Secretary to the Department of Justice and Community Safety v SS

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0116

IN THE MATTER of the Serious Offenders Act 2018
- and -
IN THE MATTER of an application for a supervision order
The Secretary to the Department of Justice and Community Safety	Applicant
v
SS	Respondent

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	19 & 20 August 2019
DATES OF JUDGMENT:	23 August 2019
DATE OF REASONS	4 September 2019
CASE MAY BE CITED AS:	Secretary to the Department of Justice and Community Safety v SS
MEDIUM NEUTRAL CITATION:	[2019] VSC 600

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PUBLIC LAW - Application for supervision order – Respondent approaching the end of a 20 year sentence for murder – Long criminal history including serious prior convictions for violence - Two unsuccessful periods of parole – Antisocial personality disorder – Psychopathic traits - Evidence of assessor that respondent posed a high risk for violent recidivism – Challenged conditions of curfew, abstention from alcohol, and electronic monitoring – Unacceptable risk posed by respondent – Challenged conditions all necessary – Serious Offenders Act 2018 ss 1, 13, 14, 27.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Flynn QC	Moray & Agnew Lawyers
For the Respondent	Mr J McLoughlin	Victoria Legal Aid

HIS HONOUR:

Introduction

By notice dated 29 May 2019, the Secretary to the Department of Justice and Community Safety (‘the applicant’ or ‘the Secretary’) applied for a supervision order in respect of the respondent under section 13(1) of the Serious Offenders Act 2018 (‘the Act’).

At the time of the commencement of the application, the respondent was serving a lengthy sentence for the offence of murder (‘the index offence’) amongst other offences. His sentence was due to expire on Sunday, 25 August 2019 and if a supervision order had not made, he would have been released into the community with little formal supervision.

On 19 and 20 August 2019, the supervision order application came on for hearing before me. On those dates, I heard some evidence to which I will later turn, and submissions on both sides. On 23 August 2019, I made a supervision order for a period of six years. I said at that time that I would publish my reasons. These are those reasons.

Personal background

The respondent is a 40 year old male who has been imprisoned since he was 19 years old. He was raised by his mother and does not have contact with his father. Growing up, the respondent faced a difficult childhood including physical abuse by his grandfather, the death of his younger brother, witnessing the drowning of a friend, and multiple expulsions from school for delinquency. He engaged in persistent criminality from a very young age. The respondent abused illicit substances including cannabis and heroin from the age of 12 years and resorted to crime to support his habit. The respondent attended numerous high schools and was educated until year nine when he was expelled. In his late teens, the he completed year 11 through a TAFE program. Whilst incarcerated the respondent has commenced a Bachelor of Arts degree and has obtained numerous prison course certifications.

Prior to his index offence and surrounding offences, which will be outlined shortly, the respondent had accrued an extensive criminal history, predominately for matters dealt with in the Children’s Court, from the age of 11 until his incarceration at 19 years old. This history covered a variety of offending, including offences involving dishonesty, driving, drugs, weapons and violence, including against police officers.

The index offence

The respondent’s index offence followed a span of offending over the course of approximately two weeks, beginning on 28 November 1998. During this period of offending in the lead up to his index offence, the respondent continued to evade police and committed various other offences including burglaries and thefts of motor vehicles.

Late in the morning on 14 December 1998, after engaging in a crime spree in Upwey during that morning and the preceding day, the respondent stole a Magna vehicle from outside a factory in Richmond and drove to Blackburn South. The respondent parked the vehicle in a cul-de-sac. At this time he was accompanied by a female in the car. Police attended to apprehend the respondent. They approached the respondent’s vehicle in their own vehicle. One of the officers called out ‘Police. Don’t move’ as he moved towards the driver’s side window of the vehicle the respondent was in. The officer put his arm inside the open window and the respondent began to drive away whilst the officer was trying to move his arm out of the vehicle. Another officer was standing in front of the Magna vehicle as the respondent began to drive off and was struck on the right knee in the process of moving out of the way. Gunshots were fired at the scene, which were unsuccessful in causing the respondent to remain.

The next day, 15 December 1998, the respondent, whilst still on the run from police and under the influence of drugs, drove a stolen vehicle to the car park of a McDonald’s outlet in Richmond, close to a secondary school.

The respondent then went into the secondary school, and entered the principal’s office where he stole a knife (which was fitted with a sheath and a strap) and wallet from the principal’s briefcase. The knife had been earlier confiscated from a year 8 student. The blade of the knife was 8 cm long. The principal Keith Muller returned to his office to find the respondent standing at his desk and asked if he could help him. The respondent replied “No, it’s okay” and proceeded to walk out the office door. Mr Muller asked the respondent to ‘hang on’ and walked after him. The respondent ignored the request and quickened his pace. Mr Muller observed a teachers’ aid, Peter Orr, walking towards them in the corridor. He called out, ‘Grab him, Peter’. Mr Orr spread out his arms in an effort to stop the respondent. The respondent ran straight towards him and then collided with Mr Orr, striking the victim him to the left temple region of the head with the stolen knife which he was carrying. Mr Orr fell to the ground and shortly thereafter, lost consciousness. He died in hospital from the injury inflicted to his brain by the respondent five days later. On autopsy, it was ascertained that the brain and membranes beneath the stab wound to the temple showed damage to the length of 8 cm, that is, the length of the blade.

The respondent left the scene and was arrested later that day, after fleeing on foot from further offending where he drove a stolen vehicle into a fence in Heathmont, jamming the car next to a tree. When police attended the scene the respondent continued this crime spree by reversing over a police officer before driving forward and causing the officer to hit the tree. Before being captured by the police, the respondent told a friend that he had just stabbed someone and that he thought he had killed him.

Procedural history

The murder charge went for trial before Teague J but the respondent pleaded guilty to a large number of other charges he faced. On the prosecution case, the respondent had removed the knife from the sheath before using it to deliberately stab Mr Orr to the head. It was alleged that he intended to cause death or really serious injury at the time. The respondent disputed murderous intent. The jury found him guilty.

On 4 July 2000, he was sentenced by Teague J on all of the offences to a total effective sentence of 20 years’ imprisonment with a non-parole period of 15 years.[1] The respondent applied to the Court of Appeal for leave to appeal against his conviction and sentence. Both applications were dismissed.[2]
[1]R v SS [2000] VSC 289.
[2]R v SS [2001] VSCA 217.

Progress in prison

During the first decade of the respondent’s sentence, he spent much of his time in high security management units in prison due to behavioural issues such as verbal abuse, threatening, aggressive and violent behaviour, being uncooperative, being found with a weapon in his unit, positive drug screenings, self-harm and attempting to escape from hospital.

The frequency and severity of prison incidents in which the respondent was involved decreased during his second decade of incarceration. The respondent showed little violent behaviour although incidents of verbal abuse, threats and disobedience were recorded.

Whilst serving his sentence, the respondent undertook a number of treatment programs in areas of relationships, substance abuse, anger management, consequential thinking, relapse prevention, emotions, stress management, self-acceptance and exploring change. He completed all but one of the programs, from which he was removed for disruptive behaviour.

In the years 2011-12, the respondent also completed the High Intensity Violence Intervention Program (‘HIVIP’), in which he engaged well and was noted to have made some progress. However, at the end of the program the respondent was assessed using the Violence Risk Scale (VRS), an instrument which assesses violence risk and change within the HIVIP. On this scale, he remained a high risk for violent recidivism.

Instances of parole
First instance: 24 May 2014 until 24 December 2014

During the course of his sentence, the respondent was released on parole on two separate occasions. The first was on 24 May 2014 and the second was on 23 November 2015.

On the first occasion of parole, the respondent initially integrated well into the community, obtaining employment (from which he was later let go), organising to undertake a travel course, playing football with a local club and making future plans for continuing the studies which he had commenced whilst in custody. During this period of parole, however, he was listed as the respondent in three[3] separate intervention orders ( ‘IVOs’). The first was sought by a woman with whom he was in a brief sexual relationship, the second was taken out listing his mother as the protected person and the third related to his former landlord. In relation to the first IVO, the respondent was taken into police custody on 17 August 2014 following an allegation made by the female of stalking and harassment, the respondent being later released without charge and an Interim IVO being made at court on 19 August 2014.
[3]The respondent informed Dr Davis of a fourth IVO.

During this first period of parole, the respondent was living with his mother. Police attended the residence on 15 October 2014 for the purposes of a home visit in relation to his parole. Upon attendance the respondent entered into a verbal argument with his mother regarding letting the police into the house. Reportedly, the argument turned physical and the respondent dragged his mother by the arm from the couch where she was seated. The respondent was then directed to accompany police to the police station for the purposes of an application for a Family Violence Safety Notice. This incident caused the respondent to become homeless, in breach of his parole conditions. The respondent resided at several locations before alternative accommodation was later found for him in Blackburn. A week after moving into this property it was reported that the respondent conveyed his intentions of moving out to the Adult Parole Board, explaining that the landlord had been attending the property without warning and had since changed the terms of the lease. On 23 December 2014, the respondent contacted his parole case manager to advise that he had temporarily moved into a friend’s house in Surrey Hills. On 24 December 2014, Corrections staff were notified by Victoria Police that the respondent had been charged with Recklessly Cause Injury and Unlawful Assault as a result of a physical altercation with his previous landlord.

The respondent’s parole was cancelled on 24 December 2014 and he was taken back into custody. The charges against the respondent were not authorised, although an IVO was taken out against the respondent, protecting the landlord.

Second instance: 15 July 2015 until 23 November 2015

The respondent was released on parole a second time on 15 July 2015. It is reported that by November 2015, numerous concerns had been raised in relation to the respondent. These concerns included that the respondent had been associating with his anti-social ex-partner, absences in his drug screening appointments, being at risk of losing his accommodation, acting aggressively towards his case manager, lateness to appointments and testing positive to illicit substances. Concerns for the respondent’s threatening and aggressive behaviour were also reported by two other service providers. His parole was cancelled on 23 November 2015 and he was placed back into custody to serve the balance of his sentence.

The law

Section 1 of the Act provides, in part, as follows:

The purposes of this Act are
(a)primarily, to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision; and
(b)secondly, to facilitate the treatment and rehabilitation of those offenders

…

The respondent is an eligible offender for a supervision order application under section 8 of the Act, which relevantly provides, in part:

(1)A person is an eligible offender if the person is of or over the age of 18 years and
(a)the Supreme Court or the County Court or an equivalent court of another State or a Territory has at any time (whether before, on or after the commencement of this Act) imposed on the person, whether at first instance or on appeal from the Supreme Court or the County Court, a custodial sentence for… a serious violence offence; and

(b) the person is serving in Victoria
(i)the custodial sentence referred to in paragraph (a), whether or not the sentence is being served concurrently with or cumulatively on a custodial sentence for another offence;

…

The application for a supervision order was filed under section 13 of the Act. Section 14 of the Act sets out the requirements before a supervision order can be made. It relevantly provides:

(1)On an application under section 13, the court may make a supervision order in respect of an eligible offender if, and only if, the court is satisfied that –
…
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing … a serious violence offence … if a supervision order is not made and the offender is in the community.

(2)In determining whether an offender poses or will pose an unacceptable risk under subsection (1) -
(a) the court must have regard to -
(i)subject to section 273, any assessment report or progress report filed in relation to the application, whether by the Secretary or the offender; and
(ii)any other report filed, tendered or made, or evidence given, in relation to the application; and

(iii) any other matter the court considers appropriate; and

(b)       the court must not have regard to
(i)       the means of managing the risk; or
(ii)      the likely impact of a supervision order on the offender.

(3)For the purposes of subsection (1), the court must be satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk.
(4)The court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(5)The Secretary has the burden of proving that an offender poses or will pose an unacceptable risk under subsection (1).

(6)       If the court is satisfied as required by subsection (1), the court may -
(a)       make a supervision order; or
(b)       make no order

…

‘Serious violence offence’ is defined in the Act as an offence referred to in Schedule 2 of the Act. Murder is a serious violence offence.

Unacceptable risk

The term ‘unacceptable risk’ is not defined in the Act, but in the context of the now-repealed Serious Sex Offenders (Detention and Supervision) Act 2004, the meaning of the term was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice (‘Nigro’).[4]
[4](2013) 41 VR 359 (‘Nigro’).

In that case, the Court stated that ‘the concept of unacceptable risk is a flexible one which is “calibrated to the nature and degree of the risk so that it can be adapted to the particular case”’.[5]
[5]Ibid [165] (citation omitted).

As the Court stated:

The legislature has deliberately selected a threshold test that does not specify a particular degree of risk. Rather, the test requires an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which the offender had previously committed such an offence. It is the combination of these factors that will determine whether the risk of occurrence is of a sufficient order to make the risk unacceptable.[6]

[6]Ibid [117].

The Court held:

Whether a risk is unacceptable depends upon the degree of likelihood of offending[7] and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstances, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence.[8]

[7]Section 14(4) of the Act dictates that the risk may be unacceptable even if the likelihood is less than more likely than not.

[8]Ibid [6].

The Court further stated:

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[9]

[9]Ibid [130].

The Court in Nigro[10] made it clear that the test of unacceptable risk:

should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection.[11]
[10]Nigro (n 4).
[11]Ibid [5].

Conditions

Division 3 of the Act sets out the law relating to the conditions of a supervision order. Section 27 explains the purposes of conditions of a supervision order and reads:

(1)The primary purpose of the conditions of a supervision order is to reduce the risk of the offender re-offending by committing … a serious violence offence … or an offence referred to in Schedule 3.

…
(3)In order to reduce the risk of the offender re-offending, the conditions may-
(a) promote the rehabilitation and treatment of the offender; and
(b)address types of behaviour that may increase the risk of the offender-
(i)committing … a serious violence offence … or an offence referred to in Schedule 3; or
(ii)engaging in any behaviour or conduct that threatens the safety of any person (including the offender).

(4)The court must ensure that any conditions of a supervision order (other than the core conditions) -
(a)constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and
(b)are reasonably related to the gravity of the risk of the offender re-offending.

The evidence
For the applicant
Dr Michael Davis

Dr Michael Davis, a Consultant Forensic Psychologist, provided an Assessment Report pursuant to s 269 of the Act.[12] The report, dated 30 April 2019, ran to some 65 pages, minus the Appendices.

Report of Dr Davis

[12]Exhibit B in the application.

Dr Davis interviewed the respondent for a period of 357 minutes at Ravenhall Correctional Centre on 25 March 2019. In preparing the report, he also had access and regard to a vast array of material relating to the respondent, including the Corrections files of the respondent.

The report of Dr Davis contained a very full coverage and analysis of all relevant aspects of the life and background of the respondent, including his personal background, his offending history, an analysis of the index offending, his psychiatric and drug-use history, his progress since the time of imprisonment including incidents in which he had been involved and treatment he had received, and the history of the two unsuccessful periods on parole. Some aspects of that material have been included elsewhere in this judgment, and I will not further summarise the matters here.

Centrally to his task, Dr Davis carried out certain psychological testing upon the respondent and other testing designed to throw light on the risk posed by the respondent of future violence in the community upon his release.

In respect of the psychological testing, Dr Davis administered the Paulhus Deception Scales (‘PDS’) and the Personality Assessment Inventory (‘PAI’).

The PDS is a 40-item self-report instrument that measures the tendency to give socially desirable responses. This test was administered to ascertain whether the respondent was either deliberately trying to manage the impression Dr Davis formed or was engaging in what he termed ‘non-effortful distortion through self-deception’. The results indicated that both forms of distortion were present to some degree, with the non-effortful form being far more prevalent. This was suggestive of narcissistic tendencies in the respondent, arrogance, poor self-insight, and the expression of anger if confronted. The result on the first aspect of the testing did not necessarily suggest ‘considerable levels of over faking’. It did suggest, however, that self-reporting by the respondent may tend to minimise the extent and degree of any difficulties he was having. In light of the large elevation on the self-deceptive scale, there was a greater likelihood that non-effortful positive distortion may affect the results of other tests.

The PAI is a 344-item self-report questionnaire that, according to Dr Davis, reliably measures personality functioning and the presence of psychiatric symptoms.

There was nothing in the results to suggest that the respondent sought to portray himself in a more negative light than was true. On the contrary, and consistent with the results of the PDS, the results suggested that he tended to present himself in a consistently favourable light, and as being relatively free of common shortcomings to which most individuals will admit. This tendency was not of such a magnitude as to render the results uninterpretable, but did indicate that the results should be viewed with some caution as they would likely under-represent the extent and degree of difficulties.

The respondent’s results revealed a considerable elevation in respect of substance use problems. They suggested a personality style that involves a degree of risk-taking and a tendency to be impulsive.

The results of this test were set out thus by Dr Davis:

In summary, and given the degree of positive distortion noted above, [the applicant’s] PAI results suggested difficulties with substance use, some antisocial personality features, issues around aggression, a prior traumatic event, relationship difficulties, and a reasonably positive self-concept with little interest in treatment.[13]

[13]Exhibit B [180].

Dr Davis, in setting out his conclusion as to the diagnosis of the applicant, opined:

While [the applicant] does not meet criteria for a major mental illness, he clearly has a damaged personality structure that has been complicated by childhood instability and chronic substance abuse during his teenage years. It is my opinion that [his] repeated and early onset offending, impulsivity, and irritability meet formal criteria for Antisocial Personality Disorder. However, this is not a particularly discriminative diagnosis in correctional settings as the criteria are based on criminal behaviour. Nonetheless, assessment of the narrower construct of psychopathy (as measured by the Psychopathy Checklist-Revised; PCL-R; see below) revealed a large number of additional psychopathic personality features. As such, [the respondent’s] personality disorder does not simply reflect his history of offending behaviour.

Turning to the matter of the assessment of the risk of the respondent reoffending in a violent manner, Dr Davis noted:

The scholarly and scientific literature regarding risk assessment for offending and violence has seen considerable advances in recent years. It is now an unequivocal empirical fact that risk assessments made on the basis of ‘traditional’ unstructured clinical opinions have little relationship with subsequent recidivism. However, empirical research indicates that actuarial or structured risk assessment schemes are useful for identifying risk factors and indicating the category of risk for re-offending in which an individual falls. While no instruments for the prediction of any human behaviour are perfect, these approaches have demonstrated predictive validity that is considerably superior to unstructured clinical judgment. Actuarial instruments involve a mechanical combination of risk factors that place an individual offender into a risk category that can be compared to the average general, sexual, or violent offender. Structured instruments include a set of professional guidelines that guide the evaluator through a series of risk factors and considerations prior to making an informed clinical judgment of risk. Research indicates that the intensity of risk management efforts should be matched to this relative level of risk.[14]

[14]Ibid [247].

In carrying out his risk assessment of the respondent, Dr Davis resorted to the use of four tools or protocols. These were the Hare Psychopathy Checklist – Revised (‘PCL-R’), the Level of Service/Risk, Need, Responsivity (‘LS/RNR’), the Violence Risk Appraisal Guide – Revised (‘VRAG-R’) and the HCR-20.

The diagnosis of the respondent with an antisocial personality disorder is not a particularly informative or helpful one in assessing risk of recidivism, in light of the fact that a high proportion of people in prison meet with the criteria for that diagnosis. The narrower construct of psychopathy is considered by experts to be more discriminative for forensic purposes. For that reason, the PCL-R was completed by Dr Davis, based upon his interview with the respondent and the file information.

Psychopathy is a form of personality disorder characterised by difficulties associating with others, limitations in the capacity to experience and express emotion, lifestyle deficits, and antisocial behaviour including criminality. Psychopathic traits in an individual are a very important risk factor where future violent offending is concerned. The PCL-R is a standardised ratings scale that is considered by experts in the field to allow them to reliably identify traits of psychopathy in an individual. While not designed to be a risk assessment instrument, it is considered to be an important tool in assessing risk. Generally speaking, higher scores on the PCL-R are considered to be suggestive of an increased risk of re-offending.

The respondent’s total score on the PCL-R was in the high range, the second highest of the five levels of the instrument. The results indicated that he possesses many of the features of psychopathy.

The LS/RNR is a standardised offender classification scale that covers many of the best-established predictors of general criminal conduct across eight broad domains. The domains are also areas of need in respect of management and treatment. The instrument has received considerable validation throughout the world, and has been found to have a moderate degree of predictive validity in respect of general community recidivism.

The respondent’s total score on the LS/RNR was in the upper end of the high range of risk and need. This, according to Dr Davis, indicated that he poses an elevated risk for general criminal recidivism, considerably higher than that of the average offender.

The VRAG-R is a 12 item actuarial (i.e. mechanical) instrument devised to assess the risk of violent recidivism. It is comprised of static, largely unchanging risk factors.

The score arrived at for the respondent was 41, which was at the 99.5^th percentile, placing him in the highest of the nine categories of risk. In the studies on which this test was developed, the percentage of offenders in category nine who were subsequently charged with a violent or sexual offence was 76 percent over five years and 87 percent over 12 years. As indicated by the test results, the level of risk of the respondent engaging in violent offending in future is considerably higher than that for the average violent offender.

The HCR-20 is a set of structured professional guidelines which considers both static and dynamic risk factors over three domains, Historical (past), Clinical (present) and Risk Management (future). Dr Davis noted that the test has been extensively validated in studies throughout the world and has been found to be amongst the most accurate assessment methods for assessing risk of future violence.

The results on the Historical scale indicated the respondent possesses a large number of historical risk factors, consistently with the results of the VRAG-R.

As to the other two scales, they consist of dynamic, that is, changeable risk factors. The results indicated that the respondent possessed many, but not all of these risk factors.

Dr Davis stated:

The configuration of items on the HCR-20 indicates that [the respondent] has a large number of historical risk factors for violence. These are the best predictors in the long-term. He has slightly fewer dynamic risk factors, and despite a rather positive outlook for the future, the slightly lower number of dynamic risk factors on the clinical scale does not currently temper the high risk suggested by the historical scale alone. As such, it is my opinion that [the respondent] currently poses a high risk for violent recidivism.[15]

[15]Ibid [265].

He further stated:

In [the respondent’s] case, his high risk for violence indicates that his risk is considerably higher than that of the average violent offender and he will require a high level of supervision and resources to contain this risk in the community.[16]

[16]Ibid, footnote 53.

In dealing with the issue of the matter set out in s 269(1)(b) of the Act, Dr Davis stated:

As noted above, [the respondent] was first charged with violent offending at the age of 12 years. From that age until his arrest for Murder eight years later, [his] life was characterised by seemingly constant offending. On several occasions this resulted in charges for serious violent offences under schedule two of the Serious Offenders Act (2018). It is difficult to view [the respondent’s] offending in terms of a pattern or progression. Rather, it was an almost constant eight years of repeated antisocial and violent behaviour that reached its zenith in a two-and-a-half week spree of offending in 1998 that involved the murder of a stranger.
As noted above, [the respondent’s] history, and the fact that he has spent most of his adult life in prison after committing murder at 19 years-of-age, means that it is difficult to provide a precise opinion as to the most likely form of future violence. Nonetheless, based on what is known of his previous offending, future violence is perhaps most likely to involve highly impulsive behaviour and very expressive aggression. Such violence is perhaps more likely, though not necessarily, to occur in the context of substance use or withdrawal. Verbal violence in the form of threats is even more likely.

Dr Davis identified minimal or no alcohol use, abstinence from substance use and a more stable lifestyle as being amongst the factors which might decrease the risks posed by the applicant.

In respect of his assessment of the risk that the respondent would commit a serious violence offence if released into the community and not subject to a supervision order, Dr Davis expressed the opinion that the respondent currently poses a high risk. He went on to state:

It should be noted that [the respondent] has an extensive history of violent and non-violent offending that has on several occasions resulted in charges for offences under schedule two of the Serious Offenders Act (2018). Moreover, many of his other violent offences, while not resulting in scheduled charges, involved violence that had the potential to reach the magnitude of an offence under the schedule. Thus, it is certainly possible that any future violence may also involve an offence under schedule two of the act. I note [the respondent] currently has a seemingly positive outlook and his present attitudes are not particularly antisocial in nature. Nonetheless, given his extensive history of often serious violent offending, and the preponderance of risk factors, [the respondent] will have to demonstrate a serious period of stability in the community before his risk can be deemed to be anything other than high.[17]

Evidence of Dr Davis

[17]Ibid [289].

Dr Davis gave evidence before me. He confirmed his qualifications and experience. From the time of the completion of his Doctor of Psychology in Clinical and Forensic Psychology, in which his doctoral thesis was on the topic of risk assessment, Dr Davis has largely specialised in that field. He has carried out many hundreds of risk assessments over the years of his career.

Dr Davis confirmed that he still holds the opinions expressed in his report. He explained that a risk assessment was essentially a ‘rank ordering exercise’ in which, ‘with a modicum of accuracy we can rank order people in terms of who poses the greater risk compared to one another’.[18] It is certainly not an infallible science.
[18]Transcript 6.

Dr Davis explained the difference between static and dynamic risk factors, pointing out that the literature is very clear that the static factors are the best predictors over the long-term.

The risk assessment carried out by Dr Davis in this case focused exclusively on the risk of violent recidivism as opposed to sexual recidivism because there was no evidence of past offending in the case of sexual offending.

Dr Davis elaborated on the purpose of the PCL-R and his experience with the instrument. Psychopathic personality features are an incredibly important risk factor in violent recidivism, he said. The score he obtained for the respondent was a prorated 29.5 out of 40, which placed him in the high ranged for pathological features. By comparison, Dr Darjee[19] obtained a score of 23 which was below that range. In respect of the different results obtained by himself and Dr Darjee, the difference was greater than Dr Davis was accustomed to seeing. He gave some possible explanations for this, but made the point that, ‘I don’t think, when you really get down to the nitty gritty that we’ve had too much of a difference of opinion’.[20] Dr Davis, whilst minimising the difference between the respective results, expressed confidence in his own figure. Furthermore, in respect of the PCL-R, Dr Davis pointed out that a normal person in the community might be expected to get a score of about 6, whereas the average offender might be expected to record about a 21 or 22.
[19]Dr Rajan Darjee is a Consultant Forensic Psychiatrist who provided a report and was called by the respondent.
[20]Transcript 15.

In the context of discussing the VRAG, Dr Davis explained that actuarial meant something that is entirely mechanical, involving no real clinical judgment at all. The score obtained by the respondent on this measure was ‘remarkably high’.[21] Very few people would have as many historical risk factors as the respondent.
[21]Transcript 16.

Dr Davis explained why he did not perform the Structured Assessment of Protective Factors (‘SAPROF’), one of the tests carried out by Dr Darjee. To his mind it was not necessary to do so.

Dr Davis elaborated on the HCR-20, and his experience in conducting the test. A high risk individual was someone who poses a considerably higher risk than the average violent offender and would require a high degree of supervision and resources in the community. The respondent was currently in the high risk category. He needed to get out and prove himself for a period of time to overcome the ‘huge historical risk that he’s carrying’.[22]
[22]Transcript 29.

Dr Davis explained why the long passage of time in custody since the previous violent offending of the respondent made it difficult to provide a precise opinion as to the most likely form of future violence by him. As he said, ‘We just really don’t know at the moment because we don’t really know what he’s like in the community’.[23]
[23]Transcript 32.

When asked about the opinion expressed by Dr Darjee that the level of severity of future violence by the respondent was likely to be relatively minor, Dr Davis said that he would be very uncomfortable stating such an opinion as there was not enough material on which to base such an opinion. As he put it:

All I can say is that it has happened that way in the past and we really don’t know what [the respondent’s] like when he’s in these situations now so I was uncomfortable going that far in my opinion, I don’t think that’s something I could do.[24]

[24]Transcript 34.

Bearing in mind the differences to which he was taken, Dr Davis, when asked to compare his opinions with those of Dr Darjee, stated, ‘I think we’re very much in the ball park of one another on most things to do with risk assessment’.[25]
[25]Transcript 34.

When asked whether he considered the respondent would never change from being a person who posed a high risk of violent reoffending, Dr Davis said he did not believe that was the case. If he could get out into the community and have a prolonged period of stability of the order of two years, a reduction in risk might be demonstrated.

In respect of the issue of any conditions appropriate for a supervision order, Dr Davis considered that opinions on those by him would amount to going outside his area of expertise. That was more a matter for the consideration of people with expertise in correctional management.

When asked specifically about alcohol use, while it would not be ideal for the respondent to be drinking, he saw no difficulty with him having one or two drinks occasionally.

Near the end of examination-in-chief, Dr Davis gave evidence that when he had asked the respondent during their interview if he thought the support of a supervision order might be helpful for him, he had replied in the affirmative.

In cross-examination, Dr Davis stated that the VRAG and the HCR-20 provide a moderate to large degree of predictive accuracy. He agreed that the VRAG could not tell you whether a person with a high score was going to be a recidivist or not.

Dr Davis agreed that the behaviour of the respondent in prison has been considerably better in recent years than it was in the first decade of custody. Despite that, the abiding impression from the Corrections files was of a ‘degree of oppositionality to authority’.[26]
[26]Transcript 52.

Dr Davis agreed that it is uncontroversial that full development of the brain did not occur until the mid-20s. The conduct of the respondent, however, could not be considered as being anything like the normal impulsivity of a teenager. It was happening at a time when impulsivity and aggression were more likely to be occurring, but in his case, it occurred multiple times and in very extreme ways. His youth at the time makes it very difficult to forecast what his behaviour would be like now.

Dr Davis was challenged about why he did not make mention in his report of a comment made by Justice Teague about remorse. He indicated he had taken it into account, but did not purport to set out the reasons for sentence in full detail.

In terms of the PCL-R, Dr Davis took issue that there had been controversy about its utility or accuracy. As to the difference between the scores obtained by himself and Dr Darjee, he again indicated that they had in fact come to similar outcomes.

When it was put to Dr Davis that his assessment of the personality of the respondent might have been influenced by the negative views as to his personality expressed in the Corrections files, he said the instrument could not be completed without some reliance on the file. Many of the items, however, were based on the interview he conducted.

Dr Davis agreed that he had not treated people in the past decade. He was a proponent of sub-specialisation and his areas of expertise are in clinical forensic assessment and behavioural investigative advice to law enforcement entities. Treating clinicians have a different mindset to that of forensic assessors, whose duty was to the court. He had chosen, in particular, to focus on that as the thing that he was best at.

Dr Davis was cross examined on the topic of cognitive bias. It was necessary to guard against that, but cognitive bias was less likely to occur in a case such as this where there was such a body of material permitting the expert to look at somebody’s life over so many years.

It was difficult to assess the accuracy of risk assessments, because if assessments were taken seriously and persons ended up being placed on orders, that may have potentially led to the negative outcome not occurring.

Dr Davis agreed that playing football would be a desirable activity for the respondent to be engaged in.[27]
[27]I note that no evidence was led, nor was any submission made on behalf of the respondent during the hearing, to indicate that he was likely to seek to play football on his release from custody.

In terms of possible conditions, whilst indicating that he did not know what conditions were contemplated here, Dr Davis agreed that the wearing of an electronic monitoring ankle bracelet would cause some degree of stress to the respondent, and would make the playing of football difficult. Nor would he take too well to random visits by police.

When it was put to Dr Davis that the imposition of a long supervision order could cause the respondent to lose hope, he said that he would be concerned if that was so.

In respect of his earlier evidence about the need for the respondent to show about two years of stable behaviour in the community before a review, Dr Davis pointed out that a review at two years would necessitate a further assessment in only 18 months, which needed to be kept in mind.

In respect of a suppression order, Dr Davis strongly supported the need for such an order.

In re-examination, Dr Davis pointed out that a too-short review period could itself have a detrimental effect on a particular offender due to the stress involved.

He indicated that in his assessment of the respondent, he saw nothing to indicate he may lose hope as to his future.

In the context of a passage attributed to Professor Ogloff relating to risk assessments for sex offenders, Dr Davis re-affirmed his view that the best approach to risk assessment involved the use of validated risk measures such as those he had used in this case.

Anthony Calandro

Anthony Calandro, the manager of operations with the Post Sentence Branch, a part of the Office of Corrections, gave evidence on the hearing. He indicated to the Court that a one bedroom apartment in Reservoir had been identified for the respondent, for which he would pay a modest rent. A financial package would also be available for him. He would be offered the services of the Australian Community Support Organisation, which would offer outreach support. He would also be referred to the Forensic Intervention Service (‘FIS’) , which had replaced SOATS, the Specialised Offender Assessment and Treatment Service. He would receive treatment under the auspices of that service.

In respect of the proposed curfew condition, Mr Calandro said the condition sought would provide some external structure and stability to the respondent, which had been identified as something which might help reduce the risk of reoffending. In addition, some of the past offending of the respondent had occurred at night time. If a situation arose where the respondent needed to work during curfew hours, there would be a provision permitting the Post Sentence Authority (‘PSA’) to give directions permitting this. The respondent would need to bring the matter to the attention of his specialist case manager (‘SCM’) and then a report would be made to the PSA seeking approval.

In respect of the proposed condition that the respondent abstain from alcohol, Mr Calandro noted that substance use had been considered by Dr Davis to increase the risk of offending by the respondent. He had a history of binge drinking, and had been intoxicated on at least one occasion during one of the parole periods. As the Secretary would put it, it is important that the respondent, particularly in the initial stages, abstain from alcohol. After that, there could be directions given by the PSA permitting some alcohol consumption.

As for the electronic monitoring condition, it would permit early intervention should the respondent fail to abide by the curfew or commence to associate with undesirable people in a particular area.

In cross-examination, Mr Calandro indicated the SCM allocated to the respondent would be from a different stream from the Corrections officers to whom he reported on parole. As for the Corrections staff, Mr Calandro acknowledged that their reports provided to the Adult Parole Board after parole was breached were uniformly not to grant parole.

Whilst GPS bracelets generally were not monitored in real time, if there was a breach of curfew or an attempt to remove the bracelet, an alert would be generated.

Mr Calandro indicated that treatment provided to the respondent through the FIS would be the subject of updates to Corrections Victoria, so it would not be private.

On questioning about the size of the GPS bracelet, Mr Calandro elaborated on this matter. He agreed it would be difficult to play football wearing a bracelet, but it could be done by covering it up.

In further evidence provided to the Court on the day of the making of the supervision order, Mr Calandro[28] explained to me the different roles of the Post Sentence Branch, a part of Corrections Victoria, and the PSA which is an independent authority. He explained the manner in which the respondent could seek to have any temporary changes made to the conditions of his order, and the steps and time involved in that. He said such things could be arranged very quickly.
[28]Transcript 235.

For the respondent
Michael Turner

Michael Turner, a member of the Victorian Bar, gave evidence for the respondent. He came to know that respondent in the 1990s when Mr Turner’s sister and her then husband Kevin Walker had an association with the respondent through the Big Brother/Big Sister programme. Mr Turner described the support he had provided to the respondent in the past and which he would be willing to provide in future. Mr Turner, as a result of this association, appeared for the respondent in his Court of Appeal hearing following sentence.

Kevin Walker

Kevin Walker, a semi-retired aeronautical engineer, became friends with the respondent after having taking part in the Big Brother/Big Sister programme as a mentor for him. He outlined the support he had provided in the past and would be willing to provide in future.

Dr Rajan Darjee

Dr Rajan Darjee, a Consultant Forensic Psychiatrist, was asked by the legal representatives of the respondent to examine the respondent and address a number of matters raised under s 269 of the Act. He prepared a report to the Court dated 7 August 2019 which became Exhibit 2 on the hearing.

Report of Dr Darjee

Dr Darjee interviewed the respondent for 3 ¼ hours at Ravenhall Correctional Centre on 31 July 2019. In preparing his report, he also had access to a large amount of other material including the report of Dr Davis, the draft supervision order, and the files held by Corrections Victoria in respect of the respondent.

In the report, Dr Darjee set out his extensive qualifications, and his long experience as a clinician in the area of the assessment and treatment of sexual and violent offenders.

In setting out the response of the respondent to imprisonment, Dr Darjee pointed out that due to his behaviour, he spent much of his first decade in prison in high security management units. There had, however, been a marked decrease in the frequency and severity of incidents from that time, with little in the way of violence.

Of some note, Dr Darjee indicated that the respondent had had a heroin habit at the time of the index offences.

In respect of personality functioning, Dr Darjee stated:

He appears to have had longstanding difficulties with emotional, interpersonal and behavioural functioning, with evidence of impulsivity, emotional instability, low frustration tolerance, anger, recklessness, antisocial attitudes and behaviour, poor coping and being somewhat self-centred. His impulsivity, emotional instability, recklessness and anger, seem to have been less severe, although still present, over recent years. [29]

[29]Exhibit 2 [33].

In terms of presentation at interview, the respondent was polite, co-operative, animated and talkative. He expressed frustration at the fact that he had not been granted further parole and may be subject to a supervision order, ‘but was accepting that this would happen’. [30] There was no evidence of symptoms of severe mental illness.
[30]Ibid [35].

The respondent accepted that others would be likely to consider him to pose a high risk of violence, given his history, but was keen to state that he had put violence and crime behind him. He expressed concerns about some of the proposed conditions, namely, those relating to abstinence from alcohol, a curfew, and electronic monitoring.

Dr Darjee opined that the respondent had a personality disorder with traits of antisocial and borderline personality disorders. In terms of psychopathy, a score of 23 out of 40 was obtained for the PCL-R, which did not reach the threshold for a diagnosis of psychopathic personality disorder. There were particularly high ratings on the items covering impulsivity and antisociality.

The respondent would also have previously met the criteria for substance misuse disorder, although not for some years.

In terms of a risk assessment, Dr Darjee applied the HCR-20 and also used the SAPROF to consider protective factors.

He described the HCR-20. The respondent had a high number of historical risk factors, indicating that he belongs to a group of individuals who have committed violent offences with a higher likelihood of committing further violent offences than other individuals who had committed violent offences. However, he had relatively few current clinical factors, reflecting his recent relative stability and good progress in prison.

Dr Darjee stated:

In terms of future risk scenarios for violence, the most plausible and likely scenario seems to be one where he would react to a confrontation or perceived provocation in the heat of the moment, most likely with verbal aggression or potentially physical aggression. The level of severity of such violence would likely be relatively minor and not resulting in life-threatening harm, although the severity would depend on contextual factors, such as the response of the victim, disinhibition by substances, whether a weapon was to hand, and his level of anger. In the unlikely circumstance that he returns to the type of antisocial lifestyle which he had in his late teens, then clearly the likelihood of such violence would be much greater, and contextual factors would perhaps be more likely to lead to more serious violence. It is unlikely he would commit planned violence or that he would set out to commit serious or fatal violence.[31]

[31]Ibid [50].

Dr Darjee went on to state:

The HCR-20 should be used to generate three summary judgments regarding risk of future violence. Case prioritisation reflects the level of resources required to prevent violent offending and is related to the likelihood of further violence. He rates as high case priority. Risk of serious physical harm reflects the risk that any future violence will involve life-threatening physical harm. He rates as moderate risk of serious physical harm. Imminent violence reflects whether the individual poses an imminent risk which requires urgent action. He rates as low risk of imminent violence. [32]

[32]Ibid [51].

The SAPROF allows the explicit and structured rating of protective factors which may mitigate risk of violence. Using this instrument, the respondent was assessed as having a moderate level of protection.

In terms of the violence previously committed by the respondent, Dr Darjee noted:

The violence he has committed has been impulsive, reckless and in the heat of the moment, in the context of confrontation, in the furtherance of committing other crimes or attempting to get away with them, and/or when intoxicated/withdrawing from substances. There was prolific violence and antisocial behaviour as a teenager and during his first decade in prison. [33]

[33]Ibid [59].

In respect of risk management considerations, Dr Darjee expressed the view that the respondent would not seek out an antisocial lifestyle or look to commit violent offences in the community. His commitment to have a prosocial non-violent lifestyle seemed sincere, but he was limited in his ability to achieve and maintain a stable lifestyle and work with others to achieve this. He had a tendency to react against what he perceived as unnecessary conditions, so the issue was not so much closing down and restricting him as supporting him to gain and maintain stability and prosocial goals.

In respect of the issue of the appropriate conditions, Dr Darjee stated:

Conditions should be just those necessary to manage the risk of violence, for example attending supervision, participating in treatment, and not taking drugs. Although it is reasonable to require him not to be intoxicated with alcohol, drinking a few drinks socially is unlikely to increase the risk he poses. So after an initial period of no drinking, and with good progress, the aim should be to relax this condition to allow him to have a couple of alcoholic drinks. Electronic monitoring does not appear to serve any specific purpose as he does not have an area which (or a person who) he is likely to approach or act violently towards which (or who) can be identified in advance. Any curfew placed on him should be reviewed soon after release, as it does not seem that night-time is a particular risky period for him, so that its necessity can be gauged in light of his stability and progress.[34]

[34]Ibid [66].

In answering the specific question asked of him upon referral, Dr Darjee noted that the respondent does have a propensity to commit a serious violence offence in the future as reflected by the large number of relevant historical risk factors for violence. Due primarily to his history, the respondent has to be considered more likely than the average violent offender to commit a further violent offence if not subject to a supervision order.

In respect of conditions, it is important that only conditions which will reduce the risk of violence be put in place.

Dr Darjee supported a prohibition on the publication of material which might identify the respondent. Such publication may impact upon his prospects of rehabilitation.

Evidence of Dr Darjee

In his evidence before me, Dr Darjee set out his qualifications and experience as a forensic psychiatrist. He has had a great deal of experience, in particular, in the management of high-risk sexual and violent offenders in Scotland. He has conducted many hundreds of risk assessments.

His report was tendered through him, and he sought to change nothing in the report.

Dr Darjee confirmed that the respondent, mainly due to his history, poses a greater risk of future violence than other violent offenders. He would ‘probably be likely to commit a violent offence if he was released unsupervised’.[35] He went on to say that such offending would likely occur if, for example, he became destabilised or there were substance issue or an antisocial lifestyle rather than the respondent simply immediately trying to act violently on release.
[35]Transcript 126.

As for the nature of future violence, that was difficult to be certain about. Because of his history, he has to be considered to pose a high risk of committing a further violent offence, but that doesn’t really tell you about the nature of what that violent offence might be. He gave evidence that, as set out in his report, his opinion was that the most likely future violence would be relatively minor.

Reoffending would be unlikely without destabilisation or other factors coming into play.

The respondent would be unlikely to set out to commit Schedule 2 offences upon his release, in which respect he could be distinguished from two classes of other offenders. First, those who use violence ‘instrumentally or in a predatory way against others’,[36] and secondly, those who are so easily destabilised that minor conflicts quickly lead to escalating anger and very serious violence towards others. Although it could be argued the respondent has some features in common with that second group, he is distinguishable from that type.
[36]Transcript 128.

In respect of the different results obtained by himself and Dr Davis on the PCL-R measure, Dr Darjee said his response to that difference was very similar to that of Dr Davis given in evidence. The implications of their respective assessments were ‘not that different’.[37] They were in agreement that impulsivity, instability and anti-sociality are key personality factors of relevance with implications for risk management.
[37]Transcript 130.

Dr Darjee did concede that his past experience might indicate that he may have a general tendency to rate people as slightly lower risks than other experts in the field.

On the issue of what supervision should be provided in respect of the respondent, Dr Darjee did not share Dr Davis’ reticence to go into particular conditions. The key issue with the respondent was to provide support and stability, so that factors that may lead to him de-stabilising and becoming violent do not come into play. There should be a balanced approach taken to the restrictions placed on him.

One general principle, he said, was that only restrictions necessary to reduce the risk of harm to others should be imposed, and should then be strictly enforced. Behavioural issues which may interfere with supervision but are not necessarily risk-related should not lead to restrictions.

Dr Darjee indicated that there is evidence that some personality difficulties can change with time. This, however, does not happen quickly, and there would not be significant changes, particularly over short periods of time.

A key aspect of the supervision the respondent requires is supervision that supports him to develop and maintain a prosocial lifestyle in the community, in terms of relationships, work, and stable living. For example, his ability to take drugs and to fall into an unstable lifestyle will need to be limited.

Dr Darjee opined that GPS monitoring is a condition which should only be used where there is a particular geographical location from which it is necessary to keep the offender. It is difficult for those subject to such monitoring. The devices can cause discomfort and limit the range of possible physical activity.

In respect of alcohol, Dr Darjee shared Dr Davis’ view that there was no concern about moderate consumption, but that intoxication would be undesirable.

In respect of the curfew, Dr Darjee expressed the view that it may be desirable for a short period after release as it would give the respondent some structure. It might, on the other hand, impede positive things. Unless there were clear signs that the responded was destabilising or that night time was becoming an issue, a curfew would only be necessary for a short time before being relaxed.

In respect of the level of supervision required by the respondent, when asked whether he considered that the level of supervision which would be provided by the Bridge Centre would suffice, or whether he considered that he would need the kind of case management involved in a supervision order, Dr Darjee opined:

I think given [the respondent’s] history and the assessment of the risk he poses, that I think he would need more than that. I think it is important that he has some degree of supervision to allow him to develop that stability over a longer period of time than potentially I think the Bridge Centre would be involved. [38]

[38]Transcript 146.

In cross-examination, Ms Flynn asked Dr Darjee about some recent incident reports in the prison which had led to Governor’s disciplinary hearings. Two of these concerned urine samples positive for buprenorphine, and another concerned him being verbally abusive towards a doctor. The recent drug issues were, he conceded, ‘potentially a concern’.[39] They could, amongst other things, be a sign of impulsivity.
[39]Transcript 148.

In respect of the issue of cognitive bias, Dr Darjee conceded that it is difficult for any expert to guard against that.

Dr Darjee acknowledged that he and Dr Davis had come to very similar conclusions about the personality difficulties the respondent has.

In terms of the matters dealt with in paragraph 51 of his report, Dr Darjee indicated that the judgment of case prioritisation, in which the respondent was a high priority, corresponds with the opinion formed as to the likelihood of him going on to commit a further violent offence.

In respect of the proposition in that paragraph that the risk of serious physical harm reflects the risk that any future violence will involve life-threatening physical harm, Dr Darjee accepted that that was a higher standard than that set out in Schedule 2 of the Act.

On the question as to the likely type of violence that the respondent would commit in future, Dr Darjee agreed that it is a difficult thing to assess in view of his history. He went on to say, however:

The reason I place him in moderate risk category is because there has been serious violence in the past, but actually thinking about circumstances in the future, I think even if things destabilise, the most likely types of aggression would be verbal abuse and probably less serious physical violence. I think it’s less likely that such violence would escalate to the level of serious harm. I’m not saying that wouldn’t occur, I think a number of contextual factors have to come into play in terms of disinhibition, the level of anger and confrontation and the other things going on. So I think there’s sufficient information in this case to kind of form a view and I think balancing the different factors I’ve mentioned just there, that’s why I came to the view there was a moderate risk of serious harm in the future.[40]

[40]Transcript 155.

In respect of the first period of parole, Dr Darjee expressed the view that what went wrong there was that the level of structure and support provided to the respondent was not sufficient ‘when things started to unravel to some extent’.[41]
[41]Transcript 155.

Insofar as he had expressed the opinion that the respondent would not set out to commit violent offences upon release, Dr Darjee accepted that the index crime and some other instances of his offending were not crimes which he had set out to commit, but rather, were impulsive.

In explanation as to why he was prepared to talk about particular conditions, unlike Dr Davis, Dr Darjee said it was because he had extensive experience working in that area.

In respect of the alcohol condition, Dr Darjee repeated his view that a period of abstinence at the start would be a good idea. Likewise with the curfew, although he did not think a curfew would necessarily add anything by way of risk management.

In response to some questions from me, Dr Darjee reiterated that drug use, which could lead to destabilisation, was something which would need to be monitored, particularly in light of the recent incidents.

As for electronic monitoring, Dr Darjee agreed that it would more readily allow the authorities to monitor compliance with the curfew.

I asked Dr Darjee how, in the circumstances, he had formed the opinion that if there was to be further violence carried out by the respondent, it would be likely to be of a low order. He stated that most people who commit very serious violence such as homicide do not do it again. Although the respondent had committed serious violence before his incarceration, and some violence in prison, when he was on parole and to some extent destabilised, and subject to some confrontations, he did not resort to violence of anywhere near the previous level.

I directed Dr Darjee to the portion of the report of Dr Davis at paragraph 277 in which Dr Davis stated:

However as noted above it is my opinion that [the respondent] currently poses a high risk for violent recidivism (i.e, considerably higher than that of the average violent offender). Given that he has previously committed several violent offences that have either been at the magnitude of a Schedule 2 offence, or have the potential to reach that magnitude, it is certainly possible that any future violence may also involve an offence under Schedule 2 for Serious Offenders Act 2018.

I asked Dr Darjee whether he took any issue with those opinions of Dr Davis, and he said:

No, I don’t, especially as you know, he’s used the qualifier, that it would be possible. I think it could possibly escalate, depending on certain situational and contextual factors.[42]

[42]Transcript 172.

In re-examination, Dr Darjee said that he thought it was important in this case to acknowledge that there are some protective factors.

He gave some evidence as to the potential negative effects of the proposed curfew and electronic monitoring conditions. Because of his personality disorder, the respondent was more likely than a normal person to react in a negative way to such conditions.

When asked again whether he saw the three disputed conditions as being necessary, he stated:

In my view, those conditions are not perhaps strictly necessary to manage risk in this case, and I think if they are put in place because the feeling is things need to be done carefully on him moving from prison to the community, then I think they should be kept in place for a short period of time, and then if things are going well, they should be removed.[43]

[43]Transcript 183.

He went on to say that he thought one month would probably be sufficient.

Submissions on behalf of the applicant

Ms Flynn relied in large part upon her written outline of submissions, which was supplemented in oral submissions before me.

Ms Flynn, having set out the respondent’s history of offending, highlighted the fact that the primary purpose of the Act is to provide for enhanced protection of the community.[44]
[44]Section 1(a) of the Serious Offenders Act 2018 (Vic).

Ms Flynn dealt with the concept of ‘unacceptable risk’, a term that is not defined in the Act, but explained in detail in the case of Nigro.[45]
[45]Nigro (n 4).

Ms Flynn submitted that the Court can be satisfied to a high degree of probability that the respondent poses an unacceptable risk of committing a serious violence offence if in the community and not subject to a supervision order. She relied primarily on the evidence of Dr Davis as contained in his report and sworn evidence that the respondent poses a high risk of violent recidivism if in the community and not subject to a supervision order, and that any future violence would most likely involve highly impulsive behaviour and very expressive aggression, and that it is certainly possible that it may involve a serious violence offence.

Ms Flynn submitted that the evidence of Dr Davis is acceptable, cogent evidence of an unacceptable risk upon which the Court can be satisfied to the requisite standard.

She also relied on the evidence of Dr Darjee to an extent. He was of the same opinion as Dr Davis as to the respondent’s high risk of committing a violent offence.

Insofar as the evidence of Dr Darjee was that any future violent offending would likely be at the lower end of the scale of seriousness, that evidence was challenged by the applicant, and the Court should prefer the evidence of Dr Davis on that point.

In respect of the conditions sought, Ms Flynn pointed to the statutory framework as set out in s 27 of the Act, reminding the Court in particular of the primary purpose of conditions. Whilst the three challenged conditions would be onerous to an extent, they were necessary in this case in light of the gravity of the risk of the respondent re-offending. They would promote his rehabilitation and treatment and address the risk he poses. They would constitute the minimum interference with his liberty, privacy and 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 re-offending.

Turning to the curfew condition sought, Ms Flynn pointed to the fact that before the index offence, the respondent committed a number of burglaries at night time, which could be considered to be a high-risk time for him. In addition, the evidence of Dr Davis was that lifestyle stability, pro-social support networks and stable accommodation may mitigate the risk of re-offending. The curfew, coupled with the residential condition, would provide the respondent with an external structure and boundaries which would foster and promote a stable, pro-social lifestyle. The curfew hours were moderate in the circumstances. They could be modified by the PSA on an occasional or limited basis, but could also be the subject of an application for a review.

In respect of the condition sought prohibiting alcohol use, Mr Flynn submitted that prohibiting alcohol and drug use would significantly reduce the risk of re-offending. The respondent had a long history of substance misuse, and he was alcohol or drug affected at the time of many of his prior offences. Prohibiting alcohol use at all would be an important part of controlling risk. The evidence of Dr Davis that future violence would be more likely to occur in the context of substance use or withdrawal and that minimal or no alcohol use may help to reduce risk of future violence was also noted. Even Dr Darjee admitted the desirability of a prohibition on alcohol, at the start at least.

Turning to the condition requiring electronic monitoring, that would be a means by which the respondent’s behaviour and compliance with conditions could be monitored. In circumstances where Dr Darjee contended that there would be a build-up to any sort of serious offending, there would be a period of destabilisation which electronic monitoring would assist in detecting. It would also assist in monitoring compliance with the curfew.

Insofar as there was some evidence indicating the possibility that it might be appropriate for some conditions to be relaxed after a period of compliance, Ms Flynn indicated that such matters could be the subject of future application. For now, it was important to impose conditions to meet the needs of the current situation.

In respect of the respondent’s application for a non-publication order, the applicant neither consented to nor opposed the making of such an order.

Submissions on behalf of the respondent

A written outline was filed and oral submissions were made by Mr McLoughlin on behalf of the respondent. I will deal first with the submissions foreshadowed in the outline.

Mr McLoughlin submitted that the assessment report and evidence of Dr Davis did not constitute acceptable cogent evidence enabling the Court to be satisfied to a high degree of probability that the respondent will pose an unacceptable risk of relevant offending if released into the community unsupervised. In many respects, in support of that overall contention, he criticised the evidence of Dr Davis.

First, he submitted that the assessment of Dr Davis is founded substantially upon file records made by the Secretary’s own staff which was material which was ‘inherently not partial’[46] and in many cases asserted negative matters against the respondent which are not correct.
[46]Outline [5](a).

Secondly, it was asserted that several of the instruments relied upon by Dr Davis have limited predictive capacity and were not intended to support predictions about the future behaviour of an individual.

Thirdly, it was submitted that important aspects of Dr Davis’ report were founded upon his subjective judgment which was open to doubt and potentially influenced by the unduly negative view of the respondent reflected in the Corrections files.

Fourthly, there was a degree of selectivity in the material emphasised by Dr Davis. One example of this was said to be the failure of Dr Davis to include in his account of the sentencing remarks of Teague J a passage indicating some remorse in the respondent for the killing of Peter Orr in the index offence.

Fifthly, it was submitted that Dr Davis had given little weight in his risk assessment to:

· the fact that the index offence occurred when the respondent was 19 years old and his brain would not have reached full maturity;

· the fact that the respondent had not been charged with committing any offence since 1998, including during the periods on parole; and

· the fact that the respondent did not necessarily intend to kill during the index offence.

Sixthly, it was submitted that Dr Davis had unjustifiably deprecated the impact on the respondent of treatment programmes he had undergone by circular reasoning, making reference to paragraph 282 of Dr Davis’ report.

Seventhly, it was submitted that Dr Davis’ ultimate finding that the respondent’s risk of reoffending was substantially higher than that of a theoretical average offender did not amount to a finding that the respondent is highly likely to reoffend if not supervised. Nor did it quantify in any way the likelihood of the respondent reoffending.

Mr McLoughlin submitted, with particular reliance upon paragraphs 63 and 71 of the report of Dr Darjee, that a repetition of the index offending by the respondent is highly unlikely given that the index offence occurred in the context of adolescent immaturity, severe heroin addiction and a completely dysregulated lifestyle.

He submitted, on the basis of Nigro,[47] that the existence of some risk of lesser offending is not a sufficient basis for the making of an order.
[47]Nigro (n 4) at [113].

He further submitted that the making of a supervision order may in fact increase the risk of reoffending. It would:

result in the respondent being supervised by a service which has consistently since 2014 made clear its opposition to his being in the community, and has repeatedly expressed negative views about the respondent, his personality and behaviour. The supervision reports make it clear that the respondent reacts negatively to being treated in this way. Consequently, the imposition of an order may lead to a loss of hope by the respondent and a consequent downward spiral in his behaviour.[48]

[48]Outline [9].

Mr McLoughlin went as far as to assert that the conditions proposed by the applicant would amount to a form of house arrest with regular check-up visits by the police. Such a regime would not promote the respondent’s rehabilitation or reintegration into the community.

Counsel further accused the applicant of having done nothing in the five year window it had had to prepare the respondent for life in the community and address its concerns about his conduct and behaviour.

Mr McLoughlin submitted that the applicant was in effect seeking ‘effectively to rewrite the sentence imposed by this court to one of 26 years (or potentially life) with a non-parole period of 20 years’.[49]
[49]Outline [13].

Mr McLoughlin submitted that a supervision order should not be made. In the alternative, he submitted that if made, the order should not include the conditions concerning curfew, abstinence from alcohol, and electronic monitoring. A suppression order was also sought.

In his oral submissions before me, Mr McLoughlin commenced as follows:

The longer I do this, your Honour, the more I’m struck by how intractable people are in the way they interpret facts and how little one can do to change people’s view of the facts and if one wants to take a catastrophizing view of the facts of [the respondent’s] case, it’s very difficult to stop that happening.[50]

[50]Transcript 198.

When asked by me whether he was implying that either or both of Ms Flynn or the Secretary was being intractable, Mr McLoughlin submitted:

I’m saying that what lies behind my learned friend’s submission is an attempt to persuade your Honour that this is no more than minor inconvenience for [the respondent] and also that these distant theoretical possibilities about his behaviour are risks of such moment which justify the imposition of the order. Because that’s really what they are.[51]

[51]Transcript 198.

Mr McLoughlin submitted that the applicant did not get to first base in the application because although there was a risk, it was not of a kind which would justify the making of an order. Even an acceptance of the evidence of Dr Davis would not justify the making of an order. Indeed, the sort of evidence which would amount to such justification would be that a person fell into one of the two categories spoken of by Dr Darjee in his evidence.[52]
[52]Dealt with in paragraph 131 of these reasons.

In the course of his oral submissions, Mr McLoughlin stood by the criticisms he had made of the methodology and evidence of Dr Davis in the written outline.

Furthermore, Mr McLouglin in renewing his criticism of the authorities contained in the outline, said:

This is somebody who served a 20 year sentence and the state is asking at the end of the service of that sentence, not in my submission having used its best efforts to prepare him for release, for the court to impose very substantial restrictions on his freedom. When he’s, you know, in theory, paid his price to society for the crimes he committed.[53]

[53]Transcript 210.

Mr McLoughlin described the conditions sought as ‘oppressive’ and ‘potentially counterproductive’[54] and as ‘actually more onerous in some respects than parole’.[55]
[54]Transcript 216.
[55]Transcript 204.

In connection with the submissions made by Ms Flynn indicating there may be the prospect of conditions being modified or relaxed after a period of compliance or in response to particular needs, Mr McLoughlin said:

Since the Post Sentence Authority gets this transcript, I will say for the record that in my now quite lengthy experience of dealing with people subject to supervision orders, the Post Sentence Authority is extremely risk averse, unnecessarily risk averse, very slow to move and inscrutable.[56]

[56]Transcript 217.

He went on to describe the system as highly inflexible and highly bureaucratic. I should not impose any conditions in the belief that they would be easily varied by the Post Sentence Authority.[57]
[57]Transcript 223.

In respect of the instances of buprenorphine use detected in recent times by urinalysis, Mr McLoughlin took issue with this being a sign of continued drug abuse. Rather, from the Bar table, he asserted that these had occurred because the respondent wanted to get onto the methadone programme and saw this as a way to do it.

In respect of the proposed curfew, Mr McLoughlin submitted it was difficult to see how it would help. All it would do was make the respondent ‘feel more like he’s carrying the prison around in his person. It’s just an arbitrary thing’.[58]
[58]Transcript 221.

Mr McLoughlin submitted that if the Court was of the view that the curfew and alcohol conditions should be imposed, I should put a sunset clause on those conditions.

Submission in reply by the applicant

In reply, Ms Flynn, on the issue of likelihood, referred me to paragraphs 6 and 7 of Nigro[59].
[59]Nigro (n 4).

She made it clear that the applicant was not seeking an extension of the respondent’s sentence. Rather, the applicant was ‘properly seeking a supervision order for the protection of the community based on the assessment report and the evidence of Dr Davis’.[60]
[60]Transcript 225.

In respect of the criticisms made of Dr Davis in Mr McLoughlin’s written outline, Ms Flynn submitted that I should give these no weight unless they had been put to the witness permitting him to meet the criticisms.

Insofar as Mr McLoughlin criticised Dr Davis for the tools he had used, Mr Flynn made the point that Dr Darjee had used many of the same tools.

As for some of the concerns expressed by Mr McLoughlin about the practical disadvantages of an electronic monitoring ankle bracelet, there was no evidence in support of these, Mr Calandro having not been cross-examined about such matters.

Analysis

To my mind, Dr Davis is a highly-qualified expert with a wealth of experience in the area of carrying out risk assessments of the type required of him in this case. He showed himself in every aspect of his interview of the respondent, compilation of his report and the evidence he gave before me to be a careful, considered and cautious expert. In connection with his explanation of the very long period of time he spent in prison interviewing the respondent, he somewhat self-effacingly described himself as being ‘awfully obsessive’. Others may consider him to be thorough and meticulous, desirable traits which, to my mind, were evident in every aspect of his work.

As indicated earlier, Dr Davis had regard to a vast array of material to assist him in the formation of his opinions and the preparation of his report, including the Corrections files of the respondent. Contrary to the submissions of Mr McLoughlin, there is nothing to indicate that Dr Davis used any of this material other than appropriately. In particular, there is nothing whatever to suggest that he was unduly influenced by negative views of the respondent which may have appeared in the Corrections files. Resort to those files was a necessary part of the performance by Dr Davis of his function, and was a procedure with which he would have been very familiar in light of the many hundreds of risk assessments he has conducted in the past. Those files, however, were only a small part of the overall material to which he had regard.

As for the various tests and instruments relied on by Dr Davis in the course of carrying out his risk assessment, there is nothing at all to suggest that these were not appropriate measures. On his evidence, which was unchallenged, they were all scientifically validated and widely used measures. Some of them were used by Dr Darjee himself, from whom no evidence was led in criticism of the use by Dr Davis of the tests and instruments in question.

True it is that the various actuarial and other measures used had limitations in their predictive capacity. This was clearly understood and acknowledged by Dr Davis, but did not prevent the measures from being a very useful tool in carrying out the important and difficult task assigned to him.

What was also of substantial importance in the process was the application by Dr Davis of his own subjective judgment, something which he was exceedingly well qualified to formulate. I see no reason to consider that the objective judgment of Dr Davis on any of the matters in question was anything less than legitimate and correct.

Insofar as it was asserted by counsel for the respondent that there was a degree of selectivity in the material emphasised by Dr Davis, I do not accept this. The particular example relied on in illustration of the claim entirely failed to do so. In the course of a very lengthy written report which contained, amongst many other things, a description of the sentencing remarks of Justice Teague, that description did not contain a particular small paragraph indicating some remorse in the respondent for the index murder. There is nothing at all sinister or selective about the omission of the paragraph, which was explained by Dr Davis. He well knew that the full sentence would be read by any interested person. He never purported to be setting out the sentence in full.

As for the claim that Dr Davis had given little weight to the age and circumstances of the respondent at the time of the index offence, the fact of his having not been charged with any offences in the intervening years, and the fact that he may not have intended to kill during the index offence, that contention completely flies in the face of the content of the report and evidence of Dr Davis. I consider that far from having given little weight to these matters, he had them firmly in mind at every stage of his assessment.

In respect of the claim of circular reasoning by Dr Davis in his consideration of the issue of treatment programmes undergone by the respondent, I do not consider that there was any circular reasoning on display at all. Dr Davis carefully considered the material in question, and dealt with it appropriately.

The final criticism made of Dr Davis was that his ultimate finding that the respondent’s risk of reoffending was substantially higher than that of a theoretical offender did not amount to a finding that the respondent is highly likely to reoffend if not supervised, or quantify in any way the likelihood of his reoffending. That is true, but no such evidence was required in order for satisfaction to be reached by the Court under s 14(1) of the Act. Indeed, such definitive findings would be unlikely to be possible in any but the most extreme of cases.

What I have said thus far would make it clear that I reject all of the criticisms made by Mr McLoughlin of the methodology, report and sworn evidence of Dr Davis. To my mind, Dr Davis was a thoroughly impressive witness. I accept his evidence in its entirety.

In my view, an acceptance of the evidence of Dr Davis would lead almost inevitably to the conclusion that the applicant has discharged the onus on her of satisfying me that the respondent poses the unacceptable risk adverted to in s 14(1)(b) of the Act, and that I should exercise my discretion under s 14(6) of the Act to make a supervision order.

As well as the evidence of Dr Davis, which undoubtedly on its own would amount to acceptable, cogent evidence sufficient to satisfy me to a high degree of probability that the respondent poses an unacceptable risk of reoffending, the evidence of Dr Darjee, to my mind, also was supportive of the need for a supervision order in this case. Amongst other things, Dr Darjee did not take issue with the important opinion expressed by Dr Davis in paragraph 277 of his report, and elsewhere, that the respondent currently poses a high risk for violent recidivism, by which was meant, a risk substantially higher than that posed by the ordinary violent offender, and that it was possible that any future violence may involve an offence under Schedule 2 of the Act. Furthermore, Dr Darjee expressed the view that the level of supervision which would be likely to be in place in the absence of a supervision order would be inadequate. In addition, he gave some credence to the desirability and appropriateness of at least two of the challenged conditions, for a limited time at least.

In my view, when the totality of the evidence of Dr Darjee is considered, the opposition of the respondent to this application was not actually supported by the expert evidence called on his own behalf.

Dr Darjee was himself a well-qualified expert, whose evidence, in many respects, I accept. There was one particular, and quite important matter, however, on which I did not accept his evidence. That concerned the level of severity of violence likely to be carried out by the respondent should he resort to violence in future. Dr Darjee indicated such violence would most likely be in the form of verbal aggression, or potentially physical aggression. As to possible physical violence, Dr Darjee said of this, ‘The level of severity of such violence would likely be relatively minor and not resulting in life-threatening harm’.[61]
[61]Exhibit 2 [50].

Dr Davis was not comfortable to advance any such opinion, and in my view, rightly so. As the totality of the evidence makes clear, because of the long passage of time since the commission by the respondent of the index offence and the other serious crimes of violence perpetrated by him in his teenage years, there is much about his current status and likely behaviour in future that is simply not known. However, it cannot be forgotten what he did when he was 19 years of age and younger. The shocking crime of which he was convicted involved him deliberately and fatally stabbing an entirely innocent man to the side of the head with a knife. The crime was impulsive, brutal and entirely out of proportion to the situation in which the respondent found himself. It was a crime preceded by other crimes of considerable violence by the respondent in the years leading up to the index offence. This murder cannot simply be viewed as an impulsive crime by an immature 19 year old offender in a situation of stress. It was a crime of signal violence committed by a young person who by that time had already shown a disturbing tendency to violence.

In the circumstances, it is difficult to see the justification Dr Darjee had for the evidence touched on above about the likely form and magnitude of future violence by the respondent. I do not accept that evidence.

Presumably relying in no small part on the above opinion expressed by Dr Darjee, Mr McLoughlin submitted that a repetition of the index offending by the respondent was highly unlikely. Indeed, he went so far as to imply that the prospect of future serious violence offending was no more than a ‘distant theoretical possibility’.[62]
[62]Transcript 198.

In my view, it could not be safely concluded that the repetition by the respondent of a crime such as the index offence is highly unlikely. Nor could such a prospect be fairly labelled ‘a distant theoretical possibility’. In my view, the evidence of Dr Davis would make that clear. So would the important aspects of the evidence of Dr Darjee.

Of course, the applicable law does not require me to find any particular level of likelihood in order to reach a determination that the respondent poses an unacceptable risk of committing a serious violence offence if a supervision order is not made and he is in the community.

In this case, bearing in mind all of the circumstances including the very serious nature of the index offence, the respondent’s serious history of violence other than that involved in the index offence, his conduct in prison since that time, his personality disorder, his continuing drug use, the history of his two unsuccessful periods on parole, the results of the testing carried out by Dr Davis and Dr Darjee, the opinion of both of them that the respondent currently poses a high risk of violent recidivism, and the concerning and to my mind, very realistic prospect that future violent offending might involve a serious violence offence, I am satisfied that the respondent poses an unacceptable risk in the terms of s 14(1)(b) of the Act. I am also satisfied that a supervision order should be made.

In respect of the conditions required and justified in this case, I reject the contention by Mr McLoughlin that the conditions sought by the applicant were oppressive, potentially counter-productive, and more onerous than parole.

I also reject his implication that Ms Flynn was in any sense intractable in the approach she took in this proceeding, or that the applicant could herself be described in such a manner. The applicant had the responsibility under the Act of seeking to protect the community from the possible future violent conduct of the respondent. The bringing of this application was not only perfectly appropriate in the circumstances, but has been demonstrated by the evidence, including that of the respondent’s own expert witness, to be very well-founded. As for Ms Flynn, to my mind, she conducted herself perfectly appropriately in this application. As to the claim that she had tried to persuade me that the supervision order and the conditions sought would be no more than a minor inconvenience for the respondent, that is in no way a fair reflection of the submissions made by Ms Flynn in this case.

Moving to another criticism advanced by Mr McLoughlin in his written outline, he asserted that the applicant had done nothing in the five year window it[63] had had[64] to prepare the respondent for life in the community and address its concerns about his conduct and behaviour. In his oral submissions, he asserted that the applicant had not used its best efforts to prepare the respondent for release. There was no material before me which would support those contentions. Furthermore, I doubt, without deciding on the matter, that this would be a relevant consideration in any event. At the heart of this proceeding is the question of the risk of future violent offending posed by the respondent, not the past conduct of the applicant. For what it is worth, I think it is highly unlikely that the relevant authorities have not done their best to prepare the respondent for release. He was granted parole on two separate occasions, the first of them shortly after the expiry of the non-parole period. Parole was breached on both occasions and the respondent returned to custody. I fail to see how that was the fault of the authorities.
[63]This was the terminology used in the submissions, so it is repeated here.
[64]By which I took Mr McLoughlin to mean the years that had elapsed since the completion of the non-parole period.

A further submission contained in the respondent’s written outline was that the applicant ‘should not be allowed effectively to rewrite the sentence imposed by this court to one of 26 years (or potentially life) with a non-parole period of 20 years’.[65] I should make it clear that I do not accept that the applicant was seeking to do any such thing, or that the making of a supervision order would have such an effect.
[65]Outline [13].

In my view, there is a clear justification for the imposition of all of the conditions included on the supervision order I made in this case on 23 August 2019, including the three challenged conditions.

In respect of the challenged conditions, for the reasons advanced by Ms Flynn in her submissions, which were amply justified by the evidence before me, I considered it appropriate to impose all of those conditions in the terms sought by the applicant. It is perfectly obvious that those conditions are quite onerous and constitute a significant interference with the respondent’s liberty, privacy and freedom of movement. So much was acknowledged by the applicant during the hearing. To my mind, however, all three of the conditions were justified and necessary in the circumstances, in compliance with s 27(4) of the Act.

Whether those three conditions will continue to be necessary in future remains to be seen. The evidence of Dr Darjee was that, whilst he questioned the appropriateness of the electronic monitoring condition, he could see some value in the other two challenged conditions being in place initially, but raised the prospect that they might be lifted within a short time of the commencement of the order.

Mr McLoughlin urged me, if I imposed the challenged conditions, to place sunset clauses on those conditions. I considered this, and also considered a shorter review period than that set out in the draft supervision order, namely, three years. In the end, I decided that it would not be appropriate to impose sunset provisions, or to specify a shorter review period. As to the former, it is not possible for me to have confidence that the relevant conditions will become redundant in the near future. To impose an unduly short, or indeed, any sunset provision, might act as a distraction to the respondent, and in the event that things do not go as smoothly for the respondent as might be hoped, lead to an unnecessary hearing of this matter in this Court, which as well as the inconvenience it would entail on both sides, might itself lead to pressure being placed on the respondent. As to a shorter review period than that sought by the applicant, that, too, may be counter-productive. The evidence indicates that a review period that is too short might itself be a distraction, and place pressure on the respondent. This is especially so in circumstances where steps would need to be commenced six months or so before the actual review for the preparation of the necessary progress report.

In the end, I was satisfied that all conditions should be imposed as sought by the applicant, and that the review period should also be as sought.

I make it clear that if it becomes apparent at some time in the future that any of the challenged conditions, or any of the other conditions, are no longer necessary or desirable, I would expect the PSA to be agreeable to an application being brought by the Secretary to the Department of Justice and Regulation under s 110 of the Act for a review of the conditions. In addition, of course, the respondent will also be aware of his right to bring a similar application.

As for other more minor variations of the conditions which might be necessitated by employment or other circumstances of the respondent, I am confident that both the Post Sentence Branch and the PSA would deal with any such matters in timely and appropriate fashion. I should say that I do not accept the criticisms contained in Mr McLoughlin’s submissions as to how the PSA could be expected to go about its task of supervising the respondent.

In respect of the duration of the order, it was for six years as set out in the draft orders. In the circumstances, I was satisfied to a high degree of probability that the respondent will continue to pose an unacceptable risk of committing a serious violence offence unless made the subject of an order for that duration.[66]
[66]ARM v Secretary (2008) 29 VR 472 [13].

In making these orders, I should make it clear that it is very much to be hoped that the respondent will not remain, for a long period of time, a person who poses an unacceptable risk of violent recidivism. The evidence of Dr Davis and Dr Darjee certainly held out the hope, in each case, that the respondent will be able to show by his future conduct that he is no longer the dangerous person he was when he went into custody all of those years ago, and that he no longer poses the unacceptable risk of committing a serious violence offence which he currently poses. As Dr Davis said, the respondent will need to demonstrate a serious period of stability in the community before his risk can be deemed to be anything other than high. It is very much to be hoped that the respondent, from his release on Sunday 25 August 2019, has commenced his journey on a stable life which will put the crimes of his past further and further behind him.

Conclusion

Upon being satisfied to a high degree of probability by acceptable, cogent evidence that the respondent posed an unacceptable risk of committing a serious violence offence if a supervision order was not made and he was in the community, I made the supervision order as sought by the applicant. A copy of that order is attached to these reasons. I note that the order included, under the heading, Other Orders, an order under s 279 of the Act prohibiting publication of the identity of the respondent or his address.

[2019] VSC 600

4 September 2019