in the public interest to make an interim supervision order, having regard to the fact that the reasons for the Renewal Application not being heard prior to the expiry of the Existing Order included the volume of materials obtained by SM in the disclosure process, and the availability of the SM’s expert. Further, SM’s history of non-compliance by reason of the First and Second Contraventions weigh in favour of an interim order being made.[37]
[37]The interim supervision order will state that it is in the public interest for the order to be made: see s 48(1)(b).
As to conditions, the Secretary submitted that SM should be subject to substantially similar conditions as the Existing Order, for the interim period.[38] Those orders included, among other things, conditions relating to SM’s residence, a curfew period and restrictions on alcohol consumption. The Secretary no longer pursues a condition relating to electronic alcohol monitoring, though maintains there is a need for a general electronic monitoring condition.
[38]Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707, [108].
SM contested each of the residential condition and the curfew condition as originally sought to be imposed. However, with considerable cooperation between the parties during the course of the hearing, these matters were satisfactorily resolved.
To elaborate, the existing curfew from 11 pm to 5 am was agreed to be varied so that it be imposed at 11 pm each night and be lifted at 4 am each morning in order to allow SM to travel to work on time. Further, the condition requiring SM to reside at a particular address or as otherwise directed by the post sentencing authority was varied so that SM will now be permitted to reside with his partner, with whom he has been in a relationship since the second half of 2019.
Accordingly, subject to the removal of the conditions concerning electronic alcohol monitoring and the variations referred to in the preceding paragraph, an interim supervision order will be made in order to effectively maintain the status quo until the Renewal Application can be heard and determined.
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