Secretary to the Department of Justice and Community Safety v SS (Review)

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 (‘the Act’)
- and -
IN THE MATTER of an application under s 110(1) of the Act for leave to apply for review of conditions of 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:	6, 9 and 15 October 2020
DATES OF JUDGMENT:	27 November 2020
DATE OF REASONS	5 February 2021 (Revised 12 February 2021)
CASE MAY BE CITED AS:	Secretary to the Department of Justice and Community Safety v SS (Review)
MEDIUM NEUTRAL CITATION:	[2020] VSC 849

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PUBLIC LAW - Application for review of conditions of a supervision order – Respondent made subject to a supervision order following conclusion of long term of imprisonment for murder - Non-compliance with conditions of supervision order – Failure to engage satisfactorily with treatment – No reduction in risk of serious violence offending in course of order – Risk still unacceptably high – Conflicting expert evidence as to appropriateness of the respondent being required to reside in Rivergum Residential Treatment Centre (Rivergum)– Leave granted for review of conditions – Whether Rivergum condition necessary to reduce risk of respondent committing a serious violence offence – Whether any less restrictive means had been tried or considered – Conditions requiring the respondent to reside in Rivergum and abide by certain other conditions imposed for a period of 2 years – Serious Offenders Act 2018 ss 1, 15, 27, 32, 110, 111.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Flynn QC	Victorian Government Solicitors
For the Respondent	Mr R de Vietri	Victoria Legal Aid

HIS HONOUR:

Introduction

By Notice of Application for Leave (‘the notice’) dated 6 August 2020, the Secretary to the Department of Justice and Community Safety (‘the applicant’ or ‘the Secretary’) applied for leave to review the conditions of a supervision order (SO) in place in respect of the respondent, pursuant to s 110 of the Serious Offenders Act 2018 (‘the Act’).

Background

The respondent was convicted of murder in 1998 and received a long term of imprisonment. He was released on parole on two occasions, both of them ending up in his parole being breached. On 23 August 2019, shortly before his term of imprisonment was to expire, I made a SO for six years under the Act.[1] The SO included conditions prohibiting the use of alcohol and drugs of dependence, requiring the respondent to submit to testing, imposing a curfew, and requiring compliance with electronic monitoring. There was also a condition authorising the Post Sentence Authority (‘PSA’) to give directions to the applicant in relation to the operation of any condition of the SO, and requiring the applicant to comply with any such direction.
[1]Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600 (‘SS’).

As a result of events which occurred from the time of the commencement of the SO, the applicant sought a variation of a number of conditions, and centrally, to have an intensive treatment and supervision (‘ITS’) condition imposed to require the respondent to reside in a residential treatment facility, namely, Rivergum Residential Treatment Centre (‘Rivergum’).

Having heard the application over a number of days in October 2020, on 27 November 2020, I granted leave under s 110(3) of the Act, being satisfied that new facts and circumstances had arisen since the original conditions were made, and that it would generally be in the interests of justice to review the conditions. On a review of the conditions, I was satisfied that it was appropriate that the conditions be varied as sought by the Director. In particular, I was satisfied that an ITS condition should be imposed, it being necessary to reduce the risk of the respondent committing a serious violence offence, less restrictive means of managing the risk having been tried or considered. I directed that pursuant to s 32 of the Act, and for a period of two years to commence on the release of the respondent from custody, a number of conditions will apply to the SO, including centrally that the respondent must reside at a residential treatment facility within the meaning of the Act.

I indicated at the time that I would publish detailed reasons for my decision at a future time. These are those reasons.

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 application was brought pursuant to s 110 of the Act, which provides, in part, as follows:

(1) The Secretary or the offender may at any time (including time during which the offender is remanded in custody or is serving a custodial sentence), with the leave of the court that made the order, apply to the court to review any condition of the supervision order or interim supervision order other than a core condition.

(2) An application may be accompanied by a certificate of available resources or a progress report or both.
(3)The court may grant leave under this section if the court is satisfied that—

(a)new facts or circumstances have arisen since the conditions were made that would justify the review; or
(b) it would generally be in the interests of justice, having regard to the purposes of the conditions and the manner or effect of their implementation, to review the conditions.

Section 111 provides:

(1) If the court grants leave for an application under section 110, the court must grant the offender, the Authority and the Secretary the opportunity to be heard in respect of the application.

(2) The court must consider any submissions made under subsection (1) and any certificate of available resources.

(3) The court may—

(a)vary, add or remove any conditions of the supervision order; or

(b)confirm the conditions of the supervision order; or

(c)review the supervision order in accordance with this Part.

(4) If the court exercises a power under subsection (3) in respect of a supervision order, the court must ensure that the conditions of the order are in accordance with the requirements of section 15 and Division 3 of Part 3 and make any variations or additions to the conditions that are necessary for this purpose.

(5) Divisions 3 and 4 of Part 3 (with any necessary modifications) apply to the addition or variation of a condition under this section.

Section 15 of the Act dictates that a SO is subject to the core conditions set out in s 31 and any other conditions imposed under Division 3.

Division 3 of part 3 commences with s 27, which sets out the purposes of conditions of SOs, and limitations on such conditions. It provides:

(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 sex offence or a serious violence offence or both or an offence referred to in Schedule 3.

(2)The secondary purpose of the conditions of a supervision order is to provide for the reasonable concerns of the victim or victims of the offender in relation to their own safety and welfare.

(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 sex offence or a serious violence offence or both 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.

Section 32 enables the imposition of ITS conditions. It provides, in part, as follows:

(1) The court may impose a condition on a supervision order requiring an offender to reside at residential treatment facility if the court is satisfied that—

(a)the condition is necessary to reduce the risk of the offender committing a serious sex offence or a serious violence offence or both; and
(b)less restrictive means of managing the risk referred to in paragraph (a) have been tried or considered.

(2)Despite section 14(2)(b), in determining whether to impose an intensive treatment and and supervision condition, the court may have regard to—
(a)the means of managing the offender's risk; and

(b)the likely impact of the supervision order on the offender.

(3)Before imposing a condition under subsection (1) the court must consider—

(a)a treatment and supervision plan filed by the Secretary; and

(b)any other matter the court considers appropriate.

Section 32(4) requires a court imposing an ITS condition to impose certain other conditions.

Section 32(5) indicates that an ITS remains in force for a period not exceeding 2 years.

Personal background, criminal history, index offending, and circumstances at time of making of SO

These are all adequately set out in SS, and I will not repeat them here.

The applicant’s case

The applicant relied on new facts and circumstances in support of the grant of leave as set out in the notice. These were essentially the fact of the respondent’s conviction before me on one charge of contravening a condition of a SO, the then-pending charges of further contraventions,[2] the opinion of Dr Rachel MacKenzie that there had been a significant reduction in the respondent’s protective factors and an increase in his dynamic risk factors between the time of her First Progress Report on 18 March 2020 and her Addendum Report on 22 June 2020, and her opinion that the respondent had repeatedly demonstrated an unwillingness to prioritise and engage in treatment in a meaningful manner.
[2]Now the subject of sentence as set out in Secretary to the Department of Justice and Community Safety v SS (No 3) [2021] VSC 1.

The evidence
For the applicant
Dr Rachel MacKenzie

Dr Rachel MacKenzie, a Clinical Psychologist, provided a First Progress Report (‘the Progress Report’) as required under the Act, and an Addendum to First Progress Report (‘the Addendum Report’).

First Progress Report of Dr MacKenzie (‘Progress Report’); 18 March 2020.

The purpose of the Progress Report was to provide an assessment of the respondent’s then current risk status taking into account what had transpired since the previous assessment by Dr Michael Davis, including his current circumstances, his general behaviour and his compliance with the SO.

In preparing the Progress Report, Dr MacKenzie had regard to a substantial body of material, including three face-to-face interviews with the respondent totalling six hours, the reports of Dr Davis and Dr Rajan Darjee referred to in my reasons in SS, conversations with the respondent’s Specialist Case Managers (‘SCMs’), Bronwyn Lewis and Amy Brandler and his then girlfriend RF, information and files provided by Corrections Victoria (‘CV’), and the results of risk assessment tools and psychometric testing.

Dr MacKenzie noted that Dr Davis had provided a comprehensive account of the respondent’s personal and criminal history in his report, and did not seek to repeat that material in her report.

She noted that on her first meeting with the respondent, his displeasure at having to complete the assessment and his resentment and underlying hostility about his treatment since being placed on the SO became increasingly evident. In subsequent consultations leading up to the preparation of the Progress Report, however, he remained polite, respectful and co-operative.

Dr MacKenzie noted no difficulties with either the respondent’s attention or long-term memory, although he reported having problems with his short-term memory. In that regard, she noted the results of the neuropsychological assessment carried out by Professor Simon Crowe pointing to deficits in memory.

In the report, Dr MacKenzie summarised her lengthy telephone conversations with RF, the then girlfriend of the respondent who spoke in positive terms of him.

In setting out the progress of the respondent since being on the SO, Dr MacKenzie noted an incident in Reservoir which had led to the respondent being re-located to Dandenong. She referred to a number of apparent curfew breaches and failures to attend for urinalysis, and the positive urinalysis result in January 2020, in respect of which the respondent emphatically denied having used methylamphetamine, in spite of his plea of guilty in this Court in that respect.

Dr MacKenzie noted an apparent deterioration in the behaviour of the respondent following his move to Dandenong, as reflected in his interactions with CV staff and others. For his part, the respondent told Dr MacKenzie that he had had no privacy and felt he had been ‘treated like a dog’ on the SO. The number of appointments he was required to attend, and the restrictions in place including the curfew and the requirement to wear an electronic monitoring bracelet had had a detrimental impact on his ability to move on with his life, he asserted. Notwithstanding that, the respondent expressed the opinion that he had been doing well on the SO. He claimed to really like Ms Lewis, his SCM. He further asserted that since being on the SO, he had not been violent in any manner.

As for the treatment side of things, Dr MacKenzie summarised her conversation with Amy Brandler as to treatment she had provided, and alcohol and drug treatment in which the respondent had engaged. Ms Brandler considered the respondent to be resistant to discussing his offending behaviour, and noted that he became hostile quickly.

Dr MacKenzie set out the results of the psychological testing she carried out, and of her formal assessment of risk carried out with the use of a number of measures and tools including the HCR-20-V3. She used the same tools previously used by Dr Davis, obtaining comparable results in most of them. She stated in summary:

Although the scoring of the tools indicates that there has been a reduction in the number and intensity of the dynamic risk factors present, this has primarily arisen due to the positive influence of his relationship and the pro-social support this offers. While this is considered to currently place his risk of violent recidivism in the short term in the moderate range, when taking into account [the respondent’s] history, this assessment indicates that his risk of committing an act of violence in the long term continues to be high.[3]

[3]Progress Report [114].

In respect of the first additional question posed by the authorities as to whether making the drug prohibition a restrictive condition of the SO would have a deterrent effect on the respondent, Dr MacKenzie answered in the affirmative but opined that the benefit of the small additional deterrent effect would be outweighed by the potential detrimental impact on the respondent’s relationship with CV and overall long-term rehabilitation should he be returned to custody for a 12 month period.

As for the second additional question, Dr MacKenzie expressed the opinion that participation in the Rivergum treatment program would potentially have significant benefits for someone like the respondent. However, not only would a move to Rivergum jeopardise his relationship with RF and the benefits that resulted from spending time with her, but it would ‘likely result in his experiencing a level of resentment that would undermine the progress he has made thus far’.[4] She went on to say that should future events change the then-current picture, the possibility of placement at Rivergum should not be discounted.
[4]Ibid [123].

In making some recommendations for intervention, Dr MacKenzie described the personal characteristics and life history that made the respondent ‘a challenging client to work with’.[5] She indicated, however, that having spoken with Ms Lewis and Ms Brandler, both of whom had developed a good rapport with the respondent, it appeared that he was capable of working in a co-operative manner when he felt he was being heard and was treated fairly and with respect. Although he had expressed the view that he was not in need of further treatment, helping him understand how treatment would be to his benefit would be necessary to gain his co-operation and meaningful engagement.
[5]Ibid [124].

In conclusion, Dr MacKenzie stated:

Although this assessment indicates that there has been a reduction in the dynamic risk factors present for [the respondent] since the assessments conducted in 2019, this shift has not been sufficient to reduce his overall level of risk from high.[6]

Addendum to First Progress Report (‘Addendum Report’); 22 June 2020.

[6]Ibid [138].

Dr MacKenzie was asked to write the Addendum Report in the context of concerns that had arisen due to the respondent’s relationship with RF coming to an end and a reported deterioration in his behaviour since the earlier report. The purpose of the report was to provide an assessment of the respondent’s current risk status taking into account the developments. Dr MacKenzie was again asked to address the question of the respondent’s suitability for the Rivergum program, whether this might reduce his risk of violence, and also to consider the deterrent effect of making the drug prohibition and the curfew conditions restrictive conditions.

In preparing the Addendum Report, Dr MacKenzie had regard to all available material, including a further assessment of the respondent over a period of 135 minutes on 18 June 2020.

In the report, Dr MacKenzie detailed, inter alia, the breakdown of the respondent’s relationship with RF, his accommodation and financial difficulties, and a number of incidents and problems in his supervision and treatment in the months following her first report. There had been instances of aggressive, intimidating and abusive conduct by the respondent in supervision and treatment, unacceptable failures to attend, frequent late arrivals, and an overall failure to engage. The respondent had continued to breach his curfew. He had now received two formal warnings from the PSA. In spite of the above, the respondent saw himself as doing very well, trying very hard and having done nothing wrong on the SO.

Dr MacKenzie re-administered only those risk assessment measures which contained dynamic factors which might have changed since the last assessment. In the LS/RNR,[7] the score of 29 was higher than the previous 25, reflecting the reduction in the respondent’s pro-social supports and restrictions in organised activities due to COVID-19.
[7]Level of Service/Risk, Need, Responsivity.

Dr MacKenzie stated:

There is no evidence that [the respondent] has acted in a physically violent manner, either during his two periods of parole or since he commenced his SO. However, there has been an increase in the dynamic risk factors present since my last assessment, which is closely associated with the reduction in protective factors. His behaviour directed towards service staff is concerning as if he acted in such manner with those who are not pro-social, he would be placing himself in a high-risk situation. In taking all of this into account, whereas I had previously considered his risk in the short-term to be moderate and in the long term high, my current assessment indicates that his risk of committing an act of violence is high in both time periods.[8]

[8]Addendum report [86].

Dr MacKenzie went on to express the following opinions:

In reviewing the file material, speaking to Ms Lewis and interviewing [the respondent], a behavioural pattern has become more evident, which suggests that he is resisting the conditions of his SO and attempting to assert some control over his life. He has done this through behaviour that might be considered as a combination of petty acts of defiance, a lack of judgement and poor problem-solving strategies. For instance, [the respondent] has repeatedly breached his curfew by less than 10 minutes, which he has previously acknowledged is his way of demonstrating that the 9.00 pm curfew is not feasible. He has also stated that his ‘very oppositional’ acts are because he does not want to return to prison. Whilst it does appear that [the respondent] has a strong desire to assimilate back into the community and lead a productive life, he has little experience of what that entails. He has set incredibly high expectations but consistently fails to understand how his behaviour is sabotaging his reaching his goals. His sense of entitlement, pushing of boundaries and failure to accept personal responsibility for any of the difficulties he is facing is akin to that of an adolescent egocentricity, and his behaviour and dysfunctional problem-solving reflect that level of immaturity.
There is no question that [the respondent’s] behaviour in the last few months has raised a number of concerns. His apparent avoidance of following directives for urine testing raises questions as to whether he is using drugs. He has repeatedly demonstrated his lack of self-awareness or ability to assert himself appropriately when he feels aggrieved, resulting in repeated acts of verbal aggression and being overtly insulting, dismissive or insolent to services trying to assist him. His unrealistic expectations, overconfidence and failure to recognise his limitations, as well as his inability to regulate his emotions, have underpinned much of his frustration and the lack of progress he has made on his SO. He has repeatedly demonstrated that he is prepared to heavily censor, omit or distort information that he provides in supervision, clinical interventions, assessments and to authorities.[9]

[9]Ibid [89]-[90].

In respect of the question whether the drug prohibition condition should be made a restrictive condition, Dr MacKenzie’s view did not change from that expressed in her previous report. Likewise, she did not see making the curfew condition a restrictive condition as an appropriate change.

In respect of the question of the desirability of the Rivergum treatment program being imposed upon the respondent, Dr MacKenzie stated:

Since my last assessment, [the respondent’s] circumstances have changed in that he has lost the relationship that had appeared to be his strongest protective factor. Whilst it is to his credit that he has sought to establish employment during such a difficult economic climate, this work does not provide a reliable income as it depends on numerous variables such as his truck working and his physical fitness. His apparent lack of ability to appropriately manage his finances, is also a concern in that it raises the potential for his returning to criminal activity. Unfortunately, [the respondent] has repeatedly demonstrated that he is unwilling to prioritise treatment or to engage in a meaningful manner when he does attend. This has set up a pattern of replacing clinicians that he feels unable to work with so that the rapport building stage is repeated and the core work to address his offending is not commenced. His failure to recognise the importance of treatment, despite his problematic interpersonal manner being frequently brought to his attention, has emphasised [the respondent’s] limited self-awareness and his abdication of personal responsibility in making the changes necessary to reduce the risk of his being involved in a violent altercation. Given the pattern of his avoidant behaviour and the demands that he makes regarding timetabling, unless [the respondent] makes a significant shift in his thinking, it is difficult to remain optimistic that he will take the steps to engage in treatment within the community setting.[10]

[10]Ibid [95].

In dealing with one of the matters required to be addressed by s 270(1) of the Act, namely, efforts made by the offender in the previous 12 months to address the causes of his violent offending, Dr MacKenzie opined:

Although [the respondent] has been directed to treatment that is both offence specific and offence related, his resistance and attitude towards therapy has resulted in his failing to engage in a meaningful manner. [The respondent] has made it clear that he does (sic) believe that he requires treatment to lower his risk of re-offending and that he will not make therapy a priority over his working. Essentially, he has disrupted the treatment process through superficial engagement, adopting a hostile attitude towards his clinicians or by failing to attend or refusing to work with individuals. This has resulted in no progress being made in the treatment targets I recommended in my previous report.[11]

Evidence of Dr MacKenzie

[11]Ibid [100].

In her sworn evidence before me, Dr MacKenzie confirmed that she still held the opinions expressed in her two reports.

In respect of one of the factors she considered may increase the risk of violent offending, that is, a failure to engage in supervision, Dr MacKenzie opined that in her view:

[The respondent] will engage well when [the respondent] is getting what [the respondent] wants, fundamentally. As soon as he finds an opposition, he becomes aggressive and hostile.[12]

[12]Transcript 27.

She particularly emphasised her concern at what she saw as the respondent’s failure to properly engage in treatment. When asked her view as to his engagement in treatment over the course of the SO, she stated:

I don’t think [the respondent] has engaged in treatment. I think that [he] has gone to treatment, and, from what I have seen, in – with his new clinician, who he had told me that he was extremely happy to be working with, he’s been late for every single session and also failed to attend some.

Dr MacKenzie expressed the opinion that the respondent had been happy to go along to treatment and discuss his relationship and other issues in his life, but not to actually engage in therapeutic work. He had not engaged in any of the offence specific work that needs to be done, or been willing to look at how to regulate his emotions in a better manner.

In respect of the HCR-20-V3, Dr MacKenzie indicated she had re-administered this because certain risk-management factors had changed in the case of the respondent. There had been an increase in hostility, a withdrawal from treatment, and a breakdown in his relationship with RF. There had been a deterioration in his accommodation position. There had been a significant reduction in the pro-social supports the respondent had previously had in place, and therefore, in protective factors.

Dr MacKenzie expressed the view that in order for the risk of future violence posed by the respondent to reduce, he would need to better interact with people. He would need to learn how to assert himself appropriately, so as not to come across in an aggressive and violent manner. He would need to learn to better regulate his emotions.

In respect of the curfew breaches, while they might appear trivial, they were, asserted Dr MacKenzie, reflective of an overall animosity towards the order and part of an attempt to push the boundaries and exert some sort of control.

In respect of the question of whether the respondent would benefit from participation in the Rivergum program, and Dr MacKenzie’s changed view on the matter, she stated:

I did state in my first report that I thought that he would benefit from participating in the Rivergum program, but I didn’t feel at the time that it outweighed the benefits of him staying in the community. My opinion, as of doing the assessment in June, was that the benefits of staying in the community at this point no longer outweigh the benefits that would be gained through the intensive treatment program at Rivergum.[13]

[13]Ibid 34.

Dr MacKenzie stated that the problems with the respondent not attending to and engaging in treatment would not be the problem in Rivergum that they are outside that facility. The Rivergum treatment would be able to address the personality features which needed to be addressed. The program is designed to overcome resistance and help the person learn to better engage. Dr MacKenzie noted that if things continue as they are currently proceeding, the respondent would effectively be turning up for half the sessions. She pointed out that when she saw him in March, she had strongly urged the respondent to engage in treatment if he wanted his restrictions lifted. He had likewise been urged by his case manager, his treating clinicians, and the PSA to improve his performance. He had failed to do so. That would not be an issue if he was placed in Rivergum.

Dr MacKenzie indicated that in her opinion, meaningful engagement in treatment would be an important factor in decreasing the risk posed by the respondent. It was very important that he learn to live within boundaries. That would be an important part of being able to control his emotions. The environment in Rivergum would be of benefit to the respondent. It would enable him to learn how to regulate his emotions, to manage his time, to engage in treatment, and to better manage in society in general.

Dr MacKenzie was asked about the most recent report of Dr Darjee, and in particular, paragraph 30 in which Dr Darjee opined that the respondent had shown an ability to engage and work on relevant issues in his treatment. Dr MacKenzie disagreed with that proposition. Indeed, she described the respondent as ‘sabotaging treatment’.[14]
[14]Ibid 37.

Notwithstanding that the evidence shows that the respondent has not resorted to actual physical violence while in the community on the SO, Dr MacKenzie was still concerned at the hostile and intimidating manner in which he engaged with people. For example, the incident following his break-up with RF could have turned out differently if the other male was of the same personality style as the respondent.

In cross-examination, Mr de Vietri took the witness through the various features of the respondent’s conduct since the commencement of the SO which amounted to progress being made, including the relationship with RF, the efforts at employment, the developing relationship with his mother, and the involvement in a football club. The witness accepted generally the positive benefit of these features, whilst noting some limitations. As for the respondent acquiring his dogs and cats, whilst caring for animals would be a pro-social activity, Dr MacKenzie pointed out that one of his dogs had apparently killed another dog and he had reportedly walked away.

On the question of the respondent’s compliance with treatment, Dr MacKenzie challenged the contention of Mr de Vietri that the respondent had meaningfully engaged in treatment with Breanna Delvescove in recent months. That did not accord with what she had read in the file material. As for the contention that the respondent had meaningfully engaged in drug treatment, Dr MacKenzie pointed out that he had become ‘incredibly abusive’[15] with the first clinician with whom he had worked, necessitating a change. His most recent clinician was actually the third one.
[15]Ibid 52.

As for the negative drug screens since the positive screen on 31 January 2020, Dr MacKenzie noted that there had been several times when the respondent had turned up late, which may raise some doubts as to what was occurring.

In respect of the contention of counsel that the respondent had made meaningful progress in availing himself of the support of the Australian Community Support Organisation (‘ACSO’) concerning his accommodation, Dr MacKenzie noted that before going into custody, the respondent had been on the verge of being evicted.

Dr MacKenzie acknowledged that the respondent was not someone who had effectively gone off the radar where supervision was concerned, and that he had been compliant with electronic monitoring.

When it was put to Dr MacKenzie that it was hardly surprising that a long-term prisoner with an acquired brain injury was struggling with timetabling and time management, leading to late arrivals at appointments and for curfew, she pointed out that he had usually arrived within a few minutes, and that with the frequency of his slightly late attendances, ‘one does start to wonder’.[16]
[16]Ibid 56.

Dr MacKenzie acknowledged the importance of the fact that the respondent had not engaged in violent offending, but took issue with the assertion that name-calling towards staff was indicative of the level of his conduct, stating that the respondent ‘becomes incredibly intimidating’ and ‘incredibly abusive’.[17]
[17]Ibid 56.

The fact of the respondent turning his back on his long-term friend Kevin due to the latter’s concerns raised as to his wellbeing was worrying, showing that anybody who challenged him would likely be cut out of his life.

Turning to the Rivergum treatment, Dr MacKenzie accepted that for the duration of the program, the respondent would not be able to pursue work options. As she put it, ‘the work he’d be doing would be treatment’.[18] Furthermore, being in Rivergum would not mean the absence of a relationship with his mother. She agreed, however, that he would be unlikely to be able to form lasting friendships in the program.
[18]Ibid 62.

Dr MacKenzie did not accept that being in Rivergum would be a step backwards in the respondent’s quest to learn time management and other skills. Rather, it would be a positive thing, enabling him to start looking at prioritising and learning various strategies to enable him to cope better in the community.

She accepted that it would be much harder for the respondent to form a pro-social relationship like the one he had had with RF while in Rivergum.

Dr MacKenzie took issue with the contention that the presence of sex offenders in Rivergum would be an obstacle to engagement in treatment for the respondent. It would actually be good for him to learn tolerance for people he may not like. The whole point of Rivergum is that it is a therapeutic community, in which people are taught not to have a prison mentality.

Dr MacKenzie was taken to the treatment and supervision plan, and agreed that insofar as it seemed to place the need for abstinence from illicit substances high on the list of matters justifying the imposition of the Rivergum condition, that was not an important aspect of this case.

Dr MacKenzie was asked whether the payoff to the very intensive treatment focus of Rivergum was that the other aspects of the offender’s life would be put on hold in order to focus on treatment. She said:

To some degree, that does occur, but then that gives them the ability to just focus on the treatment, and often for people such as [the respondent], the traumas that they’ve had in childhood and their – what happened with their childhood development become quite painful to actually address. [The respondent] becomes overwhelmed extremely quickly. So if the only things (sic) he really has to focus on is treatment, then that’s going to be a better environment for him to be able to do that.[19]

[19]Ibid 69-70.

She did not accept that the inevitable payoff would be that this would come at the expense of his being able to more easily establish a relationship, engage in work, develop pro-social friendships and engage in leisure activities. As she put it:

No. I’ve actually said right from the beginning that I believe that the way for [the respondent] to overcome a lot of the problems that are causing and underlying his risk factors, is to engage in treatment. The thing is, that what he’s doing at this point in time, is stating that his employment and his relationships take precedence over all of the other things.[20]

[20]Ibid 70.

The following exchange occurred reasonably late in cross-examination:

Your opinion in relation to the suitability of Rivergum is essentially, it’s founded on weighing up of – what option – treatment options for [the respondent] would give the best outcome, is that right? Be the most beneficial for [the respondent]---?---Yes. Yes, that’s correct.
Now you understand the task of the court is somewhat different to that. The task of the court is an exercise of determining whether there are less restrictive treatment options available. Are you familiar with that terminology of less restrictive options?---Ah, yes, yes.
You can’t say that [the respondent] is someone who cannot be treated in the community, can you?---[The respondent] has demonstrated, since he’s been in the community, that he is not willing to engage in offence specific work. And that’s been since he was released until now, that he’s not engaging in a meaningful manner for work that needs to be done in regards to reducing his risk.[21]

[21]Ibid 70-71.

Dr MacKenzie did not agree with the opinion of Dr Darjee that an intensive treatment and supervision condition may be counterproductive and not decrease the risk of violence in the case of the respondent. She said:

I mean, it is expected that the initial response in going into Rivergum, is going to be one of anger and resentment. And the program is designed to address that, so that they can then move forward and actually engage in the treatment meaningfully.[22]

[22]Ibid 72.

When asked whether she agreed with Dr Darjee’s opinion expressed at paragraph 30 of his report that placement of the respondent at Rivergum could undermine positive developments he had made in the community, Dr MacKenzie said:

To some degree. But I also think that Dr Darjee has overestimated some of the prosocial aspects that has (sic) occurred. Definitely the relationship he had was pro-social, but again, or at the moment, those two were absent in regards to pro-social activities…and I think that there have been a number of anti-social behaviours that have actually occurred, that are concerning.[23]

[23]Ibid 73.

When asked whether she agreed with Dr Darjee who was not concerned that the respondent posed an imminent risk of serious violence that cannot be managed in the community, Dr MacKenzie stated:

As I pointed out earlier, I don’t think that there’s an imminent risk at the moment but I think that it’s a matter of circumstances that become the problem. [The respondent] has demonstrated repeatedly, that he has difficulty in regulating his emotions and at this point as I said earlier, I think that it’s been about good fortune that he hasn’t encountered someone who has had the same personality as him.[24]

[24]Ibid 73.

Dr MacKenzie did not agree with the proposition that the treatment the respondent would receive in Rivergum would be the same as that he would receive in the community. On the outside, bearing in mind his late attending and unwillingness to comply, he will not be able to engage in his treatment in a meaningful way. In Rivergum he would be getting more intensive, individual and group therapy.

Joseph Mollica

Joseph Mollica, Principal, Clinical Practice, Forensic Intervention Services with CV prepared an affidavit which was filed in the proceeding, and gave sworn evidence in the application.

The affidavit set out in great detail the background, history, purposes, procedures and facilities of the Rivergum facility. He described Rivergum as:

A short-term, intensive treatment and supervision facility, in which residents are supported in their rehabilitation through the delivery of intensive treatment, supervision and other interventions provided by a multidisciplinary team of on-site clinicians, an Occupational Therapist, Specialist Case Managers, Activities Officers, and Specialist Case Workers.

Rivergum provides residents with a structured environment that includes scheduled daily activities. These activities provide opportunities for residents to engage in educational, occupational, and recreational pursuits, in addition to psychological group treatment programs and other interventions to address offending behaviour. These activities and opportunities assist residents to build skills and confidence, whilst increasing their rehabilitation and transition prospects, by targeting their offence-specific behaviours directly through treatment, and indirectly through managing offence-paralleling behaviour observed in the facility.[25]

[25]Affidavit [7]-[8].

Mr Mollica described the operating principles of Rivergum as being Respect, Belonging, Responsibility, Participation, and Openness, noting how these five principles are embedded in the day to day operations of the facility.

The operating philosophy of Rivergum is based on ‘Therapeutic Community’ (‘TC’) principles which Mr Mollica outlined. He cited a UK model known as Psychologically Informed Planned Environments (‘PIPEs’) as a successful example of the use of TC principles. That model uses a three-phased treatment model, as does the system in operation in New Zealand. In turn, there are three phases to the Rivergum program.

Phase 1 is the Readiness Phase which lasts for approximately 18 weeks and aims to induct residents into the program and to ‘determine and address any outstanding responsivity issues that may impede uptake of intensive treatment during the second phase’.[26] Once induction is complete, an Individualised Case Formulation and Treatment Plan is developed by the clinical team in consultation with the multidisciplinary staff and in collaboration with the resident.
[26]Ibid [49].

Phase 2, the Intensive Treatment Phase, lasts for approximately 52 weeks. Mr Mollica summarised the processes and aims of this phase.

Phase 3 is the Graduate Phase, extending for approximately 34 weeks. The purpose of this phase is to allow residents an opportunity to further embed their learning and demonstrate a maintenance of change, assisting them to build the necessary skills for re-integration.

Throughout all the phases, individualised, clinically informed case management is delivered by a multidisciplinary team. The supervision process seeks to complement and consolidate the therapeutic nature of the facility, in order to appropriately target and address relevant risk factors for each resident.

Mr Mollica detailed the steps taken in order to transition and re-integrate residents into other residential facilities or into the community.

He pointed out that there are suitability considerations, whereby individuals exhibiting certain characteristics are not considered suitable for placement at Rivergum, as the characteristics are considered likely to preclude meaningful engagement in treatment, thereby undermining the progress of other residents.

Whilst noting that careful consideration needs to be given to managing non-responders and the seriously disruptive, many individuals who are initially resistant can be managed, motivated and treated successfully in therapeutic settings such as Rivergum. He stated:

Rivergum represents an unparalleled opportunity for Corrections Victoria to offer contemporary best practice intensive supervision and treatment to Victoria’s most serious sex and violent offenders, backed by sound evidence-base. [27]

[27]Affidavit [82].

In the concluding paragraph of his affidavit, Mr Mollica stated that the respondent has been assessed having regard to the suitability considerations referred to earlier in the affidavit and considered to be suitable for placement at Rivergum. He noted that a Treatment and Supervision Plan (‘TSP’) has been prepared for him, and the plan is exhibited to the affidavit as JM-2.

Evidence of Mr Mollica

Mr Mollica gave evidence before me. He attested to the truthfulness of the contents of his affidavit, and indicated he was one of those who endorsed the TSP.

He provided a brief overview of the operating model at Rivergum. He indicated that from the day a resident comes into Rivergum, those at the facility would be trying to set the resident up for re-integration. The facility is really set up to cater for people with personality disorders. He distinguished the level of treatment and supervision possible in the community with the far more extensive services available in Rivergum. He described how the sort of deteriorating relationships with clinicians seen in the respondent in the community may be handled within the facility. He indicated that residents are able to maintain contact with family via telephone and electronic means, and that visits are also possible.

In cross-examination, Mr Mollica acknowledged that residents coming into the facility from the community may see it as a backward step. No residents have yet gone through the graduation phase as Rivergum has not been going for two years. The facility does accommodate sex offenders along with violent offenders, as was always the plan.

In response to a question suggesting that the substance of the forensic intervention treatment within Rivergum would not differ substantially from the approach in the community, Mr Mollica disagreed, noting that schema therapy is engaged in in Rivergum, which is not the case in the community. He went on to say that the ‘whole immersive experience at Rivergum’ distinguishes the facility from what is possible in the community. Whilst in the community, treatment would typically be limited to twice a week for three hours, in Rivergum, it would be:

end-to-end, day-to-day input that we get. Any opportunity that our staff have to interact would be an opportunity to add value to the therapeutic change that we’re trying to achieve for our residents.[28]

[28]Transcript 96.

Reminded of a portion of the TSP which indicated that the respondent’s failure to abstain from illicit substances was an important part of the justification for the recommendation in favour of Rivergum, Mr Mollica stated that that issue was not a priority.

Anthony Calandro

Mr Calandro is the acting general manager of the Post Sentence Branch of CV and stated that he was familiar with the respondent’s case, having reviewed the file materials held by CV.

In summarising the respondent’s participation and engagement in his supervision sessions, he said:

Yes, overall [the respondent] has not engaged at the level expected…in the supervision sessions with his case manager. They’ve (sic) been numerous issues with his attendance, often attending late to appointments, and further often appointments had to have been terminated prior to completion because of [his] often heightened behaviour which has…incorporated things such as yelling at his case manager and also allegedly recording supervision sessions which there are charges pending at the moment.[29]

[29]Ibid 109.

He has had four specialist case managers in his time on the order.

As for his participation and engagement in treatment sessions, Mr Calandro noted the often intimidating and abusive behaviour towards his first clinician Ms Brandler, and the fact that the respondent failed to attend a number of sessions, eventually leading to a new clinician being appointed in May or June 2020. There was better participation after that time, but still, he attended late for most sessions, impacting on the quality of the appointments.

Mr Calandro was taken through the treatment case notes from 31 October 2019, showing a large number of failures to attend, late attendances, and other incidents.

Mr Calandro gave evidence about the housing situation of the respondent from the time of his release, detailing the significant financial and other assistance provide to him by various organisations. As a result of his move from Reservoir to Dandenong in late 2019, he was moved into an ACSO-leased house. He continually refused to sign a lease or pay any rent on this property. He had pets on the premises in spite of being told it was not permitted. He refused to allow inspections, or for cleaners to have access. He left rubbish on the nature strip. He had now been informed by ACSO that he was required to vacate the property which was no longer going to be leased by that organisation.

Mr Calandro detailed the known income of the respondent. His driver licence was suspended on 16 August 2020 due to demerit points. Evidence indicated that he continued to drive nonetheless.

The witness indicated that a recommendation was made in a psychiatric assessment in February 2020 that the respondent be referred to a private psychiatrist. CV encouraged him to pursue this, but he did not do so.

Mr Calandro indicated that changes were made to the respondent’s curfew conditions from time to time to assist in his employment. In addition, changes to his residential requirement were made to assist him to reside with his partner when he was in that relationship.

In cross-examination, Mr Calandro indicated that following the break up of the respondent’s relationship with RF, there had been no contact between CV and the former partner. No concern had been expressed by her to CV in relation to the respondent.

CV was aware that the respondent had been actively pursuing dating options. Mr Calandro noted that residents in Rivergum had been known to commence relationships. There would be no restrictions on the respondent’s phone calls should he be a resident there. He would retain some employment opportunities, although not of the Airtasker type.

In light of the efforts the respondent had made to build the relationship with his mother, Mr Calandro conceded that it would be difficult for her to visit him there, but he would be permitted video and phone calls to remain in contact.

Mr Calandro agreed that, in respect of the accommodation issue, the respondent’s risk profile would mean that he would be a high priority to be provided accommodation upon his release from custody.

Mr Calandro agreed that the respondent had been compliant with electronic monitoring. On occasions when late for curfew, he would almost invariably contact the duty director and advise that he was running late, and his reason for this.

In relation to his treatment with his then-current clinician Ms Del Vesovo, a recent email indicated that he had engaged appropriately at all but a couple of the sessions with her. The clinician had described the working relationship as ‘functional but superficial’. Mr Calandro indicated his understanding, however, that there had been a number of challenges in the treatment due to the respondent’s frequent late attendances and superficial engagement. Whilst treatment had moved beyond rapport building, it was still in its early stages.

As for drug treatment, the understanding of the witness was that the respondent had a good relationship with his most recent clinician, and had chosen to engage in further counselling beyond the initial 15 sessions. In the course of the order thus far, the respondent had returned one positive drug sample, two diluted samples, and on four occasions had failed to attend for a sample.

Mr Calandro did not agree that there had been no instances of the respondent engaging in violence or threats of violence. As recently as 21 September 2020 in custody he allegedly made threatening comments to a staff member, and prior to his remand, his behaviour had been verbally abusive and intimidating at times.

Mr Calandro did not agree that the scheduled timetable the respondent would be on in Rivergum would undermine any developments he had so far been able to make in time management and personal organisation and in experiencing and managing stressful situations. In respect of the latter aspect, Mr Calandro stated his view that time in Rivergum would enhance his ability to deal with stressful situations.

Mr Calandro was asked whether a large amount of emphasis had been placed on the respondent’s inability to abstain from illicit drug use in determining that Rivergum would be appropriate for him. He stated:

No, I believe that that was one aspect of the reason why an application was sought. However, there were a number of concerns, including his regular repeated non-compliance, the fact that despite a number of opportunities from the post-sentence authority where he was encouraged to comply with his order, that had no impact. The fact that he was unable to maintain stable accommodation which was listed as a risk factor, and really, not engaging meaningfully in any way in treatment with forensic intervention services.[30]

[30]Transcript 130-1.

The following exchange then occurred:

The test that the court has to consider in considering the Rivergum application is whether or not there are less restrictive means of managing the offender available. Would you agree that he is someone who can be treated and supervised in the community?---No, and I think his current behaviour has demonstrated that. Despite significant support being offered to him, he's really failed to engage in treatment, or in a meaningful way, and he's failed to really engage in the supervision process with his case manager.[31]

[31]Ibid 131.

In re-examination, Mr Calandro made note of a report from ACSO indicating that it was considered that the respondent demonstrated a lack of engagement in actively sourcing private accommodation, being of the belief that CV should provide accommodation for him. Mr Calandro indicated that the respondent continually expressed the view that it was the responsibility of ACSO and CV to find him somewhere to live.

Ms Del Vesovo, the then-current clinician, had indicated that when discussing conflict resolution techniques with the respondent, he had become defensive and had raised his voice. She indicated he was quick to anger and had a limited ability to reflect on his inappropriate behaviour, making progress in the area of conflict resolution and communication skills minimal. As a result, offence-specific work had not been possible.

Later in the hearing, on 9 October 2020, Mr Calandro was recalled by Ms Flynn to enable a series of photographs taken that morning of the respondent’s former home to be tendered in evidence. Ms Flynn justified the admission of the photographs on the basis that it was part of the material relevant to the question of how the respondent had been proceeding in the community. The photographs may reflect some chaotic aspects of the respondent’s lifestyle as revealed by other evidence. Mr de Vietri objected to the tender of the photographs on the basis of relevance, in light of the then-three week period which had elapsed since the respondent had lived in the premises, the prospect of there being some interference in the state of the premises in the interim, and the lack of connection in any event between the state of the home and any fact in issue in the case. I ruled the material admissible for reasons briefly stated.[32]
[32]Transcript 201.

The evidence of Mr Calandro indicated that staff from ACSO and CV attended at the property that morning in connection with the recovery of electronic monitoring devices and the removal and storage of the respondent’s property from the premises. Photographs of internal and external views of the premises showed them to be in what could be fairly described as a cluttered and squalid state. Mr Calandro indicated that entry into the front bedroom was not possible due to the volume of items strewn around the room. He indicated that a plan was then underway to remove the respondent’s possessions and store them. The removal and storage of the items and cleaning of the property was to be funded by ACSO and was expected to cost some thousands of dollars. In cross-examination, Mr Calandro agreed that the back door of the house had been left unlocked when the respondent had departed and gone into custody. He could not say whether some other person had ransacked the lounge room of the premises in the ensuing weeks.

For the respondent
Dr Rajan Darjee

Dr Darjee, a consultant forensic psychiatrist, assessed the respondent at the time of the application for the SO, prepared a detailed report, and gave evidence before me in the hearing. He again assessed the respondent in the lead-up to the current application, and again, gave sworn evidence.

Updated Psychiatric Report; 17 September 2020[33]

[33]Exhibit 1.

Dr Darjee’s updated report was intended to be read in conjunction with his earlier report. He did not repeat the background material. In the letter of instruction he received, he was asked to address a number of issues set out at the commencement of the report. These included whether his opinions previously expressed about the s 269 factors had changed in the interim, how the respondent had responded to mental health treatment since being placed on the order, how he had responded to offence-specific treatment, the impact on him should he be sent to Rivergum, and whether his treatment needs would be able to be met in the community.

Dr Darjee interviewed the respondent for 1 ½ hours on 9 September 2020 via Zoom. He also had regard to other reports and documentation relating to the respondent’s conduct since the time the SO came into effect.

Dr Darjee noted that there had been numerous occasions on which the respondent had breached the conditions of the order in a number of ways. He also noted problems in the supervisory and treatment relationships, and the challenges the respondent posed in treatment and supervision with his sometimes confrontational, intimidating and hostile behaviour and late attendances.

The respondent became quite heightened during the interview, talking at length about how he felt he had been unfairly treated by correctional staff and others. He apparently felt that the conditions imposed upon him were unreasonable and applied in a persecutory, inflexible and unreasonable way.

Dr Darjee indicated that his opinion remained similar to that previously expressed. He did not feel that the risk currently posed by the respondent or his treatment needs required that he be made subject to an intensive treatment and supervision condition to Rivergum. His risk factors remained the same as they had been. There were slightly more current and future concerns than when he rated him previously using the HCR-20. He stated:

Despite the difficulties that there have been over the last year and the multiple breaches of conditions, I am not concerned that he poses an imminent risk of serious violence or a risk of violence that cannot be managed in the community. Given his development, upbringing, growing up in prison, personality disorder and cognitive issues, I would have been surprised if there had not been difficulties with his supervision. However, none of the breaches or difficulties with his behaviour seem to have been in relation to things leading him towards violent behaviour.
In my view it is positive that he has dealt with conflict, relationship breakdown, stress and supervisory difficulties without resorting to violence, albeit he has displayed provocative and unreasonable behaviour. It is important to understand his behaviour in terms of his significant personality disorder issues and his cognitive difficulties. He is mistrustful, defensive, fears failure and feels ashamed of his status as a ‘violent offender’. He is easily overwhelmed, struggles with being controlled and perceives others as intrusive and threatening of his freedom. He can be pushy and determined to sort things out himself, rather than seeking help or relying on others. He wants to be helped and supported, but in his own way, rather than feeling pushed around. As Dr Mackenzie mentioned in her report, his behaviour is in some ways like that of a truculent adolescent. These are primarily responsivity issues that have to be taken into account in supervision and treatment, and by everyone working with him. This is as set out in the behavioural management plan document. Difficult behaviour in someone like SS is not necessarily the same as risky behaviour.

In my view making his conditions more stringent will likely be counterproductive and not decrease the risk of violence. As I mentioned in my previous report, conditions should only be those that are necessary to manage the risk of violence. Ensuring that he never breaches his 9 pm curfew does not achieve that. A general principal of working with people with antisocial personality disorders is to have only the conditions which are absolutely necessary to prevent violence.
In my view the risk he poses can be managed safely on a supervision order in the community without an intensive supervision and treatment condition in Rivergum. The difficulties, rifts and ruptures that he has had in supervision and treatment are to be expected, and provide opportunities to work on relevant interpersonal, emotional and behavioural issues. There have clearly been problems with his attendance, engagement and behaviour in both treatment and supervision, but he has also shown an ability to engage and work on relevant issues, particularly when professionals work with him in a way that is responsive to his personality and cognitive issues. Although the treatment delivered in Rivergum could be appropriate to address his offending behaviour in the context of his personality disorder, placement at Rivergum could undermine positive developments in the community, including his commitment to work, the lack of violence and his efforts to maintain a prosocial lifestyle.[34]

Evidence of Dr Darjee

[34]Exhibit 1 [27]-[30].

Dr Darjee summarised the main aspects of the respondent’s progress and conduct on the SO. He noted that whilst it had been ‘incredibly difficult’[35] for people to work with him, which he would have expected due to his personality difficulties, there had been nothing about the respondent’s many breaches that indicated to him that he was moving towards violent behaviour. Rather, the issues were in terms of responsivity; how he had worked with people. The witness saw them as responsivity issues rather than risk issues.
[35]Transcript 145.

Dr Darjee put down the tardiness issues and missed drug tests by the respondent to his headstrong and self-focused nature, which had him seeking to take control and do things his own way. His cognitive issues were also a contributor, however, making him disorganised and not effective at planning, and managing his emotions.

In respect of his dealings with forensic intervention services clinicians, there had been significant difficulties with attendance and in making progress.

When asked to summarise his overall opinion as to whether a Rivergum conditions was necessary, Dr Darjee said:

[M]y opinion is that he doesn't require that and my main reason for stating that is I don't think it's the least restrictive alternative that could safely manage him in the community in terms of risk of serious violence.[36]

[36]Ibid 154.

Dr Darjee reiterated the view stated in his report that he did not consider the respondent posed an imminent risk of serious violence even if things remain as they were.

If he went to Rivergum, on the other hand, there would be the risk that he might lose some of his ability to work the way he had been, to maintain contact with his mother, and to engage in the community.

Dr Darjee elaborated on the difference between difficult behaviour and risky behaviour. People with personality disorders invariably manifest difficult behaviour, but that does not mean a movement towards violence.

Dr Darjee expressed the view that the respondent did not need anything more in terms of restrictions. The fact that he had shown no violence in his time on the SO meant that he had to be considered to pose a reduced level of risk. In terms of risk, difficulties in treatment were, he considered, irrelevant.

Dr Darjee spoke of two particular difficulties he perceived the respondent would have with Rivergum. First, he has a very strong view about sex offenders, and would find it very difficult to be in an environment with such offenders. Secondly, he would be in a much more restrictive environment, which he would perceive as being deeply unfair and unnecessary.

Dr Darjee made clear his view that he did not believe that the respondent posed a risk which could not be managed in a less restrictive environment. He indicated that he maintained the opinions expressed in paragraph 30 of his report, set out earlier in this judgment.

In cross-examination, Dr Darjee indicated he still held the opinion expressed in his 2019 report that the respondent may benefit from further work to address factors related to his risk of violence. That work would include dealing with anger, interpersonal difficulties, emotional regulation and self-management. It was important that he address all of these in a meaningful way. Dr Darjee agreed that that would require attendance on time, and engagement. Thus far, his level of engagement had been ‘fluctuating’; sometimes very poor, and sometimes quite good.[37]
[37]Ibid 166.

Dr Darjee noted that the indications were that the respondent was more comfortable dealing with things he feels are important to him, and struggles to talk about other issues.

Dr Darjee agreed that the respondent had found it difficult to prioritise treatment over other issues in his life. As long as he continued to engage to some extent, however, his risk level would remain the same, rather than go up. Indeed, time in the community without displaying violence would mean the risk level would actually go down. The following exchange occurred:

Would you agree that in order to reduce his risk, he does need some meaningful engagement in treatment, rather than just engage in treatment?---I think to reduce his risk he needs to - he needs to attend for treatment, he needs to engage in treatment. I think the most important aspect of treatment is actually his relationship with the treating clinician. I think the specific tasks he undertakes during treatment are probably less important. I'm not saying they're not important, but they're much less important than things like the relationship mending, ruptures in the relationship when they arise. [38]

[38]Ibid 170.

Dr Darjee agreed that certain topics such as conflict resolution and emotional dysregulation would be important treatment topics for the respondent, but stated that if such topics were not addressed, the risk posed by him would remain the same rather than increase.

Noting the fact of the respondent having gone through three treating clinicians so far, Dr Darjee stated that it would be better if he could continue to work with clinicians, even after having had problems with them. Whilst it was true that the changing of clinicians would not be an option for the respondent within the Rivergum facility, and the prospect of the preservation of the relationship therefore would be strengthened, this could be achieved to some extent in the community as well.

He agreed with the evidence of Dr MacKenzie about the need for setting boundaries in the case of a person with the respondent’s personality features, but expressed the view that flexible boundaries are required, likening the respondent to an adolescent in this regard.

Dr Darjee stated that the level of risk now posed by the respondent was similar to that posed in August 2019, noting that there are actually slightly more current and future concerns as indicated by the HCR-20 than was previously the case, although not so many as to change the risk posed by the respondent.

Dr Darjee was questioned about the factors set out as paragraph 67 of his 2019 report as being important to support and help the respondent to maintain stability. He confirmed the importance of such matters, and acknowledged that several of them were no longer present.

He was asked whether he agreed that if things appeared to be unravelling for the respondent in terms of his lifestyle and presentation, that could be an indication of a movement towards acting violently, and responded:

I think if things were unravelling to the extent for example, he had nowhere to live, he was clearly getting into a drug-taking lifestyle, he wasn’t engaging in anything that was meaningful and pro-social at all, for example trying to work, I think there would be concerns if his life was descending in that kind of way. But I don’t see any evidence that his life was descending in that particular way during the period he was in the community over the last year or so.[39]

[39]Ibid 178.

Dr Darjee did not agree with the evidence of Dr MacKenzie that in the case of the respondent, his work should be his treatment. Treatment at the expense of the development of what he called social capital by engaging in pro-social things could potentially set him back.

Dr Darjee was asked about the respondent’s breaches of curfew. A number of different things, to his mind, contributed to these breaches. They might reflect an attitude to the order, but whether the breaches reflected a failure to take responsibility or not was questionable.

In re-examination, Dr Darjee stated that the way to reduce a person’s risk over time is to change the dynamic risk factors that predispose the person to violence. Treatment is not the only way to achieve that. Another is the development of pro-social protective factors. Social capital things are just as important as treatment, he opined. Losing social capital might actually set the respondent back, and Dr Darjee noted that he would not want the respondent to become despondent or hopeless about the future.

Dr Darjee indicated that there was no clear cut research either way on the question of of whether treatment of a person with a personality disorder in the community as opposed to in a closed facility would provide the best outcome.

Dr Darjee said that one way of looking at the position in this case was to consider that if the respondent continued in the community as he had done so far, with no acts of violence, but a continuing problematic pattern of engagement in treatment, his risk would still be reducing because the most important thing would be the fact he had not engaged in violence.

In respect of the curfew breaches, Dr Darjee expressed the view that a mixture of factors contributed to these. He said:

It would be ‘too simplistic to boil it down to he’s intentionally just being defiant, I think it’s much more complicated than that and I think all of that is underpinned by his longstanding personality difficulties which go right back to childhood and his cognitive difficulties as well.[40]
[40]Ibid 191.

Report of Professor Crowe

As part of his case, Mr de Vietri tendered the report of Professor Crowe, Consultant Clinical Neuropsychologist, dated 6 June 2019. That report described the memory difficulties experienced by the respondent as a result of his acquired brain injury.

Submissions for the applicant

Ms Flynn relied on a written outline of submissions[41] and oral submissions made before me.
[41]Exhibit A.

In seeking leave under s 110 of the Act, the applicant relied on new facts and circumstances which had arisen since the conditions of the SO were made, and upon the asserted fact that it would generally be in the interests of justice to review the conditions. As to the new facts and circumstances said to have arisen, these were set out in paragraph 36 of the written outline, and included the conviction of the respondent before me in January 2021, the fact he remained a high risk as assessed in the Progress Report, the reduction in protective factors and increase in dynamic risk factors indicated in the Addendum Report, and the demonstrated unwillingness of the respondent to prioritise treatment and engage in a meaningful manner.

In urging the Court to vary the current conditions of the SO order, Ms Flynn pointed to the primary purpose of the conditions of a SO, namely, to reduce the risk of the respondent re-offending.

Central to the applicant’s purpose in bringing the application for a review of the conditions was the contention that an intensive treatment and supervision condition requiring the respondent to reside at Rivergum would now be appropriate. It was submitted that such a condition was necessary to reduce the risk of the respondent committing a serious violence offence, and that less restrictive means of managing the risk had been tried and considered.

Ms Flynn pointed to the treatment and supervision plan filed with the application, and submitted that the Court should be satisfied that the preconditions had been met having regard to the antecedents of the respondent, and the two reports and the sworn evidence of Dr MacKenzie.

Ms Flynn pointed to particular parts of the reports and evidence of Dr MacKenzie in support of her submission, emphasising the high risk the respondent continued to pose, the deterioration in his position apparent between the time of her two reports, and the ongoing failure of the respondent to properly engage in supervision and treatment. Whilst the respondent saw himself as going well under the SO, the reality was something quite different from that. Ms Flynn pointed to the ways in which the evidence indicated that the respondent could benefit from the Rivergum program. Whilst in March 2020, the benefits of Rivergum were outweighed by the potential benefits of the respondent remaining in the community, that position, according to the evidence of Dr MacKenzie which I should accept in this and all respects, had changed by the time of her second report. Dr MacKenzies’s view was now that Rivergum was the appropriate treatment model, and required in order to contain and hopefully reduce the risk posed by the respondent. Ms Flynn submitted that the evidence of both Dr MacKenzie and Mr Mollica showed the benefits of the Rivergum model for people with the personality features of the respondent and the aggressive and hostile behaviours he continues to manifest. She detailed the various aspects of the Rivergum program which would assist in the treatment of the respondent.

In respect of the question of any less restrictive means of managing the risk, Ms Flynn pointed out that a residential facility is not open for the respondent, and that his current position in the community has been marked by instability in his accommodation and other aspects of his personal life, and his failure to properly engage in treatment and supervision. Ms Flynn noted the evidence of Dr MacKenzie at page 33 that if the respondent remained in the community with increased restrictions upon him, that would not reduce the risk posed by him. All it would do would be to make him more hostile towards the order and less likely to comply. Ms Flynn submitted that in the circumstances, I should conclude that less restrictive means of managing the risk have been considered, tried, and found wanting.

Ms Flynn submitted that the evidence of Dr MacKenzie should be preferred over that of Dr Darjee in any area in which they differed. Insofar as Dr Darjee had seemingly pointed to the importance of meaningful engagement in treatment as the way to reduce risk, and yet been of the view that the current level of engagement was satisfactory, that could not be so. There needed to be meaningful engagement in treatment. If that could not occur in the community setting, then Rivergum would be the appropriate place.

In respect of the then as yet resolved prosecutions of the respondent for failing to comply with conditions of the SO, the fact of the breaches was not in dispute, and I should take the material into account in considering the applicant’s level of compliance with the SO. Ms Flynn submitted that I would be entitled to take into account in deciding the review matter any findings I had already made in respect of the contested charges.

Submissions for the respondent

Mr de Vietri relied on a written outline of submissions and oral submissions made before me.

At the outset, he agreed with the submission of Ms Flynn that I would be entitled to rely upon my findings in the breach matters in deciding the review.

Mr de Vietri conceded on behalf of the respondent that new facts or circumstances had arisen as outlined in the applicant’s submissions, but submitted that those new facts and circumstances would not justify a review of the conditions of the SO. Consistent with his position on the ultimate question, namely, that an intensive treatment and supervision condition was not justified, he submitted that it would not be in the interests of justice to grant leave to review.

In the event that leave was granted, the submission of Mr de Vietri was that the ‘best evidence’[42] did not support a finding by the Court of satisfaction as to either of the requirements in s 32(1) of the Act.
[42]Outline [3].

Before moving to an analysis of the evidence in the proceedings, Mr de Vietri made a preliminary submission as to the meaning of s 32(1)(b). He submitted that the words ‘tried or considered’ should be given a particular interpretation in light of their statutory context, namely, the use of the word ‘necessary’ in s 32(1)(a), the statutory test set out in s 114(1) requiring a court to revoke an ITS condition in certain circumstances, and the minimum interference requirement in s 27(4) of the Act. He submitted that the words do not simply mean as they say, but should be taken to require satisfaction that less restrictive means of managing the risk cannot appropriately achieve that outcome. It cannot be, he submitted, that the threshold for imposing an ITS condition is ‘somehow lower than the threshold that the court considers when reviewing an intensive treatment and supervision condition.’[43]He submitted:

The implication is that your Honour can effectively take the test in s 32 to be the same as the test in s 114 so your Honour must be satisfied that the risk cannot be reduced using a less restrictive means of supervision…Effectively the upshot of it…is that in my submission it’s incumbent upon the Secretary to affirmatively establish that no less restrictive means are available to appropriately manage the offender’s risk or reduce the risk. And that must be based on the expert evidence.[44]

[43]Transcript 234.

[44]Ibid 235.

Mr de Vietri went on to submit that there was clear expert evidence in this case from Dr Darjee that a less restrictive option of managing the respondent’s risk was available, namely, his continuing on the SO and continuing with treatment in the community. This could appropriately reduce his risk over time.

Mr de Vietri advanced no authority in support of this interpretation of the words in question.

Mr de Vietri summarised the evidence of Dr MacKenzie as to protective factors gained by the respondent since the commencement of the SO, including, importantly, his relationship with RF. He also summarise her evidence as to the deterioration in the position of the respondent after her first report. Insofar as his conduct was relied upon by the applicant as an unwillingness to engage in, or a withdrawal from, treatment, that was overstating the position, submitted Mr de Vietri, and he referred to the evidence of Dr Darjee as to progress made by the respondent in treatment.

Mr de Vietri urged me to prefer the evidence of Dr Darjee to that of Dr MacKenzie. He submitted that Dr MacKenzie’s opinion as to the appropriateness of an ITS condition:

was based on a type of utilitarian calculus – a weighing up between the pros and cons of keeping the offender in the community versus making him subject to an ITS condition. In the end Dr MacKenzie’s opinion was the benefits of ITS outweighed the benefits of being in the community.[45]

[45]Outline [19].

The task for this Court, he submitted, was not one of weighing up what the most beneficial course of action is. Rather, he submitted, it was to determine whether an ITS condition was necessary, or, put in another way, whether there was any less restrictive option available to manage the respondent’s risk.

Mr de Vietri submitted that there was no clear evidence from Dr MacKenzie ruling out effective management of the respondent’s risk in the community. He referred in this regard to the evidence of Dr MacKenzie at page 70,[46] in which, as he put it, she had given an equivocal answer to a direct question asked of her. The resulting evidence of Dr MacKenzie, he submitted, was not sufficient to outweigh the clear evidence of Dr Darjee, and it was as high as the applicant’s case got on the point. Neither in evidence-in-chief nor in cross-examination did the witness ever come out and clearly say that the risk posed by the respondent could not be managed in the community. Accepting that the decision was for the Court to make, Mr de Vietri emphasised the importance of the expert evidence in the decision to be made on that aspect of the case.
[46]Line 31.

Mr de Vietri noted that Dr MacKenzie had expressed the view that there was no risk of imminent violence as she saw it at the time of her evidence.

In the course of his submissions, Mr de Vietri emphasised the expertise of Dr Darjee, which, he submitted, exceeded that of Dr MacKenzie where post sentence offenders and risk management were concerned. He submitted that I should prefer the opinions of Dr Darjee.

Turning in more detail to the evidence of Dr Darjee, Mr de Vietri noted his unambiguous opinion that the risk posed by the respondent could be safely managed in the community without an ITS condition. Furthermore, Dr Darjee considered that placement in Rivergum could undermine the progress made by the respondent in the community.

He noted the opinion of Dr Darjee that the difficulties apparent in the behaviour of the respondent did not indicate an increase in the risk of violent offending. He was not an imminent risk, and the risk posed by him could be managed in the community. Furthermore, he relied on the evidence of Dr Darjee that the fact of the respondent having been living in the community for over a year without engaging in violence meant that he should be considered to pose a reduced level of risk. So long as the respondent could be managed in the community without violent offending, that would achieve the ultimate aim of having him on a SO, submitted Mr de Vietri. Although he may not have been demonstrating the type of desirable stability referred to by Dr Davis at the time of the original hearing, which may mean his prospects of getting off the order may not be good, the community was nonetheless adequately protected so long as he did not engage in violent offending.

Mr de Vietri submitted that Dr Darjee gave a more balanced, accurate and up-to-date picture of how the respondent’s treatment had been progressing generally, and more particularly, since June 2020 than had Dr MacKenzie. He submitted that he also gave a more individualised explanation of why he would find it difficult interacting with sex offenders in Rivergum.

In respect of the response to treatment, the evidence of Dr Darjee would not warrant a conclusion that the respondent had withdrawn from treatment. There was some engagement in drug and forensic intervention treatment, and the respondent had remained essentially drug free other than the incident on 31 January 2020.

Mr de Vietri summarised some aspects of the evidence of Mr Mollica, Mr Callandro, and Professor Crowe. In respect of the latter, Mr de Vietri highlighted the evidence as to the cognitive difficulties of the respondent, submitting that these were relevant in particular to the respondent’s late attendances for treatment and breaches of curfew.

As for the evidence of Mr Callandro, Mr de Vietri took issue with the contention that the photographs tendered in evidence could be considered to show the state of the house at the time the respondent lived there.

Mr de Vietri strongly emphasised the likely negative impacts on the respondent of being confined to Rivergum, matters to which the Court was entitled to have regard by virtue of s 32(2)(b) of the Act. These matters were set out in the outline of submissions.[47]
[47]At [42].

Mr de Vietri submitted that the treatment plan put forward over-emphasised the danger of the respondent engaging in illicit drug use. Whilst he acknowledged that the same error was not made in the applicant’s submissions, it certainly was relevant to the thinking of those who formulated the plan.

Mr de Vietri submitted that none of the difficulties experienced, or conduct manifested by the respondent during the SO was sufficient to justify his confinement in Rivergum. He submitted that the evidence of Dr Darjee, which should be preferred to that of Dr MacKenzie, clearly established that Rivergum is not the least restrictive option available to adequately manage the risk posed by the respondent. The treatment of the respondent should continue in the community. The ITS condition should not be imposed upon him.

Applicant’s submissions in reply

Ms Flynn took issue with the interpretation of the words in s 32(1)(b) advanced by Mr de Vietri. The language in the provision was plain and the Court should attach the ordinary meaning to the words. In any event, even were I to accept the submissions of Mr de Vietri on this aspect, the evidence was sufficient to surpass the threshold.

The question was not whether the continued treatment of the respondent in the community could, over time, reduce the risk, assuming the respondent engaged in treatment. The fact is, he had not engaged thus far, and the imposition of the ITS condition was necessary to reduce the risk.

In respect of the criticisms made of the evidence and expertise of Dr MacKenzie in the respondent’s submissions, first Ms Flynn made the point that it was not put to Dr MacKenzie in cross-examination that she was less experienced or qualified than Dr Darjee to provide a risk assessment or opinions as to the appropriate means by which the respondent should be treated. Secondly, she refuted the contention that Dr Darjee was more up-to-date or accurate in respect of the treatment to date than Dr MacKenzie. The latter had access to all relevant treatment notes.

As to the supposedly equivocal answer given by Dr MacKenzie on page 70, that evidence should be read in the context of her overall evidence. In any event, it was the Court, and not Dr MacKenzie, which needed to reach satisfaction about the matter contained in s 32(1)(b), albeit that of course, I should have regard to the expert evidence on the matter.

Ms Flynn submitted that in considering the view of Dr Darjee as to the risk posed by the respondent, as set out in paragraph 30 of the outline, I should bear in mind his evidence at page 174 of the transcript that his assessment of risk then was very similar to that which he made in 2019, and that there were slightly more current and future concerns at the time of this hearing than had been the case a year earlier.

Analysis

At the time of the hearing in this matter which led to the making of the SO, it was the unanimous evidence of the experts, including Dr Darjee, that the respondent posed a high risk of violent recidivism. It was unchallenged from the respondent’s perspective that the risk he posed was an unacceptable one, and that it would be appropriate for a SO to be made. I was satisfied to the requisite high degree of probability that the respondent posed an unacceptable risk of committing a serious violence offence, and would continue to pose such a risk for the duration of the 6 year order which I imposed.

In his report which was tendered during the hearing, Dr Davis said of the respondent:

[G]iven 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.[48]

[48]At [289].

In his evidence before me on that hearing, Dr Davis expressed the view that if the respondent 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.

Dr Darjee, too, during that hearing, spoke of the importance of stability in the life of the respondent. He also spoke of the need for the respondent to participate in treatment.

At the time of announcing my decision, I said:

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.[49]

[49]Secretary to the Department of Justice and Community Safety v SS, [237].

Unfortunately, the period of stability in the life of the respondent spoken of by the experts and hoped for by the Court was not forthcoming. For that and other reasons, the unfortunate fact is that the evidence of the experts called on both sides in this case has made it clear that the risk of violent recidivism posed by the respondent is still high, and indeed, has not reduced to any appreciable extent.

In many respects, as my summaries of the evidence of Dr MacKenzie and Dr Darjee make plain, the performance of the respondent on the SO has left a great deal to be desired. At the heart of that fact, to my mind, is the reality that he has not been accepting of the need for a SO, of the necessity of abiding by all the conditions imposed upon him, and of the strong need for him to openly and willingly engage in treatment in order to try to deal with the problems brought about by his disordered personality. No doubt the disordered personality structure of the respondent, and perhaps to a slight extent, his cognitive limitations, were contributors to his unacceptable conduct. The fact is that whilst the respondent was able to make some progress during the time of the SO, and take some steps which were very significant ones for someone who has led the limited and unfortunate life to which he was consigned by his seriously criminal behaviour as a young man, there was no consistency to his conduct, and far from achieving stability, by the time he came before the Court for the hearing of this application, his life was in a state of considerable chaos.

That unfortunate fact may be less concerning were it not for the fact, as indicated already, that the respondent has simply not shown a willingness to do his best to comply with the SO. He has not shown adequate respect for the requirements of the order, and has not been willing to prioritise compliance with the order and its conditions above other considerations in his life. This is so in spite of numerous warnings and wake-up calls of which he has been the beneficiary, and a good deal of appropriate forbearance by the authorities.

The central matter relied upon by the applicant in support of the asserted need for the imposition of an ITS condition is the apparent unwillingness of the respondent to properly engage in the treatment offered to him.

Concerns about the willingness of the respondent to openly and fully engage in treatment were flagged by the time of the Progress Report of Dr MacKenzie. The respondent was noted by his SCM Ms Brandler to be resistant to discussing his offending behaviour, and to quickly become hostile. Furthermore, he had apparently expressed the view that he was not in need of further treatment. In spite of this, Dr MacKenzie clearly retained the hope at that time that those treating and supervising the respondent may be able to gain his co-operation and that he may be willing to engage meaningfully in treatment in future.

Problems abounded in the treatment and supervision of the respondent in the months following the Progress Report which were accompanied by deterioration in his conduct in other respects. There were instances of aggressive, intimidating and abusive conduct by the respondent in supervision and treatment, unacceptable failures to attend, frequent late arrivals, and an overall failure to engage. In the Addendum Report, Dr MacKenzie expressed grave concerns about the apparent unwillingness of the respondent to prioritise treatment and to engage in a meaningful way when he did attend. She was of the view that unless he made a significant shift in his thinking, it was difficult to be optimistic that he would take the steps necessary to engage in treatment within the community setting. His resistance and attitude to treatment had resulted in a failure to meaningfully engage. He had continued to make it clear that he did not believe he required treatment to lower his risk. He refused to prioritise it over other aspects of his life. He had disrupted treatment through superficial engagement, failing to attend, and a hostile attitude when he did. As a result, he had made no progress towards the targets she had earlier recommended in the Progress Report.

In her sworn evidence, Dr MacKenzie strongly emphasised her concern over the respondent’s failure to properly engage in treatment. Meaningful engagement in treatment was, to her mind, an important factor in decreasing the risk of future violence posed by the respondent for a number of reasons. He had shown himself unwilling to engage in therapeutic work, and in any of the offence specific work which needed to be done. In fact, she went so far as to assert that he had been ‘sabotaging treatment’.[50]
[50]Transcript 37.

Dr MacKenzie expressed the view that the environment in Rivergum would be of benefit to the respondent. It would enable him to learn how to regulate his emotions, to manage his time, to engage in treatment, and to better manage in society in general. She did not accept that it would be a backward step for the respondent. Rather, it would be a positive thing, enabling him to start looking at prioritising and learning various strategies to enable him to cope better in the community. Furthermore, he would be able to focus on treatment, making it his work or job. Engaging in treatment would be the way for him to overcome a lot of the problems that caused and lay behind his risk factors.

Insofar as Mr de Vietri asserted that there was an equivocal aspect to the answer given by Dr MacKenzie to the question whether she could say that the respondent was someone who could not be treated in the community, I do not accept that submission. In the context in which it was given, I saw nothing equivocal about that answer. The witness was clearly expressing the view, without stating it in so many words, that the respondent would not engage meaningfully in treatment in the community at that time. He had shown this time and time again by his conduct from the commencement of the SO.

Whilst there were differences in emphasis, it would be correct to say that Dr Darjee, too, acknowledged significant problems in the respondent’s compliance and engagement in treatment. However, where he differed from Dr MacKenzie was as to the importance of this fact. To his mind, such problems and deficiencies were entirely to be expected in the case of someone with his personality structure. Furthermore, and importantly, Dr Darjee did not consider that the deficiencies of the respondent so far as treatment were concerned were relevant to the level of risk he posed. He did acknowledge that for the risk posed by the respondent to reduce, he needed to attend and engage in treatment. However, he considered that the most important aspect of treatment was the relationship between the respondent and his treating clinician rather than the treatment itself. Even if important treatment topics were not addressed, the risk posed by the respondent would remain the same rather than increase.

I cannot accept the evidence of Dr Darjee as to the relative insignificance of the role of treatment in the case of the respondent. At the time of the making of the SO in August 2019, the damaged personality structure of the respondent was at the heart of the unacceptable risk he posed of future serious violence offending. The centrepiece of the conditions attached to the order designed to protect the community was the requirement that he engage in treatment as required by the authorities. The purpose of the treatment was to seek to reduce the risk he posed. Unfortunately, the respondent paid no respect to the important role of treatment in his life. He behaved in cavalier fashion, regularly turning up late, and being open to discuss only those matters which suited him. He discarded therapeutic relationships at will. In short, he failed, indeed, refused to engage in treatment in any meaningful way. In that respect, I entirely accept the evidence of Dr MacKenzie in preference to that of Dr Darjee. I note that it is strongly supported by other evidence in the case, including that of Mr Calandro.

That there may be the prospect of the respondent in future maintaining a workable relationship with a clinician would, to my mind, be cold comfort indeed if he remains unwilling to devote himself to the task of dealing with his personality problems. Treatment is meant to achieve something. It is designed to assist him down a path leading to the reduction of the risk he poses. Thus far, he has failed to proceed any significant distance down that path, and the aim of treatment has been entirely thwarted.

It is largely for that reason, as I perceive it, that Dr MacKenzie moved from her initial position of considering that it would not be appropriate for the respondent to be required to reside in Rivergum, to her eventual position that such a move would be necessary and appropriate. Dr MacKenzie showed herself in the Progress Report to be acutely aware of the potentially negative effects upon the respondent of requiring him at that time to reside in Rivergum, hence, her opinion at that time that it would not be appropriate. Unfortunately, the position of the respondent had deteriorated markedly by the time of the Addendum Report. Not only was there a substantial deterioration in the state of the respondent, with a number of features pointing to increasing and concerning instability, but there was an ongoing and rigid refusal to engage in treatment, meaning that the important work aimed at modifying the damaged personality structure of the respondent which lay at the heart of the risk he posed could not be carried out. It was the view of Dr MacKenzie, and was my view having heard all of the evidence and submissions, that something needed to be done to arrest the decline of the respondent, and endeavour to reduce the high risk he still posed at the time of the hearing.

It is clearly a regrettable thing that a person who has spent so long in custody, and was able to take some important steps while back in the community for a period of time, should now be required to return to a situation involving the very strict controls implicit in residence at Rivergum. The fact is, however, that the situation cannot be permitted to deteriorate further. The ongoing stability which would be a necessary part of any reduction in risk has simply not been possible for the respondent. Compliance with treatment has seemingly been beyond him. If the respondent is unwilling to engage in treatment and to otherwise comply with the requirements of the SO while free in the community, then it is necessary for him to be placed in a more controlled situation which may encourage and enforce co-operation.

Mr de Vietri emphased the opinion of Dr Darjee that the respondent did not pose an imminent risk of serious violence. Dr MacKenzie did not consider there was an imminent risk either. Of course, unacceptable risk, rather than imminent risk, is the focus of s 14 of the Act. And the reality is, both Dr Darjee and Dr MacKenzie, in spite of their views on imminent risk, nonetheless considered the risk of future violence to continue to be high in spite of the period which the respondent had already spent on the SO. Indeed, by the time of the Addendum Report, Dr MacKenzie, who had previously considered the respondent’s risk in the short-term to be moderate and in the long term to be high, was of the view that the risk in both time periods should be viewed as being high.

Having considered the evidence and submissions in this case, I was satisfied that new facts and circumstances had arisen since the making of the conditions of the SO and that it would be in the interests of justice, having regard to the purposes of the conditions, to review them.

Having done so, I was satisfied that it was appropriate to impose a condition requiring the respondent to reside at Rivergum. Such a condition was, to my mind, necessary to reduce the risk of him committing a serious violence offence.

In respect of the second aspect of s 32(1), I do not consider that I should apply the interpretation urged upon me by Mr de Vietri. The words of s 32(1)(b) should be given their ordinary meaning in my view. In this case, less restrictive means of managing the risk posed by the respondent were tried by the authorities. For 14 months, he was free in the community with conditions in place designed to control and reduce the risk he posed. Unfortunately, due in no small part to the poor attitude displayed by the respondent to the overall order, and the requirement for him to engage in treatment, there was no progress made in reducing the risk, and a concerning level of instability in the life of the respondent.

For completeness in this regard, I can indicate that even were I to attribute to the words of s 32(1)(b) the meaning which Mr de Vietri asserted they bear, the result would be the same. If it was incumbent upon the applicant to affirmatively establish that no less restrictive means were available to appropriately manage the respondent’s risk, then to my mind, that was achieved.

Conclusion

For the reasons stated above, I granted leave under s 110 of the Act, and proceeded to hear an application for review of the conditions of the SO to which the respondent is subject. On a review of the conditions, I was satisfied that it was appropriate that the conditions be varied as sought by the Director.

Specifically, I was satisfied that an intensive treatment and supervision condition requiring the respondent to reside at Rivergum should be imposed upon the respondent, it being necessary to reduce the risk of the respondent committing a serious violence offence. A number of additional conditions were also imposed, pursuant to s 32(4) of the Act, and some previous conditions were revoked.

I ordered that the ITS condition remain in force for a period of two years to commence on the release of the respondent from custody.

Upon being satisfied that it is in the public interest to do so, I make an order pursuant to s 279 of the Act that any information that might enable the respondent or his location to be identified not be published.

[2020] VSC 849

5 February 2021